From the ballpark to the box office

More than a dozen years ago, student and alumni interest in the role law plays in sports prompted Professor Paul Weiler LL.M. '65 to introduce an HLS seminar called Sports and the Law. Since then, matters such as labor disputes between players and team owners and the impact of rules requiring equivalent college athletics programs for men and women students have been regular fare in Weiler's classroom.

Prof WeilerMore than a dozen years ago, student and alumni interest in the role law plays in sports prompted Professor Paul Weiler LL.M. ’65 to introduce an HLS seminar called Sports and the Law. Since then, matters such as labor disputes between players and team owners and the impact of rules requiring equivalent college athletics programs for men and women students have been regular fare in Weiler’s classroom.

Sports and the Law proved so popular that Weiler followed up with another new seminar, Entertainment, Media, and the Law. Now in its fifth year, this course explores First Amendment, intellectual property, contract, and international trade issues and a host of other legal matters germane to the business of movies, television, music, interactive media, and other popular pastimes.

The impact of Weiler’s courses can be gauged by the large number of HLS students who have gone on to important posts in entertainment and sports: some as lawyers, others as sports executives, independent producers, talent agents, and so on. A steady stream of alumni in the industry return to the School to speak to Weiler’s classes, or School-wide at the invitation of the student Committee on Sports and Entertainment Law.

For Weiler’s current students, the sports and entertainment industries raise intriguing legal questions and shed new light on the doctrines and concepts studied in basic law courses. Both worlds “regularly churn up new legal cases and controversies that spark debate within the industry, in courts, and in Congress,” Weiler says.

Prof WeilerWhen he launched Sports and the Law, Weiler discovered it was an easy task to gather course material-sports stories fielded by the media daily had plenty of legal dimensions for students to examine. There was no good law textbook available, however, so he went ahead and coauthored one: Cases, Materials and Problems on Sports and the Law, published in 1993 by West, with a second edition due this year. Course preparation proved just as pleasant for Entertainment, Media, and the Law, for which he clipped articles from trade and newsstand publications like Billboard and Vanity Fair, and attended movies, concerts, and plays. When he discovered the same gap in serious entertainment law coverage, again he wrote the book: Entertainment, Media, and the Law, published by West in 1997.

Although he covers sports and entertainment in two separate courses, sports is usually regarded as part of the entertainment industry, which is perhaps ten times larger than the entire sports world, Weiler says. “The definition of entertainment, to include all fun and leisure activities, encompasses sporting events, movies, broadcasting, book publishing, even gambling and going to theme parks,” he explains, as well as new media, a fast-growing offshoot.

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Aiming a kick at soccer salary caps. "To avoid scrutiny under the Sherman Act, a recently formed U.S. sports venture, Major League Soccer (MLS), is apparently structured as a 'single entity'; all soccer franchises are owned by the league, which in turn is owned by investor-operators. This structure is targeted especially at the players market, with each player having to sign a Standard Player Agreement and negotiate contract terms with a single MLS department. In 1997, the players filed a class action antitrust suit challenging the MLS salary cap and other unilaterally created restraints in the players market." - P.W.

“From the industry’s perspective, there’s considerable overlap between sports and entertainment,” Weiler says. Many sports stars pursue lucrative TV, movie, and book deals, for example. But of greater significance, he notes, is the trend for huge entertainment conglomerates to purchase sports franchises in order to broadcast the games on their cable and network channels. Time Warner owns the Atlanta Hawks [basketball] and the Atlanta Braves [baseball], for example. Disney owns the Mighty Ducks [hockey] and the Anaheim Angels [baseball]. And Rupert Murdoch’s Fox network wants the L.A. Dodgers [baseball]. “The biggest money in sports,” Weiler says, “are the revenues from broadcasting, not ticket sales.”

From a legal and public policy perspective, however, qualitative differences exist between the sports and entertainment realms. In sports, owing to the nature of competition, the legal focus is on “establishing a level playing field inside and outside of the game,” through scrutiny by legislators, courts, and administrative agencies. In entertainment, the focus is on “speech for fun and profit,” Weiler says. The goal is to protect creative speech from undue legal intrusion on the one hand, and on the other to control the host of ways in which law helps define and shape speech products, whether by creating intellectual property in a performing artist’s work, for example, or by allocating space in the electromagnetic spectrum to broadcasters.

Weiler compares contract negotiations for a Hollywood actor versus a Major League baseball player. In the entertainment world, “each studio wants to monopolize the best talent, and would love to make every Oscar-winning, box-office hit.” Contracts generally cover a one-time project-to do a movie, write a book, make a record. Major stars command multimillion-dollar fees and even garner profit percentages for a single project.

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Clinton's cameo. "Media giant Time Warner owns Warner Bros., the Hollywood studio that made the movie Contact. It also owns CNN and its libraries of news footage, which enabled Contact filmmakers to take CNN coverage of a speech President Clinton made about discoveries suggesting possible life on Mars, and manipulate those images to match the movie's premise by using digital technology. The result: an unwitting cameo by Clinton in a sci-fi movie about an international mission to make first contact with aliens. Clinton's chief counsel wrote a letter to Warner warning them not to do this again." -P.W.

In the world of sports, on the other hand, “the goal is to distribute talented players evenly among the various teams so that they are all comparatively equal on the field.” This has generated the reserve system (meaning a player can negotiate with only a single team), restraints on free agency, the rookie draft, and salary caps-all of which influence the terms of what are often multi-year player contracts. And all of which, Weiler says, “would be considered improper and illegal practices in the movie and television studio system.”

As his new book emphasizes, entertainment, including sports, has become an international industry, the segment of the economy in which the United States has its biggest competitive advantage and generates its largest trade surplus. “Free trade in entertainment products is wonderful from our perspective,” Weiler says, “because we win.” He offers the examples of the recent blockbuster movie Titanic, for which international box-office profits have already exceeded the huge domestic take, and “Baywatch,” the world’s most popular TV program.

Yet America’s entertainment clout troubles those countries that regard movies and TV programs shown to citizens to have a crucial impact on national culture and identity. “Canada, so close, feels this very much,” says Weiler, a native of Canada. “As does Europe, especially France.” The cultural exemption developed in the 1986 Canada/U.S. free trade agreement, later extended to NAFTA, “allows countries to impose a restraint of trade on cultural products that isn’t allowed on hardware products.” In the Uruguay round of the GATT treaty talks, he notes, this cultural exemption became an even bigger issue. It was already included with regard to movies. Then the Europeans led by the French pushed for the exemption to be extended to TV. “It looked like it might be a deal breaker,” Weiler says, but eventually the exemption was incorporated in the final agreement.

Students are drawn to Weiler’s courses not only for their engaging content, but also to learn more about the myriad professional opportunities in the sports and entertainment worlds. Weiler points out sports league commissioners are often former lawyers or judges, and senior executives of entertainment conglomerates are often lawyers. “But whether one works as a lawyer-litigator, or as an executive in a league or media company, you do not experience a client coming in and saying, ‘I am a publicity rights problem’ or ‘I am a contract interpretation problem.’ Rather, clients present their personal and business dilemmas and ask, ‘What do I do?’ What is crucial, then, is understanding every pertinent aspect of the legal system as it applies to this real-world industry with its distinctive set of problems.” And that is a key virtue of Weiler’s popular courses.