Fair Pay to Play Act

The California Fair Pay to Play Act- Finally IP Social Justice for Student Athletes

Earlier this month Governor Gavin Newsom signed into law the Fair Pay to Play Act, the nation’s first law to override the NCCA’s prohibition which prevents student athletes from commercially exploiting their IP and related legal rights. See California Law Takes Paying College Athletes Out of the NCAA's hands. The NCAA maintains its rule notwithstanding the fact that the NCAA requires student athletes to permit the NCAA to exploit those very same rights to obtain millions in revenues every year.

For years, some legal scholars (see e.g. Lateef Mtima, What's Mine Is Mine but What's Yours Is Ours: IP Imperialism, the Right of Publicity, and Intellectual Property Social Justice in the Digital Information Age) and many social activists have urged that the NCAA rules allowed the grossly unfair exploitation of student athletes, many of whom hail from marginalized, working class, and rural communities, and for whom the college athletic scholarship system provides the only opportunity to obtain a college education. Although at one point it seemed that the courts were willing to curtail NCAA rules and allow students to protect their IP rights from unfair exploitation, this progressive wave came to a halt when the United States Court of Appeals for the Ninth Circuit overturned a California District Court ruling that the NCAA prohibition violates the federal antitrust laws. Instead, the Court of Appeals declared that the NCAA rule satisfies the antitrust “rule of reason” doctrine, which effectively permits an antitrust violation where the social benefits outweigh the social harms (raising the question as to whose “benefits” count and whose “harms” don’t.)

Under the new law, college athletes in California will be permitted to accept commercial endorsements and hire agents beginning in 2023. Hopefully the Fair Pay to Play Act will inspire similar legislation in other states, and finally allow all student athletes to share in the millions of dollars of commercial revenues they generate every year.

We will continue this important conversation during our annual CLE program.

In Memoriam Donald Dunner

In Memoriam

Donald R. Dunner: A Leader in Patent Legal Practice and A Champion for IP Social Justice

On October 16, 2019, the legal profession and the IP social justice community lost one of their pillars when Donald R. Dunner, name partner at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, passed away at the age of 88. Donald R. Dunner enjoyed a distinguished legal career and leaves an indelible imprint on contemporary patent law and practice.

One of the most accomplished and influential patent lawyers of his generation, Don Dunner helped to shape the contours of contemporary patent legal practice, not only through his successful representation of a wide array of clients, but also in supporting the progressive evolution of patent law. Under his auspices in 2003, the Finnegan law firm began its collaboration with IIPSJ to establish the nation’s first IP and Social Justice Continuing Legal Program, developed and implemented by Finnegan attorneys Tom Irving and Esther Lim and hosted by the Howard University School of Law. Now in its seventeenth year, the IIPSJ CLE program continues to educate IP attorneys and policy makers from around the nation as to the social justice obligations and opportunities presented by IP protection.

Don Dunner moderating the judicial panel during the 2018 CLE. Left to right: Thomas G. Saunders (WilmerHale), Hon. Susan G. Braden Retired Chief Judge (United States Court of Federal Claims), Hon. David P. Shaw (United States International Trade Commission), Hon. Kara F. Stoll (United States Court of Appeals for the Federal Circuit), Donald R. Dunner (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP)

One of the program’s most highly regarded features is the Judicial Roundtable Panel, wherein Don Dunner would moderate an annual open conversation with sitting members of the federal judiciary and explore cutting edge developments in the field of IP law, including important issues which implicate the law’s social justice resonance in the total political economy. Don would often use this opportunity to ask the judges to share guidance for students in the audience seeking clerkships. It was Don Dunner’s stature and reputation in the patent bar that attracted leading jurists to share their insights and perspectives and thereby make the Judicial Roundtable Panel and the IP and Social Justice CLE program a unique and highly respected professional education experience.

While Don Dunner’s practice impacted major issues in patent law, his professional efforts went beyond “top down” approaches to improving the field. A thoughtful and earnest mentor, Don Dunner guided the professional development of many junior attorneys, and along with many of his colleagues at the Finnegan law firm, he was personally engaged in supporting initiatives to enhance racial and gender diversity within the IP bar. Through these efforts many attorneys gained exposure to IP legal practice and the opportunity to participate in IP-oriented internship programs and full-time practice at Finnegan and other IP law firms, and to practice IP law in various corporate in-house counsel and government legal departments.

Donald R. Dunner leaves an impressive legacy in the field of IP legal practice. From his work in various governmental commissions  and studies to evaluate and improve the patent system, to his service as president of the American Intellectual Property Law Association, Chair of the American Bar Association’s IP Section, and as a recipient of the AIPLA Board of Director's Excellence Award, Don Dunner contributed much to the profession he cherished. He will be greatly missed by all of us who had the privilege to work with him, even as we continue to appreciate his enduring impact on IP legal doctrine, professional education, and the social justice aspirations of IP protection.