This year’s Mexican Open was marred by controversy when tennis world No. 3 Alexander Zverev was disqualified from the tournament after he repeatedly slammed his racket at the umpire stand and shouted expletives at the umpire. Although Zverev was disqualified from the tournament and fined, many players and commentators viewed the discipline as too weak and raised the question of whether a double standard exists. The Incident Following a questionable line call, Zverev cursed at the chair umpire Alessandro Germani. After losing the match a few moments later, an enraged Zverev took four aggressive swings at the umpire’s chair with his racket. The first three blows landed close to Germani, who was visibly frightened by the attack. After a short break, Zverev cursed at Germani again and then took a fourth and final swing at the chair for good measure. Zverev was disqualified from the event, fined $40,000 for unsportsmanlike conduct and physical and verbal abuse, and docked of all rankings points and prize money earned at the Open. Given the egregiousness of the conduct, the Association of Tennis Professionals (“ATP”) investigated the incident, tacked on an additional $25,000 fine, and issued an eight-week suspension. The suspension, however, does not get triggered unless Zverev commits the same code violations within the next year. Serena Williams Claims Double Standard Some of tennis’ most recognized active and retired players view the ATP’s response as weak and nothing more than a slap on the wrist. Eurosport’s Mats Wilander, a former No.1 player, was critical of the ATP’s decision and believes Zverev should be banned from big events and undergo a rehab process.[1] Serena Williams, a 23-time Grand Slam Champion, was also critical, but highlighted an additional concern about gender bias, or discrimination. Williams claimed there is a double standard in tennis stating: “I would probably be in jail if I did that – like, literally, no joke.” Williams was backed by former 18-time Grand Slam champion Chris Evert who like, Wilander, commented that Zverev’s punishment was too lenient. Evert also agreed with William’s comments regarding different standards: “I wouldn’t go as far as saying she would go to jail, but I think she has a point and I think that definitely her consequences would have been far stricter than Zverev’s.”[2] This is not the first time Williams has claimed a double standard in professional tennis. Her infamous outburst in the 2018 U.S. Open may have cost her the U.S. Open Championship title and initiated discussion on sexual bias. Trailing 4-3 in the second set, Williams called chair umpire Carlos Ramos a thief after she received two code of conduct penalties earlier in the match for improper coaching and smashing a tennis racket. Upon being called a thief, Ramos issued a third code of conduct penalty to Williams, which resulted in a game being awarded to her opponent Naomi Osaka. Osaka went on to win the match, her first Grand Slam win of her career. It was a historic win, making Osaka the first Japanese tennis player to win a grand slam event. Sadly, her win was overshadowed by Williams’ outburst, Ramos’ issuance of a game penalty, and the controversy that followed. Alleged Bias and Discrimination Complaint For several weeks thereafter, the controversy continued to make headlines as Williams maintained a discrimination complaint: she was the victim of sexual bias. Williams’ pleas to the tournament referees summed up her position best: “There are a lot of men out here that have said a lot of things and because they are a man it doesn’t matter. This is unbelievable. . .” Williams claims of bias may be valid. Earlier in the 2018 U.S. Open, female professional Aliza Cornet received a warning when she removed her shirt and exposed her sports bra on the court. Cornet had accidentally put her shirt on backward, quickly removed it, and then turned it around during a change-over. The U.S. Open immediately received backlash for imposing a double standard as men were permitted to remove their shirts without receiving any warnings. During the 2018 Laver Cup – a Europe-versus-the World event – Team World captain John McEnroe and player Nick Kyrgios launched a tirade of insults against the chair umpire over a call. At one point, McEnroe told the umpire he was “delusional” while Kyrgios told the umpire that he’s “so irrelevant in this whole team thing, but you still manage to screw it up.” Kyrgios received a mere warning.[3] Double Standards Transcend Sports Sports is a microcosm of life, and Williams’ claim of double standards in tennis is part of a larger conversation about bias, inequality and discrimination taking place within and outside of sports. In recent weeks the United States Women’s National Team (“USWNT”) settled their class action equal pay lawsuit against the U.S. Soccer Federation for a total of $24 million. The USWNT’s long legal battle drew attention and awareness about gender pay equity in sports and the workplace. Coach Brian Flores’ class action race discrimination lawsuit against the NFL alleges racial discrimination in hiring practices (including failure to follow the Rooney Rule), but also alleges that Black coaches are held to a double standard when it comes to retention.[4] The lawsuit has generated national conversation about racial equality in professional football and in society at large. Debates over Zverev’s punishment, Williams’ code violations and Flores’ claims are interesting and raise an important lesson to organizations within and outside of sports: While having rules are important, it is critical to enforce them fairly, and with good judgment. Fans cry “fix” when they feel their team is being penalized unfairly. Players and employees share the same outrage when they feel they are being treated unfairly, especially as to discipline. Organizations that do not enforce rules consistently and equitably, therefore, will likely be on the receiving end of a discrimination complaint. Ken Winkler is a shareholder at Berman Fink Van Horn in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via LinkedIn and Twitter @kwinklerbfvlaw. —- [1] https://www.eurosport.com/tennis/not-great-for-tennis-alexander-zverev-punishment-for-umpire-chair-attack-not-enough-mats-wilander_sto8825376/story.shtml [2] https://www.theguardian.com/sport/2022/mar/05/serena-williams-alexander-zverev-tennis-double-standard [3] McEnroe and Kyrgios’ epic ‘blow up’ at umpire in tandem rant [4]https://www.nytimes.com/interactive/2022/02/02/us/brian-flores-nfl-lawsuit.html

After years of complaints about the National Collegiate Athletic Association’s (NCAA) handling of infractions, Senators Marsha Blackburn of Tennessee and Cory Booker of New Jersey will introduce the NCAA Accountability Act of 2021, which, if passed, will dramatically alter the infractions process. The bill is similar to the NCAA Accountability Act of 2021, introduced by Representative David Kustoff in November 2021. Issues with the NCAA Infraction Process The bill appears to be taking direct aim at the timing of the infractions process by setting deadlines and shortening the statute of limitations. According to the Division I’s Committee on Infractions 2021 Annual Report, when the enforcement staff receives information regarding a potential violation, the enforcement staff spends an average of 12-20 months investigating the information before issuing a notice of allegations. After receiving the notice of allegations, if an institution cannot reach a negotiated resolution, the cases are placed on one of three tracks: The Summary Disposition Track: the parties agree to the facts and draft a report and a Committee on Infractions Panel issues a decision; The Hearing Track: the allegations are challenged and each side presents to a Committee on Infractions Panel, which issues a decision; or The Independent Accountability Resolution Process (IARP): used in complex cases. For the Summary Disposition Track and Hearing Track, parties may appeal a decision rendered by the panel. Parties cannot appeal a decision made via the IARP. If a party chooses the Summary Disposition Track or Hearing Track, it can take an average of 4 months for a decision to be rendered. Then, it can take another 4 months for an appeal. Thus, for a violation, it could take over two years from the date information is received by the enforcement staff to reach a final resolution. Potential violations that go through the IARP process take even longer. In the case of North Carolina State University, the enforcement staff received information regarding a potential violation in 2018. Notably, the information revolved around a violation in 2015. A final decision was rendered on December 20, 2021, over two years after the enforcement staff first received the information and well after the players and coaches involved in the violation had left the university. In Blackburn’s home state of Tennessee, the University of Memphis’s case is being resolved through the IARP process. The NCAA enforcement staff began investigating the case in May 2019. Nearly three years later, the independent review panel has yet to issue a final decision. Proposed Changes to the Infraction Process The NCAA Accountability Act of 2021 alters the timelines. First, the bill shortens the investigation stage to 8 months after the enforcement staff receives information. Further, the NCAA would not be able to investigate possible violations that occurred more than 2 years before the date the enforcement staff sends a notice of inquiry to the institution, which would have barred much of the conduct in the NC State infractions case. Second, a panel must hold a hearing no later than one year after an institution is provided with the notice of allegations, and at the hearing, a party cannot offer information from confidential sources into evidence. Lastly, if a party disputes the decision made by the hearing panel, the party may appeal to arbitration conducted by a separate 3-person panel. By setting deadlines, if the bill were to pass, the average infractions process time should decrease. The new bill comes at a time when the NCAA is transitioning to a new model. Under the new Constitution, each division has the power to make its own rules and regulations. Further, the overhaul of name, image, and likeness (NIL) rules has altered what constitutes an NCAA infraction. With the new transition, it appears that Congress is now stepping in alter the NCAA model. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

Idaho is the latest state to permit NIL for high school athletes. The Idaho High School Activities Association (IHSAA) has released its rule changes for 2022‑2023. Among those changes, is a rule change to Rule 8-4-1, "Amateur Status." The rule change, as copied below, provides that high school athletes will not be restricted from participating in a commercial endorsement (i.e., NIL deal) provided there is no school team, school, league, district or IHSAA affiliation. This rule change now permits Idaho high school athletes to profit off their NIL without losing their amateur status. Interestingly, the rule change does not initially appear to include typical restrictions implemented by other state high school athletic associations that have adopted NIL policies, such as restrictions on use of school marks and prohibitions of endorsements in vice categories (e.g., tobacco, drugs, alcohol, gambling, firearms, etc.) but this could change in the future. Idaho joins a growing list of states that permit high school athletes to profit off their NIL. That list now includes the following states: Alaska, California, Colorado, Connecticut, Idaho, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, New Jersey, New York, and Utah. Other high school state athletic associations are evaluating or in the process of adopting rule changes or policies to permit high school athletes to profit off their NIL, such as the Pennsylvania Interscholastic Athletic Association which recently approved on first reading a NIL policy. The full set of the IHSAA rule changes for 2022-2023 are available here. Ryan Whelpley is an Associate at Morse in Waltham, Massachusetts, where he is a member of the firm’s Corporate practice group and focuses on venture capital financings, M&A transactions, and general corporate work for start-up and emerging growth companies. He is a graduate of Albany Law School (2019) and Union College (2016). At Union, Ryan was a member and three-year captain of the Men’s Basketball Team. You can connect with him via Twitter (@Whelpley_Law) and LinkedIn.

It’s March so all eyes are on college basketball. This year, the men’s and women’s tournaments present a unique opportunity for brands looking to strike while the iron is hot and capitalize off college basketball being at the center of the sports universe. NIL is still functioning as the wild west, with little guidance given to universities, athletes, and companies on how to best facilitate these transactions. The NCAA has refused to take an institutional stance to embrace NIL and instead has turned a blind eye refusing to acknowledge that athletes can now profit off their publicity. But despite his, some athletes have cashed in on the first ever March Madness in the new NIL world. Let’s look at the biggest winners: Doug Edert How could we start anywhere else? The star of the men’s tournament, Doug Edert, came off the bench for the Cinderella St. Peter’s team during their run to the Elite 8. Edert was a 3-point sniper for the Peacocks, often pulling up from well beyond the line and showing fiery emotion during upsets. But what made him a nationwide sensation went beyond just his play on the court – it was the mustache. According to teammates, the origin story behind the ‘stache dates back to midseason when St. Peter’s was forced to enter Covid-19 quarantine protocols. Like many others who were bored during the pandemic, Edert felt this was a great time to experiment with his facial hair. And much to the chagrin of his girlfriend, the mustache stuck.[1] I’m skeptical if this guy has what it takes to steal America’s heart. But March Madness Edert, with the mustache, was capable of fame and (NIL) fortune: After the first weekend of the tournament with two upsets over Kentucky and Murray St., Edert entered into an NIL deal with Buffalo Wild Wings. In the blink of an eye, Edert went from unknown hooper in New Jersey to the face of the #OvertimeWingtime campaign: Edert also offered the opportunity for fans to sport “Dougie Buckets” merchandise through Barstool Sports: Edert will forever be remembered for this NCAA tournament run. Thanks to NIL, he was able to monetize it. Edert has set the gold standard for players taking advantage of these few weeks in March. Drew Timme We’ll stick with the facial hair theme. Drew Timme has been one of the top players in college basketball since he began at Gonzaga in 2019. Gonzaga had a disappointing exit to the tournament in the Sweet 16, but not before Timme could capitalize on his fame. Timme signed an NIL deal with Dollar Shave Club, becoming a spokesperson for the brand while sporting a notable mustache of his own. Timme epitomizes the benefits NIL can provide. A star in the college ranks, Timme doesn’t project to have an NBA career. Crazier things have happened, but it’s likely Timme’s spotlight will never shine brighter than during his time at Gonzaga. So why shouldn’t he be able to profit while wearing a Gonzaga uniform? NIL critics predicted that all of the money would be funneled to men’s college basketball and football stars and create a large inequity for college athletes. These same critics downplayed the benefits of NIL: If these football and basketball stars are bound to sign professional contracts in the coming years, why is it monumental if they make money a few years earlier while in college? Drew Timme is a perfect example of how NIL has allowed someone to profit off their brand when their future earning potential is unknown. Timme very well may go on to have a prolific pro career filled with earnings and partnership deals, but in the meantime NIL provides certainty of profit today. Paolo Banchero and Chet Holmgren Unlike Timme, Paolo Banchero and Chet Holmgren are set to sign multi-million dollar NBA contracts in just a few short months. Banchero and Holmgren are both projected to be top three picks in the upcoming NBA draft this June. Banchero has led Duke to the Final Fourt while Holmgren stood alongside Timme in Gonzaga’s frontcourt all year leading them to a #1 seed. Banchero and Holmgren both signed NIL deals before the tournament with Yahoo Sports to represent their Tourney Pick’Em contest.[2] Many NIL policies and legislation prohibit athletes from entering into deals that promote gambling, but the Yahoo Tourney Pick’Em is free to enter so the athletes remain in compliance. In this promo, Banchero and Holmgren are wearing blank jerseys instead of their usual Duke and Gonzaga threads. Another common restriction on NIL deals by school policies and state legislation is the prohibition of using school branding in partnerships.[3] You can see from the above posts that Timme and Edert weren’t sporting team logos in their sponsored instagram posts either. Just another example of how current policies and laws are making this difficult for athletes every step of the way. NIL is constantly framed as a mechanism to benefit players. But NIL isn’t a form of charity, sponsorship deals work both ways. Yahoo Sports recognized the value in having two of the biggest stars in college basketball promote their contest. The players get compensated, but the companies benefit from the publicity and recognition the players provide. When the masses start viewing NIL deals like other partnership deals in which both parties benefit, restrictive policies may start to disappear. Cameron Brink Quietly, women’s college basketball players have made more money from NIL deals than men’s players.Many women college basketball players moonlight as social media stars off the court. Cameron Brink of reigning champion Stanford has partnered with Great Clips to promote the hair salon franchise: Brink has also partnered with a clothing brand that showcases her hometown of Portland, Oregon:[4] Other NIL deals on the women’s side have been even more creative. The chicken wing restaurant Wingstop partnered with 11 different women who play the “wing” position on the basketball court. Wingstop’s Chief Growth Officer, Marisa Carona, said “We're excited to support women's athletics and continue our engagement in other ways within the space”. March Madness NIL deals aren’t just reserved for stars. The bedding company, Sheets & Giggles, reached deals with five men and five women who are the “most rested” players in the tournament. Some of the benchwarmers who cashed in on their inactive status included Brock Janek of Tennessee, Russell Stong of UCLA, Becca Ripley of UCF, Conor Serven of Illinois and Justin Taphorn of Wisconsin. The first March Madness in the post-Alston NIL reality has signaled there is a market for both large-scale and smaller NIL deals in both men’s and women’s basketball. In the years to come, expect to see more deals facilitated as education surrounding NIL increases and unnecessary restrictions go by the wayside. Matt Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and instagram @MattNettiMN and find him on Linkedin at https://www.linkedin.com/in/matthew-netti-ba5787a3/. You can find all his work at www.mattnetti.com [1] NCAA, The Story Behind Doug Edert’s Mustache (last visited Mar. 29, 2022) https://www.ncaa.com/video/basketball-men/2022-03-27/story-behind-doug-ederts-mustache. [2] Kelly Kohen, March Madness 2022: Women's and men's Sweet Sixteen players are heavily involved in NIL deals, ESPN (last visited Mar. 29, 2022) https://www.espn.com/womens-college-basketball/story/_/id/33589255/women-men-sweet-sixteen-players-heavily-involved-nil-deals. [3] Tamera H. Bennet, Can A Student Athlete Use The University Logo, Colors, or Trademark?, Bennett Law Office (last visited Mar. 20, 2022) https://www.tbennettlaw.com/createprotect/2021/10/28/nil-can-a-student-athlete-use-the-schools-colors-logo-mascot-jersey-endorsemen t#:~:text=Potential%20sponsors%20and%20endorsers%20have,School%20and%20team%20colors. [4] Dean Golembeski, College Basketball Players Cash In With March Madness NIL Deals, Best Colleges (last visited Mar. 29, 2022) https://www.bestcolleges.com/news/analysis/2022/03/21/ncaa-march-madness-college-basketball-nil-deals/.

The National Women’s Soccer League (“NWSL”) hosted an extended preseason tournament, The Challenger Cup, over the last two weeks, leading to the start of what should be an exciting season for the league. Unfortunately, instead of coming out of preseason play energized for a competitive season, many teams are finding themselves down a few key players due to preventable preseason injuries. Within the first two match days, Tiera Davidson of the Chicago Red Stars and Lynn Williams of the Kansas City Current both suffered injuries, with Davidson’s severe enough to need ACL reparation surgery. The renowned Brazilian player, Marta Vieira da Silva, will be out for “a while” after suffering a knee injury during the Challenger Cup. Many other players have had to limit their minutes due to preseason injuries, including many United States Women’s National Team (“USWNT”) players such as Becky Sauerbrunn, Sam Mewis, Alex Morgan, and Megan Rapinoe. When interviewed about the vast number of injuries experienced by many star athletes in the NWSL, the USWNT coach, Vlatko Andonovski, commented that there seemed to be a lack of connection between the injuries, stating that they trained in different environments and with different setups that led to different injuries. But perhaps Andonovski is, albeit unintentionally, pointing out the exact issue that is leading to the astounding number of injured players in women soccer today – a lack of consistency in training and playing environments within the NWSL. Players of the NWSL are expected to train on grass fields then play on turf fields, at various times of the day in various weathers, under different protections of various medical care. No wonder Ashlyn Harris tweeted at Washington Spirit, stating, “Get us a professional field and then we can talk. Until then take your amateur shit back to your high school field.” One method that the NWSL players could utilize is modifying their collective bargaining agreement (“CBA”) to require a consistent style of medical treatment, a consistent field material, and a consistent time range to ensure that conditions are not what is leading to the consistent, and frankly, dangerous injuries taking place within the NWSL. For instance, within the CBA of the National Football League (“NFL”), the league is required to guarantee funding for search on training methods, equipment, field surfaces, and medical care. Further, the NFL and their respective players’ association, under the guidance of the CBA, set up committees to design safety standards for equipment and field safety. Other methods to improve player safety from injury were the extension of training camp acclamation periods, strengthened standards for team medical and training staffs, enhanced protocol for concussion responses, and additional joint research funding. All of these changes to the 2020 CBA came after the NFL already had in place procedures to ensure safety, such as a requirement for a level playing field that is checked for bad spots 72 hours before the start of the match. Many of the benefits afforded to the NFL players comes from negotiated terms within the CBA. While the NWSL’s Player Association has had much on their plate, from addressing the senseless abuse by many male coaches in the league to negotiating a livable wage to be guaranteed to each player, it may be time to focus in on an issue that is causing reckless injuries to many well-regarded athletes of the league: providing a safer and more consistent playing environment for each player. Ashlyn can be found on Twitter @Ashlyn_Stone2.

The NCAA’s infractions process has long been criticized for lengthy investigations, selective enforcement, and arbitrary and disproportionate punishments. Two U.S. Senators, Marsha Blackburn (R., Tenn.) and Cory Booker (D., N.J.), introduced a legislative bill to significantly change the NCAA’s infractions process. The NCAA Accountability Act of 2021, proposed by Senators Marsha Blackburn (R., Tenn.) and Cory Booker (D., N.J.), is a 10-page bill that, if passed, would streamline the NCAA’s infractions process by establishing deadlines for completing inquiries and investigations, shortening the statute of limitations for investigating infractions, and creating a new appeals procedure. Key highlights from the bipartisan bill include: Establishing a deadline for the NCAA to provide a notice of allegations within eight months after the school is notified it is under investigation. Shortening the statute of limitations to investigate NCAA infractions from four years to two years. Mandating the NCAA to hold a hearing on the infractions case not earlier than 60 days after a notice of the allegations are received or later than a year after the notice is provided. Prohibiting the submission of information from “confidential sources” as evidence for a case. Allowing a school to request a three-person panel of arbitrators to review and adjust any disputed punishments. Requiring the NCAA to submit an annual report to the U.S. attorney general and each state’s attorney general, summarizing its enforcement proceedings, investigations, and issuance of punishments. Empowering the U.S. attorney general and the Department of Justice to establish procedures for filing complaints against the NCAA and to conduct hearings and procedures for the NCAA’s violations of the Act. Authorizing the Department of Justice to remove any member of the NCAA’s Board of Governors and to order the NCAA to pay a civil penalty of up to $15 million for violations of the Act. The NCAA Accountability Act of 2021 is the most recent legislation proposed by lawmakers to address the problems with the NCAA’s infractions process. The bill is similar to the NCAA Accountability Act of 2021, which was introduced in November 2021 by members of the U.S. House of Representatives. In the past two years, more than half a dozen bills to reform college sports have been proposed in Congress. Ryan Whelpley is an Associate at Morse in Waltham, Massachusetts, where he is a member of the firm’s Corporate Practice Group and focuses on venture capital financings, M&A transactions, and general corporate work for startup and emerging growth companies. He is a graduate of Albany Law School (2019) and Union College (2016). At Union, Ryan was a member and three-year captain of the Men’s Basketball Team. You can connect with him via LinkedIn.

For anyone who has watched a significant amount of NCAA Men’s Basketball this year, it becomes easy to wonder, at times, how the officiating of such a high-leverage, pressure-packed sport can be so inconsistent. Further, it’s hard to believe that those officials, with the amount of money the NCAA makes off March Madness, are part-time employees and are paid on a per-game basis. The same questions have been hurled at the NFL, which also uses part-time officials. I believe that those questions could soon be asked by entities that have the vested interest, funds, and influence to pressure these leagues to do something about it. Sportsbooks (gasp!) might soon realize they stand to profit more off consistent officiating than they do off the status quo, and may begin to apply slightly more pressure to fix the problem. Questionable judgements by officials in sports are a tale as old as time. The uproar over those calls becomes amplified when a part-time official makes a call that, in the view of most observers, directly changes the outcome of the contest (i.e. The 2018 NFC Championship non-pass interference on Nickell Robey-Coleman). There are documented cases of individuals attempting to sue officials or the league (as was the case with the NFC Championship No-Call) for damages stemming from negligence of the officials in those contests (lawsuits that have never materially succeeded). But aside from any lawsuit, these incidents receive a disproportionate amount of coverage on social media, the morning talk shows, and ultimately harm the reputation of the league. More consequently, however, they increase unpredictability in the outcome of games, something that can adversely affect sportsbooks that attempt to be as accurate as possible when setting odds. There are reasonable motivations for why sportsbooks would want full-time officials and more consistent officiating. Sportsbooks trade on information. They build the infrastructure to provide the maximum amount of information possible when setting the initial line for a sporting event. They continue to use and update that information to make adjustments as the market changes the odds through wagering. Why? Because that’s how they make money. Sportsbooks count on the fact that they have vastly more information than Joe Everydayman who walks into a Vegas or Atlantic City Sportsbook and places a bet because his buddy’s dog picked Team X when asked to decide between two treats. All of that information is geared towards eliminating as many variables as possible that will affect the outcome of the game. Predictable outcomes (or a limited range of probable outcomes, as limited as possible) allow gambling operators to maximize their cut on either side of the action and allow them to adjust lines more accurately. So, if sportsbooks trade in predictability, it would seem they would also have an interest in predictable officiating. Not the kind where they are paying for a specific outcome (and thereby committing a federal crime), but the kind where they can eliminate (or at least significantly reduce) the possibility of an inconsistent call by an official in the late stretch of a game from swaying the outcome. As sponsorship deals and endorsement rights allow sportsbooks to develop close relationships with league offices, they may begin to apply pressure to these leagues (looking at you NFL and NCAA) to make their officials full-time employees and train them year-round to officiate every game in the same (somewhat) predictable manner. Certainly, neither party is wanting for money, and the increased cost to pay officials full-time and train them year-round would be paid back tenfold if a crucial call that would have been missed is assessed accurately. If that doesn’t work, there’s a remote possibility that those same gambling operators may ask (see: lobby) Congress, or possibly state legislatures, to examine the possibility of creating an oversight and certifying body for sports officials to create the kind of predictability they are looking for. And with the amount of money that sportsbooks are collecting with the increasing legalization of sports betting, government officials are likely going to be willing to listen. At worst, these changes would provide the leagues with the plausible deniability that there is no way to have a more competent and accurate body of officials to preside over contests with such high stakes. At best, for the sportsbooks at least, it allows them to more accurately set lines for wagering, and the leagues get the consistent officiating that coaches, athletes, fans and gamblers all want to see. Wouldn’t it be ironic if it was the sportsbooks, and not the leagues themselves, that ultimately enhanced the integrity of officiating in American sports and helped stop the conspiracy theories that start the second an official misses an obvious pass-interference with the game on the line. ….And no, I’m not a Saints fan. Michael DiLiello is an Army Officer transitioning to the Sports Law field and will enroll as a 1L in the Fall of 2022. His opinions are purely his own and do not reflect the opinions of the United States Army, the Department of Defense, or any other external agency. Twitter: @Mike_DiLiello LinkedIn: http://linkedin.com/in/michael-diliello-1057b439 Image via The New York Times

Prince, Tom Petty, and Mac Miller will forever be bonded by both their fame in the music industry and the prescription drug that tragically stole their life: fentanyl.[1] Fentanyl is believed to be responsible for more than 50% of drug overdoses nationwide[2] and has killed more than 50,000 people in the year 2020 alone.[3] As a drug crisis continues to rage throughout the country,[4] a leading pitcher on the Los Angeles Angels, Tyler Skaggs, has also fallen victim to the dangers associated with the usage of fentanyl.[5] On July 1, 2019, Tyler Skaggs was found unconscious in his hotel room and was later pronounced dead.[6] A medical examiner found that Skaggs’ cause of death was oxycodone that was laced with fentanyl, which was given to him by the Angels communications manager, Eric Kay.[7] On February 17, 2022, Eric Kay was criminally convicted for providing Skaggs a controlled substance which led to his death.[8] Following the criminal conviction, a civil lawsuit was filed by Skaggs’ parents and widow against the Los Angeles Angels for acting negligently and they are seeking money damages.[9] While predicting the future has never been a hobby of mine, the Angels will likely reach a private settlement with Tyler Skaggs’ family well before this case ever has the chance to be tried in court. Firstly, Skaggs’ tragic death has already harmed the Angels tremendously. This case has brought about tons of negative publicity, has harmed the Angels standing in the league, and exposed to the world the sad reality that drug use has been rampant in their locker room. To enable any chance of success in the coming season, the Angels need this incident to become a tragic accident of their past, rather than a painful dispute of the present. Secondly, negligent supervision is when someone who has a legal obligation to supervise another fails to do so responsibly.[10] Negligent supervision primarily consists of three elements: 1) a person or individual had supervisory responsibility over an individual, 2) the supervisor failed to supervise the individual under its authority, and 3) the resulting injury was directly due to the supervisor’s failure to oversee the individual.[11] In our case, the Los Angeles Angels clearly had supervisory authority over Eric Kay because he was the communications manager of the team. The Angels also failed to supervise Kay since he recently returned from rehab and still maintained consistent contacts with the players. One can certainly recognize the danger and potential influence that a known drug user can have on others. Finally, it was strongly proven at Eric Kay’s criminal trial that he was solely responsible for providing the drugs to Skaggs. Thirdly, vicarious liability establishes that an employer can be held liable for the actions of an employee that harms another party.[12] Unlike negligent supervision, an employer can be held vicariously liable solely based off their status as an employer, rather than the manner that they acted. In our case, it can be strongly argued that the Angels should be held liable since they employed Kay and his actions occurred during the scope of his employment. In conclusion, a private settlement will likely be reached in the coming months because of the tremendous negative publicity associated with this tragedy and the strong support for finding liability. This tragedy has become the biggest scandal in the MLB and has enveloped the Angels organization to focus their energy on all topics other than baseball. Moving forward, we must never forget that fentanyl can kill, drugs are dangerous, and that the lives of our loved ones must always be cherished. David Billet is a 3L at Fordham Law School and has a Bachelor of Arts in Accounting from Queens College, CUNY. He can be reached on LinkedIn at https://www.linkedin.com/in/david-billet-234b48127. [1] https://www.nytimes.com/2018/11/05/arts/music/mac-miller-overdose-fentanyl.html [2] https://drugabusestatistics.org/fentanyl-abuse-statistics/ [3] https://nida.nih.gov/drug-topics/trends-statistics/overdose-death-rates [4] https://www.cfr.org/backgrounder/us-opioid-epidemic [5] https://www.justice.gov/usao-ndtx/pr/former-angels-communications-director-eric-kay-convicted-tyler-skaggs-overdose-case [6] Id. [7] Id. [8] Id. [9] https://www.si.com/mlb/2021/06/29/tyler-skaggs-family-sues-team-former-employees-death [10] https://www.maggianolaw.com/blog/negligent-supervision/#:~:text=Negligent%20supervision%20is%20when%20someone,and%20church%20youth%20group%20leaders. [11] Id. [12] https://www.law.cornell.edu/wex/vicarious_liability

In the news recently, it feels like there are more and more sports franchises gaining almost complete control over the places that they reside. This is a trend that has been especially apparent throughout time, as the towns and cities they reside in become reliant on sports franchises for the revenue that they bring to the local economy. However, even more recently, this has led to the power getting to the heads of some of the richest people in the sports industry. There have been rumors that the owners of the Oakland Athletics, who have a notoriously outdated stadium, have been pressing the city of Oakland to build them an environment around their new stadium that would cost them millions. The issue with this is, if Oakland declines, then the Athletics will simply move the same way that the Raiders left town. After this occurs, a bidding war begins and wherever the Athletics can get the most public funding and tax breaks is where they will go. This can have dramatic effects on local economies that depend on the crowds that the stadiums bring into town. For example, when you bring in a sports franchise and build a stadium, it boosts the local economy by allowing more revenue to come in, and by attracting more businesses to the location. If you bring in a sports stadium, people are going to need to get gas somewhere near it if they were driving far, so it leads to a gas station being built near the stadium. Then this leads to restaurants being built, because they may want to go somewhere to eat before or after the game. It is easy to see how this chain reaction can then lead to a prosperous local economy, and a dramatic downfall once the sports team leaves and the revenue goes with it. The way that this impacts us today can be exemplified by the spending breakdown of the new stadium being built for the Buffalo Bills. In this situation, the state of New York is contributing around $600 million for the building of this stadium, which has been met with mixed reactions. Mostly because this stadium is not even in Buffalo, and additionally because the money that is being contributed to this stadium is coming from the taxpayers. [1] This has reflected just how powerful owners have become, not even just in football, but across all sports. Most of you may know about the recent MLB lockout that occurred in the offseason, and if you don’t, a short summary in a sentence or two would be that the owners and players must come to an agreement on specific rules, and this agreement expires after a certain number of years. This offseason, the last agreement expired, and a new one had to be negotiated. When it takes too long to negotiate an agreement, the league enters what is called a lockout. For context, we have not had an MLB lockout since the 1994-1995 season, which just goes to show that it is significant. The major issue that has occurred recently is that the owners were refusing to budge on paying players more, and so they had all the power during the negotiations. This forced players to give up some of their rights in order to make a deal, just showing how powerful owners of sports franchises have become. If they feel that it will be more profitable for them and their franchise, they will not hesitate to force their way out of a city and move elsewhere. This leads to both destroying the local economy they’re leaving and crippling the city they’re entering with the tax breaks they insist on receiving. All in all, the conclusion that can be drawn from all of this is that owners are getting more powerful, in most cases even more powerful than the local government and economy of the city they are leaving in. The way this may impact you, is that if your local government doesn’t bend to the will of the owner of your local sports team, then you may lose your local sports team for good. Jon Trusz is a Junior at the University of Connecticut studying Political Science and Communications, and can be reached on LinkedIn under his name, or by email at [email protected].

The Evander Kane saga continues. To quickly recap, Kane filed for Chapter 7 bankruptcy in January of 2021, stating that he owned $10,224,743 in property and $30,191,340 in liabilities. At the time Kane's bankruptcy petition was filed, the pesky power forward was in the third year of a seven-year deal with the San Jose Sharks. After Kane filed his Chapter 7 proceeding, a creditor, Zions Bancorporation, moved to convert the case to a Chapter 11. The key difference between a Chapter 7 and 11 case is that in Ch. 7, a debtor retains his post-petition income, while in Ch. 11, said income becomes property of the bankruptcy estate. At stake in Kane's case: his earnings under the remainder of his contract with the Sharks, which Zions estimated at $29 million. Also, Kane's one-year contract with the Edmonton Oilers worth approximately $1 million. Kane has been a great addition for the volatile Oilers, putting up 28 points in 32 games while staying relatively quiet. However, he somehow managed to commit four minor penalties in about eight minutes of game time recently. Almost impressive. The bankruptcy court denied Zions' motion to convert the case on April 19, 2021, which Zions appealed. In January of this year, while Zions' appeal was pending, the Sharks terminated Kane's contract. Kane filed this motion to dismiss the appeal on February 22, 2022. Kane's primary argument in his motion to dismiss is that "because the Sharks contract was terminated, and because Zions relied on that contract to fund a Chapter 11 plan, the court cannot grant effective relief, and Zions' appeal is thus moot." Zions argues that Kane failed to address whether he would continue to earn income from other sources, including by playing hockey for other teams. Zions contends that "whether Kane's income from the Sharks has been reduced or lost altogether . . . does not necessarily support the assertion that Kane could not fund a Chapter 11 plan, as all of his post-petition compensation would constitute property of the bankruptcy estate." According to Zions, it therefore is not impossible for the court to grant it effective relief. The California Northern District Court decided to deny Kane's motion to dismiss yesterday, April 5, 2022. The court reasoned with the following: "just because that stream of income [San Jose Sharks' contract] is no longer available does not mean there is no stream of income available, as evidenced by his new contract with the Oilers. He also misses two key points: he earned some money from the Sharks before his contract was terminated, and there is a still-pending grievance that could impact the money available to him post-termination. Taken together, this shows that there is some effective relief that would be available to Zions in a Chapter 11 plan." With that, Zions' appeal to convert Kane's bankruptcy case from a Chapter 7 to Chapter 11 case will be heard moving forward. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is the President of Hofstra’s Sports and Entertainment Law Society. Additionally, he is a Law Clerk at Geragos & Geragos. He can be found on Twitter @Jason_Morrin.

The United States District Court for the District of Maryland, Southern Division has dismissed an interesting lawsuit filed by an individual named Bahram Shakeri. Shakeri, the plaintiff, claimed that the MGM National Harbor Casino in Maryland was negligent for letting former NBA player Delonte West fight him on their premises. In January of 2020, plaintiff was at the high limit gaming area of the MGM National Harbor when he claims he was attacked by Delonte West, who is a non-party to this suit. Plaintiff alleged that West is "known for battling issues of mental health and violence, including being convicted of weapons charges." Shakeri also claimed that he tried to get away from West, but West followed him throughout the casino and harassed him. As for his legal claim, Shakeri said MGM committed gross negligence when none of its representatives ever intervened or asked West to leave the premises, even after West repeatedly attacked him. Plaintiff and West later fought off of the premises after West followed Shakeri's car. Plaintiff filed the complaint on March 3, 2021, alleging that defendant MGM was negligent because it had a responsibility to provide a safe environment for its customers. Plaintiff said he suffered severe emotional distress and should be entitled to damages. Defendant filed its motion to dismiss on April 8, 2021. Last week, the court granted defendant's motion, dismissing the lawsuit. Gross negligence is defined by the court as "[a]n intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them." "Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist." MGM argued it was entitled to a dismissal and did not commit negligence because it had no duty to prevent the criminal acts of a third party. Generally, a "business [MGM] owes an invitee [Shakeri] a duty to use reasonable and ordinary care to keep the premises safe and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover." Here, the court held that plaintiff failed to establish that defendant had any knowledge of West's threats to him. "A business is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate." Thus, plaintiff failed to state a claim for relief. Hopefully, Delonte West can put this incident behind him and continue to improve in his road to recovery. West recently participated in BIG 3 tryouts ahead of their 2022 season. It's so refreshing to see him back on the court after years of anguish. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is the President of Hofstra’s Sports and Entertainment Law Society. Additionally, he is a Law Clerk at Geragos & Geragos. He can be found on Twitter @Jason_Morrin.

On Tuesday, April 5, the United States Court of Appeals for the First Circuit ruled in Confederación Hípica de Puerto Rico, Inc. v. Confederación de Jinetes Puertorriqueños, Inc. that jockeys can refuse to race for higher wages and better working conditions, opening the door for jockeys to collectively bargain. Background Puerto Rico has one horse-racing track operated by Camarero Racetrack Corp. Jockeys are hired on a race-by-race basis and paid a minor $20 mount fee for each race, which is one-fifth of what jockeys receive in the mainland United States, and, if they finish within the top five, the possibility of sharing in the winnings. After negotiations between Confederación Hípica de Puerto Rico, Inc. (“Hípica”), which represents the owners, and Confederación de Jinetes Puertorriqueños, Inc. (“Jinetes”), which represents the jockeys, over working conditions ultimately failed, the jockeys refused to race for three days between June 30-July 2, 2016. Due to the cancellation of races between June 30 and July 2, Hípica and racetrack owner Camarero sued the jockeys and Jinetes, alleging that they engaged in a group boycott in violation of the Sherman Antitrust Act. The Court’s Opinion In finding that a statutory exemption applied, Judge Sandra L. Lynch wrote, “[m]ost of the time, antitrust law forbids would-be competitors from colluding to increase prices. When the price is a laborer’s wage, however, a different set of rules apply.” Here, the statutory labor-dispute exemption under the Clayton Act and the Norris-LaGuardia Act applied. Specifically, the exemption applies to “conduct arising (1) out of the actions of a labor organization and undertaken (2) during a labor dispute, (3) unilaterally, and (4) out of the self-interest of the labor organization.” Applying the conditions to the case at hand, Judge Lynch noted that conditions (3) and (4) were not in dispute and found that Jinetes is a labor organization that advocates for jockeys’ terms of employment, and the jockeys and Jinetes were seeking higher wages and safer working conditions. Therefore, the conditions were satisfied, and the labor-dispute exemption applied. Importantly, the Court of Appeals for the First Circuit noted that it does not matter whether the jockeys were independent contractors because the exemption still applies under the Norris-LaGuardia Act. “The key question is not whether the jockeys are independent contractors or laborers but whether what is at issue is compensation for their labor,” Judge Lynch wrote, “disputes about wages for labor fall within the exemption but those over prices for goods do not.” Since the exemption applied, the plaintiffs could not prevail on their claims. Thus, the Court remanded the case to the district court for dismissal. Pending any appeals, the ruling will allow jockeys to collectively bargain. Why This Matters Currently, professional leagues like the PGA Tour consider athletes independent contractors. With many touting a Saudi Arabia-backed professional golf league as an opportunity for professional golfers, we could see organizations representing professional golfers utilizing the labor-dispute exemption to negotiate higher wages. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via Twitter @LandisBarber, LinkedIn, or via his blog offthecourtdocket.com.