Sports Legislation and Regulation in 2016: The Hot Topics (Part II)

In the first part of our look ahead to what are some of the hottest sports legislation topics, we focused on the battle surrounding daily fantasy sports sites FanDuel and DraftKings, along with the FCC’s potential ruling on “linear” online video platforms that offer sports streaming. Today, we’ll look at the fate of the Washington Redskins’ name and a bill that could end sports blackouts.

THE WASHINGTON REDSKINS’ MONIKER

In July 2015, a federal judge ordered the cancellation of the Washington Redskins’ federal trademark registrations. United States District Judge Gerald Bruce Lee’s decision affirmed an earlier ruling by the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board, which held that the NFL team’s moniker is offensive to Native Americans and therefore is ineligible under the Lanham Act for federal trademark protection.

Despite the fact that the trademark revocation permits unlicensed production and sale of Redskins merchandise, the Redskins’ have continued to use their nickname. House Representative Eleanor Holmes Norton, a representative from the District of Columbia, has introduced new legislation with the goal of influencing a change of the Redskins name.

Rep. Norton’s bill is entitled the “Respect for Native Americans in Professional Sports Act of 2015,” and if enacted will prohibit the NFL, and any other pro sports team, from receiving exemption from federal antitrust laws while using the “Redskins” moniker. Norton has said that the NFL and Washington Redskins “should not be benefiting financially from federal antitrust exemptions while they continue to promote a disparaging moniker that has been found by legal authorities to be a racial slur.”

A Redskins spokesman reportedly stated that the organization “disagree[s] with Ms. Norton’s opposition to the Washington Redskins name,” and that “[m]ore than 85 percent of Ms. Norton’s constituents disagree as well, as recent polls have shown.”

LEGISLATION TO STOP SPORTS BLACKOUTS

In December 2015, two U.S. Senators — John McCain and Richard Blumenthal— reintroduced legislation that would put an end to sports blackouts. If enacted, the bill would remove language from the Sports Broadcasting Act of 1961 that allows professional sports teams to require local broadcasters to blackout home games if local stadiums fail to sell out all of their tickets in advance of the game.

The bill, entitled the “Furthering Access and Networks for Sports Act of 2015 (“FANS Act”), would disqualify those teams that do not end their blackout rule from receiving antitrust exemptions. The Senators argue that leagues like the NFL should not be able to benefit from antitrust exemptions and tax subsidies covered by their fans without providing the benefit of watching all of their games. Additionally, the Senators argue that there is no evidence that ticket sales are driven by blackout rules.

The bill comes on the heels of the FCC’s unanimous decision in 2014 to end their blackout rule. The nearly 40 year old rule was enacted in order to promote attendance at local games, but the FCC determined that ticket sales are no longer the primary source of revenue. However, the FCC rule was only a backstop to contractual provisions.

The NFL suspended its blackout rule for the 2015 season, but warned that it has not agreed yet to do so in the future.

 

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