The World of Sports and Entertainment Law
Harvard Law Professor Paul Weiler discusses sports and entertainment law, athletes as role models, and Harvard Law School's role in the history of American football.
Is there a difference between sports law and entertainment law? Aren’t sports just a form of entertainment?
In some respects they are the same, but in another respect they are different. A key similarity is that in both cases you’re teaching about how the law shapes an industry. And it’s a wide range of law. I assumed the basic law governing the entertainment industry was intellectual property law. But I learned there’s so much else that comes into play, like constitutional law and corporate law. And intellectual property is actually a key feature of my sports course because it was baseball players, among others, who created an intellectual property interest in publicity rights. The further similarity is that now the sports industry has become more and more just a branch of the entertainment industry. It’s part of the big conglomerates like AOL Time Warner running the Braves and Disney/ABC running the Angels. But there is this fundamental difference in terms of the nature of the product and the industry. The legal policy challenges posed are captured in the title of my books: Leveling the Playing Field is about how the law can make sports better for fans, and the book that I’m now working on, Speaking for Fun and Profit, is about what the law must do to enhance our world of entertainment. And those phrases, “leveling the playing field” on one side and “speaking for fun and profit” on the other, indicate that there are different challenges posed to public policy by those two industries, however much they are the same.
It seems that athletes are criticized for not being good role models, but actors are not.
It’s true. People hardly cared that Robert Downey had been arrested and convicted so many times for drug use. No one would ever have dreamed of saying we need a commissioner of television to take Downey out of Ally McBeal. And yet, the immediate reaction as soon as an athlete is found to be in possession of even our least dangerous substance, marijuana, is that he or she is immediately suspended. I think that’s because athletes by comparison really are judged as role models. When we watch Robert Downey, for example, or listen to musicians, we’re actually caught up in the work, not in the particular individual. Whereas when we watch Michael Jordan or Tiger Woods, we are caught up in that individual, not just in the sport.
Athletes make the vast majority of the money earned from the publicity rights market. Mel Gibson or Tom Hanks or Julia Roberts make $20 million to $25 million as the basic fee for just one of their movies—far more than the full-season salary of most athletes. But actors make just a tiny, tiny fraction of the $50 million or so a year that Tiger or Michael makes off the golf course or basketball court. The big companies sign up such star athletes because they know if Tiger or Michael is identified with their product, it’s going to enhance the likelihood that the consumer will buy it. So if the athletes are making so much money by selling their identity as something that really influences people’s behavior, then they cannot really say, “Well it’s unfair to be disciplining us if the kind of behavior we’re influencing is very illegal behavior.”
Speaking of publicity rights, should college athletes get money when the school sells clothing adorned with their name or picture?
I think it’s a complex issue. Here is the best argument that can be made against giving them the money: Student athletes, especially women, are the principal beneficiaries of the current rule, which says that student athletes don’t sell their merchandising rights while they’re in college; instead it is the schools that do it. The more fundamental problem, which is related to this, is the fact that a player like [Duke University’s] Jason Williams cannot be paid anything in terms of take-home cash, even though he is from a working-class African-American family. And the vast majority of players in both men’s basketball and college football—which generate the majority of college sports revenues—share this background. Now, the fact is that all of the teammates of a Jason Williams or his counterparts on the University of Miami team that won the Bowl Championship Series, for example, get the same full scholarship. So in that sense it is very equitable even amongst the team members. But the money that is being generated is then spent largely on scholarships for all of the other non–revenue generating sports, especially all the women’s sports that Title IX made possible.
Moving to the entertainment side of things, do you think the success of reality shows—and the fact that they don’t have writers and use nonunion performers—will dramatically affect the future of television?
My own sense is that certainly in absolute numbers there are more of these types of shows. But in relative numbers there are not. With changing technology, we have hundreds of channels to choose from. And so when you have all of those stations operating 24 hours a day, there is a lot more programming time to fill. Sports have always been one of the big beneficiaries of that time, and now it’s the shows like Survivor and Millionaire. There was a sense, even before the danger of the work stoppages, that with the huge appeal of Survivor, this sort of show was going to become more and more dominant. But the ratings for these programs have fallen significantly, so there’s probably no real concern about the Screen Actors Guild and the Writers Guild and the other entertainment unions losing a lot of jobs to those shows. Actually, their big concern is not about Survivor. It’s about the fact that so much of film and television production has now been lured north of the border to my native Canada. Obviously Los Angeles remains by far number one, and New York is still number two, but now numbers three, four, and five in the world for making “Hollywood” movies are Toronto, Vancouver, and Montreal.
Why are so many movies filmed in Canada?
Obviously one of the key things is that there is considerable talent in Canada. Second, Canada looks so much like the United States, we would never know the difference between most parts of Toronto and Boston, for example. The other thing that makes a significant difference is the surge in value of the American dollar relative to the Canadian dollar. That means the cost of production is about two-thirds the cost of doing it in the United States. And then you add to that the fact that 11 cents of every film production dollar spent in Canada is paid for by the Canadian federal government, and another 11 cents is paid for by the province where the movie is made. That’s a major-league discount. It’s interesting to note Americans are very upset at Canadians spending those taxpayer dollars to lure moviemaking north of the border. And Canadians are very upset about Americans spending taxpayer dollars to lure sports teams south of the border, like the NBA Grizzlies, who recently moved from Vancouver to Memphis. Nobody on either side sees that if you really are interested in doing the right thing, maybe you should be addressing both sides, not just your favorite side.
You accurately predicted that A Beautiful Mind would win the Best Picture Oscar. Are there any other movies from 2001 that you’d recommend?
Another one I can give you—and the critics haven’t been anywhere near as favorable about it as I have been—is The Majestic. It is about the “Hollywood 10” blacklist. One of the things that very few people know about is that the major opponent, or at least one of the major opponents of that congressional effort, was one of the key early union leaders of the Screen Actors Guild. He organized the most equitable strike in Hollywood history, and used that to put himself in the White House; though by then not as a liberal Democrat but as a conservative Republican. That’s how the world changes. Anyway, Ronald Reagan is not at all a factor in The Majestic, but I really liked that movie.
Does Harvard Law School have any particular importance in the history of American sports or entertainment?
Actually, I’ve just finished writing a little nonbook about how to see, understand, and enjoy, among other things, the creation of American football in the greater Boston area. And what you should know is that back in May of 1874, the first official American-style football game ever played took place on Jarvis Field on the Harvard Law School campus, with Harvard facing off against McGill University.
(Photo: Rick Friedman)