44438-hls

Volume 13, Number 2

Summer 2022

Contents

ESSAY

Fashion in the Times of War: The Recent Exodus of Luxury Brands from

Russia and What It Means for Trademark Law

Irene Calboli & Vera Sevastianova ..................................... 187

ARTICLES

Superstars, Superteams, and the Future of Player Movement

William W. Berry III .............................................. 199

The Credibility of the Court of Arbitration for Sport

Chui Ling Goh & Jack Anderson ...................................... 233

Of Disaster Girl and Everydays: How NFTs Invite Challenging Copyright

Assumptions Around Creator Support

Stacey M. Lantagne ................................................. 265

Time to Tinker: A New Standard for Protecting the First Amendment

Rights of College Athletes

Brian L. Porto..................................................... 301

Harvard Journal of Sports & Entertainment Law

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Volume 13, Number 2

Summer 2022

EDITORIAL BOARD

Editors in Chief

Eli Nachmany

Erin Savoie

Managing Editors

Alex Blutman

Larson Ishii

Executive Editor - Production Executive Editor, Operations Executive Editor, Online

Kit Metoyer Cara Mund Chris Zheng

Supervising Print Editor Executive Editor, Submissions Supervising Online Editor

Alexander Amir John Ellis Connor Oniki

Senior Articles Editors Online Content Chair,

Elana Confino-Pinzon Submissions Chair Entertainment

Elizabeth Duncan Ethan Borrasso Amanda Bello

Sebastian Edin

Will Scarfone Special Projects Coordinator Online Content Chair, Sports

Caroline Toman Will Walker Ethan Harper

Production Chair

Jiha Min

Submissions Committee

Brandon Broukhim Ryan Chen Jaime Gordon

Sean Healey Tom O’Hara Sabrina Schloss

Andrew Young Aliya Zuberi

Editors

Jhanelle Bisasor Brandon Broukhim Ryan Chen

Matthew Cimini Henry Cordova Kellen Dugan

Veronica Flores Jaime Gordon Sonali Howe

Brandon McCoy Tom O’Hara Abby Rubinshteyn

Sabrina Schloss Sam Safari Navjit Sekhon

Sandy Smith Usman Syed

2022 by the President and Fellows of Harvard College.

Preface to Volume 13, Issue 2

Dear Readers,

I am Professor Peter Carfagna ’79, the Harvard Law School Faculty Advisor

to the Harvard Journal of Sports and Entertainment Law (JSEL). On the heels of

another terrific year for JSEL, I am overwhelmingly proud to author the

preface to the Summer Issue of Volume 13.

Volume 13 was the first Volume of JSEL to come out after the passing of

legendary Harvard Law Professor Paul C. Weiler, who pioneered the Sports

Law Program at Harvard Law School. He was a dear friend of mine and I

miss him tremendously. Professor Weiler’s memory lives on in the

classroom, in the pages of this Journal, and in the outstanding energy of the

Harvard Sports Law Program.

In the Winter Issue, JSEL published four superb articles and a student-

written book review:

• Professor Maureen A. Weston’s article, The Anxious Athlete: Mental

Health and Sports’ Duty and Advantage to Protect, explores an

increasingly significant issue in sports: the mental health of

athletes. Professor Weston’s son Cedric tragically passed away last

year, and JSEL dedicated the Winter Issue to Cedric’s memory. We

also hosted Professor Weston at Harvard Law School this spring,

alongside Coach Kevin Rhoads and student-athlete Chlo¨e Royston

of the Harvard Golf team, to discuss this topic. Professor Weston’s

article was the foreword to the Winter Issue.

• Professor Jorge L. Contreras’s article, Science Fiction and the Law: A

New Wigmorian Bibliography, puts a modern spin on Dean John

Henry Wigmore’s 1908 bibliography of novels that lawyers should

read. In the piece, Professor Contreras lists a set of science fiction

works with which lawyers should be familiar.

• Professor Brian L. Frye’s article, How to Sell NFTs Without Really

Trying, introduces readers to the relatively new phenomenon of

non-fungible tokens. Professor Frye’s humorous piece is a timely

contribution on a quickly developing subject that is of particular

interest to JSEL’s readers.

• Professor Roy S. Gutterman’s article, Liable, Naaaht: The

Mockumentary: Litigation, Liability and the First Amendment in the

Works of Sacha Baron Cohen, delves into the First Amendment issues

surrounding the work of Sacha Baron Cohen. Professor

Gutterman’s work adds an important scholarly perspective to an

ongoing conversation about the legal status of mockumentaries.

• JSEL Supervising Print Editor Alexander Amir ended the Winter

Issue with a fantastic book review of Professors Mitchell N.

Berman and Richard D. Friedman’s new textbook The Jurisprudence

of Sport: Sports and Games as Legal Systems. Alexander’s careful

reading of this recent work illuminates its best qualities.

In this Summer Issue, JSEL published an essay and four more great articles:

• Professor Irene Calboli and Ph.D. candidate Vera Sevastianova’s

essay, Fashion in the Times of War: The Recent Exodus of Luxury Brands

from Russia and What It Means for Trademark Law, chronicles the

impact of the ongoing Russo-Ukrainian conflict on luxury brands.

The authors bring their intellectual property law expertise to bear

on a difficult subject, and their piece is the foreword to the

Summer Issue.

• Professor William Berry III’s article, Superstars, Superteams, and the

Future of Player Movement, takes a look at an evolving trend in

professional sports: star athletes moving quickly from team to

team. Professor Berry suggests a framework within which to think

about this trend.

• Chui Ling Guo and Professor Jack Anderson’s article, The

Credibility of the Court of Arbitration for Sport, critically analyzes one

of the most important arbitral tribunals in the world of sports. The

authors consider various criticisms of the Court of Arbitration for

Sport, adding to the debate in a meaningful way.

• Professor Stacey Lantagne’s article, Of Disaster Girl and Everydays:

How NFTs Invite Challenging Copyright Assumptions Around Creator

Support, continues the conversation about NFTs after Professor

Frye’s piece in the Winter Issue. Professor Lantagne approaches

NFTs from a copyright law angle, giving due consideration to the

interests of the subjects of popular memes.

• Professor Brian Porto’s article, Time to Tinker: A New Standard for

Protecting the First Amendment Rights of College Athletes, discusses free

speech in college athletics amid a time of rapid change at the

National Collegiate Athletic Association. Professor Porto’s piece

proposes an extension of the Supreme Court’s school speech

jurisprudence to protect student-athletes.

On top of all this, the JSEL Online team worked hard over the course of the

year to publish a significant amount of pathbreaking scholarship, including

a special online issue on the Supreme Court’s decision in NCAA v. Alston.

I thank the student editors who spent their time getting this Volume ready.

In particular, I would like to thank Eli Nachmany ’22 and Erin Savoie ’22

for their diligence and excellence as Editors-in-Chief. I am also grateful to

other graduating members of JSEL’s Executive Board: Amanda Bello ’22

(Online Content Chair – Entertainment), Alex Blutman ’22 (Managing

Editor), John Ellis ’22 (Executive Editor of Submissions), Larson Ishii ’22

(Managing Editor), Kit Metoyer ’22 (Executive Editor of Production), Cara

Mund ’22 (Executive Editor of Operations), Will Walker ’22 (Special

Projects Coordinator), and Chris Zheng ’22 (Executive Editor of Online

Content). Finally, I am pleased to welcome the incoming JSEL Masthead for

Volume 14, including our new Editor-in-Chief Connor Oniki.

After another wonderful year, I look forward to next year’s volume!

—Peter A. Carfagna

Fashion in the Times of War: The Recent Exodus

of Luxury Brands from Russia and What It Means

for Trademark Law

Irene Calboli* and Vera Sevastianova**

In February 2022, Russia infamously invaded Ukraine, starting an un-

provoked war. As a result, many foreign companies left their Russia-based

operations, including most luxury fashion houses.

In this Foreword, we

elaborate on the possible issues that these companies may face regarding the

enforcement of their IP rights, particularly trademark rights, in Russia fol-

lowing their departure and resulting from the sanctions imposed by West-

ern countries against Russia.

Besides the desire to take a stand against the war, luxury fashion houses

(and other Western companies) decided to leave Russia because of the grow-

ing logistical issues they faced as a result of Western sanctions against the

* Professor of Law, Texas A&M University Law School; 2022 Hanken-Fulbright

Distinguished Chair in Business and Economics, Hanken School of Economics;

Academic Fellow, School of Law, University of Geneva.

** Ph.D. Candidate, Hanken School of Economics. Any errors in translation or

other errors pertaining to sources in Russian are those of the authors. This Foreword

was written in May 2022. Between then and the date of publication, the list of

applications for signs identical or similar to famous Western marks filed with the IP

Office of Russia (Rospatent) has grown. At the date of publication of this Foreword,

these applications are still being examined by Rospatent.

500 Companies Have Withdrawn from Russia – But Some Remain, Yale Sch. of

Mgmt. (July 13, 2022), https://som.yale.edu/story/2022/over-400-companies-have-

withdrawn-russia-some-remain [https://perma.cc/S9TQ-5Y6B] (listing, amongst

the companies leaving the Russian market, the following luxury fashion houses:

Rolex, Kering (including Gucci, Saint Laurant, and Bottega Veneta amongst other

brands), LVMH (including Louis Vuitton, Dior, Tiffany, Bulgari, Givenchy, Tag

Heuer, Loewe, C´eline, and Kenzo amongst other brands), Chanel, Richemont (in-

cluding Cartier, Jaeger-LeCoultre, and Van Cleef & Arpels amongst other brands),

Herm`es, Swatch (Omega, Tissot, Longines), Burberry, Prada, and Moncler).

188 Harvard Journal of Sports & Entertainment Law / Vol. 13

country. Notably, it had become very difficult, if not impossible, to import

luxury goods to sell to consumers in Russia.

Moreover, luxury fashion

houses depended on payments in foreign currencies for their sales in Russia,

and Western sanctions had blocked these payments.

While closing their

operations, however, most companies specified that their departure from

Russia was only “temporary” and that they were “keeping options open for

return” once the war ended.

Of course, departing Russia was a difficult business decision. Luxury

fashion houses spent the past few decades establishing their operations in the

country, including protecting their intellectual property (IP) rights.

Nota-

bly, almost all famous luxury marks are registered in Russia today, and some

of these marks have also been included in the Russian Reputable Trade-

marks Register

—

a registry listing all marks that have a “reputation” and

enjoy enhanced legal protection.

Moreover, many famous luxury logos and

products enjoy copyright and industrial design protection in Russia.

Luxury Brands Halt Sales in Russia, Citing Concern Over “Current Situation”, Fash-

ion L. (Mar. 5, 2022), https://www.thefashionlaw.com/luxury-brands-halt-operations-

in-russia-citing-concern-over-current-situation [https://perma.cc/CA64-9SJ8].

Id.

500 Companies Have Withdrawn from Russia – But Some Remain, supra note 1.

See generally Evgeny Alexandrov & Vladimir Trey, Russia’s Fight Against Fakes,

Imitations and Replicas, World Trademark Rev. (June 29, 2018), https://

www.worldtrademarkreview.com/brand-management/russias-fight-against-fakes-

imitations-and-replicas [https://perma.cc/9AKM-H3NH].

Russian Reputable Trademarks Register, https://fips.ru/registers-web/ac-

tion?acName=ClickRegister&regName=WKTM [https://perma.cc/X94F-RQAU]

(last visited July 14, 2022) [hereinafter Register]. For example, the mark “Chanel”

is included in the Register for cosmetics, perfumery, female handbags, and clothing.

Registration no. 136, https://fips.ru/registers-doc-view/fips_servlet?DB=WKTM

&DocNumber=136 [https://perma.cc/BYW3-WP6M]. The mark “Cartier” is in-

cluded for timepieces and jewelry. Registration nos. 95 and 96, https://fips.ru/

registers-doc-view/fips_servlet?DB=WKTM&DocNumber=95 [https://perma.cc/

UZN2-MMHT] and https://fips.ru/registers-doc-view/fips_servlet?DB=WKTM&

DocNumber=96 [https://perma.cc/WGE9-642W]. The mark “Tiffany” is in-

cluded for precious metals and jewelry. Registration no. 56, https://fips.ru/regis-

ters-doc-view/fips_servlet?DB=WKTM&DocNumber=56 [https://perma.cc/4JL9-

RTEL].

Russia is a member of the Berne Convention for the Protection of Literary and

Artistic Works, which grants copyright protection in the territory to all members

(including Russia). See Berne Convention art. 3(1), Sept. 9, 1886, World Intell.

Prop. Org., https://wipolex.wipo.int/en/text/283698. Russia is also a member of the

Paris Convention for the Protection of Industrial Property (Paris Convention) and

the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),

which provide that their members should protect industrial designs. See Paris Con-

2022 / Fashion in the Times of War 189

However, the recent events have taken a sour turn for these companies.

Besides leaving their operations in the country, luxury fashion houses (and

Western companies in general) are now at risk to lose their IP rights in

Russia altogether.

Notably, as mentioned by news outlets, the Russian gov-

ernment has threatened several measures against the IP rights held by enti-

ties from “unfriendly” countries in retaliation against Western sanctions. To

date, these threats have included not granting copyright protection to for-

eign films;

introducing compulsory software licenses;

not collecting royal-

ties for foreign right holders;

prolonging the term of license agreements;

vention art. 5quinquies, Mar. 20, 1883, World Intell. Prop. Org., https://wi-

polex.wipo.int/en/text/288514; TRIPS art. 25, World Trade Org., https://

www.wto.org/english/docs_e/legal_e/31bis_trips_01_e.htm. Russian copyright and

industrial design protection is regulated in Russia by the Civil Code (Part 4). See

Civil Code of the Russian Federation, ConsultantPlus, http://www.consultant.ru/

document/cons_doc_LAW_64629 [https://perma.cc/WSE4-GUGC]. For examples

of registered foreign industrial designs in Russia, see Registration no. 79266

(Bulgari) https://new.fips.ru/registers-doc-view/fips_servlet?DB=RUDE&Doc

Number=79266 [https://perma.cc/VWS2-YQE8]; Registration no. 118567

(Cartier) https://new.fips.ru/registers-doc-view/fips_servlet?DB=RUDE&DocNum-

ber=118567 [https://perma.cc/968E-XDGV]; Registration no. 118263 (Van

Cleef & Arpels), https://new.fips.ru/registers-doc-view/fips_servlet?DB=RUDE&

DocNumber=118263 [https://perma.cc/WN6E-QKW2]; Registration no.

95473 (Louis Vuitton), https://new.fips.ru/registers-doc-view/fips_servlet?

DB=RUDE&DocNumber=95473 [https://perma.cc/S8J4-XZBN].

This topic has been discussed extensively in the news in the past few months.

See, e.g., How Russia Is Using Intellectual Property as a War Tactic, Fashion L. (Mar.

18, 2022), https://www.thefashionlaw.com/how-russia-is-using-intellectual-prop-

erty-as-a-war-tactic [https://perma.cc/EDQ7-5RXZ]. In this Foreword, we address

luxury fashion houses, but the same observations apply to other Western companies,

such as restaurants, retailers, and so forth.

Novaya Gazeta, Medinsky Proposed to Ignore Copyright When Showing Foreign Films

on Television (Mar. 24, 2022), https://novayagazeta.ru/articles/2022/03/24/medin-

skii-predlozhil-ignorirovat-avtorskie-prava-pri-pokaze-zarubezhnykh-filmov-po-

televideniiu-news (reporting the suggestion from Vladimir Medinsky, the Russian

former minister of culture and now a negotiator with Ukraine).

Marina Tyunyayeva, Government Does Not Abolish Liability for Pirate Software

from Unfriendly Countries, Vedomosti (Mar. 11, 2022), https://www.vedomosti.ru/

technology/articles/2022/03/11/913009-otvetstvennost-piratskii-soft.

Valeria Lebedeva & Darya Andrianova, Author’s Separation, Kommersant

(Mar. 23, 2022), https://www.kommersant.ru/doc/5270797.

Maksim Varaksin, Agreements Will Not Be Allowed to be Executed Due to Sanctions,

Pravo.ru (Mar. 24, 2022), https://pravo.ru/story/239959.

190 Harvard Journal of Sports & Entertainment Law / Vol. 13

and, in general, seizing and nationalizing IP assets held by “unfriendly”

countries’ IP holders.

Even though these threats aim largely at rallying public support

against the West, it is possible that Russia would follow through on them.

In particular, shortly after the announcement of Western sanctions, Russia

implemented a 0% payment system instead of the required “adequate remu-

neration” for patent compulsory licenses

and considered a list of products

for which IP enforcement may be ignored.

In early March 2022, the rising

“IP war” launched against Western companies struck its first victim: Peppa

Pig, a famous children’s cartoon.

The Commercial Court of the Kirov Re-

gion of Russia denied a claim for trademark and copyright infringement in a

case involving the cartoon because the plaintiff was from the United King-

dom

—

one of the countries that sanctioned Russia (though the lawsuit was

filed in 2021).

Because of its blunt disregard of established IP principles

the decision was widely criticized, however, not only internationally but also

Yekaterina Vinogradova et al., How the Authorities Decided to Manage the Property

of Companies Leaving Russia, RBC (Mar. 9, 2022), https://www.rbc.ru/economics/09/

03/2022/6228acf99a79477828ae9aba.

Nikolay Bogdanov, Russian Federation: Russia Does Not Abolish Intellectual Prop-

erty Rights, Mondaq (Mar. 18, 2022), https://www.mondaq.com/russianfederation/

patent/1173396/russia-does-not-abolish-intellectual-property-rights [https://

perma.cc/DS52-3GE3] (reporting that, in March 2022, the Russian government

issued a compulsory license and, at the same time, amended the Methods for Deter-

mining a Remuneration so that for patent holders “from countries that commit

unfriendly acts against Russia,” “the remuneration is 0% of the revenues”). This

amendment represents a violation of both art. 1360 of the Civil Code of the Russian

Federation and art. 31 of TRIPS, which provide for the payment of an adequate

remuneration in the case of a compulsory patent license. See Civil Code of the Rus-

sian Federation art. 1360, ConsultantPlus, http://www.consultant.ru/document/

cons_doc_LAW_64629; TRIPS art. 31, World Trade Org., https://www.wto.

org/english/docs_e/legal_e/31bis_trips_01_e.htm [https://perma.cc/L5BK-JYEA].

[Federal Law no. 46-FZ art. 18(13)] Mar. 8, 2022, ConsultantPlus, http://

www.consultant.ru/document/cons_doc_LAW_411095.

Judgment of the Commercial Court of the Kirov Region of Mar. 3, 2022, case

no. A28-11930/2021, Register of Commercial Cases of the Russian Federation,

https://kad.arbitr.ru/Card/a45fa186-05bb-43b5-87d9-1f0d3b640142.

Id. The court found that the plaintiff had abused its rights and violated art. 10

of the Civil Code of the Russian Federation and found “no reason to satisfy the

claim” of trademark and copyright infringement. The court specifically referred to

the presidential decree of February 2022, stating “[o]n the application of special

economic measures in connection with the unfriendly actions of the United States of

America and the foreign states and international organizations that joined them.”

See Presidential Decree no. 79 (Feb. 28, 2022), ConsultantPlus, http://

www.consultant.ru/document/cons_doc_LAW_410417.

2022 / Fashion in the Times of War 191

by Russian lawyers.

In June 2022, the Second Commercial Appeal Court

ultimately reversed the decision of the lower court,

yet this cannot guaran-

tee that other Russian courts would not follow the approach of the first

“Peppa Pig” court.

At the time of writing, perhaps the most pressing issue regarding the

protection of trademarks in Russia is whether luxury fashion houses risk

losing their mark rights due to their decision to suspend their operations,

even though temporarily. Ultimately, trademark protection is based upon

the use of the mark in commerce, and, without such use, a mark is deemed

abandoned and protection ends. Generally, a term of non-use for no less than

three years, five years in many countries, is necessary as evidence of such

abandonment.

Yet, as mentioned, luxury fashion houses never stated their

intention to leave Russia indefinitely, and Russian consumers continue to

use the products that they purchased before the war displaying their

marks.

In particular, trademark revocation under the Russian Civil Code

requires no genuine use of a mark for three years.

In addition, an action for

the revocation of a registered mark requires a separate proceeding with a

compulsory pre-trial stage.

Still, no one knows how long the conflict will

continue and Russian courts have highlighted the non-use argument, along

with other reasons, in instances in which they found abuse of rights by

trademark trolls or other unfairly behaving entities.

In this respect, they

could again use the non-use argument against foreign trademark holders and

Anastasiya Gavrilyuk & Yekaterina Volkova, Peppa Pig Is Not of the Right Citi-

zenship, Kommersant (Mar. 14, 2022), https://www.kommersant.ru/doc/5252458.

Judgment of the Second Commercial Appeal Court of June 27, 2022, case no.

A28-11930/2021, Register of Commercial Cases of the Russian Federation, http://

kad.arbitr.ru/A28-11930-2021/1058674. The court concluded that the foreign en-

tity had all rights to submit a lawsuit to the Russian court and satisfied the plain-

tiff’s claims, though reducing the requested compensation for the infringements.

Paris Convention art. 5, Mar. 20, 1883, World Intell. Prop. Org., https://

wipolex.wipo.int/en/text/288514. TRIPS art. 19, World Trade Org., https://

www.wto.org/english/docs_e/legal_e/31bis_trips_01_e.htm [https://perma.cc/

PXP8-D347].

500 Companies Have Withdrawn from Russia – But Some Remain, supra note 1.

Civil Code of the Russian Federation art. 1486, ConsultantPlus, http://

www.consultant.ru/document/cons_doc_LAW_64629.

Id.

See, e.g., Judgment of the Intellectual Property Court of Aug. 27, 2021, case

no. A33-4702/2018, Register of Commercial Cases of the Russian Federation,

https://kad.arbitr.ru/Card/9530ccd0-e77b-483e-8839-a57ad6516e26; Judgment of

the Intellectual Property Court of May 19, 2021, case no. A41-105281/2019, Reg-

ister of Commercial Cases of the Russian Federation, https://kad.arbitr.ru/Card/

00f0e994-2f76-4e3e-b129-e018262f8ecd.

192 Harvard Journal of Sports & Entertainment Law / Vol. 13

dismiss their claim of infringement under the lens of the “unfriendly” status

and abuse of rights by the right holders as they recently did in the Peppa

Pig case.

An additional issue facing luxury fashion houses is the recent flurry of

applications submitted to the Russian IP Office (Rospatent) for signs identi-

cal or similar to their registered marks.

Notably, shortly after their with-

drawal from Russia, the Russian authorities announced that the country may

seize foreign IP assets. At the same time, several applications including

names such as Chanel, Givenchy, Christian Dior, and Giorgio Armani,

amongst others, were submitted to Rospatent by applicants unrelated to the

luxury fashion houses.

While surges in applications for sensational events

are frequent

—

as for example in the case of the COVID-19 pandemic

—

such a flurry of applications for signs identical or similar to existing famous

marks by unrelated parties is unprecedented in Russia (and elsewhere).

Based on Russian law, Rospatent should reject these applications di-

rectly or following the opposition of luxury fashion houses.

In particular,

Russia is a member of the Paris Convention for the Protection of Industrial

Property (Paris Convention) and the Agreement on Trade-Related Aspects

of Intellectual Property Rights (TRIPS), which, together with the Russian

Civil Code,

provide a series of absolute and relative grounds that may af-

See supra note 16.

See Companies Fear Trademark Squatting, Nationalization in Russia, Fashion L.

(Mar. 28, 2022), https://www.thefashionlaw.com/luxury-brands-fear-trademark-na-

tionalization-in-russia [https://perma.cc/9M8B-W5Q8].

For example, Russian entity Smart Beauty LLC submitted trademark applica-

tions for brands such as Chanel, Christian Dior, and Givenchy, covering such goods

as cosmetics and perfumery. See the following applications: no. 2022716514 (Cha-

nel), no. 2022716533 (Christian Dior), no. 2022716528 (Givenchy). One of the

shareholders of Smart Beauty LLC, Vadim Ryabchenko, also filed applications for

Lacoste (no. 2022716597) and Hugo Boss (no. 2022716603). Mr. Ryabchenko is

also a shareholder of Biotechfarm-M LLC, which filed applications for Reebok (no.

2022716612), Puma (no. 2022717060), Adidas (no. 2022717061), and Nike (no.

2022717063), amongst others. The applications can be viewed by typing applica-

tion numbers into the Russian Trademark Applications Register at https://fips.ru/

registers-web/action?acName=clickRegister&regName=RUTMAP.

See Irene Calboli, Trademarking “COVID” and “Coronavirus” in the United States:

An Empirical Review of the Applications Filed in 2020, 16 J. Intell. Prop. L. & Prac.

473 (2021).

Rospatent conducts ex officio examination on both absolute and relative

grounds, but at the examination stage, right holders can still file “soft” oppositions

based on the same grounds. See Civil Code of the Russian Federation, art. 1493(1),

ConsultantPlus, http://www.consultant.ru/document/cons_doc_LAW_64629.

See Civil Code of the Russian Federation, art. 1483, ConsultantPlus, http://

www.consultant.ru/document/cons_doc_LAW_64629.

2022 / Fashion in the Times of War 193

fect the validity of trademark applications. Notably, relative grounds refer to

conflicts between a new application and previous identical or similar appli-

cations or registration for identical or similar products.

Moreover, as men-

tioned, reputed marks enjoy higher protection in Russia, including with

respect to signs that are used for dissimilar goods or services, so long as

consumers will “associate such a use with the reputable mark’s right holder

and if such a use may negatively affect legal interests of the right holder.”

Based on these grounds, Rospatent should reject all the recent applications

because they clearly conflict with existing prior rights.

Moreover, under Russian law, a mark cannot be registered if it is capa-

ble of misleading consumers regarding the origin or quality of the products

or their manufacturer.

In its guidelines, Rospatent elaborated on this

ground for refusal by giving an example of imitations of famous names to

designate goods or services.

Over a decade ago, the then-Russian Higher

Commercial Court applied this rule regarding the use of the name Vacheron

Constantin. The court based its ruling, inter alia, on the principles of unfair

competition as per article 10bis of the Paris Convention and the abuse of

rights provision in the Russian Civil Code.

Because the luxury marks at

issue have decades of history and influence in Russia, any unrelated applica-

tion should be found to be misleading and in violation of this rule by

Rospatent.

Another obvious observation is that these applications were filed in bad

faith by entities which are well aware of, and specifically intended to take

Id. at art. 1483(6).

Id. at art. 1508.

Id. at art. 1483(3)(1).

See Guidelines to Conduct Administrative Procedures and Actions within the

State Service of State Registration of a Trademark, Service Mark, Collective Mark

and Issuance of Certificates for a Trademark, Service Mark, Collective Mark, Dupli-

cates Thereof, Federal Institute of Industrial Property, https://new.fips.ru/docu-

ments/guidelines/rucov-tz.pdf.

Judgment of Higher Commercial Court , case no. A40-73286/2010, Register

of Commercial Cases of the Russian Federation, (Apr. 24, 2012), https://

kad.arbitr.ru/Card/bc336e13-08b4-41e0-b5d3-ff4c2ef5c7ce.

At the time of writing, according to sources in the Russian trademark attor-

neys’ community, Rospatent has not (yet) followed the “unfriendly” country reason-

ing in its examination practices, even though it is unclear how these practices may

evolve. In addition, on April 1, 2022, Rospatent issued a statement underlining

that any application would undergo a formal and substantive examination and that

the existence of earlier identical or similar reputable trademarks remain an obstacle

for registration. See Position of the Rospatent on Examining Applications with Signs That

Are Confusingly Similar to Trademarks of Foreign Applicants, Rospatent (Apr. 1,

2022), https://rospatent.gov.ru/ru/news/poziciya-rospatenta-01042022.

194 Harvard Journal of Sports & Entertainment Law / Vol. 13

unfair advantage of, the fame and reputation of the existing Western

marks.

Yet, as in all members of the Paris Convention and TRIPS, Russian

trademark law expressly prohibits applications filed in bad faith and pro-

vides that, should an application filed in bad faith be registered, the regis-

tration can be canceled upon request of an interested party.

That said, however, it is possible that Rospatent would accept these

applications. Likewise, it is possible that Russian courts will continue to use

the “unfriendly” countries narrative against claims of trademark infringe-

ment by foreign IP holders. Should this be the case, Russian consumers

could see a growing number of unauthorized and infringing products made

available on the Russian market. Of course, this “illicit trade” would harm

not only the legitimate trademark holders, but also Russian consumers. In

particular, should Russia really stop enforcing and nationalize foreign trade-

marks, will Russian consumers accept products carrying famous luxury

marks made by different entities in Russia? What would be the impact of

the rise of this “illicit trade” on the Russian economy and society? Of

course, these authors hope this will remain a hypothetical question, yet it is

still unclear what the future will bring in this respect.

Rather than becoming a pirate society, Russian distributors may prefer

to turn to parallel imports

—

unauthorized imports of genuine products sold

by their parties

—

to import into Russia’s original luxury goods market.

Before the onset of the war, parallel imports amounted to trademark in-

fringement under Russian law.

Yet, these imports will soon become legal

in Russia.

Moreover, a 2018 judgment by the Russian Constitutional

See, e.g., supra note 27.

According to art. 1512(2)(6) of the Civil Code of the Russian Federation, Ros-

patent can invalidate the registered trademark if the rights holder’s actions in ob-

taining trademark rights are “in a due manner” found to constitute bad faith. See

ConsultantPlus, http://www.consultant.ru/document/cons_doc_LAW_64629.

For instance, bad faith can be established in the case of challenging the Rospatent

decision on refusing to invalidate a trademark. See Resolution of the Supreme Court

of the Russian Federation no. 10, ConsultantPlus, (Apr. 23, 2019), http://

www.consultant.ru/document/cons_doc_LAW_323470.

Unlike other measures adopted by Russia, this shift would not be a violation

of international IP law. See TRIPS, art. 6, World Trade Org., https://

www.wto.org/english/docs_e/legal_e/31bis_trips_01_e.htm. See, e.g

Irene

Calboli & Shubha Ghosh,Exhausting Intellectual Property Rights: A Com-

parative Law and Policy Analysis (Cambridge Univ. Press 2018).

Civil Code of the Russian Federation, art. 1487, ConsultantPlus, http://

www.consultant.ru/document/cons_doc_LAW_64629.

At the time of writing, the Russian Parliament’s lower chamber is reported to

have approved parallel imports into the country. Viacheslav Volodin: Legalization of

Parallel Imports Will Help Stabilize Prices for Goods Imported into the Country, State

2022 / Fashion in the Times of War 195

Court

already clarified that IP holders could demand the destruction of

parallel imports only in cases of defective quality, to preserve safety or

health, or to protect the environment and cultural items. The Constitutional

Court also made it clear that parallel imports cannot be considered an in-

fringement in instances of abuse of rights by trademark holders (which

could include following anti-Russia sanctions under the newly adopted de-

crees). Finally, Russia is a member of the Eurasian Economic Union (EAEU),

along with Belarus, Kazakhstan, Kyrgyzstan, and Armenia, which practice

regional trademark exhaustion. Parallel imports from countries within the

EAEU are already allowed under Russian law.

Finally, in light of some recent videos released by the Kremlin, it is

possible that the Russian government may decide to adopt a different strat-

egy against foreign products. In particular, it is possible that part of the

official Russian narrative may turn to an open boycott of luxury foreign

goods altogether with open calls to the Russian consumers to purge the

Russian market from Western luxury goods by increasingly associating

these products with negative characteristics. For example, in a recent video

widely broadcasted across the Internet, President Vladimir Putin contrasted

those companies that continue working in Russia “despite shameless pres-

sure from the US and its vassals” with entities that “hastened to earn illu-

sory dividends by participating in the anti-Russia campaign.”

In his

speech, the Russian President sent a clear signal about the latter for the

Duma (June 21, 2022), http://duma.gov.ru/news/54670. This change from the past

position is aimed at allowing parallel imports of products from a special list of

approved goods that includes brands like “HERMES” and “YVES SAINT

LAURANT.” See Federal Law no. 46-FZ art. 18(1)(13) and 18(3), Mar. 8, 2022,

ConsultantPlus, http://www.consultant.ru/document/cons_doc_LAW_411095.

Government’s Decree no. 506, Mar. 29, 2022, ConsultantPlus, https://

www.consultant.ru/document/cons_doc_LAW_413173. Order of the Ministry of

Industry and Trade no. 1532, Apr. 19, 2022, ConsultantPlus, https://

www.consultant.ru/document/cons_doc_LAW_416496/343227a0f7231f29341512

4c9c5b7237496b9008.

Resolution of the Constitutional Court of the Russian Federation no. 8-

ConsultantPlus, (Feb. 13, 2018,) http://www.consultant.ru/document/cons_doc_

LAW_290909.

See Jerome H. Reichman et al., The WTO Compatibility of a Differ-

entiated International Exhaustion Regime Proposed by the Eurasian Eco-

nomic Community (Research Paper Series, Skolkovo-HSE International Laboratory for

Law & Development, 2014) (on file with author).

See Meeting on Socio-Economic Support for Regions, Kremlin (Mar. 16, 2022),

http://kremlin.ru/events/president/news/67996.

196 Harvard Journal of Sports & Entertainment Law / Vol. 13

Russian people, adding that these entities “cowardly betrayed their part-

ners” in Russia.

In summary, it remains hard to predict what will happen to trademark

rights in Russia and if, and to what extent, Russia will decide to enforce the

rights of foreign luxury fashion houses, and Western companies in general.

Hence, this uncertainty raises the following questions: should Russia decide

to disregard established and internationally harmonized trademark princi-

ples, what remedies, if any, would foreign trademark holders have to defend

their rights in Russia? In particular, even if the current events have high-

lighted the fast rise of a Russia that could easily put aside the rule of law,

could the international framework of IP protection offer foreign trademark

holders relevant instruments to prevent abuses against their legitimate

trademark rights in Russia? Unfortunately, at least for the time being, there

does not seem to be a satisfactory answer to these questions.

Still, despite bombastic public statements and even a national bill to

withdrawal from it,

Russia remains a member of the World Trade Organi-

zation and, as such, is theoretically obliged to follow the principles provided

in TRIPS, including trademark protection, based upon the principle of na-

tional treatment or non-discrimination against foreign entities.

Any viola-

tion of these standards would represent a violation of TRIPS, which could

lead to a claim and a proceeding in front of the dispute settlement mecha-

nism of the WTO.

Yet, while possible, such proceedings would be lengthy

and would not bring an immediate solution to trademark owners. Moreover,

a WTO dispute could only be raised by states (e.g., the EU or the U.S.),

which again would not bring immediate relief to trademark owners.

Ac-

cordingly, a WTO proceeding would not expeditiously resolve any of the

issues that could arise should Russian courts decide to widely disregard

claims of trademark (and other IP rights) infringement brought by foreign-

ers from “unfriendly” countries or should Rospatent accept the currently

pending applications despite the existence of earlier rights because these

rights belong to entities which do not have a presence in the country, albeit

temporarily. Foreign companies could fight for their recognition in Russian

Id.

Bill no. 91393-8, Legislative Support System of the Russian Federation,

https://sozd.duma.gov.ru/bill/91393-8.

TRIPS, art. 3, World Trade Org., https://www.wto.org/english/docs_e/le-

gal_e/31bis_trips_01_e.htm [https://perma.cc/CFE6-VSZ2].

Id. at art. 64.

See, e.g., The Process – Stages in a Typical WTO Dispute Settlement Case, World

Trade Org.

, https://www.wto.org/english/tratop_e/dispu_e/disp_settle

ment_cbt_e/c6s1p1_e.htm [https://perma.cc/6484-43JD].

2022 / Fashion in the Times of War 197

courts, but again, the outcome of litigation would be highly unpredictable

considering the increasingly political approach that the Russian government

is taking against entities from “unfriendly” countries.

In conclusion, the recent war against Ukraine is the unfortunate confir-

mation of the madness of war under all perspectives. IP and trademark law

are certainly subjects of much lesser concern compared to the loss of lives,

destruction of cities, and refugee crisis. Still, the potential disregard for IP

rights by Russia is an additional demonstration of the dangers of not re-

specting established legal norms. Luxury fashion houses, and most Western

companies, did not have much choice and were forced to leave Russia. Their

temporary departure does not violate any legal principle under IP law. Now

these companies find themselves entangled in an IP war in which the Rus-

sian authorities seem to flagrantly disregard national and international IP

law. Yet, this outcome is not unavoidable. These authors are hopeful that

Russian IP judges, Rospatent’s trademark examiners, and Russian IP experts

in general would follow the existing legal principles, and unlike the Peppa

Pig court, continue to uphold the international obligations to which Russia

has committed. This course of action is in the best interest of all: Russia, the

international community, and the rule of law.

Superstars, Superteams, and the Future of Player

Movement

William W. Berry III*

Abstract

Disgruntled stars have existed since the dawn of professional sports.

Historically, though, top athletes had little recourse other than holdouts,

which typically did not achieve an improvement in salary or circumstance.

Beginning with The Decision, LeBron James charted a new path for

stars in the National Basketball Association (NBA)

—

creating “super-

teams” through moves in free agency. To be sure, the two most recent NBA

dynasties

—

the Miami Heat and the Golden State Warriors

—

assembled

their championship rosters through decisions of free agents to combine their

talents. Part of the strategy has been to agree to shorter contracts such that

the flexibility exists to switch teams. These moves have resulted in players

eschewing the higher pay of staying with their current teams under the Bird

Rule.

During the past three years, this phenomenon has reached a new level,

with players under contract using their star power to make lateral moves to

form super-teams prior to free agency. Anthony Davis successfully forced a

trade from the New Orleans Pelicans to the Los Angeles Lakers, resulting in

a championship for the Lakers. James Harden accomplished the same move

last year, forcing a trade from the Houston Rockets to the Brooklyn Nets,

with similar championship aspirations. While teams might trade disgrun-

tled players, the ability of a superstar to force a trade has rarely happened, as

teams are reluctant to give up their best player.

* Associate Dean for Research and Montague Professor of Law, University of

Mississippi. Many thanks to Erin Savoie, Eli Nachmany, and the rest of the JSEL

editorial team for their excellent work on the article.

200 Harvard Journal of Sports & Entertainment Law / Vol. 13

On the heels of the success of NBA stars forcing trades to build super-

teams, National Football League (NFL) quarterbacks have tried the same

approach during the past two years. Initially, they were less successful.

These attempts of star players to switch teams raises questions as to

whether such trade demands will become the norm, the degree to which

players can grab this kind of power within the confines of the current collec-

tive bargaining agreements, and whether such movements are desirable.

In light of these questions, this Article explores the benefits of the

creation of a more open free market for pro athletes to allow for increased

movement between teams. Specifically, the Article suggests that players

should explore the concept of opt-out provisions in future collective bargain-

ing agreements to allow for more free movement and competition in the

market.

Part One of the Article explores the common myths of the single team

star who spends an entire career with one franchise. In Part Two, the Article

describes the recent super-team phenomenon. Part Three advances the cen-

tral argument of the Article, making the case for an expansion of player

rights in free agency through collective bargaining and opt-out contract pro-

visions. It also concludes the Article by explaining the value of increased

player movement in professional sports.

2022 / Player Movement 201

Introduction .............................................. 202

I. The Myth of the Single Team Star ................... 206

A. Home Town Hero vs. Fantasy Star .................... 207

B. Parity v. Dynasty .................................. 209

C. Socialist Paternalism v. Capitalist Free Markets ......... 211

II. The Rise of the Super-Team .......................... 215

A. The Tool of Free Agency ............................. 215

1. LeBron James................................. 215

2. Kevin Durant ................................ 216

3. Tom Brady ................................... 217

B. Forcing Trades ..................................... 218

1. Anthony Davis ............................... 219

2. James Harden ................................ 221

3. The NFL Movement (Watson, Wilson, Rodgers) . 222

III. Rethinking Player Movement ...................... 226

A. Reforming Free Agency .............................. 227

B. Contractual Opt-Outs ............................... 228

C. Basketball As a Unique Situation? ................... 229

D. Exploring the Value of Player Movement ................ 230

Conclusion ................................................. 231

202 Harvard Journal of Sports & Entertainment Law / Vol. 13

Introduction

From a labor and employment law perspective, the story of professional

sports in the United States has been a slow but steady movement toward

athlete free agency.

The evolution has, to be sure, been uneven, and restric-

tions still remain.

And the path has varied across the three major team

sports of baseball, football, and basketball.

Nonetheless, the landscape has

shifted significantly since the early years of professional sports.

See generally Paul C. Weiler, et Al., Sports and the Law: Text, Cases

and Problems (6th ed. 2020).

First-round draftees in the NFL get four-year contracts with a fifth-year team

options, while picks from the second through seventh rounds get four-year con-

tracts; NBA rookie contracts last two years, with team options for a third and fourth

years; MLB rookie contracts are six years. See Nat’l Football League & Nat’l

Football League Players Ass’n, Collective Bargaining Agreement 27 (March

15, 2020), available at https://nflpaweb.blob.core.windows.net/website/PDFs/CBA/

March-15-2020-NFL-NFLPA-Collective-Bargaining-Agreement-Final-Executed-

Copy.pdf [https://perma.cc/UF4B-8CAL]; Nat’l Basketball Players Ass’n,

Collective Bargaining Agreement 265 (Jan. 19, 2017), available at https://

nbpa.com/cba [https://perma.cc/S5QA-LZRC]; MLB Collective Bargaining

Agreement 92 (December 1, 2016), available at https://www.mlbplayers.com/cba.

This article cites the previous MLB collective bargaining agreement. At the time of

writing, MLB and its players union recently agreed to a new collective bargaining

agreement. See Mark Feinsand, MLB, MLBPA Agree to New CBA; Season to Start

April 7, MLB (Mar. 10, 2022), https://www.mlb.com/news/mlb-mlbpa-agree-to-cba

[https://perma.cc/AM5R-DGF7].

The big three sports in the United States outpace all other sports in annual

revenue, with Premier League Soccer, Indian Premier League Cricket, and the Na-

tional Hockey League a step behind. See, e.g., Bradley Geiser, America Only Has 4 of

the Most Profitable Sports Leagues in the World, Sportscasting (April 11, 2020),

https://www.sportscasting.com/america-only-has-4-of-the-most-profitable-sports-

leagues-in-the-world/ [https://perma.cc/R9QT-NWCJ]. Indeed, in 2021, NFL foot-

ball accounted for 75 of the top 100 most viewed live television broadcasts.

Anthony Crupi, NFL Games Account for 75 of the 100 Most-Watched Broadcasts of

2021, Sportico (Jan. 7, 2022), https://www.sportico.com/business/media/2022/nfl-

games-account-for-75-of-the-100-most-watched-broadcasts-of-2021-1234657845/

[https://perma.cc/89QY-AXJ8]. Baseball players receive free agency after six years,

but are eligible for arbitration after three. See MLB Collective Bargaining

Agreement, supra note 2, at 18, 92. Football players become free agents after four

years unless the team exercises a fifth-year option. See NFL Collective Bargain-

ing Agreement, supra note 2, at 27. Basketball players become free agents after two

years unless the team exercises its third-year option. See NBA Collective Bar-

gaining Agreement, supra note 2, at 265. The team can also exercise a fourth-year

option, keeping the player from free agency until after his fourth year. Id.

The decline of baseball’s reserve clause is perhaps most emblematic of this

change. See, e.g., Jeff Martindale & Carolyn Lehr, Two Strikes: A History and Analysis

2022 / Player Movement 203

In baseball, antitrust challenges failed, but labor arbitration opened the

door to free agency.

In football, antitrust challenges preceded by union

decertification carried the day.

And in basketball, an antitrust challenge led

to a negotiated settlement establishing free agency.

And yet, there are restrictions at play in each sport. In baseball, players

must wait six years for free agency, although they can enter salary arbitra-

tion after three years.

In football, free agency is generally available after four

years.

And in basketball, free agency becomes available after four years, but

can be two years if the team does not exercise its option on the rookie

contract.

In recent years, however, the players have begun to exercise greater

control over player movement and team-building.

Beginning with The

Decision,

LeBron James charted a new path for stars in the National Bas-

ketball Association (NBA) showing how to create a “super-team” through

of Major League Baseball, Its Antitrust Exemption, and the Reserve Clause, 7 J. Legal

Aspects Sport 174 (1997); Stew Thornley, The Demise of the Reserve Clause: The Players’

Path to Freedom, 35 Baseball Rsch. J. 115 (2006).

Flood v. Kuhn, 407 U.S. 258 (1972) (upholding baseball’s antitrust exemption

from the Court’s prior decisions in Federal Baseball Club v. National League, 259 U.S.

200 (1922) and Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953)); Kansas City

Royals v. Major League Baseball Players Ass’n, 532 F.2d 615 (8th Cir. 1976) (up-

holding the arbitrator’s decision in National and American Professional Baseball

Clubs v. Major League Baseball Players Association, 66 Lab. Arb. Rep. (BNA) 101

(1976)).

McNeil v. Nat’l Football League, Civ. No. 4-90-476, 1992 WL 315292 (D.

Minn. Sept. 10, 1992) (finding that Plan B free agency violated the Sherman Act);

White v. NFL, 836 F. Supp. 1458 (D. Minn. 1993) (upholding the class action

settlement resulting from limits on free agency).

Robertson v. Nat’l Basketball Ass’n, 72 F.R.D. 64 (S.D.N.Y. 1976), aff’d, 556

F.2d 682 (2d Cir. 1977) (upholding the class action settlement that established free

agency).

MLB Collective Bargaining Agreement, supra note 2, at 18, 92.

NFL Collective Bargaining Agreement, supra note 2, at 27.

NBA Collective Bargaining Agreement, supra note 2, at 265.

Historically, control of a roster had been under the exclusive purview of the

general manager or similar senior club executives.

The Decision was a television special in which LeBron James announced his

decision of where he would sign as a free agent, choosing to join the Miami Heat

and leave his home state Cleveland Cavaliers. See, e.g., Looking Back at LeBron’s Deci-

sion 10 Years Later, Sports Illustrated (July 8, 2020), https://www.si.com/nba/

2020/07/08/lebron-james-miami-heat-decision-10-years-later [https://perma.cc/

NQ4B-7MGE] (discussing the impact and theatrics of The Decision).

204 Harvard Journal of Sports & Entertainment Law / Vol. 13

player-coordinated moves in free agency.

To be sure, the two most recent

NBA dynasties

—

the Miami Heat and the Golden State Warriors

—

assem-

bled their championship rosters through superstar free agents deciding to

combine their talents.

Part of the strategy has been to agree to shorter

contracts such that the flexibility exists to switch teams.

These moves have

resulted in players eschewing the higher pay of staying with their current

team under the Bird Rule.

During the past three years, this phenomenon has reached a new level,

with players under contract using their star power to make lateral moves to

form super-teams prior to free agency by demanding trades. Anthony Davis

successfully forced a trade from the New Orleans Pelicans to the Los Angeles

As discussed infra in Part I, this strategy involves timing one’s contract expira-

tion with other players to join as free agents on a new team. This also requires some

level of team complicity as well in order to have the salary cap space to accommo-

date multiple maximum contracts.

In James’ case, free agent James joined with Miami Heat star Dwyane Wade

and free agent Chris Bosh to form a super-team that made four consecutive NBA

finals and won championships in 2012 and 2013. See NBA & ABA Champions, Bas-

ketball-Reference, available at https://www.basketball-reference.com/playoffs/

[https://perma.cc/4FFJ-KEJ4] (last visited July 3, 2022). To be fair, the Warriors

had already assembled a championship team, winning the NBA championship in

2015 and setting the NBA record for wins in 2015-16 before losing in the finals. See

id.; Top Moments: Warriors Set Record with 73-Win Season, NBA (Sept. 14, 2021, 9:56

AM), https://www.nba.com/news/history-top-moments-warriors-win-record-73-

games [https://perma.cc/ANE5-5YJY]. Adding Kevin Durant as a free agent led to

two more championships in 2017 and 2018 and a third finals appearance in 2019

which the Warriors lost after Durant and another star player, Klay Thompson, were

injured. See id.; James Picks Heat; Cavs Owner Erupts, ESPN (July 8, 2010), https://

www.espn.com/nba/news/story?id=5365165 [https://perma.cc/77JT-63AD]; Top

Moments: Kevin Durant Signs with Warriors in 2016, NBA (Sept. 14, 2021, 9:56 AM),

https://www.nba.com/news/history-top-moments-kevin-durant-joins-warriors

[https://perma.cc/PP8L-FEY8].

The uneven raises of the salary cap over time also play a role here. See, e.g., Rob

Mahoney, NBA Free Agency: The Thought Behind the One-Year Deal Trend, Sports

Illustrated (July 12, 2018), https://www.si.com/nba/2018/07/12/nba-free-

agency-kevin-durant-demarcus-cousins-deandre-jordan-one-year-deal-trend [https://

perma.cc/6WTQ-554H].

The Bird rule, named for Boston Celtics star Larry Bird, allows a team to sign

its own player for a higher amount than other clubs can sign him in free agency,

even if the amount exceeds the salary cap. NBA Collective Bargaining Agree-

ment, supra note 2, at 35-43, 184, 198-99. The idea behind the rule is to discourage star

players from switching teams.

2022 / Player Movement 205

Lakers, resulting in an NBA championship for the Lakers.

James Harden

accomplished the same move last year, forcing a trade from the Houston

Rockets to the Brooklyn Nets, with similar championship aspirations.

While teams have sometimes traded disgruntled players, the ability of a

franchise-player superstar to force a trade to a strong team in order to win a

championship has rarely happened, as teams are reluctant to give up their

best player or help another team build a dynasty.

On the heels of the success of NBA stars forcing trades to build super-

teams, National Football League (NFL) quarterbacks tried the same ap-

proach during the summer of the 2021 NFL offseason. Houston Texans

quarterback Deshaun Watson and Seattle Seahawks quarterback Russell

Wilson both allegedly attempted to force trades, but were unsuccessful in

the summer of 2021.

The litmus test, though, for this approach perhaps

was Green Bay Packers quarterback Aaron Rodgers, the winner of the Most

Valuable Player (MVP) award for the 2020 season.

Rodgers went as far as

to suggest that he would rather retire than play another season with the

Packers before caving just before the team required its players to report for

the 2021 season.

Kerr: Forced Trade by Davis ‘Bad for the League’, ESPN (July 24, 2019), https://

www.espn.com/nba/story/_/id/27250922/kerr-forced-trade-davis-bad-league

[https://perma.cc/7UR8-DPTP].

Farbod Esnaashari, The 2-Month Trade Request: How James Harden Forced His

Way Out of Houston, Bleacher Report (Mar. 3, 2021), https://bleacherreport.com/

articles/2934230-the-2-month-trade-request-how-james-harden-forced-his-way-

out-of-houston [https://perma.cc/BQ4H-7H7Z].

The inability of football players to replicate what Davis and Harden have done

underscores this point. See discussion infra Part II.

Watson’s attempt to force a trade was complicated by a series of accusations of

sexual assault that emerged in the summer of 2021 and 22 civil lawsuits subse-

quently filed. See Aaron Reiss, Timeline of Deshaun Watson Sexual Assault Lawsuits:

Trade Won’t Happen Before Deadline, The Athletic (June 27, 2022), https://

theathletic.com/2496073/2021/10/26/timeline-of-deshaun-watson-sexual-assault-

lawsuits-lawyer-for-texans-owner-tried-to-broker-mediation/ [https://perma.cc/

A9SB-ASEK]. He ended up sitting out the 2021 season. Id. Gene Chamberlain,

Russell Wilson Explanation Misses the Mark, Sports Illustrated (June 12, 2021),

https://www.si.com/nfl/bears/news/russell-wilson-does-revisionist-history-on-bears-

trade-attempt [https://perma.cc/QHJ2-9RLE].

Nick Shook, Packers QB Aaron Rodgers Named 2020 AP NFL Most Valuable

Player, NFL (Feb. 6, 2021), https://www.nfl.com/news/packers-qb-aaron-rodgers-

named-2020-ap-nfl-most-valuable-player [https://perma.cc/5U4U-VJEU].

See, e.g., Mike Tanier, With a Little Leverage but a Lot to Say, Aaron Rodgers

Returns, N.Y. Times (July 29, 2021), https://www.nytimes.com/2021/07/29/sports/

football/aaron-rodgers-press-conference.html [https://perma.cc/H4GU-WUG6];

Vinnie Iyer, Aaron Rodgers’ Holdout Timeline: Key Dates, Fines to Know on Packers’

206 Harvard Journal of Sports & Entertainment Law / Vol. 13

Interestingly, Watson and Wilson were both traded in the 2022 off-

season. But their situations were far different from Davis and Harden in the

NBA. Watson’s situation was complicated by ongoing allegations of sexual

assault and a possible NFL suspension. Wilson’s situation related in part to a

determination that his health and age had diminished his abilities while his

desire to pass the ball extensively contradicted the team’s run-based offen-

sive philosophy.

These attempts of star players to switch teams raises questions as to

whether such trade demands will become the norm, the degree to which

players can grab this kind of power within the confines of the current collec-

tive bargaining agreements, and whether such movements are desirable.

In light of these questions, this Article assesses the benefits of the crea-

tion of a more open free market for pro athletes to allow for increased move-

ment between teams. Specifically, the Article suggests that players should

explore the concept of opt-out provisions in future collective bargaining

agreements to allow for more free movement and competition in the market,

as outside of the NBA, forcing trades is not a successful strategy.

Part One of the Article explores the common myth of the single team

star who spends an entire career with one franchise. In Part Two, the Article

describes the recent super-team phenomenon. Part Three advances the cen-

tral argument of the Article, making the case for an expansion of player

rights in free agency through collective bargaining and opt-out contract pro-

visions while suggesting the limitations of the forced-trade strategy. It then

concludes the Article by explaining the value of increased player movement

in professional sports.

I. The Myth of the Single Team Star

Historically, athletes spent their career with the same team. Fans love

the nostalgia of the old players who are synonymous with their teams. One

might think of Larry Bird’s Celtics, Magic Johnson’s Lakers, and Michael

Jordan’s Bulls; Johnny Unitas’s Colts, Roger Staubach’s Cowboys, and Terry

Bradshaw’s Steelers; Joe DiMaggio’s Yankees, Ernie Banks’ Cubs, and Sandy

Koufax’s Dodgers. The home town hero mythology embraces the idea of the

hero always playing for the home town team

and never becoming a free

Offseason Calendar, Sporting News https://www.sportingnews.com/us/nfl/news/

aaron-rodgers-holdout-fines-packers/1db9kfevg9fhb10lfj73124ktp [https://

perma.cc/4WRS-XCCH] (last visited July 4, 2022).

Players in the baseball Hall of Fame are enshrined on a plaque where the

player is wearing the team hat in Cooperstown, with the implicit presumption that

players spend their career with one team. See Plaque Gallery, Nat’l Baseball Hall

2022 / Player Movement 207

agent.

Indeed, for some fans, nothing is more crushing than their favorite

player being traded or leaving as a free agent, especially late in his career.

One part of the argument in favor of baseball’s reserve system

to the paternalistic idea that player movement would destroy professional

sports, as the appeal to fans was the connection to particular players.

If the

players changed too often and players switched teams, the argument went,

fan loyalty and interest would diminish.

Reality, however, has debunked this concern. With the expansion of

free agency in baseball, basketball, and football over the past thirty years,

the player that spends his career with a single franchise is rare. But this

pattern of athletes switching teams has not diminished the popularity of the

sports. If anything, it has increased fan interest.

A. Home Town Hero vs. Fantasy Star

One lens through which to view the transition to the modern concep-

tion of sports is the transition from the home town hero to the fantasy star.

Fan interest no longer focuses purely on the home town team. And the mod-

of Fame, https://baseballhall.org/discover/museum/plaque-gallery [https://perma.cc/

FYG9-TVNT] (last visited July 4, 2022).

Cal Ripken perhaps best embodies this idea in having set the record for most

consecutive games played at 2,632. See Sarah Langs et al., 8 Amazing Facts about

Ripken’s Streak, MLB (Sept. 6, 2020), https://www.mlb.com/news/amazing-facts-

about-cal-ripken-jr-s-games-played-streak [https://perma.cc/D9DH-J3V4].

Boston Red Sox fans in particular know this story, with the trade of Babe

Ruth to the Yankees, anecdotally creating the “Curse of the Bambino,” a supersti-

tion used to explain its eighty-six-year championship drought that finally ended in

2004. See, e.g., Anthony Castrovince, The Curse of the Bambino Explained, MLB (last

visited Dec. 25, 2021), https://www.mlb.com/news/curse-of-the-bambino [https://

perma.cc/R8PT-CPF5]; Dan Shaughnessy, The Curse of the Bambino (1990);

Bill Simmons, Now I Can Die in Peace (2005). This often does not end well for the

player (for example, Joe Montana and Michael Jordan), but Tom Brady seems to

have reversed this trend with a championship quarterbacking his new team. See, e.g.,

Scott Smith, Champs! Bucs Win Super Bowl LV, Buccaneers (Feb. 8, 2021, 9:20

AM), https://www.buccaneers.com/news/bucs-win-super-bowl-55-chiefs-31-9-final-

score-champions [https://perma.cc/H37A-6LEG].

See, e.g., Kansas City Royals v. Major League Baseball Players Ass’n, 532 F.2d

615 (8th Cir. 1976).

See sources supra note 4.

Id. Interestingly, many who oppose paying college athletes make similar argu-

ments about athlete compensation. See, e.g., Alston v. NCAA, 141 S. Ct. 2141

(2021).

See, e.g., In Depth: Topics A to Z: Sports, Gallup, https://news.gallup.com/poll/

4735/sports.aspx [https://perma.cc/PD7V-KKEJ] (last visited July 4, 2022).

208 Harvard Journal of Sports & Entertainment Law / Vol. 13

ern expansion of free agency leads to the expectation that players will not

spend their entire careers with the same team.

Player movement has not ruined professional sports. Instead, it has cre-

ated a season outside of the season during which there is keen fan interest

in which players a franchise will retain, trade, release, and obtain through

off-season transactions.

If anything, the move toward free agency has mag-

nified interest in professional sports because it has generated a steady stream

of news and commentary throughout much of the year, expanding far be-

yond the length of the season.

Fan interest has also expanded beyond individual teams as a result of

the growth of fantasy sports. Many fans have become far more interested in

individual players as members of their fantasy roster, or the roster against

which they are competing, as opposed to the degree to which a player can be

the iconic representative of their home town team.

In the context of fantasy sports, one cheers for or against individuals, as

opposed to teams.

This interest in the game cuts against the traditional

Some companies will replace fans’ purchased jerseys if players switch teams

within 90 days. See, e.g., Jersey Assurance, Fanatics, https://www.fanatics.com/jersey-

assurance/x-2132+z-932267037-343285709 [https://perma.cc/7ZMZ-CUVS] (last

visited July 4, 2022). Indeed, it is rare for even star players to spend their career

with the same team.

This interest mirrors the interest in college football recruiting and helps make

professional sports into full-year sports news topics, going far beyond the season.

Termed the “hot stove” season, the offseason can sometimes generate more

interest from fans than the season itself does, particularly for fans of perennially bad

teams looking for hope for a reversal of fortunes in the upcoming season.

College football is currently enjoying a similar off-season spike in fan interest

with the rise of the transfer portal, a free agency of sorts. The proliferation of sports

media has accompanied this trend, with ESPN growing to prominence over the past

four decades. Phil Rosenthal, How ESPN

—

Now 40 Years Old

—

Changed the Sports

World, from Your Growing Cable Bill and Round-the-Clock Programming to the Glut of

Bowl Games, Chi. Tribune (Sept. 8, 2019), https://www.chicagotribune.com/sports/

breaking/ct-cb-espn-40th-anniversary-changed-sports-20190906-ogxokpxed

jgwdekdlmgudb6myq-story.html [https://perma.cc/Z7PY-7L3B].

See, e.g., Ed Dixon, Study: Fantasy Sports Market to Grow 9.5% to US $22.3bn in

2021, SP (Sept. 1, 2021), https://www.sportspromedia.com/news/fantasy-sports-

global-market-value-2021-nfl-mlb-nba/ [https://perma.cc/MHP6-2UW4]; The Lu-

crative and Growing Fantasy Football Industry, Sports Mgmt. Degree Hub, https://

www.sportsmanagementdegreehub.com/fantasy-football-industry/ [https://

perma.cc/Y2SB-JWRR] (last visited July 4, 2022).

See, e.g., Chris Isidore, Fantasy Sports: What Is It, Anyway?, CNN Money (Oct.

6, 2015, 5:13 PM), https://money.cnn.com/2015/10/06/news/companies/fantasy-

sports-101/index.html [https://perma.cc/ZZ33-L9RG].

2022 / Player Movement 209

model of fans cheering for their home town team.

While, in some ways,

this could be a discouraging trend, the practical effect is that it drives fan

interest into every minute of every game irrespective of the score.

While a

conventional fan may turn their attention away from the game when it is

clear that the home town team has secured victory or is destined to lose, the

fantasy fan remains focused, as late game plays can affect the outcome of

their fantasy game.

The broadening of the fan base

—

from those interested in their home

teams and games that affect their home teams in the standings to a wide

range of fans interested in both teams and individual outcomes

—

has made

the home town hero less of an ideal of professional sports. And the reality of

free agency has made such home town stars who spend their entire careers

with one team largely extinct.

B. Parity vs. Dynasty

A second myth drives objections to super-teams

—

the need for parity

in professional sports. Former NFL Commissioner Pete Rozelle famously ar-

gued that “balance” among teams was the key to the success of the NFL,

and justified both free agency restrictions and the hard salary cap.

While it

See, e.g., Blake Snow, How Fantasy Sports Have Changed How We Cheer, KSL

(Aug. 31, 2011, 10:47 AM), https://www.ksl.com/article/17049422/how-fantasy-

sports-have-changed-how-we-cheer [https://perma.cc/NFG8-Y6UZ].

Some have argued that fantasy sports have the dark side of dehumanizing play-

ers. See, e.g., Eric Allen Hall, The Dark Side of Fantasy Football, Wash. Post (Sept.

10, 2017, 6:00 AM), https://www.washingtonpost.com/news/made-by-history/wp/

2017/09/10/the-dark-side-of-fantasy-football/ [https://perma.cc/YY9V-Y35S]. This

is particularly true for daily fantasy sports, a gambling offshoot that allows fan

owners to assemble a new roster each day. See, e.g., Brent Schrotenboer, Leagues See

Real Benefits in Daily Fantasy Sports, USA Today (Jan. 1, 2015), https://www.usa

today.com/story/sports/2015/01/01/daily-fantasy-sports-gambling-fanduel-draftk-

ings-nba-nfl-mlb-nhl/21165279/ [https://perma.cc/PKR9-67ET].

In garbage time, the part of the game after the result has been decided but

there is still a part of the game left to play, fantasy sports participants have an

incentive to watch in a way that traditional fans do not. See Scott Spratt, Defining

“Garbage Time” for Fantasy Production, Pro Football Focus (Aug. 23, 2017),

https://www.pff.com/news/fantasy-football-defining-garbage-time-for-fantasy-

production.

Pete Rozelle, Is It ‘Parity’? ‘Mediocrity’? Pete Rozelle Says No, N.Y. Times (Jan.

3, 1982), https://www.nytimes.com/1982/01/03/sports/is-it-parity-mediocrity-pete-

rozelle-says-no.html [https://perma.cc/99UB-55ZC]. See also Anthony Crupi, NFL’s

Overtime Spree Underscores Parity’s Impact on Television Ratings, Yahoo! (Oct. 19,

2021), https://www.yahoo.com/now/nfl-overtime-spree-underscores-parity-21481

3408.html [https://perma.cc/U7ZQ-WKPG].

210 Harvard Journal of Sports & Entertainment Law / Vol. 13

is true that the annual hope that this will be the year one’s team makes the

playoffs or wins the championship underlies much fan interest in sports, the

presence of a dynasty

—

a team that competes for championships over several

years

—

can likewise galvanize fan interest.

In some ways, the presence of a dynasty may attract even more fan

interest than parity would. The dynasty raises the question of how long a

team can stay on top

—

how many championships can it win before another

team dethrones it? This phenomenon draws the interest of both bandwagon

fans

—

those who join on because it is fun to cheer for a winner

—

and those

who relish cheering against the dominant team.

Rather than a unique matchup appearing in the late playoff and cham-

pionship rounds of competition, repetition of the same teams playing each

year can be a recipe for fan interest.

Michael Jordan’s Chicago Bulls teams

provide an obvious example.

For a number of years, the Detroit Pistons

defeated the Bulls and ended their season in the playoffs.

Eventually, the

See, e.g., Tim Cato, NBA Finals Television Ratings Up from 2016 Even with Blow-

outs, SB Nation (June 5, 2017), https://www.sbnation.com/2017/6/5/15740976/

nba-finals-television-ratings-warriors-cavaliers [https://perma.cc/EQ4C-EJZ6]; see

also Jordan Finci, The Impact of Superteams and Parity on the NBA (Univ.

of Or., Senior Honors Thesis, Dec. 2017), available at https://scholar-

sbank.uoregon.edu/xmlui/bitstream/handle/1794/24005/Final%20Thesis-Finci.pdf?

sequence=1&isAllowed=y [https://perma.cc/KX26-BFY7] (arguing that super-

teams do not have a negative effect on fan interest).

See, e.g., Tony Santorsa, Dallas Cowboys and the 16 Biggest Bandwagon Fanbases in

the NFL Today, Bleacher Report (June 9, 2011), https://bleacherreport.com/arti-

cles/728759-16-biggest-bandwagon-fanbases-in-the-nfl-today [https://perma.cc/

9TQL-FWXB].

See, e.g., Callum Ng, Dear Bandwagon Fan: You Are the Worst

—

Signed, Big Fan,

Olympic (Nov. 12, 2014), https://olympic.ca/2014/11/12/dear-bandwagon-fan-you-

are-the-worst-signed-big-fan/ [https://perma.cc/59KH-N6JE]. The continued pop-

ularity of men’s professional tennis also underscores this point; three dominant play-

ers

—

Roger Federer, Rafael Nadal, and Novak Djokovic

—

have won the vast

majority of major titles over the past two decades, a fact that has increased fan

interest, not diminished it. See Tumaini Carayol, How Will Tennis Survive Without Its

Superstars?, The Ringer (Sept. 5, 2019, 8:26 AM), https://www.theringer.com/

2019/9/5/20850223/tennis-superstars-roger-federer-rafael-nadal-novak-djokovic-

serena-williams [https://perma.cc/6SUL-R4CA].

Giancarlo Ferrari-King, 10 Things That Happen After a Team Wins a Champion-

ship, Bleacher Report (Nov. 8, 2015), https://bleacherreport.com/articles/

2585616-10-things-that-happen-after-a-team-wins-a-championship [https://

perma.cc/XG8W-G3ZR].

See generally Netflix, The Last Dance (2020).

The Pistons knocked the Bulls out of the playoffs in 1988, 1989, and 1990.

See NBA & ABA Playoff Series History, Basketball-Reference, https://

2022 / Player Movement 211

Bulls gained a measure of revenge and defeated the Pistons in 1991 before

winning the championship.

The Bulls made two separate runs to three

championships, with six in eight years, and it did not diminish interest in

the NBA.

To the contrary, their dynasty drew increased fan interest from

both those celebrating their wins and those hoping to see another team

knock them off.

The same point can be made by examining fan response to the Patriots

dynasty in which Tom Brady and Bill Belichick won six Super Bowls over a

seventeen-year period.

The NFL’s popularity has not diminished over that

period; to the contrary, it has significantly increased.

To the extent that player movement generates dynasties, this is a posi-

tive development, not a negative one, at least with respect to the economic

health of the sport. Dynasties generate fan interest from everyone, not just

fans of the team and fans of its rivals.

C. Socialist Paternalism vs. Capitalist Free Markets

Paternalistic arguments against player movement and expansion of free

agency also advance a corporate, anti-competitive approach to the market for

www.basketball-reference.com/playoffs/series.html (last visited July 4, 2022). The

Pistons coined their defense against Michael Jordan the “Jordan Rules.” See, e.g.,

Drew Sharp, The Best of the Pistons-Bulls Rivalry, Detroit Free Press, Dec. 25,

2007.

See NBA & ABA Playoff Series History, supra note 45.

See id. See generally The Last Dance, supra note 44.

See, e.g., Scott D. Pierce, Jazz-Bulls Are Still on Top of NBA Finals TV Ratings,

Deseret News (July 6, 2007), https://www.deseret.com/2007/7/6/20028317/scott-

d-pierce-jazz-bulls-are-still-on-top-of-nba-finals-tv-ratings [https://perma.cc/8YB2-

6ZHL]; Kyle Dalton, 1998 NBA Finals Game 6 Is the Most-Watched Game in NBA

History, Sportscasting (May 20, 2020), https://www.sportscasting.com/1998-nba-

finals-game-6-is-the-most-watched-game-in-nba-history/ [https://perma.cc/V5YM-

JFGQ].

See NFL History - Super Bowl Winners, ESPN http://www.espn.com/nfl/

superbowl/history/winners [https://perma.cc/3L2P-Z6WG] (last visited July 4,

2022).

See, e.g., Chad Finn, In the World of TV Ratings, the NFL in a League of Its Own,

Boston (Oct. 23, 2021), https://www.boston.com/sports/nfl/2021/10/23/nfl-tv-rat-

ings-2021-season-chad-finn-sports-media-column/ [https://perma.cc/B4PU-ET42].

The Patriots are also apparently popular in China. Aimee Lewis, How New England

Patriots Had a ‘Monumental’ Year in China, CNN (Apr. 16, 2019, 7:13 AM), https://

www.cnn.com/2019/04/02/sport/new-england-patriots-china-social-media-spt-intl/

index.html [https://perma.cc/8DVD-WPAK].

212 Harvard Journal of Sports & Entertainment Law / Vol. 13

professional athletes.

Salary caps and other forms of limiting free market

competition are more apt to mirror a socialist approach to professional sports

as opposed to a capitalistic one.

Billionaire owners fight hard against free markets for professional ath-

lete services. The draft, the salary cap, and other player movement restric-

tions all help owners to achieve at least some of this aim.

The entry into the league begins with a draft, with the worst teams

getting the best players.

To impose a similar approach in other industries

would be laughable. Imagine the top law students in a law school class

being required to work for the least successful law firms after being drafted

by them. This might promote parity among law firms and balance the rela-

tive strength of firms, especially if continued for a number of years, but it is

an approach contrary to a capitalistic ethic of rewarding the highest

achievers.

This draft approach, despite the millions of dollars that accompany it,

contradicts capitalism. In all three major sports, there is a rookie cap or draft

limit, such that the amount of money one receives is limited by where one is

drafted. An open market would produce wildly different results.

The salary cap likewise undermines capitalist values in the name of fair

competition. This plays out in different ways across the three major sports.

MLB does not have a salary cap, but imposes a luxury tax on teams that

exceed a certain level of total compensation for their payroll in a given

year.

This results in economic redistribution from the wealthy teams to the

less wealthy teams.

Baseball has perhaps the most capitalistic model, with

teams otherwise not required to share revenue as they are in the NFL.

See generally Jonathan B. Goldberg, Player Mobility in Professional Sports: From

the Reserve System to Free Agency, 15 Sports L.J. 21 (2008).

It is worth noting that all of these devices violate antitrust law, but the owners

are able to use the shield of the non-statutory labor exemption to avoid liability. See,

e.g., Clarett v. NFL, 369 F. 3d 124 (2d Cir. 2004).

See generally supra notes 8, 9, and 10.

College sports has an open market, but imposes its own caps on compensa-

tion

—

tuition, room, board, books, cost of attendance, and other education-related

costs. See NCAA v. Alston, 141 S. Ct. 2141 (2021).

See generally MLB Collective Bargaining Agreement, supra note 2.

Id. The luxury tax in 2021 applied to teams with payrolls above $210 million,

with the tax increasing from 20% to 32% at payrolls $230 million-to-$250 mil-

lion, and to 62.5% for payrolls above $250 million. See 2021 Luxury Tax Payrolls,

WTOP News (Mar. 13, 2022, 8:04 PM), https://wtop.com/sports/2022/03/2021-lux-

ury-tax-payrolls/ [https://perma.cc/5YUU-8A6W].

See generally MLB Collective Bargaining Agreement, supra note 2.

2022 / Player Movement 213

The NFL has a hard salary cap, which means that teams cannot have

total salaries in excess of the cap.

The absence of guaranteed contracts

makes the cap easy to adhere to in the sense that teams can always cut

players as needed.

The answer for player agents and teams has been to

negotiate contracts with guaranteed signing bonuses paid up front, and per

league rules, carry out the bonus equally over the years of the contract.

This leads to many restructuring efforts and extensions of contracts to delay

the inevitable salary cap hit for as long as possible. This also means that

teams can accumulate quite a bit of “dead” cap money for players who are

no longer on the team, but whose prior bonuses still count against the cap.

Interestingly, the NFL itself has a socialist model in that it engages in al-

most complete revenue sharing among its teams.

The NBA has a soft cap and a luxury tax.

The soft cap limits how

much teams can pay free agents, and defines maximum contracts for teams.

The Bird Rule, which allows teams to pay more than the market for their

own free agents, makes the cap vary slightly from team to team, as the

excess money paid in order to retain one’s own player does not all count

against the cap.

The luxury tax, like in MLB, taxes teams that exceed a

total compensation level.

The tax also has a balloon provision, imposed

against teams that exceed the luxury tax for multiple years.

See generally NFL Collective Bargaining Agreement, supra note 2.

See generally id.

See, e.g., Andrew Brandt, Business of Football: Understanding the Salary Cap, Dead

Money, and Impact of 2021 Decrease, Sports Illustrated (Mar. 2, 2021), https://

www.si.com/nfl/2021/03/02/business-of-football-understanding-the-salary-cap-

dead-money [https://perma.cc/K94G-24S3].

The recent trade between the Rams and the Lions of their quarterbacks

—

Jared

Goff for Matthew Stafford

—

was particularly noteworthy in this regard, with Goff

costing the Rams a $22.2 million dead money cap hit and Stafford costing the Lions

a $17.8 million dead money cap hit in 2021. Tyler J. Davis, Here’s the Detroit Lions’

Possible Escape Hatch if the Jared Goff Trade Doesn’t Work Out, Detroit Free Press

(Jan. 31, 2021, 3:47 AM), https://www.freep.com/story/sports/nfl/lions/2021/01/

30/detroit-lions-jared-goff-contract-matthew-stafford-trade/4329399001/ [https://

perma.cc/V6LB-593B].

See generally NBA Collective Bargaining Agreement, supra note 2.

See generally id.

See generally id.; see supra note 16.

See generally NBA Collective Bargaining Agreement, supra note 2. The

NBA luxury tax threshold for the 2021-22 season was $136,606,000. Luke Adams,

NBA Salary Cap for 2022-23 Projected to Be $121 Million, YardBarker (Feb. 4,

2022), https://www.yardbarker.com/nba/articles/nba_salary_cap_for_2022_23_pro-

jected_to_be_121_million/s1_14822_37170275 [https://perma.cc/9ZAE-YNGY].

Repeat luxury tax offenders pay an increased penalty. See generally NBA Col-

lective Bargaining Agreement, supra note 2; Yossi Gozlan, 2021-22 Season Will

214 Harvard Journal of Sports & Entertainment Law / Vol. 13

Together, the draft and the salary cap theoretically promote parity, but

it is not clear that they enhance the overall financial growth of the leagues.

To be sure, they restrict the income of the players at the collectively bar-

gained rate. In the three leagues, this value hovers around fifty percent of

the revenue received annually.

What is not clear is whether the leagues could make even more money

by creating a freer market for athletes. The limit would be what the fans and

the television networks were willing to pay, not an arbitrary limit imposed

by billionaire owners.

With no salary cap and a completely free market,

some team owners might be willing to spend much more than they cur-

rently do on players.

Public opinion can also support limits on athlete compensation. The

same people who are willing to spend hundreds of dollars to attend sporting

events or watch thousands of hours of commercials during live telecasts

often do not favor the idea of athletes making millions of dollars.

The idea

of receiving compensation for playing a game offends some who argue that

playing a sport is not working for a living.

Changing the narrative here is important, as the time commitment of

being a professional athlete far exceeds many other professions. The constant

pressure to perform at an elite level with thousands of people watching in

person comes with an unusual level of pressure. The culture of the sports

Have the Largest Luxury Tax Payments Ever, Hoops Hype (Aug. 27, 2021), https://

hoopshype.com/lists/nba-2021-22-season-largest-luxury-tax-payments-ever/ [https:/

/perma.cc/X857-D3G2]; Luke Adams, Hoops Rumors Glossary: Luxury Tax Penalties,

Hoops Rumors (Mar. 20, 2020), https://www.hoopsrumors.com/2020/03/hoops-ru-

mors-glossary-luxury-tax-penalties-2.html [https://perma.cc/V2LL-YQGU].

See generally supra notes 8, 9, and 10.

To be fair, such limits are the product of collective bargaining, but those

arrangements allow for anti-competitive rules, drafts, and caps. See Dodgers Hit with

Giant Luxury Tax Bill for Leading MLB Payroll in 2021, Sports Illustrated,

https://www.si.com/mlb/dodgers/news/dodgers-hit-with-giant-luxury-tax-bill-for-

leading-mlb-in-payroll-in-2021 [https://perma.cc/Q33M-ELNC].

The Golden State Warriors are a prime example of this, being willing to spend

more in luxury tax than their payroll, perhaps for several more years. See Gozlan,

supra note 66.

See, e.g., Mike Florio, Why Don’t Fans Support Players Who Want More?, NBC

Sports: ProFootballTalk (June 17, 2018, 12:47 PM), https://profoot-

balltalk.nbcsports.com/2018/06/17/why-dont-fans-support-players-who-want-more/

[https://perma.cc/UCP9-7HV9].

This argument has also been made about other kinds of entertainers. See, e.g.,

Dire Straits, Money for Nothing, YouTube (released in 1985, uploaded Feb. 23,

2010), available at https://www.youtube.com/watch?v=WTP2RUD_cL0.

2022 / Player Movement 215

talk world adds to this stress, as every play can be put under a microscope,

replayed millions of times, and discussed over and over again.

Athletes, though, are the entertainers. Fans certainly do not attend

games to see owners. People do not watch games to see corporate executives.

As with other performers in the marketplace, such as authors, musicians,

and artists, the market should define how much athletes are paid, not pater-

nalistic limits imposed by owners. In sum, changing the narrative has the

potential to reverse the power of billionaires and restore the power over pro-

fessional sports to the people: the fans.

II. The Rise of the Super-Team

Historically, general managers and team executives have built pro

sports dynasties through shrewd drafting, trades, and free agent acquisitions.

The more recent trend, however, is athletes exerting influence, taking con-

trol, and ultimately operating in the role of the general manager without the

formal title.

A. The Tool of Free Agency

1. LeBron James

What was different about the LeBron James decision to leave the

Cleveland Cavaliers and join the Miami Heat as a free agent was the manner

in which he made that decision.

James not only interviewed his potential

suitors but also contacted a fellow free agent, Chris Bosh, and a potential

future teammate, Dwyane Wade, to plan for a team together.

While

To be sure, there have been historical examples of super-teams

—

the Boston

Celtics of the 1960s; the New York Yankees of the 1930s, 40s, and 50s; and the

New England Patriots of the modern era. Chris Mueller, The Greatest Sports Dynasties

of All Time, YardBarker (Oct. 23, 2021), https://www.yardbarker.com/general_

sports/articles/the_greatest_sports_dynasties_of_all_time/s1__26756621 [https://

perma.cc/BV6Z-YYBS]. But these teams have been built by general managers, not

athletes.

ESPN, [FULL] LeBron James’ ‘The Decision’ (7/8/2010) — ESPN Archives, You-

Tube (uploaded June 11, 2018, aired July 8, 2010), available at https://

www.youtube.com/watch?v=afpgnb_9bA4; Anthony Chiang, ESPN Reveals New

Details from LeBron James’ “The Decision”, Miami Herald (June 24, 2020).

Brian Windhorst, Three Days in July: The High-Stakes Maneuvers that Assembled

LeBron, Wade, and Bosh, ESPN (June 29, 2020), https://www.espn.com/nba/story/_/

id/29375065/the-decision-high-stakes-maneuvers-lebron-james-dwyane-wade-chris-

bosh [https://perma.cc/PLZ6-2CB8]; Bryan Curtis, “The Decision” Reloaded: How

216 Harvard Journal of Sports & Entertainment Law / Vol. 13

Miami Heat general manager Pat Riley may have played a role behind the

scenes in enabling the cap space to allow Miami to sign both James and

Bosh, the players were the driving force in putting together their team.

James and Wade further recruited other veteran players as well, several of

whom were willing to receive reduced compensation in exchange for the

chance to be on a team with such a high possibility of winning the NBA

championship.

The experiment was a success. The Heat made the NBA Finals for four

consecutive years, winning the championship in the second and third

years.

2. Kevin Durant

Several years later, Kevin Durant chose to create a super-team by join-

ing the Golden State Warriors as a free agent. The Warriors already had, by

any estimation, an outstanding team, with a core of future NBA Hall of

Famers in Stephen Curry, Klay Thompson, and Draymond Green. They had

won the NBA championship in 2015,

and had lost 4-3 in the finals in

2016.

The 2016 team also set the all-time NBA record for victories in the

regular season with 73, compiling a record of 73-9.

LeBron James’s Free-Agency Announcement Changed the NBA, The Ringer (June 2,

2018), https://www.theringer.com/nba/2018/7/2/17524572/lebron-james-the-deci-

sion-miami-heat-2010 [https://perma.cc/L9FS-86T7].

See Windhorst, supra note 74. Indeed, Wade also pitched the three players as a

package to the Chicago Bulls. Id.

Adam Davis, Miami Heat: 10 Veterans Who May Sign for the League Minimum for

a Chance at a Title, Bleacher Report (July 16, 2011), https://bleacherreport.com/

articles/769672-miami-heat-10-veterans-that-may-sign-for-league-minimum-for-

chance-at-a-title [https://perma.cc/4DH6-FHDL]; 2011/12 Miami Heat Salaries,

Hoops Hype, https://hoopshype.com/salaries/miami_heat/2011-2012/ [https://

perma.cc/QG53-PCFV] (last visited July 5, 2022).

See NBA & ABA Playoff Series History, supra note 45; see Windhorst, supra note

74.

See id.

See id. The Warriors arguably would have won without the suspension of

Draymond Green for multiple games during the finals, but their loss was equally

attributable to the heroics of LeBron James and Kyrie Irving. Top Moments: Cavaliers

End Cleveland’s Long Championship Drought NBA (Sept. 14, 2021), https://

www.nba.com/news/history-top-moments-cavaliers-erase-3-1-deficit-2016-finals

[https://perma.cc/FGW7-YLXT].

See 2015-16 Golden State Warriors Roster and Stats, Basketball-Reference,

https://www.basketball-reference.com/teams/GSW/2016.html [https://perma.cc/

T5KW-KMHK] (last visited Apr. 17, 2022).

2022 / Player Movement 217

Adding Durant, though, took the Warriors to another level. They won

the NBA championship in 2017 and 2018.

And they likely would have

won a third consecutive title if both Durant and Thompson had not suffered

serious injuries in the NBA Finals the next year.

3. Tom Brady

Tom Brady is perhaps the most recent example of creating a super-

team through free agency. After winning six Super Bowls with the New

England Patriots,

Brady left New England as a free agent and signed with

the Tampa Bay Buccaneers.

The Buccaneers already had a strong defense,

but needed an offense that was more consistent and committed fewer

turnovers.

Brady also recruited several players to join him on the Buccaneers

team, such as Antonio Brown and Leonard Fournette, improving the team

significantly.

Notably, he convinced former New England tight end Rob

Gronkowski to come out of retirement to play for the Buccaneers.

See NBA & ABA Playoff Series History, supra note 45.

They lost 4-2 in the NBA Finals to the Toronto Raptors. See NBA & ABA

Playoff Series History, supra note 45. Durant tore his Achilles tendon and Thompson

tore his anterior cruciate ligament. See 2019 NBA Finals, Game 6: The Wrap, NBA

(June 14, 2019, 3:18 AM), https://www.nba.com/2019-finals-game6-the-wrap

[https://perma.cc/M9GB-Q3GB].

See Super Bowl History, Pro Football-Reference, https://www.pro-football-

reference.com/super-bowl/ [https://perma.cc/KL9M-TC4F] (last visited Apr. 17,

2022).

See, e.g., Tom Fornelli, Tom Brady Signs with Buccaneers: Why Tampa Bay Isn’t

Likely to Get Its Money’s Worth from the Future Hall of Famer, CBS Sports (Mar. 20,

2020), https://www.cbssports.com/nfl/news/tom-brady-signs-with-buccaneers-why-

tampa-bay-isnt-likely-to-get-its-moneys-worth-from-future-hall-of-famer/ [https://

perma.cc/9QK4-FQ3L].

Indeed, the quarterback that Brady replaced, Jameis Winston, had thrown a

league-leading 30 interceptions the season before Brady signed with the Buccaneers.

See Jameis Winston, Pro Football-Reference, https://www.pro-football-refer

ence.com/players/W/WinsJa00.htm [https://perma.cc/M37A-W637] (last visited

Apr. 17, 2022).

Michael David Smith, Bruce Arians: Veteran Players Want to Play with Tom

Brady, NBC Sports (Sept. 30, 2021), https://profootballtalk.nbcsports.com/2021/

09/30/bruce-arians-veteran-players-want-to-play-with-tom-brady/ [https://

perma.cc/8FPX-XAM8].

Isaiah Houde, Rob Gronkowski Explains How Joining Tampa Bay Matched Hopes

He Had, PatriotsWire (Jan. 22, 2021, 7:30 AM), https://patriotswire.usato-

day.com/2021/01/22/rob-gronkowski-explains-how-joining-tampa-bay-matched-

his-expecations/ [https://perma.cc/8N2A-DJ3L]. Previously maligned but uber-tal-

218 Harvard Journal of Sports & Entertainment Law / Vol. 13

Gronkowski played a key role in the Buccaneers’ Super Bowl victory over

the Kansas City Chiefs in Brady’s first season with Tampa Bay.

What makes Brady’s signing with Tampa Bay a sign of a different kind

of free agency is his role in recruiting others to join him. His decision in

choosing Tampa Bay reflects a calculus that involved his ability to assemble

key pieces of his new team, as opposed to leaving that role up to the team

and hoping for the best with respect to his supporting cast.

B. Forcing Trades

It is one thing to leave for another team and co-ordinate with other free

agents to build a strong team. It is another thing altogether to convince a

team to trade you to another team when the trade is likely to result in the

formation of a super-team.

In the history of professional sports, teams have traded their superstar

athletes, sometimes for money

but usually for numerous draft picks. Con-

versely, teams that have perceived players as game-changing superstars have

packaged extensive assets to gain the rights to such players.

Usually, though, players demanding a trade have had difficulty con-

vincing management to act upon their wishes, particularly when the player

ented players Leonard Fournette and Antonio Brown also signed with the Buc-

caneers thanks to Brady’s recruiting. Vinnie Iyer, How Buccaneers Built a Super Bowl

Roster for Tom Brady: Patience in Draft, Punch in Free Agency Pay off, Sporting News,

https://www.sportingnews.com/us/nfl/news/buccaneers-super-bowl-roster-tom-

brady/72q5519y86ey1kxl287nter57 [https://perma.cc/56RT-KDEX] (last visited

Apr. 17, 2022).

See Super Bowl History, supra note 83; Every Rob Gronkowski Catch from 2-TD

Game, Super Bowl LV, NFL, https://www.nfl.com/videos/every-rob-gronkowski-

catch-from-2-td-game-super-bowl-lv [https://perma.cc/2T3U-JTKN] (last visited

Apr. 17, 2022).

See supra note 25; see also Finley v. Kuhn, 569 F.2d 527 (7th Cir. 1978) (up-

holding MLB Commissioner’s decision to block the sale of Oakland Athletics play-

ers to the Boston Red Sox and New York Yankees).

The two egregious examples are the Ricky Williams trade by the New Orleans

Saints and the Herschel Walker trade by the Minnesota Vikings. See John Keim,

For Redskins, 1999 Ricky Williams Deal at NFL Draft Brought Too Few Wins, ESPN

(Apr. 21, 2020), https://www.espn.com/blog/nflnation/post/_/id/307342/for-red

skins-1999-ricky-williams-deal-brought-hall-of-famer-too-few-wins [https://

perma.cc/H42N-SW29]; Nick Allen, Herschel Walker to the Minnesota Vikings: The

Best Trade in NFL History, Bleacher Report (Mar. 16, 2009), https://bleacherre-

port.com/articles/140116-the-best-trade-in-nfl-history [https://perma.cc/NQH5-

WHEG].

2022 / Player Movement 219

is a franchise-caliber star, i.e., the most important player on the team.

It is

even less likely that the general manager will accommodate a player’s desires

when the likely result is the creation of a championship-caliber super-team

for some other franchise.

And yet, two NBA players in the past two years

—

Anthony Davis and

James Harden

—

have accomplished this feat. Taking notice, three similar

NFL players

—

Deshaun Watson, Russell Wilson, and Aaron Rodgers

—

at-

tempted a similar move during the summer of 2021. None accomplished

results immediately, but Watson and Wilson were traded in the summer of

2022.

1. Anthony Davis

Anthony Davis was the center for the New Orleans Pelicans.

Davis is

an accomplished player, having led the Kentucky Wildcats to a national

championship.

Davis is seven feet tall and plays the game with the speed

and agility of a guard, while also possessing the ability to shoot three-point

shots.

His size, speed, and shooting ability make him quite difficult to

defend.

When it has worked, it has been during the NFL draft, before the player has

ever joined the team. John Elway and Eli Manning both accomplished this kind of

move. See Jim Saccomano, Sacco Sez: Former Broncos Exec. John Beake Recalls the 1983

Draft and the Trade for John Elway, Broncos (Apr. 24, 2021, 10:00 AM), https://

www.denverbroncos.com/news/sacco-sez-former-broncos-exec-john-beake-recalls-

the-1983-draft-and-the-trade-fo [https://perma.cc/RJ78-TKHT]; John Fennelly,

Giants Legend Eli Manning Finally Opens Up About 2004 Draft Day Trade, Giants

Wire (Oct. 7, 2021, 10:55 AM), https://giantswire.usatoday.com/2021/10/07/new-

york-giants-eli-manning-finally-opens-up-2004-draft-day-trade-los-angeles-charg-

ers/ [https://perma.cc/MD8T-EPT8].

See Anthony Davis, Basketball-Reference, https://www.basketball-refer-

ence.com/players/d/davisan02.html [https://perma.cc/DXT5-9AU2] (last visited

Apr. 17, 2022).

Kentucky Holds Off Kansas to Win Eighth National Title, ESPN (Apr. 2, 2012),

https://www.espn.com/mens-college-basketball/recap?gameId=320930096 [https:/

/perma.cc/ZPA4-Q9YZ].

See, e.g., Rob Mahoney, Anthony Davis Is Coming for the Crown, The Ringer

(Dec. 22, 2020), https://www.theringer.com/2020/12/22/22194796/anthony-davis-

is-coming-for-the-crown; John Tjarks, The Only Player Who Can Stop Anthony Davis

is Himself, The Ringer (Sept. 22, 2020), https://www.theringer.com/2020/9/22/

21450572/anthony-davis-lakers-nuggets [https://perma.cc/Z45Y-W2WF]; Justin

Verrier, Anthony Davis Wasn’t Meant to be an Alpha

—

Just a Superstar, The Ringer

(Oct. 6, 2020), https://www.theringer.com/2020/10/6/21502938/anthony-davis-

lakers-lebron-james [https://perma.cc/T4PU-FU3U].

See id.

220 Harvard Journal of Sports & Entertainment Law / Vol. 13

He played for several years on the Pelicans, a perennial loser mostly

because Davis’ supporting cast was weak and Davis was an oft-injured

player.

Davis wanted to play for the Los Angeles Lakers alongside LeBron

James, perennially one of the top five players in the NBA.

Davis did not,

however, want to wait two years until he became a free agent.

This was

particularly true because of LeBron’s advancing age and the theory that he

only had a few years left before his skills inevitably began declining.

To put pressure on the Pelicans, Davis sat out a number of games to-

wards the end of the 2018 season.

100

At the urging of Davis’ agent, the

Pelicans finally caved to Davis’ demand and traded him to the Lakers in

exchange for a bounty of draft picks and players.

101

While the Pelicans ar-

guably received adequate compensation for Davis, it is unlikely that they

would have traded him without him expressing his unhappiness and decid-

ing not to play.

102

In the end, Davis’ plan worked. The Lakers won the 2020 NBA cham-

pionship, played in the infamous bubble created at the Disney resort in

Orlando in response to the COVID-19 pandemic.

103

The Lakers did not

repeat, however, largely because of injuries to LeBron James late in the 2021

season.

104

Had Davis waited for free agency, it is possible he never would

have won a championship with LeBron James.

See, e.g., William Guillory, Injuries to Anthony Davis, Inconsistency Haunt Pelicans

Once Again in 114-105 Loss to Thunder, NOLA (Jan. 26, 2019), https://

www.nola.com/sports/pelicans/article_bb9153bd-4f72-557d-96ab-

f18494598912.html [https://perma.cc/B9BM-3W7P].

Jordan Greer, Anthony Davis’ Trade Request Was an Absolute Mess

—

and It Gave

the Lakers Star Everything He Wanted, Sporting News (Oct. 11, 2020), https://

www.sportingnews.com/us/nba/news/anthony-davis-lakers-trade-request/

f4ldgseobwvg1a6zzj7ythw0l [https://perma.cc/TQS8-KVZB].

See id.

100

See id.

101

See S.L. Price, The King Maker: Why Rich Paul Will Own the NBA Summer,

Sports Illustrated (June 12, 2019), https://www.si.com/nba/2019/06/12/rich-

paul-klutch-sports-group-lakers-pelicans-lebron-james-anthony-davis [https://

perma.cc/2QVM-XCM2].

102

See Greer, supra note 97; Aaron Kellerstrauss, The New Orleans Pelicans Won the

Anthony Davis Trade, Fansided, https://pelicandebrief.com/2020/02/25/new-orle-

ans-pelicans-anthony-davis-trade/ [https://perma.cc/DY3Z-JU8S].

103

See NBA & ABA Playoff Series History, supra note 45.

104

See Los Angeles Lakers, Basketball-Reference, https://www.basketball-ref-

erence.com/teams/ [https://perma.cc/F4CH-JJVX] (last visited July 5, 2022).

2022 / Player Movement 221

2. James Harden

James Harden was a star player for the Houston Rockets. During his

time there, Harden perennially led the Rockets deep into the playoffs. His

unique style of monopolizing the ball and choosing to either shoot a three-

pointer, drive to the basket for a layup or a foul, or kick out the ball to his

teammates who would shoot three-pointers made the Rockets a high-scoring

team that won many games. To help Harden win a championship, manage-

ment brought in different star players, Chris Paul and then Russell West-

brook, but neither were able to help win the title.

105

The general manager, Daryl Morey, left in the summer of 2019, as did

the coach, Mike D’Antoni.

106

Seeing the roster was moving toward a re-

building period, Harden decided to sit out training camp in the fall of

2019.

107

When he did decide to play, he made it clear that he was waiting

for a trade, alienating his teammates and creating dissension on the team.

108

The pressure that Harden put on the team convinced the new general man-

ager to trade him to his team of choice, the Brooklyn Nets, early in the

2019 season.

109

While many perceived Harden’s behavior as ugly and unpro-

fessional, this behavior was arguably necessary to achieve Harden’s desired

goal

—

a trade to the Nets.

110

The Rockets did not receive the largesse of

picks and players for Harden that the Pelicans did for Davis, but nonetheless

received a decent return for Harden.

111

Harden’s plan to win a championship did not work. Part of the prob-

lem was injuries to one of the Nets’ three superstars, Kyrie Irving, who

105

See Houston Rockets, Basketball-Reference, https://www.basketball-refer-

ence.com/teams/HOU/ [https://perma.cc/6H8C-4WQS] (last visited July 5, 2022).

106

Brian T. Smith, Daryl Morey’s Departure Now Makes Sense, Houston Chroni-

cle (Oct. 28, 2020), https://www.houstonchronicle.com/texas-sports-nation/brian-t-

smith/article/Smith-Morey-departure-Rockets-now-makes-sense-15681900.php

[https://perma.cc/XV3Z-7Y8H]; Jasmyn Wimbish, Mike D’Antoni Stepped Down As

Rockets Coach During Flight Back to Houston from the Bubble, Per Report, CBS Sports

(Sept. 15, 2020), https://www.cbssports.com/nba/news/mike-dantoni-stepped-

down-as-rockets-coach-during-flight-back-to-houston-from-nba-bubble-per-report/

[https://perma.cc/SW6J-K945].

107

Tim McMahon, Inside James Harden and the Houston Rockets’ Breaking Point,

ESPN (Jan. 13, 2021), https://www.espn.com/nba/story/_/id/30528130/inside-

james-harden-houston-rockets-breaking-point [https://perma.cc/RKQ7-R2J3].

108

See id.

109

See id.

110

See id.

111

See id.

222 Harvard Journal of Sports & Entertainment Law / Vol. 13

missed significant parts of the 2021 playoffs.

112

Even so, the Nets narrowly

lost to the eventual 2021 NBA champions, the Milwaukee Bucks, in Game

7 of the conference semifinals.

113

If the Nets could have survived the Bucks,

an NBA championship seems like it would have been possible. The 2021-22

season could have provided another opportunity for Harden and the Nets,

but Harden forced a subsequent trade to the Philadelphia 76ers, partially in

response to Irving’s inability to play home games because he was unwilling

to get the COVID-19 vaccine.

114

3. The NFL Movement (Watson, Wilson, Rodgers)

Unlike Harden and Davis, the NFL stars that attempted to force a

trade in the summer of 2021 were initially unsuccessful. Two of the three

were able to get traded in the offseason of 2022, with the third deciding he

did not want to be traded after all.

It is not obvious why the NFL players struggled where the NBA play-

ers succeeded. Part of the difference may relate to the impact a single player

can have on a basketball game as compared to a football game.

115

Part of the

difference may also relate to the more complicated nature of the NFL game,

at least for the quarterback position.

Deshaun Watson was a quarterback with the Houston Texans.

116

was a star for Clemson University, leading them to a national championship

112

Irving faced a different set of challenges last season, being available only for

road games as a result of his anti-vaccine stance. See Jeff Ziligitt, Unvaccinated Kyrie

Irving Makes Nets Season Debut on Road Against Pacers, USA Today (Jan. 5, 2022),

https://www.usatoday.com/story/sports/nba/nets/2022/01/05/nets-kyrie-irving-un-

vaccinated-covid-makes-season-debut/9108752002/ [https://perma.cc/NLE5-

EDNM].

113

Indeed, Kevin Durant’s toe was on the three-point line, turning what would

have been a game-winning last second three-point shot into a game-tying two-point

shot. The Nets then lost in overtime. See Jacob Camenker, Nets’ Kevin Durant Blames

His “Big-Ass Foot” for Game 7 Loss to Bucks, Sporting News (June 20, 2021),

https://www.sportingnews.com/us/nba/news/kevin-durant-big-ass-foot-nets-bucks/

1au9or4z0d1kgz1vvpcmrcirm [https://perma.cc/5NRT-FDEP].

114

Nets Trade James Harden to Sixers for Ben Simmons, NBA (Feb. 10, 2022), https:/

/www.nba.com/news/nets-sixers-james-harden-ben-simmons-trade [https://

perma.cc/KH2J-HAJY].

115

With only five players on the court, the value of a single athlete can presuma-

bly be more than being one out of eleven. See infra Part III.C.

116

See Deshaun Watson, Pro Football-Reference, https://www.pro-football-

reference.com/players/W/WatsDe00.htm [https://perma.cc/9FX8-ML55] (last vis-

ited Apr. 17, 2022).

2022 / Player Movement 223

game win over Alabama.

117

His early NFL career has been successful as well

in leading a Texans offense that can be prolific at times.

118

The inability of

the Texans to succeed in the NFL playoffs, though, has contributed to Wat-

son being disenchanted, and ultimately asking for a trade in the 2021 off-

season.

119

Before his demands could gain traction, however, Watson began

to face a different set of challenges. Over twenty women accused Watson of

sexual assault.

120

As a result, teams that might have been interested in trad-

ing for Watson lost interest, at least for the summer of 2021.

121

Watson

subsequently sat out the 2021 season, with it remaining unclear what kind

of suspension the NFL might impose once it completes its investigation of

the allegations against Watson.

122

Late in the spring of 2022, two grand juries declined to proceed with

any of the sexual assault cases against Watson.

123

This changed the public

perception of Watson enough to regenerate interest in him. The Texans

ultimately traded him to the Cleveland Browns, who signed Watson to a

lucrative contract extension. Even without the sexual assault allegations, it is

unlikely that the Texans would have made such a deal in the summer of

2021. It was only after the combination of Watson being unwilling to par-

117

Deshaun Watson, Clemson Dethrone Alabama in Thrilling National Championship

Game, NBC Sports (Jan. 10, 2017), https://www.nbcsports.com/chicago/ncaa-talk/

deshaun-watson-clemson-dethrone-alabama-thrilling-national-championship

[https://perma.cc/8AWR-THUN].

118

Matt Weston, Pro Football Focus Has Deshaun Watson Ranked as a Top Five

Quarterback, SB Nation (July 31, 2021), https://www.battleredblog.com/2021/7/

13/22575451/pro-football-focus-has-deshaun-watson-ranked-as-a-top-five-

quarterback [https://perma.cc/MKL9-F8HF]; Was Deshaun Watson’s 2020 Season the

Best by a Quarterback in More than a Decade?, Fox Sports (Feb. 16, 2021), https://

www.foxsports.com/stories/nfl/houston-texans-quarterback-deshaun-watson-was-

the-nfls-best-quarterback-in-2020-pff-argues [https://perma.cc/X28P-6HHS].

119

Sarah Barshop, Deshaun Watson Has Asked Houston Texans to Trade Him, Sources

Say, ESPN (Jan. 28, 2021), https://www.espn.com/nfl/story/_/id/30794678/

deshaun-watson-asked-houston-texans-trade-sources-say [https://perma.cc/W4FX-

6AMS].

120

Reiss, supra note 20.

121

Kaelen Jones, What Would a Trade for Deshaun Watson Even Look Like?, The

Ringer (Jan. 18, 2021), https://www.theringer.com/nfl/2021/1/18/22232051/

deshaun-watson-trade-nfl-historical-comparisons [https://perma.cc/W4FX-6AMS].

122

Nora Princiotti, The NFL Passes on Taking a Stance on Deshaun Watson, The

Ringer (Oct. 27, 2021), https://www.theringer.com/nfl/2021/10/27/22749601/

deshaun-watson-nfl-trade-deadline-roger-goodell [https://perma.cc/ZJU7-LAYQ].

123

Brent Schrotenboer, Second Grand Jury in Texas Declines to Indict Browns QB

Deshaun Watson, USA Today (Apr. 1, 2022, 12:53 PM), https://www.usatoday.com/

story/sports/nfl/browns/2022/03/24/browns-quarterback-deshaun-watson-under-

scrutiny-another-grand-jury/7157721001/ [https://perma.cc/U4CD-J2GM].

224 Harvard Journal of Sports & Entertainment Law / Vol. 13

ticipate for a year and the ongoing criminal allegations that the Texans de-

cided to move on from Watson despite his youth and talent.

Russell Wilson was a Super Bowl-winning

124

quarterback for the Seat-

tle Seahawks and the face of the franchise.

125

Wilson began to complain,

though, in the summer of 2021, intimating that he wanted certain changes

to the Seahawks roster, or in the alternative, wanted to be traded.

126

Specifi-

cally, Wilson complained about the weakness of the offensive line and the

number of hits and sacks he took in the 2020 season.

127

Further complicat-

ing the issue was Wilson’s no trade clause, which gave him the power to

veto a trade.

128

Wilson listed a handful of teams for which he was willing to

play.

129

Despite Wilson’s requests, the Seahawks refused to trade him, and

he continued to be the starting quarterback for the Seahawks during the

2021 season.

130

The 2021 season did not go as hoped for the Seahawks, and the team

began to sour on him in the same way that he had soured on the team. First,

Wilson suffered a finger injury that caused him to miss half of the season.

Also, Wilson was not the same player that he had been either before or after

the injury. In particular, his play after the injury led the team to conclude

that his best days might be behind him. In addition, the team management

and coaching has long favored a run-heavy offense with occasional passing.

Wilson has long favored a more pass-heavy offense. In 2020, fans of Wil-

son’s approach fashioned the phrase “Let Russ Cook,” advocating a more

aggressive pass offense with deep passes to star receivers D.K. Metcalf and

124

See Super Bowl History, supra note 83.

125

See Russell Wilson Pro Football-Reference, https://www.pro-football-ref-

erence.com/players/W/WilsRu00.htm [https://perma.cc/D2CH-K7QT] (last visited

Apr. 17, 2022).

126

Gene Chamberlain, Russell Wilson Explanation Misses the Mark, Sports Illus-

trated (June 12, 2021), https://www.si.com/nfl/bears/news/russell-wilson-does-re-

visionist-history-on-bears-trade-attempt [https://perma.cc/FK4K-WVHU].

127

See id.; Brendan Schulze, What Russell Wilson’s 4 “Approved” Trade Destinations

Say about What He’d Want from a New Team, SB Nation (Mar. 2, 2021), https://

www.fieldgulls.com/2021/3/2/22308778/what-russell-wilson-four-approved-trade-

destinations-say-about-what-he-would-want-seattle-seahawks.

128

Brandon Gustafson, Seahawks’ Russell Wilson Addresses How No-Trade Clause

Relates to His Future, Seattle Sports 710 AM (Jan. 6, 2022, 3:32 PM), https://

sports.mynorthwest.com/1551972/seahawks-russell-wilson-no-trade-clause-future/

[https://perma.cc/E2BT-8LQQ].

129

Schulze, supra note 127. The teams were the Cowboys, the Saints, the Raid-

ers, and the Bears. Id.

130

Wilson did miss three games as a result of an injury to his throwing hand,

but then assumed his role as starting quarterback upon his return.

2022 / Player Movement 225

Tyler Lockett.

131

This approach was successful during the first part of the

2020 season, but started to unravel late in the season, convincing the

coaches that a more conservative, run-based offense would lead to more vic-

tories, especially against top teams.

The combination of the change in the team’s perception of Wilson and

of the growing divergence in philosophy led to the trade of Wilson to the

Denver Broncos in the spring of 2022.

132

Unlike the Davis and Harden

scenarios, it seems that the Seahawks traded Wilson not because they were

forced to, but because they wanted to in light of their perceptions of their

team’s best interests.

Aaron Rodgers, the quarterback for the Green Bay Packers, also de-

manded a trade during the 2021 off-season.

133

Rodgers has previously led

the Packers to a Super Bowl victory, and his success has continued in recent

years.

134

In 2020, he led the Packers to the NFC championship game for the

second year in a row, and was named the league’s most valuable player.

135

Rodgers’ concerns began with the Packers’ decision to draft Jordan

Love, a quarterback, in the first round of the 2020 draft, presumably to be

Rodgers eventual successor.

136

This decision perhaps sent a signal that Rod-

gers’ days with the Packers might be numbered, and his career approaching

its end.

137

Rodgers further cited the way in which he believed the organiza-

131

Billy Heyen, ‘Let Russ Cook’: Behind the Meme Defining Russell Wilson’s Early-

Season MVP Campaign

Sporting News (Oct. 11, 2020), https://

www.sportingnews.com/us/nfl/news/russell-wilson-let-russ-cook-meme/

1lg4dtwcxqre51y27owlm7j1cp [https://perma.cc/LAM5-CM4U].

132

Kevin Patra, Broncos Acquiring Seahawks QB Russell Wilson in Trade Including

Drew Lock, Multiple Picks, Players, NFL (Mar. 8, 2022, 1:52 PM), https://

www.nfl.com/news/broncos-acquiring-seahawks-qb-russell-wilson-in-trade-for-mul-

tiple-first-round-p [https://perma.cc/KD8Q-QB86].

133

Joe Rivers, Aaron Rodgers Timeline: A Series of Events That Led to Packers Rift,

Ignited Trade Rumors

Sporting News (June 17, 2021), https://

www.sportingnews.com/us/nfl/news/aaron-rodgers-trade-timeline-packers/

xrcz2aqqc3n41704v4u5dckph [https://perma.cc/NLA8-N4F9].

134

See Super Bowl History, supra note 83.

135

See Rivers, supra note 133.

136

See id. In some ways, this draft pick mirrored the Packers drafting Rodgers

while Brett Favre was still its star quarterback. Maggie Hendricks, Is History Repeat-

ing Itself in Green Bay?, KATV (May 1, 2021), https://katv.com/news/nation-world/

is-history-repeating-itself-in-green-bay [https://perma.cc/QQA2-H4GE]. But see

Bill Bender, Why Aaron Rodgers-Jordan Love Drama Doesn’t Compare to Favre-Rodgers in

Green Bay, Sporting News (April 24, 2020), https://www.sportingnews.com/us/

nfl/news/aaron-rodgers-jordan-love-brett-favre-green-bay-packers-quarterback-

drama/1oy72uxmg9trh1e635p4b4r8ni [https://perma.cc/Z826-FJ6N].

137

See Rivers, supra note 133. Given Rodgers’ age (37 in 2021), such an assump-

tion was not so unrealistic.

226 Harvard Journal of Sports & Entertainment Law / Vol. 13

tion had mistreated him, which included its decision not to solicit his input

on personnel decisions.

138

Going further than Wilson, Rodgers refused to report for minicamps

all summer and pressured the Packers through the media to trade him.

139

The Packers responded by offering statements of support for Rodgers, while

steadfastly refusing to trade him.

140

Despite the caliber of Rodgers’ talent,

he was unable to force the team to trade him. Throughout the entire sum-

mer of pressure imposed by Rodgers, the team remained steadfast. Rodgers

ultimately caved in, ended his holdout, and reported for camp prior to the

season.

141

He played quarterback for the Packers in the 2021 season.

142

The Packers reportedly considered trading Rodgers after the 2021.

143

They instead decided to keep him, largely by offering him a new lucrative

contract and convincing him to stay by patching up their prior differences.

Ultimately, Rodgers decided he wanted to stay with the Packers.

III. Rethinking Player Movement

Given the obstacles to star players switching teams, the question be-

comes: what can the respective players associations and the athletes them-

selves do to enhance their ability to switch teams? There are two promising

138

See id.

139

Bill Huber, Report: Rodgers Will Skip Mandatory Minicamp, Sports Illus-

trated (June 7, 2021), https://www.si.com/nfl/packers/news/rodgers-will-not-re-

port-to-minicamp [https://perma.cc/32EW-6B4R]. Rodgers went to Hawaii

instead. Jaclyn Hendricks, Aaron Rodgers Lives It Up in Hawaii with Shailene Woodley,

Miles Teller, Page Six (May 26, 2021), https://pagesix.com/2021/05/26/aaron-rod-

gers-hits-hawaii-with-shailene-woodley-miles-teller/ [https://perma.cc/MS7Y-

6ZM2].

140

See Rivers, supra note 133.

141

Jesse Pantuosco, Aaron Rodgers Ends Holdout from Packers, Reports to Training

Camp Tuesday, Audacy (July 27, 2021, 10:35 AM), https://www.audacy.com/sports/

nfl/aaron-rodgers-ends-holdout-reports-to-training-camp-tuesday [https://perma.cc/

2C95-JZ5E].

142

Despite another stellar season, Rodgers and the Packers lost in the playoffs

prior to reaching the Super Bowl, this time to their arch-nemesis San Francisco

49ers. See Matt Maiocco, What We Learned as 49ers Pull Off Miraculous Comeback vs.

Packers, NBC Sports (Jan. 22, 2022), https://www.nbcsports.com/bayarea/49ers/

49ers-observations-packers-shocked-sf-pulls-miraculous-comeback [https://

perma.cc/58QU-5EF3].

143

Jacob Camenker, Aaron Rodgers Contract Details: Why Packers QB May Have

Played Last Game in Green Bay, Sporting News (Jan. 23, 2022), https://

www.sportingnews.com/us/nfl/news/aaron-rodgers-contract-details-packers/

oszcukxe7v1k1lgs83rlflow5 [https://perma.cc/347J-ZGWE].

2022 / Player Movement 227

pathways to creating such opportunities

—

reform of free agency and contrac-

tual opt-outs.

A. Reforming Free Agency

Owners have traditionally opposed free agency, and even when they

allow for its existence in collective bargaining, they seek to limit its extent.

The primary incentive is to avoid costly bidding wars that drive up the

salaries of free agents. In the NBA in particular, there is a long history of

overpaying mediocre players because they were the best option in the mar-

ket.

144

In the NFL, the owners collectively bargained for a “franchise tag”

that allows the team to extend a player’s contract for a year at a set price to

delay the player’s entry into free agency. And MLB just ended a labor dis-

pute that, at its heart, stemmed from the decreased desire of owners to pay

players large salaries in free agency.

Given that decreasing restrictions on free agency increase the costs of

player salaries, league owners will not be eager to adjust the terms of free

agency. As a result, players will have to collectively bargain for this right.

One problem that might dissuade players from pushing for increased

movement and decreased restrictions on free agency is that many of the play-

ers might care more about securing a financial floor than about opening the

market to a greater possible ceiling. The high level of turnover at the lower

level of professional sports drives the concern of most players to the current

contract, not the future one.

145

And yet, opening up the market will ultimately raise compensation for

everyone, as competition will drive player compensation, and player com-

pensation will not be subject to artificial limits set by billionaire team own-

ers. A main difference between the labor market in professional sports and

other industries is the irreplaceability of the elite players. There are a lim-

ited number of athletes who can perform at the level required to succeed in

the NFL, NBA, or MLB. As such, their leverage in the market should be

greater than those in other fields in which the workers are more replaceable.

Unions must balance the goal of securing a minimum level of compen-

sation and working conditions with the ability of individuals to negotiate

salaries to a level that the market allows. Without unions, owners would be

unable to use salary caps, impose player drafts, or place limits on free

144

Indeed, the last negotiated NBA collective bargaining agreement included an

amnesty provision that allowed teams to pay off such contracts and not count them

against the salary cap.

145

This is especially true in the NFL, where the average career is under four

years.

228 Harvard Journal of Sports & Entertainment Law / Vol. 13

agency.

146

The extent to which the players give up the open market that

would otherwise be available in exchange for collectively bargained benefits

should make sense. In other words, the collective bargaining agreement

must give an advantage to the collective bargainers. For some superstar ath-

letes, this may not be the case.

147

Contrary to popular belief, however, bargaining for freedom of move-

ment would help all of the players. The creation of super-teams would drive

interest in the league year-round and could increase overall league revenue.

B. Contractual Opt-Outs

A second approach, outside of collective bargaining, would be for play-

ers to incorporate opt-outs in their contracts. With elite players, this prac-

tice is becoming increasingly common, at least for the last year of the

contract.

Historically, athletes wanted longer contracts to secure their future po-

sition on the team. In baseball, where contracts are guaranteed, this has been

a profitable strategy, with star players signing contracts for terms as long as

ten years. In football, that strategy is fruitless because the contracts are not

guaranteed, and players can be cut at any point without economic conse-

quence. As a result, NFL players seek large signing bonuses, where the com-

pensation is guaranteed because it is paid in advance.

148

A recent strategy among star NBA players has been to shorten the

length of their contracts. The athletes risk injury but get increased flexibil-

ity. The short, two-year or three-year contracts enable a player to choose to

join another team when it becomes desirable. And the NBA contracts are

generally guaranteed. Opt-out provisions give the team or the player (de-

pending on who holds the option) the ability to continue the contract for an

additional year or terminate it. Some players then will sign a three-year

contract with the option to opt-out after two years.

An obstacle that both NFL and NBA players face in considering how

long of a contract to sign relates to the salary cap. The NFL’s hard cap,

which limits how much a team can pay a particular player. The NBA has a

146

Gabriel Feldman, Antitrust Versus Labor Law in Professional Sports: Balancing the

Scales After Brady v. NFL and Anthony v. NBA, 45 UC Davis L. Rev. 1221, 1229-

30 (2012).

147

The disagreement over whether to participate in the 2020 All-Star Game

demonstrates this conflict. Stars like LeBron James argued for canceling the event,

but the union membership voted in favor of having the event.

148

Some NFL players have, in recent years, been able to negotiate partially guar-

anteed contracts, although this is not the norm.

2022 / Player Movement 229

more flexible cap, but the same issues exist, limiting the amount of compen-

sation available to a player. If a player is trying to build a super-team, the

player must figure out how to get all of the star players under the salary

cap.

149

The idea of opt-out contracts would help create additional freedom for

athletes. Athletes could place the option in the middle of the contract in-

stead of at the end. For instance, athletes could sign four-year or five-year

contracts with an opt-out after one or two years. This would allow for ath-

letes to escape bad marriages with teams, or otherwise test their value in the

market after particularly successful seasons. Having one opt-out also would

provide some predictability to general managers while still maintaining

flexibility for the athlete.

Standardizing this approach makes sense in the NFL in particular

where, at the moment, the teams have all of the power. Without guaranteed

contracts, the term-contract an NFL player signs is the equivalent of an at-

will contract. The team would not lose power with opt-out contracts, but

the player would gain autonomy.

Teams would also be more likely to trade disgruntled players if the

player could opt-out within a year. The opt-out provision would encourage

the team to try to get value for the player rather than the player just leaving

as a free agent.

C. Basketball As a Unique Situation?

The initial success of Davis and Harden in forcing trades as compared

to Watson, Wilson, and Rodgers who did not initially succeed suggests that

the “forcing a trade” strategy might not be a successful approach outside of

the NBA. In the NBA, the impact of one player can be the difference be-

tween winning a championship and not really competing for one. Histori-

cally, the third superstar player has resulted in championships for many

teams. And with only five players per team in the game at one time, one

player can influence the outcome in a way that players in football (with 22

players, not counting special teams) and baseball (10 players) cannot.

150

149

In Miami, James, Bosh, and Wade agreed on salary reductions so that all

could fit under the cap. In the case of the Warriors, an unusual bump in the salary

cap because of increased revenue gave the Warriors the room to sign Kevin Durant.

150

Hockey, with five players plus a goalie on ice at a time, might seemingly

offer a similar opportunity for individual dominance. See, e.g., Wayne Gretzky,

Statmuse, https://www.statmuse.com/nhl/player/wayne-gretzky-2501 [https://

perma.cc/2WHF-D2TD] (last visited July 5, 2022) (noting Gretzky’s nickname as

230 Harvard Journal of Sports & Entertainment Law / Vol. 13

Even with quarterbacks in the NFL, for instance, one player can only

succeed at a championship level with other good offensive players, a decent

offensive line, and a reasonably good defense. One player can tip the balance,

but not in such a way that a team might sacrifice to get the player at all

costs.

151

Similarly, a dominant pitcher in baseball will not have the same

kind of trade-forcing power because the pitcher only plays every fifth day.

And a fantastic hitter still depends on others in the lineup to get on base to

be able to have a dominant impact on the outcome of a game.

As a result, it seems unlikely that the force-a-trade strategy of Davis

and Harden will be successful in other professional sports in the near future.

It is possible that other NBA players may try to follow the lead of Davis and

Harden in the future.

D. Exploring the Value of Player Movement

In the long run, increasing player movement is a positive development

for the functioning of professional sports leagues. It invites the athletes into

a greater stake in the capitalistic side of the sport. Freer markets allow indi-

viduals to reap their true value in the marketplace, rather than one set by

league owners.

The volume of money generated by professional sports continues to

grow, and professional sports continue to face challenges concerning how to

share that revenue. Owners make every effort to cap the amount of revenue

that athletes receive. Collective bargaining relationships have kept these

figures around fifty percent of league revenue in most sports.

152

To be sure, the effect on all players will not be the same. The elite

athletes will receive a greater share of the profit than the marginal ones. But

that is generally how free markets work

—

those that can offer a superior

product or service receive higher pay.

There are other advantages to increased player movement. The fan in-

terest often grows with the addition of a new player. The new player’s game

against his former team becomes “must-see” television. The new player can

excite the fan base, even if he is unable to deliver a championship; the new-

found competitiveness that a new player offers may be enough to provide

hope and reinvigorate interest.

The trend toward gambling driving sports interest also resonates with

the idea of increased player movement. New players in new situations in-

the “Great One”). But hockey players typically only spend 2-3 minutes at a time on

the ice before switching out for other players because of fatigue.

151

See supra note 90.

152

See generally supra notes 8, 9, and 10.

2022 / Player Movement 231

creases unpredictability, makes outcomes more uncertain, and allows for

players to thrive in new situations.

Increased player movement also allows players to escape bad situations.

The draft can cause players to end up on teams that make their individual

success difficult if not impossible. Despite teams’ best efforts, sometimes

players just do not fit. But limiting the ability to move to teams deciding to

trade players limits player autonomy and makes it likely that years will be

wasted in bad situations. If leagues insist on having drafts and preventing

players from choosing which team they want to play for, then players should

bargain for the right to structure contracts in a way that allows them to

escape bad situations.

Interestingly, allowing increased player movement might not result in

a proliferation of super-teams. Sometimes less-talented individuals that have

a longer history playing together are able to defeat more star-laden rosters

that have not gelled.

The increased player movement could also help address the recent phe-

nomenon of tanking. In the NBA in particular, there has been a growing

problem of teams giving up winning for multiple years in order to assemble

championship teams.

153

With more frequent player movement, waiting for

the next lottery pick would not be the favored approach; creating a core of

players who opt out to play together would be a favored strategy.

Conclusion

This paper has sought to explore the recent phenomenon of athletes

exerting increased autonomy over their choice of teams in professional

sports. In doing so, it has questioned long-held values in favor of home town

stars; parity; and paternalistic, anti-capitalistic restraints on player move-

ment. It then suggested that athletes should strive to broaden their freedom

of movement by collectively bargaining for decreased restrictions on free

agency and incorporating opt-out provisions into their contracts. Finally,

the paper concluded by highlighting the benefits of increased player move-

ment in professional sports.

153

Former 76ers general manager Sam Hinkie termed this approach “The

Process.”

The Credibility of the Court of

Arbitration for Sport

Chui Ling Goh*

Jack Anderson**

Abstract

Established in 1983, the Court of Arbitration for Sport (the “CAS”)

has since been recognized as the “world’s supreme court for sports.”

It is,

however, neither a “court” in the public law sense of the term nor “su-

preme,” given that its decisions can be challenged at the Swiss Federal Tri-

bunal and even at the European Court of Human Rights. The CAS has also

faced criticism for its lack of independence and impartiality, the mandatory

consent nature of its jurisdiction and its questionable and limited contrac-

tual legitimacy. These criticisms have been raised occasionally but largely

unsuccessfully by aggrieved parties seeking to quash CAS awards in the

courts. Nevertheless, the legal challenges and questions as to the CAS’s cred-

ibility as an arbitral body persist.

This Article seeks to critically assess the principal criticisms of the CAS

by comparing its practices with those of ordinary courts and commercial

arbitration institutions. This paper will show that procedurally – with the

exception of an egregious gender and geographical imbalance in and on its

arbitration lists – the CAS’s practices appear compliant with the norms of

international arbitration. The paper seeks to facilitate a more informed dis-

* Ph.D. Candidate, LL.M. (Melbourne Law School), LL.B. (National University

of Singapore), Advocate and Solicitor (Singapore). The author is privileged to have

worked with Professor Jack Anderson on this paper and thanks him for his

insightful guidance and mentorship.

** Professor of Law, Melbourne Law School, University of Melbourne.

See Foreword by H.E. Judge K´eba Mbaye at M. Reeb, Digest of CAS Awards

II 1986-1998 (1998).

234 Harvard Journal of Sports & Entertainment Law / Vol. 13

cussion about, and appreciation of, the CAS than has recently existed and to

prompt meaningful reform of the CAS to the ultimate benefit of its users

(and especially athletes).

I. Introduction

In 1981, Juan Antonio Samaranch, the President of the International

Olympic Committee (“IOC”), envisioned creating a sport-specific jurisdic-

tion within an arbitration tribunal devoted to resolving all disputes directly

and indirectly relating to sports.

Samaranch thought that a specialized

body, providing “flexible, quick and inexpensive” adjudication methods,

was necessary to adjudicate the increasingly complex array of transnational

and cross-border disputes relating to both Olympic and professional sport.

Two years later, the IOC ratified the Court of Arbitration for Sport (“CAS”),

since self-described as the “world’s supreme court for sport”

and subject to

Swiss law.

Since 1983, the role of the CAS has expanded.

No longer seen as

simply a vassal of the IOC,

the CAS is globally accepted, albeit sometimes

uneasily, as the final arbitrator of sporting disputes.

See Court of Arbitration for Sport, History of the CAS, TAS/CAS, https://

www.tas-cas.org/en/general-information/history-of-the-cas.html [https://perma.cc/

2KYT-K8SZ] (last visited May 30, 2022).

Id.

See Raffaele Poli, Africans’ Status in the European Football Players’ Labour Market,

7 Soccer & Soc’y 278–91 (2006); Wladimir Andreff & Paul D. Staudohar, The

Evolving European Model of Professional Sports Finance, 1 J. Sports Econ. 3, 257–76

(2000).

Foreword by H.E. Judge K´eba Mbaye at Reeb, supra note 1.

See Matthieu Reeb, Digest of CAS Awards, 2000-2003 (2004).

The CAS has expanded since 1983, from the inclusion of the CAS Ad Hoc

Division in 1996, to the Ad Hoc Anti-Doping Division in 2016, and the perma-

nent CAS Anti-Doping Division in 2019. See Amendments to the Code of Sports-Related

Arbitration (in Force as from 1 January 2017), TAS/CAS Court of Arbitration for

Sport (

2017), https://www.tas-cas.org/fileadmin/user_upload/Amend-

ments_Code_2017_tracked_changes.pdf [https://perma.cc/8R5Z-485P] (last visited

May 30, 2022); Amendments to the Code of Sports-Related Arbitration (in Force as from 1

January 2019), TAS/CAS Court of Arbitration for Sport (2019), https://

www.tas-cas.org/fileadmin/user_upload/Amendments_Code_2019__en_.pdf

[https://perma.cc/PU79-7PHH] (last visited May 30, 2022).

See Lazutina & Danilova v. Int’l Olympic Comm. [2003], SFT, 1st Civil Divi-

sion, 27 May 2003 (Swiss Federal Tribunal).

See Richard H. McLaren, Twenty-Five Years of the Court of Arbitration for Sport: A

Look in the Rear-View Mirror, 20 Marq. Sports L. Rev. 305 (2010).

2022 / Arbitration for Sport 235

Prior to its present state, the CAS experienced several stages of reform

in response to various challenges to its authority and independence.

1994, after the Swiss Federal Tribunal determined that there was sufficient

connection between the CAS and IOC to question the CAS’s independence

under Swiss law,

the International Council of Arbitration for Sports (the

“ICAS”) was created. The ICAS was intended as both an administrative and

financial oversight body of the CAS branch and a means of distancing the

CAS operationally from the IOC.

In 2011, the ICAS amended the CAS’s

Code of Sports-related Arbitration (“CAS Code”), abandoning the old re-

gime of sports organizations designating the appointment of arbitrators and

instead designing a procedure by which CAS arbitrators are appointed into

the CAS list of arbitrators.

In 2019, major reforms were made to the CAS

Code, including the creation of the Anti-Doping Division and the Ordinary

Division and Appeals Division, as well as the availability of public discipli-

nary hearings by request.

The present procedural rules pertaining to arbi-

tration at the CAS are set out in the 2021 edition of the CAS Code.

Apart from challenges to its financial and institutional independence

from the IOC and other International Federations (“IFs”), the CAS has also

been vigorously criticized. First, critics claim that the CAS lacks authority

due to the insufficiency of party consent, including athletes with little bar-

gaining power over the operation of mandatory arbitration clauses in the

regulations of sport bodies. Second, critics argue that the CAS has limited

contractual legitimacy to develop a body of jurisprudence for international

sports law.

See Gundel v. F´ed´eration

Equestre Internationale (FEI) and & Court of Arbitra-

tion for Sport [1993], SFT, 1st Civil Division, 15 March 1993 (Swiss Federal Tribu-

nal); Raguz v. Sullivan [2000] N.S.W. Ct. App. 240; Lazutina v. IOC (SFT); Mutu

and Pechstein v. Switzerland (European Court of Human Rights, Section III, Appli-

cation No. 40575/10 and 67474/10, 2 October 2018); Platini v. Switzerland (Euro-

pean Court of Human Rights, Application No. 526/18, 5 March 2020).

See Gundel v. FEI & CAS.

See McLaren, supra note 9, at 307.

See Tudor Chiuariu, Amendments to the Code of Sports-Related Arbitration Setting

the Procedure Before the Court of Arbitration for Sport (in Force as of January 1st, 2012),

24 Revista Romana de Arbitraj 12–18 (2012), 15-16.

See Court of Arbitration for Sport, supra note 2.

See id.

For references on lex sportiva, see Antoine Duval, Lex Sportiva: A Playground for

Transnational Law, 19 Euro. L.J. 822–42 (2013). See also the same author’s most

recent criticisms of the CAS at Antoine Duval, Court of Arbitration for Sport Decides

Who Gets to Play and Under What Conditions, Mail Online (June 18, 2021), https://

www.dailymail.co.uk/sport/sportsnews/article-9693349/Court-Arbitration-Sport-

not-fit-purpose-claims-expert-sports-law.html [https://perma.cc/Q63U-9P77].

236 Harvard Journal of Sports & Entertainment Law / Vol. 13

This paper outlines the elements of both of these criticisms of the CAS.

Part II focuses on CAS’s apparent lack of independence and impartiality,

principally from the IOC. Part III evaluates the criticisms of deficient con-

sent by parties in the CAS. Part IV analyzes CAS’s contractual legitimacy.

This paper concludes by explaining how these criticisms may be addressed

and the benefits to the industry that outweigh the burdens.

This paper acknowledges that there may be other criticisms of the CAS

not expressly reflected here. These criticisms include the lack of trans-

parency in the accounts and reports of the ICAS. This paper further ac-

knowledges that comparing the CAS to entities that hear private,

international commercial disputes is limited by the fact that to a large ex-

tent, the CAS hears cases which are non-commercial in nature, arising out of

various sport-specific disputes, such as transfer disputes, eligibility and dis-

ciplinary decisions, and governance disputes. Unlike commercial arbitration

where there is generally equal bargaining power among the parties and a

genuine consent to resolve the matter privately, at the CAS there is often

marked inequality in the frequency of appearance and resourcing of the par-

ties. The inequality is aggravated by the fact that it is often made compul-

sory for disputes to be submitted to the CAS.

II. Criticism One: Lack of Independence and Impartiality

One of the most common criticisms of the CAS is that it lacks inde-

pendence and impartiality as the “world’s supreme court for sport.”

His-

torically, the bulk of the CAS’s funding and the majority of its ICAS

members and CAS arbitrators are provided by the IOC. It is therefore ques-

tionable whether the CAS was, as originally conceived, operationally or in-

stitutionally independent of the IOC to the extent required of a tribunal by

Article 6(1) of the European Convention on Human Rights.

This criticism

of the CAS has persisted, despite various institutional reforms beginning in

1994.

See Foreword by H.E. Judge K´eba Mbaye at Reeb, supra note 1.

Other criteria would include the term of office of arbitrators, existence of guar-

antees against outside pressure, the body presenting an appearance of independence,

assessment of impartiality based on subjective (individual arbitrators) and objective

standards (institutional). See Convention for the Protection of Human Rights and Funda-

mental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered

into force 3 September 1953).

2022 / Arbitration for Sport 237

A. Challenges to the CAS’s Financial and Institutional Independence

In 1993, the Swiss Federal Tribunal stated in Gundel v. F´ed´eration

Equestre Internationale and Court of Arbitration for Sport that, should the IOC

become a party to a proceeding before the CAS, there existed substantial

links between the CAS and the IOC strong enough to compromise the inde-

pendence of the CAS.

The Swiss Federal Tribunal found that the CAS was

wholly financed by the IOC and that the IOC had considerable power over

the administration of the CAS, including the ability to modify the CAS

statutes and appoint CAS members and arbitrators.

Following Gundel, the CAS employed substantive reforms to reinforce

its independence and impartiality, resulting in the IOC and other interna-

tional sports governing bodies signing the Agreement related to the Consti-

tution of the International Council of Arbitration for Sport (the “Paris

Agreement”)

to place the CAS under the administration of the Interna-

tional Council of Arbitration for Sport (“ICAS”). The parties to the Paris

Agreement were the IOC, the Association of Summer Olympic International

Federations (“ASOIF”), the Association of the International Olympic Win-

ter Sports Federations (“AIOWF”), and the Association of National

Olympic Committees (“ANOC”).

The ICAS was established under Swiss

law to act as a buffer layer of governance between the CAS and the IOC.

In 2002, despite the creation of the ICAS as an institutional and finan-

cial buffer, Russian cross-country skiers Larisa Lazutina and Olga Danilova

challenged the decision of the CAS (which had found in favor of the IOC

against the skiers) at the Swiss Federal Tribunal, on the grounds that the

policy of maintaining a closed list of arbitrators limited the fundamental

freedom of parties to appoint the arbitrator of their choice in contravention

of Article 190(2) of the Swiss Private International Law (the “PILA”).

The

Swiss Federal Tribunal determined that the then-current state of administra-

tion of the CAS meant that the CAS could be seen as sufficiently indepen-

dent from the IOC. The Swiss Federal Tribunal further observed that

See Gundel v. FEI & CAS.

See id.

See Paris Agreement, Digest of CAS Awards 561 (1994).

See id.

See McLaren, supra note 9, at 307.

See Lazutina v. IOC (SFT); see also Bundesgesetz ¨uber das Internationale Priva-

trecht [IPRG] (“Federal Act on Private International Law”), Dec. 18, 1987, SR 291

[herineafter “PILA”].

238 Harvard Journal of Sports & Entertainment Law / Vol. 13

“[t]here appears to be no viable alternative to [the CAS], which can resolve

international sports-related disputes quickly and inexpensively.”

Despite the finding in the Lazutina-Danilova matter by the Swiss

courts, scholars continue to argue that the CAS lacks institutional indepen-

dence. ICAS members remain drawn from or directly appointed by IFs, the

IOC, and National Olympic Committees (“NOCs”), which potentially al-

lows for the “refus[al] to re-appoint a recalcitrant member,” should an ICAS

member fail to adhere to the desires of the bodies that appointed them.

While the ICAS is intended to act as a buffer layer of governance, the

incestuous appointment process of ICAS members is questionable.

broadly, ICAS members wield immense power not only to appoint arbitra-

tors in CAS’s list of arbitrators, but also to revise the CAS Statutes. Further-

more, the ICAS appointment of CAS arbitrators in the closed list of

arbitrators is done in consideration of the names proposed by the IOC, IFs,

and NOCs.

In the election of the President and Vice Presidents of the

ICAS, ICAS members are also expected to consult the IOC, ASOIF,

AIOWF, and ANOC, which comprise the majority of international sports

administration.

The position of the President of the CAS is then automati-

cally given to the elected President of the ICAS,

thereby perpetuating the

fear and perception that ICAS members, or CAS arbitrators, would see the

IOC, IFs, and NOCs as their constituency and feel the need, whether con-

sciously or subconsciously, to please that constituency.

The independence and impartiality of CAS’s arbitrators have also at-

tracted critical, scholarly concern, although the CAS reformed its mecha-

nisms for the appointment of arbitrators into the CAS’s arbitrators list in

2011

– whereas the previous prerequisite for arbitrators to be proposed by

Court of Arbitration for Sport, supra note 2.

Daniel H. Yi, Turning Medals into Metal: Evaluating the Court of Arbitration for

Sport as an International Tribunal, 6 Asper Rev. Int’l Bus. & Trade L. 289, 321

(2006).

The last four members are appointed by the four members that have been

appointed by the 12 members before. See Court of Arbitration for Sport, supra note

2, at S4.

See id. at S14.

See id. at S9.

See id.

See Michael Straubel, Enhancing the Performance of the Doping Court: How the

Court of Arbitration for Sport Can Do Its Job Better, 36 Loy. U. Chi. L.J. 1203, 1229

(2004).

Prior to 2011 CAS reforms, the ICAS was obligated to appoint arbitrators as

proposed by IOC, IFs, and NOCs, in the proportions set out in the Code. See

2022 / Arbitration for Sport 239

the IOC, IFs, and NOCs no longer applies.

In addition, while there are

more than 400 arbitrators on CAS’s list of arbitrators, only a small group of

arbitrators are used with any frequency.

Furthermore, for cases in the CAS

Appeals Arbitration Division, the President of the said Division, not parties

or parties’ appointed arbitrators, usually appoints the panel president,

al-

though parties are free to reject appointments. This, nevertheless, brings

into question the independence of the ICAS and its influence from the IOC,

IFs, or NOCs, especially when they are parties to the matter before the CAS.

These arguments were also brought to the Swiss Federal Tribunal and

the European Court of Human Rights in several cases. In 2016, the CAS

heard the case RFC Seraing v. FIFA, involving the breach of third party

ownership regulations in soccer, as governed by FIFA.

The CAS published

an award which held against Seraing, a football club in Belgium.

In 2017,

Seraing challenged this CAS award at the Swiss Federal Tribunal on grounds

that the CAS was not sufficiently operationally independent from FIFA.

Here, the CAS revealed that FIFA contributed less than 10% of CAS’s over-

all annual budget as compared to the 65% contribution by the entire

Olympic Movement. The Swiss Federal Tribunal compared the financial de-

pendency of the CAS on leading sports bodies with that of the ordinary

courts being underwritten by the state. Therein, the Swiss Federal Tribunal

further concluded that the financial dependence does not directly result in

the subjective impartiality of judges. In Seraing, the Swiss Federal Tribunal

did not find sufficient grounds to revisit its decisions in Gundel and Lazutina

and dismissed the challenge to the CAS award. The Swiss Federal Tribunal

decision of RFC Seraing v. FIFA had relied heavily on a German Bundesger-

ichtshof (German Federal Court of Justice) decision in 2016 involving a Ger-

man speed skater, Claudia Pechstein v. Deutsche Eisschnelllauf-Gemeinschaft

(German Speed Skating Union) and International Skating Union,

which reaf-

Rachelle Downie, Improving the Performance of Sport’s Ultimate Umpire: Reforming the

Governance of the Court of Arbitration for Sport, 12 Melb. J. Int’l L. 1, 8 (2011).

See id.

See Straubel, supra note 31, at 1234.

See Court of Arbitration for Sport, supra note 2, at R54.

See FIFA, Commentary on the Regulations on the Status and Transfer of Players Edi-

tion 2021, https://digitalhub.fifa.com/m/346c4da8d810fbea/original/Commentary-

on-the-FIFA-Regulations-on-the-Status-and-Transfer-of-Players-Edition-2021.pdf

[https://perma.cc/HE39-2S32] (last visited June 29, 2022).

See RFC Seraing v. F´ed´eration Internationale de Football Association [2017] SFT 4A

260/2017 (Swiss Federal Tribunal).

See id.

See Bundesgerichtshof [German Federal Court of Justice], KZR 6/15, 7 June

2016 reported in (2016) BGHZ 66.

240 Harvard Journal of Sports & Entertainment Law / Vol. 13

firmed that the CAS is an arbitration court pursuant to the German Code of

Civil Procedure.

Claudia Pechstein was an Olympian and national speed skater for Ger-

many who was banned for doping in 2009. She challenged the ban imposed

by the national and international sports federations before the CAS

2009 and before the German Bundesgerichtshof and the European Court of

Human Rights (the “ECtHR”) in 2018 (the latter was determined with one

other applicant, Romanian football player Adrian Mutu).

In Mutu and

Pechstein v. Switzerland, the ECtHR determined that the CAS was a tribunal

for the purposes of Article 6(1) of the European Convention of Human

Rights (the “ECHR”).

Although the ECtHR eventually dismissed Pech-

stein’s challenge against the independence and impartiality of the CAS’s list

arbitrators on grounds that Pechstein did not provide sufficient evidence on

the individual allegations,

it acknowledged that it was ready to recognize

the susceptibility of athletes in the framework of the CAS disputes, within

the institutional and procedural mechanism of the nomination of CAS arbi-

trators.

The ECtHR recognized the influence of IFs and the IOC (through

the ICAS), which has authority over the nomination of CAS arbitrators and

the appointment of persons who get to preside over the three Divisions in

the CAS. The ECtHR also mentioned the advantages of a specialized body

outside of the national court system to adjudicate swiftly and inexpen-

sively.

There was, nevertheless, a joint dissenting judgment of Pechstein’s

challenge at the ECtHR, wherein two judges highlighted the “dispropor-

tionate and unjustified”

nature of the IOC’s influence over the CAS.

B. Evaluating the Financial Independence of the CAS

The main point of contention for the challenges against the financial

independence of the CAS is the source of funding of the CAS. In substance,

the source of funding of the CAS is from sports federations such as the IOC,

IFs, and NOCs, pursuant to Clause 3 of the Paris Agreement.

The Paris

Agreement states that all parties agree to finance the activities of the CAS to

See CAS 2009/A/1912, Claudia Pechstein v. Int’l Skating Union, Award of 25

November 2009; CAS 2009/A/1913, Deutsche Eisschnelllauf-Gemeinschaft v. Int’l

Skating Union, Award of 25 November 2009.

See Mutu & Pechstein v. Switzerland.

See ECHR, 213 UNTS 221, supra note 18.

See Mutu & Pechstein v. Switzerland, at 157.

See id. at 158.

Id. at 78, 97.

Id. at 55.

See Paris Agreement, supra note 21.

2022 / Arbitration for Sport 241

the extent determined by the ICAS. Parties include the IOC, ASOIF,

AIOWF, and ANOC. IFs and NOCs form members to the ASOIF, AIOWF,

and ANOC. The funds for the CAS are then attributed under the adminis-

tration of the ICAS and involve the costs of arbitrators, arbitration fees of

the CAS, and other fees incurred by the CAS for disciplinary matters pursu-

ant to Rule 65 of the CAS Code.

Given that the CAS hears matters per-

taining to the IOC, Ifs, and NOCs, there arise certain concerns that the CAS

cannot adjudicate such matters independently without bias.

However, it is noteworthy that while CAS financing is, in substance,

by the IFs and NOCs, under the Paris Agreement, the financing of the CAS

is through the ASOIF, AIOWF, and ANOC. This is significant because this

financial arrangement acts as a safeguard to ensure individual IFs and NOCs

otherwise unhappy with a CAS award cannot stop contributing to the fi-

nancing of the CAS, unless that IF or NOC was to leave the ASOIF,

AIOWF or ANOC, which would lead to certain consequences for the indi-

vidual IFs and NOCs, in relation to the Olympic Games. For example, if an

individual IF decides to leave the ASOIF, it would lose not only its “good

standing with the IOC,”

but also its right to receive any share of the

revenue from the Summer Olympic Games, even if their sport is included in

the program.

Similarly, if an NOC decides to leave the ANOC, it would

risk losing its status recognition with the IOC and the entitlements attached

to it,

such as the right to send competitors and officials to the Olympic

Games.

Coupled with the institutional buffer of the ICAS, the Paris

Agreement provides additional safeguards to ensure that the funding of the

CAS remains sufficiently quarantined from the administration of the CAS

and the findings of its arbitrators. The financial safeguards of the CAS are

rather akin to how ordinary courts are funded by public tax revenues, which

are collected and distributed to the judiciary.

Nevertheless, apart from disciplinary matters heard before the Appeals

Division on decisions rendered by IFs or other sports bodies, parties to the

CAS are expected to bear substantial costs of arbitration, which includes,

See Court of Arbitration for Sport, supra note 2.

See Ass’n of Summer Olympic Int’l Federations, ASOIF Statutes (2018), https://

www.asoif.com/sites/default/files/download/asoif_statutes_2018.pdf [https://

perma.cc/XM8V-P5GZ] (last visited May 30, 2022).

See id.

See Ass’n of Nat’l Olympic Comms., Constitution of the Association of National

Olympic Committees (2018), https://www.anocolympic.org/downloads/2018-11-28-

anoc-document-anoc-constitution-en.pdf [https://perma.cc/MD72-K8GV] (last vis-

ited May 30, 2022).

See Int’l Olympic Comm., Olympic Charter (2019).

242 Harvard Journal of Sports & Entertainment Law / Vol. 13

inter alia, the CAS’s administrative costs, costs of arbitrators, and ad hoc

clerk, if any.

So while there might be certain indirect funding of the CAS

through the Paris Agreement, in such non-disciplinary matters before the

CAS, there is less reason to question the financial independence of the re-

spective arbitration panels, given that the said panels are primarily funded

by both parties to the arbitration. Parties’ financing of such non-disciplinary

matters before the CAS is akin to general international commercial

arbitration.

The issue of financial independence also arises for non-commercial dis-

ciplinary matters heard at the Appeals Division. As mentioned above, unlike

other matters heard before the CAS, arbitration costs incurred for discipli-

nary matters heard at the Appeals Division are borne by the CAS directly

(save for the appeal filing fee of CHF 1,000).

As illustrated by the trend of

attracting high-value litigation in international commercial arbitration,

arbitration is costly, and this provision in article R65 of the CAS Code was

included to avoid denying parties’ access to the CAS for the appeal of disci-

plinary decisions by sports tribunals. The nature of a fully funded discipli-

nary hearing in the CAS is akin to fully funded criminal proceedings and

appeals in ordinary courts, wherein accused persons should not be expected

to fund their court fees in their prosecution and the process of the adminis-

tration of justice. Accordingly, it could be argued that, pursuant to Clause 3

of the Paris Agreement, the IFs and NOCs surrender significant portions of

the revenue allocated to them as part of the IOC’s revenue from the televi-

sion rights for the Olympic Games, as part of the CAS financing to the

ICAS, to ensure that aspects of the CAS, such as disciplinary hearings, can

be accessed by aggrieved athletes.

While removing the dispensation of arbitration costs for disciplinary

hearings in the CAS is a possible solution, the idea of the funding for ap-

peals on disciplinary matters is to ensure such non-commercial matters are

accessible to all parties involved. In non-commercial matters, the CAS takes

on a distributive and supervisory role in assessing the merits of each decision

and case. As such, it is crucial, if not absolutely necessary, for the CAS to be

See Court of Arbitration for Sport, supra note 2.

Id. at R65.

See Steven Seidenberg, International Arbitration Loses its Grip, 96 ABAJ 50

(2010); Thomas J. Stipanowich, Beyond Arbitration: Innovation and Evolution in the

United States Construction Industry, 31 Wake Forest L. Rev. 65 (1996); Dean B.

Thomson, Arbitration Theory and Practice: A Survey of AAA Construction Arbitrators, 23

Hofstra L. Rev. 137 (1994); Simon G. Zinger, Navigating the Russian Shipping Industry:

Making the Most of International and Russian Law for Successful Arbitration Against

Russian Parties, 8 USF Mar. L.J. 141 (1995).

2022 / Arbitration for Sport 243

equally accessible to applicants for non-commercial matters, quite akin to

the processes for criminal and disciplinary cases before domestic courts.

There is, without a doubt, a role for fully funded hearings before the CAS,

and it is impractical, if not irrelevant, to endeavor for the complete financial

independence of the CAS for such non-commercial disputes. Sports arbitra-

tion in the CAS was established with the intention of uniformity and acces-

sibility of justice, and this cannot be wholly achieved if parties, especially

private persons, are expected to bear the exorbitant costs for their non-com-

mercial matters heard before the CAS. This was raised by the Swiss Federal

Tribunal in the case of Seraing, where it was argued that neither athletes nor

states are the right persons or entities to finance a private sport arbitral

tribunal.

In fact, a more practical consideration is whether the CAS provides

sufficient financial access for non-commercial cases, given that only costs for

disciplinary matters are dispensed with, while other non-commercial cases

such as transfer disputes, eligibility cases, and governance cases can only be

heard if parties, especially the applicant, are willing to pay the associated

costs in the CAS. As such, applicants for non-commercial, non-disciplinary

matters before the CAS are subjected to high advance costs for proceedings,

pursuant to article R64.2 of the CAS Code.

Another consideration is the

adequacy of the scope of legal aid that is given to parties under the CAS

Legal Aid Commission, which affects the accessibility of the CAS as a dis-

pute resolution and adjudication forum in international sports.

Briefly, the

CAS Legal Aid Scheme only provides for legal aid for decisions made by IFs,

and it is only available to “natural persons”.

This means that appeals on

other decisions, such as those by NFs, are not entitled to CAS legal aid.

Smaller and less affluent sports bodies, clubs and other legal entities, are also

not entitled to get legal aid from CAS because they do not qualify as natural

persons.

See RFC Seraing v. FIFA (SFT).

See Court of Arbitration for Sport, supra note 2.

For discussions on the accessibility of legal aid before the CAS, see Antonio

Rigozzi & Fabrice Robert-Tissot, “Consent” in Sports Arbitration: Its Multiple Aspects,

in Sports Arbitration: A Coach for Other Players-ASA Special Series No.

41 (2015).

See Court of Arbitration for Sport, Guidelines on Legal Aid Before the Court of

Arbitration for Sport (2020).

244 Harvard Journal of Sports & Entertainment Law / Vol. 13

C. Evaluating the Institutional Independence of the CAS

The challenges to the institutional independence of the CAS are cen-

tered on the IOC, IFs, and NOCs’ influence over the appointment of ICAS

members, and therefore the IOC, IFs, and NOCs’ influence over the statutes

of the ICAS and the appointment of arbitrators onto the CAS’s arbitrators

list. In Mutu and Pechstein v. Switzerland, the ECtHR examined the structure

of the ICAS and held that the IOC, IFs and NOCs do exercise real influence

over the ICAS, such as the appointment of 12 out of 20 ICAS members.

There are also real concerns pertaining to the independence and impar-

tiality of the small group of arbitrators who are regularly appointed by the

CAS.

As mentioned above, the practice in the CAS, and among disputing

parties, is frequently to select and use a small group of experienced, active

arbitrators in the CAS cases, albeit the long list of arbitrators available.

While pragmatically, it is less risky for parties to nominate known and ex-

perienced CAS arbitrators, such practices do cast an appearance of doubt on

the impartiality of the arbitrators, which is akin to appointing a former

lawyer to judge a case in court.

For example, Prof. Dr. Ulrich Haas, one of

the experts engaged by World Anti-Doping Agency in 2006 to revise the

WADA Code, had his independence and impartiality as an arbitrator ques-

tioned before the Swiss Federal Tribunal in a matter pertaining to an anti-

doping violation.

The 2011 CAS reforms sought to significantly reduce the IOC, IFs,

and NOCs’ direct influence over the appointment of CAS arbitrators,

wherein the ICAS is no longer obliged, let alone expected, to consider the

proposed arbitrators of the IOC, IFs, and NOCs.

It is admitted that there are still issues within the process of the ap-

pointment of CAS arbitrators by the ICAS which could potentially bring the

institutional independence of the CAS into question. One issue is the con-

solidation of power into the President of the ICAS, who is thereafter also

appointed as President of the CAS and who is empowered not only to ad-

minister the CAS but also to appoint presidents of arbitral panels (or sole

arbitrators) for matters before the CAS. This may prove problematic as the

panel president or sole arbitrator appointed is empowered to make decisions

Antonio Rigozzi et al., Sports Arbitration, 2013 Euro., Middle Eastern &

African Arb. Rev. 15, 16 (2013).

See Straubel, supra note 31, at 1234.

See Alejandro Valverde Belmonte v, Comitato Olimpico Nazionale Italiano, World

Anti-Doping Agency, and International Cycling Union [2010] 4A_234 / 2010 (Swiss

Federal Tribunal).

See Court of Arbitration for Sport, supra note 2.

2022 / Arbitration for Sport 245

about the matter before them, albeit they are expected to do so objectively.

However, it is prudent to note that the ICAS appoints arbitrators in consid-

eration of not only the names brought before it by IFs and NOCs, but also

athletes’ commissions of IFs and NOCs,

thereby providing broad-based

consensus on the appointments rather than the commonly alleged predispo-

sition towards sporting federations.

Moreover, the practices of the CAS on the appointment of a buffer layer

of governance (i.e., the ICAS), procedures for the appointment of arbitrators

into the arbitrators list, and rules on the appointment of arbitrators in active

cases, are not different from the practices of other arbitration institutions. In

most commercial arbitration institutions, such as the Singapore Interna-

tional Arbitration Centre (“SIAC”), International Chamber of Commerce

(“ICC”), and London Court of International Arbitration (“LCIA”), there are

also similar “buffer layers” on the appointment of arbitrators in cases. In

ICC and LCIA, the respective arbitration institutions’ “Court” has sole dis-

cretion to admit and appoint the arbitrators to sit on the arbitration tribu-

nal, even if nominated by parties.

In SIAC, while there is a Panel of

Arbitrators which consists of arbitrators appointed by SIAC-appointed Exec-

utive Committee, which parties can select from, the President of SIAC has

final say in the appointment of the arbitrator(s).

Although parties to arbi-

tration proceedings at these commercial arbitration institutions are able to

nominate their arbitrators, parties’ nominees are still subjected to the influ-

ences of bureaucratic processes within the respective arbitration institutions.

Furthermore, it is not uncommon within commercial arbitration to fre-

quently use and engage a small pool of experienced arbitrators who often

bring their specialized expertise and knowledge to the adjudication pro-

cess.

Such repeat arbitrators are arbitrators who are repeatedly appointed

by the same party, same type of party, and on the same issues.

This was

aptly pointed out in the English case of Halliburton v. Chubb,

wherein a

particular arbitrator was appointed for and by the Defendant before multiple

tribunals and the Court of Appeal therein determined that there was no real

possibility of bias. The Court of Appeal commented that the pool of suitably

See id. at S14.

See LCIA Arbitration Rules (2014), Art 5; ICC Arbitration Rules (2017), Art

13.

SIAC Arbitration Rules (6th ed., Aug. 1, 2016), Rule 9.

See Drew J. Hushka, How Nice to See You Again: The Repetitive Use of Arbitrators

and the Risk of Evident Partiality, 5 Arb. L. Rev. 325–40 (2013).

Houchih Kuo, The Issue of Repeat Arbitrators: Is It a Problem and How Should the

Arbitration Institutions Respond?, 4 Contemp. Asia Arb. J. 247 (2011).

[2018] EWCA Civ 817.

246 Harvard Journal of Sports & Entertainment Law / Vol. 13

qualified and experienced arbitrators in certain fields may be small, and par-

ties should not be deprived of the opportunity to nominate someone suitable

to adjudicate their dispute on grounds of “overlapping” events or circum-

stances, which was the issue in that case. The issue of repeat arbitrators is, in

fact, an inevitable outcome of the pursuit of flexibility in the private adjudi-

cation of arbitration, wherein parties are empowered to nominate their adju-

dicators, thereby creating a free market of expert adjudicators in the field.

Such criticisms of arbitration proceedings are not unique to sport arbi-

tration, and it is not uncommon to find such subtle influences present in all

types of arbitration and private adjudication, especially in specialized fields

consisting of small pools of close-knit communities of specialized exper-

tise.

In commercial arbitration, many institutions and arbitrators have

adopted the practice of the International Bar Association (“IBA”) Guide-

lines of Conflicts of Interest in International Arbitration (the “IBA Guide-

lines”) in the assessment of the independence of the arbitrators and

corresponding disclosure requirements.

The IBA Guidelines provide a def-

inition of conflict of interest in international arbitration and the delineation

of factual situations which would enable arbitrators to determine whether

they are in conflict and whether they are obliged to disclose their interests, if

any.

It may be beneficial for the CAS to expressly adopt the practice of

using the IBA Guidelines in assessing the independence of the arbitrators

involved within the Arbitrator’s Acceptance and Statement of Independence

prior to the appointment before the CAS, just as in the practice of commer-

cial arbitration, in order to alleviate challenges to the institutional indepen-

dence of the CAS. The IBA Guidelines can provide not only definitive

situations of conflict of interest and disclosure requirements, but also an

internationally recognized standard to rely on with regard to the conflict-of-

interest situations faced by arbitrators. There may not be a need for the CAS

to codify the IBA Guidelines, just as how arbitration institutions do not

codify the IBA Guidelines in their arbitration rules.

The IBA Guidelines

are an accepted supranational source of law for international arbitration,

See Gundel v. FEI and CAS, and Lazutina v. IOC (SFT).

See Int’l Bar Ass’n, IBA Guidelines on Conflicts of Interest in International Arbitra-

tion

(2014), https://www.ibanet.org/Document/Default.aspx?Document

Uid=E2fe5e72-eb14-4bba-b10d-d33dafee8918 [https://perma.cc/8SB4-7CKQ]

(last visited May 30, 2022).

See id.

Downie, supra note 32, at 25.

Simon Greenberg et al., International Commercial Arbitration: An

Asia-Pacific Perspective (2010), https://www.cambridge.org/core/books/interna-

2022 / Arbitration for Sport 247

and they are adopted directly by the CAS in practice, especially during the

nomination and appointment processes of CAS arbitrators for active cases.

For instance, the appointed arbitrator(s) can include in their official under-

taking, pursuant to S18 of CAS Code, that he or she has conformed with the

conflict-of-interest requirements in the IBA Guidelines.

Another way to alleviate conflict-of-interest issues could be for the

ICAS to appoint renowned arbitrators to sit as a fixed panel on the Appeals

Division. While this solution may be a double-edged sword, wherein ag-

grieved parties can seek to question the independence of the ICAS and the

fixed appointment of the panel for the Appeals Division, this arrangement is

more akin to the political practice of the executive branch’s appointment of

judges with tenure in ordinary courts. Furthermore, this solution of fixing a

few renowned arbitrators can promote uniformity in decisions at the appel-

late level of the CAS,

supporting jurisprudence constante. Further, one could

reconsider the criteria for CAS arbitrators to alleviate prevailing issues per-

taining to the conflicts of interest or institutional independence of the CAS,

such as disallowing CAS arbitrators to sit on any disciplinary tribunals of IFs

or other sport associations. This could mitigate any potential actual or ap-

parent bias. Another solution could be restricting the selection of arbitrators

from CAS’s panel of arbitrators to a narrower pool each time, based on a

“taxi-rank” system of arbitrators.

In any event, while it may be a stretch, it is worth considering the

public-relations angle to wrangle free from allegations of apparent bias. In

ordinary courts, there are contempt-of-court safeguards to ensure that mali-

cious and opportunistic challenges to judges’ independence and impartiality

are contained. Affording arbitrators the equivalent standards of reverence

and respect during the adjudication of cases as judges by instituting certain

contempt of court offenses for arbitrators, especially with sufficient safe-

guards in place, such the IBA Guidelines-compliance, can go a long way

toward alleviating public challenges to the independence and impartiality of

the arbitrators involved and mitigate perceptions of apparent bias.

There is a specific concern on the lack of transparency arising from the

opaque processes by which arbitrators are appointed, as well as the absence

of public annual reports and accounts of the CAS or the ICAS. The ICAS is a

Swiss foundation formed under article 80 of the Swiss Civil Code (the

tional-commercialarbitration/A512F7B067C3CDA639A80E956CD1E9C9 [https://

perma.cc/K3PG-RKC3].

Sarkar Ali Akkas, Appointment of Judges: A Key Issue of Judicial Independence, 16

Bond L. Rev. (2004).

Int’l Cotton Ass’n, ICA Bylaws & Rules (2013).

248 Harvard Journal of Sports & Entertainment Law / Vol. 13

“ZGB”),

pursuant to the Paris Agreement, which creates an “arbitration

institution”, i.e., the CAS, to facilitate the settlement of disputes in the

field of sport.

In general, save for accounting and audit requirements, as-

sociations and foundations formed under Swiss law are provided relatively

wide room to pursue their purposes; as such, there is no legal requirement

for the ICAS or the CAS to publish their annual reports, audited accounts,

or meeting minutes.

Nevertheless, for the purposes of reinforcing the cred-

ibility of the CAS or the ICAS as world’s supreme court for sport, it might

be prudent to further adopt certain transparency or accountability in the

processes by which arbitrators are appointed and selected.

III. Criticism Two: Deficient Consent For Arbitration

The second-most common criticism of the CAS is that parties do not

give adequate consent to submit to CAS’s jurisdiction due to the mandatory

nature of CAS arbitration referral clauses incorporated within matters per-

taining to the Olympic Games and in the regulations of sport governing

bodies. This argument of deficient consent is predicated on the contractual

and consent-based nature of arbitration. Unlike basic accessibility to the

domestic courts of a jurisdiction, parties are obliged to agree to CAS arbitra-

tion proceedings and, by extension, consent to the exclusion of the jurisdic-

tion of their domestic courts in favor of CAS arbitration proceedings.

The

consent to arbitration is especially crucial since arbitral awards are widely

and almost universally recognized and enforced by domestic courts by virtue

of the Convention on the Recognition and Enforcement of Foreign Arbitral

Awards

(the “New York Convention”), providing the arbitration awards

the weight of a binding court decision around the world. That is, arguably,

one of the main reasons that the validity of arbitration clauses is frequently

challenged.

Apart from analyzing the interaction between CAS arbitration and Ar-

ticle 6(1) of the ECHR, this part will also evaluate three main aspects of

SR 210 Swiss Civil Code of 10 December 1907.

See Paris Agreement, supra note 21.

See articles 83a to 83c of the Swiss Civil Code, supra note 77.

See Greenberg et al., supra note 74, at 2, 51.

See Convention on the Recognition and Enforcement of Foreign Arbitral Awards,

opened for signature 10 June 1958, 330 UNTS 3.

See Protocol on Arbitration Clauses, opened for signature 28 July 1924, 27

LNTS 157 (entered into force 28 July 1924); UNCITRAL Model Law on Interna-

tional Commercial Arbitration 1985, GA Res 2205(XXI), UN Doc A/40/17 (21 June

1985) Annex I.

2022 / Arbitration for Sport 249

CAS arbitration that are often overlooked. First, conditions of participation

and mandatory arbitration are commonplace practices in and outside of the

sporting industry and ought not to be rendered invalid under the guises of

“deficient consent”, especially given the mandate afforded to democratically

elected sporting organizations. Second, the issue of consent for cross-border

disputes is often moot when foreign elements within adjudication exist,

thereby incorporating the application of foreign laws and conflict of laws

principles into the said dispute. Third, the jurisdiction of domestic courts is

not entirely excluded, given that arbitrating parties still rely on domestic

laws and the power of ordinary courts for the recognition and enforcement of

foreign arbitral awards.

A. CAS Arbitration and Article 6(1) of European Convention of Human

Rights

Sports arbitration in the CAS is currently mandated by the IOC for

decisions of the IOC and all disputes “arising on the occasion of, or in con-

nection with, the Olympic Games,”

as well as all matters pertaining to the

World Anti-Doping Code involving international-level athletes.

As such,

all NOCs and Ifs, and many national sports governing bodies, especially

those with a presence at the Olympic Games, are also obliged to subscribe to

mandatory arbitration at the CAS in their governing documents, thereby

binding their members to an arbitration agreement by reference at the CAS.

The matter of noles volens arbitration was first raised before the Swiss

Federal Tribunal in the 2007 case of Guillermo Ca˜nas v. ATP Tour,

wherein

it was acknowledged that Ca ˜nas was forced to choose between participating

in a competition and not submitting to arbitral jurisdiction. At the ECtHR

in 2018, Pechstein vehemently argued that the German Speed Skating

Union and ISU monopolize the speed skating industry, and without Pech-

stein conforming to the compulsory requirement to submit disputes to the

CAS, she would not be able to earn a living and practice her discipline at a

professional level.

The ECtHR eventually found that Pechstein’s situation

amounted to a “compulsory arbitration” wherein Pechstein was not free and

unequivocal in her decision to submit to the jurisdiction of the CAS, pursu-

ant to Article 6(1) of the ECHR. While the ECtHR accepted the validity of

Int’l Olympic Comm., supra note 52.

See article 13.2.1 of World Anti-Doping Agency, World Anti-Doping Code

(2015).

See Guillermo Ca ˜nas v. ATP Tour [2006] SFT, 4P.172/2006, 22 March 2007

(Swiss Federal Tribunal).

See Pechstein v. Switzerland, at 109-15.

250 Harvard Journal of Sports & Entertainment Law / Vol. 13

such “compulsory arbitration” clauses due to the harmonization and uni-

formity of decisions taken in the field of sport, the Court held that safe-

guards under Article 6(1) of the ECHR must afforded to the party who did

not give free consent to arbitration.

Notwithstanding the position of the European Court of Human

Rights, there is still much moral debate on the “forced” and “compulsory”

nature of arbitration and the corresponding jurisdiction of the CAS to adju-

dicate disputes of parties who did not consent to CAS arbitration on a free

and voluntary basis. Scholars like Lloyd Freeburn have characterized dispute

resolution in the CAS as a “consent-based form for a non-consensual regula-

tory function,” commiserating with the ECtHR’s decision that athletes

bound to dispute resolution in the CAS, based on arbitration agreements

attached to regulations of sporting organizations and conditions of competi-

tion, were in fact forced.

B. Evaluation of the Practice of Mandatory Arbitration

Notwithstanding the Swiss Federal Tribunal and ECtHR’s determina-

tions that athletes are often faced with the dilemma of signing up to the

jurisdiction of the CAS as a condition of participation or losing the opportu-

nity to earn a living (which findings are primarily limited to Switzerland

and countries in the European Union respectively), the imposition of condi-

tions to participation in sports is not uncommon. Apart from a mandatory

CAS clause, most IFs and NOCs also include, as a condition of participation

in the sport and/or competition, compliance with sports anti-doping rules

under the World Anti-Doping Agency and World Anti-Doping Code.

Most IFs and national sports governing bodies also include conduct rules as

a condition for participation in the sport as well, such as in-field and off-

field conduct, on athletes and sport administrators.

Conditions of partici-

pation in sports imposed by sporting bodies have the effect of not only level-

ing playing fields and ensuring that sporting competition occurs under the

See id. at 96-115.

See Lloyd Freeburn, Power, Legal Authority and Legitimacy in the

Regulation of International Sport 192 (2018).

See World Anti-Doping Agency, World Anti-Doping Code (2015), Art 23.5. See

also World Anti-Doping Agency, Code Compliance, World Anti-Doping Agency

(2015). See also Bj¨orn Hessert, Cooperation and Reporting Obligations in Sports Investiga-

tions, 20 Int’l Sports L.J. 145 (2020).

F´ed´eration Internationale de Natation, FINA Doping Control Rules (DC Rules)

(2014), https://www.fina.org/sites/default/files/fina_dc_rules.pdf [https://perma.cc/

CQ62-VCC8] (last visited May 30, 2022); World Athletics, World Athletics Anti-

Doping Rules (2019).

2022 / Arbitration for Sport 251

same conditions but also ensuring that enforcement of the rules is of the

same standards as well. By mandating that sporting disputes be sent to the

CAS for adjudication, whether at first instance or appeal, a standard enforce-

ment of sporting rules commences; the alternative is giving each domestic

court, in every country, the opportunity to make contrasting decisions on

sporting rules.

In fact, conditions are often imposed in certain established industries

outside of sports, especially in licensing and employment of qualified per-

sons. For example, to be admitted into the legal profession in most jurisdic-

tions, applicants must submit to high ethical requirements and stipulated

conduct in relation to the handling of trust bank accounts and the corre-

sponding internal disciplinary proceedings.

In certain industries, such as

the building and construction industry in the common law jurisdictions,

standard form contracts are typically used by parties, which mandate stan-

dard domestic arbitration processes for dispute resolution.

Compulsory arbitration practice is common in other jurisdictions and

industries. For example, court-annexed arbitration is mandated by statute

and rules of court in certain jurisdictions in America for parties that have

commenced litigation in domestic courts.

Another example is the use of

arbitration clauses in the constitutions of companies which bind members to

mandatory arbitration for disputes pertaining to the operation of the consti-

tution and shareholders’ disputes.

While the deficiency of parties’ consent

in such arbitration practice is still commonly criticized, the mandatory arbi-

See Bruce A. Green, Disciplinary Restrictions on Multidisciplinary Practice: Their

Derivation, Their Development, and Some Implications for the Core Values Debate, 84

Minn. L. Rev. 1115 (2000); Scott McLean, Evidence in Legal Profession Disciplinary Hear-

ings: Changing the Lawyers Paradigm, 28 U. Queensland L.J. 225 (2009).

See Ian H. Bailey et al., Construction Law in Australia (2011);

Surajeet Chakravarty & W. Bentley MacLeod, On the Efficiency of Standard Form Con-

tracts: The Case of Construction (USC CLEO Research Paper, 2004).

Lisa Bernstein, Understanding the Limits of Court-Connected ADR: A Critique of

Federal Court-Annexed Arbitration Programs, 141 U. Pa. L. Rev. 2169 (1993);

Deborah R. Hensler, RAND Corp., Court-Annexed Arbitration in the

State Trial Court System (1984), https://www.rand.org/pubs/papers/P6963.html

[https://perma.cc/LAG3-ATNS]; A. Leo Levin, Court-Annexed Arbitration, 16 U.

Mich. J. L. Ref. 537 (1982); Edgar Allan Lind & John Shapard, Evaluation of

Court-Annexed Arbitration in Three Federal District Courts (1983).

See Joseph Lee, Intra-Corporate Dispute Arbitration and Minority

Shareholder Protection: A Corporate Governance Perspective (2015);

Perry Herzfeld, Prudent Anticipation? The Arbitration of Public Company Shareholder

Disputes, 24 Arb. Int. 297–330 (2008); Christos Ravanides, Arbitration Clauses in

Public Company Charters: An Expansion of the ADR Elysian Fields or a Descent into

Hades?, 18 Am. Rev. Int’l Arb. 371 (2007).

252 Harvard Journal of Sports & Entertainment Law / Vol. 13

tration clauses in the law, regulations, and governing documents are still

often regarded as valid and enforceable, and CAS arbitration clauses in sport

regulatory documents should not be held to a different standard.

While it is arguable that the mandatory submission to the CAS treads

upon one’s right to a fair hearing, pursuant to article 6(1) of the ECHR,

such a mandatory arbitration clause is typically inserted into the regulations

and governing documents of IFs by their legislative actors, who are prima-

rily persons elected by IF member federations. As such, in the examination

of the source of law and legitimacy of such a mandatory arbitration clause,

one must appreciate the legitimacy and democratic mandate in the inclusion

of the CAS clause within the notably private nature of international sports.

Nevertheless, one must also acknowledge present contentions and scholar-

ship pertaining to the democratic deficits present within the organization of

national and international sports.

C. Deficient Consent to Cross-Border Sport Litigation and Conflict of Laws

In any event, high-performing athletes who dispute the exclusive juris-

diction of the CAS based on deficient consent are still bound to meet the

same legal issues in ordinary courts where there are cross-border elements

and foreign laws involved. This is especially the case for high-performing

athletes who face disputes or disciplinary matters pertaining to an IF outside

of their home country.

In such cross-border sport disputes and matters pertaining to the na-

tionalities and laws of different countries, the issue of domicile is not en-

tirely clear. For example, in the International Association of Athletics

Federation (the “IAAF”) Ethics Board’s (now, World Athletics’ Athletics

Integrity Unit) determination that a Kenyan official extorted monies from

Kenyan athletes in 2018, which involved both the application of the law of

Monaco

and Kenyan citizens,

should the Monaco court have jurisdiction

over the adjudication of this dispute or the Kenyan court? And in the deter-

mination of the applicable domicile and substantive law of the matter,

See Freeburn, supra note 88.

World Athletics Constitution (2019), https://www.worldathletics.org/down

load/download?filename=E19e5c43-fc9e-4ff4-a71d-eeeec51a9037.pdf&url

slug=A1%20-%20The%20Constitution [https://perma.cc/SKH6-RY9E] (last vis-

ited May 30, 2022).

IAAF Ethics Board Decision Number: 10/2018 In the matter of David Siya Okeyo

and Joseph I Kinyua and the IAAF Code of Ethics, (2018); IAAF Ethics Board Decision

Number 11/2018 In the matter of David Siya Okeyo and Mr Isaac Mwangi Kamande and

the IAAF Code of Ethics, (2018).

2022 / Arbitration for Sport 253

should Kenyan common law principles apply or should Mon´egasque civil

law? Furthermore, if there are foreign elements in the case, irregular rules on

conflict of laws apply based on the domestic court in question. While there

are trite international conventions on the issue of conflict of laws,

not all

countries are signatories to the said conventions, and the rules applying con-

flict of laws would be rough, befuddling, and tedious.

In such situations, parties would not have consented to the application

of cross-border elements and foreign laws but would have no say in its appli-

cation in the adjudication of their matter. One may then argue that parties

have no say in the application of cross-border elements and foreign laws

because of their citizenship or domicile which pre-determined the applica-

tion of the applicable laws and conflict of laws principles. A counterargu-

ment in support of the mandatory CAS clause is that it is a pre-determined

application of arbitration rules in the CAS attached to the parties’ member-

ship with the respective sporting bodies with the mandatory CAS clause.

Notably, in CAS arbitration, parties are afforded more freedom to

choose the applicable substantive laws. In the Appeals Division, R58 of the

CAS Code determines the substantive law in the stipulated order, primarily

taking into consideration the law chosen by parties or the law of the country

in which the federation is domiciled.

In the latter circumstance, the sub-

stantive law applied by the CAS would be no different from the law that

would be applied by a domestic court adjudicating the appeal. Furthermore,

parties at the CAS are given more freedom to choose the applicable substan-

tive law, especially in the Ordinary Division where parties are free to decide

the substantive law to be applied to the merits of the dispute, authorize the

Panel to decide, or have lacunas filled according to Swiss law.

100

D. The Available Jurisdiction of Domestic Courts for CAS Arbitration

The jurisdiction of domestic courts is not excluded completely in the

adjudication of cases in the various divisions in the CAS. The CAS, like

many other arbitration institutions, must still adhere to minimum standards

of procedural and substantive fairness, or the awards may be set aside by the

domestic court in which the arbitration is located. For all CAS cases, the seat

See The Hague Conference on Private International Law, at Hague Conference

on Private International Law, HCCH: Conventions, Protocols and Principles, https://

www.hcch.net/en/instruments/conventions [https://perma.cc/5M3J-NRPU] (last

visited May 30, 2022).

Court of Arbitration for Sport, supra note 2, at R58.

100

See id. at R45.

254 Harvard Journal of Sports & Entertainment Law / Vol. 13

of arbitration is Lausanne, Switzerland,

101

and the Swiss Federal Tribunal has

jurisdiction to set aside CAS awards which are decided contrary to the re-

quirements under Chapter 12 of the Swiss PIL.

102

For example, CAS awards

can be set aside if the arbitral tribunal was not property constituted, the

decision of the arbitral tribunal is ultra vires, or the award is incompatible

with public policy.

103

While the grounds for arbitration awards to be set

aside are limited and almost never given, setting aside an award is not un-

precedented. The Oberlandesgericht M¨unchen (Higher Regional Court of Mu-

nich) did make a finding,

104

albeit later overturned by the

Bundesgerichtshof,

105

that the CAS award of Pechstein was unenforceable on

the basis that the monopolistic nature of the International Skating Union

was contrary to the German Act against the Restraints of Competition. Ad-

ditionally, in December 2020, the Swiss Federal Tribunal reviewed the arbi-

tral award of the CAS in World Anti-Doping Agency v. Sun Yang & F´ed´eration

Internationale de Natation upon the admission of evidence that the President

of the panel made an inappropriate comment on social media concerning the

Chinese race pursuant to article 190(a) of the Swiss PIL.

106

While there are

limited instances of setting aside an arbitral award, the jurisdiction of do-

mestic courts for arbitration is not completely excluded.

107

Apart from the application to set aside arbitral awards at the domestic

courts where the arbitration occurred, parties are empowered to make appli-

cations for the non-recognition of international arbitral awards at the domes-

tic courts where the international arbitral awards are enforced. Given that

many CAS arbitrations are based on cross-border disputes or parties from

various jurisdictions, i.e., international arbitration,

108

there is also an oppor-

tunity for aggrieved parties to apply to a separate domestic court, apart from

the Swiss Federal Tribunal, where the arbitral awards could be enforced on

grounds that the award should not be recognized under domestic law. Under

101

See id. at R28.

102

See PILA, supra note 24.

103

Id. at Article 190(2)(b), (c) or (e).

104

Oberlandesgericht M¨unchen [Munich Court of Appeal], Az. U 1110/14 Kart, 15

January 2015.

105

See Mutu & Pechstein v. Switzerland.

106

CAS 2019/A/6148 World Anti-Doping Agency v. Sun Yang & F´ed´eration Interna-

tionale de Natation (award of 28 February 2020).

107

See Antonio Rigozzi, Challenging Awards of the Court of Arbitration for Sport, 1

J. Int’l Dispute Settlement 217–65 (2010).

108

Most CAS awards are rendered under chapter 12 of the Swiss PILA, supra note

24, as there is usually one party that had, at that time when the arbitration agree-

ment was entered into, neither its domicile nor its habitual place of residence in

Switzerland. See also article 176(1) of the PILA.

2022 / Arbitration for Sport 255

Chapter 5 of the New York Convention, parties may challenge the enforce-

ability of CAS awards where the award is expected to be enforced, giving

domestic courts authority and jurisdiction over CAS cases adjudicated in the

CAS in Lausanne, Switzerland. Most prominently, the New York Conven-

tion provides that the recognition and enforcement of foreign arbitration

awards can be refused if a domestic court finds that the subject matter of the

award is not capable of settlement by arbitration under the laws of the coun-

try or if the recognition or enforcement of the award would be contrary to

the public policy of the country.

109

The ability to set aside or challenge the recognition and enforcement of

an arbitration award essentially affords domestic courts certain power and

authority over domestic and foreign arbitration proceedings involving their

domiciled residents or organizations. At the outset, general grounds to set

aside arbitration awards or challenges to the recognition or enforcement of

arbitration awards are discretionary, whether it is based on the PILA,

110

the

New York Convention,

111

or other uniform laws on arbitration such as the

United Nations Commission on International Trade Law Model Law.

112

Fur-

thermore, domestic courts are generally free to make the finding on whether

the award is contrary to the public policy of the country or incapable of

settlement by arbitration regardless of whether parties raise the argument in

court, affording domestic courts oversight over arbitration awards that

come before them.

113

Circumstances in which domestic courts have the discretion and power

to set aside an arbitral award or refuse the recognition and enforcement of an

award on the basis that the award is contrary to the public policy of the

country commonly involve fraud or corruption,

114

patent illegality,

115

a find-

109

See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, supra

note 81.

110

See PILA, supra note 24.

111

See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, supra

note 81.

112

See UNCITRAL Model Law, supra note 82.

113

See Article V(2) of the Convention on the Recognition and Enforcement of Foreign

Arbitral Awards, supra note 81 (“Recognition and enforcement of an arbitral award

may also be refused if the competent authority in the country where recognition and enforce-

ment is sought finds that . . . .”) (emphasis added); see also Article 36(1)(b) of UNIC-

TRAL Model Law, supra note 82, (“Recognition and enforcement of an arbitral

award, irrespective of the country in which it was made, may be refused only if the

court finds that . . . .”) (emphasis added).

114

See International Arbitration Act (Cap. 143A, 2002 Rev Ed Sing), at 24.

115

See Oil & Natural Gas Corp. v. Saw Pipes Ltd. (2003) 5 SCC 705; Venture

Global Engineering v. Satyam Computer Services (2008) 4 SCC 190 at 19, 21.

256 Harvard Journal of Sports & Entertainment Law / Vol. 13

ing that the award is “wholly offensive to the ordinary reasonable and fully

informed member of the public,”

116

or awards which are “so unfair and

unreasonable as to shock the conscience of the court.”

117

The use of the

ground of public policy to set aside or refuse recognition and enforcement of

arbitral awards “can never be exhaustively defined” and is unique to each

country.

118

For example, the domestic courts in Indonesia interpret the justi-

fication of public policy violations very widely to refuse the recognition and

enforcement of awards which “endanger the national interests of Indonesia

which includes the local economy” or violate the sovereignty of Indonesia.

119

While it is not universal practice to interpret the ground of public policy as

widely as Indonesia does, one can appreciate the potential of the power af-

forded to domestic courts, even if adjudications are submitted exclusively to

an arbitral tribunal , like the CAS. It is nevertheless admitted that in Swit-

zerland, there has been only one award which has been annulled for non-

compliance with public policy since 1989, despite numerous attempts.

120

2012, the Swiss Federal Tribunal determined in Matuzelum v. FIFA that the

threat of an unlimited occupation ban arising from the FIFA Disciplinary

Code could be a “grave violation of privacy” and thereby contrary to public

policy pursuant to Article 190(2)(e) of the Swiss PILA.

121

Furthermore, domestic authorities have the power to determine the na-

ture of disputes which are “incapable of settlement by arbitration” at the

stage where domestic courts are used to challenge the recognition and en-

forcement of foreign arbitral awards, wherein the applicable law governing

arbitrability of the award will not be determined by the substantive law of

the arbitration agreement but the law where the award is intended to be

enforced.

122

Such matters determined by domestic authorities to be “incapa-

ble of settlement by arbitration” will then render the arbitration clause in-

valid and deny the exclusion of the jurisdiction of domestic courts. Many

countries deem certain fixed matters not arbitrable and keep their lists of

subject matter arbitrability non-exhaustive to cater to public interest-related

116

See PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank [2007] 1 SLR 597.

117

See McDermott Int’l Inc. v. Burn Standard Co Ltd. (2006) 11 SCC 181.

118

See Deutsche Schachtbau v. National Oil [1987] 3 WLR 1023, p 1035D.

119

Astro Group v. Lippo Group (2009) CJDC 05/Pdt.Arb.Int/2009, 28 October

2009 (Central Jakarta District Court), upheld in Astro Group v. Lippo Group (2010)

01/K/Pdt.Sus/2010, 24 February 2010 (Supreme Court of Indonesia).

120

See Rigozzi, supra note 107; see also Felix Dasser, International Arbitration and

Setting Aside Proceedings in Switzerland: A Statistical Analysis, 25 ASA Bull. 444

(2007).

121

See SFT 138 III 322.

122

Bernard Hanotiau, The Law Applicable to Arbitrability, 26 SAcLJ 874 (2014).

2022 / Arbitration for Sport 257

issues which may arise.

123

In any event, there are already certain trite aspects

pertaining to sport which are already non-arbitrable, such as the non-arbi-

trability of criminal conduct, which excludes CAS jurisdiction over matters

such as match-fixing conduct in sports.

In toto, the compulsive submission of sport disputes to CAS arbitration

does not necessarily exclude the jurisdiction of domestic courts. For instance,

domestic courts have the responsibility of adjudging challenges to CAS

awards, such as attempts to set aside or challenge the recognition and en-

forcement of awards. It is admitted that this is a theoretic point, wherein in

practice, domestic courts have infrequently overturned or failed to recognize

a CAS award, or arbitral awards in general,

124

when sporting sanctions are

involved rather than financial ones. This point, nevertheless, comes with the

practical possibilities of invoking of the court’s jurisdiction over the recogni-

tion of CAS awards, should it see fit to refuse enforcement or set aside the

said arbitral awards.

IV. Criticism Three: The Limited Contractual Legitimacy of the

Court of Arbitration for Sport

The third and final criticism evaluated in this paper is the reproach

that the CAS has limited contractual legitimacy to adjudicate disputes as

the supreme authority in sport, especially since CAS arbitration tends to

create jurisprudence above and beyond the contractual mandate of parties.

Scholars such as Lloyd Freeburn have argued that the CAS has also adopted

practices extending beyond the contracting intentions of parties under the

guises of “sport’s consistency imperative,” or jurisprudence constante, as the

judicial authority in sports, in the development of international sports law,

or lex sportiva, which treads upon the legality and contracting legitimacy of

the arbitration tribunal hearing the matter. The CAS has not only behaved

as the adjudicator of private, contractual disputes between parties, but also

endeavored to develop a coherent jurisprudence within lex sportiva by adopt-

ing precedents and applying principles from past cases.

125

It is undisputed that the CAS has developed its structure and jurispru-

dence to be the “world’s supreme court in sport” and contributes massively

to the development of lex sportiva.

126

The court-like nature of the CAS, espe-

cially the functioning of the Appeals Division, has brought into question the

123

Id. at 879-80.

124

See Dasser, supra note 120.

125

See CAS 2002/O/373 Canadian Olympic Committee v. International Olympic Com-

mittee, Award of 18 December 2003, 14.

126

See Duval, Lex Sportiva, supra note 16.

258 Harvard Journal of Sports & Entertainment Law / Vol. 13

legitimacy of the quasi-judicial institution, given that the CAS is, essen-

tially, an arbitral tribunal that involves mere private, contractual transac-

tions between parties.

127

Furthermore, the processes instituted for the

appointment of ICAS members are not wholly democratic, putting into

question the legitimacy of the authority of the ICAS and of the appointment

of CAS arbitrators and presidents of the CAS Divisions by the ICAS.

The question herein is whether the limited and private contractual le-

gitimacy that the CAS beholds is sufficient for the CAS to act as a quasi-

judicial global body for sport to produce lex sportiva. Two main points will

be made in this part. First, there are precedents that private jurisprudence

and law can contribute to the development of international law, thereby

making this issue of the limited contractual legitimacy moot. Secondly, un-

like the development of other private law, lex sportiva consists largely of

public law principles, such as criminal and administrative law, and there-

fore, the development of lex sportiva in CAS arbitration need not be limited

to the contractual nature of the issue submitted to the CAS panel.

A. Private Sources of Law Accepted as International Law

International law is traditionally made up of international conventions,

international custom, “general principles of law recognized by civilized na-

tions,” judicial decisions, and “teachings of the most highly-qualified publi-

cists of the various nations.”

128

As such, the limited and private nature of

the legitimacy afforded to the CAS, and the development of lex sportiva by

private arbitration in the CAS, often invites criticisms of CAS authority to

create lex sportiva and the emerging global body of law and jurisprudence in

sports. However, international law has increasingly been recognized to be

heavily influenced by the development in private law

129

and the develop-

ment of international jurisprudence found in arbitration.

130

Lex sportiva is no

exception.

Scholarly writing often analogizes the development of lex mercatoria

with the growth of lex sportiva, as both areas of law and jurisprudence are

127

See Freeburn, supra note 88, at 189-95.

128

Statute of International Court of Justice, art 38(1).

129

See Ralf Michaels, The True Lex Mercatoria: Law Beyond the State, 14 Ind. J.

Global Legal Stud. 447 (2007); Duval, Lex Sportiva, supra note 16.

130

See Hersch Lauterpacht, Private Law Sources and Analogies of In-

ternational Law: With Special Reference to International Arbitration

(2002).

2022 / Arbitration for Sport 259

established from private sources of law.

131

Lex mercatoria is the well-estab-

lished body of international commercial law that has developed within the

domain of private commercial activities based on customs and arbitral

awards

132

and is universally accepted as international, as crystallized in pre-

sent commercial conventions and national laws.

133

While lex mercatoria is

made up of customs and principles established from centuries worth of com-

mercial practice, the source of law of this universally recognized body of law

is not public law, but private. Accordingly, it may be moot to argue that the

limited and private nature of the contractual legitimacy of the CAS ought to

restrict the adjudicative power of CAS arbitration as a source of jurispru-

dence for the development of lex sportiva.

B. The Public Law Elements of Lex Sportiva

Unlike lex mercatoria, lex sportiva is not made up of exclusively private

law,

134

which may annul the purported need for private consent in the appli-

cation and development of lex sportiva. Public law principles refer to the

aspects of law within society that primarily govern the relationship between

individuals and government, and the relationships between specific individ-

uals within society, such as constitutional law, administrative law, and crim-

inal law.

Lex sportiva also consists of sports regulation and disciplinary measures

such as on-field and off-field conduct and sports anti-doping regulations and

sanctions. These aspects of lex sportiva are disciplinary in nature, and the

tribunals involved are empowered with seemingly quasi-criminal power to

issue “penal” punishments

135

that affect the livelihoods of professionals in-

131

Leonardo V. P. de Oliveira, Lex Sportiva as the Contractual Governing Law, 17

Int. Sports L.J. 101–16 (2017).

132

See CAS 98/200, AEK Athens and SK Slavia Prague / Union of European Football

Associations (UEFA), Award of 10 August 1999 (‘AEK UEFA Award’) [156], cited

in Matthew J. Mitten & Hayden Opie, “Sports Law”: Implications for the Development

of International, Comparative, and National Law and Global Dispute Resolution, 85 Tul.

L. Rev. 269 (2010).

133

Most of the international commercial and arbitration conventions today are

based on principles in lex mercatoria. Examples of such are Convention for the Unifica-

tion of Certain Rules Relating to International Carriage by Air, opened for signature 12

October 1929, 137 LNTS 11 (entered into force 12 October 1929), and the Conven-

tion on the Execution of Foreign Arbitral Awards, opened for signature 26 September

1927, 92 LNTS 301 (entered into force 26 September 1929). See Convention on the

Recognition and Enforcement of Foreign Arbitral Awards, supra note 81.

134

See Lorenzo Casini, The Making of a Lex Sportiva by the Court of Arbitration for

Sport, 12 German L.J. 1317, 1327-28 (2011).

135

See Straubel, supra note 31, at 1261.

260 Harvard Journal of Sports & Entertainment Law / Vol. 13

volved and are vested with the authority to decide a case based on a standard

higher than a civil case. Pursuant to Article 3.1 of the World Anti-Doping

Code, the burden of proof to be established for cases not involving positive

adverse analytical findings is “comfortable satisfaction”, a standard higher

than most civil law cases (balance of probabilities) but lower than criminal

cases (beyond a reasonable doubt).

136

The standard for other non-doping dis-

ciplinary tribunals seems to also be “comfortable satisfaction”, as seen in the

disciplinary cases of extortion by the International Association of Athletics

Federation’s Ethics Board (now, the World Athletics Athletics Integrity

Unit),

137

as well as the FIFA Regulations on the Status and Transfer of

Players.

138

Lex sportiva in the CAS has also been established with reverence to pub-

lic law principles such as due process and procedural fairness. The CAS itself

has highlighted the similarities of the roles of sport governing bodies and

governmental bodies in their regulatory, administrative, and sanctioning

roles, and it has upheld the regulatory power and authority of sport gov-

erning bodies.

139

The Swiss Federal Tribunal has not hesitated to annul deci-

sions by the CAS with procedural defects.

140

As such, the argument that the CAS has no contractual legitimacy

based on defective consent has less merit given that private consent is usu-

ally not required by the individuals involved in the application of public law

principles. Such public law principles apply by virtue of the parties’ mem-

bership and involvement in the respective sport governing bodies and the

respective application of public law principles in the jurisdiction where the

said sport governing bodies are domiciled. The public nature and effect of

CAS decisions is also one of the reasons why the CAS is moving towards

more public arbitration hearings for hearings at the Appeals Division, pur-

suant to amendments to the CAS Code made in 2019.

141

The consideration hereinafter is to what extent the CAS will hear argu-

ments based on substantive public law principles, rather than just procedu-

ral ones, given the generally private nature of arbitration. Unlike

commercial arbitration, the CAS does not necessarily exclude itself from cer-

tain adjudication, such as the hearing of administrative matters on bank-

136

World Anti-Doping Agency, supra note 84.

137

See IAAF Ethics Board Decision Number: 10/2018, supra note 97; IAAF

Ethics Board Decision Number 11/2018, supra note 97.

138

See Article 19 of FIFA, FIFA Disciplinary Code (2019).

139

See AEK UEFA Award, supra note 132, at 58.

140

See Ca˜nas v. ATP, which annulled the award in Guillermo Canas v. ATP; see

also RFC Seraing v. FIFA (SFT).

141

See Court of Arbitration for Sport, supra note 2, at R57.

2022 / Arbitration for Sport 261

ruptcy or family law disputes; the scope of disputes before the CAS widens

to include adjudication on such matters involving more substantive public

law principles. Inevitably, panels in the CAS inevitably must determine to

what extent they will adjudicate under the auspices of such public law prin-

ciples. The CAS Panel hearing the matter of the gender eligibility policies of

World Athletics in a case in 2018 subtly alluded to this difficulty when

matters of human rights are involved.

142

Eventually, the CAS Panel deter-

mined that it was limited in its findings due to the scope of the parties’

claims, and it had no jurisdiction to address issues outside the said scope.

143

The understanding thereinafter is that the CAS is akin to an international

arbitration body that adjudicates issues which are brought before it and

ought to be able to decide on human rights issues brought before it,

144

and

its jurisdiction to decide on any matter is highly dependent on the parties

bringing the said claim before it.

The above example is illustrative of the interesting interaction between

substantive public law principles and private arbitration within sports law,

which deserves further and wider discussion beyond the scope of this paper.

Nevertheless, on the issue of human rights in international sports law, the

approach might be not only to rely on the adjudication process or the judici-

ary to adopt human rights standards, but also for sports legislators to em-

body or incorporate the relevant standards in the sporting regulations in

order for human rights to be considered within any adjudication process. For

example, even though World Athletics publicly stated that it is a private

body and not bound by fundamental human rights instruments,

145

there are

constitutional provisions on equal treatment and non-discrimination that

parties are free to bring before the tribunal in the CAS.

146

The trend towards

adopting human rights standards in sporting regulation is a good way to

ensure substantive public law principles could be adjudicated before and

determined by the CAS.

147

Nevertheless, regardless of how much of a mandate that the CAS has to

adjudicate disputes and disciplinary matters, little can be done to develop

substantive jurisprudence in the CAS unless cases (including past cases) are

142

CAS 2018/O/5794,5798 Mokgadi Caster Semenya and Athletics South Africa v.

International Association of Athletics Federations, Award of 30 April 2019.

143

See id. at 625.

144

See Straubel, supra note 31.

145

World Athletics, IAAF Publishes Briefing Notes and Q&A on Female Eligibility

Regulations (2019), https://www.worldathletics.org/news/press-release/questions-an-

swers-iaaf-female-eligibility-reg [https://perma.cc/U3NV-LN8A].

146

See World Athletics Constitution, supra note 96.

147

See FIFA, FIFA Human Rights Policy (2017).

262 Harvard Journal of Sports & Entertainment Law / Vol. 13

made more accessible to parties. It is impossible to create uniform jurispru-

dence without access to prior cases and practices.

148

It was reported that only

43 awards were published among approximately 600 total awards rendered

in 2019.

149

At present, awards at the CAS Ordinary Division are still not

made public unless all parties or the Ordinary Division President decide

otherwise.

150

Furthermore, although awards at the CAS Appeals Division are

generally made public pursuant to 2019 CAS Code reform,

151

both parties

may agree to keep the award from being made public.

152

Awards at the CAS

Appeals Division, especially matters pertaining to disciplinary nature, which

costs are completely borne by the CAS, ought to be made public. If there are

considerations to protect athletes in certain circumstances, it may be more

prudent to consider redacting information and details out from the award,

instead of not publishing the award. The principles and interest to publish

arbitral awards are aptly illustrated in the English Court of Appeal case of

Manchester City Football Club Ltd. V. The Football Association Premier League

Ltd. & Ors,

153

wherein the court upheld the lower court decision to publish

sports arbitral decisions on the basis that there is a “public interest in ensur-

ing appropriate standards of fairness in the conduct of arbitration,” which

will have to be weighed suitably with parties’ interest in preserving the

confidentiality of the original arbitration and subject-matter.

V. Conclusion

This paper has endeavored to unveil the major criticisms of the CAS by

breaking down the arguments and comparing the prevailing practices of the

CAS with other arbitration institutions and ordinary courts. It has addressed

the commonplace arguments that the CAS lacks financial and institutional

independence, the “consent” athletes have provided for arbitration in the

CAS under sport regulations is deficient, and the CAS’s contractual legiti-

macy is limited. The authors argued that the present institutional structure

of the ICAS provides an adequate layer of governance to address arguments

148

See Annie Bersagel, Is There a Stare Decisis Doctrine in the Court of Arbitration for

Sport? An Analysis of Published Awards for Anti-Doping Disputes in Track and Field, 12

Pepp. Dispute Resolution L.J. 189 (2012).

149

Inside the Games, The Inner Workings of the CAS, Independence and Sun Yang,

Inside the Games (1591298100), https://www.insidethegames.biz/articles/

1094950/what-going-to-cas-really-means [https://perma.cc/6EBN-686P] (last vis-

ited May 30, 2022).

150

See Court of Arbitration for Sport, supra note 2.

151

See id.

152

See id.

153

See EWCA Civ 1110.

2022 / Arbitration for Sport 263

against the financial and institutional independence of the CAS. Further-

more, mandatory arbitration and other conditions of participation are com-

mon practices in other industries and should not be struck down by virtue of

the “deficient consent” encompassed therein. It is prudent to conclude that

sport arbitration in the CAS provides parties in cross-border and transna-

tional disputes considerably more decision-making power compared to par-

ties being subjected to the jurisdiction and conflict of laws principles of

foreign courts. Moreover, the de facto power of the CAS is not only based on

private contractual law, but also significantly based on public law principles,

which considerably negates the argument that the CAS has limited contrac-

tual legitimacy to create jurisprudence and general principles of law within

lex sportiva.

This paper demonstrated that the structure and practices of the CAS

are not fundamentally defective per se, which is the position often propagated

by aggrieved parties seeking to overturn a disappointing award by the CAS.

It is admitted that the system of cross-border dispute resolution via CAS

arbitration is imperfect, and there will always be room made to refine its

processes and buttress the authority of CAS as the “world’s supreme court

for sport.” It is also pertinent to keep in mind that sport arbitration at a

central institution such as the CAS is the best alternative available to sport

litigation in domestic courts, which will only garner inconsistent and unpre-

dictable jurisprudence and the application of general principles. The Swiss

Federal Tribunal

154

and ECtHR

155

have mentioned that there is no other

viable alternative to the CAS to resolve international sports-related disputes

quickly and effectively.

While there are creative recommendations on the creation of an inter-

national convention and global sport law body to legitimate the establish-

ment of lex sportiva and the use of a uniform forum for sport dispute

resolution, there is still little consensus among national governments about

how to regulate a principally private industry such as sport. As such, it may

be prudent to work within the bounds of private arbitration at the CAS for

sport dispute resolution and refine the processes over time in the pursuit to

perfect an imperfect system.

This paper has also stipulated various areas within which the structure

and processes of the CAS can be improved, whether to buttress its credibil-

ity among its stakeholders in sports or reinforce its position as the world’s

supreme court for sports. For example, the CAS could expressly adopt the

IBA Guidelines from existing commercial arbitration practices for concerns

154

See Lazutina v. IOC (SFT).

155

See Pechstein v. Switzerland.

264 Harvard Journal of Sports & Entertainment Law / Vol. 13

arising from conflicts of interests of arbitrators, or it could even consider

fixing a strict panel of arbitrators for the Appeals Division, akin to the prac-

tice of the U.S. Supreme Court, to allow for more uniform decisions and

alleviate issues of conflict of interests. Further, the credibility of the CAS

could also be buttressed by being more transparent about its arbitrator ap-

pointment processes, whether at the stage of appointment onto the panel of

arbitrators or the appointment of the President or Sole Arbitrator at the

Appeal Division. Finally, there are also contemporaneous concerns about the

lack of diversity of the appointment of arbitrators in terms of both gender

and geographical representation,

156

which could be addressed better by the

CAS in order to maintain its legitimacy as the supreme court for interna-

tional sports.

157

156

In a report by the International Council for Commercial Arbitration, it was

reported that, as of 15 June 2021, 90% of the last 80 arbitration appointments were

male. See International Council for Commercial Arbitration, Report of the Cross-Insti-

tutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (2020),

https://cdn.arbitration-icca.org/s3fs-public/document/media_document/ICCA-Re

port-8-Gender-Diversity_0.pdf [https://perma.cc/MUM8-NW3Y] (last visited May

30, 2022). See also other reports at Arbitrator Diversity at the Court of Arbitration for

Sport Part One, Morgan Sports L. (2021), https://www.morgansl.com/en/latest/ar-

bitrator-diversity-court-arbitration-sport [https://perma.cc/M6FW-4JV6] (last vis-

ited May 30, 2022); Arbitrator Diversity at the Court of Arbitration for Sport - Part Two,

Morgan Sports L. (2021), https://www.morgansl.com/en/latest/arbitrator-diversity-

court-arbitration-sport [https://perma.cc/T3KE-DRGC]; Grit Hartmann, Tipping

the Scales of Justice: The Sport and its “Supreme Court” (2021), https://www.playthe

game.org/media/10851569/Tipping-the-scales-of-justice-%E2%80%93-the-sport-

and-its-supreme-court.pdf [https://perma.cc/BQ3X-WDKH] (last visited May 30,

2022).

157

For the existing debates on gender diversity in international commercial arbi-

tration, see International Council for Commercial Arbitration, supra note 156.

Of Disaster Girl and Everydays: How NFTs Invite

Challenging Copyright Assumptions Around

Creator Support

Stacey M. Lantagne*

Abstract

Most of the successful monetization of internet fame through memes has

historically occurred through offline merchandising: books, T-shirts, and

other sponsorships. However, the rise of NFTs has created an entirely new

revenue stream around memes. The little girl in the Disaster Girl meme

sold an NFT of the meme’s famous photograph for over $400,000. She was

shocked when she learned that NFTs could provide a way to capitalize on

her internet fame.

Previous legal analyses of memes have understood monetization within the

traditional copyright structure of licensing and assumed that copyright

holders would seek to restrict the meme’s use on the internet without con-

sent or payment. NFTs have stepped outside the traditional underpinnings

of copyright to reimagine how owning and monetizing creativity work in

two important ways: (1) Where copyright law would compensate only the

photographer and leave the subject of the meme with no intellectual prop-

erty rights, NFTs view the subject of the meme as the “owner” entitled to

compensation; and (2) NFTs do not seek to control reproduction and distri-

* Professor of Law, Western New England University School of Law. The author

wishes to thank the participants of the Franklin Pierce Center of Intellectual

Property Academic Roundtable – Works In Progress and the University of

Mississippi Faculty Writing Groups for helpful comments and suggestions. The

author is also grateful for the University of Mississippi School of Law Summer

Research Grant and Western New England University School of Law Summer

Research Grant that enabled this article.

266 Harvard Journal of Sports & Entertainment Law / Vol. 13

bution of the meme, but rather encourage such behavior to increase the

value of the underlying meme.

Since the invention of the internet, legal commentators and creative stake-

holders have endlessly debated whether and to what extent copyright law

should be adjusted for the internet. The rise of NFTs has answered those

questions by moving away from the traditional legal understanding of where

value lies in favor of endorsing the internet’s understanding of value: that

there can be value in virality, and that value can be recognized outside of the

law’s definition of copyright-holder. This Article examines the NFT phe-

nomenon’s departure from copyright norms and concludes that NFTs pre-

sent an opportunity to reconsider how we think about ownership and

scarcity in valuing creativity.

2022 / Of Disaster Girl and Everydays 267

Table of Contents

I. Introduction ....................................... 268

II. Monetizing Memes .................................. 270

III. The Arrival of Non-Fungible Tokens ................ 273

IV. NFTs, Memes, and Copyright Law .................... 276

A. Scarcity vs. Virality ................................ 285

V. Envisioning a New Way of Thinking About Creative

Value ............................................... 291

268 Harvard Journal of Sports & Entertainment Law / Vol. 13

I. Introduction

Non-fungible tokens, or NFTs, have taken the world by storm. Last

year, sales of NFTs increased by over 21,000% over the previous year.

De-

spite the seeming ubiquity of these new assets, much confusion exists as to

what they are, not least among the people purchasing them. As the govern-

ment struggles to decide how to regulate NFTs,

online communities are

trading them and developing their own understandings of what NFTs are.

This Article focuses on a small subculture within the NFT economy:

the auctioning of meme NFTs. Most of the successful monetization of in-

ternet fame through memes has historically occurred through offline mer-

chandising, such as books, T-shirts, and other sponsorships.

However, the

rise of NFTs has created an entirely new revenue stream around memes. For

instance, the little girl who appears in the Disaster Girl meme sold an NFT

of the meme’s famous photograph for over $400,000.

She was shocked

when she learned that NFT’s could give her a way to capitalize on her in-

ternet fame.

Prior to the rise of NFTs, legal analyses of memes understood possible

monetization within the traditional copyright structure of licensing,

whereby those wishing to use the meme would request authorization from

its owner in exchange for a fee.

By conditioning use of a creative work on

the copyright holder’s permission, licensing operates from a starting point of

See Marco Quiroz-Gutierrez, Bored Apes and CryptoPunks Help Jolt NFT Market to

over 21,000% Growth and $17.6 Billion in Sales Last Year, Fortune (Mar. 10, 2022,

2:42 AM), https://perma.cc/H6TN-6LA4.

See Jessica Rizzo, The Dune NFT Fiasco Is the Least of Crypto’s Legal Worries,

Wired (Jan. 19, 2022, 7:00 AM), https://perma.cc/HTB3-ARQD.

Taylor Lorenz, Memes Are Becoming Harder to Monetize, The Atlantic (May 31,

2018), https://perma.cc/HR7G-LL3E.

Nicole Lyn Pesce, ‘Disaster Girl’ Makes over $430,000 Selling the NFT of Her

Meme, MarketWatch (Apr. 30, 2021, 10:30 AM), https://perma.cc/ND8H-

WT4S.

Id.

See, e.g., Terrica Carrington, Note, Grumpy Cat or Copy Cat? Memetic Marketing

in the Digital Age, 7 Geo. Mason J. Int’l Com. L. 139, 158 (2016) (analyzing the

market of memes as one of licensed advertising); David Tan, Digital Memes, Fair Use,

and the First Amendment, 24 J. Internet L. 1, 26 (2021) (analyzing the monetization

of a meme through licensed merchandising); Cathay Y. N. Smith & Stacey

Lantagne, Copyright & Memes: The Fight for Success Kid, 110 Geo. L.J. Online 142,

158 (2021) (discussing generally the alleged infringement of a meme commercially

exploited through licensing fees); see also Furie v. Infowars, LLC, 401 F. Supp. 3d

952, 975-76 (C.D. Cal. 2019) (discussing the market of the meme in question as

licensing opportunities); Griner v. King, No. 21-CV-4024 CJW-MAR, 2021 WL

2022 / Of Disaster Girl and Everydays 269

enforced scarcity.

Therefore, in the pre-NFT paradigm, licensing a meme

presupposed the ability to restrict its presence absent consent and/or pay-

ment. Because memes were – and are – defined by their virality online,

they

could only realistically be restricted in the offline world, so this was mainly

where they were licensed.

NFTs, however, have stepped outside the traditional underpinnings of

in two important ways: (1) Where copyright law would compensate only the

photographer and leave the subject of the meme with no intellectual prop-

erty rights, NFTs view the subject of the meme as the “owner” entitled to

compensation; and (2) NFTs do not seek to control any reproduction or

distribution of the meme, but rather encourage such behavior as to increase

the value of the underlying meme.

Since the invention of the internet, legal commentators and creative

stakeholders have endlessly debated whether and to what extent copyright

law should be adjusted for the internet.

The rise of NFTs has answered

those questions by moving away from the traditional legal understanding of

where the value of a creative work lies and instead endorsing the internet’s

understanding of value: giving meme ownership to the subject of the meme

and recognizing that the value of the meme rests in its unrestricted prolifer-

ation online. So, in the auctions of meme NFTs like Bad Luck Brian and

Disaster Girl, the people depicted in the memes minted the NFTs and initi-

ated the auctions, not the people who took their famous photographs.

The

popularity of a given meme also seems to increase the value of the meme’s

5106047, at *1 (N.D. Iowa W. Div. Oct. 20, 2021) (discussing the market of the

meme in question as licensing opportunities).

See Kevin Roose, Buy This Column on the Blockchain!, N.Y. Times (June 30,

2021), https://perma.cc/J4KZ-RF94.

See Taylor Locke, Elon Musk Reposted this 28-Year-Old’s Meme

—

and Then It Sold

as an NFT for Nearly $20,000 in Just 2 Days, CNBC (Oct. 22, 2021, 5:38 PM),

https://perma.cc/66VN-96WZ (“[M]emes are permissionless . . . .”) [hereinafter

“Elon Musk”].

See, e.g., Robert L. Shaver, Copyright Law in the Digital Age, 49 Advocate 17

(2006); Susanna Monseau, Fostering Web 2.0 Innovation: The Role of the Judicial Inter-

pretation of the DMCA Safe Harbor, Secondary Liability and Fair Use, 12 J. Marshall

Rev. Intell. Prop. L. 70, 75 (2012); Marketa Trimble, The Multiplicity of Copyright

Laws on the Internet, 25 Fordham Intell. Prop. Media & Ent. L.J. 3 39 (2015);

Brad Frazer, Recent Developments in Internet Law, 50 Advocate 26 (2007); Lateef

Mtima, Whom the Gods Would Destroy: Why Congress Prioritized Copyright Protection

over Internet Privacy in Passing the Digital Millennium Copyright Act, 61 Rutgers L.

Rev. 627 (2009).

See Zach Sweat, Scumbag Steve NFT Sells at Auction for Over $57,000, Know

Your Meme News (Mar. 15, 2021, 6:38 PM), https://perma.cc/4GMK-A525 (listing

270 Harvard Journal of Sports & Entertainment Law / Vol. 13

NFT.

For instance, when Elon Musk tweeted out Eva Beylin’s meme, the

increased virality helped her sell the NFT for almost $20,000.

Their diver-

gence means that no one knows what to do with copyright and NFTs – and

that makes them exciting.

This Article examines the NFT phenomenon’s departure from copy-

right norms and assesses whether its evaluation of ownership and remunera-

tion has any lessons for the future of digital copyright law. It specifically

focuses on how NFTs have treated memes to provide insight into how com-

munities around NFTs understand their value. Part II begins with an exami-

nation of the historical challenges around monetizing memes and how

memes have been licensed in the offline world. Part III turns to the develop-

ment of NFTs, discussing what they are and how they have been used. Part

IV analysis the ways in which NFTs challenge our traditional thinking

around copyright, particularly questions of ownership and scarcity. Finally,

Part V imagines how we might accept NFTs’ invitation to rethink how we

support creativity.

II. Monetizing Memes

One of the most challenging questions to answer about the copyright-

ability of memes is definitional: what qualifies as a meme in the first

place?

There is no single, agreed-upon definition. “Even websites dedi-

cated to keeping a scholarly historical record of memes, like Know Your

Meme, do not define the term.”

Some people use the word “meme” to

refer to a “specific subset of internet behavior that involves pasting captions

onto other people’s photos. The catalog on Know Your Meme . . . in-

clude[es] basic caption manipulation as well as viral sensations with more

complicated histories.”

Merriam-Webster defines the term as “an amusing

or interesting item (such as a captioned picture or video) or genre of items

meme NFTs being “sold by their creators or the individuals seen in the memes

themselves”); Pesce, supra note 4.

See 7 Classic NFT Memes that Sold for A Lot of Money, NFTICALLY (Feb. 16,

2022), https://perma.cc/2G68-JKQW (praising NFT memes because “[m]emes are

an important part of internet culture”).

See “Elon Musk”, supra note 8.

See Stacey M. Lantagne, Famous on the Internet: The Spectrum of Internet Memes and

the Legal Challenge of Evolving Methods of Communication, 52 U. Rich. L. Rev. 387,

389 (2018).

Id.

Lantagne, supra note 13, at 389.

2022 / Of Disaster Girl and Everydays 271

that is spread widely online especially through social media.”

The

Wikipedia entry of “meme” defines it as “a concept that spreads rapidly

from person to person via the Internet, typically as a form of humor.”

consistent quality of everything deemed a meme is replicability.

A meme,

at heart, must be replicated.

This has made the monetization of memes online challenging. Tradi-

tional copyright law considers monetization a quality of scarcity: people will

pay to obtain something they cannot get anywhere else.

Since a meme is

the opposite of scarce, finding a way to monetize meme-dom flummoxed

many. For most of the history of the internet, the owner of a meme who

wanted to make money from it had to license the meme in “traditional”

ways by putting it into the tangible physical world. This “fixed” the meme

according to how copyright law traditionally viewed a creative work: as in-

tellectual property physically embodied in a book, or a board game, or a

calendar.

So, the owner of Grumpy Cat made money with books and

stuffed animals.

The owner of Success Kid licensed the image for use in

advertising.

This offline merchandising was easier for some people to accomplish

than others. To license a meme, one had to own the copyright of the under-

lying work, such as the photograph, that became the meme. Copyright own-

ership attaches to the creator of a work, so the owner of a photograph is the

photographer. Accordingly, licensing a meme of one’s pet could be straight-

forward from a copyright perspective. Memes that were people’s children,

for better or worse, were also easy to monetize, as in Success Kid: the parent

who took the photograph could license the meme of their child. But even if

one held the copyright to a meme, identifying a monetary stream could be

difficult because it was difficult to chase down users to demand money on-

line where the meme was replicating quickly, and it was equally difficult to

Meme, Merriam-Webster, https://perma.cc/5UVS-NKWR (last accessed

Apr. 10, 2022).

Meme, Wikipedia, https://perma.cc/JD4M-9JE6 (last accessed Apr. 10, 2022).

See id.

See Roose, supra note 7.

See 17 U.S.C.A. § 102.

See Colleen Nika, Grumpy Cat Stuffed Animals – Spread the Disapproval This

Holiday Season, Refinery29 (Dec. 8, 2013, 6:30 PM), https://perma.cc/V7CJ-

F63A.

See Harry Ainsworth, Where Is the Boy from the ‘Success Kid’ Meme Now?, The

Tab, https://perma.cc/GC8E-TK9C (last accessed Mar. 13, 2022).

272 Harvard Journal of Sports & Entertainment Law / Vol. 13

convince people to pay money for the meme in an offline context where it

was outside of its natural milieu.

If it was difficult to monetize your meme fame as a copyright holder, it

was much more difficult when a photo or video clip taken of you went viral.

There, the person in the photograph or video clip is not the copyright

holder; the photographer is.

Because they were not the copyright holders,

people appearing in memes lacked substantial control over the meme, be-

cause they did not even hold the traditional offline rights exclusively held by

a copyright owner, such as the right to distribute copies and prepare deriva-

tive works.

As Part VI will explore in more depth, we might call this type

of meme a “split-rights” meme, because the underlying photograph or

video’s copyright belongs to one entity, while the person depicted in the

photograph possesses separate publicity and privacy rights.

While a person

may attempt to block a copyright holder’s licensing of a photo based on

publicity or privacy rights in certain very limited circumstances,

these

rights do not give a subject the right to demand licensing of the photo.

The copyright holder exclusively controls whether it should be licensed.

The two interest-holders might not agree on monetizing the meme.

Of course, memes can and have been monetized and exploited without

the permission of either the copyright holder or subject. For instance, Sweet

Brown, the subject of the “Ain’t Nobody Got Time for That” video meme,

sued over a remix of the meme being sold for profit on iTunes.

(The case

was eventually dismissed without prejudice due to her failure to prose-

cute.

) Antoine Dodson, the subject of the “Bed Intruder” meme, similarly

See Kalhan Rosenblatt, A Meme Gold Rush? Classic Viral Images Are Selling as

NFTs for Thousands of Dollars, NBC News (Apr. 29, 2021, 5:39 PM), https://

perma.cc/KC68-VL78 (“As far as it goes with becoming a meme, it’s very difficult

to monetize that. We’ve spoken to numerous people who have become memes and

have had a lot of difficulty making money off their creations.”).

See Lantagne, supra note 13, at 400-01.

See 17 U.S.C. § 106.

See Lantagne, supra note 13, at 390.

See, e.g., Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021).

See Joshua Azriel, Photographers Sue Celebrities for Copyright Infringement, 24 J.

Internet L. 3, 7 (2020).

Licensing under normal circumstances would doubtless implicate one of the

rights, such as distributing the photograph or copying the photograph, that belongs

exclusively to the copyright holder, not to the person depicted in the photograph. See

17 U.S.C. § 106.

See Megan Rose Dickey, ’Ain’t Nobody Got Time for That’ Viral-Video Star Does

Have Time to Sue Apple, Bus. Insider (Mar. 12, 2013, 11:22 AM), https://perma.cc/

5ZNT-UAD2.

Wilkins v. Citicasters Co., No. 5:13-cv-00026 (W.D. Okla. Sept. 23, 2013).

2022 / Of Disaster Girl and Everydays 273

had his viral news interview remixed into a for-profit song.

By and large,

the people who populate our memes have struggled to find ways to convert

that fame into money.

III. The Arrival of Non-Fungible Tokens

Non-fungible tokens, or NFTs, are “authenticated digital assets.”

some ways NFTs resemble cryptocurrency because they depend on the same

authentication procedure “through a decentralized system of nodes.”

However, each bitcoin is designed to be interchangeable with other

bitcoins

in the same way that each dollar bill is designed to be inter-

changeable with other dollar bills.

Conversely, each NFT is guaranteed to

be unique (hence, non-fungible).

If you own the NFT for a particular pho-

tograph of a kitten, what you really own is a token saying that you own that

kitten photograph.

There may be other versions of the kitten photograph

on the internet over which you have no ownership. Your NFT merely states

that you own a particular version, which is sometimes termed the “authen-

tic” or “original” version of the photograph.

It is important to be precise regarding what NFT ownership confers.

The person who owns an NFT attached to a photograph usually does not

own the copyright of the photograph

—

only the NFT that has been linked

to that particular digital copy of the otherwise generally available photo-

See MEMES, Part 7: Dead Giveaway, Endless Thread (Nov. 5, 2021), https://

perma.cc/NR83-BV9K.

26 No. 4 Cyberspace Lawyer NL 1.

Id.

See Rosenblatt, supra note 23.

See Oscar Holland, How NFTs Are Fueling a Digital Art Boom, CNN (Mar. 10,

2021), https://perma.cc/KB64-R7VW.

See 26 No. 6 Cyberspace Lawyer NL 1; Nicholas O’Donnell, No, You Probably

Can’t Sell Your Basquiat as an NFT, Apollo (May 12, 2021), https://perma.cc/

X9DV-YRXX.

The actual usefulness of NFTs in establishing ownership of art has been chal-

lenged. See James David (@jamesdavid), Twitter (Aug. 14, 2021) https://twitter.

com/jamesdavid/status/1426664478200930310 (“[I]f an NFT relies on a domain

that expires the image can be lost.”); Brian L. Frye (@brianlfrye), Twitter (Aug.

14, 2021, 5:25 PM), https://twitter.com/brianlfrye/status/1426656132664229889

(“No matter what anyone says, it has nothing but a nominal connection to any

artwork it purports to represent. An ‘NFT of an artwork’ is like a dollar bill ‘of

George W.’”).

See 26 No. 6 Cyberspace Lawyer NL 1 (“[W]hile you own the token with code

linked to the provably unique image or other work, others may have copies of the

underlying work. But only you can own that token.”).

274 Harvard Journal of Sports & Entertainment Law / Vol. 13

graph.

NFTs themselves do not contain any content other than acting as a

“token[. . .] that . . . refer[s] to works of digital art by linking to them.”

“ ‘All [an NFT] is, is a URL saying ‘Look at this place on the internet.’’”

On the one hand, owning an NFT can be compared to owning a copy

of a book. Buying a book in a bookstore does not give the purchaser a copy-

right in the book; rather, it provides them with rights only to that particu-

lar copy. Everyone else can freely access other copies of that book in their

own bookstores and libraries. A cryptocurrency group recently learned this

the hard way when it bought a copy of a book in the belief that owning the

copy gave them adaptation rights.

On the other hand, however, buying an NFT cannot be compared to

buying a book, because it does not actually convey any object at all, digital

or physical.

Buying a book provides you with a copy of the book to take

home and read. Even buying a digital copy of a book provides you with a

digital item, according to certain terms of use. An NFT, by contrast, is more

like the receipt you get at a coat check or a valet. It tells people that you

own something located somewhere. That thing, however, is not in your pos-

session and could disappear, in the way that your coat might disappear from

a coat room, or your car might get lost at a valet.

In the real world, this

might be unlikely, but not impossible. In the digital world, scams that

might deprive you of your digital coat or car seem far more likely.

NFTs are often associated with digital artwork.

For instance, the art-

ist Beeple sold an NFT for his digital art piece “Everydays: The First 5000

Days” for $69 million.

The NFT market has come down somewhat from

See, e.g., Roose, supra note 7 (“Our lawyers want me to note that the NFT does

not include the copyright to the article or any reproduction or syndication rights.”).

Rizzo, supra note 2. See also Kevin Collier, NFT Art Sales Are Booming. Just

Without Some Artists’ Permission, NBC News (Jan. 10, 2022, 3:53 PM), https://

perma.cc/R2YV-6LBH (“NFTs are not art themselves but rather digital deeds.”).

This means that if the property referred to in the NFT disappears, the owner of the

NFT could end up with the equivalent of a broken link. See Rizzo, supra note 2.

Collier, supra note 41.

Adrienne Westenfeld, The Crypto Bros Who Thought They Bought the Dune Rights

Feel Misunderstood, Esquire (Mar. 1, 2022), https://perma.cc/7XGD-N8HH. The

group later insisted it did not think it bought the copyright, although this argu-

ment has been called “somewhat implausibl[e].” Rizzo, supra note 2.

See Rizzo, supra note 2.

See id.

See Edward Ongweso Jr., The NFT Ecosystem Is a Complete Disaster, Vice (Feb.

1, 2022, 1:43 PM), https://perma.cc/GL6P-8C9V.

See 26 No. 4 Cyberspace Lawyer NL 1.

See 26 No. 6 Cyberspace Lawyer NL 1; 26 No. 4 Cyberspace Lawyer NL 1;

Danny Nelson, Quarterback Patrick Mahomes Joins Gronk in NFL Blitz of NFT Mania,

2022 / Of Disaster Girl and Everydays 275

that high-water mark,

but well-known art auction houses like Christie’s

run NFT auctions as they would run auctions for any other kind of fine art.

But NFTs are more than just digital artwork. Anything can become an

NFT. The limit is your imagination.

The New York Times made an NFT of

a column about NFTs.

Jack Dorsey made an NFT of the first-ever tweet.

A group of authors decided to sell NFTs in a new series of fantasy stories

and, apparently, their accompanying fanfiction (and then backed off when

there was a backlash to the idea).

You can buy NFTs for basketball high-

light videos.

You can buy an NFT racehorse.

Digital NFT marketplaces

are recording monthly sales in the billions of dollars.

You can also buy NFTs for memes. Matt Furie, the creator of Pepe the

Frog, has been on a long march to recapture some meaningful control of his

creation. In that effort, he sold an early NFT of a Homer Simpson Pepe for

nearly $40,000

and an NFT of an early Pepe cartoon for around $1 mil-

lion.

A series of unauthorized “counterfeit” Pepes called “Sad Frogs” net-

ted $4 million in sales, charging around $450 a frog.

And the creator of

the Nyan Cat GIF made nearly $600,000 auctioning off an NFT.

Those

CoinDesk (Sept. 14, 2021, 8:26 AM), https://perma.cc/YG7A-Z9DT; Jacqui

Palumbo, First NFT Artwork at Auction Sells for Staggering $69 Million, CNN (Mar.

12, 2021), https://perma.cc/6TK9-RSK3; O’Donnell, supra note 37; Roose, supra

note 7; Rizzo, supra note 2.

See Raisa Bruner, Teen Artists Are Making Millions on NFTs. How Are They Doing

It?, Time (Sept. 7, 2021, 4:54 PM), https://perma.cc/MH3J-P4HG.

See Taylor Dafoe, Artist Dread Scott’s First NFT Is a Video of a White Man atop an

Auction Block. He’s Taking It Straight to Christie’s, Artnet News (Sept. 14, 2021),

https://perma.cc/D3Y8-6SXB.

See Ongweso, supra note 46 (“[T]he explicit goal here is to turn every inch of

our physical world

—

and any digital world

—

into a place where nearly every experi-

ence and thing is quantified, commodified, and privatized.”).

See Roose, supra note 7.

See Will Gottsegen, Jack Dorsey: Proceeds from Tweet NFT Will Go to Africa Relief

Charity, Decrypt (Mar. 9, 2021), https://perma.cc/4NGL-XGZB.

See Heloise Wood, YA Authors Shelve NFT Story After Social Media Backlash,

The Bookseller (Oct. 25, 2021), https://perma.cc/FE24-9P57.

See Roose, supra note 7.

See Taylor Lorenz, Digital Horses Are the Talk of the Crypto World, N.Y. Times

(May 12, 2021), https://perma.cc/LPD2-CGBX.

See Bruner, supra note 49.

Rosenblatt, supra note 23.

See Ekin Genc, Pepe the Frog’s Creator Nuked a $4 Million NFT Collection over

after “Pepe”].

See id.

See Holland, supra note 36; Rosenblatt, supra note 23.

276 Harvard Journal of Sports & Entertainment Law / Vol. 13

already successful in the NFT space have focused on memes as a potentially

huge boon for creators. For example, in 2021, twelve-year-old coder and

successful NFT creator Benyamin Ahmed said, “I think memes have signifi-

cant value . . . [and] play a big part in this space.”

NFTically, “a venture

that helps brands, creators and artists to setup and launch their NFT mar-

ketplace,” highlighted NFT memes as “here to stay” because they “depict

ownership of human emotion on the digital medium.”

IV. NFTs, Memes, and Copyright Law

The set-up of meme NFTs pushes against the assumptions of copyright

law in two ways. First, discussions of NFT meme auctions assume that the

subject of the meme, rather than the copyright holder, has the right to auc-

tion off the meme NFT. Second, NFT auctions embrace virality instead of

scarcity, so memes that are more widespread and recognizable are considered

more valuable.

Before the rise of NFTs, the people depicted in memes often sought

compensation under copyright law theories.

They frequently assumed that,

as the meme’s subject, they had some legal right to control the meme and

receive compensation for its use. As Part II established, this is a persistent

misconception.

As we saw in Part II, many memes are “split-rights” situations. There

is a copyright holder who created the underlying work depicted in the

meme, but this is not the person depicted in the meme who is often referred

to as “the meme” themselves. Take a popular meme like Disaster Girl.

Disaster Girl depicts a four-year-old child, caught in the moment of smiling

in a devious way at a camera, while a house burns down in the background.

The image is often interpreted as the little girl reveling in the catastrophe

occurring behind her.

Because she did not take the photograph, Disaster

Girl has only a privacy and publicity right in the meme, meaning she has a

limited right to control the use of her image to be exploited, tempered by

generous First Amendment considerations in favor of permitting the public

Taylor Locke, This 12-Year-Old Coder Is Set to Earn Over $400,000 After About 2

Months Selling NFTs, CNBC (Sept. 1, 2021 1:29 PM), https://perma.cc/LUJ8-YX96

[hereinafter “12-Year-Old Coder”].

7 Classic Memes, supra note 11.

See Lantagne, supra note 13, at 402.

See Disaster Girl, Know Your Meme, https://perma.cc/JEC5-JWSH (last ac-

cessed Mar. 13, 2022).

See id.

2022 / Of Disaster Girl and Everydays 277

access to items in the public interest (including, arguably, memes).

This

publicity right interest might be enough to block licensing of the meme for

use in connection with product advertising. But generally, it would not be

sufficient to suppress circulation of the meme, because the copyright holder

has exclusive rights over reproduction and distribution.

Moreover, Disaster

Girl’s publicity right would not allow her to license the meme traditionally

for commercial exploitation, since traditional licensing would require repro-

duction and distribution of the photograph.

Confusion over how the rights in a photograph are divided is not lim-

ited to memes. There has been a rash of litigations in the past few years

involving paparazzi photographers suing the celebrities depicted in their

photographs for reposting them on social media.

This is another split-

rights situation, and the interests of the copyright holder and the subject

may not align. Moreover, the person depicted in the photograph feels that

they may have some inherent right over their likeness – for instance, to post

the photograph on their social media – that copyright law does not recog-

nize. The publicity and privacy rights of these subjects often play second

fiddle to the copyright holder’s copyright rights. Courts favor the copyright

holder’s right to publicize a photograph over the subject’s right to block it.

For example, a federal district court in California said in a 2015 decision:

Since Plaintiffs do not identify any use of their likenesses not wholly con-

tained within the photographs, Plaintiffs’ claims seek to prevent Defen-

dant from distributing the copyrighted work itself . . . Accepting

Plaintiffs’ interpretation without separating the likeness from the work

would . . . destroy copyright holders’ ability to exercise their exclusive

rights under the Copyright Act, effectively giving the subject of every

photograph veto power over the artist’s rights under the Copyright Act

and destroying the exclusivity of rights the Copyright Act aims to

protect.

6 Rudolf Callman, Callmann on Unfair Competition § 22:34. (4th ed.

2010).

See 17 U.S.C. § 106.

See id.

See Charles Trepany, Liam Hemsworth, Ariana Grande and More: Celebs Sued by

Paparazzi over Copyright, USA Today (Dec. 16, 2019), https://perma.cc/K239-

ABAN.

Maloney v. T3Media, Inc., 94 F. Supp. 3d 1128, 1137–38 (C.D. Cal. 2015),

aff’d, 853 F.3d 1004 (9th Cir. 2017); see also In re Jackson, 972 F.3d 25, 40 (2d Cir.

2020).

278 Harvard Journal of Sports & Entertainment Law / Vol. 13

Or, to put it in non-legal terms: “[D]espite being the unwilling sub-

ject of the photograph, I could not control what happened to it.”

The

paparazzi cases show that the photographer’s desire to hide a photograph

trumps the subject’s ability to publicize it.

The subject’s lack of legal rights also explains why the phenomenon of

“revenge porn” demanded a new statutory regime. Under copyright law,

unless the subject of explicit photographs took them, that person could not

control their dissemination. Recognizing the harm done to people depicted

in revenge porn, many states addressed the problem by passing a statute

giving greater power to the subjects of revenge-porn photographs to prevent

their use.

NFTs echo this power shift toward subjects in a less harmful context.

Anyone can mint an NFT of anything they want.

So, if the subject of a

meme wants to auction that meme as an NFT, that person can mint the

NFT and run the auction, as occurred with Disaster Girl,

Bad Luck

Brian,

and Scumbag Steve.

Because they minted and auctioned the NFT,

they receive the money

—

not the photograph’s copyright holder. Although

NFTs were originally touted by some commentators as “a powerful tool to

protect artists’ rights,” in the meme context it is not the artists but the

subjects who are benefitting.

NBC News has reported that “[A]n influx of

viral celebrities featured in classic memes have minted and sold their images

as NFTs . . . .”

Know Your Meme concurred that meme NFTs are being

successfully auctioned by the people depicted in them.

Commentators say

purchasing an NFT is analogous to getting an autograph from a famous

Emily Ratajkowski, Buying Myself Back, The Cut (Sept. 15, 2020), https://

perma.cc/4BDF-NWMQ.

In those cases, the paparazzi does not entirely wish to hide the photographs,

but they do want to block the subject from publicizing them.

See Christian Nistt´ahuz, Fifty States of Gray: A Comparative Analysis of ‘Revenge-

Porn’ Legislation Throughout the United States and Texas’s Relationship Privacy Act, 50

Tex. Tech L. Rev. 333, 348 (2018).

See Nicholas Rossolillo, A Complete Guide to Minting NFTs (Using OpenSea as an

Example), Motley Fool (Mar. 7, 2022), https://perma.cc/E2XR-YXD3 (detailing

the process with no requirement of proof of ownership over the file being minted).

See Zo¨e Roth Sells ‘Disaster Girl’ Meme as NFT for $500,000, BBC News (Apr.

30, 2021), https://perma.cc/7HBA-QJQK.

See Rosenblatt, supra note 23.

See Sweat, supra note 10.

See Clifford C. Histed, The Coming Blockchain Revolution in Consumption of Digi-

tal Art and Music: The Thinking Lawyer’s Guide to Non-Fungible Tokens (NFTs), K&L

Gates (Mar. 25, 2021), https://perma.cc/KP2A-AEED.

See Rosenblatt, supra note 23.

See Sweat, supra note 10

2022 / Of Disaster Girl and Everydays 279

person.

For meme NFTs, that famous person is the person depicted in the

meme, not the person who took their photograph.

Accordingly, Zo¨e Roth, the subject of the Disaster Girl meme, sold her

NFT for over $400,000 in 2021.

She commented that she was excited to

finally have a means to capitalize on her fame as a meme.

Similarly, Scum-

bag Steve, a meme of a young man interpreted to be a “scumbag” based on

his clothing and facial expression,

sold his NFT for $57,000.

After the

success of the meme’s NFT auction, a commentator tweeted that Scumbag

Steve was “finally get[ting] rewarded for having his face plastered as a meme

for a very long time.”

The real Scumbag Steve, a man named Blake Bos-

ton, agreed that he was “grateful” for the money raised.

“Anything’s bet-

ter than $0,” he said.

The subject of Overly Attached Girlfriend sold the

NFT for about $411,000,

and the subject of Bad Luck Brian sold his for

around $36,000.

It is not exactly clear what the copyright implications of these NFT

auctions are. For Disaster Girl and Scumbag Steve, the subjects’ parents took

the photographs, avoiding a split-rights conflict between subject and copy-

right holder.

While Overly Attached Girlfriend was the copyright holder

of her meme, Bad Luck Brian was not. Some meme subjects who have sold

NFTs may have gotten permission from the copyright holder. People have

created NFTs for a wide range of works to which they have dubious copy-

right claims, sometimes attracting attention from the original artist.

Pepe

the Frog’s original creator had a collection of “sad frogs” removed from an

See Rosenblatt, supra note 23; Ekin Genc, Overly Attached Girlfriend NFT Sells

for $411,000, Decrypt (Apr. 4, 2021), https://perma.cc/398F-GY22 [hereinafter

“Overly Attached Girlfriend”].

See Pesce, supra note 4.

See id.

Billy Baker, Savoring Time as the Internet’s Favorite Punching Bag, Boston (Nov.

24, 2011), https://perma.cc/2923-53N3.

See Sweat, supra note 10.

See id.

See Blake Boston Revisits Becoming ‘Scumbag Steve’ as We Catch Up with Him for the

Meme’s 10-Year Anniversary and Upcoming NFT Auction, Know Your Meme (2021),

https://perma.cc/6DX9-22SP [hereinafter “Blake Boston”].

See “Overly Attached Girlfriend”, supra note 82.

See Rosenblatt, supra note 23.

See id; “Blake Boston”, supra note 89.

There have also been trademark disagreements. See Tanzeel Akhtar, Nike and

Hermes File Lawsuits for Trademark Infringement as Fashion Collides with NFTs,

CoinDesk (Feb. 4, 2022), https://perma.cc/V4E2-ZEHR.

280 Harvard Journal of Sports & Entertainment Law / Vol. 13

NFT marketplace for allegedly violating his copyright.

The Basquiat es-

tate intervened to block an NFT auction that purported to sell the right to

destroy an original Basquiat work.

Miramax sued Quentin Tarantino over

his plans to offer Pulp Fiction NFTs.

OpenSea, “the most popular market-

place for NFTs,” found that “over 80 percent” of the works being minted

on its marketplace “were plagiarized works, fake collections and spam,” and

the situation has been described as “an art thievery quagmire of its own

making.”

Complaints from digital art websites regarding fraudulent NFTs

are increasing exponentially.

Whether or not NFTs constitute copyright infringement is not clear-

cut. We do not yet have any cases or rulings on the question. One theory is

that “creating the NFT in the first place may be copyright infringement”

because it produces an unauthorized reproduction of the work.

To mint an

NFT, you have to upload the file that your NFT will point back to as the

“image asset.”

100

If you do not have the rights to make a copy of that file,

then reproducing it to upload it for the purpose of minting the NFT could

be considered copyright infringement in and of itself, as the copying of a

copyrighted work is a right that belongs exclusively to the copyright holder

to control.

101

However, the NFT itself is arguably “irrelevant” to copyright infringe-

ment, since the NFT itself has no content within it

—

it is simply a receipt

for a particular copy of the work.

102

The uploading of the file to connect to

the NFT might be copyright infringement

—

but that is not the NFT.

Accordingly, as long as the NFT is being sold without representing that it

includes any of the exclusive rights of copyright, the minting process of the

See “Pepe”, supra note 59.

See O’Donnell, supra note 37; Rizzo, supra note 2.

Miramax, LLC v. Quentin Tarantino, Dkt. No. 2:21-cv-08979 (C.D. Cal.

Nov. 16, 2021).

See Ongweso, supra note 46.

See id.; see also Collier, supra note 41 (“[T]hanks to the explosion of the NFT

art market, thieves have started stealing her work at a jaw-dropping rate.”).

See O’Donnell, supra note 37. Keith Estiler, Cj Hendry Destroys Basquiat and

Warhol Artwork in NFT Stunt, Hypebeast (Apr. 16, 2021), https://perma.cc/

WFV4-RJ2S.

100

See Sumi Mudgil, How to Mint an NFT, Ethereum Found. (Apr. 21, 2021),

https://perma.cc/JP24-NXSA.

101

See 17 U.S.C. § 106. There are exceptions which allow people to make copies

without the copyright holder’s consent, such as for personal archival purposes, or for

fair use. See 17 U.S.C. § 107. Such exceptions seem unlikely to apply in the explic-

itly commercial marketplace of NFTs.

102

Collier, supra note 41.

2022 / Of Disaster Girl and Everydays 281

NFT might have implicated copyright but the mere sale of the NFT argua-

bly does not violate any intellectual property law, since it does not involve a

further reproduction of the file.

103

At least some of the meme NFTs appear

to explicitly disclaim ownership of the copyright of the meme, attempting

to disconnect the meme from copyright altogether.

104

At any rate, the terms

of use of the NFT platform being used for many of these auctions explicitly

states that the NFT’s sale does not confer any copyright, that there may be

other claims on the image asset connected to the NFT, and that the platform

itself will not be liable for any copyright or trademark infringement con-

nected to the NFT.

105

The control and compensation that the rise of NFTs has given to meme

subjects raises whether a wider ambit of control could, or should, be given

to the subjects of photographs more generally. Should we reconsider how the

legal system traditionally values the rights of the copyright holder over the

rights of those subject? The Supreme Court’s first decision recognizing the

photographer as the sole copyright holder of a photograph, Burrow-Giles

Lithographic Co. v. Sarony,

106

took place in a world in which photography was

a highly specialized and complicated profession. Photographs were scarce

luxuries that those who could afford them deliberately chose to have taken.

Indeed, the Court’s description of the process of taking the photograph of

Oscar Wilde at issue sounds more like painting a portrait: it involved “se-

lecting and arranging the costume, draperies, and other various accessories

. . . arranging the subject so as to present graceful outlines, arranging and

disposing the light and shade, [and] suggesting and evoking the desired

expression.”

107

In such an atmosphere, equating the photographer with a

painter as the sole creator of the work made sense.

Today, everyone with a smartphone is a photographer, able to snap a

photograph in seconds just by reaching into a pocket. The vast majority of

photographs do not involve the painstaking, time-intensive process that Os-

car Wilde’s photographer followed in Burrow-Giles.

108

Given how radically

the medium of photography has changed, perhaps the law should re-evaluate

how it views the rights to a photograph. While the quick, easy, and cheap

103

See also “Elon Musk”, supra note 8 (“[B]ecause of the legal gray area that

NFTs exist in, it’s not clear whether the use of this image infringes on any potential

104

See Rosenblatt, supra note 23.

105

See Terms of Service, Found. Labs (Apr. 8, 2022), https://perma.cc/MSJ6-

3LX8.

106

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

107

Id. at 60.

108

See id. at 54.

282 Harvard Journal of Sports & Entertainment Law / Vol. 13

act of taking a photograph requires little effort for the photographer, it

grants them enormous power over the person depicted in the photograph,

even when it was taken without their knowledge. This was a far more unu-

sual occurrence when photography was a time-intensive, heavily posed

art.

109

The revenge porn situation might most starkly challenge our assump-

tion that the person who cares most about a photograph is its taker. There,

it is very clear that the person depicted in a photograph is more greatly

harmed by its unfettered use than is the copyright holder. Like the NFT

market’s greater grant of control to the meme’s subject, state laws giving

revenge porn victims power over the dissemination of their photographs

urge us to consider whether today’s power imbalance between photographer

and subject deserves legal acknowledgement.

The control and compensation that NFTs have afforded meme subjects

also invites questioning whether we should worry about compensating peo-

ple who become memes. Unlike athletes and celebrities, who have recourse

to other revenue streams, people who become memes seldom receive any

compensation.

110

There is an argument that it is unnecessary to compensate

anyone in memes. If copyright law is about granting property rights in crea-

tive output to incentivize creativity,

111

the people depicted in memes typi-

cally do not need that incentive because they generally become memes

inadvertently. Very few meme subjects were consciously involved in creating

their memes. Copyright law views the photographer who took the underly-

ing meme photograph as the creator needing creative incentive, not the

meme subject. Further, memes most often arise organically from the collec-

tive action of the internet, meaning no individual person requires a financial

incentive to produce a meme.

112

In fact, the internet has shown that people seldom need an incentive for

the initial act of creativity. Social media is full of creators who post without

payment. What people seem to want is to be compensated for an act of

creativity that the world deems valuable after it has come into being. This

compensation does not line up with the rewards created by copyright law.

People create TikTok dances for free all the time but hope to be compen-

109

Emily Ratajkowski has written movingly of her loss of control of her image

and the emotions connected to her body’s exploitation by photographers. See supra

note 72.

110

See Nelson, supra note 48 (noting that NFTs are “another method to expand

athletes’ personal brands”).

111

Tonya M. Evans, Cryptokitties, Cryptography, and Copyright, 47 AIPLA Q.J.

219, 226 (2019) [hereinafter “Cryptokitties”].

112

See Lantagne, supra note 13, at 412-13.

2022 / Of Disaster Girl and Everydays 283

sated if one of those dances gains pervasive notoriety.

113

But since copyright

law does not protect individual dance moves, many viral dance moves may

not be copyrightable. Moreover, copyright law provides value by creating

scarcity. It incentivizes creators by letting them control reproduction and

dissemination of their creative work. However, on the internet, there is little

value until the creative work is uncontrollably reproduced, giving it viral

fame. Therefore, to the extent copyright is meant to incentivize creativity, in

the digital world it does so imperfectly. Much of the creativity of the in-

ternet exists outside of copyright law’s value judgments.

The internet has accordingly exposed that our intellectual property sys-

tem might understand compensation incorrectly. Our system is ineffective

at making people feel compensated for creativity society deems valuable.

Take, for example, the recent spate of litigation against videogames based on

their use of famous dance moves performed by players’ avatars. In one case,

Alfonso Ribeiro sued Fortnite for copying his well-known “Carlton

Dance.”

114

The Copyright Office refused to register the dance move, on the

ground that it was a “simple routine” that could not be copyrighted.

115

The

Carlton Dance clearly had value for its audience because the videogame de-

velopers wanted to exploit it, but copyright law permitted that exploitation.

In another case over a video game’s use of a dance routine that the

that it appeared Black creators were disproportionately affected by appropri-

ation of uncopyrightable work in a way that devalued their creativity. He

stated that “Epic has consistently sought to exploit African-American talent

in particular in Fortnite by copying their dances and movements.”

116

Black

creators on TikTok went on strike in the summer of 2021, “[t]ired of not

receiving credit for their creativity and original work

—

all while watching

white influencers rewarded with millions of views performing dances they

didn’t create.”

117

American intellectual property law has a long history of

oppressing and exploiting Black creators,

118

from refusing to allow enslaved

113

See Cache McClay, Why Black TikTok Creators Have Gone on Strike, BBC News

(July 15, 2021), https://perma.cc/NE5P-2RVH.

114

See Ribiero v. Take-Two Interactive Software, Inc., Compl., Dkt. No.

2:2018cv10417 (C.D. Cal. Dec 17, 2018).

115

See Ribiero, Mot. To Dismiss, Dkt. 2:2018cv10417 (C.D. Cal. Feb. 13,

2019).

116

Baker v. Epic Games, Inc., Compl. 35, Dkt. No. 2:19CV00505 (C.D. Cal.

Jan. 23, 2019).

117

Sharon Pruitt-Young, Black TikTok Creators Are on Strike to Protest a Lack of

Credit for Their Work, NPR (July 1, 2021), https://perma.cc/UQ4A-AZC9.

118

See id. (“We can take any historical period and look at popular culture . . .

and see the ways in which white folks who have access to mainstream capital and

284 Harvard Journal of Sports & Entertainment Law / Vol. 13

people to hold patents to their inventions

119

to letting Rock-n’-Roll labels

take the work of Black artists and attribute it to white artists under the

statutory compulsory licensing system.

120

Looking at the example of dance,

Anthea Kraut found that “[w]ith few exceptions, the names of non-white

dancers are not present, or at least not easily detectable, in official copyright

archives from the first two-thirds of the twentieth century.”

121

In relation to

Black creators’ TikTok strike, Sarah J. Jackson described how:

Since the founding of this country, Black art forms, Black dance forms,

have been appropriated, watered down, repackaged and used to make

money by white folks . . . And so, if you put it in that context of that

longer history of basically stolen labor and stolen creativity, then you start

to see why it matters to people and why it’s important to people to be

credited for the origins of these things.

122

This story continues today in the digital context. The originators of

popular internet content often do not receive compensation for it under our

existing intellectual property system, and the brunt of this is often suffered

by Black artists.

123

A larger reckoning with who the copyright system com-

pensates is long overdue. In a surprising way, meme NFTs have become part

of that battle by giving compensation to whom the internet values, rather

than whom the law prioritizes.

mainstream media and other forms of access were drawing inspiration from the art

forms and creative forms of Black folks.”).

119

See Brian L. Frye, Invention of A Slave, 68 Syracuse L. Rev. 181, 181-82

(2018).

120

See Neela Kartha, Digital Sampling and Copyright Law in a Social Context: No

More Colorblindness!!, 14 U. Miami Ent. & Sports L. Rev. 218, 232-33 (1997); see

generally K.J. Greene, Copyright, Culture & Black Music: A Legacy of Unequal Protec-

tion, 21 Hastings Comm. & Ent. L.J. 339 (1999); Vincent R. Johnson II, Sampling

as Transformation: Re-Evaluating Copyright’s Treatment of Sampling to End Its Dispropor-

tionate Harm on Black Artists, 70 Am. U. L. Rev. F. 227 (2021).

121

Anthea Kraut, Choreographing Copyright Race, Gender, and Intel-

lectual Property Rights in American Dance 128 (2015) (quoted in Gia Velas-

quez, No Credit Where Credit Is Due: Exploitation in Copyright, 99 J. Pat. &

Trademark Off. Soc’y 693, 702 (2017)).

122

Pruitt-Young, supra note 117.

123

See Shamira Ibrahim, How the Internet Became a Playground for Exploiting Black

Creators, Vice, https://perma.cc/A45A-3QQD (last accessed May 7, 2022).

2022 / Of Disaster Girl and Everydays 285

A. Scarcity vs. Virality

scarcity.

124

When the printing press

—

the World Wide Web of its day

—

threatened to make information more accessible than ever, copyright was

created to give printers the power to prevent copying.

125

The effect was to

create artificial scarcity when virality threatened.

126

create value.

127

When the online peer-to-peer music sharing network Nap-

ster was developed to make music distribution easier than ever, it proposed

making all music available to its users for a monthly flat fee. This would

have brought in a considerable amount of money to be divided among the

stakeholders: as one commentator put it, “more money than ever dreamed

of.”

128

However, the mainstream music industry clung to the idea that

maintaining the scarcity of music was necessary to retain its value.

129

Artists

and record labels successfully sued Napster for copyright infringement,

eventually leading it to shut down.

130

The same desire for scarcity underlies

the Motion Picture Association’s longstanding concern with piracy. If the

movie or television show can easily be found in free or cheap unauthorized

copies, then the copyright’s value falls.

131

124

See Jake Linford, Copyright and Attention Scarcity, 42 Cardozo L. Rev. 143,

145 (2020).

125

See id. at 156.

126

See id. at 146.

127

See Roose, supra note 7.

128

Michael Gowen, Requiem for Napster, PC World, (May 18, 2002, 12:17 PM),

https://perma.cc/SU8N-G87Y.

129

See Stephen Dowling, Napster Turns 20: How It Changed the Music Industry,

BBC (May 31, 2019), https://perma.cc/Z8CH-BNR (quoting Rolling Stone journalist

Steve Knopper: “[The record business] sure made it unnecessarily hard for them-

selves for a long time.”); see also Casey Rae-Hunter, Better Mousetraps: Licensing, Ac-

cess, and Innovation in the New Music Marketplace, 7 J. Bus. & Tech. L. 35, 40 (2012)

(“The mainstream recorded music industry was slow to understand and exploit the

dynamics of the emerging digital music marketplace[,] . . . [preferring a] return to

the old system of scarcity and near-exclusive control of distribution.”); cf. Daniel J.

Gervais, Towards a New Core International Copyright Norm: The Reverse Three-Step Test,

9 Marq. Intell. Prop. L. Rev. 1, 7 (2005) (suggesting that the record companies

move forward with digital music by “abandon[ing]. . .the scarcity paradigm”).

130

This Day in History (March 6, 2001): The Death Spiral of Napster Begins, His-

tory, https://perma.cc/DMH5-HP66 (last visited July 11, 2022).

131

See “Cryptokitties”, supra note 111, at 249.

286 Harvard Journal of Sports & Entertainment Law / Vol. 13

NFTs have been described as representing the ability to “create[ ] digi-

tal scarcity,”

132

which heretofore has been a challenge on the internet.

133

One article describes the NFT phenomenon as follows: “Buyers require . . .

representations to ensure that their NFT is legitimate and rare, rarity being

one of the most valuable qualities of these assets.”

134

While some NFT mar-

ketplaces state that creators “may have to represent . . . that the work [in

question] is scarce,”

135

in practice this requirement is nonsensical. The al-

leged rarity of NFTs is entirely fake. The NFT is rare and scarce; the work it

is attached to, by contrast, can often be found in many other places in the

identical form as the version linked with the NFT.

136

The same article even

acknowledges this: “[W]hen an artist sells a piece of NFT art, it is not the

actual underlying artwork that is being sold. Rather, it is a copy of the art,

with the NFT representing ownership of the copy.”

137

All other copies of

the art continue to exist, and, in the world of memes, continue to be copied

and shared at will.

138

Instead of creating scarcity, NFT markets appear to prioritize virality

as a source of value, especially when it comes to memes. The more viral a

meme is, in the NFT meme economy, the greater the value of the meme.

Ross Blum, the “Chief Operating Officer at Quidd, the world’s largest so-

cial marketplace for digital goods and media technologies,”

139

gave the fol-

lowing description:

But that one-of-one card potentially only has value . . . based on [ ] the

rareness, and there is no sort of context, there is no community, there is no

132

Katya Fisher, Once Upon a Time in NFT: Blockchain, Copyright, and the Right of

First Sale Doctrine, 37 Cardozo Arts & Ent. L.J. 629, 631 (2019); see also Holland,

supra note 36.

133

See Roose, supra note 7.

134

Chris Bennett & Cody Koblinsky, Non-Fungible Tokens: Emerging Issues in the

Emerging Marketplace, DLA Piper (Mar. 30, 2021), https://perma.cc/K4H7-T9RW.

135

26 No. 4 Cyberspace Lawyer NL 1.

136

See, e.g., Dread Scott: White Male for Sale, Cristin Tierney (2021), https://

perma.cc/SD5T-MM8H.

137

26 No. 4 Cyberspace Lawyer NL 1.

138

See Ross Blum et al., Panel 1: Digital Art and Digital Collectibles, 37 Cardozo

Arts & Ent. L.J. 567, 569-70 (2019); Chris Berg, Non-Fungible Tokens and the New

Patronage Economy, CoinDesk (Mar. 22, 2021), https://perma.cc/V6Y2-LBNE. But

see 26 No. 4 Cyberspace Lawyer NL 1 (“As with any collector’s item, uniqueness

and scarcity are the two most important attributes that make NFT art valuable.

NFT art will only attract demand if uniqueness and scarcity are guaranteed. Cre-

ators will have to make the necessary representations for buyers to trust that they are

getting a one-of-a-kind product.”).

139

Blum, supra note 138, at 568.

2022 / Of Disaster Girl and Everydays 287

story behind it and it’s just rivalries, it’s not necessarily different than any

other sort of unique object out there, say, your Grandma’s hand-knit

sweater or a rare piece of art that your friend made. But the notion that

these things have value is really brought together by appearance, belong-

ing, the interest and . . . the incentive structure of wanting to own these

digital objects.

140

In other words, the more well-known the underlying work of an NFT

is, with a community of people interested in it, the more value the NFT has.

In the case of memes, if you can find the meme everywhere, then it is worth

money: “[E]stablished, years-old memes seem to be the most in demand

among NFT buyers.”

141

Given that value is found in a meme’s popularity, and that the copy-

right status of memes is frequently uncertain, the sale of a meme NFT typi-

cally does not seek to restrict access to the meme.

142

For instance, the Nyan

Cat GIF NFT was sold with a simple “limited, worldwide, non-assignable,

non-sublicensable, royalty-free license to display the Digital Artwork.”

143

This limited right of display is what many other people around the world

were already exercising when they used or reposted the GIF. The purchaser

has the right to resell the NFT but otherwise is not allowed to make “com-

mercial use” of the GIF.

144

Meme NFTs often do not involve granting any of

the exclusive rights of copyright, because the split rights situation means

the NFTs are often sold by the subject, not the copyright holder. The pos-

sessor of the NFT accordingly “cannot prevent the spread or use of the

meme,”

145

even if a meme could be put back in its box.

146

But it appears that meme NFT owners do not want the ability to re-

strict dissemination. They usually wish to encourage further viral distribu-

tion of the meme, because creating scarcity of the meme would detract from

the NFT’s value.

147

In fact, some have seen meme NFTs as a way of reviving

“dead memes,” or “meme[s] that w[ere] once popular but ha[ve] since lost

140

Id.

141

Rosenblatt, supra note 23.

142

See “Overly Attached Girlfriend”, supra note 82 (“Morris cannot prevent any-

one from spreading the meme, nor can the new owner of the NFT.”).

143

XQ42.

144

Id.

145

See Rosenblatt, supra note 23.

146

See “Overly Attached Girlfriend”, supra note 82 (“[S]elling memes as NFTs

will only give these creators control over their finances, not the memes

themselves.”).

147

This seems to be different from the holders of NFTs of other kinds of creative

works, who seem to resent their creative properties proliferating elsewhere on the

288 Harvard Journal of Sports & Entertainment Law / Vol. 13

[their] stature.”

148

An expensive NFT sale attracts attention and brings a

meme back into the “spotlight.”

149

Again, the NFT causes the opposite of

scarcity.

Some NFT meme markets try to create the impression of scarcity by

taking a ubiquitous meme like Pepe the Frog

150

and creating spin-off “rare

Pepes.”

151

However, even these are taking advantage of the widespread viral

fame of the original underlying meme. Many NFT meme buyers lean into

the fact that a meme NFT only has value because it viral.

152

It has been

observed that shortly after a celebrity with a large online following, like

Elon Musk, posts a meme on Twitter is a prime time to take advantage of

the increased value brought by such exposure by quickly minting an

NFT.

153

The trend toward virality in NFT markets goes against the instinct

underlying copyright law for centuries. After all, who would pay for some-

thing that can be obtained for free? The obvious answer is no one. Often,

when someone buys an NFT, they are not only or even mostly paying for a

digital file that is freely available elsewhere. Instead, NFTs often come pack-

aged with other perks and features.

154

For instance, some NFTs are sold with

ongoing royalty payments or dividend streams.

155

Others permit further

internet. See Victor Tangermann, Person Furious That Someone Right Click Saved Their

Precious NFT, Futurism (Nov. 5, 2021), https://perma.cc/VS96-WT77.

148

See Rosenblatt, supra note 23.

149

Id.

150

See Pepe the Frog, Know Your Meme, https://perma.cc/72CG-WWMC (last

visited Apr. 21, 2022).

151

See Corin Faife, Meme Collectors Are Using the Blockchain to Keep Rare Pepes Rare,

Vice (Jan. 27, 2017), https://perma.cc/63XY-SYQP. Arguably, these are bad Pepes,

because the good, useful memes are the ones everybody knows.

152

See also Rizzo, supra note 2 (noting that some people “are already launching

NFT projects governed by Creative Commons licenses,” which, “[a]t their least

restrictive, . . . allow artists to waive all rights to their work, making their images

freely available to anyone to use or adapt for any purpose”).

153

Cf. “Elon Musk”, supra note 8.

154

See Steve Kaczynski & Scott Duke Kominers, How NFTs Create Value, Harv.

Bus. Rev. (Nov. 10, 2021), https://perma.cc/A7VQ-L4R9 (“It’s not uncommon to see

creators organize in-person meetups for their NFT holders, as many did at the re-

cent NFT NYC conference. In other cases, having a specific NFT in your online

wallet might be necessary in order to gain access to an online game, chat room, or

merchandise store. And creator teams sometimes grant additional tokens to their

NFT holders in ways that expand the product ecosystem: owners of a particular goat

NFT, for example, were recently able to claim a free baby goat NFT that gives

benefits beyond the original token; holders of a particular bear NFT, meanwhile,

just received honey.”).

155

26 No. 6 Cyberspace Lawyer NL 1.

2022 / Of Disaster Girl and Everydays 289

commercialization of the art connected to the NFT, such as merchandis-

ing.

156

Bands sell NFTs that come with vinyl albums or concert tickets.

157

The Red Sox auctioned an NFT “that comes with an exclusive experiential

VIP package, including the opportunity to throw the ceremonial first pitch

at Fenway Park, two tickets to a Red Sox home game, a stadium tour and a

meet and greet with Red Sox alumni.”

158

As noted already, Quentin Taran-

tino planned to auction NFTs that would come with “previously unknown

secrets” about the movie Pulp Fiction.

159

The NFT of a Basquiat drawing

famously purported to include the right to destroy the one original of the

physical work.

160

Arguably, it is those other perks and features that provide

the NFT’s economic value, and the “one true original” billing is really just a

red herring. While the transaction might be described as the purchase of an

NFT, you are often really paying for a vinyl record or event tickets. You can

hardly get more old-school than that.

However, NFTs are usually discussed as if they are not often about

these physical perks. Instead, commentators have praised NFTs for “en-

abl[ing], for the first time, verifiable digital scarcity

—

an elusive techno-

logical characteristic in the world of Web 2.0.”

161

This discussion frames

NFTs in terms of their promise of owning the true original digital version of

a work. But that raises the question of why such ownership is considered

appealing in the first place. Why would owning an “original” with possibly

millions of identical versions matter?

In one sense, this resembles the debate over art forgery.

162

If a copy of a

masterpiece is virtually indistinguishable from the original, who is harmed

by the fact that is it not the original? If the value of an original piece of art

lies in its originality or the fact that it was touched by a particular person,

then if so, why?

163

Forgers have explicitly forced this question by releasing

156

See 26 No. 4 Cyberspace Lawyer NL 1.

157

See Roose, supra note 7.

158

Thomas Harrigan, Bid on Limited-Edition Fenway Park NFTs, Major League

Baseball (Aug. 9, 2021), https://perma.cc/RWJ9-QJGL.

159

Miramax, LLC v. Tarantino, Compl. 1, Dkt. No. 21-cv-08979 (C.D. Cal.

Nov. 16, 2021).

160

See O’Donnell, supra note 37.

161

“Cryptokitties”, supra note 111, at 220.

162

See Blum, supra note 138, at 571.

163

See, e.g., Max Horberry, The Artist Beneath the Art Forger, N.Y. Times (Feb. 21,

2020), https://perma.cc/8YCP-G4JN (noting that forgery “champion[s]” the idea

that art has “intrinsic merit” and does not need to be deemed an original copy in

order to be appreciated and have value); Kevin Wiesner, 1,000 Warhol Artworks Are

on Sale for Just $250 Each. But Only One is Real, CNN (Oct. 25, 2021), https://

290 Harvard Journal of Sports & Entertainment Law / Vol. 13

NFTs of their forgeries.

164

NFTs attack the question head-on. In the world

of NFTs, you do not just get a forgery. You get a digital file identical to

every other digital copy of that file. Some commentators have remarked that

NFTs can “protect investors by helping establish provenance of art

works”

165

and anticipate that they will bring about the return of the scarce

and controllable world in which “everything is on blockchain and you’re not

able to create [ ] copies anymore.”

166

However, at heart, NFTs ask the ques-

tion of why we should care about copying when the copy and the original

are indistinguishable. Is the idea of scarcity worth so much to us that we

would pay six figures for a digital cat, just because we’re told it is unique,

even if we know the same image can be found practically everywhere

online?

167

The answer might be that it is not the scarcity, but the community,

that creates the value. Those in the art space of the NFT world have ac-

knowledged that it is not the aesthetics of the art but rather the community

surrounding the art that decides its value.

168

Indeed, the most valuable

NFTs often come with “community spaces”: access to members-only exclu-

sive places, either on Discord servers or in real life.

169

Memes are primed to be commodified in a space where value is based

on community. A meme, unlike an individual piece of art, definitionally

relies on community to exist because it is predicated on virality. If some-

thing becomes a meme because it is replicated and shared, then memes can-

not exist outside of a community. One can try to create something that looks

like a meme, such as a photo with text overlaid, but it is not a true meme

until it is replicated. Indeed, some NFT artists have noted that art bought

and sold via NFTs qualitatively resembles memes because of its reliance on

community.

170

One artist described the NFT community as “mycelium

—

the interconnected fungus network that forms a community in the way tree

perma.cc/6PJ5-URJQ (noting the criticism that the art industry cares more about

the pointlessness of possessing an original copy than it does about “the art itself”).

164

See, e.g., Sarah Cascone, Master Forger Wolfgang Beltracchi Shows Off His Skills

(and Pointed Humor) with a New NFT Collection, Artnet (Oct. 11, 2021), https://

perma.cc/9JUZ-X38A.

165

26 No. 6 Cyberspace Lawyer NL 1.

166

Tonya M. Evans et al., Panel 2: Art Law and Blockchain, 37 Cardozo Arts &

Ent. L.J. 589, 601 (2019).

167

The answer is, apparently, yes. See “Cryptokitties”, supra note 111, at 250.

168

Cf. Bruner, supra note 49.

169

Reply All, #185 The Rainbow Chain, Gimlet Media (Apr. 7, 2022), https://

perma.cc/R7Y6-U7M8; see also Larry Dvoskin, Why Community Is the Secret to NFT

Success, Rolling Stone (Jan. 17, 2022), https://perma.cc/9SJG-U4TH.

170

See “12-Year-Old Coder”, supra note 62.

2022 / Of Disaster Girl and Everydays 291

roots interconnect with each other.”

171

Successful NFT artists use the NFT

community as a substitute for the traditional model of agents or manag-

ers.

172

Without that connection to community, it can be difficult to join the

NFT goldrush.

173

“[N]urturing the community is exactly how you get

ahead in the NFT space.”

174

The community aspect drives people to

purchase your NFTs out of a desire to support you and belong to your digi-

tal community.

175

V. Envisioning a New Way of Thinking About Creative Value

The huge amounts of money currently being spent on NFTs creates the

idea of an exciting and unpredictable new commodity fundamentally differ-

ent from traditional media. The desire to participate in this action by

purchasing an NFT seems less connected to the particular file the NFT is

attached to and more to the hype around the NFT market as a cash cow.

This is like buying a book not because you want to read that particular

book, but because you are speculating in the book’s after-market. In the first

few months of 2021, more than $2 billion was spent on NFTs.

176

By the

third quarter of 2021, it was almost $11 billion.

177

Fundamentally, however, NFTs are not new. They are a form of specu-

lation and investment such as has existed for millennia. People buy NFTs

hoping they are “good investment[s]” that “will increase in value.”

178

These

buyers are not necessarily admirers of the underlying work, but investors.

Some people have compared this to the Beanie Babies craze of the 1990s.

179

Others have classified it as a pyramid scheme.

180

At best, they are “as risky

as gambling.” Some claim that “few financial professionals would recom-

171

See Dvoskin, supra note 169.

172

See id.

173

See id.

174

Will Fan, Leading in the New World of NFTs: Creating Community and Intrinsic

Value, Forbes (Jan. 6, 2022), https://perma.cc/JXV8-LC47.

175

See id.

176

See Anthony J. Dreyer & David M. Lamb., Can I Mint an NFT With

That?: Avoiding Right of Publicity and trademark Litigation Risks in the

Brave New World of NFTs (2021), available on Westlaw at 2021 WL 1850623.

177

See Collier, supra note 41.

178

26 No. 6 Cyberspace Lawyer NL 1.

179

See Roose, supra note 7; cf. Ongweso, supra note 46.

180

See Jacob Kastrenakes, I Spent Hours Waiting to Find Out What an NFT Looks

Like IRL, The Verge (Nov. 6, 2021), https://perma.cc/9JJA-BCG6.

292 Harvard Journal of Sports & Entertainment Law / Vol. 13

mend” cryptocurrency in general.

181

Critics have accused them of “being

used to propose increasingly more nebulous, abstract, and unwieldy catego-

ries of objects and goods and services.”

182

At some point, the speculative

bubble will likely burst and the prices will sink. There will be winners and

losers, and the world will move on to the next big thing.

183

Indeed, there is

some indication the market may have already started to crash. Trading on

the biggest NFT marketplace dropped by 80% in a single month in the

spring of 2022, and on average NFT prices have declined nearly 50% from

their peak a few months earlier.

184

The number of accounts trading in NFTs

in March 2022 was about half the number doing so in November 2021.

185

Though they may not be a fundamentally new phenomenon, the rise of

NFTs nonetheless presents an opportunity to rethink how we view creativ-

ity. In a world in which the scarcity of creative properties is increasingly

challenging to manufacture, large copyright holders have spent enormous

amounts of money to preserve “artificial scarcity” and therefore profits.

186

Some have lobbied against the proliferation of their works online

187

and

sought more and more technological controls to try to cabin replication.

Most recently, a new SMART Copyright Act has been proposed to “reduce

online theft.”

188

In this context, NFTs have been described as the way for-

ward for artist compensation. They have been touted as “a much-needed

way” for creators to monetize their work online

189

and greeted as an equal-

izer in “copyright-intensive industries” that are often controlled by a few

powerful entities.

190

181

See Alyson Krueger, How Much Real Money Can You Make From Virtual Art?,

N.Y. Times (Mar. 12, 2022), https://perma.cc/8GV8-N24L; see also Rizzo, supra note 2.

182

See Ongweso, supra note 46 (“[T]he greatest predictor of any NFT’s value

isn’t its appearance but its previous price points. None of this sounds like a func-

tional market so much as a mad grab for profit.”).

183

Cf. Krueger, supra note 181 (“[W]hat many NFT artists create or collectors

invest in will be worth little or nothing in the long term.”); see also O’Donnell, supra

note 37 (describing NFTs as “Dada-esque: it’s equivalent to presenting a poster of

the Mona Lisa as a unique work of art”); Westenfeld, supra note 43 (noting that

some market participants “don’t even know what they’re buying”).

184

See Miles Kruppa et al., The Great NFT Sell-Off: Has the Digital Collectibles

Craze Hit its Peak?, Fin. Times (Mar. 10, 2022), https://perma.cc/NK8P-GEXU.

185

See id.

186

See Jake Linford, Copyright and Attention Scarcity, 42 Cardozo L. Rev. 143,

143 (2020).

187

Cf. David Nelson, Note, Free the Music: Rethinking the Role of Copyright in an

Age of Digital Distribution, 78 S. Cal. L. Rev. 559, 568 (2005).

188

SMART Copyright Act of 2022, S. 3880, 117th Cong. (2022).

189

26 No. 6 Cyberspace Lawyer NL 1.

190

“Cryptokitties”, supra note 111, at 220.

2022 / Of Disaster Girl and Everydays 293

Consider, for example, NFTs’ much-lauded inclusion of resale rights.

Many NFTs are sold with resale rights attached. Resale rights guarantee the

artist will receive a cut of any future sales, or resales, giving the artist a right

to some of the value generated by their work’s appreciation.

191

[V]isual artists do not generate considerable income from the reproduction

and communication rights that are available to other creators under copy-

right law. The artist’s resale right seeks to address this financial disparity

by ensuring that visual artists receive a portion of the price paid for their

tangible artwork each time it is resold.

192

As Paris Hilton’s team weighed in, “[B]lockchain technology will al-

low artists to get paid on secondary sales as well. That’s never happened

before and it is mindblowing how much that can change things for art-

ists.”

193

The NFT market did not invent including resale rights in art sales.

Artists including Grant Wood and Robert Rauschenberg began lobbying

for it in the 1940s and 50s.

194

Mandatory resale rights are common in many

countries,

195

but Congress refused to pass laws mandating them in the

United States.

196

When California tried to pass its own statute granting

artists a resale right, it was held to be pre-empted by federal law.

197

While

artists could theoretically include resale rights in their contracts, few have

done so successfully.

198

The resale right that failed to flourish in the offline world has become a

praised feature of the NFT world. NFTs’ digital contracts make the resale

right easier to police than in the offline world.

199

However, the challenges of

enforcing such contracts offline may apply with equal force to online sales.

200

191

See Blum, supra note 138, at 582; “12-Year-Old Coder”, supra note 62; Hol-

land, supra note 36; Pesce, supra note 4; Roose, supra note 7; Rizzo, supra note 2.

192

Zhao Zhao, Fulfilling the Right to Follow: Using Blockchain to Enforce the Artist’s

Resale Right, 39 Cardozo Arts & Ent. L.J. 239, 244 (2021).

193

Team Paris, I’m Excited About NFTs

—

You Should Be Too, Paris (Apr. 8,

2021), https://perma.cc/KK6E-3KAM. See also Kaczynski & Kominers, supra note

154 (describing NFTs as “enabl[ing] a new type of royalty contract”).

194

See Rizzo, supra note 2; Brian L. Frye, Equitable Resale Royalties, 24 J. Intell.

Prop. L. 237, 239 (2017) [hereinafter “Resale Royalties”].

195

See “Resale Royalties”, supra note 194, at 240; Rizzo, supra note 2.

196

See “Resale Royalties”, supra note 194, at 240; Rizzo, supra note 2.

197

See “Resale Royalties”, supra note 194, at 240; Rizzo, supra note 2.

198

See “Resale Royalties”, supra note 194, at 249 (“Few artists ever tried to use

the Projansky Contract, and even fewer successfully convinced buyers to accept it.

Ironically, only artists whose artworks were already in considerable demand could

insist that buyers accept the Projansky Contract . . .”); Rizzo, supra note 2.

199

See Zhao, supra note 192, at 253.

200

See “Resale Royalties”, supra note 194, at 249.

294 Harvard Journal of Sports & Entertainment Law / Vol. 13

It may be difficult to form enforceable contracts with future buyers that the

artist has no relationship with. A resale right might also be found impermis-

sible in the United States under the first sale doctrine, which cuts off the

leaving subsequent sales unencumbered.

201

The digital, intangible nature of

the art linked with NFTs might affect some of this analysis, but so far the

implications are unknown. While these resale rights are currently part of the

market vogue around NFTs, their use may therefore diminish in the future

and is certainly not guaranteed.

NFTs’ incorporation of resale rights is an example of how NFTs invite

rethinking how we measure creative value. The prevalence and popularity of

resale rights in the NFT world indicates that artists want these rights. That

suggests that copyright law is out of step with how artists today think about

their creative value. As discussed, NFTs offer a way to decouple value from

scarcity and instead commodify value in other ways. Radically, NFTs might

also be taken a step farther: the fictional middleman, represented by receiv-

ing a bit of blockchain in exchange for paying artists, could be cut out

altogether so that one is directly supporting artists and creators. Given the

dubious independent value of the blockchain that represents an NFT,

202

can imagine a world in which we drop the pretense and directly sponsor the

artist the NFT compensates. Rather than paying for an NFT of a digital file

that exists all over the internet, we would simply pay the artist of the digital

file as payment for the aesthetic enjoyment of the digital art without receiv-

ing anything else in return. This idea is idealistic: people like to own things,

and many buy NFTs for the potential return on investment that could ac-

company ownership. But it is an instructive thought exercise because it

challenges our understanding of what is valuable about an artistic experi-

ence. Must we create scarcity and exercise exclusive property rights to enjoy

art,

203

or can we find a way for the support of artists and the virality of art to

exist simultaneously?

Not all creativity exists in spaces built on scarcity and ownership. In

fact, much of the creativity on the internet takes place in a viral world of

endless replication. The creativity on social media

—

a space used by bil-

lions of people

—

is replicated over and over as content is shared. Finding a

201

See id.

202

See Roose, supra note 7 (“There are . . . legitimate questions about what,

exactly, NFT buyers are getting for their money . . . .”).

203

See, e.g., Joan Westenberg, How Music NFTs Will Rewrite the Streaming Econ-

omy, Medium (Nov. 29, 2021), https://perma.cc/ZLP6-MWB7 (“Digital scarcity is

necessary to create a unique user experience and enable fans to form longer-lasting

and more profound connections with their favorite artists.”).

2022 / Of Disaster Girl and Everydays 295

way to monetize content in this environment can be challenging, as people

who have become memes have discovered. NFTs are a means of monetiza-

tion. But maybe they could also open the door to reimagining monetization.

If you are willing to pay for an essentially meaningless bit of blockchain,

might you pay directly for people involved in making art, with no owner-

ship myth attached? And could we also expand the limited way in which we

think about authorship, as we already do with memes? Is there room to

appreciate, in at least some circumstances, the interest of the people in the

photo, which copyright would not acknowledge? So, for instance, could we

have envisioned simply paying Disaster Girl because we love the meme?

Such an idea might seem absurd. But so too is paying up to millions of

dollars for NFTs, which have been characterized as merely “the idea of own-

ership,”

204

rather than real ownership. In the past, directly sponsoring cre-

ators by “patronizing” them was not absurd at all but one of the main ways

for people to support creativity. For instance, during the Renaissance, artists

like Michelangelo and Lenoardo daVinci were supported by wealthy families

who sponsored their careers and gave them the ability to produce their

art.

205

Some commentators have noted that the NFT craze could be the first

step in moving from ownership back to patronage.

206

“[W]hat we are seeing

with NFTs is the emergence of a new type of cultural economy built around

one of the oldest forms of cultural production: patronage.”

207

In other

words, maybe we could consider supporting artists simply to support artists.

The reward, as it was in the past, need not be a digital file; the reward could

be the art created for us and future generations to enjoy.

Paying for creativity in support of a creative community is a growing

part of the NFT world. As discussed, many of those active in the NFT space

refer to it in terms of community, with the money at stake characterized as a

curiosity at best.

208

Indeed, many NFTs do not even pretend to be about

anything other than access to a community. For instance, the website

204

See Gottsegen, supra note 53; see also Rizzo, supra note 2 (describing one NFT

marketplace’s terms of service as reading that NFTs “exist only by virtue of the

ownership record maintained in the Ethereum network. . . . [W]e do not guarantee

that [anyone] can effect [sic] the transfer or title or right in any [NFTs]”); Kaczyn-

ski & Kominers, supra note 154 (“NFTs . . . giv[e] parties something they can agree

represents ownership.”).

205

See, e.g., Victoria L. Schwartz, The Celebrity Stock Market, 52 U.C. Davis L.

Rev. 2033, 2046 (2019) (describing the patronage model).

206

See Rizzo, supra note 2.

207

Berg, supra note 138.

208

See Bruner, supra note 49; see also Kastrenakes, supra note 180 (observing that

the “vibrant communities [that] have formed around” NFTs is one of the best

things about them).

296 Harvard Journal of Sports & Entertainment Law / Vol. 13

“Dreamverse” sells NFT tickets that give access to a party.

209

The Bored

Ape Yacht Club bills itself as a “limited NFT collection where the token

itself doubles as your membership to a swamp club for the apes.”

210

This

means that, for many people, NFTs function “as part of their personal iden-

tity,” with the different NFT communities possessing “different personali-

ties.”

211

As one person in the NFT space explained, “It comes down to

fandom.”

212

The fandom comparison is apt. Paris Hilton, in a primer on NFTs,

praised them for “democratizing art” and “letting creators directly engage

with fans.”

213

She noted that “NFTs can give artists, even if they aren’t well

known, the opportunity to crowdfund their work.”

214

Other observers echo

this point: NFTs are “community-driven,”

215

Creators “who show up, re-

spond to messages (NFT-related or not) and connect with individuals on a

very human level make all the difference” to the success of an NFT.

216

This

close interaction between creators and audience is similar to how fan com-

munities have long operated. Fan creativity is intensely democratic, promot-

ing “maximum inclusiveness” and allowing posting by anyone who

wishes.

217

The main fanfiction archive on the internet, An Archive of Our

Own, employs no algorithms, depending entirely on users’ own choices of

tags and indices of popularity such as hits, comments, and “kudos” to iden-

tify what they want to read.

218

The community itself rates the fics as they

desire, and fan creators constantly engage with fans through social media, fic

209

See, e.g., Ticketing Options, Dreamverse, https://dreamverse.life/ticket-

ing.html (last accessed Mar. 12, 2022) (“Tickets to the Dreamverse Gallery are

available only as NFTs, and tickets to Dreamverse Party are available as both NFTs

and traditional tickets (non-NFTs).”).

210

BAYC, Bored Ape Yacht Club, https://perma.cc/6WQP-XKEU (last accessed

July 13, 2022); see also Kaczynski & Kominers, supra note 154 (noting that the

Bored Ape Yacht Club “has grown to include high-end merchandise, social events,

and even an actual yacht party”).

211

Kaczynski & Kominers, supra note 154.

212

Krueger, supra note 181.

213

See, e.g., Jeff Wilser, ‘I’m Obsessed’: Paris Hilton on NFTs, Empowering Female

Creators and the Future of Art, CoinDesk (Apr. 16, 2021), https://perma.cc/PW3V-

AFNZ.

214

Team Paris, supra note 193.

215

Elspeth Taylor, The Next Wave of NFTs is Starting With Community First,

Decrypt (Nov. 15, 2021), https://perma.cc/EY2M-E3FM.

216

Fan, supra note 174.

217

accessed Mar. 13, 2022).

218

See Terms of Service FAQ, Archive of Our Own, https://perma.cc/Q2SZ-

AER6 (last accessed Mar. 13, 2022).

2022 / Of Disaster Girl and Everydays 297

comments, Discords, and other means. Fanartists have crowdfunded their

work for years without the necessity to give away NFTs to attract sponsors.

For instance, an artist named Chekhov “creating comics, fanart and more!”

enjoys 467 monthly patrons on Patreon, a popular crowdfunding platform

for creators.

219

On the same platform, ov_fanarts “is creating Spooky Fan

Comics,” with over 300 monthly patrons.

220

On Patreon, fanartists usually

give away perks like early access and bonus content

221

– incidentally, exactly

what NFTs often use as enticements.

Fandom, like NFTs, is therefore about community at heart, not finan-

cial incentives. Stripped of their blockchain glamour, NFTs operate strik-

ingly like a fanartist’s Patreon. “[T]he community one builds around NFTs

quite literally creates those NFTs’ underlying value.”

222

This is a phenome-

non fan communities know well and whole-heartedly endorse.

The dark side of NFTs has revealed exactly how quickly tools wel-

comed as godsends for creative compensation become manipulated into in-

vestment tools that exploit creativity without compensation.

223

NFTs

provide people with the ability to perform art theft “at a completely new

scale,” on platforms that are “barely moderated.”

224

While the blockchain

has been heralded as unassailable, its security works only to protect sellers

(and sometimes uncertainly at that).

225

It offers little security to creators.

226

Given the dangers of NFTs, it is worth considering whether a more straight-

forward way of supporting artists exists: by directly patronizing them. If you

want to support an artist, you can support them in ways more varied and

interesting than merely buying something. Fan communities have been

finding a way to encourage creativity without scarcity for decades. If we are

open to it, NFTs could be another step toward embracing this idea.

219

Chekhov, Patreon, https://perma.cc/6KBZ-4FAN (last accessed Mar. 12,

2022).

220

Ov_fanarts, Patreon, https://perma.cc/MMY3-8E26 (last accessed Mar. 12,

2022).

221

See id.

222

Kaczynski & Kominers, supra note 154.

223

See Collier, supra note 41 (“While NFT proponents tout the technology as a

way to revolutionize arts patronage, the rapidly growing digital marketplaces that

enable those sales have so far done little to stop that piracy.”).

224

Id.

225

See Shanti Escalante-De Mattei, Thieves Steal Gallery Owner’s Multimillion-Dol-

lar NFT Collection: ‘All My Apes Gone’, ARTnews (Jan. 4, 2022), https://perma.cc/

4ULU-CWSM.

226

See Mitchell Clark, Photoshop Will Get a ‘Prepare as NFT’ Option Soon, The

Verge (Oct. 26, 2021), https://perma.cc/5N82-U7V3 (discussing the necessity to

invent new tools to try to protect creators better in the NFT marketplace).

298 Harvard Journal of Sports & Entertainment Law / Vol. 13

NFTs have been hailed as a boon to artists, many of whom are enjoying

massive windfalls.

227

However, NFTs are not primarily about compensating

artists but about creating investment opportunities. Artists are a collateral

beneficiary

228

and sometimes victims, given the increasing issue of fraud in

the market.

229

Beyond NFTs’ implications for artists, the environmental im-

pact of NFTs is devastating.

230

Because of the amount of electricity used to

power the blockchain on which NFTs depend, the sale of a single NFT can

consume as much energy as an art studio might use in two years.

231

Bitcoin, a type of cryptocurrency that also relies on the energy-gobbling

blockchain, were a country, it would be “the 27th most energy-consuming

country in the world.”

232

And, as discussed, their justification for existence

is shaky: the “one true original” gimmick is a little like “the emperor’s new

clothes”: it falls apart upon close examination, when one realizes that the

only thing being purchased is a token that points to a digital copy of a piece

of art that could disappear at any time.

233

The volatility of the NFT market

can be seen as a reflection of the inarticulateness of what its value actually

is.

234

When it eventually collapses, artists will see their resale streams dry

up.

However, what meme NFTs reveal about how copyright, authorship,

and value are understood could be a boon to artists, even after the next fad

arrives. NFTs ask the question of what we consider ourselves to get in ex-

change for supporting creators. The ownership myth of NFTs suggest a

model of supporting creators we admire without expecting ownership of a

227

See, e.g., Wilser, supra note 213 (“It gives the creator better economics. We’re

definitely living in the golden age of the creator, so I can’t wait to see what the

future holds.”).

228

Indeed, one NFT platform is consciously striving to find “collectors who ap-

preciate the pieces” rather than “just bots who are trying to flip it on the secondary

market.” Eileen Kinsella, A New NFT Venture Has an Innovative Idea: Make Buyers

Prove They Know Something About an Artist Before They Bid, Artnet (Jan. 4, 2022),

https://perma.cc/DTC6-4U39.

229

See Collier, supra note 41.

230

See Bruner, supra note 49; Roose, supra note 7; Wood, supra note 54.

231

Gregory Barber, NFTs Are Hot. So Is Their Effect on the Earth’s Climate, Wired

(Mar. 6, 2021), https://perma.cc/fsl9-rt2c.

232

Niall McCarthy, Bitcoin Devours More Electricity Than Many Countries, Forbes

(May 5, 2021), https://perma.cc/QJ49-4ALA.

233

See Kastrenakes, supra note 180 (“As I left, he followed after me to make a

suggestion for my article, imploring me to ‘put in something about the emperor’s

new clothes.’”).

234

See “Cryptokitties”, supra note 111, at 250-51 (describing the success of

Cryptokitties, one of the first NFT projects, but also noting that the bottom fell out

of the market fairly quickly); Bruner, supra note 49.

2022 / Of Disaster Girl and Everydays 299

piece of their creativity in return. Perhaps more importantly, NFTs invite us

to consider whether the creativity that financially supporting an artist gen-

erates in and of itself is something valuable that we get in exchange. After

all, the underlying premise of the Copyright Clause of the Constitution is

that there is value in creativity, period.

NFTs have allowed many people to be compensated in ways they never

imagined in our existing copyright structure, and some have responded with

awe and gratitude. After the sale of her meme NFT in 2021, the subject of

the Overly Attached Girlfriend meme, Laina Morris, tweeted: “You guys are

INSANE. Thank you to everyone who bid . . . . Truly, you have no idea how

this is going to change my life. I mean it. I am so incredibly thankful and

also still just BLOWN AWAY. So weird. So cool. Wtf. Thank you, in-

ternet.”

235

This feels like what NFTs’ marketing wants them to be: a digital

exchange that brings us closer together as humans.

236

And it sounds like

exactly what other creators want: “I was happy when I saw my dance all

over . . . . But I wanted credit for it.”

237

235

Laina Morris (@laina622), Twitter (Apr. 3, 2021), https://perma.cc/FH4D-

WCUS.

236

See, e.g., BAYC, supra note 210 (“The club is open! Ape in with us.”).

237

Pruitt-Young, supra note 117.

Time to Tinker: A New Standard for Protecting

the First Amendment Rights of College Athletes

Brian L. Porto*

I. Introduction

As winter gave way to spring and summer in 2021, longstanding prac-

tices in the relations between college athletes and their respective institu-

tions yielded to the shifting winds of dramatic, even historic, change. In

April of 2021, the National Collegiate Athletic Association (NCAA) ap-

proved a rule change that enables athletes in all sports who have not yet

transferred from one institution to another to do so once in a college career

and be immediately eligible to play at the new institution.

The new rule

took effect at the start of the 2021-22 academic year.

On the heels of the new transfer rule came a decision of the Supreme

Court of the United States, NCAA v. Alston,

which affirmed a ruling by the

* Professor of Law, Vermont Law School. J.D., Indiana University-Bloomington,

1987; Ph.D., Miami University (Ohio), 1979; B.A., University of Rhode Island,

1974.

See NCAA 1-Time Transfer Rule Clears Last Step, Starts with 2021-22 Academic

Year, ESPN (Apr. 28, 2021), https://www.espn.com/espn/print?id=31353578

[https://perma.cc/G9LM-L998]. The so-called one-time exception had previously

been available to some college athletes, but not those who compete in football,

men’s and women’s basketball, and men’s ice hockey, to whom the exception now

applies.

See id. Athletes who have already transferred once and seek to do so again, and

to be immediately eligible to play for the new institution, may be able to obtain a

waiver allowing such immediate eligibility, but the waiver criteria are likely to be

more stringent than they have previously been. See Ross Dellenger, ‘It’s Going to

Change the Landscape’: The NCAA’s Transfer Revolution Is Here, and Its Impact Will Be

Felt Far and Wide, Sports Illustrated (Apr. 14, 2021), https://www.si.com/col-

lege/2021/04/14/ncaa-transfers-rule-change-football-basketball [https://perma.cc/

F8QU-UQNY].

141 S. Ct. 2141 (2021).

302 Harvard Journal of Sports & Entertainment Law / Vol. 13

United States Court of Appeals for the Ninth Circuit. The appeals court had

held that the NCAA and its members were violating Section I of the Sher-

man Antitrust Act by capping the expenses institutions can incur on behalf

of athletes for “academic-related costs,” such as internships, computers, and

study abroad programs.

In affirming that decision, the Supreme Court re-

jected the NCAA’s traditional argument that its important interest in keep-

ing college sports distinct from professional sports means that courts should

give only a “quick look” to antitrust claims lodged against NCAA rules.

Alston will likely cause the NCAA to think twice about imposing new rules

with economic implications because it can no longer expect such rules to

receive judicial deference.

Another big change to college sports in 2021 was a recognition, thus

far by state law and NCAA acquiescence, of college athletes’ right to earn

income from the commercial use of their names, images, and likenesses

(NIL), such as by signing autographs, endorsing products, and posting social

media videos for a fee.

As of late May 2022, twenty-seven states had en-

acted statutes that, in general, prohibit institutions in those states from de-

nying to their athletes opportunities to sign endorsement or sponsorship

contracts with companies seeking the athletes’ services. Such laws took effect

in six states on July 1, 2021, with the remainder slated to follow by 2023.

Michael McCann, Supreme Court Rules Unanimously Against NCAA in Alston

Case, Sportico (June 21, 2021, 10:29 AM), https://www.sportico.com/law/analysis/

2021/supreme-court-rules-unanimously-against-ncaa-in-alston-case-12346321821

[https://perma.cc/YV67-A96R].

Id.

See id. See also Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021), which

may also affect college sports in the future. The Mahanoy Court held that a school

district violated the First Amendment when it punished a high school cheerleader

for posting on a social media site a profane message that she sent from an off-

campus location on a weekend. If courts apply this decision to the college context,

they could enhance considerably the First Amendment rights of college athletes,

which are the focus of this article.

See Eben Novy-Williams & Emily Caron, NIL Deals Arrive Quickly as NCAA

Athletes Flex New Financial Freedom, Sportico (July 1, 2021, 11:00 AM), https://

www.sportico.com/leagues/college-sports/2021/nil-deal-examples-1234633234/

[https://perma.cc/JE36-NEQR].

See Tracker: Name, Image and Likeness Legislation by State, Bus. of Coll. Sports,

https://www.businessofcollegesports.com/tracker-name-image-and-likeness-legisla-

tion-by-state/ [https://perma.cc/P5X5-H4D4] (last updated May 29, 2022). Instead

of adopting its own NIL rule, the NCAA has settled for a “uniform interim policy

suspending name, image and likeness rules for all incoming and current athletes in

all sports.” Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image and Likeness

Policy, NCAA (June 30, 2021, 4:20 PM), https://www.ncaa.org/about/resources/me-

dia-center/news/ncaa-adopts-interim-name-image-and-likeness-policy [https://

2022 / First Amendment Rights of College Athletes 303

A common theme underlies the recent changes in the transfer policy

and the NIL policy: the NCAA and its member institutions will treat ath-

letes like their nonathlete classmates, who have long been free to transfer if

they wished and to earn income from their talents if so inclined. Still, many

institutions treat athletes far more restrictively than their nonathlete class-

mates regarding the exercise of First Amendment rights. For example,

coaches gave the following instructions to football players at Old Dominion

University in Virginia: “Don’t use Twitter

—

ever. Don’t use Facebook un-

less you ‘friend’ the athletic department, so administrators can read what

you are saying. Don’t write anything that might reflect poorly on the

university.”

Because ordinary college students are not subject to such restrictions on

their speech, Professor Frank LoMonte asks: “Is there something so unique

about the college/athlete relationship that it justifies discarding well-estab-

lished constitutional principles?”

This article will answer with a firm no; athletes are not so different

from other college students as to warrant severe restrictions on their social

media use or the policing of their social-media accounts by third-party ven-

dors serving as monitors.

Neither are athletes so different from other stu-

dents that coaches or administrators can require them to stand (or kneel)

perma.cc/RC69-3USL]. The reason for the “interim” policy is that the NCAA

awaits enactment by Congress of a uniform NIL law. NCAA president Mark Em-

mert has said, “We very much want, and frankly need, a preemption bill that would

say that there’s going to be a rule for the country, not 50.” Haley Yamada, NCAA

Adopts Policy That Allows Athletes to Profit off Name, Image and Likeness, ABC News

(June 30, 2021, 6:05 PM), https://abcnews.go.com/Sports/ncaa-vote-policy-al-

lowing-athletes-profit-off-image/story?id=78582491 [https://perma.cc/XFL4-

WWJ5].

Frank D. LoMonte, Fouling the First Amendment: Why Colleges Can’t, and

Shouldn’t, Control Student Athletes’ Speech on Social Media, 9 J. Bus. & Tech. L. 1, 2

(2014) [hereinafter LoMonte, Fouling the First Amendment]. See also Harry Minium,

ODU Football Twitter Ban Among Most Restrictive in U.S., Virginian-Pilot (Sept. 15,

2012), https://www.pilotonline.com/sports/college/old-dominion/article_a0fcc378-

fef6-56cd-8128-3936d1f85b5e.html [https://perma.cc/T7XB-VV3A].

LoMonte, Fouling the First Amendment, supra note 9, at 3.

Several third-party vendors, such as UDiligence, Varsity Monitor, and Centrix

Social, contract with institutions to monitor the social media accounts of athletes.

See John Browning, Universities Monitoring Social Media Accounts of Student Athletes, 75

Tex. B.J. 840, 842 (2012).

304 Harvard Journal of Sports & Entertainment Law / Vol. 13

before a game in support of a particular group or issue position

or to sing a

school song linked to a history of racism.

This article will contend that college athletes deserve the same treat-

ment as their nonathlete classmates regarding not only transfer rules and

compensation for NIL use, but also free-speech rights. Athletes should be

free to speak or not speak, as they wish, subject only to limited restrictions.

To advance these ideas, Part II will survey current First Amendment juris-

prudence pertaining to student speech. Part III will examine this jurispru-

dence in the context of protest speech by college athletes, while Part IV will

conduct the same examination for social-media speech. Part V will present a

plan for protecting athletes’ free-speech rights without sacrificing team co-

hesion or player confidentiality. Part VI will conclude that under this plan,

athletes will have the same opportunity as their nonathlete classmates to

hone the skills necessary to participate effectively in a democratic society.

Unlike their athletic skills, the democratic-participation skills facilitated by

freedom of speech will last a lifetime.

Former Virginia Tech women’s soccer player Kiersten Hening has sued her

former coach, alleging that after she refused to join teammates before games in

kneeling in support of “Black Lives Matter,” the coach engaged in a “campaign of

abuse and retaliation” against her that caused her to leave the team. Mike Barber,

Former Virginia Tech Soccer Player Sues Coach, Claiming She Was Forced off Team for

Refusing to Kneel Before Games, Richmond Times- Dispatch, (Apr. 19, 2021),

https://richmond.com/sports/college/former-virginia-tech-soccer-player-sues-coach-

claiming-she-was-forced-off-team-for-refusing/article_50b30056-bdb4-5418-9e27-

abd18a761dc3.html [https://perma.cc/CA3U-XQ45].

At the University of Texas at Austin, Black football players have refused to

participate in the postgame ritual of singing “The Eyes of Texas Are Upon You,”

the institution’s official alma mater song and an unofficial fight song, because of its

history of being sung in minstrel shows in which white performers appeared in

blackface. The University has declined the requests of Black athletes and others to

drop the song and, in response to backlash from fans after players left the field

during its singing in 2020, the athletic director ordered the players to remain

standing on the field while the song is sung. Joe Levin, The Damning History Behind

UT’s ‘The Eyes of Texas’ Song, Tex. Monthly (June 17, 2020), https://

www.texasmonthly.com/arts-entertainment/ut-austin-eyes-of-texas-song-racist

[https://perma.cc/Y245-EQ7T]. See also Jim Vertuno, Conflict Raging over ‘The Eyes of

Texas’ School Song, Associated Press (Oct. 23, 2020), https://apnews.com/article/

eyes-of-texas-controversy-school-song-ced5a2c90f2f847fb58be59971d7a494

[https://perma.cc/C8XW-G87B].

2022 / First Amendment Rights of College Athletes 305

II. Student Speech Under the First Amendment

A. Forum Analysis and the Tinker Standard

Ordinarily, when considering a First Amendment issue, the initial step

is to conduct a forum analysis. The aim of this inquiry is to determine

whether the speech at issue has occurred or will occur in a traditional public

forum, a limited public forum, or a nonpublic forum. That determination

will dictate the level of scrutiny a court would apply to regulation of the

speech.

The Supreme Court has explained that in the traditional public

forum, which includes public streets, sidewalks, and parks, government may

not restrict speech based on its content without a compelling state interest

and a narrowly tailored regulation.

Nevertheless, government may impose

content-neutral time, place, or manner restrictions, such as banning the use

of bullhorns after a certain hour of the day.

A limited public forum is defined by public property that government

has opened for use by the public as the site of expressive activity, such as a

state university campus, a municipal theater, or a school board’s meeting

room.

When a limited public forum is open

—

to university-sponsored stu-

dent organizations, for example

—

the same jurisprudence that applies to a

traditional public forum applies to the limited public forum. Absent a com-

pelling state interest and a narrowly tailored regulation, content neutrality

is required.

The nonpublic forum is defined as public property that has not tradi-

tionally been a site for expressive activity nor has government designated it

as a site for such activity. In this setting, government enjoys expanded regu-

latory authority, but its rules governing speech must, nevertheless, be rea-

sonable and not merely reflect opposition to the speaker’s viewpoint.

That

is, the rules must be content (viewpoint) neutral.

Thus, under the forum

See Eric Bentley, Unnecessary Roughness: Why Athletic Departments Need to Rethink

Whether to Aggressively Respond to the Use of Social Media by Athletes, 75 Tex. B.J. 834,

836 (2012) [hereinafter Bentley, Unnecessary Roughness].

Perry Educ. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 45 (1983).

See Frank D. LoMonte, The Key Word Is Student: Hazelwood Censorship Crashes

the Ivy-Covered Gates, 11 First Amend. L. Rev. 305, 312 (2013) [hereinafter

LoMonte, The Key Word Is Student].

See id. See also John Ryan Behrmann, Comment, Speak Your Mind and Ride the

Pine: Examining the Constitutionality of University-Imposed Social Media Bans on Student-

Athletes, 25 Jeffrey S. Moorad Sports L.J. 51 (2018).

See Behrmann, supra note 17, at 54.

See id. at 57.

See id. at 55.

306 Harvard Journal of Sports & Entertainment Law / Vol. 13

doctrine, although government property belongs to the public, not all gov-

ernment property is equally suitable for expressive activity. Therefore, dif-

ferent regulations apply to different types of public forums.

Forum analysis applies to an act of student protest. Regulatory stan-

dards would vary, as noted above, depending on whether, for example, a

student delivered a speech opposing a tuition increase, a campus statue of a

Confederate general, or the institution’s fight song in a public park, on the

campus quadrangle, or in a French literature class in which the student’s

topic was not on the agenda. Courts analyze student speech on social media

differently; such expression is “off-campus speech,” not subject to location-

based variations in regulation.

Instead, a court would uphold an institu-

tion’s punishment of social-media speech only if the institution could show

that the speech was a material disruption to institutional activities or fit into

another category of unprotected speech.

Traditional categories of speech

that the first Amendment leaves unprotected include: (1) fighting words or

a “true threat”; (2) defamatory statements; (3) obscenity, such as the posting

of a link to a hardcore pornographic website; (4) a violation of criminal law,

such as a student posting a picture of himself committing a crime; (5) a

violation by an athlete of reasonable team or NCAA rules (e.g., violating

curfew or accepting a gift from a team booster); and (6) harassing speech,

such as a tweet that features sexually harassing conduct directed at another

student.

The “material disruption” standard noted above derives from the Su-

preme Court’s landmark decision in Tinker v. Des Moines Independent Commu-

nity School District,

in which the Court recognized, for the first time, that

students (and teachers) in public schools are entitled, under the First and

Fourteenth Amendments, to assert their freedom of speech in the classroom,

in the cafeteria, on the athletic field, indeed anywhere on school grounds

during school hours.

In Tinker, three Iowa schoolchildren wore black arm-

bands to school in December 1965 to protest the Vietnam War and to ex-

press support for a truce. School authorities suspended them from attending

classes until they returned without the armbands, which they did when the

See LoMonte, The Key Word is Student, supra note 16, at 312.

See Bentley, Unnecessary Roughness, supra note 14, at 836.

See id.

Id. at 837-838.

393 U.S. 503 (1969).

See id. at 512-513. See also Diane Heckman, Does Being a Student-Athlete Mean

Having to Say You’re Sorry? First Amendment Freedom of Speech, Apologies, and Interscho-

lastic Athletic Programs, 293 Educ. L. Rep. 549, 556 (2013).

2022 / First Amendment Rights of College Athletes 307

new year began.

Finding for the students, the Court explained that “First

Amendment rights, applied in the light of the special characteristics of the

school environment, are available to teachers and students.”

“It can hardly

be argued that either students or teachers shed their constitutional rights to

freedom of speech or expression at the schoolhouse gate.”

It was significant that, in this instance, the students’ wearing of black

armbands did not interrupt the work of the school or intrude on the rights

of other students.

It was, in the words of Justice Fortas’s majority opinion,

“closely akin to pure speech.”

For the State to justify prohibiting expres-

sion by students at school, “it must be able to show that its action was

caused by something more than a mere desire to avoid the discomfort and

unpleasantness that always accompany an unpopular viewpoint.”

“Cer-

tainly,” Justice Fortas continued, “where there is no finding and no showing

that engaging in the forbidden conduct would ‘materially and substantially

interfere with the requirements of appropriate discipline in the operation of

the school,’ the prohibition cannot be sustained.”

And a student’s free-

speech rights are not confined to the classroom. Justice Fortas explained,

When he is in the cafeteria, or on the playing field, or on the campus

during the authorized hours, he may express his opinions, even on contro-

versial subjects like the conflict in Vietnam, if he does so without “materi-

ally and substantially interfer[ing] with the requirements of appropriate

discipline in the operation of the school and without colliding with the

rights of others.”

B. Exceptions to Tinker

But if, as one commentator has observed, the Court constructed “the

bulwark of free speech rights for students”

in Tinker, it has since chipped

away at that bulwark in three later cases: Bethel School District v. Fraser,

Hazelwood School District v. Kuhlmeier,

and Morse v. Frederick.

In Fraser, a

See 393 U.S. at 504.

Id. at 506.

Id.

See id. at 508.

Id. at 505.

Id. at 509.

Id. (quoting Burnside v. Byers, 363 F.2d 744, 749 (5th Cir. 1966)).

Id. at 513, (quoting 363 F.2d at 749).

Heckman, supra note 26, at 561.

478 U.S. 675 (1986).

484 U.S. 260 (1988).

308 Harvard Journal of Sports & Entertainment Law / Vol. 13

high school student delivered a speech nominating a fellow student for a

class officer position during a high school assembly at which many attendees

were as young as fourteen years old. Throughout the speech, the speaker

“referred to his candidate in terms of an elaborate, graphic, and explicit

sexual metaphor.”

In so doing, he violated a school rule against “obscene,

profane language or gestures,” whereupon he was suspended from classes for

three days and removed from a list of candidates for graduation speaker.

The trial court held that these sanctions violated the First Amendment, and

the Ninth Circuit Court of Appeals affirmed.

The Supreme Court reversed, distinguishing this case from Tinker be-

cause “the penalties imposed [here] were unrelated to any political view-

point.”

“A high school assembly,” the Court observed, “is no place for a

sexually explicit message directed towards an unsuspecting audience of teen-

age students.”

Moreover, “[t]he schools, as instruments of the state, may

determine that the essential lessons of civil, mature conduct cannot be con-

veyed in a school that tolerates lewd, indecent, or offensive speech and con-

duct such as that indulged in by [the speaker].”

Thus, the Fraser Court

created an exception to the Tinker standard for “lewd, indecent, or offensive”

student speech.

The Court addressed student speech again two years later in Hazelwood

School District v. Kuhlmeier, in which the issue was the extent to which educa-

tors may exercise editorial control over the contents of a high school newspa-

per produced as part of the school’s journalism curriculum.

Three

alumni

—

former editors of a high school newspaper

—

alleged that school

officials violated their First Amendment rights by deleting two pages worth

of articles from a particular issue of the newspaper.

The principal had ob-

jected to two articles scheduled to appear in the paper; one article described

three students’ experiences with pregnancy, and the other discussed the im-

pact of divorce on students at the school.

In the principal’s view, the preg-

nancy article’s references to sex and birth control were inappropriate for

younger students at the high school, and the divorce article’s identification

551 U.S. 393 (2007).

Bethel Sch. Dist. v. Fraser, 478 U.S. at 677-678.

Id. at 678.

See id.

Id. at 685.

Id.

Id. at 683.

See id.

See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 262 (1988).

Id.

Id. at 263.

2022 / First Amendment Rights of College Athletes 309

by name of a student of divorced parents, accompanied by criticisms of her

father, violated the parents’ privacy, especially because the student journal-

ists had not interviewed the parents.

The trial court found that no First Amendment violation had occurred,

but the Eighth Circuit Court of Appeals reversed, reasoning that, under

Tinker, school authorities could only suppress the articles upon a reasonable

forecast of disruption of school activities if the articles were printed, and

they could make no such forecast here.

The Supreme Court reversed the

Court of Appeals, noting that Tinker did not govern because the school

newspaper was not a “public forum,” as the appellate court had viewed it,

but rather, “a supervised learning experience for journalism students.”

Therefore, school officials could regulate the newspaper’s contents “in any

reasonable manner,” just as they could regulate the contents of the classes

they offered.

In other words, Tinker was about whether a school had to

tolerate particular student speech, but Hazelwood was about whether a school

had to promote particular student speech; the school enjoys greater discretion

in the latter circumstances.

Thus, the Court held that “educators do not offend the First Amend-

ment by exercising editorial control over the style and content of student

speech in school-sponsored expressive activities so long as their actions are

reasonably related to legitimate pedagogical concerns.”

In this instance,

considering the privacy concerns of the pregnant students and of the di-

vorced parents of another student, and the principal’s view that insufficient

time existed to complete the necessary textual changes and still meet the

printing schedule, the Court concluded that the principal had acted reasona-

bly in omitting the pregnancy and divorce articles “so that students would

not be deprived of the newspaper altogether.”

Almost two decades later, student speech again reached the Supreme

Court in Morse v. Frederick.

As the Olympic Torch Relay passed through

Juneau, Alaska in 2002 on its way to Salt Lake City, it passed by Juneau-

Douglas High School, where the principal let students leave class to observe

the event from either side of the street.

As the relay reached the school,

Id. at 265.

Id.

Id. at 270.

Id. at 270–71.

See id.

Id. at 273.

See id. at 275–76.

551 U.S. 393 (2007).

See id. at 397.

310 Harvard Journal of Sports & Entertainment Law / Vol. 13

Joseph Frederick, a senior, joined his friends in unfurling a fourteen-foot

banner that proclaimed, “BONG HITS 4 Jesus,” resulting in his suspension

from classes for ten days.

After exhausting his administrative appeals with-

out success, Frederick sued the principal, Morse, but the trial court granted

summary judgment for Morse. The Ninth Circuit reversed, however, reason-

ing that the school had failed to show, as Tinker requires, that Frederick’s

speech created a substantial risk of disrupting school activities.

Chief Justice Roberts, writing for the Court and citing Fraser for sup-

port, wrote that “the constitutional rights of students in public school are

not automatically coextensive with the rights of adults in other settings”

and that “the mode of analysis set forth in Tinker is not absolute.”

For

Roberts, the key fact in the case was that “Principal Morse thought the

banner would be interpreted by those viewing it as promoting illegal drug

use, and that interpretation is plainly a reasonable one.”

“The concern

here,” Chief Justice Roberts continued, “is not that Frederick’s speech was

offensive, but that it was reasonably viewed as promoting illegal drug use,”

an activity to be deterred because “[d]rug abuse can cause severe and perma-

nent damage to the health and well-being of young people. . ..”

Thus, the

Court added speech advocating the use of illegal drugs to the list of excep-

tions to the Tinker “material disruption” standard for regulating student

speech.

Taken together, Fraser, Hazelwood, and Morse establish that students’

free-speech rights “are not automatically coextensive with the rights of

adults in other settings.”

Indeed, students’ free-speech rights are subject to

restrictions because of the characteristics of the school environment, and

school authorities need not tolerate student speech that threatens to “under-

mine the school’s basic educational mission.”

Still, as Professor Johnson

has noted, despite the erosion in Tinker’s bulwark of protection for student

speech, Tinker “remains good and controlling law for the majority of student

See id. at 397–98.

See id. at 398–99.

Id. at 404–05 (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S 675, 682

(1986)).

Id. at 405.

Id. at 401.

Id. at 407–09.

Id. at 409–10.

Rebecca L. Zeidel, Note, Forecasting Disruption, Forfeiting Speech: Restrictions on

Student Speech in Extracurricular Activities, 53 B.C. L. Rev. 303, 306 (2012).

2022 / First Amendment Rights of College Athletes 311

speech cases”

and its “material-disruption” standard still governs cases in-

volving college athletes’ speech.

C. Alternative Free-Speech Standards in the College Setting

1. The Hazelwood Standard

That situation could change, though, absent a Supreme Court decision

that specifically addresses the speech of college students generally or college

athletes specifically, because some courts have rejected the Tinker standard in

favor of the Hazelwood standard, even in the college setting. Hazelwood

carved out an exception to Tinker for “curricular” speech

—

specifically,

speech promoted by the school through its student newspaper

—

which is

subject to regulation by school authorities.

Professor LoMonte has charac-

terized the justifications for such regulation as (1) the “maturity” rationale,

meaning that vulnerable listeners and readers need protection from speech

on certain adult topics, and (2) the “disassociation rationale,” meaning that

schools should be free to separate themselves from speech that would align

them with controversial political views or that sets a poor educational exam-

ple.

Instead of the highly speech-protective Tinker standard, which re-

quires the government to show a “material and substantial disruption” of

regular school activities to warrant suppressing speech, the Hazelwood Court

held that school authorities could suppress “school-sponsored expressive ac-

tivities” merely by showing that “their actions are reasonably related to

legitimate pedagogical concerns.”

The Court did not specify in Hazelwood,

though, whether its new standard should apply to college students.

Nevertheless, several federal appellate courts have extended the Hazel-

wood standard to the college setting. In Axson-Flynn v. Johnson, the court

concluded that speech used in college acting classes, as part of the curricu-

Noel Johnson, Tinker Takes the Field: Do Student Athletes Shed Their Constitu-

tional Rights at the Locker Room Gate?, 21 Marq. Sports L. Rev. 293, 295 (2010).

See id. at 306.

See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270 (1988).

See LoMonte, The Key Word Is Student, supra note 16, at 306.

Id. at 317 (citing Hazelwood, 484 U.S. at 273).

See id. at 319. In Hazelwood, a footnote stated: “A number of lower federal

courts have similarly recognized that editors’ decisions with regard to the content of

school-sponsored newspapers, dramatic productions, and other expressive activities

are entitled to substantial deference. We need not now decide whether the same

degree of deference is appropriate with respect to school-sponsored expressive activi-

ties at the college and university level.” Hazelwood, 484 U.S. at 273–74, n.7 (cita-

tions omitted).

312 Harvard Journal of Sports & Entertainment Law / Vol. 13

lum, supervised by faculty members and designed to impart knowledge or

skills, was school-sponsored speech governed by Hazelwood and subject to

regulation “in any reasonable manner.”

A genuine issue of material fact

existed as to whether university officials’ requirement that an acting student

use certain profane words prohibited by her Mormon faith was reasonable

pedagogy or a pretext for religious discrimination.

Similarly, in Hosty v.

Carter,

the court held that “Hazelwood’s framework applies to subsidized

student newspapers at colleges as well as elementary and secondary

schools.”

The defendant Dean of Students was entitled to qualified immu-

nity from damages in a suit arising from the refusal by student editors of a

college newspaper to submit to prepublication review by the defendant.

And in Ward v. Polite,

the court observed that “[n]othing in Hazelwood

suggests a stop-go distinction between student speech at the high school

and university levels, and we decline to create one.”

The court reversed a

grant of summary judgment for the defendant and held that a reasonable

jury could find (1) a professional counseling association’s code of ethics did

not bar the plaintiff graduate student’s request for the transfer of a gay client

to another counselor because of the plaintiff’s religious opposition to homo-

sexuality and (2) the university had used the request as a pretext for silenc-

ing the plaintiff by expelling her from the graduate program.

At either

level, then, according to the Hosty court, public educators may limit student

speech in school-sponsored expressive activities as long as their actions are

“reasonably related to legitimate pedagogical concerns.”

Professor LoMonte has argued that the Hazelwood standard should not

govern in the college setting because neither its maturity rationale nor its

disassociation rationale is appropriate there.

The former is inappropriate

because, in the college context, both the speakers and the listeners are old

enough that neither need protection from “unsuitable” material.

The lat-

ter is also inappropriate because no reasonable listener would mistake the

message of an individual college student for that of the student’s institu-

See Axson-Flynn v. Johnson, 356 F.3d. 1277, 1284–85 (10th Cir. 2004) (cit-

ing Hazelwood, 484 U.S. at 270).

Id. at 1293.

412 F.3d 731 (7th Cir. 2005)

Id. at 735.

See id. at 739.

67 F.3d 727 (6th Cir. 2012).

Id. at 733–34.

See id. at 735.

Id. at 733 (citing Hazelwood, 484 U.S. at 273).

See LoMonte, The Key Word Is Student, supra note 16, at 341–43.

See id. at 341.

2022 / First Amendment Rights of College Athletes 313

tion.

Thus, “[b]ecause the listening audience on a college campus is capa-

ble of handling mature subject matter and is not physically constrained to

endure unwelcome speech, colleges have no need for the Hazelwood level of

control over what their students say and write.”

According to this view, the Tinker and Hazelwood standards are separate

and distinct because they concern fundamentally different varieties of

speech. As suggested above, the Tinker standard concerns “speech that the

government is asked to tolerate,” whereas the Hazelwood standard concerns

“speech that the government is asked to affirmatively promote.”

Natu-

rally, government should have more discretion to regulate speech it seeks to

promote than speech it merely needs to tolerate. Thus, according to the

above commentary, “courts that rely on Hazelwood to ratify the punishment

of college students who question institutional policies are obliterating this

distinction.”

2. The Pickering/Connick/Garcetti Standard

Whatever its benefits or burdens, though, Hazelwood is not the only

alternative to the Tinker standard for governing the free-speech rights of

college students. The speech rights of college students who participate in

extracurricular activities, including athletics, are sometimes analogized to

public employees’ speech rights on the theory that, like public employees

who represent the governments for which they work, students who partici-

pate in extracurricular activities represent their respective institutions.

Under this theory, a court could apply reasoning akin to that used by the

Supreme Court in Garcetti v. Ceballos

to college athletes. The Court held in

that case that a public employee whose speech results from his official job

duties (i.e., a deputy district attorney whose office memorandum challenges

alleged inaccuracies in a search warrant affidavit) lacks First Amendment

protection for that speech. But when that same public employee speaks, as a

private citizen, about a matter of public concern (i.e., whether state court

judges should be elected or appointed), the employee’s comments may enjoy

First Amendment protection, unless the public employer has adequate justi-

fication for treating the employee differently from other members of the

See id. at 343–45.

Id. at 358.

Id. at 360.

Id.

See Zeidel, supra note 65, at 308.

547 U.S. 410 (2006).

314 Harvard Journal of Sports & Entertainment Law / Vol. 13

public.

If a court applied the public-employee framework to college ath-

letes, it could hold that an athlete who speaks as a private citizen about a

matter of public concern, such as by engaging in a public protest on campus

after practice, enjoys First Amendment protection.

Yet, the same court

could hold that for an athlete who speaks as an athlete, such as by boycott-

ing practices or games, no such protection is available.

Professor Meg Penrose contends that the public-employee theory of

Garcetti is more appropriate to college athletes than Tinker’s material-disrup-

tion standard. In her view, “[c]ollege athletes are constitutionally unique”

because they “regularly agree to rules and regulations that are not imposed

on ordinary college students, including policies relating to grooming, gam-

bling, drinking, pornography, taunting, cursing and even tobacco use.”

“Simply put,” she states, “college athletes are considered to be special and

different, particularly when it comes to speech and expressive rights.”

“This choice to voluntarily participate in athletics,” she continues, “oper-

ates, at least partially, as a waiver of speech and expressive rights.”

Accord-

ingly, the appropriate standard under which to evaluate the speech of college

athletes is that which courts apply to public employees who, like the ath-

letes, surrender some of their speech rights in return for enjoying the bene-

fits of their association with public entities.

The Supreme Court first addressed the free-speech rights of public em-

ployees in Pickering v. Board of Education,

holding that speech by govern-

ment employees must pass a balancing test that weighs the public

employee’s right, as a citizen, to speak about “matters of public concern”

against the right of the government, as employer, to conduct its business,

which can necessitate restricting employee speech.

Therefore, unless the

school board could show that the plaintiff, a teacher, had knowingly or reck-

lessly made false statements in his letter to a local newspaper criticizing the

board, the board could not fire him for his exercise of free speech.

Later, in

See id. at 418; Eric D. Bentley, Fair Play?, Inside Higher Ed (Feb. 4, 2016),

https://www.insidehighered.com/views/2016/02/04/do-college-athletes-have-first-

amendment-right-strike-essay [https://perma.cc/65ZG-JVBV] [hereinafter Bentley,

Fair Play?].

See Bentley, Fair Play?, supra note 89.

See id.

Meg Penrose, Outspoken: Social Media and the Modern College Athlete, 12 J. Mar-

shall Rev. Intell. Prop. L. 509, 510-11 (2013) [hereinafter Penrose, Outspoken].

Id.

Id. at 526.

391 U.S. 563 (1968).

Heckman, supra note 26, at 562-63.

See 391 U.S. at 574-75.

2022 / First Amendment Rights of College Athletes 315

Connick v. Meyers,

the Court defined “matters of public concern” as “any

matter of political, social, or other concern to the community.”

It upheld

the firing of a deputy district attorney for circulating a questionnaire among

fellow employees concerning the district attorney’s policy for transferring

employees, among other internal issues, which the Court determined were

not matters of public concern.

100

More recently, in Garcetti, the Court held that “when public employees

make statements pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the Constitution

does not insulate their communications from employer discipline.”

101

Ac-

cordingly, the Justices upheld the punishment of another deputy district

attorney, who wrote a memorandum to his superiors questioning the

grounds for issuance of a search warrant and testified in favor of a defense

motion challenging that warrant.

102

According to Professor Penrose, although the Pickering/Connick/Garcetti

framework “may not be ideal” for college athletes, it is “far superior” to

Tinker because the former “appreciates the student-athlete’s unique relation

to a state [university’s] athletic department as qualitatively distinct from a

high school student’s desire to attend class, [therefore] requir[ing] greater

deference [to the institution] than the Tinker framework offers.”

103

“If par-

ticipating in college athletics” she writes, “means [athletes] receive a

watered-down version of First Amendment rights, so be it. The experiences

gained on and off the field or court [are] well worth this limited

sacrifice.”

104

Applying the public-employee standard to the speech of college ath-

letes, though, is problematic. The foundation of that standard is that “when

the government is acting as employer, it should have the power to restrict

speech that interferes with the proper and efficient function of the work-

place.”

105

But college athletes are not now, and have never been, “employ-

ees” of their institutions; rather, they are “students,” even if subject to more

regulation than their nonathlete classmates. Therefore, the Pickering/Connick/

Garcetti standard is “a poor fit” for a college campus; whereas the prosecu-

461 U.S. 138 (1983).

Id. at 146-47.

100

See id. at 154.

101

547 U.S. at 421.

102

See id. at 414-17.

103

Penrose, Outspoken, supra note 92, at 543.

104

Id. at 550.

105

Mary-Rose Papandrea, The Free Speech Rights of University Students, 101 Minn.

L. Rev. 1801, 1853 (2017).

316 Harvard Journal of Sports & Entertainment Law / Vol. 13

tors’ offices in Connick and Garcetti were not intended to be marketplaces for

the exchange of ideas, the college campus surely is.

106

D. The Supreme Court and College-Student Speech

Courts have often observed that the free speech rights of college stu-

dents exceed those of students in the high-school setting.

107

Indeed, the Su-

preme Court has regularly invalidated colleges’ attempts to regulate the

content of student speech, whether by disciplining students,

108

not recogniz-

ing student organizations,

109

or withholding funds from student

publications.

110

In Healy v. James, a state college president refused to grant official rec-

ognition to a local chapter of the Students for a Democratic Society (SDS).

111

The students who sought official recognition brought a First Amendment

claim in federal court. The district court ordered the college president to

conduct a due process hearing on the matter, which resulted in another de-

nial of the students’ request; thereafter, the district court dismissed the case,

and the Second Circuit affirmed.

112

The Supreme Court noted that “[t]he

college classroom with its surrounding environs is peculiarly the ‘market-

place of ideas,’ and we break no new constitutional ground in reaffirming

this Nation’s dedication to safeguarding academic freedom.”

113

Therefore,

although “a college has a legitimate interest in preventing disruption on the

campus” that could justify restraints on speech, “a ‘heavy burden’ rests on

106

See id.

107

See Marcus Hauer, Note, The Constitutionality of Public University Bans of Stu-

dent-Athlete Speech Through Social Media, 37 Vt. L. Rev. 413, 422 (2012).

108

See Papish v. Board of Curators of Univ. of Mo., 410 U.S. 667 (1973).

109

See Healy v. Jones, 408 U.S. 169 (1972).

110

See Rosenberger v. Rectors & Visitors of the Univ. of Va., 515 U.S. 819

(1995).

111

See 408 U.S. at 170. The SDS was a radical political organization during the

1960s best known for its opposition to the Vietnam War, which it opposed with

sit-ins, demonstrations, and marches. An SDS splinter group, the Weathermen

(later known as the Weather Underground) was notorious for bombing government

and corporate targets in the early 1970s. The activities of the Weather Under-

ground may have persuaded the college president in Healy not to recognize an SDS

chapter on his campus. See Todd Gitlin, What Was the Protest Group Students for a

Democratic Society? Five Questions Answered, The Conversation (May 4, 2017),

https://www.smithsonianmag.com/history/what-was-protest-group-students-demo-

cratic-society-five-questions-answered-180963138/ [https://perma.cc/AYG6-

Q4DN].

112

See 408 U.S. at 179.

113

Id. at 180-81.

2022 / First Amendment Rights of College Athletes 317

the college to demonstrate the appropriateness of that action.”

114

Under that

standard, the mere disagreement of a college president with a particular

group’s philosophy “affords no reason to deny it recognition.”

115

Still, a college would be justified in denying official recognition “to

any group that reserves the right to violate any valid campus rules with

which it disagrees.”

116

In this instance, the record did not show whether the

SDS was “willing to abide by reasonable rules and regulations,” so the

Court remanded the matter for reconsideration.

117

Healy reflects the breadth of First Amendment prohibitions on the

prior restraint of speech because the college’s denial of official recognition to

the SDS meant that the group was prevented from demonstrating, meeting,

or even advertising its meetings, on campus or by means of institutional

property, employees, or facilities. Although the students could meet or pro-

mote their group off campus, Healy showed that “even a regulation with

only a secondary effect of burdening student speech can still be an unlawful

restraint if its effect is to cut off the speaker from opportunities to be

heard.”

118

In Papish v. Board of Curators of the University of Missouri, the defendant

Board expelled a graduate student in journalism for distributing on campus

a newspaper “containing forms of indecent speech” in violation of one of the

Board’s bylaws.

119

The newspaper featured a political cartoon that depicted

the police raping the Statue of Liberty and an article titled “M-f Acquit-

ted,” which discussed the acquittal of a New York City youth who belonged

to an organization called “Up Against the Wall, M-f.”

120

The student

brought a free speech claim against the Board, but the trial court denied

relief and the Eighth Circuit affirmed.

121

In a per curiam opinion, the Court explained that, as is clear from Healy,

“the mere dissemination of ideas

—

no matter how offensive to good taste

—

on a state university campus may not be shut off in the name of ‘conventions

of decency.’”

122

The Court acknowledged that speech can be subject to time,

place, or manner restrictions, but in Papish, “petitioner was expelled because

114

Id. at 184.

115

Id. at 187.

116

Id. at 193-94.

117

Id. at 194.

118

Frank D. LoMonte & Virginia Hamrick, Running the Full-Court Press: How

College Athletic Departments Unlawfully Restrict Athletes’ Rights to Speak to the News

Media, 99 Neb. L. Rev. 86, 115 (2020).

119

Papish, 410 U.S. at 667.

120

Id. at 667-68.

121

See id. at 669.

122

Id. at 670.

318 Harvard Journal of Sports & Entertainment Law / Vol. 13

of the disapproved content of the newspaper rather than the time, place, or

manner of its distribution.”

123

Thus, the Court reversed and remanded, di-

recting the trial court to require the University to reinstate the student un-

less valid academic reasons barred her reinstatement.

124

In Rosenberger v. Rector and Visitors of University of Virginia, the Univer-

sity withheld authorization to the petitioners for payment of their printing

costs because their student newspaper “primarily promote[d] or mani-

fest[ed] a particular belie[f] in or about a deity or an ultimate reality.”

125

Christian group, which had earlier been approved for payment of its print-

ing costs from the Student Activities Fund, sought such payment but was

rejected because of its religious status.

126

After exhausting its administrative

remedies within the University, the group brought free speech and free exer-

cise claims. The trial court granted summary judgment for the University.

The Fourth Circuit affirmed, despite finding discrimination based on the

newspaper’s content, because such discrimination was necessary for the sepa-

ration of church and state.

127

The Supreme Court noted that the University’s payment policy did not

prohibit reimbursement for the printing of publications that discussed relig-

ion as a subject matter, but rather, only for “those student journalistic ef-

forts with religious editorial viewpoints.”

128

Such viewpoint discrimination,

the Court observed, is especially dangerous in a university, “where the State

acts against a background and tradition of thought and experiment that is at

the center of our intellectual and philosophic tradition.”

129

When the insti-

tution, by its regulations, disapproves of certain student viewpoints, the

Court continued, it “risks the suppression of free speech and creative inquiry

in one of the vital centers for the Nation’s intellectual life, its college and

university campuses.”

130

Thus, the Court reversed, holding that the pay-

ment regulation denied the petitioners’ freedom of speech.

131

Rosenberger was reminiscent of an earlier Supreme Court decision,

Widmar v. Vincent,

132

although Widmar involved access to university facili-

ties, rather than university funds, for a religious group. In 1977, the Univer-

123

Id.

124

See id. at 671.

125

Rosenberger, 515 U.S. at 822-23.

126

See id. at 827.

127

See id. at 828.

128

Id. at 831.

129

Id. at 835.

130

Id. at 836.

131

See id. at 837.

132

454 U.S. 263 (1981).

2022 / First Amendment Rights of College Athletes 319

sity of Missouri-Kansas City (UMKC) informed a religious student group

called Cornerstone that it could no longer meet in UMKC facilities because

of a 1972 regulation that prohibited the use of UMKC buildings for wor-

ship or religious teaching.

133

Eleven members of Cornerstone sued to chal-

lenge that regulation, alleging violations of the Free Speech and Free

Exercise Clauses of the First Amendment and of the Fourteenth Amend-

ment’s Equal Protection Clause.

134

The trial court upheld the regulation

under the Establishment Clause of the First Amendment,

135

but the Eighth

Circuit reversed, reasoning that the regulation was content-based discrimi-

nation against religious speech.

136

The Supreme Court used “forum analysis” as its doctrinal framework

in Widmar, noting that a State cannot constitutionally “enforce certain ex-

clusions from a forum generally open to the public, even if it was not re-

quired to create the forum in the first place.”

137

In this instance, because

UMKC had accommodated meetings of student groups in its facilities in the

past, it had created a forum generally open for student use, thereby “as-

sum[ing] an obligation to justify its discriminations and exclusions under

applicable constitutional norms.”

138

Specifically, UMKC had to show that

its regulation was “necessary to serve a compelling state interest and that it

[was] narrowly drawn to achieve that end.”

139

In the Court’s view, UMKC failed to meet this requirement; the Court

expressly rejected UMKC’s claim that opening its facilities to religious

groups would have the primary effect of advancing religion, thereby violat-

ing the Establishment Clause under the first prong of the well-established

Lemon test.

140

On the contrary, the Court instructed, an open forum at a

State university does not confer State approval on religious groups or prac-

133

See id. at 265.

134

See id. at 266.

135

See id.

136

See id. at 267.

137

Id. at 267-68.

138

Id. at 267.

139

Id. at 270.

140

See id. at 272. The Lemon test derives from Lemon v. Kurtzman, 403 U.S. 602

(1971), which concerned state financial assistance to private, religious schools.

Under the test, a state program that aids religious institutions is constitutional only

when: (1) the program has a secular legislative purpose; (2) its principal or primary

effect neither advances nor inhibits religion; and (3) it does not foster an excessive

government entanglement with religion. Using this test, the Lemon Court struck

down programs in two states that augmented with state funds the salaries of teach-

ers in religious schools.

320 Harvard Journal of Sports & Entertainment Law / Vol. 13

tices.

141

Besides, UMKC had more than 100 student groups, and the provi-

sion of benefits to such a broad array of groups “is an important indicator of

a secular effect.”

142

Thus, the primary effect of opening the forum to this

wide spectrum of groups would not be to advance religion.

143

“In this con-

stitutional context,” the Court concluded, “we are unable to recognize the

State’s interest as sufficiently ‘compelling’ to justify content-based discrimi-

nation against [Cornerstone’s] religious speech.”

144

Put simply, because

UMKC’s regulation discriminated on the basis of viewpoint in a forum

broadly available to students, it could not stand.

E. Athletes and the Marketplace of Ideas

Taken together, Healy, Papish, Rosenberger, and Widmar reflect what one

commentator has termed “the traditional role of the university as the quin-

tessential marketplace of ideas,” providing a forum for controversial, even

offensive, speech without necessarily endorsing the viewpoints expressed.

145

Therefore, “[a]llowing universities to silence speakers who engage in speech

other people find ‘offensive’ seems particularly incongruous with the univer-

sity setting.”

146

Indeed, a public university ordinarily cannot penalize stu-

dents for their speech or prohibit them from using social media based on a

concern about reputational harm to the institution or the students.

147

Yet,

coaches have done both to college athletes.

148

The coaches’ actions raise the

question whether something in the relationship between college athletes and

their institutions “is so unique as to override established constitutional prin-

ciples.”

149

Is that “something” the status of athletics as a privilege, not a

141

See id. at 274.

142

Id.

143

See id. at 275.

144

Id. at 276.

145

Papandrea, supra note 105, at 1803.

146

Id. at 1825.

147

See Frank LoMonte, College Sports and Social Media: Leave Your Rights in the

Locker Room?, Am. Bar Ass’n: Litig. Group (Apr. 21, 2014), https://

www.americanbar.org/groups/litigation/committees/civil-rights/articles/2014/col-

lege-sports-and-social-media-leave-your-rights-in-the-locker-room/ [https://

perma.cc/U8SH-ND6Z] [hereinafter LoMonte, College Sports and Social Media].

148

See Jason Scott, Do Social Media Bans Violate the First Amendment?, Athletic

Bus. (Sept. 3, 2015), http://www.athleticbusiness.com/web-social/do-social-media-

bans-violate-the-first-amendment.html [https://perma.cc/A8S5-3NCE]; Ken Paul-

son, College Athlete Tweet Ban? Free Speech Sacks That Idea, USA Today (Apr. 16,

2012), https://www.pressreader.com/usa/usa-today-us-edition/20120416/

281779921113718 [https://perma.cc/7J95-LXMU].

149

LoMonte, College Sports and Social Media, supra note 147.

2022 / First Amendment Rights of College Athletes 321

right, or is it the scholarship agreements by which athletes accept greater

institutional control than other students face? Alternatively, is the elusive

“something” the similarity between college sports and employment, where

the employer can limit the speech rights of a public employee?

150

Parts III

and IV, which follow, will address these questions with respect to athlete

protest and social-media use, respectively, concluding in both instances that

public colleges and universities should treat all their students

—

athletes and

non-athletes

—

identically for First Amendment purposes.

III. College Athletes’ Right to Protest

A. Unsuccessful Litigation

Under the existing Tinker standard, when college athletes participate in

a protest or demonstration, their First Amendment rights must be consid-

ered relative to their institution’s interest in maintaining order and disci-

pline in its athletic programs.

151

An athlete’s protest that disrupts an

athletic program would merit no more First Amendment protection than

any other student protest that similarly disrupted institutional functions in

a material way.

152

College athletes have had only limited success, under this standard, in

litigation related to their protest activities. The earliest case followed the

announcement by Black football players to their coach at the University of

Wyoming in 1969 that they planned to wear black armbands on their uni-

form jerseys at the next day’s home game against Brigham Young Univer-

sity (BYU) to protest alleged racist policies by the Mormon Church, with

which BYU is affiliated.

153

The players never had a chance to conduct the

150

See id.

151

See William A. Kaplan & Barbara A. Lee, The Law of Higher Educa-

tion: A Comprehensive Guide to Legal Implications of Administrative Deci-

sion Making § 11.4.3 (5th ed. 2013).

152

See id.

153

See Bentley, Fair Play?, supra note 89. The Black players at Wyoming wanted

to protest the Mormon Church’s prohibition on African Americans becoming Mor-

mon clergy and the racial slurs they claimed they had heard from the BYU players

the previous year during a game at BYU. The “Black 14” may have lost the “bat-

tle” in 1969, but they arguably won the “war” in 1970, when BYU integrated its

football roster, and in 1978, when the Mormon Church began to accept African

Americans into its clergy. Sean Keeler, We Were Villains: How Wyoming’s Black 14

Blazed the Trail for Missouri Protests, The Guardian (Nov. 11, 2015), https://

www.theguardian.com/sport/2015/nov/11/we-were-villains-how-wyomings-black-

14-blazed-the-trail-for-missouri-protests [https://perma.cc/GF74-RSQJ].

322 Harvard Journal of Sports & Entertainment Law / Vol. 13

protest. As soon as they announced their plans to Head Coach Lloyd Eaton,

who had established a rule prohibiting his players from participating in pro-

tests, which the players knew about, he dismissed them from the team.

154

The fourteen dismissed players sued. The case, which had four iterations in

federal court, was dismissed in the District of Wyoming for failure to state a

claim for which relief could be granted.

155

The United States Court of Ap-

peals for the Tenth Circuit, initially reversed and remanded

156

but later

affirmed.

157

When it first considered the case, the appellate court concluded that

“[i]n light of the principles of the Tinker case, we cannot say that the com-

plaint fails to state a claim on which relief could be granted or that summary

judgment was proper.”

158

But after a remand and a trial, it endorsed the

trial court’s conclusion that both the United States and Wyoming Constitu-

tions required complete neutrality on matters of church and state, which the

players’ armband display would have violated by using state facilities to

express

—

in public

—

opposition to the practices of the Mormon Church.

159

Williams v. Eaton is unusual, if not unique, among cases of athlete pro-

test; although it relied on Tinker, it “mix[ed] considerations of free speech

and freedom of religion.”

160

In the Tenth Circuit’s view, both federal and

state law provided “strong support for a policy restricting hostile expres-

sions against religious beliefs of others by representatives of a state or its

agencies.”

161

The court stated, “We feel that the Trustees’ decision [to up-

hold the coach’s dismissal of the players] was a proper means of respecting

the rights of others in their beliefs, in accordance with this policy of relig-

ious neutrality.”

162

Notably, the appellate court held that “the Trustees’

decision was lawful within the limitations of the Tinker case itself,”

163

but it

did not find that the athletes’ protest was likely to be disruptive; instead, it

relied solely on the seldom-used ‘interference with the rights of others’

branch of the Tinker case.”

164

154

See Keeler, supra note 153.

155

See Williams v. Eaton, 310 F. Supp. 1342 (D. Wyo. 1970); Williams v.

Eaton, 333 F. Supp. 107 (D. Wyo. 1971).

156

443 F.2d 422 (10th Cir. 1971).

157

468 F.2d 1079 (10th Cir. 1972).

158

443 F.2d at 431.

159

See 468 F.2d at 1080.

160

Kaplan & Lee, supra note 151, at § 11.4.3.

161

468 F.2d at 1083.

162

Id. at 1083-84.

163

Id. at 1084.

164

Kaplan & Lee, supra note 151, at § 11.4.3.

2022 / First Amendment Rights of College Athletes 323

Almost a decade later, the Tenth Circuit again rejected a First Amend-

ment claim by college athletes, this time women’s basketball players at the

University of Oklahoma. In Marcum v. Dahl, the plaintiffs were athletic

scholarship recipients who had enrolled at Oklahoma as freshmen in the

autumn of 1977.

165

During the 1977-78 season, a rift developed on the

women’s basketball team, with the scholarship players on one side and the

nonscholarship players on the other. The scholarship players thought the

assistant coach was more competent than the head coach but was being

marginalized, with adverse consequences for the team’s performance.

166

The

nonscholarship players supported the head coach.

167

In January 1978, the scholarship players met with the overall Athletic

Director and the Athletic Director for Women’s Sports, who told the players

that the administrators would consider the players’ claims.

168

In mid-March,

after the season had ended, the scholarship players told the press that if the

head coach were rehired for the next season, they would not play.

169

Three

weeks later, the two athletic administrators informed the scholarship players

that their scholarships would not be renewed for the next academic year

“because of their attitudes and behavior.”

170

Soon thereafter, following a

hearing that the plaintiffs chose not to attend, a committee of Oklahoma’s

Athletic Council approved the nonrenewal decision.

171

The plaintiffs then filed suit in federal court, alleging that the nonre-

newal of their athletic scholarships had violated their freedom of speech.

172

After a trial, a jury rendered a verdict for each plaintiff in the amount of

$5,100, which was the value of each athletic scholarship for three additional

years of school.

173

Nevertheless, the trial court granted the defendants’ mo-

tion for judgment notwithstanding the verdict and dismissed the plaintiffs’

case.

174

On appeal, the Tenth Circuit affirmed, using the Pickering standard

(Connick and Garcetti had not yet been litigated) that analogized the plaintiff

athletes to public employees.

175

Drawing on that analogy, the appellate

court reasoned that the plaintiffs could not rely on their “postseason ultima-

165

See 658 F.2d 731, 733 (10th Cir. 1981).

166

See id.

167

See id.

168

See id.

169

See id.

170

Id.

171

See id. at 734.

172

See id. at 733.

173

See id.

174

See id.

175

See id. at 734.

324 Harvard Journal of Sports & Entertainment Law / Vol. 13

tum” to protect them against being discharged for their behavior during the

basketball season.

176

It noted that the controversy during the season about

who should be the head coach “resulted in disharmony among the players

and disrupted the effective administration of the basketball program.”

177

The plaintiffs’ participation in the controversy during the season therefore

“provided a sufficient basis for the nonrenewal of their scholarships.”

178

Moreover, “the comments of the plaintiffs to the press did not involve mat-

ters of public concern.”

179

Instead, they involved “internal problems with

which the defendants were required to deal in their official capacities.”

180

Those problems were “not of general public concern and the plaintiffs’ com-

ments to the press did not invoke First Amendment protection.”

181

Accord-

ingly, the institution had not violated the plaintiffs’ First Amendment

rights when it revoked their scholarships.

More recently, in Green v. Sandy, the plaintiff, who had been dismissed

from the women’s soccer team at Eastern Kentucky University (EKU), failed

in her claim brought under 42 U.S.C. § 1983 against the University and

several of its officials.

182

The trial court dismissed her amended complaint,

which alleged, among other things, that EKU officials had removed her

from the women’s soccer team in retaliation for her exercise of free speech in

expressing her concerns about her coach’s handling of internal team

matters.

183

The plaintiff played soccer at EKU in 2007-08 and 2008-09, respec-

tively.

184

Late in 2009, she became concerned about her coach’s management

of the team because of attrition among the players. She met with the coach

but felt the coach denied her a fair hearing. Later, she presented her con-

cerns to the athletic director, who assured the plaintiff that her discussion

with him was confidential and that he would investigate her concerns.

185

But no such investigation occurred until the late spring of 2010, when the

president of EKU, at the request of the plaintiff’s father, appointed an inves-

tigator. Near the end of June, the investigator contacted the plaintiff to

schedule a second meeting with her. On that same day, though, the athletic

176

Id. at 734-35.

177

Id. at 734.

178

Id.

179

Id.

180

Id.

181

Id.

182

See Civil Action No. 5:10-cv-367-JMH, 2011 U.S. Dist. LEXIS 114718, at

*1 (E.D. Ky. Oct. 3, 2011).

183

See id. at *5.

184

See id. at *1.

185

See id.

2022 / First Amendment Rights of College Athletes 325

director told the plaintiff she was dismissed from the team. He did not give

her any reason for the dismissal.

186

The trial court, in granting the defendants’ motion to dismiss, ap-

peared to lean on the Tinker “material disruption” standard, although it did

not mention Tinker by name. Instead, the court explained that “[the plain-

tiff] has failed to identify a violation of any federal constitutional right”

because the coach and the athletic director “could reasonably have forecast

the Plaintiff’s criticism of [the coach’s] methods and decisions would disrupt

the team, and they were well within their rights to dismiss Plaintiff from

the team.”

187

Because the defendants had not violated any of the plaintiff’s

constitutional rights, the doctrine of sovereign immunity barred her claims

against the defendants in their individual capacities.

188

In concluding that no constitutional right was violated, the Green court

relied primarily on Lowery v. Euverard,

189

which addressed a protest by foot-

ball players at a Tennessee high school. Eighteen players at the school signed

a one-sentence petition saying they did not want to play for the defendant,

who was their team’s head coach. Another player revealed the existence of

the petition.

190

The coach then tried to interview three of the plaintiffs indi-

vidually, but they refused individual interviews, whereupon he dismissed

them from the team. The dismissal of the fourth plaintiff occurred the next

day.

191

Players who had signed the petition but later apologized to the coach

and told him they wanted to play for him were permitted to remain on the

team.

192

In the trial court, the defendants sought summary judgment based

on sovereign immunity, which the court denied, explaining that an issue of

fact remained about whether the petition had disrupted the team.

193

On appeal, the defendants argued that their dismissal of the plaintiffs

from the football team was permissible under Tinker because of the forecast

of material disruption if the protest were permitted to proceed. The plain-

tiffs countered that their petition was protected speech in protest of alleged

186

See id. at *2.

187

Id. at *6.

188

Id. The court had previously noted that the Eleventh Amendment barred the

plaintiff’s claims against EKU. It also explained that to avoid the sovereign immu-

nity bar, the plaintiff needed to show that (a) she had suffered the violation of a

constitutional right, and (b) the right was clearly established when the defendants

violated it. Here, the plaintiff failed part (a) because she could not show the defend-

ants violated her right to free speech. Id. at *5.

189

497 F.3d 584 (6th Cir. 2007).

190

See id. at 586.

191

See id.

192

See id.

193

See id.

326 Harvard Journal of Sports & Entertainment Law / Vol. 13

misconduct by Coach Euverard, including striking a player on the helmet,

throwing away recruiting letters from colleges to players Euverard disfa-

vored, humiliating individual players, using inappropriate language, and re-

quiring a year-round physical conditioning program in violation of state

rules for high school teams.

194

The Sixth Circuit agreed with the defendants, noting that the players’

petition “constituted a direct challenge to Coach Euverard’s authority.”

195

presented an untenable situation, in the appellate court’s view, because “[a]

high school athletic team could not function smoothly with an authority

structure based on the will of the players.”

196

The appellate court added that

the team’s “plays and strategies are seldom up for debate” and that

“[e]xecution of the coach’s will is paramount.”

197

Besides, the appellate court continued, “Tinker does not require cer-

tainty, only that the forecast of substantial disruption be reasonable.”

198

Therefore, in any case, the court “must evaluate the circumstances to deter-

mine if Defendants’ forecast of substantial disruption was reasonable.”

199

determining reasonableness, the court continued, “restrictions that would be

inappropriate for the student body at large may be appropriate in the con-

text of voluntary athletic programs.”

200

Perceiving an analogy between “the

greater restrictions on student athletes” and “the greater restrictions on gov-

ernment employees,” the court reasoned that “legal principles from the gov-

ernment employment context [we]re relevant to the [Lowery] case.”

201

Using

the Pickering/Connick standard to evaluate a forecast of “material disruption”

under Tinker, the appellate court concluded that “[i]t was reasonable for

Defendants to forecast that Plaintiffs’ petition would undermine [Coach]

Euverard’s authority and sow disunity on the football team.”

202

Accord-

ingly, the appellate court concluded that the players’ dismissal from the

team was consistent with the First Amendment.

203

A concurring opinion took issue with two aspects of the majority’s

reasoning. First, the concurrence criticized the majority for “grafting the

public-concern requirement of Connick v. Myers, 461 U.S. 138 (1983) onto

194

See id. at 585.

195

Id. at 591.

196

Id.

197

Id. (quoting Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1190 (6th Cir.

1995)).

198

Id. at 592.

199

Id. at 593.

200

Id. at 597.

201

Id.

202

Id. at 600-01.

203

See id.

2022 / First Amendment Rights of College Athletes 327

the Tinker test, an approach never before taken in student-speech cases by

either the Supreme Court or any other federal court of appeals to consider

the issue.”

204

The concurring judge saw no reason for the grafting experi-

ment “in the absence of Supreme Court case law instructing us to do so.”

205

Second, the majority opinion failed to assert facts necessary “to support its

forecast of substantial disruption.”

206

“At most,” the concurrence observed,

“the defendants have asserted a generalized fear of disruption to team unity

based on the students’ critical opinion of Euverard’s ability as a coach,”

which did not satisfy Tinker’s “substantial disruption” standard.

207

Noting

that “[n]o disturbance happened until Euverard found out about the peti-

tion and retaliated against the leaders,” the concurrence concluded that the

plaintiffs’ First Amendment rights under Tinker were violated.

208

Still, the concurrence reasoned that the plaintiff’s free-speech right was

not clear enough in the school-sports setting to have put Coach Euverard on

notice at the time of the protest that his response violated the First Amend-

ment. Besides, no case law existed in the Sixth Circuit at the time that

applied the Tinker standard to athletes and identified the scope of their First

Amendment rights.

209

Thus, the appellate court reversed the trial court’s

denial of the defendants’ motion for summary judgment. Although it arose

in the high-school context, Lowery will figure prominently in this article’s

subsequent discussion of an appropriate standard for protecting the First

Amendment rights of college athletes.

Taken together, Williams, Marcum, Green, and Lowery show courts treat-

ing the speech of (mostly) college athletes as unprotected, whether it per-

tained to team management, as in Marcum and Green, or to larger, public

issues, such as racial discrimination or coach misconduct, as in Williams and

Lowery. A later section of this article will advocate for a modified Tinker

standard that offers greater protection to the athlete speech featured in Wil-

liams and Lowery than that present in Marcum and Green, respectively.

F. Successful Litigation

College athletes’ most noteworthy success in First Amendment litiga-

tion was Hysaw v. Washburn University, in which the plaintiffs were Black

former football players who complained that coaches and administrators at

204

Id. at 601.

205

Id.

206

Id. at 603.

207

See id.

208

See id. at 605.

209

See id.

328 Harvard Journal of Sports & Entertainment Law / Vol. 13

the defendant institution were discriminating against them based on race.

210

As a result of the alleged discrimination, the plaintiffs boycotted practice

sessions; the administration responded by removing them from the team.

211

The institution then sought an apology from the players; when the players

refused to apologize, the institution prohibited them from returning to the

team.

212

The plaintiffs’ First Amendment argument was that they were dis-

missed from the football team after protesting racial mistreatment.

213

The

institution countered that the plaintiffs were dismissed for missing practice

without a valid excuse, not for challenging racially biased behavior by

coaches and administrators.

214

But the head coach undercut that argument

when, in his deposition testimony, he acknowledged that if a player were to

miss practice in protest against racial mistreatment, he would excuse the

player’s absence.

215

The deposition testimony also blunted the institution’s

argument that the players’ dismissal was a reasonable time, place, or manner

restriction on speech. Citing Tinker, the institution claimed that “the boy-

cott severely disrupted the football team and infringed upon the rights of

others participating in the football program.”

216

But the court was not persuaded. “It stretches the imagination,” the

court wrote, “to envision how an absence allegedly sanctioned by the coach-

ing staff could be disruptive.”

217

Furthermore, the plaintiffs’ actions did not

infringe on the rights of others. Reading the “rights of others” exception

under Tinker narrowly, the court stated that it “will not place the interests

of participants in a university extracurricular activity above the rights of any

citizen to speak out against alleged racial injustice without fear of govern-

ment retribution.”

218

Accordingly, the court denied the institution’s motion

for summary judgment on the plaintiffs’ First Amendment claim.

219

Thus far, then, college athletes’ prospects for success in free-speech liti-

gation have rested precariously on the slender reed that is a coach’s support

for their protest; only in Hysaw, where that support was present, have they

210

See 690 F. Supp. 940, 942 (D. Kan. 1987).

211

See id.

212

See id. at 943.

213

See id. at 946.

214

See id.

215

See id.

216

Id.

217

Id.

218

Id.

219

See id.

2022 / First Amendment Rights of College Athletes 329

succeeded. The following section will argue that college athletes should not

have to depend on such support to enjoy the freedom of speech.

B. The Need for a New Standard

Hysaw could have been a powerful ally for football players at the Uni-

versity of Missouri in 2015 if their protest had resulted in litigation. In

November of that year, thirty Missouri football players refused to participate

in practice or games until University President Timothy Wolfe resigned or

was fired; the players charged that Wolfe had ignored racist behavior di-

rected at Black students on campus.

220

The subtext of the Missouri protest

was unlike that in Hysaw because Missouri competes in the Football Bowl

Subdivision (FBS), where a forfeited game could cost the responsible team a

substantial sum of money. Indeed, if the players had boycotted Missouri’s

next game

—

against Brigham Young University

—

the University of Mis-

souri would have lost at least the one million dollars it was guaranteed for

playing the game.

221

Still, had President Wolfe not resigned, ending the threatened boycott,

and had the players been penalized

—

resulting in litigation

—

they would

have found a helpful precedent in Hysaw. Like the coach in that case, Mis-

souri Head Coach Gary Pinkel indicated that he would not punish his play-

ers for boycotting practice or games in a protest of racist behavior against

Black students.

222

Under these circumstances, a court might well have con-

cluded, as the Hysaw court did, that so long as the coach would tolerate a

boycott, the University could not show that the players’ actions had caused a

“material disruption” of its football program.

223

In First Amendment matters, though, college athletes take a considera-

ble risk in resting their hopes on that slender reed of a coach’s support, as

Black football players at the University of Texas at Austin (UT) have

learned. During the summer of 2020, in the wake of nationwide protests

over the killing of George Floyd, a Black man, by a Minneapolis police

officer, the players learned that the song they were expected to sing after

home football games

—

“The Eyes of Texas Are Upon You”

—

had a racist

history.

224

Two UT students wrote “The Eyes of Texas” at the turn of the

Twentieth Century and first performed it at a minstrel show in May 1903.

220

See Bentley, Fair Play?, supra note 89.

221

See id.

222

See id.

223

Id.

224

See Kate McGee, Students Refuse to Work, Man Pulls out Gun as Tensions Rise at

UT-Austin over ‘The Eyes of Texas’, Houston Chron. (May 5, 2021), https://

330 Harvard Journal of Sports & Entertainment Law / Vol. 13

Minstrel shows were fundraisers organized by students that featured white

performers singing and dancing in blackface. The following autumn, a stu-

dent sang the song during a football game, and it eventually became inte-

grated into student life at the University.

225

Having learned this history, the football players asked the University

administration to replace “The Eyes of Texas” as the alma mater; later in

2020, a group of former UT athletes made the same request.

226

University

officials denied the requests but told the football players they would not be

required to sing the song.

227

The controversy reignited when, after the first

two home games of the 2020 season, the football team left the field before

the song was sung. The negative reactions of fans prompted the athletic

director to state that he expected the players to “stand in unison” during

the song.

228

The football coach during the 2020 season

—

Tom Herman

—

appeared to side with his players, allowing them to decide for themselves

whether to sing the alma mater.

229

But Coach Herman was fired after that

season, and his replacement

—

Steve Sarkisian

—

emphasized early on that he

would require all players to participate in the postgame singing of “The

Eyes of Texas.” “We’re going to sing that song, proudly,” he assured Long-

horn fans.

230

This example illustrates that the First Amendment rights of college

athletes need a firmer foundation than the support of the current coach; a

new standard is necessary for judging student speech in the context of inter-

collegiate athletics. That standard must appreciate that college athletes are

students and must treat them as such, just as recent changes to transfer rules

and rules surrounding NILs do. The new standard must also appreciate that

institutions are expected to tolerate, not promote, athletic protest, which ren-

ders the Hazelwood standard discussed in Part II inapplicable to intercollegi-

ate athletics. Neither the “maturity rationale” nor the “disassociation

rationale,” which undergird Hazelwood, applies to college students, includ-

ing athletes.

231

As adults, college students are sufficiently mature to decide

www.chron.com/news/houston-texas/article/eyes-of-texas-ut-austin-16151018.php

[https://perma.cc/N9XC-DM6X].

225

See Levin, supra note 13.

226

See id.

227

See Vertuno, supra note 13.

228

See id.

229

See Group Led by Former University of Texas Athletic Director Weighs in on ‘Eyes of

Texas’ Controversy, Sports Litig. Alert (Mar. 26, 2021), https://sportslitigation-

alert.com/group-led-by-former-university-of-texas-athletic-director-weighs-in-on-

eyes-of-texas-controversy/ [https://perma.cc/79MM-Q5JE].

230

Id.

231

See LoMonte, The Key Word Is Student, supra note 16, at 306.

2022 / First Amendment Rights of College Athletes 331

for themselves what speech to embrace and what speech to reject. Therefore,

institutions need not fear that allowing certain speech on campus will neces-

sarily align the institutions with the views of the speaker in the minds of

students.

232

The Pickering/Connick/Garcetti theory should not underlie the new stan-

dard either. It is designed for a workplace in which the supervisor seeks to

shape office communications and the employees understand that limited

First Amendment rights are a condition of their employment, particularly

regarding intraoffice matters. In contrast, the Supreme Court has long re-

garded a university campus as “peculiarly the marketplace of ideas,”

233

where circumscribing student speech “risks the suppression of free speech

and creative inquiry in one of the vital centers of the Nation’s intellectual

life . . . .”

234

Thus, the appropriate standard must derive from the “material disrup-

tion” guideline of Tinker. It should respect coaches’ authority to manage

their teams in pursuit of a successful season and recognize the importance of

cohesion to team success. At the same time, it should balance those interests

with the free-speech rights of a student on a college campus, where athletes

deserve the same rights to challenge discrimination or official misconduct

that their nonathlete classmates enjoy. Part V presents such an enhanced

Tinker standard for athletic protest, but first, a discussion of the need for a

new standard regarding college athletes’ social-media speech is in order. Part

IV, which follows, addresses the First Amendment implications of social-

media use by college athletes.

IV. College Athletes’ Right to Use Social Media

Another First Amendment issue that arises for athletes

—

indeed, more

frequently than the right to protest

—

is their wish to communicate via vari-

ous social-media platforms despite coaches’ and athletic administrators’ de-

sire (and efforts) to restrict such communication. Professor Meg Penrose,

who supports some limitation of social-media use by athletes, identifies the

constitutional issue involved clearly. She asks the following questions: Can a

coach or athletic department at a public university legally restrict a college

232

See id.

233

Healy v. James, 408 U.S. 169, 180-81 (1972).

234

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 836

(1995).

332 Harvard Journal of Sports & Entertainment Law / Vol. 13

athlete’s use of social media? If so, does the First Amendment provide any

restraints on the type or length of restrictions that can be imposed?

235

These questions are important because, as Professor Penrose notes,

“[n]early every NCAA institution has a separate student-athlete code of con-

duct that supplements, not supplants, the more generic student codes of

conduct governing the college experience.”

236

For example, the Student

Athlete Code of Conduct at Virginia Tech states:

It is a privilege, and not a right, to participate in intercollegiate athletics.

As a student who participates in intercollegiate athletics, you become a

member of a team. With great privilege comes great responsibility. When

you accept the privilege of being a Virginia Tech athletics team member,

you also accept the responsibilities of representing the university as a stu-

dent athlete. In addition to NCAA, ACC, institutional, and department

rules, you are expected to follow team rules and practices set forth by your

coaches.

237

Besides such codes of conduct, most NCAA-member institutions have

separate social-media policies for athletes that “[p]rohibit negative or offen-

sive content that would be constitutionally suspect if not applied to ath-

letes.”

238

For example, under its social-media policy, the University of

North Carolina at Chapel Hill reserves the right of “at least one” coach,

administrator, or other staff member, or even an outside vendor to “hav[e]

access to, regularly monitor[ ] the content of, and/or receiv[e] reports about

team members’ social networking sites and postings.”

239

As the above lan-

guage suggests, some institutions have hired third-party vendors (e.g.,

235

See Meg Penrose, Sharing Stupid $h*t With Friends and Followers: The First

Amendment Rights of College Athletes to Use Social Media, 17 SMU Sci. & Tech. L.

Rev. 449, 451 (2017) [hereinafter Penrose, Sharing Stupid $h*t with Friends and

Followers].

236

Id. at 458.

237

This quotation, which is virtually identical to the quotation Professor Penrose

cites at p. 458 of her article, is from the 2021-22 edition of the Virginia Tech

Student Athlete Handbook. See 2021-22 Student-Athlete Handbook, Va. Tech Ath-

letics

, https://hokiesports.com/documents/2021/7/29/2021_2022_Stu-

dent_Athlete_Handbook.pdf [https://perma.cc/9FUY-74YB] (last visited

December 16, 2021). The acronym “ACC” refers to the Atlantic Coast Conference,

the athletic conference of which Virginia Tech is a member.

238

Penrose, Sharing Stupid $h*t with Friends and Followers, supra note 235, at 465.

239

Id. at 466. See also Department of Athletics Policy on Student-Athlete Social

Networking and Media Use, UNC Athletics, https://goheels.com/documents/2018/

8/2/Department_of_Athletics_Policy_on_Student_Athlete_Social_Networking_

and_Media_Use.pdf [https://perma.cc/5C3V-6G4N] (last visited December 16,

2021).

2022 / First Amendment Rights of College Athletes 333

UDiligence, Varsity Monitor, and Centrix Social) to monitor athletes’ social-

media accounts.

240

Under these arrangements, the athletes must “install the

software applications on their computers and wireless devices, and the ven-

dor monitors their activities, searching the social networking sites for key

words that might point to discussion of drug or alcohol abuse, obscenities,

offensive comments, or references to potential NCAA violations like agents

or free gifts.”

241

Using proprietary technology, the monitoring companies

examine athletes’ personal accounts for prohibited content and, when they

find it, report their findings to the institutional client’s athletic

department.

242

Professor Penrose cites two reasons to support her view that restraints

on athletes’ access to social media “are constitutional content-neutral limita-

tions permitted under reasonable time, place, and manner restrictions” on

speech.

243

First, though omitting the word “contract,” she notes that college

athletes accept increased institutional control over their lives in exchange for

valuable benefits, particularly athletic scholarships. She writes:

240

See Browning, supra note 11, at 842.

241

Id.

242

See id.

243

Meg Penrose, Tinkering with Success: College Athletes, Social Media, and the First

Amendment, 35 Pace L. Rev. 30, 42 (2014) [hereinafter Penrose, Tinkering with

Success]. Professor Penrose does not cite a right/privilege distinction as a basis for

restricting athletes’ social-media use, but some universities do. For example, the

2021-22 Student-Athlete Handbook at Virginia Tech states: “It is a privilege, and

not a right, to participate in intercollegiate athletics.” See 2021-22 Student-Athlete

Handbook, supra note 237. Similarly, the social-media policy of the Department of

Athletics at the University of North Carolina at Chapel Hill states that “each stu-

dent-athlete must remember that playing and competing for the University is a

privilege, not a right.” See Department of Athletics Policy on Student-Athlete Social

Networking and Media Use, supra note 239. Despite this language, the right/privilege

distinction no longer enjoys its former importance in American law. The distinction

held that one enjoyed “rights” independently of the state, but that “privileges,”

such as a public-sector job or a license to operate a business, were creations of the

state that the state could take away without violating civil liberties. Accordingly,

government could condition receipt of a privilege on the recipient’s willingness to

surrender or limit the exercise of a constitutional right. As government grew larger

and conferred more benefits, the threat to individual rights from the right/privilege

distinction became clear, and the Supreme Court repudiated it in Perry v.

Sindermann, 408 U.S. 593 (1972), articulating instead the doctrine of unconstitu-

tional conditions. Under this doctrine, “government may not grant a benefit on the

condition that the beneficiary surrender a constitutional right, even if government

may withhold the benefit altogether.” Kathleen M. Sullivan, Unconstitutional Condi-

tions, 102 Harv. L. Rev. 1413, 1415 (1989). Thus, the right/privilege distinction

is an extremely weak rationale for restricting college athletes’ social-media use.

334 Harvard Journal of Sports & Entertainment Law / Vol. 13

College athletes voluntarily agree to place themselves in heavily regulated,

highly restrictive, and physically demanding environments. This choice to

voluntarily participate in athletics operates, at least partially, as a waiver of

speech and expressive rights. College athletes literally accept these limita-

tions when they sign on to their governing athletic code of conduct.

244

Under this contractual rationale, she concludes that “[i]f state-sponsored

universities can degrade a student-athlete’s privacy in the name of whole-

some and safe competition, then so too can they limit a student-athlete’s

speech in the name of team unity and avoiding distractions.”

245

Second, Professor Penrose equates athletic participation at public uni-

versities to employment, noting that athletes are responsible for “furthering

the state interest in fielding a successful athletic team on behalf of the uni-

versity.”

246

In this quasi-employment rationale, “[s]ocial media presents a

significant distraction from successful athletic performance and a temporary

ban during the competitive season provides a constitutionally effective way

to curtail the distraction.”

247

Accordingly, Professor Penrose supports the

Pickering/Connick/Garcetti approach to evaluating college athletes’ free-speech

claims, or at least a variation of it. She argues that Pickering/Connick/Garcetti

“offers a far superior approach than Tinker.” In her view, Pickering/Connick/

Garcetti “appreciates the student-athlete’s unique relation to a state [univer-

sity] athletic department as qualitatively distinct from a high school stu-

dent’s desire to attend class, [thereby requiring] greater deference [to

institutional authority] than the Tinker framework offers.”

248

In her view, “season-long bans, which require athletes to sign off their

Twitter or Facebook accounts during their competitive season, are content-

neutral” time, place, or manner restrictions on speech.

249

She recommends

that such restrictions be evaluated according to “intermediate scrutiny,”

which requires “a demonstration of a narrow tailoring (or fit) to serve a

significant governmental interest.”

250

In this case, she argues, the significant

governmental interest is “encouraging successful athletic performance,”

251

and the seasonal social-media ban satisfies the narrow-tailoring requirement

because the governmental interest is more likely to be achieved with the ban

244

Meg Penrose, Outspoken, supra note 92, at 525-26.

245

Id. at 538.

246

Penrose, Tinkering with Success, supra note 243, at 61.

247

Id. at 64.

248

Penrose, Outspoken, supra note 92, at 543.

249

Penrose, Tinkering with Success, supra note 243, at 58.

250

Id. at 61.

251

Id.

2022 / First Amendment Rights of College Athletes 335

than without it.

252

The ban does not discriminate based on the message

conveyed, the subject discussed, or the viewpoint expressed, but merely re-

stricts the time (during the season) and the manner (social media platforms)

of expression, like a ban on using a sound truck in a residential neighbor-

hood after 8 p.m. Furthermore, the seasonal ban leaves open “alternative

channels of communication,” the final requirement for a time, place, or

manner regulation.

253

Athletes may still communicate by text message,

email, or more traditional means if they wish.

But a healthy skepticism prompts the question: “Can a coach at a pub-

lic college condition participation in [a] sport on a promise not to engage in

free speech via Twitter?”

254

The answer is most likely no. Assuming an

athlete’s financial-aid agreement with an institution is a contract, a constitu-

tional restraint on social-media speech would run the risk of imposing an

unconstitutional condition on that contract.

255

The doctrine of unconstitu-

tional conditions holds that government may not deny a benefit to a person

because that person exercises a constitutional right.

256

It would presumably

apply when a public university conditions the receipt of an athletic scholar-

ship on athletes giving up their right to free speech because the athletes

would be “pressured to alter a choice about exercise of a preferred constitu-

tional liberty in the direction the government [in the form of the university]

favors.”

257

Faced with an unconstitutional condition

—

restricted speech

rights

—

a court would apply “strict scrutiny,” meaning that to justify the

restriction, the institution would have to show that it was narrowly tailored

to achieve a compelling governmental purpose.

258

Even if the institution

could show that the challenged rule was “narrowly tailored,” namely, the

least restrictive means available to achieve its goal, the rule would fail strict

scrutiny if the court concluded that team unity and the avoidance of distrac-

tions did not constitute a “compelling” state interest.

A practical consideration would also take the wind out of the contrac-

tual argument’s sails. Forty-six percent of the athletes at Division I institu-

tions and thirty-nine percent of their counterparts at Division II institutions

252

See id. at 63.

253

See id. at 66.

254

Paulson, supra note 147.

255

See LoMonte, College Sports and Social Media, supra note 147.

256

See Davis Walsh, All a Twitter: Social Networking, College Athletes, and the First

Amendment, 20 Wm. & Mary Bill Rts. J. 619, 638 (2011) (citing Perry v.

Sindermann, 408 U.S. 593, 597 (1972)).

257

Id. at 640.

258

See id. at 638.

336 Harvard Journal of Sports & Entertainment Law / Vol. 13

are “walk-ons,” who play without benefit of an athletic scholarship.

259

De-

spite lacking a contractual arrangement with their respective institutions,

walk-ons enjoy no greater freedom of expression than their teammates who

receive athletic scholarships.

260

The contractual rationale, then, would, at

best, justify limiting the social-media access of only fifty-four percent of

college athletes, while at worst, dragooning the remaining forty-six percent

into compliance if they wished to continue playing their sport. The former

would likely be ineffective, while the latter would be unfair. Thus, both

constitutional theory and practical considerations counsel against restricting

athletes’ social-media access based on the contractual rationale. Put simply,

Professor Penrose stretches the contractual rationale to the breaking point.

The quasi-employment rationale is also problematic. Despite argu-

ments to the contrary by some commentators,

261

“college athletics is not in

any traditional sense ‘employment,’ and . . . colleges themselves shrink from

characterizing their student-athletes as employees.”

262

Indeed, although the

NCAA has grudgingly accepted athletes’ new opportunity to profit from

commercial use of their names, images, and likenesses, it remains adamantly

opposed to a pay-for-play arrangement in which they would be considered

employees.

263

Therefore, courts would likely be skeptical of institutions’

259

See The Five Most Common Walk-On Questions, Sports Engine (July 10, 2018),

https://www.sportsengine.com/recruiting/five-most-common-college-walk-ques-

tions [https://perma.cc/H3S5-F5LE]; Drew Eastland, Unsung Heroes Still Finding Col-

lege Athletics Rewarding, The Davidsonian (Nov. 20, 2019), https://

www.davidsonian.com/unsungheroes-still-find-college-athletics-rewarding/ [https://

perma.cc/K7XC-BRKS].

260

See LoMonte, College Sports and Social Media, supra note 147.

261

For arguments that college athletes at Division I institutions are effectively

employees because of their athletic scholarships and the coaches’ control over their

lives, see Richard T. Karcher, Big-Time College Athletes’ Status as Employees, 33

A.B.A. J. Labor & Emp. L. 31 (2018); Amy C. McCormick and Robert A. McCormick,

The Emperor’s New Clothes: Lifting the NCAA’s Veil of Amateurism, 45 San Diego L.

Rev. 495 (2008); Amy C. McCormick and Robert A. McCormick, The Myth of the Stu-

dent-Athlete: The College Athlete as Employee, 81 Wash. L. Rev. 71 (2006).

262

LoMonte, College Sports and Social Media, supra note 147.

263

The current NCAA Constitution includes Article 2.9, “The Principle of Am-

ateurism,” which states as follows: “Student-athletes shall be amateurs in intercolle-

giate sport, and their participation should be motivated primarily by education and

by the physical, mental, and social benefits to be derived. Student participation in

intercollegiate athletics is an avocation, and student-athletes should be protected

from exploitation by professional and commercial enterprises.” See Nat’l Col-

legiate Athletic Ass’n, 2021-22 Division I Manual 3 (2021). Similarly, the new

NCAA Constitution that the membership approved on January 20, 2022, which

took effect on August 1, 2022, states in Article 1, Part B: “Student-athletes may

not be compensated by a member institution for participating in a sport but may

2022 / First Amendment Rights of College Athletes 337

claims that they can control the speech of athletes, as “the legal equivalents

of employees.”

264

Besides, as long as institutions are unwilling to extend the

full benefits of employment (e.g., salaries, health insurance, etc.) to athletes,

those institutions “should not be allowed to take advantage of employee

status for speech-restricting purposes . . . .”

265

In the current environment,

featuring rules changes (e.g., transfer rule, NIL rule) designed to make col-

lege athletics fairer to the athletes, making them employees solely to restrict

their speech rights is both bad law and bad policy. Thus, the quasi-employ-

ment rationale is as suspect as the contractual rationale. When applied to

the free-speech rights of college athletes, both rationales are playing out of

position, like the infielder forced to play the outfield or the offensive player

shifted to the defense.

Another factor also counsels against seasonal (or longer) bans on social-

media access for college athletes. Regardless of the underlying rationale

used, the argument that a seasonal ban would be a time, place, or manner

regulation that could withstand intermediate scrutiny is weak.

266

Admit-

tedly, when courts review time, place, or manner regulations, they need not

consider whether the regulations are the “least intrusive means of furthering

[a] legitimate governmental interest.”

267

And in such circumstances, as Pro-

fessor Penrose observes, “[c]ourts will look for some demonstrated effort to

properly constrain the restriction to not overly affect speech and

expression.”

268

Still, the intermediate scrutiny to which time, place, or manner restric-

tions are subject requires them to be “narrowly tailored to serve a significant

governmental interest” and to “leave open ample alternative channels for

communication of the information.”

269

Using this standard, the Supreme

Court has upheld regulations that (1) prohibited demonstrators from sleep-

ing in Lafayette Park and on the National Mall in Washington, D.C.;

270

(2)

required performers in New York City’s Central Park bandshell to use the

receive educational and other benefits in accordance with guidelines established by

their NCAA division. See Nat’l Collegiate Athletic Ass’n, NCAA Constitu-

tion (2021), available at ncaaorg.s3.amazonaws.com/governance/ncaa/constitution/

NCAAGov_Constitution121421.pdf [https://perma.cc/U9KQ-9BP3].

264

LoMonte & Hamrick, supra note 118, at 127.

265

LoMonte, College Sports and Social Media, supra note 147.

266

See Penrose, Sharing Stupid $h*t with Friends and Followers, supra note 235, at

480; Penrose, Tinkering with Success, supra note 243, at 42.

267

Penrose, Sharing Stupid $h*t with Friends and Followers, supra note 235, at 480

(quoting Ward v. Rock Against Racism, 491 U.S. 781, 789-90 (1989)).

268

Id.

269

Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).

270

See id.

338 Harvard Journal of Sports & Entertainment Law / Vol. 13

City’s sound technician to control volume during their performances;

271

and

(3) prohibited locating adult movie theaters within one thousand feet of a

residential zone, church, park, or school to address the secondary effects (crime,

reduced property values, etc.) of such theaters on the surrounding

community.

272

Even if social-media bans applied to college athletes are content-neu-

tral because they extend to all speech, regardless of content, they are likely

to fail intermediate scrutiny. Institutions will be at pains to show that a

unified, focused athletic team is a “substantial governmental interest” and

that banning social media is more likely than education or after-the-fact

punishment to serve that interest.

273

Institutions may also have difficulty

showing that social-media bans leave open ample alternative means of com-

munication because many of them couple such bans with restrictions on

athletes’ contact with print and broadcast journalists.

274

271

See Ward, 491 U.S. 781.

272

See City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 47 (1986).

273

Professor Penrose views athletic success at public universities as a substantial

governmental interest. She writes that “success on the court or field leads to an

enhanced academic reputation and greater alumni support, which generally raises a

university’s overall profile.” Penrose, Sharing Stupid $h*t with Friends and Followers,

supra note 235, at 481. But that statement conflicts with a massive literature on the

governance of college sports that documents repeated financial and academic scan-

dals at NCAA Division I institutions, originating in the athletic department, that

have tarnished institutional reputations as much as athletic success has enhanced

them. The same literature shows that data generally do not support broad claims

like that of Professor Penrose that athletic success yields an improved academic

reputation and greater alumni support. See, e.g., Gerald Gurney et al., Un-

winding Madness: What Went Wrong with College Sports and How to Fix

It (2017); Brian L. Porto, A New Season: Using Title IX to Reform Col-

lege Sports (2003); Allen L. Sack and Ellen J. Staurowsky, College Athletes

for Hire: The Evolution and Legacy of the NCAA’s Amateur Myth (1998); Jay

M. Smith and Mary Willingham, Cheated: The UNC Scandal, The Education

of Athletes, and the Future of Big-Time College Sports (2015); Murray

Sperber, College Sports, Inc.: The Athletic Department vs. The University

(1990); John R. Thelin, Games Colleges Play: Scandal and Reform in Inter-

collegiate Athletics (1996); Andrew Zimbalist, Whither College Sports:

Amateurism, Athlete Safety, and Academic Integrity (2021); Andrew

Zimbalist, Unpaid Professionals: Commercialism and Conflict in Big-Time

College Sports (1999).

274

See LoMonte & Hamrick, supra note 118, at 97-100. A survey by the Brechner

Center for Freedom of Information at the University of Florida asked the eighty-four

largest state universities in the United States for copies of documents concerning

their athletes’ interactions with the media. The request yielded fifty-eight sets of

documents, fifty-six from responses and two found online. The data showed that

fifty institutions had restrictions in place regarding athletes’ interactions with the

2022 / First Amendment Rights of College Athletes 339

The answer to Professor Penrose’s question whether a coach or athletic

department at a public university can legally impose such restrictions is yes,

but not to the extent of a seasonal ban, which she recommends. And the

answer to her question whether the First Amendment limits the type or

length of those restrictions, in turn, is resoundingly yes. Thus, just as athlete

protest requires a new, or at least modified, legal standard, so too does ath-

lete access to social media. Part V, which follows, will identify a standard to

govern both issues.

V. The

Tinker

Collegiate Standard

A. As Applied to Athlete Protest

Examples abound of athlete protest as a catalyst to constructive change

in college sports and beyond. Recall that at the University of Missouri, a

threatened boycott of upcoming games and practices by athletes of color on

the football team prompted the resignation of President Tim Wolfe, “who

had mishandled instances of racial hostility” on the campus.

275

At Penn

State, a gymnastics coach resigned after a member of the 2016 women’s

team told the campus newspaper that the coaching staff belittled and body-

shamed athletes, pressuring them to practice despite injuries and to lose

weight.

276

And at Grambling State University in Louisiana, football players

boycotted a game in 2013 to protest the decrepit condition of their locker

room and workout facilities and the firing of their popular head coach.

277

contrast, an investigative report into the death of University of Maryland

football player Jordan McNair in 2018 from heatstroke suffered during a

team workout concluded that the team’s culture caused problems to fester

“because too many players feared speaking out.”

278

In particular, the culture

of silence allowed the team’s strength coach, whom the report concluded had

media. According to LoMonte and Hamrick, the restrictions “categorically prohib-

ited speaking to the news media without approval from a coach or athletic depart-

ment staff member.” Id. at 97.

275

Id. at 94.

276

See id. at 96.

277

See id.

278

Rick Maese & Keith L. Alexander, Report on Maryland Football Culture Cites

Problems but Stops Short of ‘Toxic’ Label, Wash. Post (Oct. 25, 2018), wash-

ingtonpost.com/sports/2018/10/25/report-maryland-football-culture-cites-

problems-stops-short-toxic-label [https://perma.cc/335L-68AY].

340 Harvard Journal of Sports & Entertainment Law / Vol. 13

“engaged in abusive conduct” toward players “many” times, to be “effec-

tively accountable to no one.”

279

These examples, which underscore the value of speech and the danger

of silence, illustrate the need for a Tinker collegiate standard that would

protect athletes’ exercise of their First Amendment rights while maintaining

coaches’ capacity to direct their teams. The new standard would derive from

the foundational Tinker premise that institutions cannot prohibit or punish

expression by college athletes without showing that the forbidden speech

would “materially and substantially interfere with the requirements of ap-

propriate discipline in the operation of” their athletic programs.

280

It would

also reflect the Supreme Court’s decisions recognizing the centrality of free

expression in an academic community.

281

Therefore, the Tinker collegiate standard would reject the Sixth Cir-

cuit’s reasoning in Lowery v. Euverard

282

that “[t]he potential disunity and

disrespect . . . the coach perceived the petition [some players circulated

against him] to be creating was sufficient to satisfy the ‘materially or sub-

stantially interfere’ test articulated in Tinker.”

283

Recall that the Lowery

plaintiffs claimed their coach had struck a player on the helmet, thrown

away recruiting letters from colleges to players the coach disfavored, humili-

ated individual players, and required a year-round physical conditioning

program contrary to state athletic-association rules.

284

Lowery shows why the

Tinker standard should be modified to protect athletes’ freedom to challenge

official misconduct or abuse of players by coaches: “the student-athletes’

whistleblower conduct could be seen as beneficial to society.”

285

Furthermore, as the concurrence in Lowery noted, under Tinker, the in-

stitution “bears the burden of demonstrating sufficient facts to support its

forecast of substantial disruption.”

286

The high school in Lowery had not

done so, instead merely “assert[ing] a generalized fear of disruption to team

unity based on the students’ critical opinion of Euverard’s ability as a

coach,” which was “simply not enough to meet the ‘substantial disruption’

279

Id.

280

Tinker, 393 U.S. at 509.

281

See Healy v. James, 408 U.S. 169 (1972); Papish v. Bd. of Curators of Univ.

of Missouri, 410 U.S. 667 (1973); Rosenberger v. Rector and Visitors of Univ. of

Va., 515 U.S. 819 (1995).

282

497 F.3d 584 (6th Cir. 2007).

283

Edmund Donnelly, Comment, What Happens When Student-Athletes are the Ones

Blowing the Whistle? How Lowery v. Euverard Exposes a Deficiency in the First Amend-

ment Rights of Student-Athletes, 43 New Eng. L. Rev. 943, 954 (2009).

284

See id. at 960.

285

Id. at 960.

286

Lowery, 497 F.3d. at 603.

2022 / First Amendment Rights of College Athletes 341

standard of Tinker.

287

Indeed, no disturbance had occurred until Coach

Euverard learned of the players’ petition and punished its organizers.

288

The Tinker collegiate standard would maintain the “material disrup-

tion” requirement of the existing Tinker standard, but a generalized fear of

disunity resulting from athlete dissent would not suffice. Courts would in-

sist that institutions present “particular facts” to demonstrate that the dis-

ruption will materially and substantially interfere with “the educational

goal of the particular activity (or other students’ rights),” instead of relying

on a generalized fear of disruption to routine operations.

289

Moreover, even

assuming the institution could demonstrate such a material and substantial

disruption, an exception would exist for whistleblower conduct designed, for

example, to bring unethical or abusive coaching behavior to light.

290

This

exception would apply, in a collegiate analogue to Lowery, to protect ath-

letes’ right to seek removal of a coach whose behavior was unethical or

abusive.

Reflecting the tradition of broad free-speech rights for college students,

the exception would extend to expressive conduct designed to highlight a

particular social issue, such as kneeling on one knee in the locker room or on

the field before competition in support of the Black Lives Matter Movement,

or refusing to do so, or declining to sing “The Eyes of Texas” after a football

game. Any institutional penalties imposed on athletes for whistleblower or

other expressive conduct would trigger a judicial determination whether

that conduct alone precipitated the punishment. If so, application of the

Tinker collegiate standard would negate the penalty.

291

If not, then the court

must determine whether the institution would have penalized the athlete

absent the expressive conduct. If a penalty would have been imposed irre-

spective of the expressive conduct because the speech was unprotected or

because illegal activity occurred, then the First Amendment would not pro-

tect the athletes from punishment. The new standard would keep faith with

the Tinker decision by acknowledging the context in which the expression

occurred (i.e., a college campus)

292

and honoring the statement in Justice

Fortas’s majority opinion that students’ free speech rights extend beyond the

classroom, to the cafeteria, the playing field, and the campus generally.

293

287

Id.

288

See id. at 605.

289

Zeidel, supra note 65, at 341.

290

See Donnelly, supra note 283, at 964.

291

See id.

292

See id. at 965.

293

See Tinker, 393 U.S. at 513.

342 Harvard Journal of Sports & Entertainment Law / Vol. 13

Had the threatened boycott by the Missouri football players in 2015

materialized, been punished, and resulted in litigation, the Tinker collegiate

standard would likely have vindicated the players’ free-speech rights. The

campus was roiled by protests over administrative inaction regarding harass-

ment of African American students before the football players threatened a

boycott, so the University would have struggled to show that the players’

action materially disrupted the institution’s work. The players acted only

after a Black graduate student began a hunger strike over the incidents of

harassment on campus.

294

And although nearly half of the players (60 of

124) on Missouri’s roster were African American, it is unclear that all Black

players would have participated in the boycott; even if they had, the team

could still have played its three remaining games, albeit with a reduced

roster.

295

Furthermore, the threatened boycott was not only expressive con-

duct concerning an important social issue

—

racial discrimination

—

but also

an act of whistleblowing against a university administration that had alleg-

edly failed to respond to incidents of racial intolerance and intimidation on

campus. These known facts suggest that under the recommended standard,

the players’ right to protest would have prevailed.

Nevertheless, the Tinker collegiate standard recognizes coaches’ author-

ity to design game plans; decide who will play and who will sit on the

bench; and, generally, to manage their teams as they see fit. That authority

was at issue in Marcum v. Dahl; recall that in Marcum, a rift within a wo-

men’s college basketball team led to the nonrenewal of scholarships for play-

ers who claimed they would not play the next season if the University

294

See Marc Tracy & Ashley Southall, Black Football Players Lend Heft to Protests at

Missouri, N.Y. Times (Nov. 8, 2015), nytimes.com/2015/11/09/us/missouri-foot-

ball-players-boycott-in-protest-of-university-president.html [https://perma.cc/

A4RU-B599].

295

See id. The inflated size of college football rosters is a frequent target of critics

of big-time college sports. Missouri’s 2015 roster was just slightly larger than the

average roster size (120) for members of the Football Bowl Subdivision (FBS), the

most competitive entity within college football. The critics charge that such roster

sizes are unnecessarily large and deprive women’s sports and men’s nonrevenue

sports of much-needed funds. They note that college teams commonly have eighty-

five scholarship players and thirty-five walk-ons, whereas National Football League

(NFL) teams have a maximum active roster of forty-five players and a maximum

inactive roster of eight additional players. Instead, some critics recommend that the

number of college football scholarships be reduced from eighty-five to sixty. Con-

sidering the smaller rosters and the longer seasons for NFL teams, Missouri could

presumably have fielded a team for the last three games of the 2015 season had the

Black players carried out a boycott. See, e.g., Gerald Gurney et al., Unwinding

Madness: What Went Wrong with College Sports and How to Fix it 219

(2017).

2022 / First Amendment Rights of College Athletes 343

rehired the current head coach. The trial court granted the defendants’ mo-

tion for judgment notwithstanding the verdict, and the Tenth Circuit af-

firmed, reasoning that the dispute was an internal team issue best resolved

by athletic administrators.

296

The Tinker collegiate standard would likely have reached the same re-

sult in Marcum, but without equating college freshmen to public employees.

It would have first considered whether the players’ rift materially and sub-

stantially disrupted their team during the 1977-78 season. The appellate

court’s observation that the rift “resulted in disharmony among the players

and disrupted the effective administration of the basketball program” con-

trasts with Lowery, in which any disruption that occurred followed actions

by a coach, not a player. In this case, the players had created the rift and

perpetuated it themselves. Assuming a disruption, then, the recommended

standard would have considered whether the plaintiffs were “blowing the

whistle” on official misconduct or highlighting an important social issue,

such as a form of discrimination. In Marcum, they were doing neither; the

underlying dispute was about who should be the head coach, which is a

matter for athletic administrators

—

not players or courts

—

to decide. There-

fore, based on the available facts, the athletic administrators did not violate

the plaintiffs’ First Amendment rights.

Adopting the Tinker collegiate standard, then, would not cause ath-

letes’ free speech right to supersede coaches’ authority to manage their teams

in every instance. Athletes would have to show that their protest activity did

not materially and substantially disrupt an institutional athletic program or

that, if such disruption occurred, the players’ right to blow the whistle on

misconduct or highlight an important issue effectively negated it. Other-

wise, as in Marcum, institutional authorities would prevail. Accordingly, this

standard would protect athletes’ right to protest while respecting coaches’

authority and treating college athletes as students.

B. As Applied to Athletes’ Social-Media Use

If the Tinker collegiate standard were applied to institutional bans on

college athletes’ use of social media, the bans would not pass constitutional

muster. To be sure, private colleges and universities, along with other pri-

vate entities, such as the National Football League (NFL), Major League

Baseball (MLB), and the National Basketball Association (NBA), can estab-

lish strict social-media policies or punish an athlete for an indiscrete posting

296

See Marcum v. Dahl, 658 F.2d 731 (10th Cir. 1981).

344 Harvard Journal of Sports & Entertainment Law / Vol. 13

without being subject to a First Amendment claim.

297

But the decisions

made by employees of public colleges and universities are “state action,”

making them subject to potential First Amendment and other constitu-

tional claims, even though similar actions by employees of private institu-

tions are not.

298

Moreover, courts customarily treat social-media postings as

“off-campus speech,” only upholding a public college’s or university’s so-

cial-media regulation if the institution can show the speech (1) materially

disrupted its work and/or (2) fits within a category of unprotected speech,

such as defamation or a true threat.

299

A clear recent example of distinct treatment for off-campus speech is

the Supreme Court’s decision in Mahanoy Area School District v. B.L., in

which the Court invalidated a high school’s suspension of a student from the

cheerleading team for producing and transmitting to her friends, via

Snapchat, vulgar language and gestures critical of the school and the

team.

300

The “off-campus” nature of the speech was key to the Court’s deci-

sion, as was its occurrence outside of school hours.

301

When speech occurs off

campus, the Court reasoned, the customary discretion that schools have to

regulate speech, in light of their duty to maintain a safe learning environ-

ment, “is diminished.”

302

Besides, the student’s speech lacked fighting

words or obscenity, did not identify the school or target any member of the

school community, was communicated via her own cellphone, and reached

only a private audience of her Snapchat friends.

303

The Supreme Court’s protection for off-campus speech in a high school

setting suggests that courts will find bans on social-media use by college

athletes to be unconstitutional. Regrettably, though, as one commentator

has noted, “these bans are implemented with little protest because, of all the

parties involved, the student-athletes are in the weakest position to refuse

297

See Eric D. Bentley, He Tweeted What? A First Amendment Analysis of the Use of

Social Media by College Athletes and Recommended Best Practices for Athletic Departments,

38 J. Coll. & Univ. L. J. 451, 455 (2012) [hereinafter Bentley, He Tweeted What?].

298

See id. at 453.

299

See id. at 457 (citing Evans v. Bayer, 684 F. Supp. 2d 1365, 1372 (S.D. Fla.

2010) (holding that high school student’s creation of Facebook group devoted to

criticizing a teacher was protected speech because it was published off campus, did

not cause a disruption on campus, was not lewd, vulgar, or threatening, and did not

advocate illegal or dangerous behavior)).

300

See 141 S. Ct. 2038, 2042-43 (2021).

301

See id. at 2047.

302

Id. at 2046.

303

See id. at 2047.

2022 / First Amendment Rights of College Athletes 345

these constitutional infringements.”

304

Most athletic careers end when col-

legiate eligibility ends, so athletes are loath to jeopardize those careers, and

alienate their teammates, by suing their coach or institution over a social-

media ban.

305

Besides, even if an athlete sued, by the time the litigation was

complete, the athlete’s eligibility for competition would likely have en-

ded.

306

Athletes’ unwillingness to challenge social-media bans hardly vali-

dates the bans, though. Indeed, they fail as time, place, or manner

regulations because they limit considerably more speech than is necessary to

achieve the purpose that prompted their creation.

307

For example, a social-

media ban imposed by a coach

would ban a golf team from posting a nude team photo, a basketball player

from posting insensitive comments about women, or a football player from

posting comments on Twitter during the middle of a game, it would also

ban a Facebook posting that an athlete and his roommate found a good

pizza place, a posting that the athlete wants the president to be reelected,

or a posting with his or her view on the war on terrorism.”

308

And it would put a red flag next to enough words that an athlete would

think twice about posting news of her friend who was killed by a drunk

driver

309

or that he planned to run in a 5K race to raise money for fighting

breast cancer.

310

If challenged in court, such a ban would be vulnerable to a

304

J. Wes Gay, Note, Hands off Twitter: Are NCAA Student-Athlete Social Media

Bans Constitutional?, 39 Fla St. U. L Rev. 781, 802-03 (2012).

305

Hauer, supra, note 107, at 420. NCAA data show the slim odds of being

drafted by a professional sports league. Just 4.2 percent of draft-eligible Division I

men’s basketball players were chosen in the 2019 NBA draft. That number im-

proved to twenty-one percent when other professional leagues (the G-League and

international leagues) were included in the calculation. In women’s basketball, 2.8

percent of draft-eligible Division I players were chosen in the 2019 WNBA draft,

although that number also improved to twenty-one percent when international

leagues were added to the calculation. In football, the NCAA estimates that 3.8

percent of draft-eligible Division I players were chosen in the 2019 NFL draft.

Opportunities in the Canadian Football League and the XFL were not included in

the calculation, so the number of college players who played on professional football

teams outside the NFL is unclear. Nevertheless, one can safely say that most college

football and basketball players will not have a professional career in their respective

sports. See Estimated Probability of Competing in Professional Athletics, NCAA (Apr. 8,

2020), ncaa.org/sports/2015/3/6/estimated-probability-of-competing-in-profes-

sional-athletics.aspx [https://perma.cc/5KFP-3Q38].

306

See id. at 421.

307

See Bentley, He Tweeted What? supra note 297, at 459.

308

Id. at 460.

309

See Browning, supra note 11, at 842.

310

See Bentley, Unnecessary Roughness, supra note 14, at 837.

346 Harvard Journal of Sports & Entertainment Law / Vol. 13

claim that it was overbroad, burdening more speech than necessary to realize

the coach’s goals.

311

The ban would also violate Tinker, which authorizes

institutions to regulate “speech that impedes [them] from functioning in an

operational sense, not speech reflecting discredit on the [institution] or its

students.”

312

Professor LoMonte observes that

[n]one of the consequences that colleges’ speech restrictions seek to

avoid

—

that the college or its athletes might suffer reputational harm, that

an athlete might be disqualified from competition, that a coach might feel

his authority threatened, that locker-room dissent might result in losing a

game

—

is of any great moment when weighed against the compromise of

fundamental freedoms.

313

Still, coaches and athletic administrators will not be powerless to pre-

vent indiscreet postings if blanket and seasonal bans are lifted. Constitution-

ally sound alternatives exist. For example, professional sports leagues have

adopted what amount to time, place, or manner restrictions that prohibit

athletes from posting comments to social media shortly before, during, and

immediately after games.

314

Such restrictions are narrowly tailored to pre-

vent players from succumbing to distractions while limiting no more speech

than necessary to achieve that goal.

315

Coaches could also make the team

locker room, team meetings, and team study halls off-limits to social media

for the same reason.

316

And they could prohibit players from posting infor-

mation concerning injuries and game strategies.

317

Along with such restrictions should come education of athletes in

“what not to post and why certain kinds of posts can compromise their

safety.”

318

Education, after all, is what colleges and universities do, so they

are well-placed to teach unsuspecting athletes about the risks of social-media

use. Doing so would be an exercise in enlightened self-interest because an

institution could simultaneously protect its brand and its athletes’ brands

from being tarnished by an ill-advised tweet, while “refraining from inva-

sive, legally dubious conduct.”

319

Besides, athletes are more likely to learn

how to use social media responsibly

—

which will help them in their post-

311

See id.

312

LoMonte, Fouling the First Amendment, supra note 9, at 32.

313

Id. at 50.

314

See Gay, supra note 304, at 803.

315

See LoMonte, Fouling the First Amendment, supra note 9, at 48.

316

See Hauer, supra note 107, at 433-34. See also Bentley, He Tweeted What?, supra

note 297, at 461.

317

See LoMonte & Hamrick, supra note 118, at 138.

318

Hauer, supra note 107, at 434.

319

Browning, supra note 11, at 843.

2022 / First Amendment Rights of College Athletes 347

college lives

—

if institutions teach them how to do so instead of trying to

silence them.

320

Thus, even if courts applied the Tinker collegiate standard to

college athletes’ social-media use, coaches could still prevent distractions to

athletes and disruptions to teams by adopting narrow restrictions and edu-

cating their athletes about the power and the perils of social media.

No court will adopt the Tinker collegiate standard, though, until a col-

lege athlete challenges a social-media ban in court. In the meantime, in

sixteen states, athletes may benefit from a “social media privacy” statute

321

that limits institutions’ ability to require current or prospective students to

provide login information for their social-media accounts.

322

But these stat-

utes will not help athletes if institutions permit coaches to ask athletes to

waive their statutory rights as a condition of athletic participation.

323

Such a

request could well be an unconstitutional condition on an athletic scholar-

ship, but no court can answer that question without a lawsuit. Thus, despite

weak justifications for social-media bans and strong arguments against

them, college athletes must depend on the good faith of coaches and admin-

istrators for freedom of expression because of the athletes’ understandable

reluctance to challenge the bans in court. Put another way, the Tinker col-

legiate standard could change the legal landscape to athletes’ benefit regard-

ing both the right of protest and social-media use, but only if athletes begin

to challenge institutions in court.

VI. Conclusion

Recently, colleges and universities have begun to treat athletes like

other students regarding the rights to transfer freely and to earn income

from the commercial use of names, images, and likenesses. But they con-

tinue to treat athletes far more restrictively than other students regarding

the exercise of free speech. Nothing about the relationship between athletes

and institutions is so unique as to warrant disregarding traditional First

Amendment principles. Coaches should not be able to require athletes to

stand (or kneel) before a game in support of a particular group or viewpoint

320

See Paulson, supra note 147.

321

See LoMonte, College Sports and Social Media, supra note 147.

322

See id. Since 2012, twenty-seven states have enacted social-media-privacy stat-

utes that apply to employers, and sixteen states have applied their statutes to educa-

tional institutions. See State Social Media Privacy Laws, Nat’l Conf. of State

Legislatures (Nov. 18, 2021), https://www.ncsl.org/research/telecommunications-

and-information-technology/state-laws-prohibiting-access-to-social-media-user

names-and-passwords.asp [https://perma.cc/NFG5-V5PP].

323

See LoMonte, College Sports and Social Media, supra note 147.

348 Harvard Journal of Sports & Entertainment Law / Vol. 13

or to sing an alma mater associated with a racist past. Neither should

coaches be able to impose severe restrictions on athletes’ social-media use or

employ third-party vendors to monitor that use.

The antidote to such restrictive policies is for courts to modify the

longstanding Tinker standard for judging the constitutionality of student

speech and to apply this new standard

—

the Tinker collegiate standard

—

college athletes. This change would honor the Supreme Court’s recognition

of a college campus as “peculiarly the marketplace of ideas.”

324

Under the

new standard, an institution could not silence student speech without show-

ing that the speech would materially and substantially interfere with the

educational goal of a particular activity or with the rights of other students.

Even assuming such a showing, an exception would exist for whistleblower

conduct intended to highlight official misconduct, such as abusive coaching

behavior.

325

The exception would also cover expressive conduct designed to

underscore a particular social issue, such as kneeling in support of the Black

Lives Matter Movement. If, however, the dispute is about who should be the

head coach, what style of offense or defense to play, or another internal team

matter, the First Amendment would not protect the athletes’ speech.

Under the Tinker collegiate standard, institutional bans on athletes’ so-

cial-media use fail as time, place, or manner restrictions because they restrict

more speech than necessary to achieve their purpose. And they violate even

the existing Tinker standard, which permits institutions to regulate speech

that prevents them from conducting their operations, but not speech that

merely embarrasses them or their students.

326

Constitutionally sound alter-

natives include prohibiting social-media use shortly before, during, and im-

mediately after games; prohibiting the posting of confidential information,

such as injury reports and game strategies; and educating athletes about safe

social-media use.

Thus, the Tinker collegiate standard would increase protections for col-

lege athletes’ First Amendment rights, while still enabling coaches to con-

duct team operations without undue interference. It’s time for Tinker to go

to college.

324

Healy, 408 U.S. at 180 (internal quotation marks omitted).

325

See Donnelly, supra note 283, at 964.

326

See LoMonte, Fouling the First Amendment, supra note 9, at 32.