Sports & Entertainment Beat

Laws — like people — are imperfect. They can be slow to adapt to evolving societal norms, and worse still, their application can yield unjust outcomes. Indeed, look no further than this past week’s developments involving Olympic-hopeful Track & Field athlete, Sha'Carri Richardson. Almost as quickly as Richardson could sprint, we saw her go from Gold Medal favorite to spectator after a drug test administered (after her first place finish in her U.S. Olympic trials) revealed that she had used marijuana, a substance banned by the U.S. Anti-Doping Agency and still officially illegal at the federal level. Never mind the facts that first, marijuana was legal in Oregon (the state in which she had used the drug) and a substantial plurality of states; second, she had used the drug as a means of coping with the trauma of learning of her biological mother’s abrupt death; and lastly, the drug is not performance-enhancing. To the U.S. Track & Field team, the rules are the rules. Perhaps Richardson’s plight will spur policy change — much like the years of collegiate athletes being declared ineligible for having received compensation, which have led to overdue name, image and likeness (NIL) reforms — but you cannot help but feel for Richardson for all she has lost, personally and financially. I know I will be pulling for her when her chance at Olympic glory hopefully comes back around in 2024 (approximately 150 Spotlights) from now.

With that, here’s what else is making waves this week:

Well, today is the big day. If you’re reading this week’s installment of the Spotlight, it means that you survived the long and arduous journey of the name, image and likeness (NIL) era in college sports. Indeed, with the National Collegiate Athletic Association (NCAA) Board of Directors agreeing this week (Wednesday, June 30) to waive enforcement of its prohibition against collegiate athletes making money off of their NIL rights (their fame) amid interim guidance to schools, we find ourselves in a brave new world where you might see your alma mater’s star quarterback licensing his or her NIL rights, newly-designed logos (I see you, Graham Mertz) for commercial use in anything from an advertisement for the off-campus car dealership to one for a multinational car brand. As ever, the devil is in the details, and in schools adopting their own rules and programs designed to educate and empower their student-athletes – particularly in the vast majority of states that do not have NIL legislation coming into effect today – those details are all the more devilish given that the NCAA spotted them less than a week to prepare its athletes (and themselves) for a moment that the NCAA could not itself prepare for in the span of years. With so much potential for uncertainty and confusion in this landscape, now more than ever, it is incumbent on educators, business advisors, coaches and parents to play an active role to ensure that the NIL era gets off on the right foot. Still, as we roll into a weekend in which the U.S. celebrates its independence, it’s gratifying to know that college athletes will be celebrating their newfound independence (to a degree).

“The NCAA is not above the law.” Those seven words capped Justice Brett Kavanaugh’s searing concurring opinion issued in connection with Monday’s (June 21) unanimous (9-0) U.S. Supreme Court ruling in Alston v. National Collegiate Athletic Association, in which the Court held that the NCAA’s limits on education-related benefits constituted a violation of antitrust law. Though the legal issue decided was relatively narrow in scope, the ruling sent shockwaves across the country, calling into question, and in many ways, paving the way for future challenges to the NCAA’s “amateurism” rules – including the arcane limits on student-athletes’ abilities to receive compensation from endorsements. This ruling came during an already perilous time for the NCAA, which has been facing the specter of chaos wrought by a slew of states’ name, image and likeness (NIL) legislations coming down the pipe, and Congress failing to pass the uniform legislation at the 11^th hour last week. Now, just when it seemed that, after years of foot-dragging, the buck would be coming back to the NCAA for it to finally take ownership of meaningful reforms to its stance on NIL. NCAA President Mark Emmert circulated a memorandum yesterday, Wednesday (June 23), advising its constituent colleges and universities that they (not the NCAA) would be responsible for adopting their own policies within the not-yet-developed interim NIL guidelines to be hastily prepared by the NCAA – all in just seven (!) days’ time.

Lucky for you, I will not shirk my responsibility to deliver a selection of noteworthy stories in this week’s Spotlight:

As we inch closer to the summer solstice here in the Northern Hemisphere (the first day of summer for those of you who were asleep in science class), the heat is not rising only on the thermometer, but also in the halls of Congress, where the push for federal name, image and likeness (NIL) legislation forges ahead of the July 1 “cliff” — when at least six of the states’ own NIL legislation (including the latest, and perhaps most significant entrant, Texas) will come into effect, and the world of collegiate athletics will be turned upside down.

With that backdrop, the Senate Commerce Committee recently convened for its second NIL hearing in as many weeks — this time, commendably giving current and former athletes, and the father of Jordan McNair (a University of Maryland football player who tragically died of heat stroke during a team practice in 2015) an opportunity to speak for themselves. Although there remains general bipartisan consensus on the need for NIL legislation, loftier — but no less important — aims of mandating the provision of health care and other benefits to collegiate athletes along with the NIL legislation, may spoil the brew in an oft-deadlocked Congress. Still, various states and universities including my alma mater (ON, WISCONSIN!), are preparing as if NIL rights are a foregone conclusion. Buckle up, folks, this situation looks like it will continue to develop over the next few days and come down to the wire.

Less than three weeks remain for either the National Collegiate Athletic Association (NCAA) or for Congress to act to stem the impending chaos on July 1 when college athletes’ name, image and likeness (NIL) laws go into effect in several states. These laws will enable college athletes to enter into endorsement and licensing deals and otherwise monetize their NIL without reprisal from their school or the NCAA itself. This past Wednesday, with the NCAA being an extremely unlikely long shot to meaningfully act, a panel of witnesses consisting of law professors, a head coach, a college sports analyst and NCAA Commissioner Mark Emmert (but conspicuously no current athletes) were convened to testify before the Senate Committee on Commerce, Science and Transportation as it considered various legislative proposals addressing NIL rights, as well as health care and scholarships. Overall, there appears to be bipartisan support (no small feat in D.C.) for the core issue of monetizing NIL rights, but not all agree on how to accomplish those aims. Still, the clock is ticking, and while we’re about as close as we have ever been to sweeping federal legislation giving athletes the same rights that their fellow students have, the question must be asked: “If not now, when?”

As we continue to play the NIL waiting game, I won’t keep you waiting any longer for the highlights in this week’s Spotlight.

Athletes and entertainers are people, too. Albeit, incredibly talented people, but deserving of the same treatment with dignity and respect as how we would want ourselves to be treated. For better or worse, sometimes their larger than life fame, accomplishments and performances on courts, fields, screens and stages, cause others to lose sight of that fact. But, that is no excuse for the type of treatment of, or behavior towards several high-profile athletes over the past week or so. Specifically, in plain sight during the NBA playoffs, we have witnessed the demeaning acts of basketball “fans” toward three of the league's point guards in the form of pouring popcorn on Washington Wizards point guard, Russell Westbrook, spitting at Atlanta Hawks point guard Trae Young and throwing a water bottle at Brooklyn Nets point guard Kyrie Irving. The first two incidents resulted in indefinite bans, and the third resulted in a felony assault charge.

Perhaps the most insidious has been the apparent lack of regard for mental health on display at the French Open, as professional tennis player Naomi Osaka was fined and threatened with disqualification from the Grand Slam event for failing to meet with the media – notwithstanding her open struggles with anxiety and depression. Osaka later made the tough but roundly supported move (including by her sponsors) to withdraw from the tournament to take time for herself. Hopefully these recent events will be a much needed flashpoint for change in sports and beyond.

With that weightier topic behind us, I’ll go back to our normal programming (corny dad jokes a-plenty!) in the form of the spotlighted stories below:

Throughout the United States, people are eagerly preparing for this Memorial Day Weekend (MDW), which marks the unofficial start of summer (not to mention those who made the ultimate sacrifice for the country). If you listen closely, you can hear the clanging sound of people cleaning off their grills, the “glug” of bottles of sunscreen that are just slightly beyond their expiration date (March 2021 will still work, right?) and the palpable excitement of loved ones being able to safely spend time with one another (ideally on a beach) after a trying 18 months battling the COVID-19 pandemic.

In New York, this MDW also brings — rather fittingly — the effective date of legislation creating a postmortem right of publicity for New Yorkers. Following on the path charted by 25 other states including California, Tennessee and Indiana, with this new law, New York gives individuals and their estates the right to prevent unwanted or unauthorized commercial usage of one’s name, image and likeness for 40 years after death, while also creating significant monetization opportunities. Though I don’t think the New York legislature had this in mind, the law also has the effect of giving me vindication for the ‘B+’ I received from a law school professor (and outspoken opponent of a postmortem right of publicity in New York) on a paper in which I argued for the adoption of such legislation, merely because I did not persuade him otherwise.

Pivoting away from pettiness and back to my beach, here’s what I’m watching make waves this week:

As readers from last week will recall, we spent some time examining the notion of credibility. One week later, we’re witnessing what credibility (or lack thereof) hath wrought on our subjects. Bob Baffert? Banned from New York horseracing tracks (including the upcoming Belmont Stakes) and facing potential civil liability from bettors who claim that the horse that they had bet on should have won the race – not Baffert-trained and doping offender Medina Spirit. The weight of Elon Musk’s word in the cryptocurrency world? Apparently hugely significant as cryptocurrency markets have been in freefall mode since his latest comments about Bitcoin and Dogecoin. Mark Emmert and the NCAA? Predictably inert on the subject of name, image and likeness (NIL) laws, setting up July 1^st as a looming question mark for whether and how college athletes will be able to reap the benefits of recently passed legislation in a handful of states, as a flurry of activity in the private sector seems to suggest that change is on the horizon – whether the NCAA likes it or not.

With the stage set, below is a sampling of the other stories I am highlighting this week:

The word of the week for this edition is “credibility.” In the courts of law and public opinion, credibility (or the quality of being trusted and believed in) is everything. Just ask famed Triple Crown horse trainer Bob Baffert, who is currently embroiled in a doping scandal over the 2021 Kentucky Derby winner, Medina Spirit—the fifth horse of Baffert’s to test positive for banned substances this year. Baffert served up wide-ranging explanations/conspiracy theories/excuses for the infraction, blaming “cancel culture,” then cough syrup-urine-soaked hay and most recently—and perhaps most plausibly—a daily ointment administered to the horse. Probably should have led with the ointment.

The impact of credibility was also on full display when avowed cryptophile Elon Musk hosted last week’s Saturday Night Live, he pulled the rug out from under meme cryptocurrency, Dogecoin, referring to it as a “hustle”—robbing it of the credibility that he himself had lent it—only to prop it back up by stating his company Space X would accept Dogecoin payment for trips to space.

The theme of credibility finally brings us to NCAA President, Mark Emmert, who has dragged his feet for years in the efforts to enable college athletes to receive compensation for the use of their names, images and likenesses (NIL), to the point that many are suspect of his credibility. Then came news (featured below) that Emmert is asking the NCAA to move forward with plans to approve new NIL rules in advance of July 1, the date on which several states’ NIL legislation comes into effect. What those rules might look like is unclear, but Emmert, who just received a five-year extension to his tenure as NCAA President, appears to be on the precipice of either salvaging or irretrievably losing his credibility.

What else grabbed my attention this week? Glad you asked…

Hope is in the air (not to mention copious amounts of tree pollen) here in New York – and that’s to say nothing of the Knicks’ hardwood resurgence, the Giants’ highly-acclaimed moves in last week’s NFL Draft and the Yankees’ bats and pitching arms coming to life. Indeed, with hard-won gains from mass vaccinations and other public health measures, New York City—once the epicenter of the coronavirus pandemic—is due to reopen and set the course to something resembling pre-pandemic life as restaurants, bars, comedy clubs, movie theatres, museums, stadiums and arenas return to full (albeit socially-distanced) capacity. We’ve come a long way and still have a ways to go, but there is much to look forward to.

(steps off soapbox)

With that, here’s what I am spotlighting this week: