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'Whose' Game Is It? Sports-Wagering and Intellectual Property

7 Pages Posted: 1 Oct 2014 Last revised: 9 Oct 2014

Ryan M. Rodenberg

Florida State University - College of Education; Florida State University - College of Law

Anastasios Kaburakis

Saint Louis University - John Cook School of Business

John T. Holden

Florida State University

Date Written: September 30, 2014

Abstract

In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA), a statute designed to prevent the further spread of state-sponsored sports-wagering. The statute’s language has the effect of granting a property right to sports leagues, implicating the Constitution’s Intellectual Property Clause. The Intellectual Property Clause grants Congress the authority: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

In 2012, Major League Baseball (MLB), the National Football League (NFL), the National Basketball Association (NBA), the National Hockey League (NHL), and the National Collegiate Athletic Association (NCAA) (collectively “Sports Leagues”) brought suit against New Jersey Governor Chris Christie seeking an injunction under PASPA to prevent the state from offering regulated sports-wagering. The Department of Justice (DOJ) eventually joined the Sports Leagues as an intervenor. The matter was eventually appealed to the Third Circuit where a divided court ruled 2-1 in favor of the Sports Leagues.

PASPA’s section 3703 — labeled “Injunctions” — includes the word “whose,” which confers the ownership rights of “competitive game[s]” to the Sports Leagues for enforcement purposes under the statute. This semantic choice, with the determinant word “whose,” confers ownership rights of “competitive game[s]” to the Sports Leagues, as well as other professional or amateur sports organizations, deputizing them to enforce the law in the same manner as the DOJ.

PASPA violates the Intellectual Property Clause for two distinct reasons. First, the express grant of perpetual ownership rights with characteristics mimicking both patents and copyrights runs counter to various prongs of the Intellectual Property Clause, including the “limited Times,” “Authors and Inventors,” and “Writings and Discoveries” requirements. Second, conferring perpetual property rights to states exempted under PASPA’s grandfathering provision violates the Intellectual Property Clause’s “limited Times” requirement. The focus of this paper is on the former.

Keywords: Constitutional Law, Intellectual Property, Copyright, Patent, Policy, Injunction, Enforcement, Legislative Intent, Preemption, Sports Law, Gambling, Sport Betting, Wagering, PASPA, MLB, NBA, NCAA, NFL, NHL

JEL Classification: K00, K10, K11, K19, K20, K23, K29, K30, K39, K40, K49, L50, L59, L80, L83, L89, O34

Suggested Citation

Rodenberg, Ryan M. and Kaburakis, Anastasios and Holden, John T., 'Whose' Game Is It? Sports-Wagering and Intellectual Property (September 30, 2014). Villanova Law Review -- Tolle Lege, Vol. 60, No. 1, 2014; FSU College of Law, Public Law Research Paper No. 710. Available at SSRN: https://ssrn.com/abstract=2503599

Ryan M. Rodenberg

Florida State University - College of Education ( email )

Tully Gym 1002
1114 W. Call Street
Tallahassee, FL 32306-4450
United States
850-645-9535 (Phone)
850-644-0974 (Fax)

HOME PAGE: http://education.fsu.edu/faculty-and-staff/dr-ryan-rodenberg

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-645-9535 (Phone)
850-644-0974 (Fax)

HOME PAGE: http://education.fsu.edu/faculty-and-staff/dr-ryan-rodenberg

Anastasios Kaburakis (Contact Author)

Saint Louis University - John Cook School of Business ( email )

3674 Lindell Blvd 407
St. Louis, MO 63108-3397
United States

John T. Holden

Florida State University ( email )

Tallahasse, FL 32306
United States

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