Photo Credit: AJ Maestas & Jason Belzer (ADU)

Ryan Erdman is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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The National College Athletic Association (NCAA), a multi-billion-dollar corporation, serves as the dominant sanctioning organization for college sports in the United States. A defining feature of college sports is the amateurism that underlies all competition, where college athletes can only receive “education-related” compensation (i.e., tuition, school-supplies, room and board). To avoid ineligibility, these elite athletes cannot benefit from or be compensated for the use of their name, image, or likeness (“NIL”). However, the intellectual property rights, including the trademarks routinely protected by celebrities and professional athletes, may no longer be a concern to college athletes. Instead, they can be an exciting new opportunity for college athletes to prosper. ��

The NCAA Division I Council plans to on June 22^nd and 23^rd, 2021. All signs point to the group voting on the proposed NIL rules changes that would fundamentally alter athlete compensation. As noted, , college athletes cannot use their NIL to promote or endorse a product, even without compensation.

The movement for college athlete compensation, a controversial topic in light of the high revenue generated by college sports in the United States, has gained traction since California enacted the Fair Pay to Play Act in September 2019. Since then, 18 states are gearing up to place novel NIL laws into effect, some as soon as July 1, 2021. The legislation places immense pressure on the NCAA to enact its own uniform rule changes, as the integrity of college sports and recruiting could collapse with inequitable practices across state lines. As recently as June 19, 2021, NCAA president Mark Emmert his support for uniform NCAA policies by July 2021. The NCAA president was also to stress the need for federal laws despite any national NIL guidelines from the NCAA.

Of course, some still reject the notion that any changes are necessary, as compensation is seen to detract from the athletic and educational components central to athletic scholarships. Compensation is seen to not significantly impact most college athletes who are unlikely to receive several endorsement offers. Although the majority of athletes do not have national name brand equity, athletes will have local opportunities with smaller platforms. There are also concerns that the fast transition to the upcoming academic year leaves little room for oversight. A lack of education related to the legal process, rights and obligations has already given college athletes difficulties in the . Complications often arise when younger college athletes sign contracts with agents or when they “turn pro.” Major programs have already partnering with companies like Opendorse, which provides athletes with education on building and monetizing their brands.

But in a digital era, social media has undeniably shifted players’ balance of power in the field. Discussing NILs, the ABA has to social media as the “referee that moves the sticks of monetization.” College sports’ biggest stars are polarizing public figures, some with incredibly large followings. Even those who do not have millions of social media followers are set to cash in significantly when acting as influencers or brand ambassadors. For example, the University of Connecticut’s basketball star and AP Women’s Player of the Year, Paige Bueckers, with approximately 830,000 Instagram followers, is set to become one of the most influential college athletes on social media. Athletes with larger followings are to make anywhere from hundreds of thousands to millions of dollars in brand deals before their professional career even begins.

At a time when the NCAA is already under significant pressure, the recent unanimous Supreme Court in the antitrust case Alston v NCAA further pushes the narrative of expanded rights for college athletes. While not directly addressing the topic of NIL, the decision won by former student-athletes is a significant moment for defining amateurism in college sports, as the case dealt with restrictions placed by the NCAA on education-related benefits. As critical meetings approach and the July 1^st deadline continues to loom, the next few days could fundamentally change the model of amateurism adapted by the NCAA.

The post Name, Image, and Likeness: Fundamental Changes to Amateurism in College Sports on the Horizon appeared first on IPOsgoode.

As is the case with many questions of legality, the typical answer to each of the above questions is: “it depends”. Section 5 of Canada’s (the “Act”) stipulates that copyright persists in “every original literary, dramatic, musical and artistic work”. Dramatic work is defined as “any piece of recitation, choreographic work or mime, the scenic arrangement or acting form”. Arguably, some sports moves could be characterized as a choreographic work. For example, although the World Wrestling Federation has not claimed copyright protection over its wrestling matches, a reported last year suggests that the shows are in fact choreographed.

In 1991, in the case of FWS Joint Sports Claimants v Canada (Copyright Board)��(“FWS Joint Sports”)��1], the Federal Court of Appeal had to decide whether a decision by the Copyright Board to deny copyright over a football play was valid. The FWS argued that copyright protection should persist, however, the Board was of the view that, unlike dance, a sporting event is for the most part a random series of events. The Federal Court of Appeal agreed with the Board. The Court stated that a mere spectacle is not sufficient to attract copyright protection because it is inconsistent with the concept of choreography: “what transpires on the field is usually not what is planned, but something that is totally unpredictable.” The��Court elaborated by explaining that ballet choreography is copyrightable, stating that "[n]o one bets on the outcome of a performance of Swan Lake", as the��choreography is set and the performance is highly predictable. In the same decision, the Court also held that playbooks or game plans could be protected by copyright. Essentially, the decision suggests��that scripted moves are��protected under the Act.��However, in another interesting case, a U.S. court determined that the by yoga guru Bikram Choudhury were��not copyrightable. These cases cause and ultimately raise the following question: What exactly amounts to ‘choreography’ under the Act?

Looking at the array of , it is apparent that some are more likely to attract copyright protection than others. Beach volleyball, wheelchair Rugby or water polo are unlikely to��find��protection from��the Act even if a team's coaches and athletes meticulously scripted and recorded some of the main moves for the Games since the presence of direct opponents would inject significant unpredictability to��matches. Copyrightability aside, this unpredictability is what makes sports so exciting, it keeps fans glued to the TV screen and live observers gripping the edge of their seats.

Other sports are more choreographed and give the athlete greater control over his or her moves. Arguably, equestrian and gymnastics involve more��choreography than a scripted event like wrestling. Therefore, Canadian gymnast and equestrian ��may technically protect their routine under the Act. However, aside from being a copyrightable subject matter, the work in question also has to be ‘original’. In Canada, to qualify as being ‘original’, the work must have been independently created by the author, who had to use some skills and judgment when executing the work, as set out in in . It is unlikely that��Hugh Smith and Jessica Phoenix invented the moves in their routine. Rather, they likely borrowed and built on proven moves��used by��other athletes, who themselves borrowed from their predecessors,��and so on.

Given the strict criteria a work has to meet to qualify as a copyrightable work under the��Act, it is unlikely that any of the Games' athletes will try to classify��their glorious sports moves as intellectual property at this juncture. Hopefully, in keeping with the Games' motto - 'United We Play', all Pan Am and Parapan Am battles will be fought on the fields,��pools and tracks rather than in the court room.

Gosia Piasecka��is an��IPilogue Editor and a JD candidate at��Thompson Rivers University Faculty of Law.

[1] 1991 CarswellNat 157, [1992] 1 F.C. 487.

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