Lack of Integrity? Rebutting the Myth that U.S. Commercial Sports Leagues Have an Intellectual Property Right to Sports Gambling Proceeds
115 NYU Journal of Law & Business ___ (2018)
16 Pages Posted: 19 Jul 2018 Last revised: 25 Jul 2018
Date Written: June 27, 2018
On May 14, 2018, the U.S. Supreme Court held in Murphy v. National Collegiate Athletic Association that the Professional and Amateur Sports Protection Act (“PASPA”) violated the Tenth Amendment of the U.S. Constitution, and thus the U.S. government may not use PASPA to prevent states from legalizing commercial sports gambling. In anticipation of this ruling, four U.S. states have already passed new laws to legalize and regulate sports gambling. Meanwhile, fifteen states currently have sports gambling bills that are pending before their state legislatures.
In many instances, these new sports gambling laws would include the payment of a “tax” or “royalty” that transfers some gambling-related revenues from the newly licensed sports-gambling operators to U.S. commercial sports leagues. These payments, which have sometimes been described as “integrity fees,” are explained by state legislators as arising from the purported use of commercial sports leagues’ intellectual property rights in state-sponsored sports gambling. Nevertheless, the claim that state-sponsored sports gambling would infringe upon commercial sports leagues’ intellectual property rights is, in earnest, dubious.
This article explains that state-sponsored sports gambling is unlikely to infringe upon the intellectual property rights of U.S. commercial sports leagues, and thus there is no bona fide reason for state legislatures to mandate the payment of “integrity fees” from state-licensed sports-gambling operators to the U.S. commercial sports leagues. Part I of this article explores how federal intellectual property laws (patent, copyright and trademark) apply, if at all, in the context of state-sponsored sports gambling. Part II then looks at how two additional state intellectual property laws (the “right of publicity” and the “hot news” doctrine) would apply, if at all, in this same context.
Keywords: sports law, gambling law, gaming law, sports, gambling, gaming, intellectual property, sports gambling, integrity fee, sports business, trademark, copyright, patent, right of publicity, hot news, player statistics, sports statistics
JEL Classification: K1, K10, Z2, Z20, Z21, Z28, L5, K2, K20, K3, K30, L39, H2
Suggested Citation: Suggested Citation