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- Another Steppingstone for Student-Athlete Employment Status
Dartmouth basketball players joined together and informed Service Employees International Union (SEIU), Local 560 of Concord, N.H. that they wanted to unionize. This is the same process that Dartmouth library workers, graduate students, visitor center employers and dining service workers all performed to successfully unionize. The SEIU, also known as the Dartmouth College Employees’ Union, then filed a petition to the NLRB regional office in Boston which is directed by Laura Sacks. It is now up to that regional office and Sacks to perform an investigation and determine if Dartmouth basketball players meet the requirements under the NLRA to form a union. How a Union is Formed Forming a union is a process involving many hurdles. First, employees must come together to request to be unionized to a union organization (i.e., SEIU). The employees could request for their employer (i.e., Dartmouth College) to voluntarily recognize them as a union so they can begin collectively bargaining. If the employer chooses not to recognize them as a union, or the employees do not seek employer approval, the union organization (i.e., SEIU) will file a petition with the NLRB in that region. If the regional director of the NLRB (i.e., Laura Sacks) finds that the requirements to form a union have been met (i.e., the filing party members are employees of their employer; the employer is a private organization; and at least 30% of the employees support the petition) then the regional director will allow the employees to vote on becoming a union. If the employees get 50% +1 votes, they are a valid union. The SEIU President Mary Kay Henry did say, “With their unanimous decision to join together in a union...” showing that a vote to validate union status of the basketball team is likely. Obviously, the big problem here is that no student-athletes have been deemed employees under federal law, so the question becomes whether Laura Sacks will find that they meet the definition of an employee under the National Labor Relations Act (NLRA). Sacks could use the 2015 NLRB holding in the Northwestern Football case to find that the NLRB does not have jurisdiction to consider whether the college athletes are employees under the NLRA. Sacks could also use General Counsel of the NLRB Jennifer Abruzzo’s memo issued in 2021, saying college athletes at private universities are NLRA-protected employees because they perform services for their colleges and the universities display a level of control over the athletes that is similar to an employment relationship. It should be noted that in the 2015 Northwestern Football unionization attempt, the NLRB regional director in that case did find that they were employees under the NLRA. It was on review by the NLRB (who oversees all the regional offices) where it was issued that the NLRB did not have the jurisdiction needed to determine if student-athletes were employees of their university. How Could This Play Out (1) Sacks could find that there is no NLRB jurisdiction to determine if they are employees and rule that they cannot unionize. (2) Sacks could find there is NLRB jurisdiction, and that Dartmouth is an employer of the basketball players and allow them to vote to attempt to unionize. The matter would then likely be reviewed by the NLRB, like the 2015 Northwestern Football case. Which I remind you... was decided before the 2021 memo issued by General Counsel Jennifer Abruzzo. (3) Dartmouth could voluntarily recognize the basketball players as employees and allow them to unionize. Dartmouth College stated, “We are carefully considering this petition with the aim of responding promptly yet thoughtfully in accordance with Dartmouth’s educational mission and priorities.” Not demonstrating which avenue, they will take. (4) Sacks or the NLRB could wait for the determination from the NLRB complaint against USC, the Pac-12, and the NCAA (“the defendants”) that an NLRB administrative law judge is deciding. The administrative law judge is set to hear the case in November 2023. The main issue of that complaint is whether the defendants in that case misclassified USC student athletes as not being employees. Items To Be Noted Dartmouth College is a private Ivy-League school. Being a private “company”, the NLRB has jurisdiction over them. However, the NLRB does not have jurisdiction over public or state-run college (without a joint-employer theory). Also, the Ivy-League does not allow student athletes to have obtain athletic scholarships. This would put this decision into a separate category when talking about most other colleges if they attempted to do the same thing. Lastly, other students at Dartmouth have joined unions. Student workers in the dining hall, library, visitor center, and graduate students are all a part of a union. This tends to resemble the argument made in other student-athlete employment cases; “how can other students be declared employees of the university when they supply services to the university in return for compensation and athletes cannot?” The Big Takeaway For the first time since Northwestern’s 2014 attempt and NLRB General Counsel Abruzzo’s 2021 memo, student-athletes are attempting to unionize. This makes for the fourth legal dispute where student-athlete employment status is at issue.2 With each dispute and the noise that comes with it, makes it more and more likely for governing bodies to have to address the issue. These governing bodies consist of conferences, the NCAA, the NLRB, state and federal courts, state governments, and the federal government. Regardless of if the Dartmouth basketball team is successful in this unionization attempt, they have created another steppingstone for student- athletes to gain employment status. It appears that we are just getting closer and closer to the inevitable. __________________________________________________________________________________ 2 The other three are: (1) Third Circuit Johnson v. NCAA case; (2) NLRB complaint against USC, Pac-12, and NCAA; and (3) a recent complaint filed by the College Basketball Players Association against Northwestern (the NLRB has yet to determine if it will validate the complaint). Logan Hughes is a third-year law student at Ohio Northern University. You can follow him on Twitter @loganchughes23 and on LinkedIn (Logan Hughes)
- Stephen Strasburg's Mysterious Retirement
Just a few weeks ago on August 24th, reports surfaced that Washington Nationals pitcher Stephen Strasburg was retiring from baseball. While the news didn’t catch anyone by surprise as the 35-year-old has dealt with significant injuries over the past few years, it was still extremely sad for baseball fans across the country to hear. Coming out of San Diego State, Strasburg entered the big leagues as one of the most hyped prospects of all time. But unlike some of his fellow #1 overall picks, he more than lived up to the hype. After he led the Nationals to their first and only World Series title in 2019, it appeared Strasburg was potentially on track wear the “Curly W” Nats hat into the Hall of Fame. Unfortunately, injuries got in the way, which leads us to an interesting, yet disheartening development going on in our nation’s capital. After the Strasburg retirement news in late August, there appeared to be a retirement news conference planned for September 9th at Nationals Park where the team would retire his number and honor his career. However, in the time between August 24th and this past weekend, those plans changed. Mark Lerner, the owner of the Nationals, recently released the following statement: “While we have been following the process required by the collective bargaining agreement, behind-the-scenes preparations for a press conference had begun internally," Lerner said in a statement. "However, no such event was ever confirmed by the team or promoted publicly” and that reports had “mischaracterized” the situation. More interestingly than stating there wouldn’t be a retirement press conference for Strasburg, Lerner also said the team “looks forward to seeing Stephen when we (the Nationals) report to Spring Training” in 2024. After he won World Series MVP honors in 2019, Strasburg signed a 7-year contract worth $245 million to remain in DC. It was at the time and remains the second largest free agent contract ever given to a starting pitcher. Unfortunately, the contract has been a complete disaster for all parties involved as Strasburg only made 8 starts since beginning of the 2020 season. And relevant to the retirement news, there’s still 3 years and $105 million left on the contract that runs through 2026. While neither the Nationals nor Strasburg’s camp has confirmed the source of the disagreement publicly, it’s not hard to comprehend why the retirement news conference was cancelled. There is a disagreement between the two sides on how his contract will be handled. According to Britt Ghiroli of The Athletic, the Nationals initially proposed that Strasburg would be paid in full before backtracking and seeking to change the terms of his retirement. Strasburg, represented by Scott Boras, understandably aren’t going to take too kind to the Nats sudden change of plans. When a player formally retires, they give up the remaining money left on their salary. Buster Posey, for example, walked away from $22 million when he stepped away following the 2021 season. However, if a player suffers a career ending injury, they don’t have to “formally” retire and collect what’s left on their contract. Prince Fielder, who suffered a neck injury in 2016 that ended his career, collected the remaining money owed to him from his $214 million deal signed before the 2012 season. There is some precedent, however, of players reaching settlements with their respective teams (David Wright with the Mets) or in some cases, giving money back. When Gil Mesch retired in 2011, he gave back the remaining $12 million left on his contract to the Kansas City Royals. Are the Nationals expecting Strasburg to voluntarily give up his future earnings? Absolutely not. But did they hope they could potentially work out a deal where they can pay less than the $105 million plus deferred money? Probably so. Where things go from here will be worth watching. In addition, the Lerner family has looked into the possibility of selling the franchise recently, but disputes involving the team’s television deal with the Orioles and MASN have gotten in the way. Could Lerner be attempting to minimize the “liability” of Strasburg’s contract to make it a more attractive purchase? Potentially. In addition to cancelling the retirement press conference, the team has also cut some of their scouting staff and their GM, Mike Rizzo remains without a contract beyond 2023. Long story short, there is a lot of uncertainty with the Nationals at the moment. It’s understandable that the Nationals want to avoid paying the full sum of Strasburg’s contract. It’s also understandable that Strasburg, his agent Scott Boras, and the MLBPA don’t want to walk away from a significant amount of money. Will the Nationals relinquish their position? Will Strasburg be willing to work out a settlement? That’s to be determined. But regardless, it would be a shame if the relationship between the two parties is ruined over this unfortunate situation.
- Sufficient Consideration? The Implications of the Latest Waiver Movement in MLB
In the weeks leading up to MLB’s August 1st trade deadline, there was much intrigue as to whether the Los Angeles Angels would trade pending free agent Shohei Ohtani. Instead of selling and potentially netting a significant prospect return from the two-way superstar, the Angels went “all in” and make one last push at a postseason run before Ohtani hits free agency. The team traded some of their best prospects for a handful of players including Lucas Giolito, Reynaldo Lopez, Randall Grichuk, and Dominic Leone. By doing so, the team exceeded MLB’s Competitive Balance Tax, commonly referred to as the “Luxury Tax.” Long story short, the Angels all in effort came up well short. The club struggled heavily in the month of August, losing 18 of the 26 games and falling completely out of both AL West and AL Wild Card contention in the process. In addition, Mike Trout returned to the injured list after only returning for one game and Ohtani suffered a torn UCL, ending his season on the mound. So what did the Angels front office do in response to their disastrous August? Well, they basically “undid” most of their trade deadline moves by placing nearly a quarter of their roster on waivers, including the four aforementioned players listed above. What was the incentive for the team do this? How will this affect the pennant race this season? Are there any big picture ramifications the league might want to look into regarding waiver moves? Let’s dive in. By placing Giolito, Lopez, Grichuk, Leone, and reliever Matt Moore on waivers, the Angels now appear to have gotten their payroll under the $233 million luxury tax. Although the tax calculations are not official until December, all signs are pointing towards the team being shy of the threshold. This is important for a couple of reasons. The first one being it will save Angels owner Arte Moreno some money, which isn’t a reason many fans will want to hear. However, the other reason is a little more notable. Now, if the Angels lose Shohei Ohtani as a free agent after making him a qualifying offer this winter, they will receive a compensation pick after the second round. It would have been after the fourth round if they were over the threshold. While the MLB Draft is largely considered somewhat of a crapshoot where first round picks fail to reach the majors and tenth round picks can become all-stars, getting an additional second rounder instead of a fourth rounder is still significant. While Angels management has certainly dropped the ball over the years by failing to field a .500 team with two generational players on their roster, it’s hard to criticize them for this move because it both falls within the rules and provides the franchise a benefit. However, just because it falls within the rules doesn’t mean it doesn’t bring up competitive integrity issues. First of all, by cutting ties with nearly a quarter of their roster, the Angels will undoubtedly be a far worse team on paper in the month of September than they otherwise would’ve been. Therefore, anyone who has the Angels on their schedule this month will likely benefit. Teams like the Orioles, Guardians, Mariners, Rays, Twins, and Rangers, who are all fighting for division championships or wild card berths, will face the Halos in the coming weeks and could bank some much-needed wins to get themselves into a better postseason position. But teams trade away some of their best players and weaken themselves at the trade deadline every season, so the Angels shedding some of their contributing players isn’t unprecedented by any means. How they went about shedding them is though. When “sellers” trade away players at the deadline, they don’t just give them up for salary relief. They give them up for prospects that will help them in the future. In order to acquire players that play key roles in a pennant race, “buyers” have to outbid other suitors with prospect capital to do so. The consideration of acquiring players for the future offsets the downside of trading away from the present roster. But what the Angels did doesn’t fall into that category. They essentially let the Cleveland Guardians take Gioltio, Lopez, and Moore for essentially nothing. The Guardians, who for all intents and purposes sold at the deadline in trading Aaron Civale to the Tampa Bay Rays, benefitted from being in an advantageous waiver position. Instead of being required to shell out any of their top prospects like their contending counterparts did at the deadline, the Guardians walked away with players that could help them push the Minnesota Twins for the AL Central crown for pennies on the dollar. While it’s unknown if MLB or the MLBPA will do anything drastic to stop a team like the Angels from putting a significant number of players on waivers in the future, I bet it will be a talking point at this offseason’s Owners and GM meetings. The Twins front office can’t be happy that a team chasing them for the division got to pick up a collection of players for essentially nothing. Buyers like the Rangers or Astros can’t be happy that a team didn’t have to give up any of their top prospects to acquire talent when they had to just weeks earlier at the deadline. What the Angels did was largely viewed as unprecedented and surprising in the baseball industry. Whether or not they were technically allowed by the CBA to place five players on waivers to avoid luxury tax penalties is one thing. But preserving the competitive integrity of postseason races is another and should at least cross the minds of the league’s executives in New York. A potential solution could be pushing back the trade deadline to mid-August or bringing back the waiver trade system that allowed trades up until the end of August where teams would have a little more clarity on their postseason prospects before making drastic moves. But regardless, it’s not the best look when a team potentially shakes up the playoff race to get under the luxury tax.
- Alex Galchenyuk’s Post-Criminal Hockey Career
After 654 National Hockey League (NHL) games split among the Montreal Canadiens, Arizona Coyotes, Pittsburgh Penguins, Minnesota Wild, Ottawa Senators, Toronto Maple Leafs, and Colorado Avalanche, three days in jail, one terminated contract from July 2023, and approximately 40 days in the NHL Player Assistance Program, American-born forward Alex Galchenyuk has signed a two-year contract with SKA St. Petersburg of the Kontinental Hockey League (KHL). With his move to Europe, a unique chapter of sports law (as applied to hockey) appears to have concluded. Regardless as to whether or not this represents “game over,” let’s take a Conduct Detrimental-style skate through the last two months of Galchenyuk’s NHL tenure, some past examples of NHL jurisprudence, and what might happen going forward. On July 1, 2023, Galchenyuk became an unrestricted free agent. He signed a one-year, $775,000 (seven hundred seventy-five thousand dollars) contract with the Arizona Coyotes, with whom he was projected to play for the third separate time in his career. On July 9, Galchenyuk was arrested for a drunken hit-and-run causing property damage in Scottsdale, Arizona. At that stop, Galchenyuk invoked racial slurs towards one Black police officer on the scene, and threatened another police officer by stating that “One phone call and you’re all dead, your whole family, your bloodline is dead.” On July 14 (approximately two weeks after signing), the Coyotes announced that they placed Galchenyuk on unconditional waivers for terminating his contract. On July 18, Galchenyuk published an open letter on social media, apologizing for his behavior and announcing his enrollment in the NHL Player Assistance Program. On August 12, Galchenyuk pled guilty to one misdemeanor charge of threatening a police officer, but the other charges against him (private property hit-and-run, disorderly conduct, failure to obey, resisting arrest) were dropped. Pursuant to the guilty plea, Galchenyuk was sentenced to 30 days in jail–3 days of time served, and the remainder suspended on the condition of successfully completing an alcohol recovery program, as well as one year with neither consuming nor possessing alcohol. Finally, on August 25, Galchenyuk signed his current contract in the KHL. As a preliminary matter, when the Coyotes terminated Galchenyuk’s NHL contract, there were some rumblings that the NHLPA planned to investigate this maneuver. Even though teams have previously placed players on unconditional waivers for terminating contracts on numerous other occasions, contracts are usually terminated upon mutual agreement. A small minority of contracts have been terminated due to heinous off-ice conduct (and presumably without the player’s consent), but this Galchenyuk situation appears to be the first time that a NHL team terminated a contract before the player played any games under that contract. Under similar circumstances, in May 2020 (during the indefinite suspension of the season due to the COVID-19 pandemic), the Washington Capitals terminated the contract of Brendan Leipsic. He had played 61 games for the Capitals during the 2019-20 season, pursuant to his one-year contract that he had signed with the Capitals. Like Galchenyuk, Leipsic’s contract was terminated for off-ice behavior (for Leipsic, when social media direct messages were leaked, revealing disparaging comments towards women), but unlike Galchenyuk, Leipsic had played some games during the course of the contract. By contrast, in October 2015, Montreal Canadiens forward Zack Kassian was hospitalized for nose and foot fractures obtained while riding as a passenger in his own truck, crashed by another person driving the truck. Kassian later admitted that he was intoxicated with alcohol and cocaine prior to the car crash. As of Kassian’s car crash, he had participated in preseason games with the Montreal Canadiens, but the regular season had not yet started. Under terms of the NHL Collective Bargaining Agreement, Kassian would not have been eligible to have been placed on waivers while injured; instead, Kassian immediately enrolled in the NHL Player Assistance Program. Upon Kassian’s completion of criteria and his getting cleared to play, he was traded to the Edmonton Oilers. Like Galchenyuk, Kassian entered the NHL Player Assistance Program shortly after infamous conduct, but unlike Galchenyuk, Kassian never had his contract terminated due to that specific conduct. Assuming Alex Galchenyuk has any remaining future in the NHL, what might it look like? One fair analogy might be of former Los Angeles Kings defenseman Vyacheslav “Slava” Voynov. On October 20, 2014, he was arrested for domestic violence against his wife, Marta Varlamova. He was immediately placed on indefinite suspension with pay while his case developed. In July 2015, Voynov pled no lo contendere a reduced misdemeanor charge, for which he was sentenced to 90 days in jail and three years of probation. In September 2015, Voynov was transferred to a U.S. Immigration and Customs Enforcement detention center. Instead of undergoing deportation proceedings, Voynov elected to return to his home country of Russia, where he continues to play in the KHL. The remainder of his NHL contract was terminated due to the impossibility of Voynov being able to secure a work visa. Meanwhile, the NHL determined that Voynov was unable to play for Team Russia in their international tournament, the 2016 World Cup of Hockey. After an arbitrator’s final decision in 2019, Voynov became eligible to play in the NHL in 2020, but there has been no indication that Voynov will attempt to return to the NHL. Between Voynov and Galchenyuk, one crucial difference is that because Galchenyuk is a natural-born citizen of the United States, he cannot be deported from the United States. As such, it is not “impossible” for Galchenyuk to perform services under a NHL contract, in the way that it was impossible for Voynov to do the same. That being said, it is fair to assume that if Galchenyuk should attempt to rejoin the NHL, he would have to (1) sign a standard player contract, (2) serve an unpaid suspension while undergoing treatment in the NHL Player Assistance Program, which he entered on July 18, 2023, but which he has presumably not completed since accepting employment in the KHL, and (3) undergo NHL discipline once cleared to play after completing the Player Assistance Program. Similarly, assuming that a WCOH takes place in 2024 as planned, Galchenyuk (who would be under contract for SKA St. Petersburg by that time) would likely be deemed ineligible for Team USA in that tournament. Mike Engle is an associate attorney for the United States federal government. During his time at Hofstra Law School in New York, his articles were published in the Hofstra Labor & Employment Law Journal and the DePaul Journal of Sports Law & Contemporary Problems. He was also an invited guest on the now-defunct vlog Law and Batting Order. Mike resides in Upstate New York with his wife, Gillian, and their daughter, Esther. Interact with him on Twitter @EngleLaw29, but only during off-duty hours and preferably not during Montreal Canadiens games! Sources:  Alex Galchenyuk, HOCKEY REFERENCE, https://www.hockey-reference.com/players/g/galchal01.html (last accessed Aug. 27, 2023).  Galchenyuk has contract terminated by Coyotes, NHL.com (July 14, 2023), https://www.nhl.com/news/alex-galchenyuk-contract-status/c-345331164.  Galchenyuk, Alex, X (formerly TWITTER) (@AGally94) (July 18, 2023, 17:50), https://twitter.com/AGally94/status/1681421247400345601?s=20.  Alex Galchenyuk signs two-year deal with SKA Saint Petersburg in KHL, SPORTSNET (Aug. 25, 2023, 17:33), https://www.sportsnet.ca/nhl/article/alex-galchenyuk-signs-two-year-deal-with-ska-saint-petersburg-in-khl/.  HOCKEY REFERENCE, supra at Note 1.  Alex Galchenyuk, CAPFRIENDLY, https://www.capfriendly.com/players/alex-galchenyuk (last accessed Aug. 27, 2023).  Gonzalez, Isabel, CBS SPORTS (July 14, 2023, 20:44), https://www.cbssports.com/nhl/news/former-coyotes-forward-alex-galchenyuk-threatened-to-kill-police-officers-after-hit-and-run-arrest-per-report/.  NHL.com, supra at Note 2.  Galchenyuk, Twitter, supra at Note 3.  Cantlon, Kyle, Report: NHL free agent Alex Galchenyuk has 5 of 6 charges dropped after July arrest, YAHOO SPORTS (Aug. 21, 2023, 15:59), https://ca.sports.yahoo.com/news/nhl-free-agent-alex-galchenyuk-has-5-of-6-charges-dropped-after-july-arrest-195903549.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAED8YfQrF1O6tA4lsP5Fh7mIIcc1VGM9MchVbGSzcrdBU79v1_b_0ICI3U-Ho9cPjyhpJmPwD7-KZTDYEFLXFZk-lYtxIOI1zaH0q6ajE_AxY1f4QI1FxpWwAi7fSRvB4JGaFdP0BWnGhIuTAuvmJtegFYEPqHsXSSP8W1DOkXNa  Id.; see also Strang, Katie, X (formerly TWITTER) (@KatieJStrang) (Aug. 21, 2023, 12:46), https://twitter.com/KatieJStrang/status/1693665830792315235?s=20.  Sportsnet, supra at Note 4.  Morgan, Craig, X (formerly TWITTER) (@CraigSMorgan) (July 13, 2023, 12:19), https://twitter.com/CraigSMorgan/status/1679525972926930945?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1679525972926930945%7Ctwgr%5E2d0a9b88cb0f3f5ec69206d19820f6bf0c3081a0%7Ctwcon%5Es1_c10&ref_url=https%3A%2F%2Fwww.hockeyfeed.com%2Fnhl-news%2Falex-galchenyuk-under-investigation-by-the-nhlpa; Wyshynski, Greg, X (formerly TWITTER) (@wyshynski) (July 13, 2023, 18:06), https://twitter.com/wyshynski/status/1679613251183583232?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1679613251183583232%7Ctwgr%5E2d0a9b88cb0f3f5ec69206d19820f6bf0c3081a0%7Ctwcon%5Es1_c10&ref_url=https%3A%2F%2Fwww.hockeyfeed.com%2Fnhl-news%2Falex-galchenyuk-under-investigation-by-the-nhlpa.  Washington Capitals Public Relations, X (formerly TWITTER) (@CapitalsPR) (May 8, 2020, 10:58), https://twitter.com/CapitalsPR/status/1258773185966850054?s=20; NHL Public Relations, NHL statement on Leipsic, Rodewald, NHL.com (May 6, 2020), https://www.nhl.com/news/nhl-statement-on-brendan-leipsic-and-jack-rodewald/c-316845084.  Canadiens winger Zack Kassian involved in traffic accident, MONTREAL GAZETTE (Oct. 5, 2015, updated July 12, 2020), https://montrealgazette.com/news/local-news/truck-runs-off-road-in-cote-des-neiges-notre-dame-de-grace.  Cherry, Paul, Woman charged with crashing ex-Canadien Kassian's truck to learn fate May 3, MONTREAL GAZETTE (Feb. 7, 2019), https://montrealgazette.com/news/local-news/woman-charged-with-crashing-ex-canadien-kassians-truck-to-learn-fate-may-3.  NHL Public Relations, Canadiens' Kassian placed in Stage Two of NHL/NHLPA Substance Abuse and Behavioral Health Program, NHL.com (Oct. 5, 2015, 18:30), https://www.nhl.com/ice/news.htm?id=781824.  Mike Halford, Updated: Kings’ Voynov Arrested for Domestic Assault, Suspended Indefinitely, NBC SPORTS (Oct. 20, 2014, 10:37), http://prohockeytalk.nbcsports.com/2014/10/20/breakingkingsvoynovarrestedfordomesticas saultsuspendedindefinitely/; Rich Hammond, Redondo Beach Police Discuss the Kings’ Slava Voynov’s Arrest, ORANGE COUNTY REGISTER (Oct. 20, 2014, 20:05), http://www.ocregister.com/articles/beach639060redondopolice.html.  Halford, Mike, Voynov takes plea, gets 90 days in jail plus probation, NBC SPORTS (July 2, 2015, 10:52), https://www.nbcsports.com/nhl/news/breaking-voynov-takes-plea-gets-90-days-in-jail-plus-probation.  Fenno, Nathan, Ex-Kings player Slava Voynov spent two months in jail for domestic abuse, but is at Olympics representing Russia, LOS ANGELES TIMES (Feb. 19, 2018, 17:04), https://www.latimes.com/sports/olympics/la-sp-olympics-voynov-assault-20180219-story.html.  Slava Voynov removed from Team Russia roster, NHL.com (July 18, 2016), https://www.nhl.com/news/slava-voynov-will-not-play-at-world-cup-of-hockey/c-281183668.  NHL and NHLPA Statement on Vyacheslav Voynov’s Suspension, NHL Public Relations (May 23, 2019), https://media.nhl.com/public/news/13271?sf103188791=1.  Rosen, Dan, World Cup of Hockey expected to return in 2024, NHL.com (Aug. 24, 2022), https://www.nhl.com/news/world-cup-of-hockey-return-status/c-335370560.
- The Difference a Year Can Make: The Risk of Gambling on Yourself and Injuries Hurting Player Value
Earlier this year, NBA Center Nerlens Noel and his former agent, Rich Paul of Klutch Sports, settled their ongoing misrepresentation dispute that came to fruition in the summer of 2021. In 2017, Noel, an established veteran and former sixth overall pick, considered signing a four-year, $70 million contract extension with the Dallas Mavericks. At the time, Noel was represented by Happy Walters. However, Rich Paul told Noel to terminate his relationship with Walters, reject the deal, and instead seek a max contract the following season. Noel took Paul’s advice and moved on from Walters, accepting a single-year qualifying offer in order to be in a position to sign a better contract the following offseason. The following season, Noel only played 30 games as he had surgery to repair a torn ligament in his left thumb. This injury, along with Noel’s play, impacted his value around the league. The subsequent offseason, he was only able to land a two-year, $3.75 million deal with the Oklahoma City Thunder, which included a second-year player option. Noel then sued Paul and Klutch Sports for misrepresentation, seeking $58 million in damages as well as a declaratory judgment and monetary damages. Noel argued that Paul breached obligations and duties owed to Noel that are explicit through the player-agent relationship created by the Standard Player Agent Contract (SPAC). Specifically, Noel claimed breach of contract, breach of fiduciary duty, negligence, and breach of the duties of good faith and fair dealing. This type of dispute may seem rare to the public, but poaching players and making promises to them in the agency world is quite common. More uncommon, however, is filing a complaint and attempting to bring it to a courtroom. The National Basketball Players Association (NBPA) does not prohibit agents from contacting other agents’ clients. Unlike the prohibition on tampering by league executives, agents can talk to players and attempt to sign them to their agency. Unfortunately, the ability to do so can lead to situations where advice given by agents recruiting players does not come to fruition, resulting in players signing for less than what their value was the following season. Switching agents and receiving less money than expected has happened to several players over the years, with Victor Oladipo being the most prominent example. Noel attempted to bring the dispute into the courtroom but ultimately failed as the judge dismissed the case because of an arbitration clause in his contract with Klutch Sports. This clause is part of the SPAC and is common in player-agent relationships. Arbitration provisions are customary in many employee-employer relationships as these provisions are alternatives to litigation. The Federal Arbitration Act was established in 1925 to make arbitration agreements valid as contracts. This is because arbitration is generally seen as more efficient, less complicated, and more private, making it appealing in disputes involving well-known figures like professional athletes. The SPAC’s arbitration clause has been a crucial part of contracts between players and agents as a way to strengthen the role of the player’s association in disputes of this matter. That said, employment arbitration clauses do not come without scrutiny. The arguments against arbitration are often that there is an inherent bias by the arbitrator depending on the relationship with both parties, limited discovery in the process, and unequal bargaining power between the parties. That said, these arguments do not seem to apply to the arbitration clause in the SPAC. The SPAC is a standard contract that players and agents agree to which is “entered into pursuant to and in accordance with the NBPA Regulation’s Governing Player Agents.” The NBPA maximizes player protection by giving players a voice in their contracts. Both parties in the dispute are sophisticated, and they negotiate within the exact contract boundaries as do hundreds of players and agents throughout the NBA. Furthermore, this is a unique situation where Noel is the one employing Paul but is bringing suit. Usually, employers have more protections than employees; it is rare for the employer to sue the employee. However, this nuance is of little significance because both parties act within the confines of the NBA – a more powerful entity. Even though individual contract deals have been under greater scrutiny than collective bargaining deals because of the unequal bargaining power, there is so much influence in this contract by the NBA and NBPA that the bargaining power seems equal. Due to the settlement, Noel is responsible for paying Rich Paul full commission for the Knicks deal he signed in 2021 – which he refused to pay during the ongoing legal dispute – and must withdraw all legal proceedings. Noel lost $57.3 million in potential earnings by rejecting the deal with the Mavericks. He was bought out by the Detroit Pistons last season and recently signed a one-year, $3.1 million deal with the Sacramento Kings. Ben Ruvo is a 2L at Penn Carey Law and the Vice President of the Penn Entertainment and Sports Law Society. He can be reached on Twitter @RuvoBen and by email at [email protected]. You can also find this article here: https://upennesls.com/blog/nerlensnoelrichpaul. Sources:  Nerlens Noel, Rich Paul, Klutch Sports Group Settle Pistons Center’s Legal Case, The Athletic, Shams Charania  CEO of Catalyst Sports & Media, LLC and representative of current NBA players such as Marcus Smart, Jerami Grant, Landry Shamet, and R.J. Hampton.  Nerlens Noel’s $58M Lawsuit Against Former Agent Rich Paul Dismissed by Judge, Bleacher Report, Timothy Rapp  Id.  $58M Lawsuit Against Former Agent Rich Paul, Rapp  Id.  Nerlens Noel’s Case Against Rich Paul Pushed To Arbitration, Sports Agent Blog, Darren Heitner  Id.  How Nerlens Noel-Rich Paul Lawsuit Could Change NBA Agent Landscape, Bleacher Report, Jake Fischer  Id.  Id.  Id.  Id.  Noel’s Case Against Rich Paul, Heitner  Id.  Mandatory Arbitration Clauses in Employement Contracts and the Need for Meaningful Judicial Review, Journal of Gender, Social Policy & The Law, Elizabeth Roma, 522  Noel’s Case Against Rich Paul, Heitner  Mandatory Arbitration Clauses in Employement Contracts, Roma, 526  Standard Player Agent Contract  What is the NBPA, Overview  Mandatory Arbitration Clauses in Employement Contracts, Roma, 529 Id.  Settle Pistons Center’s Legal Case, Charania  $58M Lawsuit Against Former Agent Rich Paul, Rapp
- A Sufficient Suspension? What is the NBA's Message About Miles Bridges?
Lost in the NBA off-season hustle and bustle, a potentially significant resigning slipped under the radar. There were no real "grade the signing" stories or analysis about what he brings to the team. The silence was noticeable. That signing was Miles Bridges signing his Restricted Free Agent Qualifying offer to return to the Charlotte Hornets. Bridges did not play in the entire 2022-2023 season because of a domestic violence incident that occurred last summer. Bridges was coming off the best season of his career in 2022. He was looking at a contract well over $100 million. But on June 27th, 2022, he was arrested for assaulting his fiancé, changing the trajectory of his life and career. He was charged with multiple crimes and pleaded no contest to a felony domestic violence charge. He was sentenced to three years of probation with no jail time, one year of parenting classes, one year of domestic violence counseling, 100 hours of community service, and weekly drug testing. He also cannot own a gun or any weapon and will pay a $300 restitution fee and a $500 domestic violence fine. Bridges sat out this past season and was suspended by the NBA for 30 games. As a result, he received 20 games of "time served" because he was out of the league for the whole season. In essence, he is missing out on 10 game checks this upcoming season. The suspension of Bridges appears minor when compared to that of Ja Morant’s. Morant's issues involving the improper use of firearms have been well documented in the public sphere. However, he never broke a law, let alone physically hurt anyone. His suspension is for 25 games. The discrepancy between Bridges and Morant’s suspension length is noteworthy, especially if you are of the opinion that being suspended for games in which you are out of the league should not count. Moreover, is serious domestic violence only 5 games worse than a series of foolish Instagram live streams? Is that the message? The suspension feels arbitrary and insufficient to say the least. I also wonder that if the Hornets were a more relevant team, would people care more? Fortunately for Miles Bridges, people don't seem to care. But some people do, including myself. Wake Gardner is a rising 2L at the Brandeis School of Law at the University of Louisville. Someday he hopes to work for a sports team in Florida. He can be reached on Twitter @WakeGardner and by email at [email protected]. Links: https://sports.yahoo.com/nba-suspends-ex-hornets-f-miles-bridges-for-30-games-10-months-after-domestic-violence-arrest
- Fanatics, Do Not Pass Go, Do Not Collect $200
On August 3, 2023, Panini America filed a lawsuit leveling allegations of monopolistic practices and anticompetitive conduct against their archnemesis, Fanatics. Specifically, the suit charges Fanatics with separate counts of Attempted Monopolization, Monopolization, and Unreasonable Restraint of Trade under the Sherman Act; two additional counts under the Clayton Act for lessening competition within a market; several counts of Tortious Interference; and, finally, allegations of Business Defamation and Disparagement. Many in and around the collectibles space have labeled this filing inevitable. Neither party has drawn a Go to Jail card just yet, but the 55-page complaint describes the collective actions of Fanatics over the past 18-24 months as damning. In a previous article, I characterize Fanatics as a coming sports card monopoly and provide a summary of the actions outlined in the recent pleading, minus details about the pillaging of Panini employees and disparaging remarks made by Fanatics to third parties. Here, we will analyze the strength of Panini’s argument regarding the length and exclusivity of Fanatics’ imminent rights deals and how the deals will harm competition “for” the market. By 2026, Fanatics will have secured exclusive rights deals with each of the three major American sports leagues—the National Football League (NFL), National Basketball Association (NBA), and Major League Baseball (MLB)—and their respective player associations. In the lawsuit at issue, Panini continually points to the fact that these exclusive deals will span a decade or more, chilling the competitive market for the licensing and production of sports trading cards in the U.S. market. Panini states that this competition “for” the market is the “competition to replace the prior holder of the exclusive contract” and that Fanatics’ twenty-year stranglehold on the exclusive rights is anticompetitive by nature. The length and exclusivity of the deals are important to highlight for Panini because Panini has held the exclusive rights to produce licensed NFL and NBA trading cards for over a decade and they must distinguish their trade practice from the monopoly that Fanatics is currently creating. It is well established within the 11th Circuit that exclusive dealings in and of themselves are not per se illegal, but only when proof of “actual competitive injury” is present does liability attach to anticompetitive conduct. An injury in fact is required for proving violations of both the Sherman Act and Clayton Act. Panini is likely familiar with this requirement based on the routine nature of exclusive deals within the sports trading card hobby. Of note, Panini continues to use exclusive rights deals to its advantage and avoids any antitrust violations by not owning a significant enough sector of the market to cause anticompetitive injury to companies like Fanatics (Topps), Upper Deck, and/or Leaf Trading Cards. Proving actual competitive injury in the present case should not be difficult for Panini’s legal team. In ZF Meritor, LLC v. Eaton Corp., the 3rd Circuit emphasized that the suspect nature of an exclusive contract’s duration was a function of both the number of such contracts and the market share covered. The court went on to admonish the agreements in ZF Meritor which locked up over 85% of the relevant market for at least five years. NFL, NBA, and MLB trading card sales make up greater than 90% of the several-hundred-million dollar U.S. market. Once Fanatics owns exclusive rights to each of the three largest gets in the business, the “monopolistic outcome is not just probable absent an antitrust remedy; it is locked down and assured by contract.” In closing, the Panini complaint asks that the court order an injunction against Fanatics, preventing the company from engaging in any further anticompetitive conduct or enforcing any previously entered-into exclusivity agreements that deterred competition in the Hobby. They go on to request an order requiring Fanatics to divest itself of the assets associated with Topps and any control over GC Packing (GCP)—the critical, high-tech, custom trading card manufacturer for Panini—to “restore competition.” Any litigation is likely in the distant future, but Panini now has a three-year window to prove its case against Fanatics in a final effort to remain relevant in the sports card hobby. Nate Otto is a rising 3L at the University of Florida Levin College of Law and the Executive Articles Editor for the Florida Entertainment and Sports Law Review. Find his store on eBay @BlueWhippetSportsCards. Sources:  Sports Card Platform Panini Sues Rival Fanatics Over Antitrust Law. Reuters (accessed August 3, 2023), https://www.reuters.com/legal/litigation/sports-card-platform-panini-sues-rival-fanatics-over-antitrust-claims-2023-08-03/  Panini America, Inc. v. Fanatics, Inc et al., 55, 30-51. Case 8:23-cv-01721. Filed August 3, 2023.  Id. at 20.  Construction Aggregate Transport, Inc. v. Florida Rock Industries, Inc., 710 F.2d 752, 773 (11th Cir. 1983).  ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 287 (3rd Cir. 2012).  Id.  Panini America, Inc. v. Fanatics, Inc et al., 55, 37. Case 8:23-cv-01721. Filed August 3, 2023.
- Taxes and Athletic Performance: Why NBA Players Perform Better in Low-Tax States
Professional athletes must pay state taxes to each state where their games are played. With marginal state income tax rates ranging from 0% to 13.3%, game locations can make a significant difference on a player’s after-tax earnings. This is sometimes referred to as the “jock tax.” For example, a player for the San Antonio Spurs who plays a game in California could pay up to a 13.3% California tax rate for that game (and there is talk of this being increased to 16.8%). But that same player who plays a game in Texas or Florida would not pay any tax, as those states do not have state income taxes. For some players, this means they would be able to keep thousands of dollars more for a game played in Florida than one in California. And changes to the tax code under President Trump make this disparity even greater because now the player cannot deduct the state taxes paid to California from his federal taxes. Extensive research has already been conducted regarding state tax rates and professional athletes. These studies conclusively show that athletes consider state tax rates when considering which team to join; that teams in high-tax states are therefore at a disadvantage in acquiring talent; and that because of this disadvantage, these high-tax teams underperform when compared to teams in low- and no-tax states. These studies have analyzed European football, PGA golf, NBA basketball, MLB baseball, and NHL hockey. However, no study has been conducted to measure how the various different tax rates experienced by professional athletes in their away games affect athletic performance. This first-of-its kind study fills this gap in the research. By using NBA free throws, a player’s performance can be considered in isolation without the interference of the opposing team, which would be present in every other NBA statistic. Therefore, this study also provides a valuable framework for analyzing mental states and athletic performance in athletes that can be applied in numerous applications in future research. Extensive research in sports psychology regarding how negative mental states produce diminished athletic performance infer that—if players are upset when a game results in a higher tax burden—then their athletic performance in those games would be diminished. The results of this study confirm this hypothesis. Players averaged higher free-throw percentages in away games at no-tax states than they did in away games at high-tax states. This finding was well within the 0.05 statistical significance threshold with a p-value of 0.028. This finding provides empirical support for a number of topics that were previously discussed only theoretically. This invites future research into areas such as the far-reaching implications of tax policy, significance of sports psychologists, the importance of addressing mental states in athletes beyond just their past athletic performance, and the importance of team cohesion. Furthermore, the effects of mental states are likely applicable to the corporate world as well. Therefore, this study invites future research into how mental states in general and state tax rates specifically might affect workplace performance, including collegiality, risk adverseness, discriminatory behaviors, and ethical corporate conduct. These issues are of increased importance in modern corporate America, where the ability of workers to telecommute is rapidly increasing. Future research could attempt to measure a similar effect in other sports that offer a frequent, uncontested circumstance during the competition. Potential examples include tennis serves, track and field performance, baseball pitches, PGA putting, WNBA free throws, and National Hot Rod Association drag racing reaction times. And there are other, related topics that could be researched. Because of how “duty days” are accrued, are injured athletes more likely to come back into play at a low-taxed game? How are athletes in different states willing to trade off future salary for an upfront signing bonus—which could potentially be taxed at a lower rate? How has the recent Supreme Court decision to allow collegiate athletes to profit from their name, image, and likeness affected their tax-avoidance behaviors and performance? Has recent, record inflation affected the mental states of athletes who chose more money up front in the form of a signing bonus than at a later date in performance incentives? A qualitative survey of NBA players regarding their tax literacy would also provide valuable insight regarding this issue, as the notion that NBA players would surely be ignorant as to this relatively simple and highly significant concept of state taxes is perhaps rooted in latent racism. This is a summary of a new study available in its entirety on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3810974. Michael Conklin is the Powell Endowed Professor of Business Law at Angelo State University. He has published in over 100 academic journals including journals at 33 of the top 50 law schools. His research focus is expansive, but often centers on bridging the gap between theory and practice, providing valuable insight for policy makers, practitioners, and legal scholars. This focus on practical application has led to his placement as a top 100 author on SSRN. Sources:  James Alm, William H. Kaempfer & Edward Batte Sennoga, Baseball Salaries and Income Taxes: The “Home Field Advantage” of Income Taxes on Free Agent Salaries, 13 J. Sports Econ. 619, 623 (2012).  Timothy Vermeer, State Individual Income Tax Rates and Brackets for 2023, Tax Found. (Feb. 21, 2023), https://taxfoundation.org/publications/state-individual-income-tax-rates-and-brackets/.  James Alm, William H. Kaempfer & Edward Batte Sennoga, Baseball Salaries and Income Taxes: The “Home Field Advantage” of Income Taxes on Free Agent Salaries, 13 J. Sports Econ. 619, 623 (2012).  Jared Walczak, Tyreek Hill Moved to Lower His States Taxes, and He’s Not Alone, Bloomberg Tax (Oct. 12, 2022, 3:45 AM), https://news.bloombergtax.com/tax-insights-and-commentary/tyreek-hill-moved-to-lower-his-state-taxes-and-hes-not-alone (explaining how some states allow workers to spend up to 30 days in the state before they have any income tax obligation there but that there are “jock tax” exceptions that preclude athletes from taking advantage of this).  Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, 131 Stat. 2054.  See notes 9–22 of full document available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3810974.  Erik Hembre, State Income Taxes and Team Performance, 29 Int’l Tax & Pub. Fin. 704, 706 (2021).  See notes 43–46 of full document available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3810974.  The Number of People Primarily Working from Home Tripled Between 2019 and 2021, U.S. Census Bureau (Sept. 15, 2022), https://www.census.gov/newsroom/press-releases/2022/people-working-from-home.html.  See notes 28–29 of full document available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3810974.  Thomas Heath & Albert B. Crenshaw, In Professional Sports, States Often Claim Players, Wash. Post (Feb. 24, 2003), https://www.washingtonpost.com/archive/sports/2003/02/24/in-professional-sports-states-often-claim-players/200ba244-d18e-49c8-b90f-b40d1aabb2c0/. (“One way athletes can reduce their tax bill is to get as much money as possible up front in a signing bonus, and to receive that bonus as a resident of a tax-free state. If contracts are worded carefully, signing bonuses are not considered wages and an athlete can then avoid paying any state income tax, including the jock tax, on that money, agents say. The savings can reach hundreds of thousands of dollars for big-time players.”).  See Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021).
- The Case for “Holding In” vs. “Holding Out” in the NFL
The new trend in terms of contract negotiations for players recently has been holding out of training camp in search of a new deal. This strategy, though it hasn’t seemed to work so well for players like Le’Veon Bell or more recently Saquon Barkley, has been employed throughout the history of sports. However, after the signing of the 2020 NFL Collective Bargaining Agreement, the new trend has now become “holding in.” This agreement has taken away from teams the right to waive fines for players that refuse to report to mandatory training camp before the season starts. In the past, teams had the ability to simply do away with fines that players accrued while waiting for a new contract to be negotiated. This deal takes this power away from them, leaving players to foot the bill for missed team practices. This turning point has led to players reporting to training camp, but merely sitting on the sidelines and watching team activities, but not participating in them. This allows them to dodge those pesky fines, but still make a statement to the team that they refuse to play under their current contract. This has been the strategy of current Colts running back Jonathan Taylor, who has been seen on video from the press reporting to training camp, but simply watching from afar wearing a t-shirt and bucket hat. This could have an effect on how long players are willing to wait before the season to negotiate new contracts, as they can wait longer while not having to pay any monetary penalties, and potentially train by themselves in order to get ready for the new season. This adds a completely separate layer to negotiations, as it was reported that both Joe Burrow and Justin Herbert were waiting for one another to sign long-term contract extensions before they signed their own, in hopes to outdo one another. For the running backs, as it has been widely reported in the media, this trend could potentially work in the future, though it has not been effective to this point. Saquon Barkley held out for a bit until he returned to sign a deal netting him slightly less than what the franchise tag would have, but he did make public the fact that the running back position has been underpaid and thrust the issue into the public spotlight. The tactics for NFL players in their search for new deals have expanded, and the CBA may have to be expanded to cover situations like this. It’s hard to gameplan for every possible negotiating angle that players can use, and this may be a trend that could exist for a while, given that the current CBA doesn’t expire until March of 2030 - the end of the league year. It is certainly an interesting development that allows players to have a bit of bargaining power while still making sure that the team doesn’t forget that they have an issue. Holdouts for some players like the aforementioned Le’Veon Bell (who sat out the entirety of the 2018 season) have been largely ineffective, but here’s to the players trying to give themselves a voice. Jon Trusz is a recent graduate of the University of Connecticut who achieved degrees in Political Science and Communications and can be reached on LinkedIn under his name, or via email at [email protected].
- The Latest Update on Federal NIL Legislation
Over the past few months, new NCAA President Charlie Baker has shown that getting a federal NIL bill passed is one of his top priorities. Representatives of universities and conferences have been outspoken about the need for a federal law to prevent competitive advantages for schools based on their state laws. Leading up to the August recess set to begin on July 28, numerous NIL bills have been introduced and reintroduced to Congress. Here is a summary of each: Unnamed Bill Drafted by Ted Cruz Dated July 3rd, 2023, Ted Cruz drafted an NIL bill that was observed on July 21. Perhaps the biggest takeaway from this drafted bill is that it sets out the standard that athletes are not employees. This is a topic that has been widely disputed yet has remained unaddressed in most of the federal legislation proposed for NIL. In addition, Ted Cruz’s bill includes a state law preemption, meaning if the bill goes into effect, it will supersede all state laws that have been enacted for NIL. The bill would give the NCAA the power to make recruiting rules and transfer rules for college athletics without worrying about what individual states have done prior to it. Although the bill would not explicitly grant the NCAA an antitrust exemption, it would provide many of the same effects. College Athletes Protection and Compensation Act of 2023- Drafted by Richard Blumenthal, Jerry Moran, and Cory Booker Introduced on July 20, 2023, the College Athletes Protection and Compensation Act of 2023 focuses on regulating the NIL sphere and players’ medical protections. The Act would provide lifetime scholarships for players in addition to long-term medical coverage from injuries resulting from sports. The Act would also create the College Athletics Corporation (“CAC”) to regulate NIL and administer the bill. The CAC would consist of a 15-member board with subpoena power. Similar to the bill drafted by Ted Cruz, this bill would also expressly preempt state law. Protecting Athletes, Schools, and Sports Act of 2023- Drafted by Joe Manchin and Tommy Tuberville Introduced on July 25, the Protecting Athletes, Schools, and Sports Act of 2023 was drafted to set out “common-sense guidelines” for NIL across the country. These guidelines include prohibiting athletes from entering the transfer portal during their first 3 years of eligibility, mandating financial literacy training, and prohibiting athletes from deals with certain industries such as drug paraphernalia, gambling, and dangerous weapons. In addition to the guidelines for athletes, the Act would provide medical coverage for sports-related injuries for eight years after a player graduates. The Act also sets out rules for collectives, stating they can assist in recruiting if they are associated with the university through an official contract. If violations occur, the NCAA would be given the power to revoke universities’ licenses to participate in NIL or send the violations to the Federal Trade Commission (“FTC”) to be investigated. College Athlete Economic Freedom Act- Drafted by Chris Murphy and Lori Trahan Originally introduced on February 4, 2021, the College Athlete Economic Freedom Act was reintroduced on July 26, 2023, amongst the introduction of the preceding proposed bills from this article. The main points of this Act differ a bit from the others, as it focuses on ensuring equality amongst all collegiate athletes. The Act would include an amendment to the Immigration and Nationality Act so that international college athletes that are attending college on F-1 visas can profit off their NIL without immigration consequences because they currently have separate restrictions. The Act would also require that media rights deals include group licenses on behalf of college athletes. The last major takeaway is that the Act would prohibit college and NIL collective practices that discriminate on the basis of gender, race, or sport. While each of these proposed bills have their own distinct goals, there is a great deal of overlap. Nonetheless, there is worry that the variety of proposed legislation will cause confusion and delay the summed-up goal of enacting a federal NIL law. Since the dawn of the NIL era in college athletics, no bill draft has made its way through a vote in the Senate. There is a looming confidence that one of these drafts may be the first, but only time will tell after Congress returns from August recess. https://www.on3.com/nil/news/u-s-senators-joe-manchin-tommy-tuberville-alabama-west-virginia-ncaa-charlie-baker-bipartisan-nil-bill/ https://www.on3.com/nil/news/ted-cruz-senator-texas-nil-ncaa-legislation-bill-draft-employees-athletes-antitrust-charlie-baker/ https://www.moran.senate.gov/public/index.cfm/news-releases?id=A2244F4C-D01C-4F23-A6F2-6BDF56D7AB90 https://www.sportico.com/law/analysis/2023/trahan-murphy-college-athletes-rights-nil-bill-1234732227/ David Schulte is a lawyer in Michigan focused on sports and NIL. He can be found on Twitter at @DavidSchulteNIL
- Willet’s Point Revitalization Plan: The Process of Building New York City FC’s New Stadium
The relatively new soccer team New York City FC (“NYCFC”) just received approval to build a new stadium set to open in 2025, the first soccer-specific stadium in the New York City area. NYCFC has played in several different sites throughout their 11-year history including Red Bull Arena in New Jersey and Yankee Stadium in the Bronx where for several years the club has played on one of the smallest-sized professional soccer fields in the world. The new stadium is expected to seat 25,000 people and be located right next to Citi Field, home of the New York Mets, in Willets Point, Queens. This stadium project is one of the centerpieces in the Borough’s “Willet’s Point Revitalization Plan.” The total cost is expected to be $780 million and will be privately financed. The Willet’s Point Revitalization Plan has also planned to build the city’s largest 100% affordable housing development in 40 years estimated with 2,500 homes, 40,000 square feet of public open space, a 650-seat school, a 250-key hotel, and ground-floor retail shops. The stadium will serve as a draw for tourists and New Yorkers from the surrounding area with the hopes to develop and revitalize the community. The Willet’s Point Revitalization Plan’s Uniform Land Use Review Procedure was recently approved and the final steps prior to starting construction are nearing a conclusion. This procedure is the 4th of a 5-step process of conducting a large-scale project in Queens. The building application process in Queens is relatively simple, requiring the application to be 100% ready to start construction prior to being approved. When preparing the application, the building contractors must make sure the project meets the Borough’s zoning restrictions and have completed building blueprints for the entire project. Once the application is finished, they must submit it to the New York City Department of City Planning. If approved, they must also have it reviewed and approved by the New York City Public Design Committee. After completing all these steps, they are allowed to begin construction. The two City departments ensure that the interests of the community are protected if any major projects like this one are to be built. Mayor Eric Adams spoke to the media after the procedure was approved saying: “This continued investment in New York City will create a long-overdue home for our first team, and create a new neighborhood for Queens.” NYCFC playing in their own soccer-specific stadium is still a ways away, but they are taking steps in the right direction and making sure the community benefits from the growth of this soccer club. Evan Lautato, Rising 2L at St. John’s University School of Law, www.linkedin.com/in/evan-lautato-a4bb14178 Links: https://www.mlssoccer.com/news/nycfc-stadium-renderings-willets-point-plans-before-anticipated-2027-debut https://www.nyc.gov/site/planning/applicants/applicant-portal/step4-filing-application.page
- Arizona Diamondbacks Become the Second MLB Club to Have Their Broadcast Rights Acquired by League
This week, the Arizona Diamondbacks became the second team to have their broadcast rights acquired by Major League Baseball. Diamond Sports Group, the parent company of 19 Bally Sports channels including Bally Sports Arizona, failed to reach an agreement to continue paying the team as it is undergoing significant restructuring after filing for Chapter 11 bankruptcy protection in March. As soon as a bankruptcy court judge approved Diamond’s rejection of the Diamondbacks contract, the broadcast rights were immediately transferred to MLB. Last month, Diamond Sports lost its bankruptcy court case against MLB in which it argued that the rights fees it owes clubs should be reduced due to changes in market dynamics in the era of cord-cutting and the decline of cable television. It had already missed payments to the Diamondbacks, Guardians, Rangers, and Twins earlier in the year, so the company was quickly put in a position to decide whether to keep or cut certain teams' broadcast rights. The Diamondbacks join the Padres as the teams who’ve had their broadcasts shift from Bally Sports to MLB. Early returns from the Padres broadcasts have been mostly good as the audio/visual quality has been excellent and more importantly, more fans are able to watch their favorite team play. MLB commissioner Rob Manfred has long stated that one of his top priorities is making games more accessible for all its fans to watch. The league has long dealt with issues pertaining to local blackouts, frustrating cord-cutters and others without access to cable television. However, the decline of regional sports networks like Bally Sports and AT&T Sports Net could serve as an opportunity for MLB to take more control of broadcasts across the league. Over the offseason, Manfred hired an EVP of local media presumably to get ahead of the issues that have surfaced this year and beyond. MLB has reported that since taking over San Diego’s broadcasts, an additional 2 million people have access to Padres games. Furthermore, according to the league’s press release following acquiring Arizona’s rights, the availability of D-Backs games will jump from 930,000 households to 5.6 million households in the team’s home broadcast territory. While the expanded reach is a big positive for the league and its teams, there is a downside. The rights fee regional sports networks pony up to their respective team is a major source of revenue that if lost, could have a significant effect on the bottom lines for MLB franchises. Yes, MLB does have a lucrative national TV deal and small market clubs do benefit from revenue sharing, but the decline of RSNs must at least pose some cause for concern moving forward. MLB has promised at least 80% of the money Diamond originally owed to the Padres and D-Backs. But 80% isn’t 100% and budgets that have been crafted years in advance will need to be adjusted. It's worth noting that after opting against paying the Diamondbacks, it was reported by Front Office Sports that Diamond Sports Group “anticipates” continuing its relationship with the other 12 teams under its umbrella for the remainder of the 2023 season. What happens beyond 2023 is certainly up in the air at this moment, but if the reports are true, these 12 owners will at least rake in the money they originally expected from Diamond this year. As the trade deadline approaches, this source of revenue is obviously welcoming, especially for owners taking on additional salaries. This will certainly not be the last story pertaining to MLB broadcasts. With the exception of big market clubs like the Yankees, Mets, Red Sox, Cubs, Dodgers, and Giants, who either own or receive massive payments from their respective regional sports networks, the overall decline of RSNs is something every other club is monitoring. Ideally, MLB would love to take control of all its teams' broadcast rights and offer in-market streaming to all fans. But that’s a lot easier said than done and there are many barriers standing in the way of Manfred and the league office at the moment. Brendan Bell can be found on Twitter @_bbell5.