Wake Forest Law Review
26Sep

Navigating the NIL Playbook: The Current State of NIL Laws for North Carolina High School Athletes and Potential Changes Downfield

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By Mary Grace Hutzler

In recent years, Name, Image and Likeness (NIL) regulations have been a source of dramatic change in the landscape of high school athletics.[1] These regulations, which are a much-needed change from the burdensome rules of the past, enable student-athletes to profit from their personal brands.[2] The NIL debate erupted when collegiate players were finally given the chance to earn money through endorsements, sponsorships, and other opportunities.[3] However, the position for high school athletes, particularly in North Carolina, is still difficult.[4] A recent lawsuit filed in Wake County has brought this intricacy to light,[5] and we could soon see significant changes to the NIL rights of public high school athletes across the state.

Current NIL Laws in North Carolina

Following the Supreme Court’s landmark decision in NCAA v. Alston[6], the National Collegiate Athletic Association (NCAA) implemented an interim policy that lifted the previous restrictions on student-athletes receiving endorsement benefits.[7] While collegiate athletes in North Carolina now have greater autonomy in controlling and profiting from their personal brand, the situation remains more restrictive for high school athletes. In 2023, the North Carolina High School Athletic Association (NCHSAA), which governs public high school athletics, passed a policy that allows student-athletes at public North Carolina high schools to profit from NIL deals.[8] This effort was quickly met with push-back from the State as the legislature passed an amendment stripping the NCHSAA of their power to regulate NIL activities.[9] This act transferred the authority to regulate these activities to the North Carolina State Board of Education.[10] On July 1, 2024, the State Board enacted a controversial policy banning student-athletes at public schools from entering into most NIL agreements.[11]

Much of the concern over NIL benefits lies in the risk of creating an uneven playing field for high school athletes by favoring those at larger schools in more affluent areas.[12] However, in their attempts to prevent this disparity, the State Board’s ban has created an even larger one.[13] Athletic programs at private schools in North Carolina are governed by their own athletic association which implemented a policy earlier this year allowing their students to participate in NIL agreements.[14] This makes North Carolina the only state in which private school student-athletes are afforded the privilege to profit off their name, image and likeness while public school student athletes are prohibited from doing the same.[15] Additionally, there has been a recent influx of legislation passed in other states allowing NIL deals for high school athletes, and  38 states now permit this practice.[16] The State Board’s ban has thus inadvertently created an incentive for high-performing student-athletes to transfer to private schools, move to different states, or graduate early in order to benefit from lucrative NIL deals.[17] Student-athletes who are  not afforded the luxury of making these changes remain at a disadvantage as they lose out on the ability to monetize their personal brand.[18] This disparity has fueled the ongoing debate about fairness and equity in high school athletics.[19]

The Rolanda Brandon v. North Carolina State Board of Education Lawsuit

The mother of five-star high school quarterback Faizon Brandon recently filed a lawsuit against the State Board of Education to challenge their ban on NIL deals for public high school athletes.[20] In the complaint filed in Wake County, Rolanda Brandon argues that these regulations unfairly restrict the rights of high school athletes to benefit from their own names, images, and likenesses¾rights that are guaranteed to other individuals, including collegiate athletes, under state and federal law.[21] Brandon’s case points to the current inequality between public and private school athletes as well as the ban’s inconsistency with the legislation of most states as a glaring illustration of the unjust divide that results from restrictive NIL regulations.[22]

While the complaint touches on commonly cited constitutional issues surrounding NIL regulations, namely the restriction on one’s right to publicity and right to contract, the cause of action is rooted in a different legal argument.[23] Brandon contends that the State Board did not possess the legal authority to enact an outright ban on NIL activities.[24] The argument ultimately comes down to the interpretation of the language used in Senate Bill 452 which directed the State Board to adopt rules governing “student amateur status requirements, including rules related to the use of a student’s name, image and likeness.”[25] Brandon argues that the legislature’s choice to include the word “use” indicates that it did not anticipate that the State Board would ban all use of student-athletes’ NIL, only that they would regulate it’s use.[26]

The success of Brandon’s argument is uncertain as it must overcome the generous discretion courts typically grant to government agencies.[27] The NIL market for high school athletes is largely uncharted territory in North Carolina, which generates a level of concern that the court may find justifies the temporary ban.[28]

The Future of NIL Laws in North Carolina

Regardless of the legal outcome of Brandon’s lawsuit, it seems increasingly likely that North Carolina NIL laws will be changing in the near future. Shortly after the lawsuit was filed, the State Board heard a proposal involving changes to the current rule that would allow public high school athletes to benefit from NIL deals, effectively reversing the current ban.[29] In a major step towards change, the Board advanced the proposed rule to a public comment period and a vote has been scheduled for January of next year.[30]

The current system is under significant pressure as student-athletes are grappling with the decision to leave the public school system to reap the financial benefits of NIL elsewhere.[31] A change in the law that would bring North Carolina in line with the overwhelming majority of states would thus benefit both student-athletes and public schools. As North Carolina navigates the complexities of NIL regulations and grapples with the implications of recent legal challenges, it stands to redefine the landscape of high school athletics in the state, ensuring that all athletes have equal access to the opportunities that come with their name, image, and likeness.

[1] Adam Epstein et al., An Evolving Landscape: Name, Image, and Likeness Rights in High School Athletics, 77 Vand. L. Rev. 845, 889 (2024).

[2] Id. at 849.

[3] Id. at 855.

[4] Id. at 861.

[5] Complaint, Brandon ex rel. F.B. v. N.C. State Bd. of Educ., No. 24CV026975-910 (N.C. Super. Ct. Aug. 23, 2024).

[6] NCAA v. Alston, 141 S. Ct. 2141 (2021) (holding that the NCAA’s restrictions on education-related benefits were in violation of antitrust laws).

[7] Epstein, supra note 1, at 855.

[8] Juli Kidd, NCHSSA Board of Directors Concludes Spring 2023 Meeting, North Carolina High School Athletic Association (May 3, 2023), https://www.nchsaa.org/nchsaa-board-directors-concludes-spring-2023-meeting/.

[9] Angela Doughty, Whistle Blown: Time Out on North Carolina Student Athlete NIL Deals, JD Supra (July 13, 2023), https://www.jdsupra.com/legalnews/whistle-blown-time-out-on-north-1117565/; see also 2023 Bill Text NC S.B. 636 (establishing oversight of high school interscholastic athletic activities).

[10] S.636, 2023 Gen. Assemb., Reg. Sess. (N.C. 2023).

[11] Shaquira Speaks, No More NIL for NC Public High School Athletes Under State Board Decision, Queen City News (June 14, 2024, 10:31 PM), https://www.qcnews.com/news/u-s/north-carolina/no-more-nil-for-nc-public-high-school-athletes-under-state-board-decision/.

[12] Brayden Stamps & Gretchen Stenger, Proposed Rules Would Allow NIL for Public High School Athletes in North Carolina, Fox8 WGHP (Sept. 5, 2024, 11:55 AM), https://myfox8.com/sports/triad-high-school/proposed-rules-would-allow-nil-for-public-high-school-athletes-in-north-carolina/.

[13] See Grace Raynor, How a 5-star QB Could Change North Carolina’s NIL Laws: What I’m Hearing in CFB Recruiting, The Athletic (Sept. 18, 2024), https://www.nytimes.com/athletic/5773853/2024/09/18/north-carolina-nil-recruiting-faizon-brandon/?searchResultPosition=8.

[14] NC Private School Leaders Approve Policy Allowing Athletes to Profit Off NIL, WBTV (Feb. 2, 2024, 2:58 PM), https://www.wbtv.com/2024/02/02/nc-private-school-leaders-approve-policy-allowing-athletes-profit-off-nil/.

[15] Braly Keller, High School NIL: State-by-State Regulations for Name, Image and Likeness Rights, Opendorse (Sept. 16, 2024), https://biz.opendorse.com/blog/nil-high-school/.

[16] Id.

[17] Francesca Casalino, Call to the Bullpen: Saving High School Student Athlete Name, Image, and Likeness Rights, 29 Jeffrey S. Moorad Sports L.J. 263, 283 (2022).

[18] Id.

[19] See Raynor, supra note 13.

[20] Id.

[21] Complaint, supra note 5, at 7.

[22] Id. at 18.

[23] Id. at 7, 10.

[24] Id. at 5.

[25] S.452, 2023 Gen. Assemb., Reg. Sess. (N.C. 2023)

[26] Complaint, supra note 5, at 1.

[27] Michael McCann, North Carolina Mom’s NIL Suit Tied to ‘Use’ of Law’s Language, Sportico (Aug. 27, 2024, 11:41 AM), https://www.sportico.com/law/analysis/2024/faizon-brandon-university-of-tennessee-recruit-north-carolina-nil-ban-lawsuit-1234794842/.

[28] Id.

[29] Eli Henderson, North Carolina Advances NIL Rule for Public School Athletes, Sports Illustrated (Sept. 7, 2024), https://www.si.com/fannation/name-image-likeness/nil-news/north-carolina-advances-nil-rule-for-public-school-athletes.

[30] Id.

[31] Raynor, supra note 13.

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11Sep

Fumbling in Court: Exploring the Florida State-ACC Lawsuit

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Jay Ramesh

Background

On Saturday, August 31, fans across North Carolina rejoiced as the University of North Carolina (UNC) took down the University of Minnesota in the inaugural week of college football. The Tar Heel faithfully looks to this season with optimism as the gates to the Atlantic Coast Conference (ACC) championship have been thrown wide open following slow starts from Clemson and Florida State (FSU).

Since 2010, only one season has featured an ACC champion not named Clemson or FSU.[1] But times are changing. Texas and Oklahoma shocked the college football world when they announced that they were leaving their conference, the Big 12, to join the Southeastern Conference (SEC): one of the most prestigious conferences in college football.[2] Seeking money, television deals,[3] and a better shot at making the college football playoffs, Clemson and FSU also announced their intentions to leave the ACC.[4]

However, unlike Texas and Oklahoma, Clemson and FSU’s paths to leaving the conference have been paved with headaches, legal battles, and massive exit fees. To disincentivize its members from leaving, the ACC’s contracts include exit fees and forfeitures of media rights: revenues from television deals that the conference distributes to its members.[5] For FSU in particular, its attempt to leave the ACC (FLexit) would include forfeiture of $429 million in media rights, the ACC withholding of $13 million in broadcast fee reimbursement, and a $130 million exit fee; combined, the fees and lost opportunity costs totals a mind-boggling $572 million.[6] The ACC filed complaints against FSU in Mecklenburg County, North Carolina, to preempt FSU suing the ACC, and FSU sought to invalidate the exit fees as unconscionable.[7]

Are FSU’s Exit Fees Unconscionable?

Although there are few instances of Division I conference realignment in the 21st century, there have been similar legal battles in the Division II world. In Mountain East Conference v. Franklin University, the Mountain East Conference (MEC) sued Franklin University (Franklin), the successor to Franklin-Urbana University (Urbana): a school that played in Division II of the National Collegiate Athletic Association (NCAA).[8] Urbana shut down in 2020 and unilaterally withdrew from MEC.[9] The MEC subsequently demanded that Franklin pay Urbana’s $150,000 exit fee, which Franklin refused.

The court found that the exit fee, amounting to six years of Urbana’s conference dues ($25,000 annually), was a “reasonable approximation of loss to MEC”.[10] In its analysis of “reasonableness,” the Court considered that the MEC’s profit margin was narrow (about $60,000-$70,000 annually).[11] It also weighed intangible and incalculable damages, such as “injury to [the MEC’s] reputation.”[12] Crucially, the court also found that the exit fee was a liquidated damages provision,[13] not a penalty, which would be unenforceable.[14]

If college conference exit fees are shown to be liquidated damage provisions and not penalties, then their reasonableness, and thus enforceability, will likely turn on the amount and specific structure of the exit fee.[15] Because it is difficult to approximate loss, the Franklin court compared the exit fee to Urbana’s annual conference dues and the MEC’s profit margin, finding that the fee was about twice the conference’s profit margin.[16] According to its constitution, the ACC’s exit fee for all schools is structured to equal three times its operating budget,[17] which comes out to roughly $130 million.[18]

In assessing the reasonability of this fee, the court will likely compare the ACC to the Big 10 and the Big 12. The Big 12’s constitution includes an exit fee equivalent to two years of gross revenue the Big 12 would have distributed to the departing school, including revenues from media rights.[19] The Big 10 does not have an exit fee,[20] and the SEC recently added a $30 million to $45 million exit fee to its constitution.[21] Even after adding the Big 12’s media rights forfeiture, these exit fees fall far short of FLexit’s massive $572 million cost.

In Vanderbilt University v. DiNardo, the 6th Circuit considered the question of how much money Vanderbilt University (Vanderbilt) owed former football coach Gerry DiNardo (DiNardo) after he breached his contract with the university by resigning and becoming the head football coach for Louisiana State University.[22] The Court held that DiNardo was required to pay Vanderbilt “. . . as liquidated damages, an amount equal to his Base Salary . . . remaining on the [original] Contract.”[23]  Adam Kahn summarized the Court’s holdings:

“  First, because college sports contracts are “unique and specialized,” the damages from a breach are not easily ascertained. Second, and relatedly, damages in college sports contracts are broadly defined and can include abstract categories like loss of stability. Third, the “salary remaining under a contract” approach is a “reasonable” LDC valuation method as long as there is difficulty ascertaining the actual damages.”[24]

The court in FSU’s case may turn to sports contract cases such as DiNardo in determining if the ACC’s exit fee is reasonable. FSU is a major brand in college football, and its departure could severely hurt the ACC’s prestige. This rings especially true considering that a motivating factor for FSU’s departure was the school being left out of the 2023 CFB playoffs despite going undefeated—many believed that their strength of schedule, mainly consisting of other ACC opponents, was not as difficult as other schools such as Alabama and Ohio State.[25] The court could find that the “reputation damage” to the ACC accompanying FSU’s departure is difficult to ascertain, strengthening the legitimacy of the exit fee.

Television agreements are a significant source of funding for NCAA athletics programs. To secure long-term television agreements, the ACC entered into a long-term “Grant of Rights” deal with ESPN.[26] The Grant of Rights agreement mandates that the ACC’s members hand over the right to produce and distribute football games to the ACC for the entire term of the agreement, even if the members leave the conference during the term.[27]

The Grant of Rights acts as a stabilizing force, ensuring that the ACC and its members have access to a steady stream of revenue from its television deals, and it also disincentivizes members from leaving the conference due to forfeiting their media rights. The ACC’s Grant of Rights runs through 2036, so if FSU leaves the conference and the Court finds the ACC’s provisions to be enforceable, the school will forfeit all the revenue from its media rights, amounting to $429 over the next thirteen years.

Applying the reasoning of DiNardo to FLexit, the ACC could make the argument that the Grant of Rights functions like DiNardo’s liquidated damages. In the same way that DiNardo was required to pay Vanderbilt an amount equal to his remaining Base Salary under the contract, the ACC could argue that its Grant of Rights payouts are like a salary, thus requiring FSU to forfeit the remaining media revenue it was entitled to under the contract. The court may find that this exit fee structure is reasonable in principle, but unconscionable compared to other conferences’ exit costs.

What Will the Outcome Mean for the ACC Going Forward?

The ACC hosts four North Carolina schools, all of which could be significantly financially impacted if FSU and Clemson successfully leave the ACC. If FSU fails to convince the court that its exit fees are unconscionable, its forfeited revenue may be distributed among the remaining ACC schools, giving a significant financial boost to ACC athletics departments in North Carolina. If FSU succeeds and nullifies the exit fees, its departure could significantly damage the ACC’s prestige and encourage other schools like N.C. State and Miami to flee the conference. Simply put, a ruling in favor of FSU and Clemson could lead to the ACC suffering the same fate as the Pac-12.[28]

Broadcasting companies like Fox and ESPN want to sign media rights deals with programs that have large fanbases, a prestigious history, and can bring in lots of viewers. As such, large money-making conferences like the SEC and the Big 10 are incentivized only to admit prestigious, well-performing schools into their conferences. A collapse of the ACC will likely lead to the stratification of college football into “premier” conferences filled with the best programs and lower-tier conferences with all other schools. The ACC provides financial incentives for schools to make the CFB playoffs to avoid stratification.[29] If powerhouse programs join weaker conferences, they are likelier to go undefeated and have a shot at the CFB playoffs. To avoid a 2023 FSU situation, “weaker” conferences could schedule more non-conference games to allow their teams to play strong, competitive programs, and increase their playoff resumes.

As the legal battle between FSU and Clemson continues, the future of the ACC hangs in the balance. In determining whether the provisions are unconscionable, the court will need to weigh the disparity between the ACC and other conferences’ exit fees along with the fact that the lawyers and parties that signed these contracts were highly sophisticated, were aware of the fees, and even praised them in the past.[30] All eyes in North Carolina are on the courts as FSU and Clemson play their dangerous gambit.

[1] Atlantic Coast Conference Index, Sports Reference (Sep. 8, 2024, 7:40 AM), https://www.sports-reference.com/cfb/conferences/acc/.

[2] Heather Dinich & Mark Schlabach, Texas Longhorns, Oklahoma Sooners Unanimously Accept Invitation to SEC, ESPN (Jul. 30, 2021, 11:08 AM), https://www.espn.com/college-football/story/_/id/31920686/texas-longhorns-oklahoma-sooners-unanimously-accept-invitation-sec.

[3] The Big 10, another college conference, recently signed a $7 billion media rights agreement that would distribute far more money to its member schools than the ACC. Adam Rittenberg, Big Ten Completes 7-Year, $7 Billion Media Rights Agreement with Fox, CBS, NBC, ESPN (Aug. 18, 2022, 09:30 AM), https://www.espn.com/college-football/story/_/id/34417911/big-ten-completes-7-year-7-billion-media-rights-agreement-fox-cbs-nbc.

[4] Mark Giannotto, FSU vs. ACC Lawsuit Explained: What it Means for College Football, Conference Realignment, USA Today (Aug. 31, 2024, 6:00 PM), https://www.usatoday.com/story/sports/college/2024/08/31/fsu-acc-lawsuit-conference-realignment-2024-college-football-season-florida-state/74909159007/.

[5] Atlantic Coast Conference, ACC Manual § 1.4.5 (2020-2021 ed. 2020).

[6] William Huff, FSU Sues ACC, First Steps in Leaving Conference, Thomasville Times-Enterprise (Sep. 8, 2024), https://www.timesenterprise.com/sports/fsu-sues-acc-first-steps-in-leaving-.conference/article_a5ee0b92-a4e8-11ee-b1e3-dbf5e0a43b2d.html#:~:text=According%20to%20a%20breakdown%20of,three%20times%20their%20operating%20budget.

[7]See Atlantic Coast Conference v. Board of Trustees of Fla. State University, 2024 WL 1462914 at *3 (N.C.Super., 2024), Reply Supp. Def.’s Mot. Dismiss 9 (citing lack of consideration or lack of authority to enter into contract as examples).

[8] Mountain East Conference v. Franklin University, 2023 WL 2415277, at *3 (N.D.W.Va. Mar. 8, 2023)

[9] Id. at *2.

[10] Id. at *9.

[11] Id.

[12] Id. at *9.

[13] Id. at *9.

[14] Id. at *8 (citing Huntington Eye Assocs., Inc. v. LoCasio, 533 S.E.2d 773, 782 (W. Va. 2001)).

[15] Adam Kahn, Breaking Up is Hard to Do: Examining Whether College Conference Exit Fees are an Enforceable Form of Liquidated Damages Clause, 22 Sports Law. J. 115, 124 (2015).

[16] Franklin, 2023 WL 2415277 at *9.

[17] Atlantic Coast Conference, ACC Manual § 1.4.5 (2020-2021 ed. 2020).

[18] Andrea Adelson, Florida State to Sue ACC Over Grant of Rights, Withdrawal Fee, ABC News (Dec. 22, 2023, 11:09 AM), https://abcnews.go.com/Sports/florida-state-sue-acc-grant-rights-withdrawal-fee/story?id=105872897.

[19] Big Twelve Conference, 2021-2022 Conference Handbook § 3.1 (2021-2022 ed. 2021).

[20] Ben Portnoy, Clemson Suing ACC Over Exit Fees, Media Rights, Sports Business Journal (Mar. 19, 2024), https://www.sportsbusinessjournal.com/Articles/2024/03/19/clemson-acc-lawsuit#:~:text=The%20Big%20Ten%2C%20for%20example,45M%20depending%20on%20if%2Fwhen

[21] Southeastern Conference, Constitution and Bylaws § 3.2 (2020-2021 ed. 2020).

[22] 174 F.3d 751, 753 (6th Cir., 1999).

[23] Id. at 754. DiNardo signed an addendum extending his contract with Vanderbilt, but the court held that the addendum was unenforceable as a matter of law and thus the liquidated damages provision only applied to DiNardo’s original contract. Id. at 760.

[24] Kahn, supra note 14, at 122-123.

[25] William Huff, FSU Sues ACC, First Steps in Leaving Conference, THOMASVILLE TIMES-ENTERPRISE (Sep. 8, 2024), https://www.timesenterprise.com/sports/fsu-sues-acc-first-steps-in-leaving-.conference/article_a5ee0b92-a4e8-11ee-b1e3-dbf5e0a43b2d.html#:~:text=According%20to%20a%20breakdown%20of,three%20times%20their%20operating%20budget.

[26] Ashwini Jayaratnam, Florida State’s Way Out of ACC? Exit Penalties Could Be Ruled Unenforceable, JDSUPRA (Dec. 29, 2023), https://www.jdsupra.com/legalnews/florida-state-s-way-out-of-acc-exit-9854036/#_ednref3.

[27] Id.

[28] Ten schools left the Pac-12 at the conclusion of the 2023-2024 season, leaving only two remaining. The departing schools avoided forfeited media rights because their Grant of Rights contracts expired that season. Brad Adgate, With No New TV Deal Expected; Five More Schools Have Left the Pac-12, Forbes (Aug. 8, 2023, 11:23 AM), https://www.forbes.com/sites/bradadgate/2023/08/08/with-no-new-tv-deal-expected-five-more-schools-have-left-the-pac-12/. However, the departing schools settled with the Pac-12 to avoid future litigation. Associated Press, Washington State, Oregon State Settle with Schools Exiting Pac-12, ESPN (Mar. 25, 2024, 04:49 PM), https://www.espn.com/college-sports/story/_/id/39808513/washington-state-oregon-state-settle-schools-exiting-pac-12.

[29] Associated Press, ACC Schools Have a New Path to More Revenue: Just Win… in the Post-Season, Spectrum News 1 (Sep. 05, 2024, 7:15 AM), https://spectrumlocalnews.com/nc/charlotte/news/2024/09/05/acc-schools-have-a-new-path-to-more-revenue–just-win—-in-the-postseason#:~:text=The%20ACC’s%20model%20centers%20around,a%20total%20of%20%2420%20million.

[30] Several years ago, FSU trustee Mark Hillis commented on the exit fees, “I was in concert with President Barron that this was the best thing that could happen. It ensures that we don’t lose any members. Nobody can afford to leave now.” Karen Weaver, Florida State Once Again is Facing an Important Question. Should it Stay in the ACC?, Forbes (Mar. 1, 2023, 09:25 AM), https://www.forbes.com/sites/karenweaver/2023/02/28/florida-state-once-again-is-facing-an-important-question-should-it-stay-in-the-acc/.

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2Mar

EA Sports: It’s in the Licensing

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By: Natalie Galdos

College football is coming back to EA Sports.[1]  Daryl Holt, EA Sports vice president and general manager, announced Feb. 2, 2021 that EA Sports will revive its college football video game series.[2]  While Holt declined to share any timeline for the arrival of the next installment of the college football series, fans are looking forward to the game’s release, which previously sold millions of copies worldwide.[3]  The new game, EA Sports College Football, will be the beloved franchise’s first college football title since EA discontinued the NCAA Football franchise in 2013.[4]  EA Sports previously cited an ongoing class-action legal dispute with ex-athletes over using their likeness without compensation as the reason for the cancellation after a class action lawsuit,[5] O’Bannon v. NCAA.[6]

Ed O’Bannon, a former All-American basketball player, was depicted in an EA Sports college basketball video game.[7]  Because the NCAA has long held that college athletes are by definition “amateurs” and cannot profit in any way from their status as student-athletes, O’Bannon never consented to the use of his likeness in the video game, and he was not compensated for it.[8]  Thus, in 2009, O’Bannon sued the NCAA and the Collegiate Licensing Company, the entity which licenses the trademarks of the NCAA and a number of its member schools for commercial use, in federal court.[9]  EA Sports and the Collegiate Licensing Company settled in 2014 for $40 million.[10]  Without active licensing agreements, EA Sports had to stop all distribution of its college sports video games.[11]  This time, however, EA Sports stated the new game would not include names, images, or likeness (“NIL”) of any student-athletes.[12]  By using generic players, EA Sports hopes to sidestep the hot-button issue of NIL rights and compensation.[13]  However, with a new Supreme Court case on the horizon, EA Sports’ plans could all change.

On March 31, 2021, the Supreme Court will hear arguments for Alston v. NCAA[14] which is an NCAA case on student-athlete compensation.[15]  Former and current college athletes argue the NCAA’s rules restricting on education-related benefits, violated antitrust law under the Sherman Act.[16]  In Alston, the district court found for the athletes, holding that the NCAA must allow for certain types of academic benefits, such as “computers, science equipment, musical instruments and other tangible items not included in the cost of attendance calculation but nonetheless related to the pursuit of academic studies.”[17]  The U.S. Court of Appeals for the Ninth Circuit affirmed, recognizing the NCAA’s interest in “preserving amateurism,” but concluding that the NCAA’s practices violated antitrust law.[18]  Further while the Alston litigation has been ongoing, six states have passed legislation addressing an athlete’s ability to receive compensation for use of their NIL, and more than two dozen other states are considering similar bills.[19]

If the Supreme Court decides that the NCAA’s amateurism rules violate federal antitrust law, this could allow for student-athletes to be compensated by anyone for their NIL.  Further, if this decision is upheld, EA Sports’ plan not to use the NIL of existing college players may all change.

Since EA Sports is willing to pay athletes from years ago for use of their NILs, Alston may immediately open the door for current athletes to profit directly from video games.[20]  From EA Sports’ perspective, it would be beneficial to integrate real college players in its games.  For example, NCAA Football 13 and 14 featured Robert Griffin III and Denard Robinson, respectively.[21]  Both players were already in the NFL when their respective video games were released.[22]  Thus, EA Sports was willing to put them on the cover of their video game because their time at Baylor and Michigan was “still fresh enough in the collective memory[.]”[23]  The connection to real players can allow EA College Sports to go back to its dominance in the college football gaming world.

Overall, the best decision for the Supreme Court may be to reaffirm the Ninth Circuit as a win for college athletes and EA Sports.  The Supreme Court could rule that student-athletes may never be paid a salary for playing, but could receive the compensation they deserve through signing autographs, marketing deals and other forms of pay for being a brand.[24]  In this model, the NCAA can still benefit because this structure can still follow the NCAA’s amateurism requirement of no “pay for play.”  Here, nobody would pay the athlete to play; EA Sports or any other video game is simply paying for their brand and likeness.  Therefore, affirming the Ninth Circuit would provide the most benefit to the student-athletes and the gaming community as a whole so that companies like EA Sports can bring back the video games as we know and love them.

[1] Michael Rothstein, EA Sports to do College Football Video Game, ESPN (Feb. 2, 2021), https://www.espn.com/college-football/story/_/id/30821045/school-plan-ea-sports-do-college-football.

[2] Id.

[3] Id.

[4] Zoe C. Jones, EA Sports Revives its College Football Video Game—But it Won’t Include Real Student-Athletes, CBS News (Feb. 2, 2021, 4:48 PM), https://www.cbsnews.com/news/ea-sports-college-football-game-its-happening/.

[5] Tony Manfred, EA Sports Cancels its College Football Video Game Amid a Wave of Lawsuits, Bus. Insider (Sept. 26, 2013, 4:34 PM),  https://www.businessinsider.com/ea-sports-cancels-ncaa-football-videogame-2013-9.

[6] 802 F.3d 1049 (9th Cir. 2015).

[7] Id. at 1055.

[8] Id. at 1054–55; see also Kat Bailey, How EA Is Bringing Back College Football and Sidestepping the NCAA’s Biggest Problems, Vice (Feb. 5, 2021, 10:49 AM), https://www.vice.com/en/article/epd85k/ea-ncaa-college-football-despite-obannon-lawsuit.

[9] O’Bannon, 802 F.3d at 1055.

[10] Mike Hume & Rick Maese, EA Sports Revives College Football Franchise as Courts Mull NCAA’s Stance on Amateurism, Wash. Post (Feb. 2, 2021, 12:00PM), https://www.washingtonpost.com/video-games/2021/02/02/ea-sports-college-football/.

[11] Id.

[12] Jones, supra note 4.

[13] Hume & Maese, supra note 10.

[14] Petition for Writ of Certiorari, NCAA v. Alston, 208 L.Ed.2d 504 (U.S. 2020) (No. 20-512), 2020 WL 7366281.

[15] NCAA Case on Athlete Compensation Set For Supreme Court on March 31, Atlantic (Feb. 1, 2021, 12:01 PM), https://theathletic.com/news/ncaa-athlete-compensation-supreme-court/9Zgc5xkjnWHx.

[16] Melissa Quinn, Supreme Court Takes up NCAA Antitrust Dispute Over Compensation for College Athletes, CBS News (Dec. 16, 2020, 11:09 AM),  https://www.cbsnews.com/news/supreme-court-ncaa-case-athlete-compensation/.

[17] In re NCAA Ath. Grant-In-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1088 (N.D. Cal. 2019).

[18] Alston v. NCAA, 958 F.3d 1239, 1243 (9th Cir. 2020); Quinn, supra note 16.

[19] Hume & Maese, supra note 10.

[20] Bailey, supra note 8.

[21] Id.

[22] Id.

[23] Id.

[24] Hayes Rule, A Breakdown of Alston v. NCAA, Medium (May 4, 2019), https://medium.com/the-bearfaced-truth/a-breakdown-of-alston-v-ncaa-what-is-the-future-of-paying-college-athletes-3483569905b4

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20Oct

Chasing Equality: Is Caster Semenya’s Battle Against the IAAF Really Over?

Categories: Current Issues Blog
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Caster Semenya celebrates her silver medal at the London 2012 Olympic games. Original photo by Jon Connell, via flickr.

By Kelsey E. Rector

South African runner Caster Semenya is a two-time Olympic gold medalist and has dominated track events like the 800 meter and other mid-distance races over the last decade.[1] All her life, Semenya has been questioned about her sex, especially with respect to competing as an elite female track athlete.[2] Her performance came under fire because Semenya, who was raised as a woman, presents as a woman, and identifies as a woman, has differences in sex development (“DSD”) which cause her body to naturally produce more testosterone than the average female.[3] DSD has many potential causes,[4] but in the most general terms, means that a person has an “atypical development of their chromosomal, gonadal, and/or anatomic sex.”[5]

In competitive sports which rely on gender binaries to group athletes for fair competition, one of the major issues has been to determine how to handle challenges that DSD women are not “female” for the sake of competition.[6] As a result, the recent solution by World Athletics (formerly the International Association of Athletics Federations, or “IAAF”) has been to adopt new rules to protect fair competition which would require DSD women, who are considered “relevant athletes,” to regulate their elevated testosterone levels or bar them from competing in certain women’s track events.[7]

Last month, Semenya lost her appeal challenging the World Athletics regulation which prohibits certain athletes with elevated testosterone levels from competing as females in specified track events.[8]

The regulations set forth by World Athletics state that “relevant athletes,” like Semenya, are barred from competing in restricted events, such as the women’s 800 meter, unless they reduce their blood testosterone to a level of less than five nmol/L for at least six months and sustain it thereafter to maintain eligibility.[9] Similar regulations were proposed by the IAAF in 2014, but when challenged the IAAF failed to produce enough scientific evidence to justify the necessity of the regulation.[10] Despite conflicting studies regarding whether increased testosterone even provides a significant competitive advantage for DSD athletes, the IAAF proposed the current regulations and claimed that they were essential to preserving fair competition for women.[11]

Semenya filed a claim against IAAF in the Court of Arbitration for Sports (“CAS”), claiming that the DSD regulations were “unfairly discriminatory, arbitrary and disproportionate and therefore violate the IAAF Constitution . . . .”[12]

There are several issues with regulations such as these. First, the regulation explicitly targets those individuals who do not fit within a convenient, traditionally defined, binary division of sex. The regulation applies to DSD individuals, but not non-DSD women who may also naturally produce testosterone at high levels.[13] Second, the regulation only applies to certain track events and not to other sports or events.[14] It is interesting to note that the events in the restricted category are restricted to those events in which identified DSD athletes compete in the most significant numbers, but not to those where the performance gap between DSD women and non-DSD women was the widest.[15] Third, and perhaps most troubling, the regulation requires artificial lowering of natural testosterone levels—which can have side effects—in order for an athlete to compete as a woman.[16] We do not ask Michael Phelps to shorten his ridiculously long arms for fair competition, nor do we question Usain Bolt’s long legs in men’s racing—so is it even appropriate to regulate naturally produced hormones which may only give athletes a slight advantage?[17]

Following arbitration, CAS found that the DSD regulations were discriminatory, but upheld them because the regulations were “a necessary, reasonable and proportionate means of achieving the aim of what is described as the integrity of female athletics and upholding of the ‘protected class’ of female athletes in certain events.”[18] The court noted several concerns with the regulations, such the potential for compromising athletes’ confidentiality, the ability of the IAAF to practically apply the regulations, risks to athletes’ health from hormonal treatment, and the inclusion of certain events (the 1,500 meter and 1 mile) as restricted events.[19] The court implied that it was not its place to determine whether a different regulation could be implemented that was more fair and less discriminatory.[20] Instead the court stated that its role was limited to evaluating the regulation as presented in order to determine if it was necessary, reasonable, and proportionate.[21]

Following the CAS decision, the World Medical Association (“WMA”) released a statement encouraging doctors not to take part in implementing the regulations.[22] Specifically, the WMA president stated, “We have strong reservations about the ethical validity of these regulations. They are based on weak evidence from a single study, which is currently being widely debated by the scientific community.”[23] Nevertheless, the regulation was upheld on appeal by the Swiss Federal Supreme Court.[24]

The Swiss Court stated that it could only evaluate “whether the CAS decision violates fundamental and widely recognized principles of public order.”[25] The court determined that fairness in sport was a legitimate concern and that DSD athletes were not being forced to undergo examinations or treatment.[26] While technically the court is correct that athletes aren’t being forced into evaluation or treatment, if an athlete withholds her consent, she will be barred from competing.[27] That doesn’t exactly seem like a fair choice.[28]

So what comes next? First, given the concerns expressed in the CAS opinion, there may be challenges to the application of the DSD regulation once it starts to be enforced.[29] For example, an athlete who agrees to adjust her testosterone levels through hormone treatment may not be able to consistently keep them at the required level throughout her eligibility period.[30] If World Athletics chooses to enforce the policy anyway, that athlete would have a strong argument that she attempted to follow the regulation and that it would be unfair to bar her from competition for fluctuating testosterone levels.[31] In the meantime, Semenya will likely take her case to the European Court of Human Rights to determine “whether demanding women with intersex variations to change their natural bodies as eligibility condition for a certain sport events conforms to the European Convention on Human Rights.”[32]

[1] Athlete Profile: Caster Semenya, World Athletics, https://worldathletics.org/athletes/south-africa/caster-semenya-14330057 (last visited Oct. 20, 2020) (showing races won, current season times, world ranking, and other statistics).

[2] Robyn Dixon, Gender Issue Has Always Chased Her, L.A. Times (Aug. 21, 2009), https://www.latimes.com/archives/la-xpm-2009-aug-21-fg-south-africa-runner21-story.html. See also Erin Buzuvis, Caster Semenya and the Myth of a Level Playing Field, 6 Modern Am. 36 (2010) (discussing how Semenya’s voice, musculature, and speed provoked questions about her gender after she won the 800m at the World Championships in 2009).

[3] See Sofia Christensen, Semenya Lawyer Prepares Testosterone Rule Challenge in European Court, Yahoo News (October 1, 2020), https://sports.yahoo.com/semenya-lawyer-prepares-testosterone-rule-142841526.html.

[4] DSD is a term encompassing a variety of conditions including but not limited to: 46 XX congenital adrenal hyperplasia, 5-alpha reductase deficiency, Klinefelter syndrome (47 XXY), Swyer syndrome (46 XY gonadal dysgenesis), and Androgen insensitivity syndrome. Kyla Boyse, Disorders of Sex Development (DSD) Resources, Mich. Med. (updated Nov. 2012),  https://www.med.umich.edu/yourchild/topics/dsd.htm.

[5] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 110–11 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[6] See generally Maayan Sudai, The Testosterone Rule—Constructing Fairness in Professional Sport, 4 J. L. & Biosciences 181, 182 (2017) (stating that the issue of sex classification has plagued professional sport authorities since at least 1968).

[7] See World Athletics, Eligibility Regulations for the Female Classification, 2 (effective Nov. 2019) https://www.worldathletics.org/download/download?filename=656101dc-7716-488a-ab96-59d37941e9ac.pdf&urlslug=C3.6%20-%20Eligibility%20Regulations%20for%20the%20Female%20Classification; Testosterone Rules for Female Athletes ‘Unscientific’, BBC (Mar. 21, 2019), https://www.bbc.com/news/health-47640359.

[8] George Ramsay & Jill Martin, Caster Semenya Loses Appeal in Swiss Court over Restriction of Testosterone Levels, CNN (Sept. 9, 2020), https://www.cnn.com/2020/09/09/sport/caster-semenya-ruling-athletics-spt-intl/index.html; Lena Holzer, The Decision of the Swiss Federal Supreme Court in the Caster Semenya Case: A Human Rights and Gender Analysis, Opinio Juris (Sept. 30, 2020), http://opiniojuris.org/2020/09/30/the-decision-of-the-swiss-federal-supreme-court-in-the-caster-semenya-case-a-human-rights-and-gender-analysis/; Sean Ingle, Caster Semenya’s Olympic Hopes Fade as Runner Loses Testosterone Rules Appeal, The Guardian (Sept. 8, 2020), https://www.theguardian.com/sport/2020/sep/08/caster-semenya-loses-appeal-against-world-athletics-testosterone-rules.  

[9] World Athletics, supra note 7, at 4–5. The regulations define relevant athletes as those with listed DSDs, testosterone levels higher than five nmol/L, and who have androgen sensitivity allowing the testosterone to have an androgenizing effect. Id. at 4. Restricted events currently include the women’s 400 m, 400 m hurdles, 800 m, 1,500 m, and 1 mile. Id.

[10] See Alexandria Adkins, Comment, Trapped in the Binary Divide: How Forced Contraceptives Violate the World Anti-Doping Code, 35 Am. U. Int’l L. Rev. 531, 542–43 (2020). These regulations required hyperandrogenic females to reduce natural testosterone levels through the use of oral contraceptives. Id. at 542.Dutee Chand, a hyperandrogenic sprinter from India successfully challenged the necessity, reasonableness, and proportionality of the regulations. Id. at 543.

[11] Sudai, supra note 6, at 186–89.

[12] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 2 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[13] Adkins, supra note 10, at 561.

[14] Id. at 562.

[15] Semenya, CAS Case No. 2018/0/5794, at 156.

[16] Adkins, supra note 10, at 556.

[17] Matt Butler, Nobody Asked Bolt to Shorten His Legs or Phelps to Shrink His Feet, so Why is Caster Semenya Being Told to Reduce Her Testosterone?, i News (Sept. 16, 2020), https://inews.co.uk/sport/athletics/caster-semenya-iaaf-testosterone-cas-sebastian-coe-260629. But see Malcom Gladwell & Nicholas Thompson, Caster Semenya and the Logic of Olympic Competition, New Yorker (Aug. 12, 2016), https://www.newyorker.com/sports/sporting-scene/caster-semenya-and-the-logic-of-olympic-competition (rationalizing the regulations by stating that these are different types of advantages, and that testosterone places Semenya outside the protected class of women).

[18] Semenya, CAS Case No. 2018/0/5794, at 160.

[19] Id. at 152–160.

[20] Id. at 160.

[21] Id.

[22] WMA Reiterates Advice to Physicians not to Implement IAAF Rules on Classifying Women Athletes, World Med. Ass’n (May 2, 2019), https://www.wma.net/news-post/wma-urges-physicians-not-to-implement-iaaf-rules-on-classifying-women-athletes/.

[23] Id.

[24] Press Release, Swiss Fed. Sup. Ct., DSD Regul.: Caster Semenya’s Appeal against the Decision of the Ct. of Arb. for Sport Dismissed (Sept. 8, 2020). The court opinion is in French (which I do not speak), as such I cite to the Press Release which was released in English. The case citation is: Tribunal Fédéral [TF] [Federal Supreme Court] Aug. 25, 2020, 4A_248/2019 (Switz.).

[25] Press Release, Swiss Fed. Sup. Ct., supra note 24.

[26] Id.

[27] World Athletics, supra note 7, at 5.

[28] Holzer, supra note 8.

[29] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/0/5794, 158–59 (Ct. Arb. Sport 2019).

[30] Id.

[31] Id.

[32] Holzer, supra note 8.

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21Apr

“Life, uh, Finds A Way”: Is the Political “Horse Race” the Next Great American Sport?

Categories: Current Issues Blog Uncategorized
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By Alexander S. Boros

So far, 2020 has felt like an eternity and yet we are just four months in.  The spread of COVID-19 has turned the entire world upside down and has transformed the economy in a way we have never seen before.  One of the more interesting twists of fate in the midst of this global crisis was the end of sports in America.[1]  When COVID-19 struck, sports were in full swing: college basketball was entering its postseason, the NBA, MLS, and NHL were mid-season, and Major League Baseball was in the middle of Spring Training.[2]  By March 12, however, state and national social distancing guidelines created “The day the sports world stopped.”[3]  In the coming days, restaurants and bars would shut down and states across the country would shut down all non-essential businesses.[4] 

Millions of Americans would be shut in their homes to flatten the curve but were left without some unifying outlet of entertainment.  Online resources, available from the safety of our own homes, have become the only connection to the outside world.  Internationally, online poker tournaments set records for participation and prize pools, though such gambling is virtually illegal in the United States.[5]  Instead, American gamblers have increasingly wagered on sporting events as their chosen form of entertainment.[6]  When sports shut down, however, that multimillion-dollar gambling industry was also removed from the equation.  In North Carolina alone, sports gambling was expected to bring in $14 million to casinos and $1 million in tax revenues.[7]  Throughout the country, newly developed and well-established sportsbooks alike began facing a question suddenly on the lips of many small businesses owners: How will we stay in business?[8]

It turns out, there is no way to shut down American ingenuity.  In the beginning of April 2020, American sportsbooks FanDuel, DraftKings, and BetMGM each reached out to West Virginia’s Lottery for approval to accept bets in “political market[s].”[9]  Specifically, DraftKings hoped to accept bets on four markets: (1) Winner – Presidential Election; (2) Winning Party Overall; (3) Over/Under seats for each Party – Senate Over/Under for each Party – House Over/Under number of States won; (4) Over/Under Electoral College Votes Obtained and Turnout percentage.[10]  In these conversations, it was taken as a given that gambling on state and local elections was not allowed.[11]  On April 7, the state lottery approved each of the markets.[12]

Betting on elections is “nothing new” internationally.[13]  International gambling websites like InTrade and BetFair became popular in 2012, and the 2016 election brought in record numbers of bets and revenue.[14]  Opening political markets in the United States is a massive opportunity for states as well.[15]  Forecasts suggest that presidential election gambling would produce $1.1 million in new wagers and generating $150 thousand in new tax revenue for West Virginia alone.[16]  Those same projections expected nearly double the wagers on the Presidential election than were placed on Super Bowl LIV.[17]  That is because, although sports are hugely popular in the United States, they do not affect everyone.[18]  American democracy, on the other hand, affects everyone in this country.  Thus, political gambling is hugely popular with first time betters.[19]  In Europe, 12 percent of all wagers placed on the 2016 election were new betters.[20]  That number is nearly six times higher than the percentage of new betters across all other markets offered that year.[21]

Even though initial approval was given to West Virginia’s Sportsbooks, Mac Warner, West Virginia’s Secretary of State, quickly shut down the idea and revoked the approval.[22]  That’s because, in West Virginia, it is “unlawful to bet or wager money or other thing of value on any election held in [the] state.”[23]  It turns out that’s a common restriction across the fifty states.[24]  But should it be?

While direct wagering on elections is illegal,  predictive markets allowing “investing” in political outcomes have been operating within the United States since 1993.[25]  Two of the largest in the country, PredictIt and the University of Iowa’s Electronic Markets, limit the amount of money that can be invested at any time, and all data from the markets is used for research purposes.[26]  Although scholars are divided as to whether there is really a difference between these two markets, arguably the overall results are the same.[27]  At the end of the day, these markets include placing money on candidates based on their odds with either losses or gains that are realized.  Put simply, it is hard to see the distinction between the two forums.  This discussion may be the result of “being so preoccupied with whether or not they could [without stopping] to think if they should.”[28]  That may be a question for a different article.  If Sportsbooks can develop the appropriate, anti-corruption protections to ensure that unfettered gambling does not run amuck on our elections, the country’s next great sport spectacle may well be America’s democracy.

[1] See Mike Vaccaro, The Day Coronavirus Sent the Sports World Into Darkness, N.Y. Post (Mar. 12, 2020, 6:38 PM), https://nypost.com/2020/03/12/the-day-coronavirus-sent-sports-into-hibernation-has-come/.

[2] Id.

[3] Id.

[4] See, e.g., Gabriella Borter, New York Governor Orders All Non-essential Businesses Closed, Says Everyone Must Stay Home, Reuters (Mar. 20, 2020, 11:51AM), https://www.reuters.com/article/us-health-coronavirus-usa-new-york/new-york-governor-orders-all-non-essential-businesses-closed-says-everyone-must-stay-home-idUSKBN2172JP.

[5] David Purdum, Online Poker Tourney Sets Record Amid Pandemic, ESPN (Mar. 24, 2020), https://www.espn.com/chalk/story/_/id/28948562/online-poker-tourney-sets-records-amid-pandemic (noting online poker is legal in only a handful of U.S. states).

[6] See Alexander Boros, North Carolina is All-in on Sports Betting, Wake Forest L. Rev.: Current Issues Blog (Aug. 27, 2020), https://www.wakeforestlawreview.com/2019/08/north-carolina-is-all-in-on-sports-betting/.

[7] See Andrew Westney, NC House Approves Cherokee Sports Betting Bill, Law360 (July 16, 2019), https://www.law360.com/articles/1177393/nc-house-approves-cherokee-sports-betting-bill (“The bill’s supporters expect sports betting to generate $14 million in annual revenue for the tribe and about $1 million a year for the state.”).

[8] David Purdum, Wynn Las Vegas Temporarily Closing Sportsbook Due to the Coronavirus, ESPN (Mar. 13, 2020), https://www.espn.com/chalk/story/_/id/28900242/wynn-las-vegas-temporarily-closing-sportsbook-due-coronavirus.

[9] Adam Candee, Presidential Election Betting Asks In West Virginia Approved In An Hour, Emails Show, Legal Sports Rep. (Apr. 14, 2020, 1:23PM), https://www.legalsportsreport.com/39947/presidential-election-betting-west-virginia-emails/; see also Emails Between WV Lottery and Sports Betting Companies Regarding Elections Betting, Legal Sports Rep. (Apr. 14, 2020), https://www.documentcloud.org/documents/6837062-Emails-between-WV-Lottery-and-Sports-Betting.html [hereinafter Lottery E-mails].

[10] Lottery E-mails, supra note 9, at 20; E-mail from Jacob List, DraftKings, to David Bradley, West Virginia Lottery (Apr. 7, 2020, 1:50 PM) (on file with author) [hereinafter List E-mail].

[11] Lottery E-mails, supra note at 9, at 20; List E-mail, supra note 10.

[12] Lottery E-mails, supra note 9at 25; E-mail from David Bradley, West Virginia Lottery, to Jacob List, DraftKings (Apr. 7, 2020, 4:58 PM) (on file with author) [hereinafter Bradley E-mail].

[13] Sarah Zhang, You Can Bet Real Money on the US Election. It’s for Research, Wired (Mar. 1 2016, 7:00AM), https://www.wired.com/2016/03/can-bet-real-money-us-election-uh-research/.

[14] Id.; see also Lottery E-mails, supra note 9, at 22 (“The biggest market in terms of volume matched in the history of the Exchange is the 2016 Next President market …”); E-mail from John Sheeran, PPB.Com, to David Bradley, West Virginia Lottery (Apr. 7, 2020, 2:10 PM) (on file with author) [hereinafter Sheeran E-mail].

[15] Lottery E-mails, supra note 9, at 18; E-mail from Erich Zimny, Vice President of Racing & Sports Operations, Hollywood Casino at Charles Town Races, to David Bradley, West Virginia Lottery (Apr. 6, 2020, 3:56 PM) (on file with author) [hereinafter Zimny E-Mail].

[16] Lottery E-mails, supra note 9, at 18; Zimny E-mail, supra note 15.

[17] Lottery E-mails, supra note 9, at 18; Zimny E-mail, supra note 15.

[18] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[19] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[20] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[21] Lottery E-mails, supra note 9,at 24; Sheeran E-mail, supra note 14.

[22] Press Release, Andrew “Mac” Warner, Secretary of State Warner Releases Statement on Wagering on Elections in West Virginia (Apr. 8, 2020), https://sos.wv.gov/news/Pages/04-08-2020-A.aspx.

[23] W. Va. Code § 3-9-22 (2019); see Press Release, supra note 22.

[24] Tamar Lapin, Political Betting Was Legal in West Virginia – For About an Hour, N.Y. Post (Apr. 8, 2020, 9:27 PM), https://nypost.com/2020/04/08/political-betting-was-legal-in-west-virginia-for-about-an-hour/.  

[25] See Zeke Faux, PredictIt Owns the Market for 2020 Presidential Election Betting, BloomsBerg BusinessWeek (Aug. 1, 2019, 9:10 AM), https://www.bloomberg.com/news/articles/2019-08-01/predictit-owns-the-market-for-2020-presidential-election-betting; Theo Francis, Wanna Bet? The Market Has a View on the 2020 Election, Wall St. J. (Jan. 10, 2020, 1:11 PM), https://www.wsj.com/articles/wanna-bet-the-market-has-a-view-on-the-2020-election-11578679896.

[26] Research Opportunities, PredictIt, https://www.predictit.org/research (last visited Apr. 20, 2020); About the IEM, U. Iowa, https://iemweb.biz.uiowa.edu/about/?mod=djem_election2020&mod=article_inline (last visited Apr. 20, 2020).

[27] Alexandra Lee Newman, Manipulation in Political Prediction Markets, 3 J. Bus. Entrepreneurship & L. 205, 208 n.25 (2010) (“Prediction market scholars disagree about whether the CFTC legally can regulate public prediction markets generally under the CEA, or whether state gambling laws should regulate these markets.”) (citing to disagreement in literature regarding the differences and likenesses of predictive markets and gambling).

[28] Jurassic Park (Universal Pictures 1993).

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