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As we inch closer to the summer solstice here in the Northern Hemisphere (the first day of summer for those of you who were asleep in science class), the heat is not rising only on the thermometer, but also in the halls of Congress, where the push for federal name, image and likeness (NIL) legislation forges ahead of the July 1 “cliff” — when at least six of the states’ own NIL legislation (including the latest, and perhaps most significant entrant, Texas) will come into effect, and the world of collegiate athletics will be turned upside down.

With that backdrop, the Senate Commerce Committee recently convened for its second NIL hearing in as many weeks — this time, commendably giving current and former athletes, and the father of Jordan McNair (a University of Maryland football player who tragically died of heat stroke during a team practice in 2015) an opportunity to speak for themselves. Although there remains general bipartisan consensus on the need for NIL legislation, loftier — but no less important — aims of mandating the provision of health care and other benefits to collegiate athletes along with the NIL legislation, may spoil the brew in an oft-deadlocked Congress. Still, various states and universities including my alma mater (ON, WISCONSIN!), are preparing as if NIL rights are a foregone conclusion. Buckle up, folks, this situation looks like it will continue to develop over the next few days and come down to the wire.

Less than three weeks remain for either the National Collegiate Athletic Association (NCAA) or for Congress to act to stem the impending chaos on July 1 when college athletes’ name, image and likeness (NIL) laws go into effect in several states. These laws will enable college athletes to enter into endorsement and licensing deals and otherwise monetize their NIL without reprisal from their school or the NCAA itself. This past Wednesday, with the NCAA being an extremely unlikely long shot to meaningfully act, a panel of witnesses consisting of law professors, a head coach, a college sports analyst and NCAA Commissioner Mark Emmert (but conspicuously no current athletes) were convened to testify before the Senate Committee on Commerce, Science and Transportation as it considered various legislative proposals addressing NIL rights, as well as health care and scholarships. Overall, there appears to be bipartisan support (no small feat in D.C.) for the core issue of monetizing NIL rights, but not all agree on how to accomplish those aims. Still, the clock is ticking, and while we’re about as close as we have ever been to sweeping federal legislation giving athletes the same rights that their fellow students have, the question must be asked: “If not now, when?”

As we continue to play the NIL waiting game, I won’t keep you waiting any longer for the highlights in this week’s Spotlight.

Athletes and entertainers are people, too. Albeit, incredibly talented people, but deserving of the same treatment with dignity and respect as how we would want ourselves to be treated. For better or worse, sometimes their larger than life fame, accomplishments and performances on courts, fields, screens and stages, cause others to lose sight of that fact. But, that is no excuse for the type of treatment of, or behavior towards several high-profile athletes over the past week or so. Specifically, in plain sight during the NBA playoffs, we have witnessed the demeaning acts of basketball “fans” toward three of the league's point guards in the form of pouring popcorn on Washington Wizards point guard, Russell Westbrook, spitting at Atlanta Hawks point guard Trae Young and throwing a water bottle at Brooklyn Nets point guard Kyrie Irving. The first two incidents resulted in indefinite bans, and the third resulted in a felony assault charge.

Perhaps the most insidious has been the apparent lack of regard for mental health on display at the French Open, as professional tennis player Naomi Osaka was fined and threatened with disqualification from the Grand Slam event for failing to meet with the media – notwithstanding her open struggles with anxiety and depression. Osaka later made the tough but roundly supported move (including by her sponsors) to withdraw from the tournament to take time for herself. Hopefully these recent events will be a much needed flashpoint for change in sports and beyond.

With that weightier topic behind us, I’ll go back to our normal programming (corny dad jokes a-plenty!) in the form of the spotlighted stories below:

Throughout the United States, people are eagerly preparing for this Memorial Day Weekend (MDW), which marks the unofficial start of summer (not to mention those who made the ultimate sacrifice for the country). If you listen closely, you can hear the clanging sound of people cleaning off their grills, the “glug” of bottles of sunscreen that are just slightly beyond their expiration date (March 2021 will still work, right?) and the palpable excitement of loved ones being able to safely spend time with one another (ideally on a beach) after a trying 18 months battling the COVID-19 pandemic.

In New York, this MDW also brings — rather fittingly — the effective date of legislation creating a postmortem right of publicity for New Yorkers. Following on the path charted by 25 other states including California, Tennessee and Indiana, with this new law, New York gives individuals and their estates the right to prevent unwanted or unauthorized commercial usage of one’s name, image and likeness for 40 years after death, while also creating significant monetization opportunities. Though I don’t think the New York legislature had this in mind, the law also has the effect of giving me vindication for the ‘B+’ I received from a law school professor (and outspoken opponent of a postmortem right of publicity in New York) on a paper in which I argued for the adoption of such legislation, merely because I did not persuade him otherwise.

Pivoting away from pettiness and back to my beach, here’s what I’m watching make waves this week:

As readers from last week will recall, we spent some time examining the notion of credibility. One week later, we’re witnessing what credibility (or lack thereof) hath wrought on our subjects. Bob Baffert? Banned from New York horseracing tracks (including the upcoming Belmont Stakes) and facing potential civil liability from bettors who claim that the horse that they had bet on should have won the race – not Baffert-trained and doping offender Medina Spirit. The weight of Elon Musk’s word in the cryptocurrency world? Apparently hugely significant as cryptocurrency markets have been in freefall mode since his latest comments about Bitcoin and Dogecoin. Mark Emmert and the NCAA? Predictably inert on the subject of name, image and likeness (NIL) laws, setting up July 1st as a looming question mark for whether and how college athletes will be able to reap the benefits of recently passed legislation in a handful of states, as a flurry of activity in the private sector seems to suggest that change is on the horizon – whether the NCAA likes it or not.

With the stage set, below is a sampling of the other stories I am highlighting this week:

Kentucky derby horseThe word of the week for this edition is “credibility.” In the courts of law and public opinion, credibility (or the quality of being trusted and believed in) is everything. Just ask famed Triple Crown horse trainer Bob Baffert, who is currently embroiled in a doping scandal over the 2021 Kentucky Derby winner, Medina Spirit—the fifth horse of Baffert’s to test positive for banned substances this year. Baffert served up wide-ranging explanations/conspiracy theories/excuses for the infraction, blaming “cancel culture,” then cough syrup-urine-soaked hay and most recently—and perhaps most plausibly—a daily ointment administered to the horse. Probably should have led with the ointment.

The impact of credibility was also on full display when avowed cryptophile Elon Musk hosted last week’s Saturday Night Live, he pulled the rug out from under meme cryptocurrency, Dogecoin, referring to it as a “hustle”—robbing it of the credibility that he himself had lent it—only to prop it back up by stating his company Space X would accept Dogecoin payment for trips to space.

The theme of credibility finally brings us to NCAA President, Mark Emmert, who has dragged his feet for years in the efforts to enable college athletes to receive compensation for the use of their names, images and likenesses (NIL), to the point that many are suspect of his credibility. Then came news (featured below) that Emmert is asking the NCAA to move forward with plans to approve new NIL rules in advance of July 1, the date on which several states’ NIL legislation comes into effect. What those rules might look like is unclear, but Emmert, who just received a five-year extension to his tenure as NCAA President, appears to be on the precipice of either salvaging or irretrievably losing his credibility.

What else grabbed my attention this week? Glad you asked…

Hope is in the air (not to mention copious amounts of tree pollen) here in New York – and that’s to say nothing of the Knicks’ hardwood resurgence, the Giants’ highly-acclaimed moves in last week’s NFL Draft and the Yankees’ bats and pitching arms coming to life. Indeed, with hard-won gains from mass vaccinations and other public health measures, New York City—once the epicenter of the coronavirus pandemic—is due to reopen and set the course to something resembling pre-pandemic life as restaurants, bars, comedy clubs, movie theatres, museums, stadiums and arenas return to full (albeit socially-distanced) capacity. We’ve come a long way and still have a ways to go, but there is much to look forward to.

(steps off soapbox)

With that, here’s what I am spotlighting this week:

First and foremost (and not to detract from Sir Anthony Hopkins—lest I incur the wrath of Hannibal Lecter himself), the late Chadwick Boseman should have won the Best Actor Oscar for his performance in Ma Rainey’s Black Bottom. Full stop. Indeed the award show, from the Boseman NFT included in attendees’ “swag bag” to moving the best actor category to the end of the night, was seemingly orchestrated as King T’challa’s win being a foregone conclusion—until it wasn’t. Credit to Boseman’s family and Hopkins for handling the news with grace, but this seemed like a letdown from the Academy.

Speaking of handling news with grace, let’s take stock of what’s on my radar this week:

Welcome back to the Spotlight: the blog with more longevity (but far less financial backing) than the European Super League (ESL). OK, maybe that’s not saying a lot, as the ill-fated collection of 10 of the most preeminent soccer clubs in Europe announced the formation of a new league that threatened to shake the time-honored foundations of the soccer world—only to have (as of this writing) eight clubs back-out within less than three days of such announcement. While a crisis appears to have been averted – at least for the time being – lawsuits amongst the ESL member clubs may be on the horizon. Until then, let’s get into what else is making headlines this week:

“Happy” Tax Day to those of you here in the United States celebrating/commiserating (noting of course that certain taxpayers have until May 17 to file their returns this year). Like taxes, this installment of the Spotlight ought not be evaded. I know that some of my readers are accountants, so let’s waste no time diving right into this week’s featured topics/stories:

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The Sports, Arts & Entertainment group at Foster Garvey provides full service legal representation on sports, entertainment and business matters, including handling transactions related to brand management, licensing, joint ventures, venture capital, private equity, technology, the Internet and new media.
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