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  • Recapping MLB's 2024 Arbitration Hearings

    While high profile free agent signings and blockbuster trades generate most of the headlines during the MLB offseason, salary arbitration is a key component of each club’s winter. While the process is complex and admittedly difficult to understand for the casual fan, it’s place in the game is crucial for the players. While arbitration cases inevitably lead to a level of tension between players and their respective clubs, it’s a necessary evil in the current economic system of baseball. Relatively speaking, there are very few cases that bleed into an arbitration hearing each year. Out of the hundreds of arb eligible players this, only 15 did not settle with their respective clubs. In this article, we’ll look at those 15 cases and see what the major takeaways are from this year’s cycle of arbitration cases. Of the 15 cases that went to a hearing, players emerged victorious in 9 of them. That marks the highest winning percentage for the players since the 2019 offseason. As you can see from the table below, clubs had fared well in arbitration hearings over the past couple of years, so this year produced better results for the player side. Even as more clubs are adopting the “file-and-trial” approach after initial exchanging numbers, we are not seeing a tremendous increase in the quantity of hearings. It’s worth noting that there were fewer hearings in 2021 simply because 2020 was only a 60-game season which obviously created a level of ambiguity pertaining to a player’s value that neither side likely wanted to turn over to an arbitration panel. The individual players involved in arbitration hearings this year ranged from high profile All-Stars to up-and-down relievers fighting for roster spots. While some players are treated differently than others in arbitration, the process is the same for each and every case. Much like other legal proceedings, precedent often wins the day. You might wonder why there is so much consternation over a few hundred thousand dollars in most cases between players and clubs. It’s because every single arbitration deal signed has long standing ramifications on the next player in line. Players want figures to keep rising while clubs want to keep them as low as possible. Here is a list of the players who went to a hearing and the salary figures that were debated. We start with Vladimir Guerrero Jr., whose $1.85 million spread was the widest following Adolis Garcia’s last-minute deal with the Texas Rangers to avoid a hearing. Vladimir Guerrero Jr., Toronto Blue Jays Luis Arraez (2B/1B), Miami Marlins J.D. Davis (3B), San Francisco Giants Austin Hays (OF), Baltimore Orioles Tanner Scott (P), Miami Marlins Taylor Ward (OF), Los Angeles Angels Alec Bohm (3B), Philadelphia Phillies Harold Ramirez (OF/DH), Tampa Bay Rays Mauricio Dubon (UTL), Houston Astros Jason Adam (P), Tampa Bay Rays Jazz Chisholm Jr. (OF), Miami Marlins Jose Suarez (P), Los Angeles Angels Jacob Webb (P), Baltimore Orioles Nick Gordon (UTL), Miami Marlins* *Gordon was traded to the Marlins following his arbitration case Phil Bickford (P), New York Mets

  • The 2024 NFL Salary Rises an Unprecedented $30.6 Million Year over Year, Totaling $255.4 Million

    The NFL announced yesterday that the NFL salary cap figure for the 2024 NFL season will be set at $255.4 million. There is additionally $74 million per club for player benefits, which includes benefits for retired players and performance incentives. This increase is the result of the full repayment of all amounts advanced by the clubs and differed by the players during the COVID-19 pandemic as well as the increase in media revenue for the 2024 season. This announcement comes as the league prepares for the NFL Combine, being hosted from Monday, February 26, through March 4, at Lucas Oil Stadium in Indianapolis, Indiana. The NFL Combine is a hotbed for agents, scouts, and team executives representing all 32 clubs. The salary cap number being announced prior to the new league year, which officially begins on March 13, allows teams to plan accordingly. The nonplaying season is the active season for team executives. Decisions are made such as whether to cut veteran players with remaining years on their contract (commonly referred to as “cap casualties”), whether to apply the franchise tag or to extend a player, and whether there is a younger (and cheaper) player in the draft at a position of need. The window to use the franchise tag opened earlier this past week and the deadline to use the tag is 4 P.M. ET on March 5. The exclusive franchise tag is the more commonly applied tag and completely binds the player to his team. The exclusive franchise tag for a given player/position is calculated as the average of the top five salaries at the position for the previous year or 120% of the player’s salary from the previous year, whichever is greater. This year's tag number for a wide receiver is set at $21.816 million. The Cincinnati Bengals placed the franchise tag on WR Tee Higgins just last night while the two sides continue to have conversations regarding an extension. The question remains as to whether the two sides will be able to strike a deal with fellow Bengals WR Jamar Chase’s massive contract extension on the horizon. This increase in salary cap makes a long-term extension more realistic and lessens the burden for the Bengals if the team were unable to come to terms on a long-term extension. Two additional players who are likely hyperaware of the $30 million salary cap increase are both Minnesota Vikings WR Justin Jefferson and QB Kirk Cousins. Justin Jefferson has already stated that he wants to become the highest-paid WR in the league. His deal is likely to be in the range of $35 to $40 million per year. Jefferson is entering his fifth NFL season and in the final year of his rookie contract. He is set to make $19.7 million. Due to the NFL’s Collective Bargaining Agreement, a player can only be tagged a maximum of three times. Kirk Cousins was tagged twice earlier in his career while playing for Washington. Unfortunately for the Vikings, they will not get the chance to apply the franchise tag on their QB. Cousin’s contract voids after the deadline for applying the franchise tag which means that the Vikings will not have the ability to tag him. Cousins signed a 3-year, $84 million contract with the Vikings in 2018 and a 2-year, $66 million contract with the club in 2020. Both contracts were fully guaranteed. The unprecedented salary cap increase likely means another massive payday for Kirk Cousins, whether it be from the Minnesota Vikings or another club. Joseph Gravina is a 2L at New York Law School. He holds the position of Co-Alumni Chair of the New York Law School Sports Law Society, is a member of the New York Law School NIL Pro Bono Project, and serves as a regional representative of the Conduct Detrimental Law Student Board. He can be found on Twitter @jgravina10 and LinkedIn as Joseph Gravina.

  • UEFA and FIFA Monopoly Over? Competition Law And The Future Of Football Organizations

    I. Introduction While UEFA and FIFA have historically maintained a dominant market presence in “organizing and marketing interclub football competitions within the European Union,” [1] they have also restrained emerging entities from accessing this market. These organizations have repeatedly stressed the importance of successfully facilitating equitable competition within their leagues and tournaments, fostering opportunities for newcomers to contend for championship titles. On December 21, 2023, European Court of Justice (“ECJ”) took a page from their book and granted the nascent European Super League (“ESL”) an opportunity to explore the organization of a new pan-European interclub football competition. Although ESL will still need official approval, [2] this decision questions the very existence of the organizational structure of the game; marking a departure from the entrenched dominance of established entities, potentially opening avenues for greater competition and innovation in the European football landscape. II. Legal Background A. Formation of the European Super League European Super League, governed by Spanish law, announced its plan to organize “the first annual European football competition to exist independently of UEFA” in April, 2021. [3] The organizing company, ESLC, operates based on a semi-open business model; its shareholders consisted of European football clubs, including the “Big Six” of the Premier League, and the sports development company A22. [4] Although being subject to a prior approval under Articles 22 and 71 to 73 of the FIFA Statutes, and Articles 49 and 51 of the UEFA Statutes, [5] ESLC announced the plan to launch the new league. B. Retaliation from FIFA and UEFA The proposed plan sparked widespread protests among football fans and national governments, especially the UK government, who vowed to block British clubs from joining ESL under the forthcoming Football Governance Bill. [6] More importantly, UEFA, FIFA, Football Supporters Europe, LaLiga, the European Club Association, European Leagues and FIFPro Europe issued a joint statement, asserting that "[t]here is no place for any type of 'super league' in Europe. Sporting merit is what counts." [7] This statement from FIFA and UEFA affirmed that any club or player taking part in ESL would be expelled from the competitions organized by FIFA and UEFA, such as the Champions League and the World Cup. [8] Public pressure and the threats of sanctions quickly resulted in nine out of twelve clubs withdrawing from the ESL. The remaining clubs, led by the support of two La Liga giants Real Madrid and Barcelona, argued that UEFA, with the support of FIFA, was running an illegal monopoly. [9] The ESL then brought an action before the Commercial Court in Madrid (“Juzgado de lo Mercantil de Madrid”), contending that prior approval rules and associated sanctions under FIFA and UEFA statutes were in breach of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”), which prohibits anti-competitive agreements, and Article 102 of TFEU, which prohibits the abuse of a dominant position. C. Commercial Court in Madrid In July, 2021, the Madrid Court issued a preliminary injunction and ordered UEFA to (1) cancel disciplinary proceedings against clubs supporting the ESL; (2) render “inconsequential” the retaliatory measures such as fines, sanctions, and obligations, imposed on the clubs affiliated with ESL; and (3) publish the actions taken in compliance with the injunction on its official website. [10] The Madrid Court also requested a preliminary ruling to the ECJ under Article 267 TFEU to address issues regarding competition law and freedom to provide services. III. The European Court of Justice's Decision A. Abuse of a Dominant Position and Anticompetitive Agreements The ECJ held that adoption and enforcement of rules under FIFA and UEFA Statues wield significant influence over the organization of competitions, and agreed that UEFA holds “a dominant position (if not a monopoly) on that market, since it is the sole organizer of all major interclub football competitions at European level.” [12] Although Article 102 does not sanction the existence of a dominant position per se, the risk of an abuse of such power may warrant restrictions, obligations, and review. [13] The court concluded that adoption and implementation of rules and sanctions by FIFA and UEFA constitutes an abuse of a dominant position. Similarly, FIFA and UEFA provisions on prior approval, participation, and sanctions provide no framework, and fall short of the Article 101 standard, which requires that that the substantive criteria or the procedural rules of these entities are transparent, objective, precise, non-discriminatory and proportionate. The court ruled that the aforementioned provisions constitute “a decision by an association of undertakings having as its object the prevention of competition.” [14] The decision of the ECJ, while seeming like a win for the ESL, does not mark the end of the FIFA and UEFA monopoly. Through further arguments and evidence, FIFA and UEFA may benefit from an exemption to the application of Article 101—by meeting the stringent standard of proving anticompetitive object—or be considered justified under Article 102—by showing that their conduct was necessary, and that the exclusionary effect was outweighed by consumer benefits. It will be for the Commercial Court in Madrid to rule on these issues. [15] B. Future Implications While the European Court of Justice's decision may not have unfolded like a fanfare of a Champions League final, its significance will be imminent within the corridors of European football governance. The ruling's gradual effects will no doubt leave a mark on the future landscape of football organizations in Europe. By openıng the door for future enforcement actions against UEFA and FIFA, this decision may garner criticism for creating a standard for heightened regulatory oversight that could distort competition. Regardless, it ultimately represents a commitment to the principles of transparency, the freedom to provide services, and the preservation of fair competition within the realm of European football. Zeynep Karageldi is a passionate first-year law student at Cardozo School of Law with a keen interest in soccer and basketball. Serving as a 1L representative of the Cardozo Sports Law Association, she delves into the intersection of sports and law, particularly focusing on intellectual property, antitrust, and contract law. She can be found on LinkedIn at this link. References: [1] C-333/21, European Super League Company SL v. Unión de Federaciones Europeas de Fútbol (UEFA),  Fédération internationale de football association (FIFA), ECR, (2023). [2] Id. [3] Id. [4] European Super League Hopes Reignited As Court Rules UEFA and Fifa Acted Illegally By Blocking Competition, SPORTS MEDIA, (Dec. 21, 2023), https://www.sportspromedia.com/news/european-super-league-verdict-uefa-fifa-eu-ecj-court-ruling-bernd-reichart/ [5] European Superleague Company, Court of Justice, Celex No. 62021CJ0333 (2023) [6] Adam Forrest, European Super League Sunak Ban, Independent (Dec. 21, 2023), https://www.independent.co.uk/news/uk/politics/european-super-league-sunak-ban-b2467883.html [7] Bart H. Meijer and Rohith Nair, European Super League Back in Spotlight After Landmark Ruling, Reuters, (Dec. 21, 2023), https://www.reuters.com/sports/soccer/court-rules-uefa-fifa-breached-eu-law-over-super-league-2023-12-21/ [8] Ali Walker and Varg Folkman, Football’s Super League Gets Win at EU Top Court, Politico,  (Dec. 21, 2023), https://www.politico.eu/article/footballs-uefa-and-fifa-lose-eu-court-bid-to-halt-breakaway-super-league/#:~:text=European%20football%20was%20rocked%20on,future%20of%20football%20in%20Europe. [9] Id. [10] K. Tiyagi, Madrid Commercial Court Refers UEFA & FIFA’s Anti-Competitive Kick to the ECJ, Law Blogs Maastricht, (Jan. 14, 2022), https://www.maastrichtuniversity.nl/blog/2022/01/madrid-commercial-court-refers-uefa-fifa’s-anti-competitive-kick-ecj [11]  Case C-333/21, Opinion of Advocate General Rantos, ECR, (2023), https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX%3A62021CC0333 [12]  C-333/21, European Super League Company SL v. Unión de Federaciones Europeas de Fútbol (UEFA),  Fédération internationale de football association (FIFA), ECR, (2023). [13] Id. [14] Id. [15] Id.

  • The NFL Should Embrace Objective Concussion Tests

    The National Football League is in a litigation battle with four insurance companies, American Guarantee and Liability Insurance Company, TIG Insurance Company, the North River Insurance Company, and the U.S. Fire Insurance Company, to be reimbursed for paying off the 2017 concussion settlement with NFL players worth at least $1.3 billion.[1] The NFL and the four insurance companies are in a classic legal battle of the experts. The insurance companies found three experts who prepared reports to dismiss the National Institute of Health’s study that there is a causal link between multiple head hits and chronic traumatic encephalopathy (CTE).[2] For example, Professor of Neurology at the NYU Grossman School of Medicine in New City, William Barr, MD, said, “It is well-known in the neuropsychological literature that feigning and malingering is present in approximately 40% of individuals receiving testing in a litigation context and in cases where there is a potential secondary financial gain.”[3] In Barr’s report, he cites the “neuropsychological literature” to suggest that the NFL players are faking their injuries for money. Yet, Barr never said that he physically examined any of the athletes, which is another typical insurance defense expert tactic. Barr also said, “approximately 40% of individuals receiving testing in a litigation context.”[4] What about the injured people who never filed a lawsuit? Were their injuries more real because they did not have an attorney? What if the NFL settled prior to the Players filing litigation? Would the Players’ injuries be more real? Barr’s expert testimony fails to be persuasive. Medical experts fighting medical experts is hardly a novel legal strategy by insurance companies. In tort cases such as motor vehicle wrecks, medical malpractice, and slip and falls, it is a common insurance strategy to doubt the veracity of medical bills and records by getting another medical expert to question the plaintiff’s medical expert. This strategy tries to muddy up the water by attempting to place doubt in the minds of jurors to believe plaintiffs and their doctors. Unfortunately, finding such a medical defense expert is relatively simple. Just Google it. There are many well-known companies that offer medical expert services such as Juris Pro Expert Witness Directory, SEAK Expert Witness Directory, and American Medical Forensic Specialists where you can find an expert like picking out an Uber.[5] You can even find experts that will already side with your case, because the searches can be broken down into specifically Defense Medical Experts.[6] Expert battles over concussions are expensive and will inevitably fail to provide a definitive answer. The fundamental problem with diagnosing concussions is that people can exhibit an entire range of symptoms including but not limited to headaches, dizziness, nausea, vomiting, visual disturbances, sensitivity to light and sound, amnesia, brain fog, attention and concentration deficit, emotional symptoms such as anxiety, depression, insomnia, post-traumatic stress disorder, and hormone irregularities due to pituitary dysfunction.[7] NFL players may have a group of these symptoms but not all of these symptoms. For example, Luke Kuechley had a concussion and began uncontrollably crying while Tua Tagovailoa’s concussion on Thursday Night Football put him in a state of shock, a “fencing” response.[8] Due to the widespread nature of concussion symptoms, new tools and tests are becoming available. For example, the Food and Drug Administration authorized Q-Collars to be worn by football players as a way to help reduce the risk of the brain shaking inside of the skull.[9] The NFL has embraced Q-Collars with the following players wearing them in 2023: Chargers LB Drue Tranquill, Cowboys RB Tony Pollard, Cowboys TE Dalton Schultz, Panthers LB Shaq Thompson, Rams S Taylor Rapp, Eagles RB Boston Scott, and Seahawks TE Colby Parkinson.[10] The NFL has yet to embrace new tests for concussions: Brain Scope and Diffusion Tensor Imaging. A BrainScope is an FDA-approved device that uses electrical activity in the brain to diagnose concussions in athletes.[11] In a study from 2017 to 2019, male and female athletes from 13 to 25 years old with concussions and athletes without concussions were assessed within 72 hours of the injury.[12] The study included a combination of 49 high schools, colleges, and concussion clinics in the United States. 580 people participated in the study.[13] 207 were diagnosed with a concussion and 373 were not diagnosed with a concussion.[14] The Concussion Index had a sensitivity of 86%, specificity of 71%, and negative predictive value of 90%.[15] Leslie Pritchett, MD, Chief Scientific Officer of BrainScope said, “The results of this study are an independent demonstration of the power and reliability of BrainScope's Concussion Index –– as an objective marker in the clinical assessment of concussions at the time of injury and as a reliable indicator of change over time."[16] The BrainScope device is portable enough that it can be used on NFL sidelines during games. Diffusion Tensor Imaging is a type of magnetic resonance imaging technique that tracks the water molecules in the brain.[17] Imagine taking a bird's eye view of a 6-lane highway where you can see multiple cars going east and west. Then, in one of the eastbound lanes, a car stops clogging up traffic in only that lane while the other lanes are going smoothly. A DTI device takes images of the water molecules throughout your brain like cars on a highway and when you get a head injury, the water stops.[18] The DTI can find the location of the brain injury by finding where the molecules stop. Currently, DTIs remain legally controversial, because they are failing the Daubert and Frye evidence tests, but some courts are still allowing them including 16 jurisdictions.[19] The overwhelming benefit of BrainScope and DTI is that no one can fake the electrical activity in the brain, nor can anyone fake water molecules stopping in the brain. BrainScope and DTI can end the battle of medical experts and start a new future in accurately and objectively diagnosing concussions. Currently, the NFL uses an independent medical doctor to conduct a checklist to determine whether the player can return to play. Answering pre-determined questions can be easily circumvented by athletes with real injuries which has been described by Former New England Patriots Wide Receivers, Julian Edelman and Danny Amendola, here and Former Tennessee Titans Linebacker and current Seattle Seahawks Assistant Coach NFL Veteran, Daren Bates, here. The NFL should embrace a more objective approach to diagnosing concussions with a Brain Scope or Diffusion Tensor Imaging in conjunction with their concussion protocol. John Camacho is a graduate of South Texas College of Law where he earned a J.D. and a graduate of the University of Missouri, St. Louis where he received a M.A. in Philosophy. He is a Co-Founder of The Moral Questions of Sports Podcast and a Co-Host of the Oxford Public Philosophy Podcast. You can connect with him via Linkedin or via The Moral Questions of Sports. He can be reached on Twitter @Camachotalk and Instagram @themoralquestionsofsports. Sources: [1] See Danial Kaplan’s Front Office Sports article, “’Still a Great Deal of Uncertainty’: Deposition Exposes Goodell’s and NFL’s Concussion Deliberations.” https://frontofficesports.com/still-a-great-deal-of-uncertainty-deposition-exposes-goodells-and-nfls-concussion-deliberations/#:~:text=In%20the%20nearly%20nine%2Dhour,with%20playing%20contact%20sports%20to [2] See Daniel Kaplan’s Front Office Sports article, “The NFL’s $1B Battle Over Concussion Settlement Heats Up.” https://frontofficesports.com/the-nfls-1b-battle-over-concussion-settlement-heats-up/#:~:text=In%20a%20bid%20to%20avoid,there%27s%20no%20scientific%20CTE%20evidence. [3] Id. [4] Id. [5] Search these words in Google, “Expert Medical Witness” and these businesses came up. [6] See Seak Experts https://www.seakexperts.com/keywords/defense-medical-exam-expert-witness [7] Center for Disease Control “Facts about Concussion and Brain Injury Where to Get Help” https://www.cdc.gov/headsup/pdfs/providers/facts_about_concussion_tbi-a.pdf [8] See Tom Lutz’s The Guardian article, “The brilliant Luke Kuechly gave us a searing image of brain trauma” https://www.cdc.gov/headsup/pdfs/providers/facts_about_concussion_tbi-a.pdf and Rob Maaddi’s Associated Press article, “Explainer Tua Tagovailoa, fencing response and NFL protocol” https://apnews.com/article/tua-tagovailoa-fencing-response-de6a1e5d95a5ab869e043369cb6546c3 [9] Addy Bink’s The Hill article, “What are NFL players wearing on their necks?” https://www.ksn.com/sports/what-are-nfl-players-wearing-on-their-necks/ [10] Joe Rivera’s Sporting News article, “What is the Q-Collar? Explaining the band NFL players like Dalton Shultz, Tony Pollard wear around their neck” https://www.sportingnews.com/us/nfl/news/nfl-players-neck-band-q-collar-wear/cssc7pf8z69dnfwzowfhbo1x [11] See “JAMA Highlights Success of BrainScope’s EEG-based Concussion Index as Reliable Indicator of Concussion”https://www.brainscope.com/all-pr/jama-highlights-success-of-brainscopes-eeg-based-concussion-index-as-reliable-indicator-of-concussion. For more info, see Jeffrey Bazarian, MD, study “Validation of a Machine Learning Brain Electrical Activity-Based Index to Aid in Diagnosing Concussion Among Athletes”https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2776443?widget=personalizedcontent&previousarticle=0 [12] Id. [13] Id. [14] Id. [15] Id. [16] Id. [17] Nikos Makris, MD, PhD, et al article with American College of Neuropsychopharmacology, “Diffusion Tensor Imaging” See https://acnp.org/wp-content/uploads/2017/11/CH27_357-372.pdf. [18] Id. [19] See Andrew Lehmkuhl’s University of Cincinnati Law Review article, “Diffusion Tensor Imaging: Failing Daubert and Fed. R. Evid. 702 in Traumatic Brain Injury Litigation., page 298. https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1261&context=uclr

  • An Inside Look into The Life of Major League Soccer’s Legal Counsel – Sporting Kansas City

    For many attorneys and law students aspiring to use their legal degrees to work in the sports industry, an in-house position with a professional organization is considered the peak of an arduous climb to the top of the sports law world. Oftentimes, legal positions in some of the mainstream sports in America, namely football, basketball, and baseball, are typically those that are sought after by sports enthusiasts in the legal world. Nevertheless, due to the exponential growth of its popularity and the constant expansion of its professional leagues, the path toward in-house positions in American soccer has never appeared more open for those aspiring to work within the beautiful game. As a law student who ultimately hopes to attain an in-house counsel position within professional soccer, I wanted to learn from those who are currently in positions in which I and several others passionate about the intersection of soccer and the law aspire to be. In that spirit, I have decided to start a process that I wanted to document by way of Conduct Detrimental to share with all who are interested – an interview with a member of the legal counsel at every MLS club. From these interviews, I hope to be able to provide insight into the nature of legal counsel positions in professional soccer. And at the end of this process, I hope that we will all be more knowledgeable on what it requires to successfully convert our greatest passions into a dream occupation. For this interview, I was fortunate to speak with Kylie DeWees – Staff Attorney at Sporting Kansas City (KC). A graduate of Minnesota State University and Dwayne O. Andreas School of Law at Barry University, Ms. DeWees’ first involvement within MLS was as a legal intern for Orlando City SC before transitioning to Sporting KC in November 2021. As well as serving the legal department for Sporting KC, Ms. DeWees spoke before the Kansas legislature and successfully advocated for a change in Kansas child protection laws during the summer of 2023.   The conversation I had with Ms. DeWees was incredibly insightful, and it was amazing to get to speak with her. Finally, this conversation represents Ms. DeWees’ individual views and opinions and does not purport to reflect the views or opinions of Sporting KC or MLS. With that said, here is the interview with Sporting KC Staff Attorney, Kylie DeWees: 1. BG: Tell us a bit about your story – what led your interest in working in-house within soccer to develop and the career steps you took that eventually placed you in your current position. KdW: First off, it’s taken many villages of people to get here, so I will try to remember as many of those who have helped me as I can! I grew up in Iowa without the ability to cheer for very many sports teams at home. In fact, one of our biggest teams is the Cedar Rapids Kernels (like the corn!). I grew up playing sports, specifically basketball and tennis, and I eventually went to Minnesota State to play tennis in college while also studying to receive a Master’s degree in sports management. During that time, I met with the assistant athletic director to resolve a certain issue with my scholarship to the school, which eventually worked its way to the CFO of the university. It was in this specific situation that I first realized the power of advocacy and the power of contracts as important legal documents. Actually, the assistant AD appreciated how I advocated so much that he asked me to be his graduate assistant in compliance. I worked in this position throughout the following year, and it helped inspire my interest in working in sports law. While working in compliance helped inspire this interest on a professional level, there were also personal motivations for my interest in sports law. When I was a child, I suffered from some traumatic events related to one of my former coaches. From this terrible experience, I was driven not only to work in sports to gain justice for others within the industry but also to reform state laws to help better protect children in sports. All of these factors led me to attend law school and specialize in sports law. I chose to go to law school at Barry School of Law in Orlando, Florida to open myself up to more opportunities in the sports industry. After my first year of law school, though, the COVID-19 pandemic hit, which had scary implications for me trying to find my first summer job. Thankfully, I had previously met with a criminal defense attorney in Florida who had represented some major sports clients, and I was able to secure an internship with him that first summer. In my second year, I applied for the legal internship with Orlando City SC. Unfortunately, I didn’t get it on my first attempt, but I was super grateful to have gotten the position after applying for it a second time. Having people at Orlando like Aurusa Moosani and Caesar Lopez as mentors were invaluable for my progression as a future in-house attorney. Heading into my final year of law school, I was informed of a contract administrator position with Sporting Kansas City. After speaking with my mentors at Orlando City about the opportunity, I decided to take it with the additional stipulation that I would become staff attorney contingent upon passing the Bar Exam. Thankfully, I was able to pass the Bar, my title changed to Staff Attorney, and now I’m here. 2.  BG: What does a typical workday look like for you as Staff Attorney at the Sporting KC? KdW: No two days are the same – I’m sure you’ve heard that quite a lot in your other interviews! But something unique about Sporting KC is that we are completely in-house – we own our stadium, we have our own in-house events business, and we are able to operate with a lot more control by being our own concessionaire. More liability comes with that, so we have to assist with a lot of additional agreements that you would not have if you were not your own concessionaire. In terms of how a typical day would look, though, one of my mentors, Dan Werly, SVP, COO of the Tennessee Titans, always brought up doing your tasks in the morning and setting up meetings in the afternoon. While it’s not always easy following that schedule to a tee, I try to check off many of my daily tasks in the morning, whether they deal with sponsorship agreements or longer-term goals, such as tasks relating to club policies. After that, I’m able to sit down in the afternoon and conduct the meetings that I need to have to ensure everything is operating smoothly from a legal perspective. 3. BG: If you could list three of the most important skills necessary to work as in-house counsel for an MLS club and provide a brief explanation for their importance, which skills would you choose? KdW: For in-house counsel specifically, I would say that interpersonal skills have to be super strong. Many assume that transactional work is quite introverted in that the attorneys seemingly do their work behind a shell, but specifically within MLS, you’re working with every department – corporate partnerships, finance, marketing, ticketing, and the list goes on. You need to be able to collaborate with each department, and that may look different depending on the department. You have to be able to communicate with different types of people and know your audience. Working with an MLS club allows me to work with diverse group of professionals every day. Another important skill is empathy. Having empathy on the job is really important because you never know what someone is going through in their day to day. People will respect you more when you give them a higher level of empathy, and tasks that need to be done will be completed faster when the collaboration is meaningful for both sides. Finally, I would say the ability to set boundaries or expectations with your colleagues is invaluable. If you can do the first two skills well, this last skill falls into place. When you respect people and they respect you, it’s easier to set boundaries with your capability to say when you’re able to get tasks done. And your colleagues will respect your ability to get things done in turn. Everything just works out better when you can communicate to others what they can expect from you. 4. BG: What is one piece of advice that you could offer about the industry to law students that you wish you were given when you were in law school? KdW: I would probably tell law students this: everything will be okay. A lot of law students who aspire to become in-house sports lawyers are driven, ambitious, and they want to press on to the next accomplishment. To that, I’d probably tell them to slow down a bit and to realize that everything will indeed be okay. It’s tough because you are studying for classes, then studying for the bar, then looking for a job, but slowing down and enjoying the time that you spend with those around you in law school is incredibly important. You’re not going to get that time back, so you need to make the most of it while you have it. Another thing that I would say is that everyone’s path is different. A lot of law students want to come work in-house immediately after graduation, but working at a law firm first often yields the same successful result. One of my colleagues, Andrea Kimball, worked at a law firm in San Diego before coming to work with SKC. Also, some of the most successful people I know in this industry worked in a law firm first before transitioning in-house. Hopefully, that should give some law students ease that their careers are not doomed if they do not land the in-house job they want right after graduation. There are many different paths to achieve success when trying to break into the sports industry. A very special thank you to Kylie DeWees for her time and for her contributions to this article. She can be found on LinkedIn at Kylie DeWees. Bryce Goodwyn is a 2L at Regent University School of Law and Editor-in-Chief of Conduct Detrimental. He is a member of the Regent University Law Review and ADR Board, and he also serves as an executive member of the Conduct Detrimental Law Student Board. He can be found on Twitter @BryceGoodwyn and LinkedIn as Bryce Goodwyn.

  • Can The “Caitlin Clark Effect” and NIL Elevate the WNBA?

    The world of women's basketball is buzzing with anticipation as Iowa's star player, Caitlin Clark, decides whether to take her talents professionally or remain with the Hawkeyes using her Covid year extension of eligibility. Clark's skill set and charismatic presence on the court have sparked discussions about the potential impact she could have on the WNBA, raising questions about whether her influence, known as the "Caitlin Clark Effect," could reshape the landscape of professional women's basketball. Sports fans across the nation cannot deny the allure of Caitlin Clark's game. She has become a sensation in college basketball as her flashy plays and swagger on and off the court grab the attention of millions of spectators. Her decision to either enter the WNBA draft or stay in college for another year could have far-reaching consequences for both leagues. At the heart of the debate is whether players like Caitlin Clark have the power to elevate the WNBA to new heights, drawing in more fans, followers, and lucrative deals. While it's true that all WNBA players can leverage off-court opportunities to supplement their salaries, Clark's potential impact goes beyond the traditional measures of success. Consider the numbers: Clark's National Player of the Year campaign not only brought accolades but also significant financial gains for the University of Iowa's women's basketball program. The team's total revenue doubled during her previous season, reaching an impressive $3.8 million. Ticket sales soared, with attendance records shattered at every turn. Clark's popularity translated into tangible economic benefits for her collegiate team, demonstrating her ability to draw crowds and drive revenue [1]. The real question is this: Can the “Caitlin Clark Effect” extend beyond the college realm and make a significant impact on the WNBA? The answer lies in her unparalleled talent and global appeal. Clark's impressive statistics speak for themselves: she is the only member of college basketball's exclusive 3,000-750-750 club, and her 40-point triple-double in the NCAA tournament made history. With career averages of 27.4 points, 7.9 assists, and 7.0 rebounds, coupled with impressive shooting percentages, Clark's on-court prowess is unmatched [3]. Moreover, Caitlin Clark's off-court earning potential is undeniable. With her name recognition and marketability, she stands to capitalize on lucrative NIL deals extending beyond her days at Iowa. According to On3, Caitlin Clark’s NIL deals are worth approximately $818,000, with deals with companies across many industries like Nike, Gatorade, State Farm, and Buick. While her WNBA rookie contract looks to stand around $75,000 per year, it is her long-term potential that excites stakeholders [2]. With WNBA popularity increasing, Clark’s star power could elevate the league to new heights. Recently, one of her autographed trading cards sold for $78,000 - a testament to her star power and market appeal [3]. Her potential arrival in the WNBA could inject new life into the league, attracting a broader audience and generating excitement among fans. With her electrifying style of play, ability to dominate games, and extreme fandom, Clark and other college players have the opportunity to elevate the WNBA to unprecedented levels of success. Peacock, the streaming service, has already benefited from its partnership with Clark, airing seven of Iowa’s games and capitalizing on Clark’s widespread popularity. As one of the most highly anticipated prospects in recent memory, Clark has the potential to drive viewership and engagement, drawing attention to the WNBA on a global scale [4]. While Caitlin Clark's potential to transform the WNBA is undoubtedly significant, she is not the only college basketball star able to make a game-changing impact. The rise of NIL opportunities has paved the way for numerous athletes to leverage their brand and commercial appeal. Players like Paige Bueckers, Cameron Brink, and Angel Reese, among many others, have already begun to capitalize on NIL deals, showcasing the range of talent and marketability within women's collegiate basketball. As more athletes recognize the value of their personal brands, the landscape of women's basketball will undergo a profound shift. These emerging stars, alongside Caitlin Clark, collectively represent a new era of empowerment and opportunity in women's basketball, where athletes can not only excel on the court but also thrive in the realm of business and branding. As fans eagerly await Clark's decision, one thing is certain: her impact on women's basketball, whether in college or the professional ranks, will be nothing short of transformative. Madison Greco is a second-year law student at Suffolk University Law School in Boston. She can be found on Twitter @mtgreco and LinkedIn (Madison Greco). Sources: [1]https://www.sportico.com/leagues/college-sports/2024/caitlin-clark-iowa-womens-basketball-revenue-1234764453/ [2]https://www.on3.com/db/caitlin-clark-162402/nil-deals/ [3]https://www.indystar.com/story/sports/columnists/gregg-doyel/2023/12/11/wnba-caitlin-clark-to-indiana-fever-draft-would-be-dream-come-true-for-indiananpolis-2024/71879011007/ [4]https://www.sportico.com/business/media/2024/caitlin-clark-iowa-hawkeyes-tv-peacock-streaming-1234764684/

  • These Fighters May Have Retired, But Their Fight Is Still On-Going: How a $1.6 Billion Lawsuit May Change the UFC Forever.

    Starting in 1993 as a professional mixed martial arts (MMA) organization, the Ultimate Fighting Championship (UFC) has since revolutionized the fight business and today stands as a premium global sports brand, media content company, and the largest Pay-Per-View (PPV) event provider in the world.[i] In January 2001, Zuffa, LLC., under the leadership of owners Frank Fertitta III, Lorenzo Fertitta, and Dana White, purchased UFC. Headquartered in Las Vegas, NV with a network of employees around the world, the brand produces more than 40 live events annually in some of the most prestigious arenas around the globe. UFC programming is broadcast in over 165 countries and territories, via more than 60 global broadcast partners, to more than 1.1 billion TV households worldwide in over 40 different languages.[ii] The UFC has established itself as the leading premier MMA fighting organization in the world today. In addition to dominating viewership, the UFC has also been the industry leader in terms of both revenue and profit. According to their latest financial report, the company raked in a record high of $1.140 billion in revenues—more than every other combat sports promotion combined—and reached $387 million in profit in 2022, a margin of 34%.[iii] However, despite the company’s increase in revenues, its athletes have not seen an increase in their share of that revenue. In fact, over the last year the company reduced athlete costs, driving total revenue share for its athletes to approximately 13-15%.[iv] In comparison, athletes in other U.S.-based sports leagues (such as the NFL, NBA, and NHL) receive approximately 50% of league revenues based on collective bargaining agreements, and European soccer leagues offer as much as 70% of revenues to players. However, a recent court victory threatens the company’s business model of athlete wage suppression. An antitrust class action, originally filed in December 2014 by three former UFC fighters (Cung Le, Nate Quarry, and Jon Fitch), specifically alleges that Zuffa’s (d/b/a UFC) alleged anti-competitive acts have made (and maintained) the UFC as the only viable option for MMA fighters who want to pursue a career in the profession.[v] Specifically, Plaintiffs allege that Zuffa did the following: (a) used exclusive contracts with specific provisions to retain fighters within the UFC; (b) used its market power in both the input and output markets to render fighter contracts effectively perpetual; and (c) acquired or drove out rival promoters.[vi] According to Plaintiffs, the alleged effect of Zuffa’s conduct was to establish such overwhelming market dominance that it could pay its fighters substantially less than what they would have been paid in a competitive market for their services.[vii] After the initial complaint was filed, in February 2015, Zuffa filed a motion to dismiss, asking the Court to throw out the fighters’ claim under Rule 12b(6) by arguing that even if the allegations were true, together they would still not be enough to support a claim under antitrust laws.[viii] In October 2016, the Court issued a formal written opinion denying the motion and allowing the fighters’ claim to move forward to discovery.[ix] The Plaintiffs’ lawyers were subsequently able to cause Zuffa to produce nearly 2.5 million documents, and questioned 50 witnesses under oath in depositions, including top UFC officials like Dana White and Lorenzo Fertitta.[x] On January 18, 2024, the district judge denied Zuffa’s motion for summary judgment and reaffirmed the findings in its August 9, 2023 order, which granted Plaintiff’s motion for class certification.[xi] Monopsony is an economic term used to describe a market involving a buyer with sufficient market power to exclude competitors and affect the price paid for its product—it is the counterpart to a monopoly, which exists in the supplier’s market.[xii] As a result of a monopsony, a sole purchaser has the power to set the price it pays for a service, and since the supplier has no other market for its product, it is forced to sell at the price the purchaser has set.[xiii] To grant class certification and prove violation of monopsony power under Section 2 of the Sherman Antitrust Act, Plaintiffs had to show, by a preponderance of evidence, that Zuffa: (1) “possessed monopsony power in the relevant markets,” (2) “willfully acquired or maintained its monopsony power through exclusionary conduct,” and (3) “caused antitrust injury” through such conduct.[xiv] In the Court’s August 9 class certification order, it sided with Plaintiff’s arguments on each issue. As the first element, the Court found that Plaintiffs provided sufficient evidence through circumstantial evidence that Zuffa maintained dominant power in both the input market (“the market for Elite Professional MMA Fighter services”) and output market (“promotion of live Elite Professional MMA bouts between Professional MMA fighters who compete in one-on-one fights.”[xv] The Court heard Plaintiff’s expert witness on the issue (Dr. Hal J. Singer) testify as to how from December 2010 through June 2017, Zuffa’s share of the Relevant Input Market fluctuated between 71 and 99% and rejected Zuffa’s arguments to the contrary.[xvi] By statistical analysis, the Court held that Plaintiffs presented, by.a preponderance of evidence, that Zuffa had market dominance. Further, to the second element, the Court found that Plaintiffs established that Zuffa willfully engaged in anticompetitive conduct to maintain or increase their market power. Specifically, the Court agreed with Plaintiffs’ specific allegations, that Zuffa: (a) used exclusive contracts with specific provisions keep fighters “locked up” in an anticompetitive manner; (b) used extracontractual methods to make fighter contracts effectively perpetual; and (c) acquired or drove out rival promoters.[xvii] The Court found, for the purposes of class certification, that Plaintiffs had set forth compelling evidence that these business practices amount to a violation of antitrust law. Notably, the Court stated “[Zuffa] evinced a clear intent to acquire and maintain monopsony power,’ additionally,  “[Zuffa] has not presented sufficient evidence that these exclusionary contracts and coercive tactics [and horizontal acquisition of competitors] were procompetitive or contributed to the overall development of the sport.”[xviii] Finally, to the third element, the Court agreed with Plaintiffs that Zuffa’s anticompetitive business practices were commonly applied to all members of the class.[xix] The Court found that both the “exclusive contracts” and “coercive tactics” used by Zuffa were commonly applied to all class members, as well as the impact of the horizontal acquisitions, which further limited exit options for fighters. Plaintiffs, by relying on Dr. Singer’s expert testimony, argue that Zuffa’s monopsony power artificially suppressed the fighters’ wages.[xx] The Court concluded that Dr. Singer’s reports and testimony are reliable sources of proof as to Zuffa’s anticompetitive conduct.[xxi] In response, the Court noted Zuffa attempted to create a straw man by “augmenting the fundamental assumptions of [Dr. Singer’s regression analysis] and running the regression again to show that if the model is rerun using different assumptions, it fails.”[xxii] However, the Court disregarded this argument as it “fail[ed] to actually grapple with the underlying assumptions of Plaintiffs’ model” and found that Plaintiffs established by a preponderance of the evidence that Zuffa’s antitrust violations resulted in both an impact and injury commonly felt by the class members.[xxiii] Ultimately, the Court granted Plaintiffs Motion to Certify as a Class Action in part. This decision allows the case to proceed on behalf of a “Bout Class” of current and former UFC fighters who allege that the UFC unlawfully monopolized the market for MMA promotion by, among other things, locking up fighters with exclusive contracts and acquiring its rival promotions, eliminating other potential competition organizers who could bid for the fighters’ services and leading to suppressed compensation for the fighters.[xxiv] Specifically, the Court granted class certification concerning UFC’s “unlawful use of its monopsony power in the relevant input market of fighter services for live UFC promoted MMA bouts taking place or broadcast in the U.S. from December 16, 2010, to June 30, 2017.”[xxv] The case Cung Lee v. Zuffa, LLC. will now move to trial by jury, scheduled for April 8, 2024. This author suspects that, if the case does not settle, the Plaintiffs’ will be awarded a significant portion of the $5 billion they could potentially receive in damages. In its brief, 12-page January 18 decision, the Court quickly disposed of each of Zuffa’s arguments for summary judgment and stated, “Plaintiffs have raised genuine factual disputes as to each element of Section 2 [of the Sherman Antitrust Act].”[xxvi] Thus far in the litigation, the Court has found Plaintiffs’ arguments compelling and have largely denied Zuffa’s counterarguments. Zuffa has been unable to show that its exclusionary and coercive business tactics have been pro-competitive. Meanwhile, the class certification order marks a key win for Plaintiffs. Although the legal battles are far from over, this development is a significant milestone for Plaintiffs, and not a very good sign for Zuffa. Gurtej Grewal is a 2L at Penn State Law. In addition to pursuing a career in sports law, Gurtej has a passion for antitrust and business litigation, intellectual property law, and arbitration. Gurtej is involved at PSL as the Managing Editor and Events Coordinator of their Sports and Entertainment Law Society and competes on the Vis Moot and Alternative Dispute Resolution teams. Sources: [i] UFC, History of the UFC, https://www.ufc.com/history-ufc. [ii] Id. [iii] Craig Pekios, Report – UFC Generated More Revenue Than Any Other Promotion Combined, Fighter Pay Continued To Plummet, Low Kick MMA, May 23, 2023, https://www.lowkickmma.com/ufc-generated-revenue-fighter-pay-dana-white. [iv] Id. [v] Cung Le, et al. v. Zuffa, LLC, et al., 2023 U.S. Dist. LEXIS 138702*, 6* (D. Nev. 2023) [vi] Id. [vii] Id. [viii] Id. [ix] Id. [x] UFC Antitrust Lawsuit, Key Developments, August 9, 2023, https://www.ufcclassaction.com/key-developments [xi] Cohen Milstein, Current Cases – Mixed Martial Arts Antitrust Litigation, January 18, 2024, https://www.cohenmilstein.com/case-study/mixed-martial-arts-antitrust-litigation/ [xii] Susan E. Foster, Monopsony and Backward Integration: Section 2 Violations in the Buyer’s Market, 11 U. Puget Sound L. Rev. 687 [xiii] Id. [xiv] Am. Pro. Testing Serv., Inc. V. Harcourt Brace Jovanovich Legal & Pro. Publications, Inc., 108 F.3d 1147, 1151 (9th Cir. 1997) [xv] Cung Le, et al. v. Zuffa, LLC, et al., 2023 U.S. Dist. LEXIS 138702*, 42* (D. Nev. 2023) [xvi] Id. at 46* [xvii] Id. at 57* [xviii] Id. at 69* [xix] Id. at 76* [xx] Id. at 79* [xxi] Id. at 84 [xxii] Id. [xxiii] Id. at 85 [xxiv] Id. at 5* [xxv] Id. [xxvi] Cung Le, et al. v. Zuffa, LLC, et al., 2024 U.S. Dist. LEXIS 8913*, 26* (D. Nev. 2024)

  • Alabama Coach Gets 15-Year Show Cause Penalty for Involvement in Illegal Wagering

    Brad Bohannon, the former University of Alabama baseball coach, violated NCAA wagering and ethical conduct rules when he provided insider information to an individual who bet on the baseball team’s games, according to a negotiated resolution between the University of Alabama and the NCAA announced on February 1, 2024 (the “Negotiated Resolution”). According to the Negotiated Resolution, on April 28, 2023, Bohannon sent several text messages containing information regarding the University of Alabama’s upcoming baseball game against rival LSU to an individual Bohannon knew to be involved in sports betting.  Bohannon relayed to the bettor that the University of Alabama’s projected starting pitcher would miss the game.  Bohannon sent the messages before informing the LSU baseball coaching staff that the pitcher would miss the game and indicated in those messages that he would wait to do so until the bettor had placed bets on LSU:  “HAMMER … [Student-athlete 1] is out for sure … Lemme know when I can tell LSU … Hurry.” The bettor attempted to place multiple bets on the Alabama - LSU baseball game—including a $100,000 bet on LSU to win—at the BetMGM sportsbook at the Great American Ballpark in Cincinnati, Ohio.  The sportsbook staff limited the bettor to one $15,000 bet on LSU, and flatly refused the other bets he attempted to place.  The sportsbook staff did so due to “suspicious activity,” including statements by the bettor that the bet was “for sure going to win” and “if only you guys knew what I knew.” The bettor also showed the sportsbook staff the messages he had received from Bohannon. On May 1, 2023, U.S. Integrity, a sports wagering monitoring company, alerted sports books to take caution when taking bets related to the University of Alabama baseball team due to certain betting irregularities. On May 3, 2023, the University of Alabama informed the NCAA enforcement staff that, in connection with law enforcement, the university had begun investigating the allegations surrounding Bohannon, and later informed NCAA enforcement of its discovery of a possible violation and Bohannon’s involvement.  The University of Alabama commenced the process to terminate Bohannon’s employment on May 4, 2023, and Bohannon resigned on May 17, 2024. According to the Negotiated Resolution, though Bohannon initially did cooperate with the NCAA’s investigation, he later refused to participate in an interview with NCAA enforcement, make full disclosure of relevant information, and provide access to his electronic devices. As part of the Negotiated Resolution, NCAA enforcement and the University of Alabama agreed that Bohannon’s actions violated certain principles of honesty and sportsmanship established in the NCAA Division I Manual Bylaws (the “Bylaws”), including principles captured in Article 10.3 of the Bylaws, which forbids staff members of an institution’s athletics department (including a coach) from knowingly participating “in sports wagering activities and providing information to individuals involved with or associated with any type of sports wagering activities” concerning an intercollegiate athletics competition.[1] Penalties Assessed Against the University of Alabama and Bohannon Violations of the Bylaws are separated into Level I, Level II, and Level III violations.[2]  Per the Negotiated Resolution, the University of Alabama and NCAA enforcement agreed that Bohannon’s actions constituted a Level I violation of the Bylaws, which are violations that “seriously undermine or threaten the integrity of the NCAA collegiate model.”[3] Once it has been decided or agreed that a violation has occurred, certain factors are weighed to determine the appropriate penalty.  Under the Bylaws, these factors are called “aggravating factors” and “mitigating factors.”  After balancing these factors, the NCAA can determine whether the violating party should be subject to “aggravated,” “standard,” or “mitigated” penalties. One such mitigating factor is “the absence of prior conclusions of Level I, Level II or major violations committed by the institution within the past 10 years.”[4]  This mitigating factor does not apply to the University of Alabama, however, because on November 20, 2020, the NCAA Division I Committee on Infractions issued a decision in connection with a case involving a former University of Alabama associate athletic director who received money in exchange for facilitating a meeting between the father of a student-athlete, a financial advisor, and the advisor’s representative.  Notwithstanding that decision, the Negotiated Resolution stated that NCAA enforcement believed that the Bohannon case did not warrant a departure upwards from penalties outlined in the Bylaws because the facts of the Bohannon case involved distinct behavior in a different sport, among other reasons.[5] The University of Alabama and NCAA enforcement ultimately agreed upon certain Level I mitigated penalties.  Specifically, the University of Alabama shall be under probation for three years (February 1, 2024 through January 31, 2027), during which time the University of Alabama must, among other things, continue to develop a comprehensive educational program on NCAA legislation and file preliminary and annual compliance reports with the office of the Committees on Infractions.  The University of Alabama must also pay a fine of $5,000.  The University of Alabama shall receive no postseason ban or scholarship reduction in connection with the negotiated resolution, however. As for Bohannon, the University of Alabama and NCAA enforcement agreed that Bohannon’s failure to cooperate with the investigation was its own Level I violation, and thus an aggravating factor, resulting in the following Level I aggravated penalties: Show-cause order:  A show-cause order requires a member institution to demonstrate why it should not be subject to a penalty or additional penalty for not taking appropriate disciplinary or corrective action against an institutional staff member who has been involved in a violation of the Bylaws.  Here, Bohannon was given a 15-year show-cause order.  As a result, during the show-cause order, any member institution employing Bohannon shall restrict him from all athletically related activity and, to the extent Bohannon becomes employed by a member institution, shall abide by the terms of the show-cause order unless it shows cause why the terms of the show-cause order should not apply. Head coach restriction:  To the extent a member institution does employ Bohannon while the show-cause order remains in effect, the employing institution shall suspend Bohannon from 100% of baseball regular season contests during the first five seasons of such employment. There is precedent for prescribing the show-cause order as a penalty against a coach who participated in impermissible sports wagering activities.  From August 2017 to May 22, 2018, an assistant coach of the University of North Carolina at Greensboro women’s basketball team placed wagers online on professional and intercollegiate sporting events, including games involving UNC Greensboro’s men’s basketball team.  Like Bohannon, the assistant coach failed to cooperate with the investigation by refusing to provide NCAA enforcement with his online sports wagering histories and credit card statements, constituting another Level I violation.  Considering the aggravating and mitigating factors present in that case, the assistant coach was given a 15-year show-cause penalty, according to the July 25, 2019 negotiated resolution between UNC Greensboro and NCAA enforcement. The same negotiated resolution gave another UNC Greensboro employee a 4-year show-cause order for similar behavior. From December 2017 through April 2018, an assistant director of UNC Greensboro’s fundraising organization also participated in limited online sports wagering activities over a similar period, including making at least one wager involving the school’s men’s basketball team.  Unlike the assistant coach, however, the assistant director only had one Level I violation because he cooperated in the investigation. The Negotiated Resolution can be found here: https://ncaaorg.s3.amazonaws.com/infractions/decisions/Feb2024D1INF_AlabamaPublicNR.pdf. The 2020 Public Infractions Decision can be found here:  https://ncaaorg.s3.amazonaws.com/infractions/decisions/Nov2020D1INF_UniversityAlabamaPUBLICInfractionsDecision.pdf The 2019 negotiated resolution between UNC Greensboro and the NCAA enforcement staff can be found here:  https://web3.ncaa.org/lsdbi/search/miCaseView/report?id=102784 The NCAA Bylaws can be found here: https://web3.ncaa.org/lsdbi/reports/getReport/90008 [1] See Bylaws Article 10.3. [2] See Bylaws Articles 19.1.2 – 19.1.4. [3] See Bylaws Article 19.1.1. [4] See Bylaws § 19.12.4.1(h). [5] The violations described in the Negotiated Resolution were the University of Alabama’s eighth Level I, Level II, or major case.

  • Charges Filed and NCAA Punishment Handed Down in College Baseball Betting Scandal

    In 2018, the Supreme Court overturned the Professional and Amateur Sports Protection Act (PASPA), opening the floodgates for legalized sports betting in the United States. Ever since, the sports betting industry has grown rapidly and is showing no signs of slowing down. According to PBS, Americans have bet over $220 billion on sports with legal gambling outlets as of May 2023 in the five years since the Supreme Court’s ruling. While the revenue derived from sports betting is certainly an overwhelming positive, there are obvious externalities that were expected and have come to light in the past few years. The concept of “point shaving” and “throwing games” is by no means a new phenomenon, with the most famous episode being the 1919 “Black Sox” scandal over a century ago. But with increased ease and access for many Americans to place bets on games these days, the risk has elevated and we’ve seen some instances where athletes and coaches have run into trouble. One of these unfortunate stories surfaced last spring when the state of Ohio detected “suspicious betting activity” surrounding a University of Alabama baseball game. You can read my Conduct Detrimental article at the time here. The Crimson Tide’s head coach at the time, Brad Bohannon, was connected to the probe. Shortly after the story broke, Bohannon was fired for cause by Alabama.  However, additional details didn’t emerge until this week when Bohannon was punished by the NCAA and charges were filed against an Indiana man connected to the probe. According to the NCAA, Bohannon messaged an individual he knew to be engaged in betting on the Alabama’s April 28th game against LSU (the eventual national champion). Bohannon texted the bettor “[Student-athlete] is out for sure ... Lemme know when I can tell [the opposing team] ... Hurry.” After receiving the information from Bohannon, the bettor -- identified Wednesday as Bert Eugene Neff -- attempted to place a wager of $100,000 on the game but was limited to a $15,000 bet by the sportsbook's staff, according to the NCAA. The bet was placed with the BetMGM sportsbook at Great American Ballpark in Cincinnati, according to gaming regulators in Indiana and Ohio. Alabama followed through by scratching its starting pitcher ahead of the game, which LSU ended up winning 8-6. Neff pled guilty this week to federal obstruction charges related to the situation. Neff is facing up to 10 years in prison and a fine of no more than $250,000 for the destruction of evidence, tampering with witnesses, and providing false statements to the FBI, according to the plea agreement released this week. In addition, Bohannon’s for cause termination last spring was only the beginning of his punishments as the NCAA instituted a 15-year show cause against the coach. A show-cause penalty, which can and usually does make coaches unhireable, is the most severe recourse the NCAA has against coaches. Bohannon joins former Penn basketball coach Jerome Allen and former UNC-Greensboro basketball assistant Phil Collins as the only three people to ever catch a 15-year show-cause penalty from the NCAA, the stiffest individual penalty it's ever doled out to a coach. Bohannon failed to cooperate in the NCAA's investigations, which likely didn't help in the matter. Even before knowing all the details, this was an unfortunate story for everyone involved. But as more information has surfaced, it’s even more unfathomable that a coach would sell out his players in this fashion. Before this situation unfolded, Bohannon held a great reputation among college baseball circles. He was an SEC Baseball “lifer” who had done tremendous work as an assistant before taking over the Alabama program in 2017. Nonetheless, this story is just the latest unfortunate sports betting episode involving players or coaches. Hopefully, we won’t see many more instances of this because careers are put in jeopardy by doing so. But as sports betting continues to gain in popularity and convenience, the temptation will undoubtedly be there. The saving grace is that many of these sports books and betting services these days have safeguards in place to suspect suspicious activity. Let’s hope that we don’t have to read more stories like these moving forward. Brendan Bell is the Southwest Regional Rep on the Conduct Detrimental Law Student Board. Follow him on Twitter (X) @_bbell5 and check out his work https://t.co/JvQdqfwFuN

  • If Sold, Kristin Juszczyk’s NFL Apparel May Violate Trademark Law

    Last weekend, the internet broke when Taylor Swift and Brittany Mahomes arrived at the Chiefs game wearing jackets made from up-cycled Nike football jerseys. The media and fans soon realized the jackets were made by fashion designer Kristin Juszczyk, who has a history of repurposing NFL apparel and jerseys to create unique game-day outfits. Both fashion and football fans came together to support Juszczyk and began to ask how they too can wear one of her designs. Despite the demand for these unique jackets, Kristin Juszczyk finds herself constrained by legal limitations, delving into the intricacies of trademark law. For Juszczyk to sell her upcycled clothing designs, she must face those challenges within the United States trademark law framework and the Lanham Act. Under the Lanham Act, trademark infringement consists of unauthorized use of a registered (or similar) mark that creates a likelihood of confusion, deception, or misconceptions about the source of the goods or services.[1] Tweets and announcer's comments during the Chief's game manifested evident confusion regarding the origin of the jackets, with even Kyle Juszczyk, Kristin’s husband, clarifying on social media that the jackets were not of Nike origin. The jackets and other upcycled clothing that Juszczyk designs appear to change the form and function of the original product. On Mahomes and Swift's jackets, the registered trademark of the Nike logo was displayed on each sleeve. This could result in confusion among consumers, and if Juszczyk sold the jackets, a lawsuit could ensue. Kristin Juszczyk 's husband's tweet showed some people were confused about the jacket's origin. Navigating the legal landscape, certain exceptions to trademark law exist, such as the first sale doctrine. This permits the resale of products containing intellectual property without the owner's consent, provided the original owner lawfully owns the product. However, this doctrine is not absolute, as misrepresentation or material differences can nullify its protection. For example, in 2020, Ralph Lauren filed a lawsuit against a California-based company, VDNS, for trademark infringement and counterfeiting.[2] The potentially infringing products included a hat made from Ralph Lauren swim shorts. The court decided that since the resold good was materially different from the original product, it fell outside the scope of first sale protection and infringed on Ralph Lauren’s trademark. Juszczyk’s designs similarly repurpose another item of clothing; therefore, a court would likely decide in the same manner as they did in the Ralph Lauren case. In Kristin's effort to clarify the legal constraints, she took to Instagram, acknowledging the inability to vend the jackets currently and expressed optimism that she would be selling designs in the future. A prospective collaboration with Nike emerges as a potential solution, paving the way for legal distribution of the jackets and other similar apparel. While Kristin Juszczyk may not be able to currently sell her designs due to trademark law, she has emerged as a leading figure in the expanding realm of women's sports apparel. The timeline for the availability of her designs in retail spaces will continue to be a matter of interest. Undoubtedly, her continued status as a viral sensation is assured, accentuated by the endorsement of notable personalities like Taylor Swift and Taylor Lautner and the anticipated appearance of Olivia Culpo this upcoming weekend. [1] 15 U.S.C.A. § 1114 [2] Ralph Lauren Files Suit Against “Custom” Apparel Maker in Light of the Continued Rise of Fashion “Bootlegs”, Fashion L. (Jan. 16, 2020), https://www.thefashionlaw.com/ralph-lauren-files-suit-against-custom-apparel-maker-in-light-of-the-continued-rise-of-fashion-bootlegs/ [https://perma.cc/Z6RU-QFTS] Olivia Hellerich is a 3L at New York Law School and is the President of the New York Law School Sports Law Society. She can be reached at [email protected].

  • Nevada Supreme Court to Review Arbitration Issues in Gruden's NFL Lawsuit

    On January 10, 2024, the Nevada Supreme Court heard oral arguments regarding the NFL’s appeal (Case No. 85527) from a state court decision denying its motion to compel arbitration of claims filed by former Raiders head coach Jon Gruden. The state Supreme Court paused the underlying case, Gruden v. National Football League (Case No. A-21-844043-B), while the arbitration decision is resolved. In November 2021, Gruden sued the NFL and Commissioner Roger Goodell (but not the Raiders) in the Eighth Judicial District Court for Clark County, Nevada, alleging that Goodell and the NFL intentionally and tortiously interfered with Gruden’s contract with the Raiders by leaking offensive emails, which ultimately forced his resignation as head coach of the Raiders. The NFL quickly filed a motion to compel arbitration of Gruden’s claims, relying on two separate provisions. First, the NFL pointed to Article 8.3(e) of the NFL Constitution which gives the Commissioner “full, complete, and final jurisdiction and authority to arbitrate . . . (a)ny dispute involving . . . any employees of members of the NFL . . . that in the opinion of the commissioner constitutes conduct detrimental to the best interests of the NFL or professional football.” Gruden’s contract with the Raiders included a provision acknowledging that he read and understood the NFL Constitution and Bylaws, and that he agreed to “abide by and be legally bound by” them. But notably, the NFL did not provide Gruden with a copy of the NFL Constitution prior to executing his contract with the Raiders. Second, the NFL pointed to Gruden’s employment agreement with the Raiders which contained an arbitration agreement stating that “all matters in dispute between Gruden and [the Raiders], including without limitation any dispute arising from the terms of this Agreement, shall be referred to the NFL Commissioner for binding arbitration, and his decision shall be accepted as final, conclusive, and unappealable.” The NFL argued that this arbitration provision provides independent grounds to compel arbitration because all of Gruden’s claims arise out of the Gruden-Raiders contract. Ruling from the bench, Judge Nancy Allf denied the NFL’s motion to compel. As to the NFL’s argument regarding the NFL Constitution, Judge Allf found no reason to conclude that Article 8.3(e) is applicable to Gruden’s claims. The court also rejected the NFL’s reliance on the arbitration agreement in Gruden’s employment contract because that arbitration provision covered disputes only between Gruden and the Raiders. In addition, Judge Allf concluded that enforcing arbitration would be both procedurally and substantively unconscionable. The NFL made several arguments on appeal relating to Judge Allf’s determination that neither Article 8.3(e) nor the arbitration agreement in Gruden’s contract with the Raiders required Gruden to arbitrate his claims against the NFL. But perhaps the most interesting issue on appeal is Judge Allf’s conclusion that enforcing arbitration would be unconscionable—an issue that the Nevada Supreme Court Justices questioned the NFL about during oral argument. Like any contract, an agreement to arbitrate may be invalidated as unconscionable where it is both procedurally and substantively unconscionable. Procedural unconscionability focuses on the circumstances of negotiation, such as the bargaining power of the parties or unfair surprise, whereas substantive conscionability pertains to the fairness of the agreement’s actual terms. Judge Allf found that procedural unconscionability was present in this case because Gruden lacked the ability to negotiate the terms of the NFL Constitution and could not negotiate the selection of the Commissioner as the arbitrator after the dispute arose. Judge Allf also concluded that enforcing arbitration would be substantively unconscionable because the arbitration provisions made Commissioner Goodell the arbitrator.[1] In the court’s opinion, this necessarily deprived Gruden of a neutral arbitrator. Finally, Judge Allf determined that the arbitration provision in the NFL Constitution was illusory (and thus unconscionable) because it gave Goodell unilateral authority to determine whether a particular dispute was arbitrable or not. Judge Allf’s finding of procedural unconscionability finds support from a recent opinion from the U.S. District Court for the Southern District of New York, wherein a federal district court similarly concluded that an arbitration provision included in the NFL Constitution was unconscionable (and thus unenforceable against the plaintiff-coach) because it gave the NFL and its member clubs unilateral authority to modify the terms of the NFL Constitution, and to do so without providing notice to the plaintiff. See Flores v. Nat’l Football League, 2023 WL 2301575, at *1 (S.D.N.Y. Mar. 1, 2023).[2] In the instant case this conclusion is bolstered by the NFL’s failure to give Gruden a copy of the NFL Constitution at the time he signed his contract with the Raiders. Judge Allf’s determination that Commissioner Goodell could not serve as a neutral arbitrator, on the other hand, contradicts other courts’ rulings on the issue. As the NFL points out, the Second Circuit has rejected the argument that, as a matter of law, the NFL Commissioner cannot fairly arbitrate claims regarding the NFL’s conduct. See Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527, 548 (2d Cir. 2016). Here, however, Gruden may argue that in addition to the Second Circuit decision having no binding effect on the Nevada State Supreme Court, the instant case is readily distinguishable because Gruden has alleged that Commissioner Goodell was personally and directly involved in the tortious misconduct at issue. In addition, Gruden has claimed that Goodell would likely be a material fact witness to the case. Accordingly, Goodell’s ability to serve as a neutral arbitrator is arguably more likely to be compromised than in cases involving discipline of NFL players, as was at issue in Nat’l Football League Mgmt. Council. Questions asked at oral argument suggest that the state Supreme Court Justices are likewise concerned about Goodell’s ability to serve as an unbiased arbitrator under the particular facts of this case. The NFL, however, maintains that the court’s concerns over Goodell’s ability to remain impartial should not disturb the parties’ clear intent to designate Goodell as the arbitrator of any disputes arising between them. Moreover, the NFL insists that any problems related to fairness that might arise from improper bias by Goodell can and should be addressed after arbitration, in accordance with § 10 of the FAA which permits courts to overturn arbitration decisions where there is “evident partiality or corruption.” Finally, Judge Allf’s finding that the arbitration agreement was illusory because it grants Commissioner Goodell the ability to decide whether a particular suit is arbitrable may warrant closer inspection by the Nevada Supreme Court. As the NFL points out, the FAA allows parties to delegate to an arbitrator question concerning the scope of the arbitration agreement. However, a court must defer to the arbitrator to decide threshold questions of arbitrability only where there is “clear and unmistakable” evidence of the parties’ intent to delegate those questions to the arbitrator. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 530 (2019). The delegation provision at issue here, Article 8.3(e), gives the Commissioner authority to arbitrate “(a)ny dispute . . . that in the opinion of the commissioner constitutes conduct detrimental to the best interests of the NFL or professional football.” (Emphasis added). Though the NFL argues that this provision simply delegates the “conduct detrimental” determination to Commissioner Goodell, a legitimate question remains as to whether that delegation is “clear and unmistakable.” Gruden argues that it is not. And even if Article 8.3(e) is sufficient evidence of the parties’ intent to arbitrate arbitrability, perhaps the Nevada Supreme Court will find that this case is distinguishable given that the delegation clause at issue grants authority to decide the issue of arbitrability to not just any arbitrator, but an arbitrator who is also a party to—and potentially a witness in—the relevant dispute. To be sure, the NFL could have taken several steps to mitigate concerns of unconscionability. For example, the NFL could have provided Gruden a copy of the Constitution at the time he signed his contract with the Raiders. Moreover, the NFL could have included all substantive provisions of Gruden’s arbitration obligations in the contract itself, rather than merely incorporating by reference those provisions. Additionally, the NFL could have required Commissioner Goodell to appoint a neutral third-party arbitrator, rather than give him discretion to make himself the arbitrator. Any of these steps would have weakened Gruden’s argument that enforcing arbitration is unconscionable. While it remains to be seen how the Nevada Supreme Court will rule on the NFL’s appeal, the case certainly raises interesting questions about unconscionability as it relates to agreements to arbitrate, as well as the NFL’s ability to force coaches (rather than players) into arbitration via their employment agreements with NFL member clubs. Footnotes [1] As the NFL pointed out, the NFL Constitution gives Commissioner Goodell the option to appoint a third-party arbitrator instead of arbitrating the case himself. But because Goodell alone has the discretion to make this decision, and because nothing requires Goodell to appoint a third-party arbitrator, the court did not find that this caveat mitigated its concerns. [2] Notably, the NFL argued that unlike Massachusetts law (which the court applied in Flores), under California law (which applied here), a unilateral modification clause does not make an arbitration provision itself unconscionable. Alec McNiff (Twitter: @Alec_McNiff) is currently completing a federal district court clerkship after spending a year as a litigation associate at a major law firm. Alec earned his J.D. from University of Michigan Law School and holds a business degree from University of Southern California. All opinions are his own.

  • Diamond Sports Back in the Fold With Backing From Amazon

    With Spring Training on the horizon, many MLB clubs are looking to fortify their roster as we enter the last month of the offseason. While we've seen a few teams (Hello Dodgers) spend big on free agents and trade acquisitions, others have been reticent to hand out lucrative contracts due to uncertainty pertaining to their local television revenue. In today's media environment, television networks have been facing an accelerated rate of cord-cutting in recent years as consumers opt for streaming services. Despite maintaining stable ratings, as live sports often do, regional sports networks (RSNs) have felt the brunt of the shift away from cable. Chief among these RSNs is Diamond Sports Group, the parent company of Bally Sports, who carries the rights to 37 sports teams across the NBA, NHL, and MLB. In March 2023, Diamond filed for Chapter 11 bankruptcy protection, casting doubt on the company's ability to broadcast games moving forward. During the 2023 season, Diamond lost a bankruptcy court case to MLB in which it argued that the rights fees it owed clubs should’ve been reduced due to the change in market dynamics in the era of cord-cutting and decline of cable television. After previously skipping payments to a collection of MLB clubs, the company was forced to decide which contracts to keep or cut. As a result, broadcasts for both the San Diego Padres and Arizona Diamondbacks were turned over the league after Diamond failed to reach an agreement to continue paying the respective teams broadcast fees. Heading into 2024, the expectation was that Diamond Sports’ long term future in broadcasting MLB games was highly in doubt. With the expectation it would be breaking up, Diamond had previously reached contingent arrangements with the NBA and the NHL to end its agreements with teams in each league after the 2023-24 season and was deep into negotiations with MLB over a similar arrangement. However, there is a new development on that front. This week, Diamond Sports has arranged a $450 million plan with creditors that would allow it to continue operating beyond 2024, pending court approval. In addition, Diamond will also get funding from Amazon as part of a streaming deal. The plan also ends Diamond’s litigation against its parent company Sinclair, which will pay $495 million for the support. MLB not coming to terms means, unlike with the NBA and NHL, there is no agreement to end their teams’ contracts at the end of the current season. Therefore, the 11 teams with Bally Sports deals will continue under the umbrella for linear past 2024 until the end of their contracts. The 11 teams are as followed ·      Atlanta Braves ·      Cincinnati Reds ·      Cleveland Guardians ·      Detroit Tigers ·      Los Angeles Angels ·      Kansas City Royals ·      Miami Marlins ·      Milwaukee Brewers ·      St. Louis Cardinals ·      Tampa Bay Rays ·      Texas Rangers From reports, it appears nine of these teams (all the above besides Cleveland and Texas) will have their games broadcasted on Bally Sports in 2024. Importantly, five of the teams also have digital rights deals with Bally Sports, and those will be offered on Amazon Prime. Those five are the Detroit Tigers, Kansas City Royals, Miami Marlins, Milwaukee Brewers and Tampa Bay Rays. Nonetheless, this story is far from over. For the Rangers, Guardians , and Minnesota Twins (whos Ballys deal expired following the 2023 season), their status is still up in the air. A lawyer for Texas Rangers said the team is studying new bankruptcy exit plan and will provide a prompt response to Diamond Sports on whether it wants to engage in talks to reduce the rights fee or go out on its own. The Rangers sentiments are likely a reflection of MLB’s reaction to this week’s news. The fact that many of these teams’ rights will likely stay on Bally Sports is disappointing news for MLB. I’ve written for Conduct Detrimental for a while now that one of MLB’s goals is to create more a national product that would address the local blackout problem through in-market streaming. MLB.tv is a great product that many leagues are envious of. However, without control of broadcast rights, many fans are “blacked out” from watching certain games. The league undoubtedly wanted to take more control of these rights, and it appeared like Diamond Sports’ bankruptcy was an avenue to do that. With this news, that will be more difficult. All this came as a surprise," an MLB lawyer said of the news. MLB and Diamond were discussing an arrangement for 2024 that would have revised rights fees for at least some teams, including the Texas Rangers, whom Diamond has threatened to drop even for this upcoming season. The arrangement under negotiation likely would have returned all MLB teams’ rights to them following the 2024 season. But with Diamond appearing to carry forward beyond 2024, the tenor of any negotiations with MLB might now change. With all of this being new and somewhat unexpected, league executives and team officials are still trying to sort out what it all means and how to react. With that being said, it will be interesting to watch this situation develop moving forward. The RSN issue not only on MLB, but all leagues as well certainly has large scale implications on team revenues and accessibility for fans. On the bright side, getting games on Amazon Prime might be beneficial for enhanced ‘reach’ into the streaming world. MLB already has a handful of Apple TV and Peacock exclusive national games already. In addition, Amazon already has a foot in the door in local baseball games through a small package of New York Yankees games exclusively in New York. Nonetheless, the fact that only five of the teams also have digital rights deals with Bally Sports makes this far from a cure all. As mentioned before, this story is far from over and will likely have many twists and turns in the near future. Brendan Bell is a 1L at Arizona State Law School and can be found on Twitter (X) @_bbell5

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