SBJ/September 12-18, 2011/Opinion

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  • Cartoon: Uniform madness

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  • ESPN’s image takes a hit

    I believe the HR undercurrent at ESPN is one of the company’s biggest threats. Case in point: college football writer Bruce Feldman’s departure last month, one of the ugliest exits I’ve ever seen. There are two sides to every story, and The Poynter Institute, in its role as ESPN ombudsman, seemed thorough in spreading blame between ESPN and Feldman. But as Bristol’s reach grows, these incidents will happen more frequently, and ESPN is being painted as a company that seeks to “get” those who leave on less than good terms. You don’t hear this as often at other media companies, and it has to sting ESPN’s top execs. The question is, How do they address it?

    NET RESULTS: When it comes to TV talent, tennis has a deep bench. John McEnroe is one of the best analysts in sports – frank, humorous, and viewers of all ages can relate to him. Watching the U.S. Open, both CBS and ESPN are fortunate to have the likes of Patrick McEnroe (more diplomatic than John), Darren Cahill and Jim Courier (articulate ex-players who coach and can be critical), Chris Evert (surprisingly strong insight after a long absence from the booth), Mary Carillo (a little too much drama and painful puns) and old-timer Cliff Drysdale (who zigs when others zag). But, please: someone work with Brad Gilbert. He is amusing, but one can barely hear his voice during matches! Question for you: If you were watching one major sports event, which network and talent team would you want to watch? Let me know.

    Abraham D. Madkour can be reached at amadkour@sportsbusinessjournal.com.

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  • Can ‘major junior’ program for football cure NCAA’s ills?

    Traditionally, the start of the college football season is a time for excitement. It’s hard not to get swept up in eager anticipation of a successful season. However, as the opening games of 2011 have now come and gone, it’s fair to suggest that the primary feeling as first kickoff commenced this year was one of relief.
    Between the controversy at Ohio State University that dominated headlines as summer began and the more recent scandal at the University of Miami, it seems as if talk of who might be left standing tall at the end of the season has been drowned out by talk of college football’s ills. A number of cures for those ills have been proposed in recent weeks, but none of them truly addresses the root of the problem.
    The NFL is the only major professional sport in North America whose sole avenue of development is the NCAA. Baseball prospects can sign with an MLB team right out of high school and go into the farm system to develop (to say nothing of MLB team-sponsored academies in Latin America). Since 2006, the NBA has required that players be out of high school for at least one year before entering the NBA draft, but as Milwaukee Bucks guard Brandon Jennings demonstrated when he played in Italy three years ago, that doesn’t necessarily mean college basketball. Hockey is getting more and more talent from the NCAA, but the majority of North American players still come from the “major junior” teams of the Canadian Hockey League.
    Football, of course, doesn’t have MLB’s vast minor league system, and as a uniquely American sport, playing in Europe isn’t an option. The major junior system doesn’t exist for football, but in light of recent events, it’s worth wondering whether the sport, the athletes and indeed the NCAA might not be better off if it did.
    This may sound odd, given that the five Division I men’s hockey conferences have set up the group College Hockey Inc. to promote the advantages of the NCAA over the CHL and employ former NHLPA Executive Director Paul Kelly to make the case for college hockey throughout North America. However, while college hockey programs across the country may battle CHL teams for top young players, the fact remains that the existence of a semi-pro alternative to college hockey weeds out the majority of players who are uninterested in a college education, the sort of players who often cause the biggest problems at big-time football and basketball powerhouses. Giving a similar alternative to football prospects focused solely on NFL futures could rid NCAA programs of the headaches associated with those players.
    One might ask, naturally, what will become of these players should their NFL dreams fail to materialize, as most do. The teams of the CHL offer players education packages commensurate with years of service. The packages cover college tuition, books and other expenses, and are available at the conclusion of a player’s CHL career if he does not sign a pro contract. Critics point out (rightly so) that this does little good when a player opts instead to kick around the minors for a few years, ultimately ending his career at an age where attending college full time is unfeasible, especially without the financial support he would have had at the end of his CHL tenure. However, the minor leagues available to football players hardly rival hockey’s multitiered system, making it much more likely that a football player at the end of his major junior career without NFL prospects would collect his education package. Furthermore, with the knowledge that he won’t make a living playing football, such a player would probably devote himself to his studies more than he would if he were majoring in football at a big-time program under the current system.
    What, then, of those football programs? Would they not be weakened by the absence of top stars? Perhaps, but it would be a small price to pay for a college football program that a university can be truly proud of. As the old chestnut goes, college football is more about the name on the front of the jersey than the name on the back. Last season’s Michigan-Ohio State game would have been no less an event had Terrelle Pryor spurned the Buckeyes for some semi-pro alternative. Whether he’s remembered as a national championship hero or a figure of scandal, Cam Newton will never mean as much to Auburn as Toomer’s Oaks. So much of college football’s appeal is tied to the experience — traditions, fight songs, pageantry — that the absence of players who are singularly focused on preparing for the NFL would likely make little difference to the fans but a world of difference to the schools.
    In truth, the establishment of such an alternative may not be feasible. Unlike the CHL, whose Memorial Cup dates to 1919, a new major junior football system may have difficulty competing with the history and tradition of the NCAA’s most storied programs. However, in the midst of a nationwide debate about how to fix college football, it’s worth speculating about a solution that strikes much closer to the heart of the problem. n
    Elliot Olshansky (eolshansky1782@gmail.com) writes for New York Hockey Journal and covers college hockey and lacrosse for NCAA.com.

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  • Anti-counterfeit plan can prevent damage to team’s reputation

    NCAA Division I-A sports generated an estimated $4.1 billion in revenue in 2009, a 60 percent increase in revenue in just five years. With an increase in business, however, comes an increased number of counterfeiters looking to capitalize on the valuable intellectual property rights of colleges and universities.

    Counterfeiting is not a new phenomenon in the sports world or otherwise. Many industries face the perils of counterfeiting, from entertainment to consumer electronics to pharmaceuticals. Counterfeiting not only has an impact on a business’s bottom line, but it also affects the good will of the brand and the reputation of the brand owner.

    Colleges and universities face counterfeiting issues on several fronts, most prominently with tickets and merchandise. Counterfeit tickets have been an issue in college sports for decades. Articles and news stories discussing counterfeit tickets reveal a concerning, yet expected, trend: The higher profile the game, the greater the risk for counterfeiting and the higher the price some unfortunate fans pay for counterfeit tickets. For example, before the 2011 BCS national championship game, Phoenix police seized more than 200 counterfeit tickets with a face value of $60,000 — and a street value closer to $600,000 — from a single counterfeiting ring.

    The International Chamber of Commerce believes that counterfeiting has flourished over the last several decades largely due to four factors:

    1. The profitability of counterfeiting.

    2. The absence or inadequacy of intellectual property laws in many countries.

    3. The availability of cheap equipment to facilitate copying.

    4. The perception that counterfeiting is a low-grade, harmless crime.

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    Educating fans about reliable sources for purchasing tickets should be part of a team’s action plan.
    Whatever the reason, colleges and universities can no longer take a backseat approach in dealing with counterfeiting. Instead, colleges and universities can combat the proliferation of counterfeiting by developing a consistent and comprehensive plan.

    The first step is to establish an internal team to deal with counterfeiting. The composition of the team may include in-house lawyers, general counsel, outside IP counsel, private investigators and/or paralegals. Institutions should also consider appointing an anti-counterfeiting specialist.

    Once a team is established, it is important to develop an action plan, which may include some or all of the following strategies:

    Categorize counterfeiting activities. Create categories from low risk to high risk and use consistent strategies to deal with counterfeiters based on the category of risk.

    Shore up all intellectual property rights. Make sure all indicia are adequately protected from a trademark and copyright perspective, both on a national and a global scale. The purpose of obtaining federal protection for all indicia is twofold: (a) federal and foreign protection gives institutions statutory options for pursuing counterfeiters; and (b) institutions can record federal trademark and copyright registrations with U.S. Customs and Border Protection that then can be used to stop counterfeit products at the border.

    Utilize appropriate legal channels for dealing with counterfeiting activity. The legal action taken will largely depend on the risk category. If, for example, you consider the counterfeiting activity to be relatively low risk, the first step may be to send a demand letter. For more severe cases, you may elect to file a civil and/or criminal action in order to stop the counterfeiting activity.

    Education is key. Educate employees, licensees, agents and others of the internal procedures for dealing with counterfeiting and train them to detect counterfeit products. Institutions should also educate fans on the importance of purchasing tickets directly from the ticket office or from other reliable sources. Some universities have set up verification booths outside stadiums where buyers and sellers can meet and ticket authenticity can be verified prior to purchase.

    Keep your finger on the pulse of the market. Monitor the marketplace online by appointing an employee to patrol websites popular among counterfeit sellers, such as eBay, Craigslist and ticket broker websites. Set up Google alerts to notify you when third parties are advertising the sale of tickets or authentic merchandise, or hire private investigators.

    Use the media. Issue press releases warning fans of counterfeit tickets and merchandise. This strategy is now routine for many colleges and universities, especially before conference championship games, bowl games and high-profile regular-season games.

    Technology is your friend. Counterfeiters continually look for the most advanced technology to create authentic-looking knockoffs. Therefore, colleges and universities must be one technological step ahead of the counterfeiters. Current anti-counterfeiting technologies include watermarks, micro-printing, holograms, magnetic strips, microscopic tags, and infrared visible and invisible inks. When addressing ticket counterfeiting, colleges and universities can also consider switching to paperless ticketing. A paperless system will require a ticket purchaser to present a credit card and ID to gain access to an event, which eliminates the threat of counterfeit tickets.

    Information is power. Create a database to track counterfeiting activities. This information is essential in developing a consistent and effective anti-counterfeiting strategy. For example, if the information gathered indicates that a particular product is being repeatedly counterfeit, use additional technological measures or to dedicate additional resources to combat the counterfeiting activity.

    Counterfeiting not only seriously affects the bottom line of the country’s colleges and universities, but it also poses a risk to the underlying good will of the names and indicia of all colleges and universities. If colleges and universities do not yet have an anti-counterfeiting plan in place, these institutions would be wise to pull together a comprehensive plan using some or all of the strategies outlined here, and such a plan should then be continually updated to address the most recent advances in anti-counterfeiting techniques.

    Emily Bayton (EBayton@LRLaw.com) is a partner and Nathaniel Edwards (NEdwards@LRLaw.com) is an associate in Lewis and Roca’s intellectual property and technology practice group.

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