No Whiteout This Time

Last chance to take a shot at winning the $100 gift certificate to Molly's for being closest to the official attendance at today's Dartmouth-Harvard game. Enter by sending an email to guesstheattendance@gmail.com


2011 Dartmouth-Harvard (Bob Mondshine photo)

The forecast for kickoff at 5 p.m. in Hanover is 62 degrees, cloudy with East-Southeast wins at 6 mph. It should still be 56 degrees at

Broadcast Rights, Unjust Enrichment, and the Student-Athlete

At the professional league level there is a long history of disputes and court challenges over property rights in the live game broadcasts.  However, the interest of the NCAA, conferences and universities in live game broadcasts from a property rights perspective has never been challenged in court.  Who owns the copyright to the broadcast of the live game?   What is the origin of the legal right of the NCAA, conferences and universities to the billions in revenue generated by their licensing of the right to broadcast the live games?   Assuming the NCAA, conferences and universities do in fact have some sort of property right or other legal right to sell these rights to networks, should they be recognized as the exclusive rights holder?  Do college players also have some sort of property right or other legal right to a portion of the licensing revenue based upon their substantial contribution to the broadcast of the game?  Afterall, the players are the sine qua non of the broadcast because it obviously does not exist, and it would not generate billions in revenue, without their contribution and year-long preparation. 

My article published this fall in Cardozo Law Review traces the historical development of broadcast rights in the professional sports leagues.  In essence, the courts have held that professional clubs have a quasi-property interest in the right to license the broadcast rights to the networks.  The network is the author of the broadcast and assigns to the league its ownership in the copyright to the broadcast pursuant to a provision in the broadcast licensing agreement.  And college sport has followed on the coattails of the professional sports league model.  Basically, the network pays the NCAA, conferences and universities billions of dollars to let their camera crew enter the stadium door and capture the game being played.  Yet nobody has challenged this exclusive putative quasi-property right of the NCAA, conferences and universities.

There are legitimate reasons to recognize an exclusive right for the professional clubs that arguably do not apply to tax-exempt public universities.  While difficult to explain in any detail in a blog post, a couple distinctions are worth mentioning briefly.  For example, professional clubs are for-profit entities with individual owners who put substantial private investment at risk through their purchase and operation of a team.  Also, professional players are employees of the clubs, which is legally significant in evaluating the property right because the Seventh Circuit in Baltimore Orioles v. MLBPA held that the players' claim to a portion of the licensing revenue was precluded on the basis of copyright law's "works for hire" doctrine  and the players can negotiate with the clubs over the value of their individual contributions to the broadcast.  College players, on the other hand, cannot be subject to the works for hire doctrine simply because, well, college sport has consistently maintained the position that the players are not employees or independent contractors who can be hired.  Viewed within the construct of common law unjust enrichment which is premised on the idea of distributive justice, my article argues that universities obtain an unjust benefit at the players' expense by retaining exclusively for themselves the portion of the increasing rights fees that would normally and equitably be paid to the players for their substantial contribution to the value in the live game broadcast.  My article also addresses whether copyright law preempts an unjust enrichment claim in this context and I explain why I do not believe that it would.

In the O'Bannon litigation, the class did not assert a claim to live broadcast licensing revenue in its complaint.  Just last month, however, the class filed a motion seeking to revise the class definition to include live game broadcast licensing revenue.   If the court ends up denying their request, I nevertheless expect to ultimately see this case coming soon to a theatre near you....

Nebraska Open Thread AND Wangler-to-Carter Anniversary

Leave us your thoughts, comments and general whatnot on today's Michigan-Nebraska game.

And did you know that today also marks the 33rd anniversary of "greatest single play in the 100 year history" of Meeechigan football? 

Go Blue!



One of my favorite forgotten moments of the clip above is #23 (don't know the player's name) who, on the play before the final play flat out threw the ball out of bounds in order to stop the clock. You can see Lee Corso going crazy about that, and I believe the rule was changed to prevent such moves in the future. But that day it was legal, and the only reason Michigan was even able to get the final play off.

Ufer was right - "Johnny Wangler to Anthony Carter will be heard until another hundred years of Michigan football is played."  Especially if we have anything to do with it!

Don't Forget To Guess

Have you entered the Guess The Attendance contest? Send an email to guesstheattendance@gmail.com  with your prediction for the attendance at Saturday's game against Harvard for a chance to win a $100 gift certificate at Molly's Bar & Restaurant in Hanover. Closest to the number without going over win!

More info and background on previous Harvard game attendance here.

Crimson And Clover

There's no Crimson and Big Green so this will have to do. Click and listen while you read ;-)

•
From a fine preview in The Dartmouth:

In perhaps its biggest game of the season, the Dartmouth football team will host Harvard University on Saturday in the Big Green’s first-ever Homecoming weekend matchup under the lights. 


Just one quibble. All that stuff about "The next game is the biggest game

Know Your Foe: Nebraska 2012

The Wolverines travel to Lincoln, Nebraska tomorrow to face the Cornhuskers for the 8th meeting between the two schools.  Michigan holds a 4-2-1 record against Nebraska, including last season's 45-17 beat down in A2.  Will the Wolverines be able to generate some offense against a team with a pulse?  Will the defense be able to stop Taylor Martinez?  Unfortunately, we can't answer that.  But we can answer everything else you need to know about Michigan's opponent in the latest thrill-fest known as KNOW YOUR FOE: Nebraska 2012.

The seal looks like
the wheel from
Wheel of Fortune.

History – The University of Nebraska was created in 1869, two years after Nebraska achieved statehood. The Nebraska legislators elected to create one unified University in the state, unlike their uppity neighbors Iowa and Kansas. That's why we don't have a Nebraska State University. The first two degrees were granted in 1873 and I can't help but wonder if the guy who was second in the class ever admitted to being last in his class. The first 20 years of the school were marked by small classes and lack of funds before a late-century boom took the enrollment to around 1,500 students. Near the end of the 19^th century it was the 15^th biggest school in the country. Growth continued into the 20^th century with the development of the farm campus (seriously), which is now known as East Campus. The school is formally named the University of Nebraska-Lincoln and is commonly referred to as UNL, NU (which makes no sense) or simply Nebraska or also that school that had to beg for a share of the National Championship in 1997 as a going away present for Tom Osborne.

Hey look, there's a star above Lincoln!

Location – Lincoln, Nebraska. Lincoln is the second largest city in the state (behind Omaha) and is one of five state capitals that also house Big Ten teams (along with St. Paul, Columbus, Madison and Lansing – it’s close enough). It’s nicknamed the Star City because it’s the capital and state capitals are represented by stars on a map (Know Your Foe is a bit of a map geek and even we find that lame. Not quite the “Big Apple” of "Windy City” for sure).

There’s a 20 foot statue of a
farmer up there – pretty cool.

The city was obviously named for Abraham Lincoln but that decision was, believe it or not, met with controversy. The village was originally founded as Lancaster in 1856 when the capital of Nebraska territory was in Omaha. Legislators wanted to move the capital closer to more densely populated part of the state so they chose Lancaster as the new capital. However, some legislators who were against the move tried to derail this plan by renaming Lancaster to Lincoln after the recently assassinated President. They knew this would be met with hostility since many residents were sympathetic to the Confederacy in the recently completed Civil War. But the ploy didn’t work and even though Lancaster became Licoln, it was still named the capital upon statehood on March 1, 1867.

Lincoln’s main industry is service, and the economy is driven by the university and the state government. There are virtually no suburbs as most of the land around the city has already been annexed. The town is home to the second tallest capitol building in the U.S. and is the hometown to erudite talk show host Dick Cavett.

Nickname – Cornhuskers. There's no conference in the country with the variety of excellent nicknames that the Big Ten has. With the exception of the Wildcats, and maybe the Spartans, each Big Ten school boasts a nickname that are unique and instantly identify their teams. This might've been the best reason to allow Nebraska into the conference. Cornhuskers is absolutely unique and brings to mind only one thing: Nebraska. So much so that the state officially co-opted the nickname in 1945.

Before the turn of the 20th century, the Nebraska football teams had a number of nicknames including the Old Gold Knights, the Antelopes, the Tree-Planters, the Rattlesnake Boys, and the Bugeaters, which was their most popular name until 1900. At that time, Lincoln sportswriter Cy Sherman believed that the Nebraska team deserved a more glamorous name. The Iowa teams at that time were sometimes referred to as Cornhuskers and Sherman thought that name was better suited for the Nebraska team. Besides, Iowa fans were partial to one of their other nicknames, the Hawkeyes. The Cornhusker nickname stuck and Sherman went on to a 60-year sportswriting career and is credited (or blamed) for originating the AP football poll that still rues its ugly head over college football to this day (Hell, they even include disgraced Ohio State in their poll this season).

Mascot – Herbie Husker. The Cornhuskers went through a number of mascots, starting with Corn Cob in the ‘40s and ‘50s. Yes, this was a guy wearing a giant corn cob head. 1962 saw the arrival of Husker Man who looked like Purdue Pete’s alcoholic brother. Husker Man didn’t stick around very long and gave way to another anthromorphic corn cob, Mr. Cornhead, in the mid ‘60s (who looked like a weird condom with a red hat on top). Harry Husker then took over in 1965. Is there any doubt he was based on numerous boosters who set fire to the NCAA rule book?

The corn cobs are cool - the humans are seedy looking.

Finally, in 1974 Herbie Husker was born. He was the result of the incredible cartoonist Dirk West. Seriously, check out his work – brilliant on so many levels. West created Herbie for the 1974 Cotton Bowl and later refined the character who would then be used as the mascot for all Husker teams since. He underwent a major transformation in 2003, losing the gut and getting quite cut (unlike actual Nebraska fans). He also lost the dye job and is now a brunet. All of this surely helped him win the national mascot of the year in 2006. In 1994 Lil’ Red joined the Nebraska mascot family. The inflatable dude is the nightmare Michigan fans had when Dave Brandon floated the idea of a Wolverine mascot for kids to take pictures with.

I prefer original Herbie - he
had a corn cob in his pocket.

Colors – Scarlet and Cream. One of only eight schools to call their red scarlet, they’re also one of only three NCAA schools that count their white as cream (along with Indiana and Oklahoma). Know Your Foe has stated our problem with red (or scarlet) over the years here on the MZone. Suffice it to say, it’s just too common. No wonder the Huskers gave up so many points to Ohio State earlier this season – they probably didn’t want to tackle anyone wearing the exact same colors as they were wearing. Besides, scarlet and cream sounds like a delicious ice cream flavor.

The colors haven’t changed in Lincoln for over a century. At one point the team wore gold as evidenced by the Gold Knights nickname in use in the late 19th century. But the scarlet and cream combo has been a Nebraska tradtion since the Cornhusker nickname came into being in 1900. The only slight deviation is the reference to the Nebraska defense as the “Blackshirts.” This nickname is in reference to the black practice jerseys worn by the first team defense in practice and dates back about 50 years when legendary head coach Bob Deveney wanted the defense to wear a contrasting color to the offense’s red scarlet. Thankfully the Huskers haven’t succumbed to the uniform nonsense of late and haven’t gone to a black uniform. Yet.

Looks like something
from Laugh-In.

Logo/Helmet – Since 2004 Nebraska has gone with a simple red block N and for the ten years before that they superimposed a script “Huskers” over the N. Unfortunately these recent logos feed the stereotype about the state – flat and boring. But in doing research for this piece, Know Your Foe was fortunate enough to find HuskerJ’s page of Nebraska’s mascots and logos. Scroll down and check out the absolutely groovy logos from the early ‘70s. Far freakin’ out. How could that possibly come from the same school that’s used the block N for twenty years?

No need to mess with this.

Nebraska’s helmet might not be as flashy as whatever crap Nike’s been pushing on everybody, but it’s solid as hell and has been virtually unchanged for over 40 years. A simple white shell, a scarlet stripe down the middle and a plain but elegant N in the middle. The only change since 1970 was the move to a red facemask for the 1982 Orange Bowl. Nebraska’s helmet history is about as boring (and great) as that of Michigan. Sure, they had NU on there for a a couple of years in the ‘60s and numbers before that. But the current Nebraska helmet is as iconic as any in college football. Let’s hope it stays that way. (As always the helmets are courtesy of the excellent Helmet Project.)

Fight Song – Apparently the Cornhuskers have at least two fight songs. According to this source, they play Hail Varsity after a touchdown, and There’s No Place Like Nebraska (also known as Dear Old Nebraska U) after the extra point. It’s unclear what they play after a field goal or a safety. If There’s No Place Like Nebraska sounds familiar, it should. It’s extremely similar, if not the same, as Florida’s fight song, We Are The Boys of Florida. How could two powerhouse football programs - who met for the national title in the 1996 Fiesta Bowl - have the same fight song? Evidently, they also share the song with the Toledo public school system.

The lyrics to the two songs are quite different. Hail Varsity is pretty standard fight song fare, with a touch of communist march – heavy on loyalty, a politically incorrect sexist bent, and talk of fighting for victory.

Hail to the team!

The stadium rings as everyone sings

The Scarlet and Cream

Cheers for a victory echo our loyalty

So on mighty men!

The eyes of the land upon every hand

Are looking at you

Fight on to victory

Hail to the men of Nebraska U!

There’s No Place Like Nebraska on the other hand is much more charming and unintentionally funny (not to mention a better tune). Any song that mentions that the women are hot, the men are nerds, and the weather sucks is OK with us. The only questionable lyric is the “true blue” mention. That might not fly with Cornhusker fans this week.

There is no place like Nebraska

Dear old Nebraska U

Where the girls are the fairest

The boys are the squarest

Of any old place that I knew

There is no place like Nebraska

Where they're all true blue

We'll all stick together in all kinds of weather

For dear old Nebraska U.

Academics – According to the most recent U. S. News' ranking of America's Best Colleges, Nebraska is 101st, same as last year by far the worst rating for any Big Ten school. Even Sparty is ranked 72nd. Nebraska's tied in the rankings with such academic powerhouses as Iowa State, UC-Riverside, Oklahoma and Tennessee. Maybe the N on the helmet stands for “knowledge" (I know: an oldie but a goody).

Athletics – Nebraska is in their second year in the Big Ten and was a charter member of the Big 12 Conference (and all its various incarnations) in 1907. It’s too early to tell who the Cornhuskers’ rivals will be in the B1G, but ack in the ‘70s and ‘80s there was none better than Nebraska-Oklahoma on the gridiron. However, when the Sooners moved to the South division of the Big 12 they didn’t meet every year which was completely stupid (are you listening, Dave Brandon?). There was an attempt to make Colorado a rival but that never really took.

When this guy's your
all-time leading scorer
you have a bad program.

The Huskers field 21 varsity teams (Michigan has 27), including women’s bowling and women’s rifle (hey, it's Nebraska). The women’s volleyball team is one of the most storied programs in the country. It must be all the beaches in the state that produce such great players. Nebraska has won three NCAA titles (1995, 2000, and 2006), has been a runner-up three times, and has five other final four appearances. The Cornhuskers are second only to Stanford in titles and winning percentage. The men’s gymnastics teams have won eight national titles, though none since 1994, and the women’s track and field team has two national titles, though none since 1984. The men’s basketball team has been a disgrace. They haven’t won a conference title since they shared the Big Seven title in 1950! Know Your Foe didn’t even know there was a Big Seven. They haven’t won an outright conference title since winning the Missouri Valley Intercollegiate Athletics Association in 1916. They’ve never won an NCAA tournament game, they’ve made only six tournament appearances, and their first trip to the tournament wasn’t until 1986 (but they did make the NIT last season).

When it comes to Nebraska athletics it’s football, football, football. The Huskers began playing football in 1890 and have won 46 conference titles and have won or shared five national championships, including the undeserved share of the 1997 title. Only Michigan and Texas have won more games than Nebraska, with Michigan's 900 tops. Only Rutgers has played more football games than Nebraska (who’s tied with Navy and one game ahead of Michigan), and Nebraska’s all-time winning percentage is 8^th best (Michigan, again, is tops). Not only has Nebraska had tremendous on-field success, but they’ve sold out every game since November 3, 1962, an incredible streak of 322 games.

Maybe Carnac knows
who will win on Saturday.

Famous alums – The list of Nebraska alumni isn’t all that impressive (with two exceptions). They’ve had their share of academics you’ve never heard of, some legal figures of low to moderate fame, and, of course, plenty of great football players from Heisman winners Johnny Rodgers (1972), Mike Rozier (1983), and Eric Crouch (2001), to great NFL’ers like Roger Craig, Irving Fryar, and the Detroit Lions’ Ndamukong Suh. But what the Nebraska alumni list lacks in volume it makes up for with quality at the top. Other schools may have more well-known business leaders, but Nebraska boasts one of the wealthiest people in the world and one of the most successful investors ever in Warren Buffett (B.S., 1950). I would imagine he has no problem scoring Husker tickets despite the sellout streak. And though other schools can lay claim to plenty of greats in the entertainment field, Nebraska can top them all with alumnus Johnny Carson (1949). For those too young to know, Carson owned late night TV for decades and paved the way for David Letterman, Jay Leno and pretty much all the rest, not to mention hundreds of comedians. Good stuff.

Three Nebraska graduates have been U.S. senators, five have been U.S. governors, and one was even the president of Latvia, but, alas, no U.S. Presidents. 

The Game – Boy, I have no idea here.  It's a) on the road b) against an offense that's leading the B1G in points and YPG.  Then again, "NU's" defense is tied with mighty Purdue in giving up 27.7 PPG and is tied with the B1G's real NU with the lowest number of INT's at 3 (a very positive stat as far as Michigan's concerned for reasons KYF doesn't need to explain).  Nebraska has beaten 6-2 Wisconsin and 6-2 Real NU, two better wins than Michigan can boast, while losing to 5-2 UCLA and getting bitch-slapped by 8-0.  So I think it's a coin flip and don't expect a blowout either way.    With Michigan coming off an emotional win against MSU and the game on the road, unfortunately I think that could be the difference:

Michigan - 18 (5 Gibbons, 1 Wile FG)
Nebraska - 20

San Francisco Bay, America's Cup Venue

One of the more striking scenes from the world of sports this week was the pitchpoling of the Oracle America's Cup yacht in San Francisco Bay during reported 25 knot winds.  Seeing this video of the capsizing was a reminder of how important the venue of a sporting event is, including venues for sports other than the major four sports, and how the attorney working with a sporting event must consider the challenges of the venue in preparing contracts for the event.

For an America's Cup regatta, one of the challenges posed by the venue is spectator proximity to the action and safety.  Unlike previous America's Cup regattas held far offshore where few spectator boats might venture, this America's Cup will be held close to shore where there will be many spectator boats.  They likely won't be high-performance racing boats like an America's Cup yacht, but they will be close to the action, on the water, and close to each other, possibly in high winds or rough seas.  Spectator safety risks must clearly be assessed, with the goal of keeping these fans safe during the event while allowing them to enjoy the action.  The America's Cup organizing authority's contracts with the relevant authorities have to address safety issues so that liability is minimized -- where can spectator boats be positioned during a race, how will safety be monitored, how many boats will be allowed in an area, what spectator boat credentials or registration will be required, what liability waivers will be obtained.  By accounting for these issues in contracts, the excitement of America's Cup racing can remain the focus during the event.