throbber
No. 13-967, -979, -980
`
`
`In the Supreme Court of the United StatesIn the Supreme Court of the United States
`In the Supreme Court of the United States
`
`In the Supreme Court of the United StatesIn the Supreme Court of the United States
`
`CHRIS CHRISTIE, GOVERNOR OF NEW JERSEY, ET AL.,
`Petitioners,
`
`v.
`
`NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.,
` Respondents.
`
`NEW JERSEY THOROUGHBRED HORSEMEN’S ASSOCIATION, INC.,
`Petitioner,
`
`v.
`
`NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.,
` Respondents.
`
`STEPHEN M. SWEENEY, PRESIDENT OF THE NEW JERSEY SENATE, ET AL.,
`Petitioners,
`
`v.
`
`NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, ET AL.,
` Respondents.
`
`On Petitions for Writ of Certiorari to the
`United States Court of Appeals for the Third Circuit
`
`BRIEF FOR AMICI CURIAE RYAN M. RODENBERG,
`ANASTASIOS KABURAKIS, AND JOHN T. HOLDEN
`IN SUPPORT OF PETITIONS FOR WRIT OF CERTIORARI
`
`RYAN M. RODENBERG
` Counsel of Record
`FLORIDA STATE UNIVERSITY
`139 Chieftan Way
`Tallahassee, FL 32306
`(850) 645-9535
`rrodenberg@fsu.edu
`
`March 14, 2014
`
`Counsel for Amici Curiae
`
`Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
`
`

`
` i
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii
`
`INTEREST OF THE AMICI . . . . . . . . . . . . . . . . . . . 1
`
`SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1
`
`ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`
`I. PASPA’s Conferral of Property Rights to the
`Respondent Sports Leagues Violates
`the Intellectual Property Clause of
`the
`Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
`
`t h e E x p r e s s
`A. P A S P A V i o l a t e s
`Limitations Embodied in the Intellectual
`Property Clause . . . . . . . . . . . . . . . . . . . . . . . 4
`
`B. Disputes Over Property Rights in Underlying
`Athletic Events Have Resulted in a Circuit
`Split and an Intra-Circuit Split . . . . . . . . . . 12
`
`II. The Conferral of Perpetual Property Rights
`t o F a v o r e d S t a t e s v i a P A S P A ’ s
`Grandfathering Clause Violates
`the
`Constitution’s Intellectual Property Clause . . . 17
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
`
`

`
` ii
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Baltimore Orioles, Inc. v. Major League
`Baseball Players Assn.,
`805 F.2d 663 (7th Cir.1986) . . . . . . . . . . . . . . . . 14
`
`C.B.C. Distribution & Mktg., Inc. v. Major
`League Baseball Advanced Media, LP,
`505 F.3d 818 (8th Cir. 2007) . . . . . . . . . . . . . . . 16
`
`Dukes v. City of New Orleans,
`420 U.S. 297 (1976) . . . . . . . . . . . . . . . . . . . 19, 20
`
`Eldred v. Ashcroft,
`537 U.S. 186 (2003) . . . . . . . . . . . . . . . . . . . 18, 19
`
`Golan v. Holder,
`132 S. Ct. 873 (2012) . . . . . . . . . . . . . . . . . . . . . 18
`
`Graham v. John Deere,
`383 U.S. 1 (1966) . . . . . . . . . . . . . . . . . . . . . . 9, 10
`
`Greater New Orleans Broadcasting
`Ass’n, Inc. et al. v. United States,
`527 U.S. 173 (1999) . . . . . . . . . . . . . . 3, 19, 21, 22
`
`Minnesota v. Clover Leaf Creamery,
`449 U.S. 456 (1981) . . . . . . . . . . . . . . . . . . . 19, 20
`
`Morris Comm. Corp. v. PGA Tour, Inc.,
`364 F.3d 1288 (11th Cir. 2004) . . . . . . . . . . 15, 16
`
`Natl. Basketball Ass’n. v. Motorola, Inc.,
`105 F.3d 841 (2d Cir. 1997) . . . . . . . . . . 10, 15, 16
`
`Natl. Football League v. Governor of Delaware,
`435 F. Supp. 1372 (D. Del. 1977) . . . . . . . . . 12, 13
`
`

`
` iii
`
`Natl. Football League v. McBee & Bruno’s, Inc.,
`792 F.2d 726 (8th Cir. 1986) . . . . . . . . . 13, 14, 16
`
`NCAA, et al. v. Governor of the State of New
`Jersey, et al.,
`730 F.3d 208 (3d Cir. 2013) . . . . . . . . . . . . . 20, 21
`
`Pennock v. Dialogue,
`27 U.S. 1 (1829) . . . . . . . . . . . . . . . . . . . . . . . . . 18
`
`Sony v. Universal City Studios,
`464 U.S. 417 (1984) . . . . . . . . . . . . . . . . . . . . . . . 9
`
`Constitutional Provisions
`
`U.S. Const. Art. I, § 8, cl. 8 . . . . . . . . . . . . . . . passim
`
`U.S. Const. Art. II, § 1, cl. 5 . . . . . . . . . . . . . . . . . . 17
`
`U.S. Const. amend. XXII, § 1 . . . . . . . . . . . . . . . . . 17
`
`Statutes
`
`17 U.S.C. §101, et seq. . . . . . . . . . . . . . . . . . . . . . 8, 11
`
`28 U.S.C. § 3701, et seq.
`
`. . . . . . . . . . . . . . . . . passim
`
`35 U.S.C. §101, et seq. . . . . . . . . . . . . . . . . . . . . . . . . 8
`
`Other Authorities
`
`Black’s Law Dictionary (7th ed. 2000) . . . . . . . . . . 17
`
`Brief for Appellee U.S., NCAA et al. v. Christie
`et al., (June 7, 2013) No. 13-1713, 13-1714, 13-
`1715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 22
`
`Complaint for Decl. and Inj. Relief, NCAA et al. v.
`Christie et al. No. 3:12-cv-4947 (MAS) (LHG)
`(Aug. 7, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
`
`

`
` iv
`
`Senator Dennis DeConcini, Opening Statement to
`the Senate, Subcommittee on Patents,
`Copyrights and Trademarks, Prohibiting State-
`Sanctioned Sports Gambling, Hearing, June 26,
`1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
`
`Jeanne C. Fromer, The Intellectual Property
`Clause’s External Limitations, 61(7) DUKE L. J.
`1329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
`
` 12
`
`Paul J. Heald & Suzanna Sherry, Implied Limits on
`the Legislative Power: The Intellectual Property
`Clause as an Absolute Constraint on Congress,
`2000 U. ILL. L. REV. 1119 (2000) . . . . . . . . . . . . 10
`
`H.R. REP. No. 94-1476 (1976)
`
`. . . . . . . . . . . . . . . . 14
`
`Letter from W. Lee Rawls, Assistant Attorney
`General, Department of Justice,
`to
`the
`Honorable Joseph R. Biden, Jr., Chairman,
`Committee on the Judiciary
`(Sept. 24, 1991)
`. . . . . . . . . . . . . . . . . . . . . 2, 3, 22
`Merriam Webster’s Collegiate Dictionary (10th ed.
`1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`
`Thomas B. Nachbar, Intellectual Property and
`Constitutional Norms, 104 COLUMBIA L. R. 272
`(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
`
`Plaintiffs’ Memorandum of Law in Opposition to
`Defendants’ Motion to Dismiss the Complaint,
`NCAA et al. v. Christie et al., (Oct. 1, 2012) No.
`3:12-cv-4947 (MAS) (LHG)
`. . . . . . . . . . . . . . . 5-6
`
`Response Brief of Plaintiffs-Appellees, NCAA et al.
`v. Christie et al., (June 7, 2013) No. 13-1713, 13-
`1714, 13-1715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`
`

`
` v
`
`Testimony of David J. Stern, Subcommittee on
`Patents, Copyrights and Trademarks,
`Prohibiting State-Sanctioned Sports Gambling,
`Hearing, June 26, 1991 . . . . . . . . . . . . . . . . . . . . 7
`
`Ian Thomsen, Stern Open to Legalized Betting, Rule
`Changes, SportsIllustrated.com (December 11,
`2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
`
`

`
` 1
`
`INTEREST OF THE AMICI CURIAE1
`
`Ryan M. Rodenberg, Anastasios Kaburakis, and
`John T. Holden are sports law analytics scholars with
`a particular research focus on intellectual property and
`sports-wagering. They have published a number of
`academic articles in connection with such issues. They
`have a strong interest in ensuring that the nation’s
`sports-wagering and intellectual property laws comply
`with the Constitution.
`
`SUMMARY OF ARGUMENT
`
`The Professional and Amateur Sports Protection Act
`of 1992, 28 U.S.C. § 3701 et seq. (“PASPA”) violates
`Article I, § 8, cl. 8 of the United States Constitution
`(“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.” (emphasis added).
`
`PASPA’s subsection labeled “Injunctions” includes
`the word “whose,” which confers ownership rights of
`“competitive game[s]” to Respondents and other
`
`1 Pursuant to Rule 37, amici curiae certify that no counsel for a
`party authored this brief in whole or in part, and no party or
`counsel for a party made a monetary contribution intended to fund
`the preparation or submission of this brief. No one other than
`amici curiae made a monetary contribution to the preparation or
`submission of this brief. Counsel for all parties were timely
`notified more than ten days before the filing of this brief. Letters
`from the parties consenting to the filing of the amicus curiae brief
`have been filed with the Clerk of the Court.
`
`

`
` 2
`
`professional or amateur sports organizations for
`purposes of deputizing them to enforce the statute:
`
`A civil action to enjoin a violation of § 3702 may
`be commenced in an appropriate district court of
`the United States by the Attorney General of the
`United States, or by a professional sports
`organization or amateur sports organization
`whose competitive game is alleged to be the
`basis of such violation (emphasis added). 28
`U.S.C. § 3703.
`
`The conferral of property rights under PASPA
`violates the Intellectual Property Clause because it
`goes beyond the scope of the Intellectual Property
`Clause’s limitations in two distinct ways. 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.
`
`In a September 24, 1991 letter, the Department of
`Justice (“DOJ”) raised a number of concerns in
`connection with the Senate bill (S. 474) that would
`become PASPA. Letter from W. Lee Rawls, Assistant
`Attorney General, Department of Justice, to the
`Honorable Joseph R. Biden, Jr., Chairman, Committee
`on the Judiciary (Sept. 24, 1991). Two concerns
`predominated. First, the DOJ flagged a number of
`provisions in S. 474 that raised “federalism issues.” Id.
`
`

`
` 3
`
`Second, the DOJ found it “particularly troubling that S.
`474 would permit enforcement of its provisions by
`sports leagues.” Id. Petitioners comprehensively
`address the DOJ’s first concern in their petitions for a
`writ of certiorari. We address the DOJ’s second
`concern in this brief as amici curiae.
`
`PASPA confers a property right to Respondents
`National Collegiate Athletic Association (“NCAA”),
`National Basketball Association (“NBA”), National
`Football League (“NFL”), National Hockey League
`(“NHL”), and Office of the Commissioner of Baseball
`(“MLB”) (collectively “Sports Leagues”) through the use
`of statutory language deputizing Sports Leagues to
`enforce PASPA’s provisions. See 28 U.S.C. § 3703. By
`granting Sports Leagues monopoly-like proprietary
`ownership of athletic events with authority to act as a
`private attorney general under the statute, PASPA has
`conferred a de facto patent and copyright to the Sports
`Leagues in violation of the Constitution’s Intellectual
`Property Clause.
`
`PASPA’s grandfathering clause also has the effect
`of conferring a property right to Nevada and a small
`number of other exempted States. The Court was
`troubled by PASPA’s carve-outs in Greater New
`Orleans Broadcasting Association, Inc. et al. v. United
`States. 527 U.S. 173 (1999). Justice Stevens, writing
`for a unanimous court, observed that PASPA “includes
`a variety of exemptions, some with obscured
`congressional purposes.” Id. at 179. PASPA’s conferral
`of monopoly-like property rights to certain favored
`States through the use of various grandfathering
`exemptions is unconstitutional under the Intellectual
`Property Clause.
`
`

`
` 4
`
`Deciding whether PASPA is constitutionally valid
`under the Intellectual Property Clause provides the
`Court with an alternative legal ground to decide this
`case. This alternative is considerably narrower than
`the broad anti-commandeering and equal sovereignty
`arguments rooted in federalism set forth by the
`Petitioners. The argument we offer as amici curiae is
`specific to PASPA and, in turn, does not directly
`implicate any other federal statutes.
`
`
`For these reasons, the Court should grant the
`petitions for a writ of certiorari.
`
`ARGUMENT
`
`I. PASPA’s Conferral of Property Rights to the
`Respondent Sports Leagues Violates the
`Intellectual Property Clause of
`the
`Constitution
`
`A. PASPA Violates the Express Limitations
`Embodied in the Intellectual Property
`Clause
`
`PASPA’s subsection labeled “Injunctions” includes
`the word “whose,” which confers ownership rights of
`“competitive game[s]” to the Sports Leagues for certain
`purposes under the statute:
`
`A civil action to enjoin a violation of § 3702 may
`be commenced in an appropriate district court of
`the United States by the Attorney General of the
`United States, or by a professional sports
`organization or amateur sports organization
`whose competitive game is alleged to be the
`basis of such violation (emphasis added). 28
`U.S.C. § 3703.
`
`

`
` 5
`
`As a pronoun, the word “whose” is the possessive
`form of the word “who,” and used as an adjective. The
`word “whose” is defined as “a possessor” and “that
`which belongs to whom.” Merriam Webster’s Collegiate
`Dictionary at 1352 (10th ed. 1993).
`
`PASPA was enacted by Congress pursuant to the
`Commerce Clause. However, the conferral of property
`rights under the straightforward language in § 3703
`implicates the Intellectual Property Clause. When
`Congress granted ownership of “competitive game[s]”
`under § 3703 to the Sports Leagues as a mechanism to
`deputize the Sports Leagues for purposes of PASPA
`enforcement, such conferral took the functional form of
`a patent, with ancillary characteristics common to a
`copyright, and bestowed the Sports Leagues with the
`right to exclude sports-wagering otherwise permissible
`under state law. PASPA’s property right conferral is
`within the purview of the Intellectual Property Clause
`and must comply with its express limitations.
`
`Reading a conferral of property rights into PASPA
`is supported by the Sports Leagues’ own statements in
`this case. The Sports Leagues posit that they have a
`proprietary interest in “the degree to which others
`derive economic benefits from their own games.”
`Response Brief of Plaintiffs-Appellees at 18, NCAA et
`al. v. Christie et al., (June 7, 2013) No. 13-1713, 13-
`1714, 13-1715. The Sports Leagues also contend that
`they “have an essential interest in how their games are
`perceived and the degree to which their sporting events
`become betting events” (emphasis removed). Id. at 13-
`14. The Sports Leagues further reference “legally
`protected interests of the organizations that produce
`the underlying games.” Plaintiffs’ Memorandum of Law
`
`

`
` 6
`
`in Opposition to Defendants’ Motion to Dismiss the
`Complaint at 1, NCAA et al. v. Christie et al., (Oct. 1,
`2012) No. 3:12-cv-4947 (MAS) (LHG).
`
`The DOJ supports the Sports Leagues’ legal position
`on this point. The DOJ claimed “PASPA does give the
`leagues a protected legal interest that has been
`invaded by New Jersey’s authorization of sports
`gambling…” Brief for Appellee United States at 17
`NCAA et al. v. Christie et al., (June 7, 2013) No. 13-
`1713, 13-1714, 13-1715. The DOJ explained its finding
`of a protected legal interest for the Sports Leagues by
`drawing an analogy to intellectual property law: “…the
`legal protection that PASPA accords to sports leagues
`is similar to the protections traditionally afforded in
`fields such as copyright and trademark law, where
`authors and companies are given the right not to have
`their creative works exploited by other parties.” Id. at
`22, n. 7.
`
`PASPA’s legislative history also coincides with the
`contemporary statements of the Sports Leagues and
`the DOJ in this case. PASPA was debated in the
`Senate by the Subcommittee on Patents, Copyrights,
`and Trademarks. The title of the statute itself is also
`revealing of PASPA’s intent and effect. PASPA stands
`for “Professional and Amateur Sports Protection Act”
`(emphasis added). PASPA protects select professional
`and amateur sports leagues from the perceived ills of
`regulated sports-wagering through the allocation of
`ownership interests to “competitive game[s]” in § 3703.
`Such protection manifests itself in the Sports Leagues
`being deputized to sue under PASPA for injunctive
`relief in the same way patent holders and copyright
`holders can file suit to protect their property interests.
`
`

`
` 7
`
`In testimony provided to the Senate Subcommittee on
`Patents, Copyrights, and Trademarks on June 26,
`1991, NBA commissioner David Stern provided his
`view on PASPA’s intended protection and the overlap
`between sports-wagering and intellectual property in
`the context of PASPA: “Conducting a sports lottery or
`permitting sports gambling involves the use of
`professional sports leagues’ games, scores, statistics
`and team logos, in order to take advantage of a
`particular league’s popularity; such use violates,
`misappropriates, and infringes upon numerous league
`property rights.” Testimony of David J. Stern,
`Subcommittee on Patents, Copyrights and Trademarks,
`Prohibiting State-Sanctioned Sports Gambling,
`Hearing, June 26, 1991, at 51.
`
`The plain language of PASPA, especially when
`coupled with the 1991 Congressional testimony and the
`statements by the Sports Leagues and the DOJ in this
`case, implicates the Constitution’s Intellectual Property
`Clause. Art. I, § 8, cl. 8 of the Constitution 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.” (emphasis added). The Sports Leagues
`did not author, invent, write, or discover the respective
`athletic events they are involved in. Others did. As
`such, PASPA § 3703’s possessive “whose competitive
`game” language and Congress’s award of protectable
`ownership rights over such games are contrary to the
`Intellectual Property Clause.
`
`Congress has enacted patent and copyright laws
`pursuant to the Intellectual Property Clause. Patent
`
`

`
` 8
`
`law protection is granted for useful, novel, and non-
`obvious inventions. 35 U.S.C. §101-103. Patents are
`granted following review by the U.S. Patent and
`Trademark Office (“USPTO”). If approved, a patent
`permits the holder to exclude others from claiming the
`invention for a period of usually twenty years. Patents
`operate as a duly authorized monopoly for a limited
`duration of time. The Sports Leagues did not obtain a
`formal patent from the USPTO in connection with
`individual sporting events. Congress simply granted a
`quasi-patent for sports-wagering purposes via § 3703 of
`PASPA.
`
`“original works of
`law protects
`Copyright
`authorship fixed in any tangible medium of expression,
`now known or later developed.” 17 U.S.C. § 101.
`Copyright categories are specifically enumerated and
`include literary works, musical recordings, and movies.
`Id. at § 102. Sporting events are not included as
`discussed infra.
`
`PASPA’s conferral of property rights to the Sports
`Leagues is functionally akin to a patent. The “whose
`competitive game” language in § 3703 of PASPA
`provides the holders of the de facto patent with the
`statutory authority to exclude others – in this case the
`State of New Jersey’s desire to offer regulated sports-
`wagering pursuant to a duly enacted state law. A right
`to exclude is exactly the type of property right
`conferred on the Sports Leagues by PASPA. Through
`the ownership interests granted in § 3703 of PASPA,
`the Sports Leagues are permitted to file suit and seek
`to exclude certain States from organizing sports-
`wagering activities otherwise permitted
`in the
`
`

`
` 9
`
`jurisdiction. PASPA’s remedy, an injunction, mirrors
`that afforded to patent holders.
`
`Congress’s conferral of ownership interests over
`athletic events to Sports Leagues functions as a
`monopoly and runs counter to Court precedent. The
`Court found: “The monopoly privileges that Congress
`may authorize are neither unlimited nor primarily
`designed to provide a special private benefit…It is
`intended to motivate the creative activity of authors
`and inventors.” Sony v. Universal City Studios, 464
`U.S. 417 at 429 (1984). PASPA fails to meet this
`standard in two ways. First, PASPA’s ownership
`privileges under § 3703 attach to only “a professional
`sports organization or amateur sports organization
`whose competitive game is alleged to be the basis of
`such violation.” Second, PASPA’s purpose is wholly
`unrelated to the creative activity of authors and
`inventors.
`
`With PASPA’s grant of a proprietary right to the
`Sports Leagues operating as the functional equivalent
`of a patent, it is useful to gauge the scope of Congress’s
`authority to grant patents. In Graham v. John Deere,
`the Court made clear:
`
`Congress may not authorize the issuance of
`patents whose effects are to remove existent
`knowledge from the public domain, or to restrict
`access
`to materials already available.
`Innovation, advancement, and things which add
`to the sum of useful knowledge are inherent
`requisites
`in a patent system which by
`constitutional command must “promote the
`Progress of…useful Arts.” This is the standard
`
`

`
` 10
`
`expressed in the Constitution and it may not be
`ignored. 383 U.S. 1 at 6 (1966).
`
`When juxtaposed with the Intellectual Property
`Clause’s requirements, PASPA’s grant of a patent-like
`property right to Sports Leagues fails on multiple
`counts. First, the power to exclude States from
`effectuating regulated sports-wagering programs is
`unrelated to, and
`in direct conflict with, the
`Intellectual Property Clause’s requirement that such
`grants “promote the Progress of Science and useful
`Arts.” According to two scholars, “[a] corollary
`principle [of the Intellectual Property Clause] demands
`that Congress initially direct exclusive grants to those
`who provide the public with the new creation.
`Monopolies are not rewards Congress may grant to
`favored special-interest groups.” Paul J. Heald &
`Suzanna Sherry, Implied Limits on the Legislative
`Power: The Intellectual Property Clause as an Absolute
`Constraint on Congress, 2000 U. ILL. L. REV. 1119, 1164
`(2000).
`
`Second, PASPA’s grant of property rights is
`perpetual, putting it at odds with the “limited Times”
`requirement of the Intellectual Property Clause. Third,
`as detailed in National Basketball Association v.
`Motorola discussed infra, the Sports Leagues do not
`qualify as “Authors” under the Intellectual Property
`Clause. 105 F.3d 841 (2d Cir. 1997). Fourth, athletic
`events do not constitute “Writings [or] Discoveries”
`under the Intellectual Property Clause given their
`spontaneous nature and accompanying uncertainty of
`outcome.
`
`PASPA’s grant of copyright-like power to the Sports
`Leagues is equally evident under § 3703’s “whose
`
`

`
` 11
`
`competitive game” language. The Sports Leagues’
`complaint in this case makes clear that athletic
`contests are not scripted, implicating the “Writings”
`requirement of the Intellectual Property Clause and
`the “fixation” language in the Copyright Act of 1976. 17
`U.S.C. § 101, et seq. In their initial complaint, the
`Sports Leagues argued that “the outcomes of collegiate
`and professional athletic contests must be determined,
`and must be perceived by the public as being
`determined, solely on the basis of honest athletic
`competition.” Complaint for Decl. and Inj. Relief, at 3
`NCAA et al. v. Christie et al. No. 3:12-cv-4947 (MAS)
`(LHG) (Aug. 7, 2012). Unlike live musicals, theatrical
`plays, and professional wrestling, honestly competitive
`sports are unscripted, making them incompatible with
`copyright
`law’s constitutional and statutory
`requirements. Contrary to the games’ telecasts and
`broadcasts, which have clearly been found to be
`copyrightable content, the games per se have not been
`definitively deemed worthy of copyright protection
`(discussed infra). Additionally, the “whose competitive
`game” wording of § 3703 creates the suspicion of a sui
`generis Intellectual Property Clause violation by basing
`a property right granted by PASPA to a concept that
`has no owner.
`
`PASPA’s conferral of property rights in § 3703 also
`highlights a conflict between the Commerce Clause and
`the Intellectual Property Clause. Indeed, a prominent
`scholar observed: “The overwhelming view among
`commentators is that the Intellectual Property Clause’s
`limits apply to all of Congress’s power and therefore
`that Congress may not look to other Article I, Section
`8 powers in order to avoid those limits.” Thomas B.
`Nachbar, Intellectual Property and Constitutional
`
`

`
` 12
`
`Norms, 104 COLUMBIA L. REV. 272, 274 (2004). The
`implications for the Intellectual Property Clause’s
`external limitations on PASPA are profound. Another
`scholar flags the issue generally as follows: “Since the
`late twentieth century, Congress has increasingly
`reached beyond the [Intellectual Property] Clause’s
`means to promote the [Intellectual Property] Clause’s
`ends, often asserting its expansive – and less limited –
`commerce and treaty powers.” Jeanne C. Fromer, The
`Intellectual Property Clause’s External Limitations,
`61(7) DUKE L. J. 1329.
`
`
`in
`B. Disputes Over Property Rights
`Underlying Athletic Events Have Resulted
`in a Circuit Split and an Intra-Circuit Split
`
`It would be a non sequitur to grant property rights
`to private actors lacking a valid claim for a particular
`ownership interest. Prior to PASPA, professional and
`amateur sports leagues in the United States have
`never had a property interest in sporting events that
`attaches to, and in turn restricts, one’s right to offer
`otherwise permissible sports-wagering. However, the
`issue of whether such leagues hold a property interest
`in the underlying athletic contests generally (precisely
`what § 3703 of PASPA grants via its “whose
`competitive game” language) is unsettled law. Courts
`are divided. A review of relevant cases sheds light on
`how courts have viewed the same type of property right
`the Sports Leagues were granted under PASPA § 3703.
`The litany of cases below highlights the difficulty
`courts have faced in deciding the issue.
`
`Subsequent to the passing of the Copyright Act of
`1976, and well before PASPA’s adoption, in National
`Football League, et al. v. Governor of Delaware, 435 F.
`
`

`
` 13
`
`Supp. 1372 (D. Del. 1977), the NFL and 28 teams filed
`suit seeking injunctive relief barring Delaware from
`conducting a lottery game based on professional
`football games involving NFL-affiliated teams. The
`league defined its product as being the total end result
`of its labor, including the public interest which it
`generated. Deciding on the league’s assertion that
`Delaware misappropriated the product of the league’s
`labor and the games’ popularity, Judge Stapleton held:
`
`“[P]laintiffs’ argument paints with too broad a
`brush… The only tangible product of plaintiffs’
`labor, which defendants utilize in the Delaware
`Lottery, are [sic] the schedule of NFL games and
`the scores. These are obtained from public
`sources and are utilized only after plaintiffs
`have disseminated them at large and no longer
`have any expectation of generating revenue from
`further dissemination…” 435 F. Supp. 1372,
`1377.
`
`The district court of Delaware concluded that:
`(i) featuring NFL schedules and scores, and using the
`games’ popularity by the Delaware lottery did not
`constitute misappropriation of NFL property and
`(ii) even if the lottery scheme violated federal
`antigambling laws, the NFL lacked a private cause of
`action. With the passing of PASPA fifteen years later,
`the Sports Leagues were granted such a private cause
`of action via § 3703.
`
`Six years before PASPA’s enactment, and two
`decades prior to a different panel of the same Circuit
`reaching a contrary conclusion, an Eighth Circuit
`decision in National Football League v. McBee &
`Bruno’s, Inc., 792 F.2d 726 (8th Cir. 1986) recognized
`
`

`
` 14
`
`a broad-scope property right in sports leagues’ games.
`The case revolved around St. Louis restaurateurs, who
`used “clean satellite feeds” (stadium images received by
`a satellite dish without any identifying information) to
`broadcast local games otherwise blacked-out in the
`region. Agreeing with the district court, the Eighth
`Circuit held that “the game… constituted the work of
`authorship.” 792 F.2d 726, 732. The Eighth Circuit
`was convinced by the plaintiffs, who claimed copyright
`over
`“the game,
`the game action
`[and]
`the
`noncommercial elements of the game.” 792 F.2d 726,
`732.
`
`The same year, the Seventh Circuit decided
`Baltimore Orioles, Inc. v. Major League Baseball
`Players Assn., 805 F.2d 663 (7th Cir. 1986). The
`Seventh Circuit considered whether players’
`performances contained the necessary “modicum of
`creativity” for copyrightability. 805 F.2d 663, 669 n. 7.
`The Seventh Circuit ultimately aligned with
`Congressional guidance during deliberations of the
`Copyright Act of 1976. H.R. REP. No. 94-1476 at 52
`(1976).
` Specifically,
`competitive games’
`copyrightability was recognized as long as it pertained
`to the broadcast and recording of a game:
`
`“[E]ven if the Players’ performances were not
`sufficiently creative…the cameramen and
`director contribute creative
`labor to the
`telecasts. The work that is the subject of
`copyright
`is not merely
`the Players’
`performances, but rather the telecast of the
`Players’ performances.
` The
`creative
`contribution of the cameramen and director
`
`

`
` 15
`
`telecasts
`the
`for
`alone suffices
`copyrightable.” 805 F.2d 663, 669 n. 7.
`
`to be
`
`After the passage of PASPA, federal courts
`continued grappling with pertinent questions regarding
`the scope of Sports Leagues’ property rights over
`underlying athletic events.
` Conceivably,
`the
`constitutionality of PASPA’s § 3703 property right
`acknowledgment and the Sports Leagues’ deputization
`under the statute, combined with PASPA’s de facto
`patent and copyright grants, would be espoused by
`courts. Namely, if federal courts agreed with PASPA’s
`conferral of property rights in the underlying games to
`the Sports Leagues, decisions would be reached
`accordingly. That, however, has not been the case.
`
`The Second Circuit, in Natl. Basketball Assn. v.
`Motorola, Inc., et al., 105 F.3d 841 (2d Cir. 1997),
`decided a dispute over
`time-sensitive data
`dissemination as follows:
`
`“[T]he underlying basketball games do not fall
`within the subject matter of federal copyright
`protection because they do not constitute
`‘original works of authorship’ under 17 U.S.C.
`§ 102(a)… [The] list does not include athletic
`events, and, although the list is concededly
`nonexclusive, such events are neither similar
`nor analogous to any of the listed categories.”
`Motorola, 105 F.3d 841, 846.
`
`Conversely, in Morris Communications Corp. v.
`PGA Tour, Inc., 364 F.3d 1288 (11th Cir. 2004), the
`Eleventh Circuit held that the PGA Tour may preempt
`a media organization from disseminating time-
`sensitive information such as compilations of golf
`
`

`
` 16
`
`scores. The factual scenario of this case pertained to
`purported proprietary data, which the PGA Tour
`selectively shared with media in the confines of its
`tournaments and wished to protect prior to online
`publication (on its own website). Interestingly, in the
`course of ruling in favor of the PGA Tour on antitrust
`grounds, the Eleventh Circuit acknowledged that
`“facts, such as golf scores, and compilations of facts are
`generally not a proper subject for copyright protection.”
`364 F.3d 1288, 1292 n.6. Further, “[C]opyright law
`does not protect factual information, like golf scores.”
`Id. at 1298 n.15.
`
`In C.B.C. Distribution & Mktg., Inc. v. Major League
`Baseball Advanced Media, LP, 505 F.3d 818 (8th Cir.
`2007), the Eighth Circuit decided a case involving
`fantasy sports operators, in which using combinations
`of names and statistics for commercial purposes was
`deemed protected by the First Amendment. The court
`concluded: “[T]he information used in CBC’s fantasy
`baseball games is all readily available in the public
`domain, and it would be strange law that a person
`would not have a First Amendment right to use
`information that is available to everyone.” 505 F.3d
`818, 823.
`
`PASPA’s deputization of Sports Leagues and
`embedded property right[s] to “competitive game[s]”
`under § 3703 have not been uniformly accepted in
`various federal courts. The Second Circuit (National
`Basketball Association v. Motorola, Inc., et al.,) and the
`Eleventh Circuit (Morris Communications Corp. v.
`PGA Tour, Inc.) are largely at odds. The Eighth Circuit
`(National Football League v. McBee & Bruno’s, Inc. and
`C.B.C. Distribution & Mktg., Inc. v. Major League
`
`

`
` 17
`
`Baseball Advanced Media, LP) seemingly has an intra-
`circuit split. Notwithstanding the obvious First
`Amendment issues connected to the commodification of
`news from sporting events, the judicial divergence on
`this issue yields substantial doubt in regard to
`PASPA’

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