Virtual currencies have exploded recently and have been used as investment devices and freely tradeable currency. There has been a growing trend of businesses accepting virtual currencies as payment, despite warnings from the U.S. Securities and Exchange Commission and the Consumer Financial Protection Bureau. However, virtual currencies, such as Bitcoin, have not been regulated by the federal government nor by any of the States. New York is seeking to be the first State to do so.
Last month, New York's Department of Financial Services released proposed legislation for businesses that provide virtual currency financial services. Notably, this legislation does not apply to merchants and consumers that utilize virtual currency solely for the purchase and sale of goods or services. Instead, the proposed legislation focuses on businesses that provide Virtual Currency Business Activities, which it defined as any one of the following activities involving New York or its residents:
Under the proposed legislation, businesses engaged in any of the above virtual currency financial services must obtain a Bitlicense from the Department of Financial Services to operate. The Bitlicense necessitates that the businesses also be subject to a multitude of rules governing:
One of the most notable aspects of the proposed legislation is the record keeping provision, which requires that information regarding all parties to a transaction (including names, addresses and account numbers) be kept for at least ten years. Such a requirement is instrumental for the regulation of virtual currency as anti-money laundering efforts and protection from theft or fraud require this information to hold people accountable for their actions. However, anonymity had been a highlight of utilizing virtual currency thus far.
As of July 23, the Department of Financial Services' proposed virtual currency legislation is in its 45 day public comment phase. After the phase ends, the Department will revise the proposed legislation and re-release it for further review. It is important to note that the final version of this proposed legislation may be very different than its initial proposal.
This proposed New York legislation, which can be accessed through a link above, is the first attempt in the United States to regulate virtual currencies such as Bitcoin. As New York moves forward with some form of this legislation (pending revisions and approval) other States will certainly take notice. Of course, the real wild card is that the federal government has not yet regulated virtual currencies. Regulation by the federal government has been much anticipated, as favorable regulations could help virtual currency prices soar or conversely, tight regulations could depress prices. Federal regulation also helps guide states, who may wish to enact stricter regulations as they see fit.
Whether businesses that provide virtual currency financial services like it or not, regulation is coming. If businesses disapprove of New York's proposed legislation, they should submit their commentary to the Department of Financial Services while the public comment period is still open.
On August 8, 2014, one of the most important Sports Law cases was decided. The case, O'Bannon v. NCAA, was a class action lawsuit brought by current and former college athletes that sought to challenge the NCAA's rules prohibiting compensation for FBS football and Division 1 basketball players on antitrust grounds. Specifically, the athletes were challenging the rules that disallowed athletes from receiving a portion of the revenue the NCAA, and its institutions, receive for the use of the athletes' names, images and likenesses in video games, game broadcasts, and other forms of media. The athletes alleged that these rules violated the Sherman Antitrust Act.
Ultimately, the Court found in favor of the athletes, holding that "the challenged NCAA rules unreasonably restrain trade in the market for certain educational and athletic opportunities offered by NCAA Division I schools. The procompetitive justifications that the NCAA offers do not justify this restraint and could be achieved through less restrictive means." Based on its findings, the Court imposed an injunction to:
This case is notable for the implications it has on college sports in both the present and the future. Although the remedies were limited in scope, much of the decision reads of contempt for the NCAA's business practices under the guise of amateurism. This decision may not be the deathblow to the NCAA and/or its practices, but it certainly provides a step in the right direction for athletes to be compensated. Further, and perhaps more importantly, this decision provides the foundation for future legal challenges to the NCAA's practices. Currently, there are multiple challenges to the NCAA's business practices, and since the O'Bannon decision was filed, another class-action antitrust suit has been commenced against the NCAA.
Effects of the O'Bannon decision
Unfortunately, this ruling does little to put money in the players' pockets during college, when they need it. Athletes who have full scholarships can struggle financially during their time in college, as scholarships do not cover the full cost of attendance. Further, there is a public perception that all collegiate football and basketball players are scholarship athletes. This notion is simply untrue. Many athletes, even at the Division 1 level, do not have scholarships. For instance, per NCAA regulations, a FBS football team can have up to 85 players on full scholarship at any given time. However, prior to the college's first day of classes or the team's first game (whichever is sooner) a team's roster cannot exceed 105 players. This means that football teams are allowed to have 20 athletes, approximately one-fifth of the total roster, who are not on scholarship prior to their first game. These walk-on athletes must attend college on their own dollar, and many struggle financially to do so.
However, this decision is still a victory for players' rights. The NCAA has hidden behind its principles of amateurism and the "student-athlete" since its inception, and has vehemently refused (by both actions and omissions) measures that it believed would align it with professional sports leagues. Some of these measures include:
Although this decision did not provide remedies that impact athletes during their college careers, it effectively obliterated the NCAA's concept of amateurism. In discussing the inconsistencies of how the NCAA has defined amateurism throughout its history, Judge Wilken opined that "Rather than evincing the association's adherence to a set of core principles, this history documents how malleable the NCAA's definition of amateurism has been since its founding." The NCAA's convenient principle of amateurism is the foundation of many, if not all, of players' rights issues that should be addressed in further litigation. Most notably, amateurism is one of the NCAA's primary oppositions to the unionization of college athletes.
Importantly, the O'Bannon case has provided a roadmap for future lawsuits on how to challenge many of the NCAA's practices. The decision itself has provided a large amount of language for Courts to utilize in decisions for years to come. The NCAA is currently facing several similar class action cases. One of the current class action antitrust cases alleges that the NCAA has unlawfully capped player compensation to the value of the scholarship. This effectively seeks a free market for player compensation. This case is similar in theory to the O'Bannon case, and could benefit from utilizing the analysis of the O'Bannon decision, particularly Judge Wilken's discussion of amateurism. Certainly, at least some of Judge Wilken's analysis from the O'Bannon decision will be used to frame that case moving forward. Time will tell whether or not the case succeeds, but the O'Bannon decision has exposed a weakness in what has been the NCAA's strongest argument.
Changes through legislature?
In her conclusion to the O'Bannon decision, Judge Wilken opined "It is likely that the challenged restraints, as well as other perceived inequities in college athletics and higher education generally, could be better addressed as a policy matter by reforms other than those available as a remedy for the antitrust violation found here. Such reforms and remedies could be undertaken by the NCAA, its member schools and conferences, or Congress." This statement, while not a ringing endorsement of change through antitrust challenges, also highlights the ease (technically speaking) by which the NCAA's inequitable practices can be remedied, or solidified, through negotiation or petitioning Congress. As the NCAA has refused to budge thus far on these athletes' rights issues, the only remaining path (other than litigation) is by seeking Congressional action.
In light of the several cases the NCAA was facing recently, the NCAA spent $240,000 on lobbying in the last six months. Not only is this amount approximately $80,000 more than the NCAA spent all of last year on lobbying, it is also the most the organization has ever spent on lobbying. There are likely two reasons the NCAA is pursuing this lobbying campaign. Either the NCAA is attempting to solidify its practices with respect to athletes by seeking Congressional action, or their lobbying is a means of damage control.
Despite the NCAA's lobbying, college athletes' rights have become a topic of discussion in Congress. Recently, Congress formed a bipartisan caucus "to inform Congressional members about physical, academic and financial issues college athletes face so they're treated fairly." The Congressional Student-Athlete Protection Caucus, as it has been named, was designed to foster discussions that would "lead to greater accountability on the part of the NCAA" (Charles Dent [R-Penn]). Perhaps as Judge Wilken opined, Congressional action may obviate the need for further litigation to give athletes the rights they are entitled to.
Although the O'Bannon decision did not result in sweeping changes to NCAA practices, the ruling importantly exposed a weakness in the NCAA's arguments that future litigants may be able to utilize to their advantage. Certainly, the several ongoing actions against the NCAA will borrow some of the analysis from the O'Bannon decision. However, as Judge Wilken opined, Congressional action may obviate the need for further litigation. Hopefully, the Congressional Student-Athlete Protection Caucus yields legislation supporting college athletes' rights. Otherwise, the lawsuits will continue until these athletes get the rights they deserved.
The Uniform Law Commission's Athlete Agent Committee met earlier this week to discuss changes to the Uniform Athlete Agents Act ("UAAA"). This act, having been passed in 43 States, is a series of laws that attempts to regulate sports agents. However, agents are governed by the players' union of each professional league, as they must be certified by the union to act as an agent for a player in that sport. (Note: the one exception being Major League Baseball, which does not certify an agent until they have a client on an MLB team and meet the certification criteria. Therefore, a person can act as an agent, although uncertified, to baseball players if their clients are not in the MLB.)
Despite being governed by the professional sports' unions, the UAAA imposes additional regulations for agents in a supposed effort to protect collegiate athletes and their institutions. Some of the UAAA provisions echo best practices for agents which do protect athletes, like noting on a representation agreement that the athlete will lose any remaining athletic eligibility in college. However, much of what is unique about the UAAA, as opposed to the agent rules of the professional players' unions, burdens agents with no visible benefit.
The UAAA prohibits the following conduct by agents:
Violating any of the above provisions carries both criminal and civil penalties. The first of the above prohibitions, perhaps the most important, is also generally prohibited by the agent rules of the various professional sports' unions.
So what are the proposed revisions that were discussed this week?
As far as agents are concerned, there is one primary revision that should be enacted: Abolish the State registration of sports agents.
There are a multitude of problems with the State registration system. Most glaring, the State registration system fails its designed goal to "keep the good guys in business...[and] keep the bad guys out" (Jerry Bassett, Director of the Alabama Legislative Reference Service, which drafts bills for the Alabama legislature.) As previously stated, agents are governed by their sports' players unions. Agents must satisfy a myriad of requirements in order to become certified by a particular sport. During this process, the supposed "bad guys" are weeded out, and not granted certification by the league. Of course, there will be agents that are granted certification and then break rules and laws, but there is no possible way to prevent all wrongdoers from entering the profession.
Interestingly, there is little data on who, or how often, States are disallowing agents from registering. The leagues are already undertaking the exhaustive agent certification process, which requires disclosure of much the same information as States require. Simply put, it is likely rare that any professional Players' Union, whose primary goal is the protection of the players, would certify an agent that a State rejects.
Further, should any State employ more stringent restrictions on agents than the professional leagues do, the newer agents would likely suffer the most. Currently, a person with a four year undergraduate degree and postgraduate degree could become an NFL agent, provided they meet the additional requirements such as passing the exam. That means a 24 year old with little business experience (and fantastic connections) could hypothetically become an agent. However, a State utilizing more stringent requirements than the leagues creates higher barriers of entry, disallowing entrants into the market.
Additionally, the UAAA's registration system is extremely short sighted. Generally, sports agents have a multi-state, if not nationwide or regional practice. By requiring an agent to register with each individual State, agents must pay a registration fee with each State that has a collegiate athlete they wish to speak with. Due to the nature of the multi-state practice, these fees quickly add up. And what do agents get from paying the fees? Nothing more than the chance to talk to athletes in the hopes that they sign with the agent.
As it currently stands, the UAAA's registration system amounts to little more than systematic extortion. Agents who wish to be successful, which is already difficult enough, are going to pay the wildly varying fees to avoid any criminal and/or civil liability. The UAAA gives States an additional, steady, stream of income that they likely will not want to let go.
Aside from repealing the UAAA, there are two viable solutions to removing the State registration of sports agents:
The removal of all registration provisions will not be favored by the States as they are earning money off of the UAAA. However, the nationwide clearinghouse can be established in such a way that each State which has enacted the UAAA gets a share of the registration fees from across the country. A clearinghouse can also make the registration process more favorable to the agents as well. Certainly all of the registration information will be centralized, decreasing the need for an agent to fill out multiple applications for multiple States. This would allow registration in a new State to be as simple as paying the fee, as all enacting States would have agreed on a single set of registration criteria.
The State fees themselves could also be staggered, creating discounted bundles of States or a flat fee for each additional State. There is a great deal of flexibility that could be used in creating a nationwide clearinghouse for sports agents that could make the UAAA more attractive to agents. However, this still does not ease the burden of having to essentially be certified as an agent twice, once with the professional sports league, and once with the clearinghouse.
As it stands, the UAAA's State registration model is extremely flawed and burdensome to sports agents. The creation of a nationwide clearinghouse for agents, as proposed for discussion this week, with flexible price models would reduce the burdens on agents, but still unfortunately require that agents be certified by the leagues and the States.
Quiles Law is an esports and sports law firm based in New York City.
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