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  • Game On: States Team Up to Tackle NCAA's NIL Rules in Epic Legal Showdown

    In a significant legal maneuver, Florida, New York, and the District of Columbia have joined forces with Tennessee and Virginia in a lawsuit against the National Collegiate Athletic Association (NCAA). At the heart of the matter are the NCAA's rules concerning the use of athletes' name, image, and likeness (NIL), which the Plaintiffs contend infringe upon federal antitrust laws by impeding athletes' ability to capitalize fully on their earning potential. Filed in federal court in Tennessee, the amended lawsuit targets the NCAA's restrictions on athletes exploring NIL deals before they enroll in college. The NCAA’s current policy prevents prospective student-athletes and students in the transfer portal from having discussions with any booster or NIL collective regarding NIL opportunities available to them before they enroll in the school or sign their letter of intent. The Plaintiffs argue that such constraints not only stifle athletes' financial opportunities but also violate Section 1 of the Sherman Act antitrust statute by restricting and suppressing competition in the marketplace. The amended complaint states that “by unlawfully restraining competition for NIL opportunities, the NCAA causes substantial harm to the general economies of the Plaintiff States and to the economic welfare of present, future, and putative college athletes in the Plaintiff States.” [1] The complaint and its supporters argue that under the NCAA’s current rules, athletes often find themselves committing to colleges before fully understanding the potential NIL opportunities available to them. This presents a significant challenge as the value of NIL rights for collegiate athletes’ peaks during their college careers, with only a small fraction transitioning to professional sports. The NCAA's ban on NIL-related discussions during the recruiting process exacerbates this issue, depriving athletes of critical information about the value of their NIL rights and forcing premature commitments to colleges. Consequently, this stifles athletes' ability to negotiate the most advantageous NIL deals, ultimately suppressing the compensation they receive for their NIL rights. Acknowledging the anticompetitive nature of its NIL-recruiting ban, the NCAA has inadvertently distorted the competitive landscape of collegiate athletics. By preventing schools and affiliated collectives from competing for recruits based on NIL compensation, the NCAA has artificially created a price structure for NIL rights that fails to reflect the true demand for athletes' services. This distortion undermines the competitive process, depriving athletes of fair compensation and perpetuating an environment where their earning potential remains untapped. Moreover, the strict timelines of the recruiting process compound this issue, leaving athletes with limited time to make informed decisions about their future, further reinforcing the need for reform in the NCAA's approach to NIL rights. This legal confrontation reached a pivotal moment when U.S. District Judge Clifton L. Corker granted a preliminary injunction against the NCAA's NIL rules in February. This injunction, effective until a final ruling is reached, bars the NCAA from enforcing its regulations on NIL benefits for athletes. Judge Corker's decision critically questions the NCAA's justification for the timing restrictions on athletes entering NIL agreements, suggesting that the organization has yet to convincingly demonstrate how such arrangements undermine the purported goal of preserving amateurism. This scrutiny is vital in ensuring that policy decisions within collegiate sports align with broader principles of fairness, competition, and legal compliance. As the legal battle intensifies and the debate over NIL rights in collegiate athletics rages on, it is clear that significant changes are on the horizon. The collaboration between states in challenging the NCAA's policies underscores the widespread recognition of the need for reform. With the preliminary injunction against the NCAA's NIL rules in place, athletes now have a temporary reprieve, allowing them to explore potential NIL opportunities without fear of reprisal. However, the broader implications of this legal showdown extend far beyond individual athletes or states. It speaks to fundamental questions about fairness, competition, and the rights of student-athletes in a multibillion-dollar industry. Ultimately, the outcome of this legal battle will shape the future of collegiate athletics, paving the way for a more equitable and transparent system that empowers athletes to fully realize their earning potential while pursuing their academic and athletic aspirations. Bobby Hartwick is a second-year law student at Saint Louis University School of Law. He can be found on Twitter @BobbyHartwick and on LinkedIn (Bobby Hartwick). Sources: [1] https://oag.dc.gov/sites/default/files/2024-05/52%20-%20Amended%20Complaint%20%281%29.pdf

  • Bipartisan Solutions: Leveling the Playing Field for International Student-Athletes in NIL Ventures

    In 2021, the NCAA marked a historic moment by permitting college athletes to profit from their name, image, and likeness (NIL) through endorsements, autograph signings, and personal appearances. This policy shift sparked a booming market, estimated at $1 billion annually by NIL company Opendorse. However, amidst this wave of opportunity, international college athletes find themselves excluded from cashing in on NIL deals due to visa restrictions. In looking to solve this issue, international student-athletes find hope within bipartisan legislation. Most international college athletes enter the U.S. on F-1 visas, which severely limit their ability to work and earn money while in the country. International student-athletes on F-1 visas face a conundrum as NIL deals, which are deemed as labor, violate the terms of the student’s visas. F-1 visa regulations heavily restrict international students' ability to engage in employment, with exceptions mainly limited to on-campus work or post-graduate practical training directly related to their field of study. These restrictions clash with NIL opportunities, leaving international student-athletes facing a dilemma: sacrifice potential earnings from NIL activities or risk violating visa regulations and face severe penalties. Despite these challenges, some international student-athletes, like Purdue’s Zach Edey and UConn’s Aaliyah Edwards, have found innovative ways to monetize their NIL through avenues such as passive income streams and offshore NIL activities without violating visa restrictions. International student-athletes can explore opportunities for passive income, such as licensing agreements or royalties, which do not require active participation or work within the U.S. This could involve licensing their image or likeness for use in merchandise. For example, Edey has found a way to generate income from his NIL by licensing it to The NIL Store, operated by Campus Ink. This platform offers a range of merchandise featuring Edey and other college athletes, including custom jerseys, shirts, hoodies, and accessories. Despite being unable to actively engage in promoting his merchandise while in the U.S. due to visa restrictions, Edey's involvement in this business venture can be considered passive income. Engaging in NIL activities while off U.S. soil provides another viable option for international student-athletes. By participating in promotional events, endorsements, or media appearances on their home soil, international student-athletes like Aaliyah Edwards can generate income without violating visa restrictions. While these athletes have seized what opportunity they can to capitalize on their NIL, they often face a far more convoluted path compared to their American peers. International college athletes exhibit great dedication toward their athletic pursuits and generate revenue for their institutions, just like their American colleagues. Yet, these athletes must navigate the complexities of NIL regulations, jump through hoops, and risk their visas - all for the prospect of harnessing their full potential NIL revenue, a benefit seemingly more readily available to their American counterparts. In response to these issues, Representative Mike Flood (R-NE) and Representative Valerie Foushee (D-NC) introduced the “Name, Image, and Likeness for International Collegiate Athletes Act.” This proposed bill aims to amend the Immigration and Nationality Act to provide F visas and employment authorization for international student-athletes who enter into endorsement contracts for the commercial use of their names, images, and likenesses [1]. Unlike previous NIL reform bills, this proposed legislation offers a straightforward solution to the unique challenges faced by international college athletes. Representative Foushee has expressed that "[t]his bill would create a sub-category within the F-1 visa tailored for international student-athletes who want to pursue NIL opportunities, and they would be permitted to do so as long as they are progressing in their degree program." [2] If passed, it would afford international athletes the same opportunities to capitalize on their NIL as their American counterparts, marking a significant step towards equity in collegiate athletics. In another striking example of bipartisan cooperation, Senators Pete Ricketts (R-NE) and Richard Blumenthal (D-CT) have united with colleagues from various political backgrounds. Together, they crafted a letter directed to Department of Homeland Security (DHS) Secretary Alejandro Mayorkas, urging prompt action to safeguard international student-athletes’ access to NIL opportunities without risking their F-1 visas. The letter states that despite the DHS’s commitment to move quickly on the matter, the DHS has failed to update its rules over a year later, resulting in international students having to undergo another year without legal protections or clarity, leading star athletes to turn down opportunities, go through extreme hoops to stay in good standing with their visas or consider leaving school [3]. The letter also bore the signatures of Senators Chris Murphy (D-CT) and Shelley Moore Capito (R-WV), emphasizing the bipartisan nature of the initiative. Notably, while other facets of NIL regulation and proposed federal laws have encountered obstacles stemming from partisan divides on antitrust enforcement within collegiate sports, the endeavor to secure equitable rights for both domestic and international athletes appears to transcend party affiliations. While debates on various aspects of collegiate sports continue, bipartisan support for enabling international athletes to benefit from NIL opportunities should be a consensus. As discussions progress, ensuring fairness in equal monetary opportunity for all student-athletes, regardless of nationality, should remain a top priority. Bobby Hartwick is a second-year law student at Saint Louis University School of Law. He can be found on Twitter @BobbyHartwick and on LinkedIn (Bobby Hartwick). Sources: [1] https://www.congress.gov/bill/118th-congress/house-bill/7982/text [2] https://abc11.com/name-image-likeness-rep-valerie-foushee-introduces-legislation-to-expand-nil-opportunities/14761640/ [3 https://www.ricketts.senate.gov/news/press-releases/ricketts-blumenthal-call-out-dhs-for-failure-to-help-international-athletes-navigating-nil-visa-requirements/

  • The New Era of College Football May Feature Unlimited Coaching Staffs

    While the college athletics landscape has already seen great transformation over the past few years, it’s no secret that more change is coming in the near future. From the looming settlement of the House v. NCAA case, the prospect of college athletes being deemed employees, further conference realignment, etc. there’s little doubt that more change is on the horizon. As the NCAA becomes less powerful over the college athletics enterprise, some of their rules, regulations, and limits could be going by the wayside in short order. An example of this could be the elimination of the NCAA cap on how many on-field coaches a football program can have on staff. The Football Bowl Subdivision (FBS) Oversight Committee put forth a proposal to remove the cap while still limiting off-campus recruiting activities to 10 assistants (or 12 in the FCS) plus the head coach. If this comes to fruition, it would mean hundreds of analysts and quality control coaches around the country could finally coach in practice, bringing a monumental change to the profession. “The landscape has changed in college football,” said former Wyoming head coach Craig Bohl, who is now executive director of the American Football Coaches Association and sits on the oversight committee. “The competitive equity has changed.” Over the past decade and change, college football staffs have seen a dramatic increase in the number of off-field coaches oftentimes called “analysts.” Nick Saban most prominently started the trend and many of his former assistants who went on to become head coaches took the “Saban Blueprint” to other programs. While analysts provide value in scouting, game planning, and player development, they are technically not allowed to coach in practice or during games. While some believe this rule gets violated on a regular basis by some of the major programs, the NCAA has cracked down on analysts coaching in practice. In 2022, the NCAA laid down infractions on Nebraska for exceeding the countable on-field coaches rule. If the FBS Oversight Committee’s proposal goes through, these types of penalties would go away. Over the course of history in college athletics, rules have been strict, enforcement has been robust, and the preservation of the amateur model has been impregnable. However, as we enter this new era of NIL, the transfer portal, and player empowerment, the NCAA’s power to regulate is at its lowest ebb. This isn’t the first attempt to remove the cap on on-field coaches. A similar proposal was discussed NCAA transformation committee in 2022, but the Division I Council rejected it. In order to pass, the same Division I Council will have to approve it, but a lot has changed even over the last two years in the college athletics landscape to inspire confidence that the result will be different this time around. While in a different sport with different revenue figures, volunteer college baseball coaches filed an antitrust lawsuit against the NCAA for illegally limiting their pay to $0. In the aftermath of that lawsuit, the Division I Council reclassified all volunteer coaches across all sports as full-time assistants. The approval gave Division I baseball programs the ability to have three full-time paid assistant coaches. This, in conjunction with the legal environment surrounding the NCAA and college athletics as a whole, will likely lead to the end of the cap of on-field coaches in college football and perhaps other sports. If it comes to pass, there will be more opportunities for young coaches to break into the Division I coaching ranks. It means more actual coaching jobs, which will help younger coaches develop and older coaches stay in the game. Some have questioned whether all of this change in college athletics is healthy for the sport. While conference realignment has left certain schools behind, lessened the regionality of the sport, and widened the gap between the “haves” and the “have nots,” it is not all bad. Players finally getting to profit from their name, image, and likeness and coaches potentially getting more opportunities is certainly a positive moving forward. We’ll see if the FBS Oversight Committee’s proposal officially goes through, but the expectation is that the NCAA’s limit on on-field assistants will be gone in short order. Brendan Bell is a rising 2L and is the Southwest Regional Rep on Conduct Detrimental's Law School Student Board. He can be followed on Twitter (X) @_bbell5

  • Athlete Endorsements in the Wake of New FTC Regulation

    The Federal Trade Commission (FTC) voted Tuesday to approve a ban on non-compete agreements, effectively stripping American companies of the ability to bar employees from leaving for competitors in the same industry.[1] The FTC considers the new ban, which was passed by a narrow 3-2 vote, a victory for worker mobility and economic freedom. In a statement issued with the final rule, the FTC declared that non-compete agreements have stifled innovation, restricted job mobility, and undermined fair competition. The impact of this ban extends beyond the realm of traditional employment to the sports and entertainment industry, where endorsement contracts often include non-compete clauses. Athletes and entertainers, who have historically faced limitations on their ability to endorse competing brands simultaneously, stand to benefit from the freedom afforded by the FTC's ruling. Unlike traditional employment contracts where non-competes may serve to protect trade secrets or customer relationships, endorsement contracts can limit the earning potential and career opportunities of athletes and entertainers. These clauses typically restrict an endorser athlete from engaging in promotional activities with competing brands during and after the term of the contract. Clauses will often list specific names of potentially competing brands with which the endorser cannot partner because doing so would negate the value of the deal. These clauses can be followed by catch-all language that prohibits the athlete from endorsing any product across entire industries or market sectors rather than just specifically enumerated brands. Depending on the drafting of these clauses, they can serve as formidable barriers, limiting the earning opportunities for these influential figures. Diving into the language of the new rule, the FTC’s press release from Tuesday stated that the final rule “provides that it is an unfair method of competition—and therefore a violation of section 5—for employers to, inter alia, enter into non-compete clauses with workers on or after the final rule’s effective date.”[2] Further, “[t]he final rule provides that, with respect to a worker other than a senior executive, it is an unfair method of competition for a person to enter into or attempt to enter into a non-compete clause; to enforce or attempt to enforce a non-compete clause; or to represent that the worker is subject to a non-compete clause.”[3] The FTC uses some very broad definitions for key terms in the new rule which makes it applicable to athlete endorsers. “Non-compete clause” is defined in part as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from (1) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition.”[4] Moreover, this rule does not just apply to statutorily defined employees, as “employment” simply means “work for a person” under the new rule, and the term “worker” is defined as “a natural person who works or who previously worked, whether paid or unpaid, without regard to the worker’s title or the worker’s status under any other State or Federal laws, including, but not limited to, whether the worker is an employee, independent contractor, extern, intern, volunteer, apprentice, or a sole proprietor who provides a service to a person.”[5] Because athlete endorsement deals are typically constructed as independent contractor agreements, the rule should apply given the new language. “Work for a person” is so broadly defined that it is sure to include the types of work that an athlete would do for a company or brand in an influencer deal. The exclusivity clauses that limit the competitor brands an athlete could work for would also probably be found “to prevent a worker from... accepting work... with a different person” because the clauses cut off potential new work opportunities under contractor agreements. Critically, the final rule would only ban prohibitions that “begin after the conclusion” of the original employment term. Accordingly, companies seeking athlete endorsements would need to ensure that any potential exclusivity clauses they have in place do not extend beyond the term of the employment agreement. This could potentially lead to companies negotiating for longer terms in their endorsement deals because there can no longer be continuing obligations for the athlete to fulfill. In a contract between NBA legend Shaquille O’Neal and Papa Johns released on the SEC’s archives, we can see a potentially problematic provision under the new rule.[6] The highlighted section of the above paragraph limits Shaq, through his loan-out company, from working with other competitor brands for the term and an additional year after the expiry of the term. This arrangement might receive different treatment because Papa Johns is limiting the ability of ABG-Shaq, LLC to use O’Neal rather than placing any employment restrictions directly on Shaq himself. But given the broad definitions of the new rule, Shaq still might be able to argue he is doing “work for a person” even if he is entering into the agreement through his LLC. This limitation on his ability to accept other work after the term of the agreement has expired seems to be the type of restriction the FTC’s new rule is meant to outlaw. Another contract found on the SEC’s archives between former NBA star Paul Silas and Healthcare Distribution Specialists LLC uses an exclusivity clause that would probably be unaffected by the new final rule.[7] By limiting the employment restrictions to the term of the agreement, it falls outside the scope of the new regulation. The new rule will take effect in four months unless it is blocked by legal challenges and pro-business groups have already declared their opposition, citing concerns about protecting proprietary information and intellectual property. While the ban on non-compete agreements does not preclude other methods of safeguarding sensitive information, such as nondisclosure and confidentiality agreements, critics question the FTC's authority to enact such a sweeping and retroactive prohibition. A lawsuit from a tax services company, Ryan, was already filed in federal court on the same day the FTC announced the final rule, seeking to have the rule blocked under the Administrative Procedure Act. While it's hard to imagine that companies like Nike and Adidas would agree to a deal with an athlete knowing that its rival was already sponsoring them, the FTC’s ban on non-competes could still disrupt the ecosystem of athlete endorsements. Smaller brands might not care about other competitors after they cash in on associating a player’s likeness with their products, and maybe bigger brands would put up less resistance to seeing their star athletes flip sides the moment a deal is over.  The rule surely raises questions about the dynamics of brand partnerships within the sports industry. Whatever the outcome may be, navigating this new normal for endorsement deals will require lawyers to strategize when drafting their agreements with athletes and entertainers in the future. Caleb Clifford is a third-year law student at USC Gould School of Law with an interest in labor, employment, and IP law. He was the president of USC’s Sports Law Society and can be found on (X) @Cliffnotes_ and LinkedIn (Caleb Clifford). Sources: [1] https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes [2] Id. [3] Id. [4] https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete-rule.pdf [5] Id. [6] https://www.sec.gov/Archives/edgar/data/901491/000115752322000422/a52685406ex10_1.htm [7] https://www.sec.gov/Archives/edgar/data/1470915/000107878212001913/f8ka080212_ex10z1.htm

  • Could a “Special Status” Thread the Needle between College Athletes as Employees and Amateurism?

    One of the biggest questions hanging over the heads of every college athletics department, athlete, and fan, is whether college student-athletes are going to become employees of the universities or remain amateurs. Recently, the University of Tennessee approved the creation of a non-profit foundation to directly pay student-athletes if the rules change to allow for such payments.[1] 11 of 14 SEC schools have similar foundation plans.[2] Athletic departments are starting to prepare for a change in the status quo, whether from the courts or Congress. Dartmouth and USC have seen challenges to athlete employment status before the National Labor Relations Board (NLRB) under the National Labor Relations Act (NLRA). Dartmouth continues to fight the unionization efforts, and in the USC case, a final decision might not be made until 2025, which would likely be appealed and then potentially appealed again to the federal appellate court. All of this is to say that a definitive answer is unlikely to be provided anytime soon. Even with a final ruling, the NLRA governs only private employers, leaving employment considerations for athletes at public universities to state law. Nevertheless, the NLRB is arguing that the NCAA and conferences are “joint employers” of the athletes, and thus all schools may also be subject to NLRB’s jurisdiction.[3] While the recent cases seek a yes or no answer to employment status, a third hybrid option may thread the needle. This option could alleviate the NCAA’s fears of an employment model and provide enough fair value and protection for the athletes. During the NIL Congressional roundtable a few months ago, there was a strong consensus that college athletes deserve a share of the billions in revenue that they help to generate. ACC Commissioner Jim Phillips and Alabama Athletic Director Greg Byrne spoke of the potential of a “special status” for athletes without deeming them employees. On Monday, the College Football Players Association (CFBPA) announced they are taking the lead in advocating for such “special status.” The CFBPA is a group of current and former college football players who want to ensure football players “have a collective voice in the decision-making within their sport.” CFBPA Executive Director Jason Stahl wrote in a newsletter on Monday that they “aim to create a new model of collective bargaining through legislation which stops short of full employment classification for college athletes, but which gives them numerous protections and the ability to collectively bargain with conferences and/or their schools.”[4] Essentially providing a way for athletes to participate in revenue sharing, without the other regulatory requirements in an employment model. The idea would be to implement key protections for athletes such as increased medical care, regulations for health and safety, and mechanisms for athletes to challenge unfair treatment by coaches and administrators into the specially created status, mirroring employment regulations. But would this model, one that takes away antitrust challenges to the NCAA and the possibility of employment and unionization, strip athletes of all the bargaining power they currently enjoy? Cited in Stahl’s newsletter, Illinois law professor and labor attorney Michael LeRoy explored the idea of a special status in his 2012 article “An Invisible Union for An Invisible Labor Market.” LeRoy argues that “a unique hybrid form of collective bargaining that draws from elements in the NLRA and state collective bargaining laws” would be appropriate for college athletics. Stahl said they would expand the collective bargaining rights beyond those outlined in LeRoy’s article. LeRoy proposed limiting the bargaining to (1) scholarship shortfalls, (2) extended or improved educational benefits, (3) complete medical and hospital insurance for football-related injuries, (4) long-term disability insurance for injuries with delayed symptoms, (5) transfer and eligibility rights not inconsistent with NCAA rules, and (6) a grievance process to challenge abusive treatment by coaches and administrators.[5] The special status would need a non-statutory labor exemption on antitrust claims. This exemption is enjoyed in the union-employers collective bargaining process, exempting the CBA from antitrust liability. In Brown v. Pro Football, Inc., the SCOTUS extended the non-statutory labor exemption beyond just collective bargaining to joint action by employers, here NFL teams, which was ancillary to the collective bargaining process.[6] This would apply to conferences and universities, allowing them to unilaterally impose terms if the collective bargaining process breaks down and stalls. However, this extension might not apply under the special status. CFBPA Vice President and athlete advocate Maddie Salamone said that “given the unique role that college athletes play in the ecosystem of college athletics, it’s worth exploring a new model specifically designed for them.” The CFBPA said that they will soon be on Capitol Hill to meet with Congress members and to gauge their interest in supporting a bill incorporating this model. Andrew Gagnon is a 2L at the University of Kansas School of Law where he is a representative in the Student Bar Association and President of the Sports Law Society. He can be found on Twitter @A_Gagnon34 and LinkedIn as Andrew Gagnon. Sources: [1] https://www.wvlt.tv/2024/03/04/we-need-be-prepared-ut-creating-non-profit-pay-student-athletes-future/ [2] Id. [3] https://www.jdsupra.com/legalnews/nlrb-shoots-its-shot-dartmouth-1981813/#:~:text=On%20February%205%2C%202024%2C%20Region,under%20the%20direction%20of%20their [4] https://jasonstahl.substack.com/p/3d969521-0b7c-4972-a617-8a4b1e3cad98 [5] Michael H. LeRoy, An Invisible Union for An Invisible Labor Market, 2012 Wis. L. Rev. 1077 (2012). [6] Brown v. Pro Football, Inc., 518 U.S. 231, 237 (1996).

  • Shattering the Glass: Women's Basketball Continues Breaking Barriers and Captivating Audiences, Despite Battling Glaring Disparities

    It’s no secret that women’s basketball is finally having its moment. A palpable buzz surrounds the sport, boosted by the 2024 NCAA Women’s Basketball Championship Game between No. 1 seeds Iowa and South Carolina. The NCAA Championship game had 24 million viewers–becoming the most-viewed women’s college basketball game ever, ESPN’s most viewed college basketball game on record (Men’s or Women’s). Additionally, for the first time in history the NCAA Women’s Basketball Championship game garnered more viewers (9.2 million more) than the NCAA Men’s Basketball championship game. Spearheaded by Caitlin Clark, millions of new fans began to watch women’s college basketball this season. Iowa sold out every game they played, whether they were the home team or visitors, while millions of girls across the country both young and old donned Caitlin Clark branded merch. While Clark and Iowa ultimately lost to the University of South Carolina Gamecocks in the Championship game, Gamecocks coach Dawn Staley hasn’t been afraid to point the spotlight Clark’s way–the South Carolina coach is simply the best of the best, and stated on Bernstein and Holmes, “When I think about Caitlin Clark, I do think she's one of the greatest. Like she's the greatest of her time…. I want women's basketball to grow, and I'm not too shy about saying why it grows. She's made it grow over the past two years.” The “March Madness effect” trickled into mid April, as this week a record 2.45 million viewers tuned in for the 2024 WNBA Draft. This number is nearly five times the viewership the Draft received just one year ago. The 2024 Draft Class was exceptional: Including players such as the face of women’s basketball, and No. 1 overall pick Caitlin Clark; the No. 2 overall pick Cameron Brink; No 3. overall Pick Kamilia Cardoso; No 4. overall Pick Rickea Jackson; and No. 7 overall pick Angel Reese (to name a few). Further demonstrating the growth of women’s sports, SponsorUnited’s 2023-2024 NIL Marketing Partnership Report revealed that female student athletes outperformed their male counterparts in terms of NIL partnership deals over the past year. WBB stars like Caitlin Clark, Angel Reese, and JuJu Watkins led this category again, representing 35% of all women’s NIL deals–showing the world just how relevant women’s sports have become. While most of the media spotlight this season was focused on Clark, I’d be remiss not to highlight the incredible feats accomplished by some of the sports other star players: In her NCAA tournament debut, Juju Watkins broke Cherly Miller’s USC single-season scoring record, which has stood since Miller set her record in 1986. Dawn Staley and the University of South Carolina Gamecocks finished an undefeated season after losing all five of the starting lineup from last season, earning the South Carolina Coach her third NCAA championship. Iowa State’s Audi Crooks dropped 40 points in her first NCAA tournament game, as a freshman while shooting 90% from the field–the most points scored by a freshman in a tournament game, ever. University of North Carolina’s Alyssa Ustby became the first UNC women’s basketball player to record a triple double, doing so in only 3 quarters, finishing with 16 points, 16 rebounds, and a career best 10 assists. Thanks to the popularity of Clark and the other incredible women in the 2024 draft class, there have been several notable highs for women’s basketball in the past few weeks, and millions of newly minted women’s basketball fans are eagerly awaiting the start of the WNBA season. Despite all the excitement and anticipation it created, this week's WNBA draft has also cast a glaring spotlight onto the stark disparity of WNBA salaries to a wider audience than ever. While on her rookie contract, Clark, the No. 1 overall pick, will earn a salary of just $76,533 this season. While one could argue that Cark will make triple this in endorsement deals, which is likely true–Think about the reality this creates for WNBA players who aren't wearing number 22 for the Indiana Fever. Statisca.com reports that the average WNBA player's annual salary barely approaches $103,000 per year compared to the average NBA player, which makes 9.4 million per year. A gap that large is simply unacceptable. To put it simply, the WNBA as it currently stands does not afford their players a salary that’s comparable to their talent, which results in many WNBA players feeling the need to play overseas during the offseasons, which comes with unprecedented risks to the player, their career, and sometimes their freedom. The millions of new women’s basketball fans will soon be exposed to other harsh realities and learn of other disparities between the WNBA and the NBA. These include examples such as the disparity in available roster slots throughout the league’s 12 teams, massive media rights disparities, commercial flight woes, and the need for league expansion into untapped markets all across the country (which each could be an article on its own). The excuse that “no one watches women’s basketball” has clearly been debunked this season, and can no longer be used as an excuse to justify the glaring disparities in pay, conditions, and opportunities the WNBA experiences. As the popularity of the WNBA and women’s sports clearly explodes, something must be done to address these disparities. As the public grapples with learning about WNBA salaries, it is up to us–the fans of women’s basketball–to continue this momentum into the future for the W. Women’s basketball is filled with excitement, endless stories, and big personalities both on and off the court. Change is not going to happen overnight, and the WNBA is “only” 28 years old. However, if this past college basketball season is any indication, the hype is real, and women’s basketball is a force that will only grow stronger. The all-time winningest coach in NCAA basketball, Stanford women’s basketball coach Tara VanDerveer said it best: “You gotta keep giving [women’s sports] sunshine, water and fertilizer to keep it going.” Hannah Valente currently serves as Legal Coordinator for Raymond Representation. She is also a certified agent in the NBA, WNBA, and FIBA. She graduated from Elon University School of Law in 2022. She can be found on Twitter @hannahvalente13.

  • Monday Morning Lawyering-State of Texas v. Rashee Rice

    Let’s clear the air on everything involving Rashee Rice, as there has been too much information and too many people reporting the same things over and over again with some of it being factually untrue. Rashee Rice will eventually be arrested and charged. That is a certainty. However, let me tell you what I expect Rashee Rice to be charged with and why. Finally, we will discuss why Rashee Rice’s attorney’s press conference was ill-advised and flat out bizarre. I was a felony prosecutor for over three years, and I have been a criminal defense attorney for two and a half years. In that time, I have tried forty criminal trials and litigated two thousand criminal cases from start to finish. My analysis is based on personal experience. The first charge I expect him to be charged with is Street Racing resulting in Serious Injury. We all saw the video where a Lamborghini and a Corvette appeared to be weaving in and out of traffic at high rates of speed. The dash cam video also showed the resulting crash which caused a six car pile-up. Street Racing is always very, very ill-advised as prosecutors, judges, and juries, have no sympathy for an individual driving 100+ mph especially when kids get injured. This charge is a second-degree felony punishable by 2 years in prison to a maximum of 20 years in prison. The Street Racing charge itself is usually a 3rd-degree felony, but the serious injury elevates the charge to a second-degree felony. The serious injury element comes into play because at least one of the alleged victims was hospitalized as a result of the crash. Time will tell how extensive the injuries are in fact. If they are permanent, don’t expect that charge to be reduced. The second charge that I expect is “Leaving the Scene Accident involving Serious Injury.” Under Texas Law, you are required to do the following: The operator of a vehicle involved in a collision resulting in the injury or death of a person or damage to a vehicle that is driven or attended by a person shall: (1) give the operator's name and address, the registration number of the vehicle the operator was driving, and the name of the operator's motor vehicle liability insurer to any person injured or the operator or occupant of or person attending a vehicle involved in the collision; (2)  if requested and available, show the operator's driver's license to a person described by Subdivision (1); and (3)  provide any person injured in the collision reasonable assistance, including transporting, or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation. From all accounts, it doesn’t appear Rice did anything remotely approaching compliance with the statute. In fact, there is video of Rice leaving the accident with three other individuals on the highway itself. Rice’s alleged indifference to human life after allegedly causing this accident is extremely aggravating. Criminal Defendants need to understand that when a prosecutor eventually submits a plea offer, they often do that after speaking with all alleged victims involved. Many states have laws protecting victim’s rights. This charge carries a 2 year to 10-year prison sentence. Am I saying Rashee Rice is absolutely going to prison? Absolutely not. However, these are the sentencing statutory guidelines, and they are supposed to be applied to everyone the same way. That brings me right into my final analysis, which concerns the bizarre press conference that Rashee Rice’s attorney held yesterday. Free Legal Information: In any criminal case, the greatest leverage that a criminal defendant will always have is that the State MUST prove the charge(s) beyond a reasonable doubt. Admissions are the single greatest piece of evidence a prosecutor has. They are admissible, and a jury doesn’t need to think twice before convicting someone when the Defendants themselves acknowledged their culpability. There were reports that Rice contacted Lamborghini and told them he was driving. I do not know if that is true. However, if it is, that individual Rice admitted to driving to WILL most definitely be a witness in his imminent criminal case. Additionally, his semi-admission on social media will also be used against him. Are we seeing a pattern here? Free Legal Advice: NEVER admit anything to anyone ever (expect maybe your attorney). The police are not going decide to let you off the hook-on serious felony charges because you came clean and said you are sorry. They will make you feel like you are doing the right thing and charge you anyways. They also know they have you cold after that and that you, as the criminal defendant, have lost all leverage to plea. That brings me to Mr. West’s bizarre press conference: By admitting he is the driver, you are already waiving the white flag for the entire criminal case. The dash cam video showed people exiting the vehicle, but it definitely was not definitive as to who was driving. By admitting to the world he was driving, Mr. West gave away the single toughest element to prove which was Rice was in fact driving the vehicle. Now that this case has gotten so much publicity, Mr. West does not have the ability to negotiate a plea deal behind closed doors outside the many cameras and fingers of the media. If Rice were to get a slap on the wrist, the District Attorney would face major backlash as countless Defendants who have gone to prison for doing the exact same thing that Mr. Rice allegedly did. It would be fair criticism to say that the DA is condoning the creation of two separate judicial systems: One for the rich with high-priced attorneys and well-connected friends and one for the everyday people. With the media attention, the DA is going to have no choice but to treat Mr. Rice like any other Defendant because the case against him is so strong. At trial, this case on these two charges would likely be a 30-minute guilty verdict on both counts. Is Mr. West’s statements admissible at trial? No; however, the prosecutor and the plaintiff attorney now know for sure that Rice’s own attorney views Rice as low-hanging fruit. Neither will have any inclination to negotiate whatsoever absent a godfather offer. They both have pretty strong cases with serious jury appeal. Rule #1 of being a criminal defense attorney: NEVER let the prosecution know how weak you view your own case. What motivates a prosecutor to resolve a criminal case with high media exposure is the potential of losing. That is it. Prosecutors are underpaid, overworked, and overly competitive with each other. If they know you are not going to try this case, you will NEVER get their best offer. Their best offer would undoubtedly be the non-incarceration offer the client is undoubtedly seeking. What incentive does the prosecutor have to cut a deal? They have a high media exposure case with lock and load evidence. It is literally an ambitious prosecutor’s dream. For Rashee Rice: What’s done is done. However, let me leave you with this: In a criminal case, every time a Defendant opens their mouth, they lose leverage. To quote Detective Alonzo Harris from the film Training Day: “Do you want to go to jail, or do you want to go home?" Thus, if you are ever under criminal investigation, keep your mouth shut and hire an experienced criminal trial attorney as soon as possible. It just may be the difference between going to jail or going home. Matthew F. Tympanick, Esq. is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense, Personal Injury Law, and Sports Law. Arrested or Injured? Don’t Panic…Call Tympanick! 1(888)NOPANIC. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and a Staff Editor on the UMass Law Review. He has appeared nationally on television, radio, and podcasts discussing criminal cases specifically sports criminal cases. He was previously a felony prosecutor where he prosecuted thousands of misdemeanor and felony criminal cases. He also has tried over 40 jury and non-jury cases. You can follow him on Twitter, Instagram, and Facebook @TympanickLaw.

  • Jackson County Voters Reject Stadium Tax for Royals and Chiefs

    Much like Camden Yards in Baltimore ushered in a new era of ballparks across Major League Baseball over three decades ago, developments like the Battery in Atlanta, Ballpark Village in St. Louis, and the new Wrigleyville in Chicago have inspired a new objective for owners seeking to generate revenue outside of the turnstiles. Constructing an entertainment district around stadiums is something that is becoming more and more of a buzzword when new facilities are being built. Yes, the 81 baseball home games and 8 home football dates inevitably bring masses of people to the ballpark and its surrounding area every year. However, there are still 284 more days (minus postseason or exhibition games) left in a year for teams to search for additional revenue streams. However, building these projects is easier said than done, especially when teams ask local taxpayers to help foot the bill. Another example of the difficulty came into the light this week in Kansas City. This week, residents of Jackson County, Missouri resoundingly voted down a sales tax measure that would've helped to fund a new downtown ballpark along with major renovations to Arrowhead Stadium. More than 58% of voters ultimately rejected the plan, which would have replaced an existing 3/8 of a cent sales tax that has been paying for the upkeep of Truman Sports Complex -- the shared home for more than 50 years for both Kauffman and Arrowhead Stadiums -- with a similar tax that would have been in place for the next 40 years. The Royals, who had pledged at least $1 billion from ownership for their project, wanted to use their share of the tax revenue to help fund a $2 billion-plus ballpark district. The Chiefs, who had committed $300 million in private money, would have used their share as part of an $800 million overhaul of Arrowhead Stadium. The debate about whether public funds should be used to finance new stadiums and the entertainment districts around them is nothing new. Stadium advocates often argue that stadium funding is a worthwhile public investment because game-related commerce improves local economic well-being by generating jobs, income, and tax revenue. However, some economists have refuted this argument by asserting that in reality, stadiums have a poor record of providing such benefits. Where things go both specifically in Kansas City and more broadly across the country will be interesting to follow. For now in Kansas City, both the Royals and Chiefs still have lease agreements in place for another seven years to play at the Truman Sports Complex in Jackson County. Usually, a request for public money comes with the threat that the team could leave town if the measures fail. Neither team has gone that far, though, and it's worth noting than Royals owner John Sherman is a Kansas City native and has signaled he isn't interested in leaving the area. If a move were to come, crossing the state line from Missouri to Kansas would be the likely destination. The Chiefs on the other hand are only seeking renovations to Arrowhead Stadium. Given their success at home in recent years, it would be hard to imagine seeing the Chiefs play elsewhere. More broadly, we will see if the vote in Jackson County impacts other proposed renovations or brand-new ballparks across the country. The Chicago White Sox and Arizona Diamondbacks are likely “next in line” when it comes to renovations or entirely new stadiums in MLB. In the Phoenix market, the Arizona Coyotes had a new arena and entertainment proposal rejected by City of Tempe voters last year and are still seeking alternative options to stay in Arizona. While some efforts will face taxpayer opposition, don’t expect owners and teams to stop attempting to gain public financing to not only build new stadiums, but developments around them. Ideally, democracy will have its say in whether these projects ultimately get over the finish line though. Brendan Bell is a 1L at Arizona State Law School and is the Southwest Regional Representative on the Conduct Detrimental Law School Student Board. He can be found on (X) @_bbell5

  • March Madness ‘Madness’: How NIL and the G League Ignite's Closure are Reshaping College Basketball

    As the excitement of March Madness sweeps the nation, it's impossible not to notice the changing tides in college basketball. The tournament, once dominated by young freshmen phenoms, now showcases a greater number of experienced veterans leading their teams to victory. This shift in the landscape of college basketball can be largely attributed to the introduction of Name, Image, and Likeness (NIL) deals, which have given players a new incentive to stay in school longer and develop their skills on the court while also building their personal brands off it. A prime example of this can be seen in the recent surge of social media presence for Jack Gohlke (who climbed from 5,000 to 50,000 followers on Instagram), who recently signed 6 NIL deals, namely with Formula Bot, Buffalo Wild Wings, OOFOS, The NIL Store, Intuit TurboTax, and Barstool Sports, after his 32-point performance propelled 14th-seeded Oakland to a win over 3rd-seeded Kentucky in the first round of the tournament. Coinciding with this change is the recent announcement that the NBA will be shutting down the G League Ignite after the current season. This has sent ripples through the basketball community, sparking a lively debate about the future of player development and the evolving landscape of college basketball. While the decision may have caught some off guard, it is a testament to the significant impact that NIL deals have had on the sport in recent years. The G League Ignite, a developmental team designed to provide young prospects with a direct path to the NBA, was once seen as a potential game-changer for players who wanted to bypass the traditional college route. It provided a unique opportunity for players to hone their skills in a professional setting, receive top-tier coaching, and compete against experienced veterans, all while earning a salary and potentially securing lucrative endorsement deals. It was a bold experiment that sought to disrupt the traditional college-to-NBA pipeline, and for a while, it seemed to be working. Over the past three years, it has seen notable success stories through the likes of Jalen Green, Jonathan Kuminga, and Scoot Henderson. Unfortunately, with the rise of NIL deals and the increased flexibility offered by the transfer portal, the G League Ignite's relevance has diminished, leading to its eventual closure. The impact of NIL deals on college basketball cannot be overstated. By allowing players to monetize their name, image, and likeness while still maintaining their eligibility, NIL has given players a reason to stay in school longer and build their personal brands. The financial incentives provided by NIL deals could have diminished the appeal of the G League Ignite for some players. Instead of opting for the Ignite's salary and development program, top prospects might now choose to attend college, where they can potentially earn more through NIL deals while also benefiting from the exposure and competition that college basketball provides. This has led to more experienced and competitive college basketball, with veterans now leading the charge in March Madness. The majority of remaining contenders in this year’s tournament feature experienced players who have stayed in school for multiple years. Teams like Houston, Gonzaga, and Purdue are all led by upperclassmen who have developed their skills over time and are now reaping the benefits of their hard work both on and off the court. In particular, the number of Top 100 freshmen from the On3 Industry rankings who played college basketball and made it to the NCAA Tournament has decreased, with only 45 out of 94 (47.9%) participating in the 2024 tournament, compared to 58 out of 98 (59.2%) in 2023. This shift away from young freshmen dominating the tournament is a direct result of the opportunities provided by NIL deals. Of course, this shift in the college basketball landscape is not without its challenges. Some critics argue that NIL deals could lead to a widening gap between the haves and have-nots in college sports, with players at larger, more prominent schools having a greater opportunity to cash in on their fame. There are also concerns about how NIL deals could impact the academic priorities of student-athletes, who may be more focused on building their personal brands than on their studies. Despite these challenges, it's clear that NIL and the closure of the G League Ignite are having a profound impact on the world of college basketball. As more players opt to stay in school and build their skills on the court and their brands off it, we can expect to see a more competitive and exciting college basketball scene in the years to come. This could also lead to a more well-rounded generation of basketball players, who not only excel on the court but also have the educational foundation to succeed in life after their playing careers. While there may be growing pains along the way, the future of college basketball looks bright, thanks in large part to the opportunities provided by NIL. However, it's also possible that new alternatives will emerge to fill the void left by the G League Ignite. Some players may still prefer a more direct and fast-tracked path to the NBA, and there may be opportunities for other developmental leagues or training programs to step in and provide that option. It's also possible that the NBA itself will explore new ways to support and develop young talent, whether through expanded draft eligibility rules or new partnerships with high schools and grassroots programs. Ultimately, the closure of the G League Ignite is a reminder that the world of basketball is constantly evolving and that what works today may not work tomorrow. As the sport continues to grow and change, it will be up to the entire basketball community – from players and coaches to administrators and fans – to adapt and find new ways to support the development of young talent. Furthermore, the rise of NIL deals in college basketball has likely played a significant role in the NBA's decision to shut down the G League Ignite, and has created a new reality for young prospects, one in which the traditional college route has become more appealing and financially rewarding. Looking ahead, it will be interesting to observe how the basketball ecosystem adapts to the absence of the G League Ignite. Will more players opt for the college route, taking advantage of NIL deals and the exposure offered by the NCAA? Or will new alternatives emerge to fill the void left by the G League Ignite, providing players with different paths to pursue their NBA dreams? Only time will tell, but one thing is certain: the decision to shut down the G League Ignite marks the end of an era and the beginning of a new chapter in the ever-evolving world of basketball player development. Zahan Shokrekhuda is a 1L at South Texas College of Law with an interest in the intersection of basketball and law. He holds the position of VP of Sports for the South Texas Sports & Entertainment Law Society and is a volunteer for the Sports ADR team. He can be found on LinkedIn as Zahan Shokrekhuda.

  • The Future of NIL Collectives

    A name, image, and likeness (NIL) collective is an entity that serves as a bridge between student-athletes and revenue-generating opportunities for those student-athletes. There are currently over 225 NIL collectives dedicated to Division I universities. While these NIL collectives are dedicated to universities, they are not controlled or legally connected to the universities. While the primary purpose of an NIL collective is to help student-athletes locate and execute NIL deals, many legal experts now argue that many NIL collectives are providing NIL compensation to student-athletes without receiving a fair market service in return for that compensation. In other words, some people are saying NIL collectives solely use the donations they receive from boosters and donors to buy student-athletes that will help make the boosters’ and donors' favorite sports teams more successful. If that is the case, those who value the integrity of college sports may argue that was not the intent of allowing student-athletes to be compensated for their NIL. That is the view that Charlie Baker and the NCAA have, and that is why Baker has proposed a model that would potentially eliminate third-party collectives from buying certain student-athletes to enhance the skill level of their favorite sports teams. Baker is not the only one who would like to eliminate this method of NIL activity and that is why this article discusses the potential future of NIL collectives. Part I of this article discusses how collectives were first created and their initial intended purpose. Part II discusses the future of NIL collectives. Part I: The Creation of NIL Collectives After multiple states began to enact legislation to allow college athletes to profit off their NIL, those with deep pockets and beloved sports teams began to envision ways they could use their money to help make their favorite teams more successful. Then, in August 2021, a new entity called the “Gator Collective” was announced. A few years later, there are now over 225 collectives that are finding unique methods to transfer funds to the most talented and well-known student-athletes across the country. Many individuals, including myself, claim that NIL has been revolutionary for college sports and has brought substantial wealth to student-athletes and it was well deserved. Many would say it was wrong for the NCAA to restrict student-athletes from using their NIL to be compensated. Why should a music student be able to provide musical lessons to a child and be compensated for it, but an NCAA basketball player cannot provide lessons to a child without losing their eligibility? Or how come a student at a university who does not play sports could perform a promotional video for a business and be paid for it, but once again, if they were an athlete they would lose their eligibility? This is why California passed the first NIL law that allowed student-athletes to be paid for NIL deals just like all the other students on campus and not risk losing their eligibility. After California passed its bill in 2019, it opened the floodgates to numerous other states passing similar legislation, which led to forcing the NCAA to create an interim NIL policy that allowed student-athletes to be compensated for their NIL. These NIL laws were built on the idea that athletes should be given the option to utilize the free market and their constitutional rights while continuing to play college sports. Collectives initially portrayed that same purpose. However, it did not take long for collectives to take advantage of the new regulations put in place and use their money to attract talent. Part II: The Future of NIL Collectives For those who believe donor-driven NIL collectives are damaging the integrity of college sports, there are two outcomes to attempt to solve this issue. The first is the likely outcome of Charlie Baker’s proposal that was sent to more than 350 Division I schools in December 2023. Baker’s new proposal would most likely have the effect of legally combining the collectives with the universities they are representing. The other outcome could be collectives remaining as separate entities from their universities, but the NCAA or Congress places a substantial number of regulations over the collectives in an attempt to eliminate the aspects of collectives that are damaging the integrity of college sports. Charlie Baker’s Proposal In December 2023, Baker sent a letter to over 350 Division I schools that proposed the idea of creating a new tier of Division I sports. The model would allow Division I schools that chose to contribute $30,000 into an educational trust fund to at least half of their athletes (while abiding by Title IX) to do three new things, (1) enter directly into NIL deals with their athletes; (2) provide student athletes with any level of enhanced educational benefits the university deems appropriate; (3) unite with other member institutions of the new tier to create unique rules regarding scholarship commitment, roster size, recruitment, transfers, or NIL. By allowing universities to enter directly into NIL deals with their athletes, there would be no purpose for a donor-driven collective. Currently, collectives are the middlemen concerning the funneling of money to student-athletes to create the incentive to play for that university. If universities are allowed to directly enter into such deals with their athletes, it eliminates the need for the middleman (i.e., the collective). While Baker’s proposal could eliminate donor-driven collectives might be attractive per se, the proposal may not eliminate the problems that come with such collectives. For those who disfavor donor-driven collectives, it is usually because they are using money to induce the most talented athletes to play for their teams. If the collective became a part of the university, what is to stop the university from using NIL to induce these talented athletes? If anything, the athlete would likely feel more comfortable accepting an NIL deal directly from a university rather than from a third party. While the NCAA could place a restriction that prevents using NIL as an inducement, that may violate antitrust law, which is currently being disputed in Tennessee v. NCAA. On February 23, 2024, the federal district judge presiding over the Tennessee case, granted a preliminary injunction to suspend the NCAA’s rules on NIL, allowing collectives and other third parties to use NIL as inducements. If Tennessee prevails in the lawsuit, Baker’s plan to bring collectives within the university to uphold the integrity of college sports may become moot since restricting them from using NIL as an inducement would be a violation of antitrust law. The Federal Government If Baker’s plan is not implemented or a scenario where a court destroys his plan by declaring a restriction on NIL as an inducement is an antitrust violation, the answer could be the federal government. Congress could do multiple things to eliminate the conduct that collectives perform that damages the integrity of college sports. Congress could create legislation that grants the NCAA an antitrust exemption, or legislation that prohibits collectives or universities from using NIL as an inducement and creates an agency or uses an existing agency to enforce such prohibition. While federal legislation has been rare regarding college sports in its tenure, there currently appears to be more interest from Congress than before. While it is challenging to pass uniform legislation in Congress, it is becoming more necessary in college sports due to the patchwork of state laws. With states allowing their universities to be involved in certain conduct that universities in other states cannot be engaged in, and the NCAA having its rules be deemed as antitrust violations, there has become a lack of uniformity. Schools that are playing each other with the same rules on the field, court, track, and pool, have different rules outside of competition because they are regulated by different state laws. Legal experts such as Tom McMillen predict that while it may not be this year, it is likely that we will see federal regulation to create uniformity in college sports. There are currently seven pieces of legislation that are being floated around in Congress. Each bill seeks to regulate NIL deals but has different means for achieving that goal. Many of the bills prohibit using NIL as an inducement and create some form of regulating body to enforce such prohibition. The justification for prohibiting NIL as an inducement stems from the concept that if a university has more donor funds or a collective has more donor funds, then it will be able to offer more money to prospective athletes. And since at the college level you may choose the university you attend, rather than being drafted (as done in the professional leagues), the student-athletes will choose to attend the universities with the higher NIL deal, which will result in unfair competition. Some argue that this resembles the free-market concept that the United States has been built on. Others argue that it damages the integrity of college sports, will result in violations of Title IX regulations, and decrease viewer demand since the same teams will continue to be successful, because success leads to more money, and money leads to better talent under this NIL model. For those that take the latter argument, they pride themselves on the idea that in a tournament such as March Madness, what makes it “madness” is you see Cinderella stories such as Sister Jean and the 2018 Loyola Ramblers, or the 15th seed Saint Peter’s Peacocks in 2022, or the 1985 Villanova Wildcats. If NIL is used as an inducement, could Cinderella stories still exist? My Prediction Regardless of your passion for Cinderella stories and seeing the little guys win on the football field, the concept of NIL collectives and their future can be broken down into a simple concept. NIL collectives currently serve as the middleman to funnel donor funds to student-athletes, whether it be directly or through the concept of using collective employees to create a marketplace for student-athleteshave or educating athletes on how to capture NIL deals. The direct NIL deals between collectives and athletes have the potential to damage the integrity of college sports and change it completely, therefore, leaders whether it be the NCAA or the federal government are likely to create regulations to restrict these types of NIL deals. The most efficient way to restrict this behavior will be to require the collectives to be legally intertwined with their university to provide uniformity and efficient guidance. This will allow the university to directly revenue share with their student-athletes, who rightfully deserve a portion of the revenue that they generate for their university. The NCAA or federal government will then implement policies that regulate how NIL can be used between universities and their student-athletes. While the logistics of these regulations will take years to implement, enforce, and amend to find the proper regulations, this is one of the most likely methods to preserve college sports, grant student-athletes the rights they deserve, and abide by other regulations such as Title IX. While it currently seems almost impossible that the NCAA will attempt to place more restrictions on its members right now, due to the number of antitrust lawsuits piling up, I predict that regulations are coming from either Congress or the NCAA because either the NCAA can ride the coattails of Congress’ regulations, or the NCAA could be backed into such a deep hole, that it is either create more uniform regulations, or risk becoming extinct. Conclusion Collectives came in and completely disrupted the college sports space in 2021. Whether it be the marketplace collectives that achieve the initial purpose of NIL, or the donor-driven collectives that may be damaging the college sports space, there is no doubt that collectives have made a major impact. The future of collectives is certainly not set in stone, but based on the initial purpose of NIL, the statements from legal experts, President Baker, and Congressman, and the direction that courts appear to be leaning, I believe collectives will be brought within their universities and further NIL regulations will be implemented by the NCAA or Congress. However, even if this change were to occur, it would take lots of time to develop. Therefore, as of now, collectives have the freedom to gain as much capital as possible from their donors and do whatever it takes to bring high-level talent to their universities. As universities get further and further from each other regarding skill level, the NCAA lawsuits begin to be published, and college sports continue to raise major legal questions, the more disrupted college sports will be. And as a result, the more likely the NCAA or Congress will be to take action. Logan Hughes is a third-year law student at Ohio Northern University Claude Pettit College of Law. You can follow him on Twitter @loganchughes23 and LinkedIn (Logan Hughes).

  • Is Stadium Construction Wave Over?

    Publicly subsidized stadiums are the ultimate partnership between sports teams and the public. The concept of stadium subsidies is not novel, but as the cost of stadiums reaches unprecedented levels, opponents of the “stadium construction wave” have started to impose significant setbacks on the projects. The Virginia legislature’s decision to exclude the $2 billion stadium deal for the NBA’s Washington Wizards and NHL’s Washington Capitals from their budget could signal a shift towards opposition to public-subsidized stadiums. It may also be a unique case, stemming from a dispute over the stadium’s location. Nevertheless, the decision by the Virginia General Assembly and the preceding debates offers valuable insights into the complexities of publicly funded stadiums. Background On March 7, 2024, The Virginia General Assembly released its final state budget of the legislative session. [1] Despite Republican Governor Glenn Youngkin’s best efforts, the budget bill did not include the $2 billion stadium deal. One of the biggest opponents of the deal, Senator Louise Lucas, played a pivotal role in the deal’s demise. As the chair of the senate’s finance committee, Lucas refused to put the proposed bills on the locket, stating that it is a bad investment which enriches club owners at the expense of taxpayers’ money. [2] The stadium deal has been under development since December 2023. Although there were debates over the stadium’s location, after both DC and Virginia elected officials proposed bids to either renovate Capital One arena or relocate it to Virginia, [3] The Monumental Sports & Entertainment CEO, and owner of Washington Wizards and Washington Capitals, Ted Leonsis announced the plan of moving the stadium across Potomac River to Alexandria, Virginia. The deal is a private-public partnership between Virginia and The Monumental. According to the terms of the deal, the Monumental would invest $400 million and the rest would come from public sources across the city or state. [4] In an announcement, Leonsis has tried to boost public support for the new deal, stating that new location, the Entertainment District at Potomac Yard, would provide best state-of-art facilities and best fan experience. [5] After the legislature rejected to fund the stadium on March 7, Youngkin expressed his frustration. He stated, “I believe the Senate is about to make a colossal mistake. It was truly— and could truly be—a monumental opportunity.” [6] The deal can still move forward if an amendment to the budget bill is introduced and voted on during the April 17 session or in a special legislative session. [7] Analysis Under the framework outlined by Ryan Gauthier’s good governance principles in stadium financing, [8] the stadium deal raises significant questions about transparency, public participation, social responsibility, and review. Transparency is the degree to which the actions and intents of an actor are made visible or “readily knowable to interested parties.” [9] In general, the lack of openness of sports teams with regards to their financial information raises transparency issues in stadium deals. In this case, limited access to the financial details of Wizards and Capitals, D.C. Mayor Muriel Bowser’s bid for renovating the Capital One Arena, [10] and the subsequent decision to move the stadium to Virginia has created additional ambiguities about the intentions of the parties involved in the deal. Balanced against the substantial impact the new stadium is expected to have on the city, the ‘readily knowable’ actions and intents of the lawmakers and Leonsis appear to fall short of the transparency standard. Further, public participation is “the process through which an organization enables key stakeholders to play an active role in the decisions and activities which affect them.” [11] According to Gauthier, there are two forms of public participation: passive and active. [12] Passive forms of public participation include “providing information or engaging in consultation and dialogue,” whereas active forms of public participation include “actions such as codesigning solutions, engaging in co-decision making between actors and stakeholders, and empowering stakeholders to make decisions themselves.”[13] While D.C. lawmakers maintained that they were negotiating several offers, Leonsis claimed he never received the $500 million dollar renovation bid until after the decision to move to Virginia has been made. The handling of the matter by D.C. Mayor’s administration and Leonsis remains unknown to the public. Therefore, the major impediment to public participation here appears to be the absence of public input and collaboration in the decision to move the stadium from D.C. to Virginia. On the flipside, there have been efforts from the representatives of a consulting firm to engage in community discussion about the project. [14] Leonsis also highlighted his efforts to boost public participation, stating that “All involved parties have undertaken an extensive community engagement process that is well underway. This process will provide a venue for all stakeholders to have input on this project.” [15] The extent of public participation seems to hinge on whether the project moves forward or not. Narrowly defined, “social responsibility” is the “voluntary contribution of finance, goods or services to community or governmental causes.” [16] The strongest arguments in favor of the new stadium deal fall under this category. Potomac Yard, the planned location for the stadium, is a vacant former rail yard. [17] The proposed plan estimates that the area will “catalyze 9.4 million square feet of office, residential and retail space,” [18] creating opportunities for new businesses, increased employment, and residential growth. Leonsis also asserts that infrastructure development of the Entertainment District is underway, which will lead to improve in the Metro system in Alexandria. [19] However, the current stadium has excellent transit access, therefore, fans most likely would have to transition from using transit to driving if the stadium is relocated to Alexandria, regardless of the investments to improve the Metro system in Alexandria, potentially leading to environmental drawbacks. [20] Lastly, accountability can be said to exist where “some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of those standards, and to impose sanctions if they determine that these responsibilities have not been met.”[21] Here, the proposed plan would be funded from by corporate taxes paid by businesses operating at the arena, personal income taxes from employees of those businesses, and income taxes from high-earning athletes and performers. [22] Hence, the revenue generated, predicted as $12 billion over the next few decades, is directly linked to the success of the project. Given that $2.2 billion worth of state and local income taxes of Potomac Yard would be redirected to the arena instead of schools, police, traffic, or other public services, it would be challenging for the public to validate the claims of such high financial needs for a new stadium. The problem exacerbates considering the ‘bad record’ of publicly-subsidized stadiums, which often fail to meet return on the investment. As a result, the arguments regarding review and accountability have been the critics’ strongest points, especially considering the significant financial investment at stake and the potential risks that insufficient returns could pose. While Virginia lawmakers refused to pay for the new stadium, Oklahoma City seems to be eager to put the taxpayer’s money on their stadium. [23] This discrepancy warrants a question: are lawmakers’ decisions to fund new stadiums based on purely financial considerations aimed at boosting city’s overall prosperity through sports, or do they serve as rewards for successful sports teams while penalizing others? Zeynep Karageldi is a passionate first-year law student at Cardozo School of Law with a keen interest in soccer and basketball. Serving as one of the 1L representatives of the Cardozo Sports Law Association, she delves into the intersection of sports and law, particularly focusing on intellectual property, antitrust, and contract law. References: [1] Hodjat, A., So is the Potomac Yard Stadium Deal Dead? An Explanation, Washingtonian (2024). https://www.washingtonian.com/2024/03/07/so-is-the-potomac-yard-stadium-deal-dead/ [2] 7News Staff, Gov. Youngkin, Group against Potomac Yard Sports Arena respond after Va. Budget released, WJLA (March 7, 2024). https://wjla.com/news/local/gov-youngkin-stop-thearena-potomac-yard-alexandria-virginia-entertainment-sports-complex-budget-senate-financeappropriations-richmond-washington-dc-wizards-capitals-richmond-politics-concerns# [3] DiMargo, C., Wilder, D., & Segraves, M., Virginia officials and wizards, caps owner agree on $2B plan to bring teams across the river, NBC4 Washington (Dec 14, 2023). https://www.nbcwashington.com/news/local/wizards-capitals-owner-announces-2-billion-planto-move-teams-to-virginia/3493235/ [4]               Hardy, K., More taxpayer money benefits pro sports owners Amid “Stadium Construction Wave”, Stateline (Feb 20, 2024). https://stateline.org/2024/02/20/more-taxpayer-money-benefitspro-sports-owners-amid-stadium-constructionwave/#:~:text=That%20hasn%27t%20stopped%20the,for%20the%20NFL%27s%20Buffalo%20 Bills. [5]               Pusatory, M., & Gregory, M., Ted Leonsis writes letter to fans explaining decision to move, WUSA9 (Jan 25, 2024). https://www.wusa9.com/article/news/local/virginia/ted-leonsismonumental-arena-letter-backlash/65-d6b3cf1e-26ba-43ba-85ac-3ecf1a6d07ae [6] Hodjat, A., Washingtonian, (2024). [7]  Id. [8]  Ryan Gauthier, Publicly-Subsidised Stadiums: Changing the Game Through Good Governance, 30 Jeffrey S. Moorad Sports L.J. 231 (2023). Available at: https://digitalcommons.law.villanova.edu/mslj/vol30/iss2/2 [9]  Thomas N. Hale, Transparency, Accountability, and Global Governance, 14 GLOBAL GOVERNANCE 73, 75 (2008); See also Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 YALE L.J. 1490, 1533 (2006). [10] Aldridge, D., With Virginia Arena deal roadblocked, Ted Leonsis and Muriel Bowser have a chance to save face, The Athletic (March 12, 2024). https://theathletic.com/5275584/2024/03/12/wizards-capitals-arena-washington-dc-leonsis/ [11] Monica Blagescu, Lucy De Las Casas & Robert Lloyd, Pathways to Accountability: A Short Guide to the GAP Framework 2 (2005). [12]  Gauthier, 30 Jeffrey S. Moorad Sports L.J, (2023) [13]  Erik Mostert, The Challenge of Public Participation, 5 WATER POL’Y 179, 183 (2003). [14]  Umeh, M., Virginia sen. Lucas Doubles Down on opposition to Potomac Yard Arena Plan, FOX 5 DC (Feb 19, 2024).  https://www.fox5dc.com/news/virginia-sen-lucas-doubles-down-onopposition-to-potomac-yard-arena-plan [15]  Leonsis, T., A letter from Ted Leonsis - Monumental Sports, Monumental Sports (Jan 25, 2024). https://monumentalsports.com/2024/01/a-letter-from-ted-leonsis/ [16] Jeremy Moon, The Social Responsibility of Business and New Governance, 37 GOVERNMENT & OPPOSITION 385, 385 (2002). [17] Capps, K., Plan to move Washington Capitals, Wizards to Virginia funded with income tax, Bloomberg.com (Feb 17, 2024). https://www.bloomberg.com/news/articles/2024-02-17/plan-tomove-washington-capitals-wizards-to-virginia-funded-with-income-tax [18] Id. [19]  Leonsis, T., Monumental Sports (2024). [20]  Opinion | questions on the Capitals and Wizards Arena Deal, Washington Post (Feb 14, 2024). https://www.washingtonpost.com/opinions/2024/02/14/capitals-wizards-arena-dealmetro-timeline/ [21]  Ruth W. Grant & Robert O. Keohane, Accountability and Abuses of Power in World Politics (2005) 99:1 AM. POL. SCI. REV. 29, 29 (2005). [22] Capps, K., Bloomberg.com (2024). [23] OKC voters approve new downtown arena, News List, City of OKC (Dec 12, 2023). https://www.okc.gov/Home/Components/News/News/4658/140#:~:text=Oklahoma%20Ci ty%20voters%20approved%20a,%2C”%20Mayor%20David%20Holt%20said.

  • San Francisco Giants Utilize Loophole in CBA to Avoid Paying J.D. Davis' Full Salary

    While professional sports franchises garner more public attention, we sometimes forget that many of them desire to operate like any other "normal" business does. While the dollar figures on an team's balance sheet might look different than your local Mom and Pop, the overarching goal is the relatively similar: maximize revenues while limiting expenses. The San Francisco Giants recent release of third baseman J.D. Davis highlights this notion. After the club inked All-Star and 4-time Gold Glover Matt Chapman to a 3-year/$54 million contract with an opt-out clause, Davis' role on the Giants roster was severely compromised. After unsuccessfully attempting to trade Davis and his $6.9 million salary, the club placed him on unconditional release waivers. While seeing someone of Davis' caliber being placed on waivers this late in spring training is somewhat odd, player get waived all the time without much notoriety. So what's the big deal here? Well, the Giants found a loophole in MLB's Collective Bargaining Agreement (CBA) to save a substantial amount of money. When MLB and the MLB Players Association (MLBPA) agreed on the current CBA in March 2022, 1-year contracts for arbitration-eligible players would be fully guaranteed. This was an important deviation from previous CBAs and was a big win for the MLBPA. Essentially it prohibited teams from backing out of arbitration contracts after they were agreed to. Arbitration eligible players already face the possibility of not being "non-tendered" which is effectively being cut. But with this win for the MLBPA in the 2022 CBA negotiations, contracts that had been agreed to were supposedly guaranteed for the players. However, this turned out to be not entirely true for the select few players who go to an arbitration hearing. When the Giants placed Davis on waivers this week, they took advantage of a loophole that allowed them to save nearly $6 million on his salary. Over the offseason, Davis won his arbitration hearing against the Giants to receive $6.9 million instead of the club's filing at $6.55 million. But because the provision in the CBA specifically does not guarantee arbitration salaries arrived at through an arbitration hearing, the Giants were not obligated to pay out all of the $6.9 million owed to Davis. Instead, the club only was on the hook for just 30 days of termination pay amounting to a little more than $1.1 million. Was this the Giants plan all along? It's hard to know and speculating the club's motives is somewhat irresponsible. It's worth noting that Matt Chapman remained on the free agent market into March and the dollar figure he eventually signed for with San Francisco came in a lot lower than many expected. Therefore, it's hard to ascertain that the Giants always viewed Chapman as a replacement for Davis throughout the offseason. Nonetheless, Davis' agent and the MLBPA will certainly have an issue for the way this situation was handled. The Giants, like many other teams, have utilized the “file-and-trial” approach where all negotiations stop after the deadline for clubs and players to exchange salary figures to be presented at a hearing. Its purpose is to be a deterrent to negotiations reaching the hearing stage. Davis said last month that he would have happily accepted the Giants’ filing figure of $6.55 million prior to the hearing. But the team was not willing to reopen negotiations after the exchange of numbers. To then go to arbitration, lose the hearing, and then release the player without paying full freight undoubtedly isn't a good look for the Giants in retrospect. While this particular predicament is only applicable to a select few players moving forward, it's certainly something the MLBPA will look into as they prepare for the next CBA negotiations. Even with its faults, the arbitration process is overwhelmingly beneficial in pushing player salaries up over time. However, with this loophole, it creates an avenue for teams to skirt around guarantees stemming from salaries determined by arbitration hearings. Davis has subsequently signed a 1-year/$2.5 million contract with the Oakland Athletics, so he comes out around $3.3 million worse off than he would've been if the Giants honored his original contract. Nothing the Giants did was against the rules. The Giants abided by the letter of the law of the collectively bargained agreement that the players knowingly and willingly signed two years ago. In the move, the Giants shaved off nearly $6 million in payroll obligations and now stand roughly $13 million underneath the first luxury tax threshold of $237 million. This situation goes to show how important every detail of the CBA can be. The media and fans often grow tired whenever CBA negotiations drag on, but there is a reason why they do. Each side goes to extensive lengths to protect themselves against unfavorable scenarios. The MLBPA is the strongest player union in all of sports, so I bet they will have this situation in mind when the current CBA expires following the 2026 season. Brendan Bell is a 1L at Arizona State Law School and is the Southwest Regional Rep on Conduct Detrimental's Law School Student Board. He can be followed on Twitter (X) @_bbell5

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