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Welcome back, and in case you’ve been living under a rock (unless it’s a "30 Rock"), two of the biggest sporting events will command millions upon millions of eyeballs for NBC this weekend with the Winter Olympics (already in full swing in Beijing) and the National Football League’s (NFL) Super Bowl LVI due to kick-off on Sunday between the Cincinnati Bengals and Los Angeles Rams (and Madison Avenue Agencies). However, at least for the time being, both Olympic and NFL news have largely been focused on matters taking place “outside the lines.” At the Olympics, a medal ceremony in figure skating was postponed for legal reasons – namely a member of the purported gold-medal winning Russian Olympic Committee (ROC) team having a suspected positive doping test. Already on thin ice for widespread doping violations, one wonders whether ROC is once again up to its old tricks or whether this is an isolated incident by one triple (k)lutz. Or perhaps, whether the figure skating team will be heralded as mettlesome or admonished as medal-less. In the NFL, former Miami Dolphins coach Brian Flores’ lawsuit alleging discriminatory hiring practices remains a hot button topic. Just this past week, we learned of Commissioner Roger Goodell voicing displeasure with the NFL’s lack of diversity in coaching and front office positions, while two of the NFL’s co-defendant teams, the Miami Dolphins and Houston Texans hired minority coaches Mike McDaniel and Lovie Smith, respectively. Meanwhile, media mogul Byron Allen is rumored to be preparing a bid to buy the Denver Broncos (another co-defendant), and in so doing, make the Broncos the first Black-owned NFL team. While those moves – calculated or not – may undermine Flores’ case, in just two weeks, Flores’ taking a stand has seemingly sparked soul-searching, for which Flores should be commended. From Olympic torches and stadium lights, let’s jump into the "Spotlight."

    • How many comedians does it take to have streaming services pay joke-writing royalties just as they do songwriting royalties? With the Estates of George Carlin and Robin Williams, together with a handful of living court jesters suing Pandora, we may yet find out.
    • Mega singer-songwriter, Sia joins forces with a plant-based pet food company on a mission to tell traditional meat-based pet foods, “see ya.”
    • Although Amazon is far from an incumbent in the sports broadcasting space, in Al Michaels, they may be bringing aboard an industry veteran to handle its Thursday Night Football broadcasts. Waiting in the wings if Michaels doesn’t get the gig? Al-exa.
    • A digital plot of land in the metaverse neighboring Snoop Dogg’s sold for the low price of $450,000. Fitting that with respect to the metaverse, what some view as an investment, others see as money going “up in smoke.”

Welcome back to the Spotlight and oh-me, oh-my, do we have a full slate of developments in the National Football League (NFL) – and that’s to say nothing of what happened on the field, with the Cincinnati Bengals and Los Angeles Rams battling their way into Super Bowl LVI. First, seven-time Super Bowl champion (and two-time Super Bowl runner-up to my New York Football Giants) quarterback Tom Brady was reported to have retired, several days before his official announcement and the vesting of his $15 million signing bonus. While he could well afford to have done so, the all-time great was not about to leave that money on the table. A few days later, the Washington Football Team (formerly known as the Washington Red…actions) debut their new name and branding as the Washington Commanders, and at least so far, appear to have avoided the same plight that the Cleveland Guardians baseball team met when changing their name several months ago. Kudos to the Commanders’ trademark attorneys there. But overshadowing all of that was former Miami Dolphins’ head coach, Brian Flores, a Black man, filing a potential landmark lawsuit for himself and an uncertified class action against the NFL and several named member clubs (unfortunately including the aforementioned New York Football Giants) alleging, amongst other things, pervasive racial discrimination in the NFL’s hiring process – in spite of the NFL’s “Rooney Rule,” requiring teams to conduct interviews with minority coaching candidates. Time will tell how this case will shake out, what other details will be revealed (already we’ve learned about alleged payments to coaches for losing football games in an effort to improve NFL draft position,) and how much Flores will be able to bring about lasting change through this lawsuit. Rest assured, the “Spotlight” has you covered – but until then, check out what else is on tap this week:

    • Former NBA Player J.R. Smith, who made headlines last year after retiring from basketball to enroll in, and play golf competitively at North Carolina A&T, signs with a sports agency to position himself for name, image and likeness opportunities, becoming the first former professional athlete to enter into such a deal. Whoever said it’s too late to relive your glory days?
    • Justin Bieber became the latest entertainer to buy a Bored Ape NFT, laying out an astonishing $1.29 million (500 Ethereum tokens). Far be it from me to question the behind the scenes deal making, but shouldn’t the Apes be paying for the entertainers on account of being bored?
    • The Joe Rogan - Neil Young et al. Spotify kerfuffle continues for a second week with more artists demanding that their music be pulled from the streaming platform over COVID-19 vaccine misinformation. We will see whether Spotify remains immune from loss of content. 
Super Bowl

With the Super Bowl coming up, it is important for brands looking to capitalize on football-themed promotions to remember that the terms “Super Bowl” and “Super Sunday” are registered trademarks guarded by the National Football League (NFL) more closely than a shutdown corner on a wide receiver.

Because there is a fine line between permissible fair uses of Super Bowl and Super Sunday (e.g., in on-air banter and news and sports reports) and impermissible promotional uses that may infringe the NFL’s trademark, here are some guidelines to keep you from going “offsides:”

After a compelling weekend of playoff football in the NFL, in which all four of the matchups came down to the final play of each game (serving to drive even more eyeballs to the NFL in what has been a fruitful season for the NFL), it’s only fitting that I write this piece against my weekly submission deadline. Well, if Kansas City Chiefs quarterback Patrick Mahomes can engineer a bananas game-tying drive in thirteen seconds, surely I am up for the task here. Apples to oranges comparison? Yes! But as someone who wasn’t allowed to play contact sports growing up (and with my diminutive frame, I might not be writing today had I been) I’m turning lemons into lemonade (and also plum-surprised at the amount of fruit-related idioms I’m using). Without further ado or meandering thoughts, let’s check out this week’s peachy Spotlight.

    • Rock and Roll Hall of Famer, Neil Young’s song catalog was removed from Spotify after a public ultimatum over Spotify’s providing a platform for COVID-19 misinformation in its wildly popular podcast, “The Joe Rogan Experience.” A cynic might point to the fact that Spotify has a $100 million contract with Mr. Rogan. A realist would agree.
    • Picasso NFTs of ceramic works are about to make their debut, with a starting price of a misplaced arm and a leg.
    • Rock legend Bob Dylan and R&B singer John Legend (no relation) strike gold selling their respective music copyrights to companies banking on long term royalties.
    • Speaking of banks and royalty, the Duke and Duchess of Sussex, Harry and Meghan find themselves being used - without authorization - for crypto investments.

Welcome to a special quarantine edition of the "Spotlight." When I set out to get more “exposure” for the "Spotlight" this year, this was not exactly what I had in mind. But hey – we play the cards that we are dealt. At least I can take solace in the fact that I did as well in the Australian Open Tennis Tournament as did 20-time major champion Novak Djokovic, who was eventually deported from Australia this past week for failing to comply with Australian COVID-19 vaccination requirements for international travelers. Credit to Djokovic, however, for lasting longer on Australian soil than the Dallas Cowboys on their home turf in the playoffs. Kidding aside, I am, like many of us (presumably Djokovic as well) growing weary of the pandemic as we enter its third year. With that in mind, as a sort of temporary escape from the physical world, I bring you this week’s metaverse-centric Spotlight. 

    • In its deal to acquire gaming giant Activision Blizzard, Microsoft placed a $68.7 billion bet that gamers are more likely to move into the metaverse than out of their parents’ basements.
    • Keeping up with the times, the NFL is offering Superbowl digital collectible ticket stubs in the form of NFTs, making it both highly implausible and physically impossible that I will be able to get my hands on tickets to this year’s contest.
    • Luxury fashion house Hermés goes for the purse of ‘MetaBirkins’ NFT creator Mason Rothschild, in a contentious lawsuit over the alleged infringement by Rothschild’s digital creations with respect to the intellectual property in Hermés’ physical Birkin handbags. The outcome of the case is likely to provide important answers regarding the extent to which digital manifestations of physical goods are infringing uses or protected expressions.

Welcome back to another week of the Sports & Entertainment Spotlight. Sadly, for the third week running (first legendary NFL coach and broadcaster John Madden, then beloved Golden Girl, Betty White), the S&E world is coming to grips with the passing of another indelible figure of their respective crafts — this time comedian, “America’s Dad” for the ‘80s and ‘90s (and by all accounts a great person), Bob Saget. It always strikes me as interesting that one can feel such a sense of loss in the death of someone whom they have never actually met. In a way, however, each reached out and forged their own relationships with their audience, seeded memories and became a part of the audience’s life story, though it was never a part of theirs. To paraphrase John Madden himself in his eulogy of his late friend and broadcasting partner Pat Summerall, you can determine a person’s life accomplishments in a field by whether you can still tell the history of that field without reference to that person. By that measure, Madden, White and Saget all had outsized accomplishments in spades. For that, we owe them all a debt of gratitude. For my part, I owe you a debt of knowledge that I intend to pay back with interest in this week’s Spotlight.

    • The New York Giants and New York Jets football teams were sued by a fan challenging their right to be called “New York” teams even though they play home games in East Rutherford, NJ. The plaintiff argues that if they are called “New York” they should have to play in New York. Though if recent history is a guide, I’m not so sure us New Yorkers would want that.
    • Sticking with the Empire State, the New York Times is acquiring sports media website The Athletic for $500 million, putting the valuation of the Spotlight at somewhere between zero and $500 million.
    • Highlighting the pitfalls of endorsements of cryptocurrencies, particularly on social media, Kim Kardashian and Floyd “Money” Mayweather are among a few high-profile celebrities facing a lawsuit for pushing a “pump-and-dump” scam. Call me crazy, but I think having the nickname “Money” qualifies you to make sound investment advice.
    • John Legend gives the “Green Light” for his songwriting catalog to “Get Lifted” in yet another private equity investment in music copyrights.

Welcome back to the “Sports & Entertainment Spotlight,” where all are permitted entry – even Novak Djokovic. First and foremost, allow me to be among the last to wish you a Happy New Year 2022! Seriously folks, like birthdays, you can’t go wishing people a happy New Year more than one week after the fact — it’s just bad form. At any rate, less than one week into the year and there are already stories a-plenty. Former Tampa Bay Buccaneers Wide Receiver Antonio Brown had his contract terminated for taking off  both his uniform and from MetLife Stadium in the middle of a game. Several fans suffered non-life threatening injuries falling from the stands after a railing collapsed at the Washington Football Team’s (WFT) FedEx Field, leading the appropriately-named Philadelphia Eagles Quarterback Jalen Hurts calling for the National Football League (NFL) to act to prevent such a near-tragic event — that almost injured Hurts himself — from happening again. The Grammy Awards have been postponed due to the ubiquitous Omicron variant (luckily still not quite as infectious as Adele’s singing voice).  And the aforementioned Men’s Tennis star Novak Djokovic gets denied from entering the Australian border to compete in the Australian Open for failing to substantiate an exemption from COVID-19 vaccination (like tennis scoring itself, Djokovic and Australia’s mutual love is zero).

But wait, there’s more…

    • Less than a year after Saturday Night Live parodied his song, “Without Me” to catchily explain non-fungible tokens (NFTs), rapper Eminem makes a substantial splash in the NFT marketplace, including a nearly $500K purchase on a Bored Ape NFT.
    • Just in time for “Dry January,” Katy Perry unveils a line of non-alcoholic aperitifs. Wonder whether at least one of the flavors will be “cherry chapstick.”
    • In music news, although streaming is bolstering the industry, rapper T-Pain points out that a measly stream is hardly enough to “Buy U a Drank.”   

Welcome back to the final "Sports & Entertainment Spotlight" of 2021 (cue the fireworks, standing ovations, Champagne-popping, etc.)!  If there’s one thing I have learned about New Year’s Eve in my 30-something trips around the sun, it’s that the pomp and circumstance (I feel like that would be a great name for a hip-hop duo) never quite live up to the hype. Sure, watching the ball drop in Times Square sounds great in theory until you realize you’re standing around in the cold for hours on end, without a restroom in sight, while listening to mediocre lip-synched performances (that’s to say nothing of the additional challenges from the pandemic). For a truly enjoyable evening, low expectations are the name of the game. So, it is in that vein that I write this entry.  Were you hoping for a countdown of the top sports and entertainment law stories of 2021? I hope not! Perhaps some sort of retrospective of notable events? Not going to happen! An Auld Lang Syne-themed post along the same lines as last week’s "Jingle Bells" rendition? Surely you jest! No, my friends, this year I will keep it low-key and leave you with gratitude for your readership in 2021 and best wishes for a happy and healthy New Year.

With extra creative juices stored up for 2022, maybe I’ll try something a little more ambitious for next NYE. Whatever it is, at least I’ll know that I will have set the bar low…

Happy holidays! Whether you light a menorah (like myself), a kinara or a tree, I’m glad that you decided to make the “Spotlight” part of your holiday season. In the spirit of this time of year, I am, despite my better judgment, obliged to start off with (public domain) holiday cheer to the tune of “Jingle Bells.” Hey, if Irving Berlin and Mel Torme can do it, why not this mensch? So, without further ado…

N-I-L, N-F-L, so much more to read.
I appreciate your visit whether you click or scroll top speed.
Deion lures a future pro,
To play ball at Jackson State,
O’er larger programs he’ll go,
And build his brand in school while laughing to the bank – ha ha ha!

Then there’s the NFL,
Seeing COVID cases rise,
Instead of withholding salaries and cancelling games,
Moving them to Tuesday night!

Oh, and Sean John sells,
Landmark brand o’ hip hop apparels,
Back to P. Diddy,
For a tenth of what he originally sold it for --
he must feel giddy - tee-hee-hee!

In the meantime,
Major League Baseball challenged on its status as antitrust exempt,
Will I find a rhyme,
Or will I be verklempt?

And NFTs, time shall tell,
Whether they’re a fleeting fad,
For the music industry they may be suited well,
So read-up, you’ll be glad!

Any tips or stories for the Spotlight?
Don’t hesitate to reach out and say!
Oh what fun it was to write
this Spotlight for today.

Welcome back, thanks for stopping by, and kindly take your shoes off at the front door. We begin this week’s installment of the “Spotlight” on a somber note. I would like to extend my deepest condolences to those (like my wife, who greeted me in tears the other night) still reeling from the (SPOILER ALERT) Peloton-induced demise of Mr. Big (played by Christopher Noth) in the “Sex and The City” (SATC) epilogue series, “And Just Like That…” Now, I do not claim to know much about SATC, but I know a thing or two about product placements, branding and marketing. My initial reaction on hearing the news from my wife (actually, my second reaction, after “WHO?!”), was one of surprise: either the production did not clear the usage of Peloton cycling equipment and branding in the show, or that someone at Peloton must have agreed to have the brand featured in the show ignorant to the context in which it might be depicted. Seemingly, no matter how you sliced it, it was another public relations embarrassment for Peloton after a product recall earlier this year and a controversial 2019 holiday advertisement (subsequently lampooned by Ryan Reynolds’ Aviator gin brand). Wall Street agreed, as the negative depiction triggered a sell off the very next day. Whether or not Peloton’s next move was actually premeditated or (as reported) a face-saving viral moment that came together in a whirlwind, it amounted to some shrewd marketing — this time with Ryan Reynolds and his marketing agency, Maximum Effort coming to the rescue with ad featuring a very much alive Christopher Noth. Will that be enough to sway public perception (and stock prices, which rebounded after the ad was released)? In light of unflattering late breaking news regarding Noth, probably not.

For now, here’s a glimpse of some other stories to cycle through in this week’s “Spotlight”:

    • For some time, the fledgling NIL era in college athletes has been marked by endorsement deals with regional fast-food chains and off-campus businesses. Now, multibillion-dollar brands Bose, Nike and Gatorade are entering the fray, giving me yet another reason I want to go back to college (though I would still need to work on that “athletic” part…).
    • James Brown’s estate sold his song catalogue for a cool $90 million, undoubtedly making his heirs exclaim, “I Feel Good.” Meanwhile, Bruce Springsteen sold his catalogue of songs and recordings for a reported ho-hum of $500 million. Springsteen could not be reached for comment as he was too busy “Dancing in the Dark.”
    • Nike and Adidas each jumped feet first into the metaverse with the former acquiring an NFT digital shoe company and the latter buying a “plot” in the Sandbox metaverse. Just in time for the holidays for you to stuff in your digital stockings.

Thanks for stopping by – see you next week!  

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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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