Frieser Legal

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  • Wisconsin Interscholastic Athletic Association Loses Key Appellate Case

    [April 2025 edit: This decision has been overruled by the Wisconsin Supreme Court.]

    The Wisconsin Court of Appeals (District II) has ruled in favor of Hayden Halter, a high school wrestler, in his case against the Wisconsin Interscholastic Athletic Association (WIAA). In February of 2019, Halter was suspended by the WIAA for two unsportsmanlike conduct violations issued to him during a wrestling meet. The Association’s rules then in effect specified that Halter would be suspended from the “next competitive event.”

    Halter and the WIAA disagreed about which competition would constitute the “next competitive event” and Halter commenced a civil action to enjoin the WIAA from holding him out of postseason competition. The circuit court issued a temporary restraining order (which allowed him to compete in postseason competition and go on to win an individual state title) but ultimately ruled in favor of the WIAA after a trial. Halter appealed the circuit court’s ruling. In deciding Halter’s appeal, the court of appeals came to two critically important conclusions:

    1. The WIAA is a state actor under the Supreme Court’s Brentwood standard

    Shockingly, this has not been decided by any state or federal court since the Supreme Court’s 2001 decision outlining the substantial entwinement test. The WIAA has strategically stipulated, settled, or intentionally not challenged state action assertions in previous cases, while attempting to win on other grounds. It has largely been successful in those efforts. This litigation strategy has likely been utilized by the WIAA to create more hurdles for athletes and schools in future cases. Factually, there are no meaningful distinctions between the WIAA and TSSAA from the Brentwood case. The percentage of public-school members and employees sitting on the Board of Control of the WIAA—the most important factors in determining substantial entwinement—are nearly identical to the TSSAA. The WIAA simply did not have any adverse precedent that plaintiffs could point to, up until now.

    2. The Association acted arbitrarily in interpreting and applying its Rules of Eligibility as it did

    The law of private/voluntary associations is widely accepted, but infrequently utilized by courts. As a result, no Wisconsin court had previously applied the law in the athletics context. Looking to other state and federal courts, which have held that the rule applies to high school athletics associations, the court of appeals applied the standard to the WIAA. It held that a private association cannot act arbitrarily or unreasonably in applying its own rules. Analyzing the facts of this case, the court found that the WIAA had. 

    Specifically, the court of appeals found that the Association had acted arbitrarily by creating additional, unwritten requirements in interpreting the “next competitive event” rule. By interpreting the rule to mean the next competitive varsity event, when the text of the rule made no reference to level of competition, the WIAA acted unreasonably and exercised “its will not its judgment.” Moreover, the court found that it arbitrarily refused to allow Halter to appeal his suspension to the Board of Control, again failing to follow the written text of its rules. 

    The WIAA has petitioned the Wisconsin Supreme Court for review of the case, arguing that the court of appeals erred in determining that it is a state actor and by failing to afford it a “presumption of correctness and validity in decisions” that it makes relating to the athletes it governs. In Halter’s response to the petition, he argued that the court of appeals interpreted the law and applied it to the facts of the case correctly, and that the Wisconsin Supreme Court need not intervene. The Wisconsin Supreme Court’s decision to grant review is currently pending.

  • Frieser Legal Named to “Top 100 Law Firms with Sports Practices”

    Frieser Legal has been named to Hackney Publications’ annual list of Top 100 Law Firms with Sports Practices. The list is published “with the goal of providing the sports industry with a guidebook to the top 100 law firms with an exemplary sports law practice.” Hackney Publications is the nation’s leading publisher of sports law periodicals.

    With a focus on intercollegiate athletics, Frieser Legal represents clients in athletics governing body regulatory affairs, name, image, and likeness (NIL) agreements, sport sponsorship and licensing contracts, and in related intellectual property and corporate matters. The firm provides counsel to athletes on a variety of legal matters, including eligibility and disciplinary proceedings, agency representation agreements, NIL contracts, and intellectual property. Additionally, we provide legal support to sports agencies, serve as outside general counsel to various sports industry ventures, and advise corporate sponsors of athletes and sports properties.

    Related Professionals

    Joshua M. Frieser, Esq.

    Principal Attorney, Frieser Legal

    josh@frieserlegal.com | (414) 200-9199

    Joshua M. Frieser, Esq. is a sports and business lawyer and Principal Attorney at Frieser Legal. His practice is focused on the representation of athletes, agents, and sports businesses. While working to solve the unique legal needs that they have, Josh represents athletes in internal disciplinary proceedings and NIL licensing agreements, as well as in related intellectual property and business planning matters. In addition to serving as counsel to college and professional athletes, Josh represents sports agents and sports industry ventures as outside counsel.

  • University Intellectual Property Implications in Name, Image, and Likeness Deals

    Every college and university in the world owns intellectual property. One of the most important aspects of a university’s intellectual property is its trademarks. Consider any “big-time” college athletics universities, such as the University of Alabama, Michigan, or Wisconsin. Each has iconic team colors, mascots, uniforms, fight songs, and logos. These universities carefully cultivate their reputation and branding to distinguish themselves from the competition and create recognition among not only fans, but casual observers. Universities maintain exclusive intellectual property rights to protect these assets, in the form of trademarks and copyrights.

    A trademark can be any word, phrase, symbol, design, or combination of these that identifies the nature and source of a good or service. Common examples of university trademarks are their logos, slogans, mascots, and even sometimes the specific shade of color used on jerseys or in their logos. However, copyrights protect original works of authorship fixed in a tangible form of expression. These can be photographs, game films, or recordings of university anthems and fight songs performed by the marching band.

    Universities have a strong interest in policing, governing, and protecting their intellectual property. Team names, slogans, and logos often carry a certain reputation or connotation with them that has taken years and substantial funds to establish. Misappropriation and misuse can often have the opposite effect, tarnishing the impression and standing of the university. Intellectual property rights also provide an immense revenue-generating mechanism. Universities can license the ability to use their property, but at a price—typically a very high price. This includes licensing the ability for companies to create apparel and merchandise with the team logo and name or granting broadcast and media rights to produce games for television.

    Avoiding Infringement

    Unauthorized use of a university’s intellectual property rights can result in significant penalties, including injunction, fines, or criminal charges, depending on the severity of the infringing activities. Therefore, when using an athlete’s name, image, and likeness, it is important to avoid misappropriating these trademarks and copyrights when identifying an athlete.

    Critically, an athlete cannot use or license their university’s intellectual property without appropriate permission from the university. Otherwise, their licensable rights are limited to their own name, image, and likeness (i.e., their own right of publicity). Their team’s identifiable intellectual property does not belong to them.

    Creating Content with Name, Image, and Likeness  

    When creating content using an athlete’s name, image or likeness, avoid using any university intellectual property without an appropriate license to do so. It is generally advisable not to use any team or university logos in pictures or descriptions of the athlete. Additionally, the athlete should not engage in sponsored activity in university-provided gear. In other words, the athletes should not appear in a commercial or take a photoshoot in their team jersey or apparel, unless the sponsor has independently secured a license from the university or Collegiate Licensing Company.

    Moreover, brands should use a generic font, such as Times New Roman, when specifically referencing a university’s name. University or team names that are written in a particular color, script, bold, italicized, or block font may be protected by trademark law (e.g., the script orange and blue “Gators” or capitalized block “BAMA”). For example, it would be permissible to include an image of the athlete, with the description “Alabama football #12” in a generic, black font.

    Any pictures of the athletes should not be in official team uniforms that include protected logos and colors. Instead, utilize a more generic uniform with colors like those of the team. Specific shades or color palettes may be trademarked if they have acquired distinctive meaning. One of the best examples of products that are produced with a player license and no team license are non-Topps baseball cards. Topps has had an exclusive license with Major League Baseball to produce cards with team intellectual property for decades. The Major League Baseball Players Association has a non-exclusive license with Topps and has licensed player likenesses to other companies over time, such as Panini and Upper Deck.

    For example, see the baseball cards below, which are produced with a license from the players, but not the teams:

    Notice what these three baseball cards have in common. They are all avoiding using team intellectual property while still properly identifying the athlete. While the jerseys look normal at first glance, each card took careful care to remove things that would infringe upon an MLB team’s intellectual property. There are no logos on hats or helmets, and no team names or identifiers on the jerseys. The cards omit team names completely in the description, using only the city name of “New York” in generic font, instead of “New York Yankees.”

    These cards are a fantastic example of how to properly utilize an athlete’s name, image, and likeness when creating content or promoting an athlete’s brand. They properly identify and distinguish the athlete in a recognizable form without infringing on any rights a team or university may have and avoiding infringement.

    Consider working with experienced counsel in navigating intellectual property challenges related to athlete and university licensing.

  • NCAA Finds NIL Rules Violations in Florida State Football Program

    The NCAA Division I Committee on Infractions (COI) has announced an infractions decision for violations of the NCAA’s name, image, and likeness (NIL) and recruiting rules in the Florida State football program. The conduct in question stems from an assistant coach facilitating a meeting between a prospective transfer student-athlete and an NIL collective affiliated with the institution. 

    This is the NCAA’s second NIL-related enforcement action. In February of 2023, the NCAA announced an infractions case involving the University of Miami women’s basketball team. Like the Florida State case, the Miami case involved a booster discussing NIL deals with prospective student-athletes. 

    Procedural Posture 

    This case was adjudicated through the NCAA’s Negotiated Resolution process. The Negotiated Resolution process is utilized when the parties (here, the NCAA enforcement staff, Florida State University, and the assistant football coach) all agree on the facts, violations, and appropriate penalties. There is thus no contested hearing before the COI and the case carries no precedential value for future cases. A Negotiated Resolution is akin to a plea bargain, where a defendant pleads guilty and foregoes a jury trial, usually in exchange for a lesser penalty. 

    The Rules Violations 

    The parties agreed that the assistant football coach and NIL collective engaged in impermissible recruiting activities. During the prospective transfer student-athlete’s official visit to Florida State, the assistant football coach organized a meeting between the athlete and the NIL collective’s CEO. At that meeting, the collective’s CEO offered the athlete $15,000 per month in exchange for transferring to Florida State. Importantly, the NCAA prohibits NIL deals being offered to an athlete when the deal is contingent upon their attendance at a particular school. The assistant coach further violated NCAA rules by providing false or misleading information to NCAA enforcement staff members during their investigation of the underlying recruiting violations. 

    Penalties 

    The penalties associated with this case are more significant than the penalties associated with the Miami case. In addition to the financial penalty, recruiting restrictions, and scholarship reductions assessed to Florida State, the parties agreed to a show-cause order for the assistant football coach. Moreover, the NCAA is requiring Florida State to disassociate with the NIL collective and its CEO for periods of one and three years, respectively. In the Miami case, the disassociation penalty was not applied to the booster involved in the rules violations. 

    No Penalties for Violations of Head Coach Responsibility Legislation 

    In the NCAA infractions process, head coaches are presumed responsible for violations that occur in their programs. Head coach responsibility violations are rebuttable, through a showing that the head coach promoted an atmosphere for compliance and effectively monitored his or her staff. Here, the enforcement staff agreed with the institution that a head coach responsibility violation had not occurred, and no corrective action was taken against Florida State head coach Mike Norvell. It is possible that the lack of penalties assessed to Norvell was a key factor in Florida State agreeing to the underlying violations and accepting the penalties assessed through the Negotiated Resolution process (i.e., the benefit of their plea bargain). 

    Key Takeaways 

    For businesses, boosters, and collectives that are looking to work with student-athletes on NIL deals, it is paramount to ensure that all contact with the student-athlete and the details of the agreement are compliant with any relevant NIL laws, rules, or policies. Working with experienced counsel can help ensure the student-athlete’s continued eligibility and help their current or prospective university continue to comply with all applicable rules and laws.

    Related Professionals

    Joshua M. Frieser, Esq.

    Principal Attorney, Frieser Legal

    josh@frieserlegal.com | (414) 200-9199

    Joshua M. Frieser, Esq. is a sports and business lawyer and Principal Attorney at Frieser Legal. His practice is focused on the representation of athletes, agents, and sports businesses. While working to solve the unique legal needs that they have, Josh represents athletes in internal disciplinary proceedings and NIL licensing agreements, as well as in related intellectual property and business planning matters. In addition to serving as counsel to college and professional athletes, Josh represents sports agents and sports industry ventures as outside counsel.

  • Frieser Legal Scores Victory for Client in Eligibility Dispute

    Frieser Legal is pleased to share that client Mick Marlow has been declared eligible to compete for the 2023-24 hockey season. The eligibility decision came from the Wisconsin Interscholastic Athletic Association (WIAA) after Frieser Legal had filed a lawsuit against Chippewa Falls Unified School District and the WIAA on behalf of the Marlow family.

    On October 31, 2023, the school district and WIAA deemed that Mr. Marlow was ineligible to compete at the varsity level for the 2023-24 hockey season. Frieser Legal served as counsel to the Marlow family throughout the eligibility dispute with the WIAA and during the subsequent litigation.

    Media coverage of the lawsuit can be found here.

    Related Professionals

    Joshua M. Frieser, Esq.

    Principal Attorney, Frieser Legal

    josh@frieserlegal.com | (414) 200-9199

    Joshua M. Frieser, Esq. is a sports and business lawyer and Principal Attorney at Frieser Legal. His practice is focused on the representation of athletes, agents, and sports businesses. While working to solve the unique legal needs that they have, Josh represents athletes in internal disciplinary proceedings and NIL licensing agreements, as well as in related intellectual property and business planning matters. In addition to serving as counsel to college and professional athletes, Josh represents sports agents and sports industry ventures as outside counsel.

  • How Conference Realignment Could Pose Antitrust and Tax Issues

    In 2021, the U.S. Supreme Court ruled that the NCAA and its conferences violated the Sherman Antitrust Act in NCAA v. Alston, by capping college athletes’ ability to receive educationally related financial benefits. The Sherman Act prevents otherwise competing entities (such as individual universities) from entering into agreements with each other that unduly restrain competition in a particular market. In Alston, the relevant antitrust market was college athletes’ athletics services.

    Generally, academic institutions compete amongst themselves for these services. But for an agreement between them not to pay the players (i.e., the NCAA rules prohibiting pay-for-play), each individual school could offer a more substantial financial package in exchange for playing services. The NCAA’s restrictions challenges in Alston capped the financial benefits that collegiate athletes could receive from their universities. Because the NCAA’s restrictions lacked sufficient pro-competitive justifications, they were found to be unnecessary to furthering the NCAA’s goal of preserving amateurism.

    Conference Realignment and Antitrust Issues

    In the wake of the Alston decision and the NCAA passing sweeping changes to its name, image, and likeness rules, the NCAA’s Division I is experiencing major conference realignment, which could potentially bring further antitrust scrutiny. It is evident that before the recent conference realignment proposals, and decisions to follow through, that the “Power 5” had a substantial market share, particularly in the college football market. Now, with the recent conference realignment, the new “Power 4” member conferences (the SEC, ACC, Big Ten, and Big 12) will have even more market control.

    This creates the potential for compensation restrictions to be challenged again. Collegiate athletes could potentially challenge these restrictions by arguing the conferences have enough market share to fix athlete compensation. Particularly looking at NIL rules and rules prohibiting direct pay-for-play from universities, these restrictions could be challenged under antitrust law and could be stricken down if there is a finding of unlawful restraints of trade.

    Employment Challenges

    In addition to potential antitrust arguments bolstered by recent conference realignment, college athletes have a substantially stronger argument in favor of an employer-employee relationship between athletes and their universities. There are currently two legal actions currently pending that are considering this issue. First, an Unfair Labor Practice charge against USC, the Pac-12, and the NCAA is claiming the parties violated the National Labor Relations Act (NLRA). Second, a case pending in the U.S. Court of Appeals for the Third Circuit is considering whether collegiate athletes are employees under the Fair Labor Standards Act (FLSA).

    When looking at conference realignment, considering in particular the handful of former Pac-12 institutions that now must travel from the west coast to the Midwest and east coast for Big Ten conference games and vice versa, there is substantial support for the argument that this mirrors more of a national and NFL-like travel model. Of course, conference realignment decisions are largely centered on media revenue interests. With such a focus on commercial interests and the inevitable increase in travel without focused regional dynamics, there is a substantially stronger argument that weighs in favor of athletes, who are arguing that there is a professional model now in place.

    Tax Issues

    If athletes are able to successfully bring forward antitrust or labor law claims, there may be newly created tax issues. As it stands, collegiate athletes are seen as amateurs. They receive a scholarship in exchange for their athletic performance, which is not taxable. With the possibility that athletes will be seen as employees who are getting paid (by their institutions and not collectives), college athletes will likely have a substantially increased tax burden. Moreover, there is the potential for college athletics program revenues to no longer be accumulated tax-free. With Congress considering passing legislation that may broadly effect college athletics—including reform related to NIL and athletes’ employment status—there is a possibility that the universities and NCAA may not be able to operate without any tax liability. 

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