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  • Posts by Joshua Bloomgarden

    He represents a wide array of entrepreneurs, investors, entertainers, athletes, producers, writers, media production and distribution companies and emerging and established CPG brands and businesses on intellectual ...

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…

    • Model Ashley Graham’s hair removal partnership with Harry’s Inc. highlights how more and more brands are giving celebrities a more integral role in product development, creative and financials, going beyond the more run-of-the-mill ambassador/influencer relationships. Smooth move.
    • Live sports streaming service DAZN inks a content development deal with world-renowned footballer Ronaldo. More eyeballs is clearly the goooooooooooooooaaaaaaalllllll!
    • Jay-Z once again proves he’s not just a businessman, "he’s a business, man," by making preparations to launch his own film and TV production company.
    • Carole Baskin (“famed” from Netflix’s hit show “Tiger King”) is the latest “cool cat” to look to cash in on the NFT craze – which has appeared to have cooled down in recent months.

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:

    • Amidst the pandemic-driven boom in the in-home fitness category, Jay-Z and MLB All-Star Adrian Gonzalez are among those investing in a company that makes water-powered rowers. Roc Nation may yet become Row Nation.
    • Turner Sports snags NHL media rights from incumbent broadcasters, while Amazon solidifies its standing in the sports landscape, getting exclusive rights to NFL Thursday Night Football starting next year. Meanwhile, I plan on making corresponding long-term commitments with my couch.
    • Indianapolis Colts’ rookie defensive end, Kwity Paye, leverages the power of NFTs to do good for his sports and social justice foundation.
    • More state legislatures move forward with name, image and likeness legislation, while the NCAA’s predictable silence is deafening. My guess is that this ends up getting resolved with federal legislation.

Thanks for reading, and Happy Mother’s Day to all the moms out there!

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:

    • Kobe Bryant's estate is moving on from its sneaker deal with Nike and setting out for a new brand suitor in a move without parallel in professional basketball and sneaker endorsement history. Whichever brand lands the endorsement deal is certain to create a watermark in the marketing and valuation of deceased legends’ sneaker brands.
    • Staying on the topic of footwear, in a story that highlights the increasing intersection of NFTs and sports and entertainment professional basketball player, Wilson Chandler has entered into the first-of-its-kind virtual sneaker endorsement deal in which the sneakers will be sold as NFTs for use in the virtual “metaverse.” Great. I have a hard enough time figuring out my physical shoe size – now I need to calculate how many pixels I need?!
    • In a move to appeal to a younger generation of golf fans, the Professional Golf Association (PGA) is rolling out a bonus system for its players that is based on the buzz they can generate for the sport. Perhaps Happy Gilmore was a generation too early.
    • Gonzaga University’s NCAA tournament hero Jalen Suggs quickly shed the NCAA-imposed cloak of amateurism and launched his own NFT of his Final Four buzzer beater, game-winning shot. Meanwhile, for those student athletes who remain subject to NCAA rules, the patchwork of state legislation and continued NCAA resistance to change makes it seems more and more likely that Congress will need to act to empower such athletes to profit from endorsements during their collegiate career.

“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:

    • Jaleel WhiteWith increased public acceptance for, and state legalization of, adult-use cannabis, new endorsement and branding opportunities have emerged for celebrities on which to cash in. Jaleel White of Family Matters’ Steve Urkel-fame is launching his own cannabis brand called “Purple Urkle.”…High-dee ho, Winslows!
    • Fresh off his historic 2021 Masters Tournament victory, Hideki Matsuyama looks poised to profit off of massive endorsement deals that will make his $2.1 million tournament winnings pale in comparison.
    • Art collective MSCHF and Nike found their better angels and settled their dispute over the so-called “Satan Shoes” created in collaboration with country singer/rapper, Lil Nas X. The reported settlement appeared to be more driven by PR considerations than financial ones.
    • A venture-capital backed platform aims to create a crypto-token-based market to trade on the reputation and popularity of prominent influencers, celebrities, athletes and entertainers – many of whom have not granted permission to use their name, images and likenesses. This could get interesting.
    • Khloé Kardashian uses her right of publicity as a sword to demand takedowns of off-brand photographs.

Thanks for your readership! Hope to see you back next week.

Happy Thursday and a big congratulations to the Stanford Cardinal and the Baylor Bears on their respective NCAA Women’s and Men’s Basketball Tournament wins (the latter of which helped yours truly place second in our Firm’s Bracket pool). Perhaps it also counts for something that my alma mater Wisconsin Badgers were defeated by the eventual champions, but I digress…

At any rate, here are the highlights from this week’s Spotlight:

    • The latest chapter in the unfolding saga surrounding sexual misconduct allegations against all-pro Houston Texans quarterback, Deshaun Watson, has Nike among several brands putting the brand partnership on hold pending further investigation and legal process.
    • Clorox cleans up with several NBA team partnerships aimed at building fan trust and security in the midst of the still-raging pandemic as spectators gradually return to arenas (and other venues) in parts of the country.
    • Oldies rock stars continue to follow the trend of selling off their song catalogues for more than just a few dollars “Blowing in the Wind.”
    • Retail financial trading platform, Robinhood, gets told to “check itself” over the use of rapper and actor, Ice Cube’s image on its website.
    • Brothers and former NFL quarterback, Eli and Peyton Manning, are the latest athletes looking to cash in on the NFT craze, though after a wild March for NFTs, there appear to be signs of the air being let out of the NFT market.  

Thanks for reading – see you back here next week.

March is over, a new month begins.
Congrats on the Final Four to the Zags, Cougars, Bears and Bruins.

Opening Day is upon us, it’s time to play ball,
And battle for the World Series title deep into the fall.

Enough setting the stage, let’s get on with the show,
Here’s what’s going on this week to put you in the know:

A devilish sneaker collaboration leads to a lawsuit by Nike,
with allegations that its brand was tarnished and that consumer confusion is likely.

NFTs as collectibles remain one of the hottest items in town,
as the creators of NBA Top Shot close a huge financing round.

Apple throws it support behind a DIY music distribution up-start
That enables creators to shun labels and retain ownership of their art.

Against the NCAA, student-athletes took their case to the Supreme Court,
And Justices tipped their hands to show the NCAA skepticism and the athletes support.

Will be back next week with my usual pithy prose,
If you guessed this was April Fools’ hijinks, you hit it right on the nose.

Happy Spring! After an especially long winter throughout several parts of the country, it is a welcome sight to see many of the familiar hallmarks of this time of year (even as our daily lives remain markedly different from this time two years ago): MLB Spring Training, Awards season and busted brackets (thank you, Oral Roberts).Without further ado, below is a sampling of the latest for you to tuck away in your bonnet:

    • Notwithstanding the successes of the NCAA Men’s and Women’s Basketball Tournaments to this point, the NCAA and its Commissioner, Mark Emmert, have had a full-court press put on them while in the limelight of the tourneys. For decades, the relaxation or roll-back of amateurism rules in collegiate athletics has at times seemed to be a chimera, but given the prominent student-athlete activism proliferating across social media, and more states enacting measures that claw back publicity rights for student athletes, we appear to be close to (if not at) a tipping point.
    • For some time we’ve been reading about Special Purpose Acquisition Companies (SPACs) and just how popular they’ve become among athletes and entertainers, and retail investors looking to ride the wave of increased democratization during the pandemic – but now we see the data and the trend is astronomical, with fundraising up 2,000 percent since this time last year. While there is no sign of slowing down, athletes, entertainers and investors alike are well advised not to lose sight of the investment risk involved.
    • Non-fungible tokens (NFTs), the other asset that has been red hot in the increased digitization of the world wrought by the pandemic, produced another eyebrow-raising first – the sale of an NFT house for half a million dollars. At that price, I would make my digital guests take off their NFT shoes at the front door.

Welcome back and to those of you who celebrated a belated Happy St. Patrick’s Day. While I can’t promise that this installment of the Spotlight will be the “hair of the dog,” it should still make for a great accompaniment with your coffee(s). Without further ado, here is a sampling of what I found at the other end of the rainbow:

    • Former NFL greats (and momentary draft day teammates) Eli Manning and LaDainian Tomlinson are the latest big name athletes to get into the SPAC game, backing a $200 million blank check company in its pursuit of a consumer-oriented company that can leverage “influence driven purchases” and “talent as brands.”
    • Music streaming service SoundCloud appears to be experimenting with a new per-stream royalty structure, marking a deviation from the model favored by streaming giants Apple Music and Spotify. Pay-per-stream certainly seems like it could go a long way to provide transparency and allow more artists to garner meaningful streaming income.
    • The Non-fungible Token (NFT) market remains hot, with more influencers and institutional players adapting to take advantage of the new crypto opportunities in the sports, arts and entertainment world, while others sound the alarm on the viability of NFTs as an asset. Only time will tell whether we are witnessing a passing fad or a sign of things to come.
    • After a two-year hiatus because of the COVID-19 pandemic, the National Collegiate Athletic Association (NCAA) Men’s and Women’s Basketball Tournaments will be (fingers crossed) set in motion, and due to recent legislative developments in New Mexico and Maryland, it appears that at least some of the players and their fellow collegiate athletes will soon be able to be compensated for the use of their name, image and likeness (NIL). Until the ever-elusive federal legislation is passed, collegiate athletes (and the NCAA) will have to deal with a patchwork of laws and regulations in the near term.

Welcome back to another week in the Spotlight. It is truly remarkable to think that it has (already? only?) been one year since the World Health Organization’s declaration of the COVID-19 pandemic, shuttering sports arenas, film sets, theatres, concert venues and disrupting people’s way of life – that of course is nothing in comparison to the human toll of the disease. Still, the beat goes on…

At any rate, below is a sampling of some developments that caught my attention this week:

    • Non-Fungible Tokens (NFTs) continue to gain traction in the sports, entertainment and art world, with one notableheadline that Twitter CEO and Founder Jack Dorsey is making waves by putting the world’s first-ever tweet (his own) up for auction as an NFT—current bid stands at $2.5 million. The jury remains out on bidding for last week’s very first Sports & Entertainment Spotlight.
    • Another emerging trend is that a growing number of so-called blank check companies or Special Purpose Acquisition Companies (SPACs) are hitching to celebrities’ stars and grabbing headlines for taking private companies public in multibillion dollar transactions. Consequently, regulators’ warnings to speculative retail investors looking to get in on the action are to focus on the associated fundamentals – not the number of social media followers.
    • Lastly, it appears that the next time a social media personality/influencer plugs a skincare routine, a new piece of workout equipment or even the latest entrant into the chicken sandwich war, they may be doing so as a guild or union member. Whether and how that will affect brands’ marketing strategies remains to be seen, but it will be interesting to watch it play out. Now if you’d excuse me, it’s time for my seven-day union break.

Greetings, and welcome to the inaugural edition of the Sports & Entertainment Spotlight series! The product of my unrequited desire for human interaction nearly one year into the COVID-19 pandemic, this weekly feature will endeavor to bring readers up to speed on new, noteworthy and/or cutting-edge business and legal developments in the sports and entertainment industries. I hope you find it informative and fascinating, as I certainly do. If there are any topics you’d like to read more about, please feel free to let me know.

This week’s installment spotlights some noteworthy trends and developments, including:

    • The anatomy of a successful branding and investment empire;
    • The relatively nascent world of non-fungible tokens (NFTs) and the exciting opportunities for athletes, entertainers and brands to monetize digital assets through the use of blockchain technology;
    • The hot market for music copyright acquisitions; and
    • The latest legislative proposals that move collegiate athletes one step closer to having the right to profit off of name, image and likeness (NIL) rights while many athletic programs remain on the sidelines.

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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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