USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
ited from compensating student athletes directly or offering NIL deals as recruiting incentives. In addition to publicity rights, well-known and famous athletes (both professional and college) may develop trade mark rights in their names and persona, providing additional intellectual property protection under federal and state law. The concept of “passing off” is a form of trade mark infringement and unfair competition under the federal Trademark (Lanham) Act and state laws, regardless of whether an athlete’s rights are registered. However, athletes would only have enforceable trade mark rights in their names or other aspects of their persona if such persona were in fact used as a brand to mar - ket and sell goods/services in the USA. Under new 2024 NCAA rules, universities may offer educational workshops to student athletes on protecting their intellectual property rights and provide guidance on managing and exploiting those rights. 5.4 Licensing Licensing is a primary revenue generator of team and league revenues. In the USA, the profes - sional major sports leagues generally control and administer all member team trade mark rights and the licensing thereof (see 2.1 Availa- ble Sports-Related Rights ). Licensing revenues are shared with teams based on contractual for - mulas. Athletes are generally free to enter into direct sponsorship and licensing agreements, typically through their agents, provided such acts do not otherwise violate their team and league policies and any player contract provisions. There are no legal restrictions on assigning IP rights to third parties, with the only statutory exception that an “intent to use” federal trade
mark application can only be assigned to a suc - cessor of the underlying business. Restrictions on assignment of IP rights to third parties are generally a matter of contract. In the absence of any such restriction, contractual rights may gen - erally be assigned except for personal service contracts; however, this is a matter of state law and is therefore subject to specific applicable laws of the 50 states. 5.5 Sports Data Sports in the USA are heavily reliant on massive amounts of data and statistics respecting play - ers’ performance and health, training, coaching competitive team positions and information, scouting reports, team competition, and fans. Major sports leagues and their teams employ sophisticated technology to capture real-time game data, such as MLB’s StatCast system, an artificial intelligence (AI) tool that uses radar and high-speed cameras to record all move - ments made by players and tracks the flight and velocity of baseballs. Similar systems are installed in NFL and NBA arenas, and are being implemented by the National Hockey League (NHL). The NFL, in collaboration with Amazon Web Services, has created the Digital Athlete, an AI tool that creates a virtual representation of an NFL player, using TV footage and sensors in football gear, to enhance player safety and bet - ter predict and prevent player injuries. Formula 1 racing is at the leading edge of data capture technology, with each car outfitted with up to 300 sensors that produce approximately 1.1 mil - lion data points per second. There are many commercial opportunities pre - sented by voluminous sports data. This includes use of licensed data by third-party developers who create and license sports-related applica - tions, AI technology and application program - ming interfaces (APIs) using data that focus on a
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