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:  

Marc Edelman

City University of New York - Baruch College, Zicklin School of Business; Fordham University School of Law

Date Written: June 27, 2018

Abstract

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.
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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

Edelman, Marc, Lack of Integrity? Rebutting the Myth that U.S. Commercial Sports Leagues Have an Intellectual Property Right to Sports Gambling Proceeds (June 27, 2018). 115 NYU Journal of Law & Business ___ (2018). Available at SSRN: https://ssrn.com/abstract=

Marc Edelman (Contact Author)

City University of New York - Baruch College, Zicklin School of Business ( email )

One Bernard Baruch Way
Box B9-220
New York, NY 10010
United States

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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