University of Baltimore Law Review

The Student Athlete Level Playing Field Act: Time for College Athletes to Cash in?

*Arriana Sajjad

I. Introduction

Newly proposed federal legislation could change the landscape of college sports as we know it.[1] Starting as early as next year, athletes around the country may be able to start profiting from their name, image, and likeness (NIL).[2] On September 24, 2020, Congressman Anthony Gonzales (R-Ohio) and Congressman Emanuel Cleaver, II (D-Missouri) introduced a bipartisan bill known as the Student Athlete Level Playing Field Act (the Act).[3] If passed, the Act will give college athletes “the right to capitalize off their own name, image, and likeness” for the first time.[4] Congressman Cleaver is a former collegiate athlete[5] who believes the Act will provide student athletes the right to “control their name, image and likeness . . . [like] every other American in the country . . . .”[6] Congressman Gonzales, “a former Division I football player,”[7] consulted his collegiate athletic network to better understand the challenges presented prior to drafting the Act.[8]

II. Current NIL Laws

Currently, the NCAA prohibits college athletes from capitalizing on their NIL.[9] However, several states are enacting laws that “make it illegal for colleges to enforce the NCAA’s current NIL rules.”[10] Florida, for example, signed an NIL bill in June of 2020 that will go into effect July 1, 2021, which will make Florida the first state to allow college athletes to profit from their NIL.[11] In response, the NCAA was forced to consider NIL legislation that would allow college athletes to receive compensation for such rights.[12] The NCAA has turned to Congress to establish a “uniform NIL policy across the country to avoid potentially different rules in each state.”[13]

III. The Proposal

The Act would provide a number of new advantages to student athletes.[14] Most notably, the Act provides that any athletic organization or institution of higher learning from prohibiting student-athletes’ participation in athletics because they have entered into an endorsement contract.[15] Under the Act, college athletes would be able to hire agents to negotiate endorsement contracts on their behalf.[16] Athletes and agents would have to notify the athletic director of a university of the agency agreement within seventy-two hours of its formation.[17] As expected, however, athletes could not sign with any companies or brands related to tobacco, alcohol, marijuana, or gambling.[18] Moreover, boosters[19] are prohibited from paying athletes directly to keep the recruiting process fair.[20] To assist student athletes with “financial literacy,” universities would be required to develop a “course or program” for athletes to better understand their endorsement contracts.[21] The Act also provides “congressional oversight through the establishment of a commission that would include student-athlete representation.”[22] This commission would be named the Covered Athletic Organization Commission (the Commission), which would “act as an independent resolution body between a player and a school/NCAA.”[23] The Commission would be comprised of athletic directors, coaches, student-athletes, NCAA administrators, as well as professionals in sports marketing, contracting and public relations.[24]

While the Act has some advantages, it also leaves a number of unanswered questions for schools, states, and athletes.[25] The Act would grant schools the discretion to prohibit athletes from wearing endorsed clothing or gear to any athletic competition or university sponsored event.[26] The Act does not provide, however, any clarity regarding athletes endorsing companies that compete directly with brands who sponsor their school, such as Nike or Under Armour.[27] This could potentially lead to sponsors dropping the school and instead signing with an athlete who carries more social media presence.[28] According to Congressman Gonzales, including such a provision “would be unfair to the athletes,” even though most schools would prefer some clear direction.[29] Moreover, if passed, the Act would prevail over state NIL laws and “ensure that all member schools and conferences follow the same rules.”[30] While this could create one federal standard and potentially streamline the NIL process, this would “pre-empt[] any existing” or proposed state law.[31] Furthermore, the Federal Trade Commission (FTC) would enforce all aspects of the new law.[32] However, it is unclear how the FTC would “draw a distinction between payments for an athlete’s value as an endorser versus his or her value as a recruit.”[33] Congressman Gonzales hopes that the fair market value issue would resolve itself over time.[34] If passed, it is clear colleges and universities may be blindly navigating this new law, especially with third-parties and the conflicting NCAA/state legislation.[35]

IV. The Question of “When” and “How?”

While some states are adopting similar legislation,[36] Congressman Gonzales and Congressman Cleaver hope the Act becomes a federal standard for college athletics.[37] As the Act is co-sponsored by both Democratic and Republican representatives,[38] the Congressmen plan to bring the Student Athlete Level Playing Field Act to a vote in early 2021.[39] It is “no longer a question of if college athletes will sign endorsement deals. It’s [now a question of] when and how . . . .”[40]

*Arriana Sajjad is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review. Arriana is also on the National Moot Court Team, a teaching assistant for Introduction to Trial Advocacy, and serves as the Vice President for the Asian Pacific American Law Students Association. This past summer, Arriana was selected as the Association of Corporate Counsel North Capital Region’s Corporate Scholar and interned in-house for Lotame, a data solutions company. This past fall, Arriana interned for the Honorable Douglas R. M. Nazarian in the Maryland Court of Special Appeals and will intern for the Honorable Robert N. McDonald in the Maryland Court of Appeals this spring. Arriana is currently preparing to compete in the National Moot Court Finals competition to be hosted online in February 2021.

[1] See Stephen M. Gavazzi, Congress Could Provide a Way for College Athletes to Get Paid, Forbes (Sept. 25, 2020, 11:11 AM), https://www.forbes.com/sites/stephengavazzi/2020/09/25/congress-could-provide-a-way-for-college-athletes-to-get-paid/#15c3fe417953.

[2] See Barrett Sallee & Adam Silverstein, NCAA Takes Big Step Toward Allowing Name, Image and Likeness Compensation for Athletes, CBS Sports (Apr. 29, 2020, 9:52 AM), https://www.cbssports.com/college-football/news/ncaa-takes-big-step-toward-allowing-name-image-and-likeness-compensation-for-athletes/.

[3] See Student Athlete Level Playing Field Act, H.R. 8382, 116th Cong. (2020).

[4] Press Release, Rep. Emmanuel Cleaver, House of Reps. (Sept. 24, 2020), https://cleaver.house.gov/media-center/press-releases/reps-cleaver-gonzalez-unveil-bipartisan-bill-to-grant-name-image-and.

[5] See id.

[6] See id.

[7] Dan Murphy, NCAA, Congress Have Labyrinth of Options, but NIL Clock Is Ticking, ESPN (Dec. 17, 2020), https://www.espn.com/college-sports/story/_/id/30534578/ncaa-congress-labyrinth-options-nil-clock-ticking.

[8] Sabrina Eaton, Former Buckeyes Star Anthony Gonzalez Introduces Bill to Let College Athletes Make Endorsement Deals, Cleveland (Sept. 24, 2020), https://www.cleveland.com/open/2020/09/former-buckeyes-star-anthony-gonzalez-introduces-bill-to-let-college-athletes-make-endorsement-deals.html.

[9] See Dan Murphy, Bipartisan Federal NIL Bill Introduced for College Sports, espn (Sept. 24, 2020), https://www.espn.com/college-sports/story/_/id/29961059/bipartisan-federal-nil-bill-introduced-college-sports.

[10] Id.

[11] See Adam Wells, Florida to Be 1st State with NIL Rights for NCAA Athletes to Profit Off Likeness, Bleacher Rep. (June 12, 2020), https://bleacherreport.com/articles/2895927-florida-to-be-1st-state-with-nil-rights-for-ncaa-athletes-to-profit-off-likeness.

[12] See Sallee & Silverstein, supra note 2.

[13] Wells, supra note 11.

[14] See Gavazzi, supra note 1.

[15] See Student Athlete Level Playing Field Act, H.R. 8382, 116th Cong. (2020).

[16] See Press Release, Rep. Emanuel Cleaver, supra note 4.

[17] See H.R. 8382.

[18] See id.

[19] As defined by the NCAA, boosters “support teams and athletics departments through donations of time and financial resources.” Role of Boosters, ncaa, http://www.ncaa.org/enforcement/role-boosters (last visited Jan. 7, 2020). A booster is defined as follows:

[A]nyone who has: [p]rovided a donation in order to obtain season tickets for any sport at the university; [p]articipated in or has been a member of an organization promoting the university’s athletics programs; [m]ade financial contributions to the athletic department or to a university booster organization; [a]rranged for or provided employment for enrolled student-athletes; [a]ssisted or has been requested by university staff to assist in the recruitment of prospective student-athletes; [a]ssisted in providing benefits to enrolled student athletes or their families; [b]een involved otherwise in promoting university athletics.

Id.

[20] Murphy, supra note 9.

[21] H.R. 8382.

[22] Gavazzi, supra note 1.

[23] Dennis Dodd, Bipartisan Name, Image, Likeness Bill Introduced to U.S. House Would Supersede State Laws for College Athletes, CBS Sports (Sept. 25, 2020, 10:33 AM), https://www.cbssports.com/college-football/news/bipartisan-name-image-likeness-bill-introduced-to-u-s-house-would-supersede-state-laws-for-college-athletes/.

[24] See H.R. 8382.

[25] See Michael McCann, Latest NIL Bill Overrides States but Leaves Tax and Labor Questions Behind, sportico (Sept. 29, 2020, 2:55 AM), https://www.sportico.com/law/analysis/2020/latest-nil-bill-overrides-states-1234613887/.

[26] See H.R. 8382.

[27] See Murphy, supra note 9.

[28] See McCann, supra note 25.

[29] Murphy, supra note 9.

[30] McCann, supra note 25.

[31] Gavazzi, supra note 1.

[32] See Student Athlete Level Playing Field Act, H.R. 8382, 116th Cong. (2020).

[33] Murphy, supra note 9.

[34] See id.

[35] See Martin Edel et al., The New Name, Image and Likeness Playing Field for Colleges and Universities – What You Need to Know, JD Supra (Oct. 15, 2020), https://www.jdsupra.com/legalnews/the-new-name-image-and-likeness-playing-71376/.

[36] See Kristi Dosh, NAIA Becomes First in College Sports to Pass Name, Image and Likeness Legislation, Forbes (Oct. 7, 2020, 1:27 PM), https://www.forbes.com/sites/kristidosh/2020/10/07/naia-becomes-first-in-college-sports-to-pass-name-image-and-likeness-legislation/#1c8e46f611aa.

[37] See Press Release, Rep. Anthony Gonzalez, House of Reps. (Sept. 24, 2020), https://anthonygonzalez.house.gov/news/documentsingle.aspx?DocumentID=288.

[38] See Gregg Clifton & Iciss Rose Tillis, NCAA Takes Additional Steps Toward Ratification of Name, Image, and Likeness Legislation, JD Supra (Oct. 16, 2020), https://www.jdsupra.com/legalnews/ncaa-takes-additional-steps-toward-81002/.

[39] See Murphy, supra note 9.

[40] McCann, supra note 25.

A Circuit Split Remains Regarding the Standard Applied to Claims for Trademark Infringement by Commercial Products that Express Humor.

*Claudia Wozniak

Jack Daniel’s Properties, Inc. (Jack Daniel’s), a whiskey seller, submitted a petition for a writ of certiorari in the Supreme Court of the United States.[1] Jack Daniel’s sought review of the Ninth Circuit’s ruling that works of artistic expression do not violate the Lanham Act unless the trademark holder can establish that the defendant’s use of the trademark is either “not artistically relevant to the underlying work” or it “explicitly misleads consumers as to the source or content of the work.”[2] Jack Daniel’s also asked the Supreme Court to review the Ninth Circuit’s decision that the use of a trademark containing some “protected expression,”—humor in this case—is noncommercial, and therefore there could be no claim of dilution by tarnishment under the Lanham Act.[3]

The protected humorous expression that was at issue came in the form of a squeaky dog toy.[4] VIP Products LLC “designs, markets, and sells ‘Silly Squeakers,’ [which are] rubber dog toys that resemble the bottles of various well-known beverages, but with dog-related twists.”[5] One of these dog toys bears a resemblance to a Jack Daniel’s whiskey bottle, has the words “Bad Spaniels” under an image of a spaniel, and is labeled “the Old No. 2, on your Tennessee Carpet,” whereas the actual Jack Daniel’s label has “Old No. 7 Brand Tennessee Sour Mash Whiskey” written on it.[6] Jack Daniel’s demanded that VIP Products stop selling the toy, and VIP responded by seeking a declaration that their product did not infringe or dilute Jack Daniel’s trademark.[7]

The Bumpy Road to Justice: Why the ICC’s Rejection of Uighur Activists’ Petition May Not Be the End

*Ellen Pruitt

I. The Developing Situation in Xinjiang and the ICC’s Involvement

The northwesternmost region of Xinjiang, China is home to a distinct Turkish-speaking ethnic Muslim group, the Uighurs.[1] In April 2017, reports detailing the systematic state-sponsored persecution of Uighurs became public.[2] While it is unclear when the persecution first began, some experts and government officials estimate that between eight hundred thousand and two million Uighurs have been detained in Chinese “reeducation camps.”[3] As human rights organizations and media reports investigated the situation in Xinjiang, the international community began to respond.[4]

Most recently, on July 6, 2020, two exiled Uighur activist groups filed a petition with the International Criminal Court (ICC) calling for investigation of thirty Chinese officials based on their roles in the systematic persecution of Uighurs.[5] The ICC’s main charge is to prosecute individuals responsible for genocide, crimes against humanity, and war crimes.[6] The two filing groups—the East Turkistan Government in Exile (ETGE) and the East Turkistan National Awakening Movement (ETNAM)—alleged that the Chinese officials committed genocide and crimes against humanity when they instituted mass sterilizations and arbitrary detainment of Uighurs.[7] On December 15, 2020, Chief Prosecutor Fatou Bensouda of the ICC filed a report stating the initial ETGE and ETNAM petition was insufficient to warrant further investigation.[8] While the ICC filing called greater attention to the ongoing human rights abuses in the Xinjiang region, it failed to overcome multiple hurdles and was therefore unsuccessful.[9]

Police Unions, Labor Law, and Reform: Collectively Bargaining Away Public Policy Decisions and Individual Constitutional Rights

*Patrick Brooks

Police unions are the single greatest obstacle to long overdue policing reform in the United States, which has been vehemently demanded in recent months.[1] Roughly thirty-three states provide collective bargaining rights to law enforcement through statutes informed by the National Labor Relations Act (NLRA).[2] Under the NLRA, and most state statutes, collective bargaining rights include the power to negotiate not only wages and hours, but also the excessively broad scope of contractual language considered “other terms and conditions of employment.”[3] An expansive read of these vague statutes allows police unions to negotiate troubling provisions into their collective bargaining agreements (CBAs), which in turn impede transparency, accountability, and reform.[4]

While the intersection of powerful police unions and attempts at meaningful reform is multifaceted, there are specific ways these unions use labor law to resist change at all levels.[5] Increased collective bargaining capacity for police unions correlates with an alarming increase in civilian deaths stemming from police conduct.[6] When Florida deputies gained collective bargaining rights, incidents of violent misconduct increased by about forty percent.[7] The power of police unions to collectively negotiate extraconstitutional protections for officers must be considered in attempts to create meaningful policing reform.[8]

A Bite at Apple: Why the Technology Giant is Being Scrutinized by Developers

*Kayla York

I. Introduction

As of late, Apple has been publicly criticized by application (app) developers and regulators due to its App Store practices.[1] The technology company, which has a two trillion-dollar market value, receives a fifteen to thirty percent commission on certain purchases made within an app sold on the App Store.[2] Apple’s developer guidelines provide that apps may allow users to access services and/or content that were previously purchased, but “cannot ‘directly or indirectly target iOS users to use a purchasing method other than in-app purchase.’”[3] Further, the guidelines specify “that apps can’t offer access to new, paid features within the app they must offer in-app purchases.”[4]

II. The History of Epic Games

Epic Games, a video game company founded in 1991, has perhaps become the most profound critic of Apple’s practices in recent months.[5] Epic Games suggests that Apple has become a hypocritical monopoly while taking over the technology industry.[6] Apple introduced its first Macintosh computer in 1984 through an advertisement suggesting that IBM was a monopoly taking over the technology market.[7] The advertisement evoked sentiments similar to those created by the themes in George Orwell’s novel, 1984.[8] Epic Games claims Apple is now more like IBM was in 1984 because of its use of a “series of anti-competitive restraints and monopolistic practices in markets” for app distribution, and due to its “processing of consumers’ payments for digital content used within iOS mobile apps.”[9] Tim Sweeney, CEO of Epic Games, has said that “[t]he iOS App Store’s monopoly protects only Apple profit, not device security” and that Apple has “crippled the ecosystem by inventing an absolute monopoly on the distribution of software, [and] on the monetization of software.”[10]

Epic Games created Fortnite, which became a “global phenomenon,” amassing over 350 million players.[11] Epic Games also created and runs the Epic Games Store, which allows players to purchase and download various games developed by Epic Games and other third-party game developers.[12] However, when Epic Games requested Apple to put the Epic Games Store on the Apple App Store, Apple rejected the request.[13] Epic Games claims that it would create an app store of its own on iOS if Apple did not employ anti-competitive tactics.[14]

III. Other Competitors’ Fights with Apple

However, Apple is not only excluding Epic Games, but Microsoft, Google, and Facebook as well.[15] Microsoft’s new mobile gaming service, xCloud, recently launched on many different platforms, but is notably absent from Apple’s App Store.[16] Apple claims it denied Microsoft’s request to be included in the App Store on the basis that the gaming service would be in violation of App Store guidelines, since Apple cannot individually review xCloud.[17] Apple App Store guidelines also exclude Google’s gaming service, Google Stadia, from the App Store.[18]

Further, Facebook has been unable to receive Apple’s approval of a new Facebook gaming app that allows users to play online games and watch livestreams of the same.[19] Facebook ultimately had to remove gameplay functionality from the app to receive approval for the App Store.[20] Mark Zuckerberg criticized Apple’s power, calling the company a “gatekeeper” that has the “power to decide if [Facebook] can even release [Facebook’s] apps in [Apple’s] app stores to compete with [Apple].”[21] In August 2020, Facebook wanted to notify users purchasing tickets of online events—through a new Facebook feature—that Apple takes thirty percent of in-app purchases.[22] But Apple did not allow Facebook to inform users, claiming the information was irrelevant.[23] Facebook had to remove the notification before Apple would allow the new feature.[24]

IV. Epic Games Sues Apple

On August 13, 2020, Epic Games introduced a direct payment option in the Fortnite iOS app, which allowed players to purchase in-game currency at a twenty percent discount by maneuvering around Apple’s in-app purchase mechanism.[25] This option was in direct violation of Apple’s guidelines, which prohibit use of in-app purchase mechanisms developed by other business entities.[26] Apple immediately removed Fortnite from the App Store stating, “Epic Games took the unfortunate step of violating the App Store guidelines that are applied equally to every developer and designed to keep the store safe for our users.”[27]

Later that same day, Epic Games filed a ten-count complaint against Apple in California, requesting that the court issue an injunction “prohibiting Apple’s anti-competitive conduct,” mandate Apple put an end to its allegedly unlawful conduct, and provide remedies to help restore competition within the iOS App Distribution and iOS In-App Payment Processing markets.[28] Further, Epic Games requested that the Court deem the contractual and policy restraints between Apple and developers unlawful and unenforceable.[29]

Epic Games then released a video that mocked Apple’s Macintosh advertisement from 1984.[30] In Epic Games’ video, Apple is portrayed as the “dominant power” that has complete control.[31] Epic Games claims to have “defied the App Store Monopoly” and “[i]n retaliation, Apple is blocking Fortnite from a billion devices.”[32] Soon after, Google removed Fortnite from its Google Play Store.[33] In response, Epic Games filed a similar lawsuit against Google.[34] To prepare for trial, Epic Games has reached out to other technology executives about “forming a coalition of companies critical of Apple’s business conduct.”[35]

On August 24, 2020, the Honorable Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California granted a temporary restraining order against Apple.[36] The order prohibits Apple from terminating Epic Games’ other developer accounts that are unrelated to Fortnite.[37] Apple, however, is not required to bring Fortnite back to the App Store.[38] Nonetheless, on August 28, 2020, Apple terminated Epic Games’ Fortnite developer account, blocking Epic Games’ access to Apple’s software and developer tools that would allow it to develop future versions of software.[39]

V. The Future of Antitrust for Potential Technology Monopolies

On October 9, 2020, Judge Gonzalez Rogers denied Epic Games’ request for a preliminary injunction requiring Apple to put Fortnite back on the App Store.[40] However, Apple will be required to allow Epic Games to operate the Unreal Engine developer account.[41] No updates are expected on this case until the parties will be back in court in early 2021.[42] While this case will likely take many years to conclude, it may finally answer the question: how much control of the app industry will Apple be able to maintain?

*Kayla York is a second-year day student at the University of Baltimore School of Law, where she is a staff editor for Law Review. Kayla serves as the Publications Chair for the Women’s Bar Association, Public Relations Coordinator for UBSPI (University of Baltimore Students for Public Interest), and Secretary for the Criminal Law Association. This past summer, Kayla was an intern for both The Law Offices of Evan K. Thalenberg, P.A. and the Office of the State’s Attorney for Baltimore City, where she continued her internship through the fall semester. In the spring, Kayla will be an intern for the Office of the Attorney General for the State of Maryland in the Organized Crime Unit.

[1] See Joe Rossignol, Epic Games vs. Apple: Timeline of Events Surrounding Fortnite’s Removal from App Store, MacRumors (Sept. 10, 2020, 5:22 PM), https://www.macrumors.com/guide/epic-games-vs-apple/.

[2] See Jack Nicas, Apple Reaches $2 Trillion, Punctuating Big Tech’s Grip, N.Y. Times (Aug. 19, 2020), https://www.nytimes.com/2020/08/19/technology/apple-2-trillion.html; see also Isobel Asher Hamilton, Apple is Facing Rage and Insurrection from Developers Over the Commission It Charges Apps on the App Store, Bus. Insider (June 17, 2020, 6:08 AM), https://www.businessinsider.com/apple-developer-rage-30-percent-app-store-tax-2020-6.

[3] Hamilton, supra note 2.

[4] Id.

[5] About Epic Games, Epic Games, https://www.epicgames.com/site/en-US/about (last visited Nov. 9, 2020); see Rossignol, supra note 1.

[6] See Complaint for Injunctive Relief at 2, Epic Games, Inc. v. Apple Inc., 2020 WL 4698967 (N.D. Cal. 2020) (No. 3:20-cv-05640).

[7] Id. at 1.

[8] Id.

[9] Id.

[10] Reed Albergotti & Tony Romm, Tinder and Fortnite Criticize Apple for Its ‘App Store Monopoly’, Wash. Post (June 16, 2020, 9:38 PM), https://www.washingtonpost.com/technology/2020/06/16/apple-antitrust-european-commission/; Kif Leswing, Apple Sued by Fortnite Maker After Kicking the Game Out of App Store for Payment Policy Violations, CNBC, https://www.cnbc.com/2020/08/13/apple-kicks-fortnite-out-of-app-store-for-challenging-payment-rules.html (Aug. 13, 2020, 9:09 PM).

[11] Complaint for Injunctive Relief, supra note 6, at 10.

[12] Id at 6.

[13] See id. at 22.

[14] Id at 23.

[15] See Ben Gilbert, Apple Refuses to Allow Major Gaming Apps From Microsoft, Google, and Facebook Onto the App Store, and the Fight Just Went Public, Bus. Insider (Aug. 9, 2020, 11:10 AM), https://www.businessinsider.com/apple-refuses-to-allow-major-apps-from-microsoft-google-facebook-2020-8.

[16] See Nick Statt, Apple Confirms Cloud Gaming Services Like xCloud and Stadia Violate App Store Guidelines, The Verge (Aug. 6, 2020, 5:55 PM), https://www.theverge.com/2020/8/6/21357771/apple-cloud-gaming-microsoft-xcloud-google-stadia-ios-app-store-guidelines-violations.

[17] Id.

[18] Id.

[19] Seth Schiesel, Facebook Gaming Finally Clears Apple Hurdle, Arriving in App Store, N.Y. Times (Aug. 7, 2020), https://www.nytimes.com/2020/08/07/technology/facebook-apple-gaming-app-store.html.

[20] Id.

[21] Id.

[22] See Pranav Dixit & Ryan Mac, Mark Zuckerberg Said Apple Has a “Stranglehold” on Your iPhone, BuzzFeed ), https://www.buzzfeednews.com/article/pranavdixit/zuckerberg-apple-monopoly (Aug. 28, 2020, 3:19 PM).

[23] Id.

[24] Id.

[25] Rossignol, supra note 1.

[26] Id.

[27] Leswing, supra note 10.

[28] See Complaint for Injunctive Relief, supra note 6, at 34.

[29] Id.

[30] See Fortnite, Nineteen Eighty-Fortnite – #FreeFortnite, YouTube (Aug. 13, 2020), https://www.youtube.com/watch?v=euiSHuaw6Q4.

[31] Rossignol, supra note 1.

[32] Fortnite, supra note 30.

[33] Brian Fung & Shannon Liao, Fortnite’s Maker Sues Apple and Google After the Game Was Removed from Both App Stores, CNN Bus., https://www.cnn.com/2020/08/13/tech/fortnite-apple-store-removed/index.html (Aug. 14, 2020, 9:21 AM).

[34] Id.

[35] Nick Wingfield & Alex Heath, Epic Games Seeks to Form Coalition of Apple Critics, The Info. (Aug. 17, 2020, 5:53 PM), https://www.theinformation.com/articles/epic-games-seeks-to-form-coalition-of-apple-critics.

[36] Russell Brandom et al., Epic Judge Will Protect Unreal Engine – but Not Fortnite, The Verge (Aug. 25, 2020, 1:01 AM), https://www.theverge.com/2020/8/25/21400240/epic-apple-ruling-unreal-engine-fortnite-temporary-restraining-order; Order Granting in Part and Denying in Part Motion for Temporary Restraining Order at 1, Epic Games, Inc. v. Apple Inc., 2020 WL 5073937 (N.D. Cal. 2020) (No. 4:20-cv-05640-YGR).

[37] Brandom et al., supra note 36.

[38] Id.

[39] Stephen Nellis, Apple Terminates ‘Fortnite’ Creator’s App Store Account As Lawsuit Proceeds, Reuters (Aug. 28, 2020, 5:18 PM), https://www.reuters.com/article/us-apple-epic-games/apple-terminates-fortnite-creators-app-store-account-as-lawsuit-proceeds-idUSKBN25O2YM.

[40] Epic Games, Inc. v. Apple Inc., No. 4:20-cv-05640-YGR, 2020 WL 5993222, at *1 (N.D. Cal. Aug. 24, 2020); see Juli Clover, Epic Games Denied Preliminary Injunction for Fortnite, but Apple Can’t Block Unreal Engine, MacRumors (Oct. 9, 2020, 4:40 PM), https://www.macrumors.com/2020/10/09/apple-denied-fortnite-preliminary-injunction/.

[41] Clover, supra note 40.

[42] Id.