On August 27, 2024, the NFL made a significant move by allowing private equity firms to invest in its teams. This decision marked a shift in the league’s traditionally conservative approach to ownership. While other major U.S. sports leagues have been more open to private equity involvement, the NFL's decision introduces new dynamics in team financing, ownership structure, and league governance. Here’s a breakdown of the key points of the NFL’s decision and how it compares to the other major leagues: Key Points of the NFL’s Decision Ownership Rules Relaxed : The NFL had long maintained strict ownership rules, favoring individual or family owners with deep pockets. By allowing private equity firms to acquire minority stakes, the league is easing the financial burden on traditional owners who may need capital due to the exponentially growing valuations of their teams, but do not wish to relinquish full control. Minority Stake Limitations : While private equity can now buy into NFL teams, there are still limitations. They can own up to 10% of a single team, and this 10% can be split among multiple funds. However, each fund must own at least 3% of the team, allowing them to invest in multiple teams at once – up to six teams. This preserves the NFL’s historical preference for stable, long-term ownership. Investor Qualifications : The NFL is instituting strict guidelines for private equity firms to ensure financial stability and long-term commitment. The current list of league approved funds are: Arctos Partners, LP; Ares Management Corporation; Sixth Street; and a consortium group including Blackstone, Carlyle, CVC, Dynasty Equity and Ludis. Sovereign wealth funds and pension funds are not permitted. The funds that invest will be required to hold their investment for a minimum of six years. Revenue Sharing and Team Valuations : With private equity involvement, there is potential for increased team valuations, especially for franchises that need capital to upgrade facilities, marketing, or operations. However, the NFL’s strong revenue-sharing model will likely remain in place, ensuring competitive balance across the league. Long-Term Impact on Governance : The introduction of private equity may influence the league’s decision-making processes over time. With investors looking for returns, there could be pressure on the league to pursue more aggressive growth strategies, including expanding international markets, increasing media rights deals, and monetizing digital assets, but for now with the league only allowing such a passive investment these changes will likely not be seen in the near future. Comparisons with Other Major Sports Leagues NBA : The NBA was one of the first major sports leagues to embrace private equity investment. Since 2020, the NBA has allowed private equity firms to own up to 20% of a team, with a cap on total private equity ownership at 30%. This has resulted in increased liquidity for owners and higher team valuations. The NBA has been more flexible in its approach, with some teams welcoming multiple private equity investors, allowing for more diversified ownership structures. MLB : Major League Baseball has also opened its doors to private equity in recent years. Like the NBA, MLB allows minority stakes to be sold to private equity, but with tighter restrictions. MLB’s approach is more conservative, focusing on maintaining control within traditional ownership groups. This has helped stabilize teams financially but limits the influence of private equity on day-to-day operations. MLB permits teams to sell up to 30% to funds, and the maximum equity a fund can have in a single team is 15%.   NHL : The NHL began permitting private equity firms to buy minority stakes in teams starting in 2021. The NHL’s ownership model is similar to MLB’s, with a focus on ensuring that private equity investors do not gain significant control over team operations. The NHL permits teams to sell up to 30% to funds, and the maximum equity a fund can have in a single team is 20%. The NHL has used private equity as a way to provide financial relief to struggling franchises, allowing them to remain competitive without forcing ownership changes. MLS : Major League Soccer has been equally as flexible as both the NBA and NHL when it comes to private equity involvement. MLS franchises have allowed private equity firms to take additional stakes in teams, often providing essential capital for stadium development and expansion efforts. The league’s newer structure and focus on growth have made it a more attractive option for private equity investors compared to the more established leagues. Distinctions in Private Equity Involvement Across Leagues Control and Governance : The NFL’s decision to limit private equity ownership to minority stakes is the strictest of the major sports leagues to ensure control is carefully guarded by traditional owners. In contrast, the NBA, MLB, NHL and MLS have been more open to shared control, with multiple private equity investors holding stakes in several teams and allowing these investors to own a greater percentage of those teams. Financial Impact : Private equity’s influence on team valuations has been most pronounced in the NBA, where the league’s global popularity and lucrative media deals have made teams attractive investment vehicles. The NFL, with its established media dominance and high franchise values, may see similar effects but at a slower pace due to its more restrictive ownership rules. Operational Influence : While private equity in the NBA and MLS often has a more hands-on role in driving growth strategies, the NFL’s approach is likely to keep operational influence limited. The NFL’s governance structure prioritizes long-term stability over short-term financial gains, which could curb some of the aggressive growth strategies typically favored by private equity. Conclusion The NFL’s decision to allow private equity investment marks a significant shift in the league’s approach to ownership and financing. While the move brings the NFL in line with other major U.S. sports leagues, the restrictions on ownership stakes and control will ensure that the league maintains its focus on stability and competitive balance. As private equity firms begin to invest in NFL teams, the long-term impact on team valuations, operations, and league governance will be closely watched, with lessons likely to be drawn from the experiences of the NBA, MLB, NHL, and MLS, which all allow for more private equity involvement than the NFL. Michael Perlo is an Associate Attorney at Woods Oviatt Gilman LLP and writes and speaks frequently about the legal issues related to sports. He can be reached on LinkedIn at https://www.linkedin.com/in/michael-perlo/

As summer comes to a close, partnership deals are booming. From sneakers to chocolate, every industry is hoping to get a piece of the profit. For the sake of us consumers, let’s hope Angel Reese’s collection is a bit more affordable than Ruth’s jersey.   USA football makes Oakley its official eyewear sponsor in advance of the 2028 Olympics. USA Football Aflac partners with the University of Colorado Buffaloes football team to provide custom headsets for the upcoming season. The coaching staff’s headsets will be designed to match the players’ uniforms each week. CU Hershey’s Reese’s partners with Angel Reese to create a Reese’s Pieces logowear collection. Logowear will feature the new “Reese’s Angel” logo. Yahoo Sports Babe Ruth’s “called shot” jersey sold for $24.12M. This sale sets the auction record for most expensive sports collectible ever sold, topping a Mickey Mantle Topps card which sold for $12.6M in 2022. ESPN Duke forward Cooper Flagg signs endorsement deal with New Balance. ESPN projects Flagg will be the first pick in the 2025 NBA draft. ESPN Kelce brothers sign a $100M+ deal with Amazon for their New Heights podcast. WSJ Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

As much of the world enjoys end-of-summer traveling, Delta is hard at work solidifying its partnership with the WNBA, and Pitbull is ready to get back to school. Non-alcoholic beverages continue to have their moment, and KD just can’t get enough of Paris after coming home with the Gold for Team USA. Pitbull purchases naming rights to Florida International University’s football stadium for the next 5 years. Pitbull will pay FIU $1.2 million per year, and has the option to renew for an additional 5 years. As part of the agreement, Pitbull will create an anthem for the school, make 12 social media posts per year and appear at one athletics funding event per year. In return, Pitbull will get to use the stadium 10 times per year, and his vodka company (Voli 305 vodka) will be the preferred brand of the stadium. ESPN Arsenal FC names Athletic Brewing as its official non-alcoholic beer partner. CNBC Kevin Durant becomes minority owner of Paris Saint-Germain soccer club. Durant invested through his company, Boardroom Sports Holding, LLC, via Arctos Partners. Yahoo Sports Richard Sherman and Sheldon Day’s Players Company partners with Mogul Club, a real estate investment firm designed to help accredited investors interested in investing in single-family rental properties. Sherman and Day formed Players Company to help educate and support professional athletes and other accredited investors with their investments. Forbes WNBA names Delta Air Lines as its official airline partner. WNBA Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

While House v. NCAA has dominated most of the headlines lately, it is far from the only active lawsuit against the NCAA in this  litigious environment in college athletics. Ever since the Supreme Court’s ruling in the Alston case and Justice Brett Kavanaugh’s scathing concurrence to go with it, the NCAA has been in an extremely vulnerable position.  This week, another lawsuit has been filed against the NCAA, this time by a former college baseball player. Riley Cornelio, a former TCU pitcher, is suing the NCAA and power conferences, "accusing the leagues of wage fixing through scholarship limits." The federal antitrust case was filed in Colorado this week and "seeks class-action status for college baseball and hockey players." The timing of this suit is noteworthy because it appears like scholarship limits in college baseball and other college sports might no longer exist in a couple of years.  The NCAA, ACC, Big Ten, Big 12, Pac-12 and SEC already have an agreement in place to settle recent antitrust litigation, including House , where scholarship limits would be replaced by roster caps. The settlement, which still needs to be approved by a judge, also includes a plan to allow schools to implement a revenue-sharing system with athletes and increase the number of scholarship schools would be permitted — though not required — to hand out in most Division I sports.  The scholarship limit for baseball has been 11.7 per program. With most college baseball programs carrying 35-40 man rosters, nearly all players have been on partial scholarships. Under the new proposed system, baseball rosters will be capped at 34 players and schools can choose to fund them all with full scholarships. While it’s uncertain the exact number of scholarships certain programs will fund moving forward, it’s reasonable to assume power programs will far exceed the previous 11.7 limit.  However, just because the scholarship limitation may be going away, the settlement is still not final by any means. Moreover, the plaintiffs are seeking retroactive relief. “Even if the rule is finally repealed, there will still be a need to make whole the athletes who suffered,” the lawsuit says.  The suit also alleges that “Defendant and its members operate as a cartel, and the capping of scholarship money at artificially low levels in these sports results in wage fixing amongst horizontal competitors in a market for services,” the complaint says. “The anticompetitive effects are as clear as with any other wage fix, and it is an unlawful restraint under Section 1 of the Sherman Act.” The suit was filed by the same attorneys who are leading the Fontenot case against the NCAA. In that case, a former football player at the University of Colorado filed a lawsuit last November, claiming NCAA rules have illegally prevented college athletes from earning their fair share of the millions of dollars in revenue schools bring in. The plaintiffs' attorneys in House  requested that Fontenot  be joined with another lawsuit that is part of the settlement, but a Colorado judge denied the request. It seems like change and litigation are the only constants you can count on right now in college athletics. The advent of NIL, conference realignment, and sweeping litigation have dominated the landscape in recent years and does not appear to be slowing down. Clemson and Florida State have active cases against ACC that will likely end with the two institutions in new conferences. College athletes will likely gain employee status in the near horizon. But when and how these changes will come about is up in the air as we sit here today. Outcomes of court cases like House will undoubtedly shape the future of college athletics. With every lawsuit that is brought, the NCAA becomes weaker and weaker. In this era, nearly every decision being made is guided by the potential of a future lawsuit. Therefore, it’s important to monitor each case that comes in, including this scholarship case brought by Riley Cornelio. Brendan Bell is a 2L at SMU Dedman School of Law and is the Southwest Regional Rep on Conduct Detrimental's Law School Student Board. He can be followed on Twitter (X) @_bbell5

As July comes to a close, so does a few highly anticipated deals. However, not without drama, as the battle between the NBA and TNT continues at full force.   NBA Board of Governors approves media rights agreements. NYT NBA rejects TNT’s rival bid, stating the proposal did not match the terms of Amazon Prime Video’s offer. Warner Bros. Discovery, TNT’s parent company, is now suing the NBA for its “unjustified rejection” of Warner Bros.’ matching offer. Front Office Sports / NYT Willow Bay and Bob Igor secure controlling stake in Angel City FC. Bay and Igor will invest an additional $50M in the club. The franchise is valued at $250M. ESPN   Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

Every four years, the world comes together to watch the best athletes compete for a shot at glory. Not only is the United States Olympic and Paralympic Committee ("USOPC") the organization to send Team USA to the Olympic Games, but the USOPC also monitors the use of their intellectual property rights. The USOPC, in a lawsuit filed in the United States District Court for the Court of Colorado on July 19, alleges that YouTube star Logan Paul and his beverage company, Prime Hydration, have infringed on the USOPC’s trademarks and symbols associated with the 2024 Olympic Games with their recent promotion with Team USA/NBA superstar Kevin Durant.   The USOPC has held trademarks relating to the Olympic Games for over a century. Some phrases that they have trademarked include, among others, Olympic, Olympian, Team USA, and Go for the Gold. The complaint alleges that Prime Hydration has allegedly repeatedly used these “Olympic-related terminology and trademarks” with phrases on the bottles that include “Kevin Durant Olympic Prime Drink!” and “Celebrate Greatness with the Kevin Durant Prime Drink”. [1]     The complaint further states that every Olympic Games, the USOPC engages in a “robust licensing program” in which sponsors and other partners are allowed to use trademarks owned by the USOPC. Currently, Coca-Cola is the only beverage company with an exclusive license to use the USOPC’s trademarks. The complaint elaborates that “because consumers have been exposed to sponsored uses in so many industries, they are likely to believe that any use of Olympic trademarks to promote the sale of goods are under license.”   On July 10, the USOPC wrote a cease-and-desist letter and contacted the beverage company to stop using their trademarks. The USOPC alleges that Prime Hydration's use of the Olympic mark has been “willful, deliberate, and in bad faith, with malicious intent to trade on the goodwill associated with the USOPC’s marks.” Prime Hydration continued to show the infringing bottle until July 19.   Trademark law in the United States is governed by the Lanham Act. The goal of trademark law is to protect consumers and to ensure that they are not misled or confused as to the source of goods. To determine trademark infringement, the court will look to whether there is a likelihood of confusion among a reasonably prudent purchaser of the products at issue. Some of the factors that courts weigh when determining whether a likelihood of confusion exists include the following: [2] The strength of the Plaintiff’s mark Relatedness of the goods and services Similarity of the marks Evidence of actual confusion Marketing channels used Likely degree of purchaser care Defendant’s intent in selecting the mark Likelihood of expansion of the product lines   As the USOPC vigorously protects its intellectual property to prevent any unauthorized exploitation that could potentially dilute the value of its marks or cause consumer confusion, it appears to have a strong case for infringement. The lawsuit seeks millions of dollars in damages, and the damage request includes receiving all the profits made from the infringing beverage and compensation for the harm caused by violating the USOPC’s sponsorship agreements.   As we continue to enjoy the excitement and unity of the Olympic Games, this case underscores the importance of protecting the integrity of the USOPC’s trademarks. The Olympic Games are so widely recognizable, and the Games do not only embody athletic excellence but also the symbols associated with them. Proper adherence to trademark laws ensures that the integrity of the Games is preserved and that all related branding is used with the necessary permissions, safeguarding the Olympic spirit for years to come. Shelby Stevens is a rising 3L at Gonzaga University School of Law. She is also the Northwest regional representative of the Conduct Detrimental Law Student Board. She can be found on LinkedIn at Shelby Stevens . Sources: [1]   https://www.usatoday.com/story/news/nation/2024/07/22/logan-paul-prime-energy-drink-olympic-lawsuit/74502244007/ . [2]   Interpace Corp. v. Lapp, Inc. , 721 F.2d 460 (3d Cir. 1983) .

In June, the United States Supreme Court declined to hear a challenge to the Seminole Tribe’s agreement granting the exclusive right to sports betting within the state of Florida under their Hub-and-Spoke model, part of the compact agreement between the Tribe and the state. The only true online sports betting application or site that is legal within the state is the Seminole’s Hard Rock Bet.   The Hub-and-Spoke model means that online bets placed by individuals across the state of Florida, not physically made on tribal lands, are still considered to be made within reservation territory because the servers receiving the bets are on Seminole land. Physical casinos within Florida sued in federal district court to find that the Hub-and-Spoke model violated the Indian Gaming Regulatory Act ("IGRA"). While the district court found that this model violated the IGRA, the D.C. Circuit Court of Appeals, on appeal, came to the opposite conclusion, finding that this model did not violate the IGRA. And as a result of the Supreme Court’s inaction, the D.C. Circuit's decision on this issue became final.   With the Supreme Court’s decision not to decide the matter, Florida bettors can place online sports bets anywhere within the geographical bounds of the state. This is massive news for the Seminole Tribe, as there is much greater potential capital than the alternative where bettors would have to be physically on tribal lands to place such a bet. By 2030, the prediction is that the monopoly could generate $4.4 billion for the Seminole Tribe.   Daniel Wallach, a Florida sports betting legal expert who filed an amicus brief asking for Supreme Court review, looked toward the future potential for other Native American groups around the country to try to replicate what transpired in Florida for their own benefit. Wallach states, “Tribes in other states stand to benefit from this decision because now they have a clear roadmap that has cleared judicial review.”   This blueprint compact agreement is only one of the reasons for a rise in tribal groups expanding into the sports betting market, according to Kathryn Rand from the University of North Dakota Institute for the Study of Tribal Gaming Law and Policy. Rand indicates that COVID-related casino closures and an increasingly diverse market of competitors in online sports betting have alerted tribal leadership across the country to the lucrative expansion possibility. With tribal lands often in rural areas of states, she finds that models like the Hub-and-Spoke can “ope[n] up a market previously unavailable to tribal casinos” with activity from consumers across the state.   Kansas is a favorite to be the next state to adopt an approach like that seen in Florida. Due to a compact between the state and the Prairie Band Potawatomi Nation, sports betting is legal within Kansas. Nick Covek and Zack Flagel, Associates in the Sports and Entertainment Group at Foley & Lardner LLP, explain that Kansas and other states, such as Wisconsin, Washington, and North Dakota, “may be inclined to amend their tribal compacts and state laws to embrace the Hub-and-Spoke model. Doing so would expand the geographic scope of sports betting from just tribal lands to the entire state geographic boundary.”   Brendan McLaughlin, rising 2L at St. John’s University School of Law. He can be found on LinkedIn at Brendan McLaughlin . Sources: https://apnews.com/article/florida-sports-gambling-seminole-tribe-b5d18262d8d25e38fde260fc013a9f33 https://www.forbes.com/betting/legal/is-online-sports-betting-legal-in-florida/#:~:text=Sports%20betting%20is%20legal%20in,betting%20began%20in%20December%202023 .   https://www.sportsbusinessjournal.com/Articles/2024/05/28/oped-28-covek-flagel https://www.vixio.com/insights/gc-tribal-casinos-find-more-pros-cons-sports-betting

Justice Kavanugh’s concurrence in Alston v. NCAA arguably summarizes the rationale in creating the NIL market: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.” 594 U.S. 69, 112 (2021). Kavanaugh’s strong language represents prevailing sentiments toward the NCAA’s decades-long commercial appropriation. Facially, it echoes the boiling frustration of thousands of athletes whose NILs the NCAA appropriated since the Board of Regents decision. See Board of Regents v. NCAA, 468 U.S. 85 (1984). A recondite sentiment reaps from irritated sports-law scholars, including 21st century Supreme Court Justices, who acknowledge that the NCAA’s arrogant and passive attitude toward the serious allegations in the landmark O’Bannon and Alston decisions that ultimately created the current NIL Wild West and subsequent flood of litigation currently drowning the NCAA. See O’Bannon v. NCAA , 802 F.3d 1049 (9th Cir. 2015). An examination of the NIL Trilogy – Board of Regents, O’Bannon, and Alston – shows how the NCAA’s reliance upon favorable dicta potentially played a significant role in ushering in this chaotic era of collegiate sports.   The courts’ decisions in the NIL Trilogy are based upon the Rule of Reason. Once plaintiffs established antitrust standing – proving they suffered the type of injury antitrust laws are intended to prevent and such injury flows from unlawful NCAA conduct – courts moved to the first prong of Rule of Reason analysis, examining whether the plaintiffs identified the rules’ anticompetitive effects. Then, the NCAA was charged with identifying a procompetitive purpose for its challenged rules. Regardless of whether the NCAA truly met its burden, the courts continued to the third Rule of Reason prong, which required plaintiffs to identify substantially less restrictive alternative means of achieving the challenged rule’s procompetitive purpose. Courts found the plaintiffs met satisfied this high standard in O’Bannon and Alston.   Initially, the NCAA enjoyed essentially antitrust exemption, based almost solely on language in Board of Regents . The issue centered on the NCAA’s rules for televising college football games. See Board of Regents , 104 S. Ct. at 2955-2957. These rules would ordinarily be per se unlawful: rules setting a minimum price TV networks must pay NCAA member schools constitutes a price fixing agreement, and rules artificially capping the number of televised game licenses for sale constitutes an output-restricting agreement. Id., at 2962. After analyzing the facts under the Rule of Reason, the Supreme Court affirmed the Tenth Circuit’s finding that the NCAA’s conduct violated the Sherman Act because its actions constituted an unlawful horizontal restraint of trade. Id. at 2959. However, because college sports could not exist without certain horizontal agreements (such as standardizing the size of the field, the number of players on the team, and the extent that physical violence was encouraged or prohibited), NCAA rules should not be held per se unlawful even when they appear to be pure “restraints on the ability of member institutions to compete in terms of price and output.” Id. at 2960-61. Thus, the challenged rules were not per se unlawful because the NCAA fostered competition in other sports – just not for televised football. Id. , at 2961. Notably, NIL implications are found in the Court’s concluding remarks, which emphasized the NCAA’s “critical role” in maintaining a “revered tradition of amateurism in college sports” by using its ample latitude to preserve the student-athlete’s role in higher education, adding richness and diversity to intercollegiate athletics and thus, is “entirely consistent with the Sherman Act.” Id. , at 2970.   Twenty years later, the Court’s concluding remarks in Board of Regents served as one of the NCAA’s cornerstone arguments against subjection to antitrust law. See O’Bannon , 802 F.3d at 1061. The plaintiffs – a class of all former and current D1 men’s basketball and football student athletes whose NILs were potentially included in EA NCAA video games – alleged that the NCAA's amateurism rules, insofar as they prevented compensation for use of the athletes’ NILs, illegally restrained trade under the Sherman Act. Id. at 1055. The NCAA argued Board of Regents’ s holding makes its amateurism rules presumptively valid – thus, any antitrust challenge fails as a matter of law. Id. , at 1061. However, the Nineth Circuit interpreted Board of Regents to mean that challenged NCAA rules must be examined under the Rule of Reason, and the Court’s encomium to amateurism was dicta. Id. , at 1063. Thus, the NCAA is not above antitrust law, and courts must not shy away from requiring the NCAA to play by the Sherman Act's rules. Id. at 1079. Despite the Nineth Circuit’s rejection of the NCAA’s Board of Regents argument in O’Bannon , the hauntingly familiar antitrust-exemption assertion reared its head once again in the 2021 Alston decision. There, a class of current and former D1 FBS football and men’s and women’s D1 basketball players alleged the NCAA’s rules restricted the compensation they may receive in exchange for their athletic services, thereby violating § 1 of the Sherman Act. See Alston , 141 S. Ct. at 2151. SCOTUS quickly reminded the NCAA that its dicta did not suggest that courts must reject all challenges to the NCAA’s compensation rules. Id. at 2157. Further, the existence of antitrust violations depends on careful analysis of market realities, which significantly evolved since 1984. Id. , at 2158. The NCAA dramatically increased the amounts and kinds of benefits schools may provide to student athletes, such as increasing the size of permissible benefits incidental to athletics participation. Id. The Court directly addressed Board of Regents ’s key issue by noting the one-billion-dollar difference between what CBS paid for broadcasting March Madness in 1984 ($16 million) versus what it paid in 2016 ($1.1 billion). Id. Thus, given the sensitivity of antitrust analysis to market realities – and the drastic changes in this market since Board of Regents – SCOTUS thought it particularly unwise to treat an aside in Board of Regents as more than that. Id. at 2158.   In rejecting the Board of Regents argument, SCOTUS touched upon a potential explanation as to why the NCAA twice relied upon a sinking ship. One is stare decisis – a favorable SCOTUS decision would render the Nineth Circuit’s admonishment of the Board of Regents argument mute. The explanation addressed in Alston , however, mentions SCOTUS precedent at the heart of many failed attempts for an antitrust exemption: Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs – a 1922 SCOTUS decision regarded as an unrealistic, inconsistent aberration. 259 U.S. 200 (1922); see Alston , 141 S. Ct. at 2159. Like the NCAA, the National League never disputed it operated as a monopoly. It argued that an activity does not turn interstate "merely because people came from another State to do it," and supported its contention by noting Congress did not regulate baseball players’ interstate movement. Fed. Baseball, 42 S. Ct. at 206. Noting this was a case of first impression, SCOTUS found that baseball exhibitions did not implicate the Sherman Act because they did not involve interstate trade or commerce – even though teams regularly crossed state lines (as they do today) to make money and enhance their commercial success. See id. at 465; Alston , 141 S. Ct. at 2159. This extreme judicial deference has since proved elusive for every other league. See Radovich v. National Football League , 77 S. Ct. 390 (1957) (holding that the NFL was not exempt from antitrust law); United States v. International Boxing Club of New York, Inc. 75 S. Ct. 259 (holding that boxing was not exempt from antitrust law). I theorize the NCAA continued to push the Board of Regents argument in hopes that SCOTUS would succumb to its precedent as it arguably did in the wake of Fed. Baseball , despite a litany of precedent holding the contrary. See Toolson v. New York Yankees , 346 U.S. 356 (1953) (determining Congress’s failure to pass legislation subjecting baseball to antitrust law created the exemption, despite no evidence of Congress’s authority to do so); Flood v. Kuhn, 407 U.S. 258 (1972) (determining stare decisis and Congress’s failure to reverse the antitrust exemption required the Court to uphold the reserve clause).   It is worth noting that the Baseball Trilogy touches upon a possible route for the NCAA to obtain its elusive antitrust exemption. This May, Congressmen Russell Fry (R-S.C.) and Barry Moore (R-Ala.) introduced a bill proposing a national liability shield protecting schools, student athletes, and conferences as they navigate the NIL Wild West. Arguably, without such a shield, anyone and everyone whose NIL the NCAA commercially appropriated may seek compensation. Jesse Taylor – a former University of Alabama at Birmingham drum major– requested a copy of EA’s NCAA 25 via X with a photo of his own NIL in NCAA 07. While damming the flood of litigation O’Bannon and Alston produced may determine the NCAA’s chance of survival, American jurisprudence places the NCAA in the same category as thousands of other miffed defendants subjected to what they purport constitutes inequitable judicial decision-making. In short, the NCAA is not above the law.    Keeton Cross is a third-year law student at Cumberland School of Law. She can be found on X @keeton_cross and on LinkedIn (Keeton Cross).

The United States Olympic and Paralympics Committee (USOPC) is suing Logan Paul and KSI’s energy drink company, Prime Hydration, accusing them of trademark infringement. According to the federal lawsuit filed in the District of Colorado, the allegation stems from Prime Hydration unlawfully using trademarked phrases such as, OLYMPIC,” “OLYMPIAN,” “TEAM USA,” and “GOING FOR GOLD” on its product packaging and advertisements. Prime Hydration had a collaboration with NBA star Kevin Durant where they printed “Team USA Kevin Durant Drink,” “Kevin Durant Olympic Prime Drink,” “Olympic Prime Drink,” “Olympic achievements,” and “Durant’s Olympic Legacy.” The USOPC takes trademark infringement very seriously. The committee is responsible for supporting Team USA athletes, meaning athletes are helped financially until they make it to the Olympic or Paralympic Games. The USOPC licenses their trademarks to certain brands, so that they can make money for their athletes. The money from the brands is relied upon heavily to fund Team USA athletes because it does not receive much financial assistance from the federal government. If the USOPC does not protect their trademarks, then brands will feel they do not have to go through the rigorous approval process to be a licensed partner. Thus, without the sponsors, the USOPC will lose lots of money. The USOPC allows official partners and licensees to use USOPC trademarks in recognition of their support for the athletes. These brands must meet strict guidelines. According to the guidelines once approved a brand can use USOPC’s marks for all non-commercial purposes such as;   1.     Business cards 2.     Advertising 3.     Website 4.     Signage for events, clubs, and other preapproved locations When a brand uses a mark the brand must; 1.     Clearly establish that the brand is the official governing body associate with the USOPC 2.     Show the brand is the official partner of the USOPC 3.     Communicate that the brand is a pipeline for future Olympians and Paralympians Unfortunately, Prime Hydration is not an official Olympic and Paralympic sponsor, supplier, or licensee. This means that Prime Hydration should not be allowed to use any of the USOPC’s trademarks. According to the lawsuit, the USOPC feels that the unlicensed use of these trademarks might mislead the public and enable a seller to profit from associating its brand with the Olympics despite no official connection. Prime Hydration has smartly removed the product and advertisement relating to this promotion. Here is the perfect example that no matter how popular the brand is, if they are not a licensing partner then the company cannot use the marks in any way. Recently, all major sports leagues have taken trademark infringement on their licensing marks very seriously because of the money at stake. For example, according to the Broadcast Law Blog, the NFL receives hundreds of millions of dollars from licensing the use of the “Super Bowl” trademark and logo. Even if the brand is small or someone takes out a small ad in their local newspaper, they could still be sued for trademark infringement. The NFL once sent a cease-and-desist letter to a church because they used the term “Super Bowl” to describe a viewing party where they charged people $3 to view. It might seem ridiculous, but leagues cannot afford to lose their brand deals and in essence lose huge amounts of money. Therefore, trademark protection is vital and every company should be aware of the risk of trademark infringement. USPOC guidelines: https://www.usopc.org/commercial-and-brand-usage-guidelines Chris D'Avanzo can be found on Twitter @_chrisdavanzo.

When you think of all the great NFL quarterbacks who have donned the number eight, two of the first names that come to mind are three-time Super Bowl champion Troy Aikman and two-time MVP Lamar Jackson. While the two QBs dominated in different ways, Aikman being a precise pocket passer and Jackson being a dynamic dual-threat, the two are linked by the number on their jerseys. Obviously, Aikman and Jackson never competed against each other on the gridiron. However, a battle appears to be brewing between the two off the field. According to federal records that were reviewed by ESPN’s Michael Rothstein, Jackson recently filed a complaint with the U.S. Patent and Trademark Office challenging Aikman’s use of the number eight. Jackson has filed two appeals against a company by the name of FL101, which lists Aikman as one of the directors.    The appeals claim Jackson "has expended considerable time, effort, and expense in promoting, advertising, and popularizing the number eight in connection with his personality and fame" and "is well-known by this number due to his notoriety and fame, along with his promotion of this number in his trademarks and in media coverage."    Jackson filed a complaint on July 9 seeking to prevent Aikman from using “EIGHT” on apparel and bags, arguing that it is “likely to cause confusion, or cause mistake, or to deceive” consumers as to whether they are buying products in support of Jackson or Aikman. Jackson has applied for several trademarks with phrases related to his jersey number, including “Era 8” and “You 8 yet?” Jackson’s attorney says those trademarks were registered before Aikman’s filings related to “EIGHT.” The two-time MVP and Heisman trophy winner’s legal team believes the products being sold by Aikman are “highly similar in sound, appearance, connotation, and commercial impression” to Jackson’s branding   A company affiliated with Aikman has applied for a total of nine trademark applications for the use of “EIGHT” on a variety of consumer products. Aikman has a beer brand, EIGHT Elite Light Lager, that was honored as the No. 1 new independent beer brand in 2022 and he has been very active in promoting it in recent years.   It might seem odd that a number can be trademarked. No one, of course, can in effect “own” a number. But trademark law permits registration when a number distinguishes a particular product or service. For example, Nike has trademarked the number “23” for hats, T-shirts, sweatshirts, shirts and other clothing in recognition of its relationship to Michael Jordan.    It is not uncommon for athletes to cast a wide net when applying for trademarks, and Jackson has been no exception to that throughout his career. One of the better follows on social media when it comes to intellectual property issues in sports is Josh Gerben, the founder of Gerben IP. In a recent post on X , he detailed that he figures that “the likely outcome is that Jackson and Aikman will find a way to coexist in the marketplace.” Aikman’s company has until Aug. 18 to respond to Jackson’s complaint. Interestingly, the Ravens are scheduled to play on ESPN’s Monday Night Football with Aikman on the call October 21 and November 25 this upcoming season. It’s likely this issue will be put to bed long before then, but it will be fascinating to see if Aikman works in a humorous jab to Jackson during the broadcasts. He already made light of the situation in a recent post on X. Brendan Bell is a rising 2L at SMU Dedman School of Law and is the Southwest Regional Rep on Conduct Detrimental's Law School Student Board. He can be followed on Twitter (X) @_bbell5

This summer’s Premier League transfer window has been relatively quiet, in part due to the CONMEBOL Copa America and UEFA’s European Championship tournaments. [1] While many of the world’s best players were away on international duty, several swap deals quietly became one of the bigger stories of the summer. [2] While American sports fans have grown familiar with the idea of a team trading one player to secure the rights to another, this practice is far less common in the world of soccer. [3] However, due to the Premier League’s changing financial squad-building regulations, the player swap may become a more common occurrence for teams looking to fit their squad under the League's Profit and Sustainability Rules (PSR). The Premier League (as well as UEFA for its European club competitions) have implemented their own “salary cap” regulations for some time now. [4] However, The Premier League agreed upon a “sanctions policy” in August 2023 after fines failed to elicit any significant change in economic restraint. [5] Following the League’s enforcement of the PSR penalties to deduct points in the season standings from Everton and Nottingham Forest, clubs scrambled to comply before the League’s financial year ended June 30th. [6] The League’s PSR are not salary cap rules per se. Unlike American leagues in which salary caps literally limit a team’s player salary expenditures, the PSR and Financial Fair Play (FFP) regulations limit a club’s financial losses. The League defines “PSR Calculation” as “the aggregation of a Club’s Adjusted Earnings Before Tax” for the preceding three years. [7] Earnings Before Tax are a club’s profits or losses after depreciation and interest, [8] whereas “Adjusted Earnings Before Tax” refers to a club’s earnings less costs of: (a) depreciation and/or impairment of tangible fixed assets, amortisation or impairment of goodwill and other intangible assets (but excluding amortisation of the costs of Players’ registrations); (b) Women’s Football Expenditure; (c) Youth Development Expenditure; (d) Community Development Expenditure; (e) in respect of Seasons 2019/20, 2020/21, and 2021/22 only, COVID-19 Costs. [9] While the League’s rules are not explicitly designed to limit player acquisition expenses, those costs represent a massive part of a team’s total expenditures when looking at the entire club as a business. [10] The rules were created partly to prevent clubs from reckless spending and getting into financial trouble, such as Leeds in the late 90s (their conduct spawned the phrase “Doing a Leeds” which refers to financial mismanagement), [11] but the rules have also had ancillary competitive balancing objectives. Under Premier League Rule E.52, clubs that lose more than £15m under the three-year PSR calculation are subject to heightened financial reporting standards. [12] But Rule E.53 is the main driver of the changes to team spending we see now. Notwithstanding adjustments for playing in lower-tier leagues during the three-year PSR window, clubs with losses of in excess of £105m are subject to discipline including the dreaded points deductions. [13] One of the fastest ways for a club to raise money quickly is through transfer fees from selling players. While the benefits of traditional sales may be limited because buyers will prey on a selling club’s need to comply with the spending rules, swap deals might allow for a bit more leeway. When a player is transferred out of a club for a fee, the fee is registered as profit instantly, but when acquiring a player, the expense from the fee is amortized over the contract's life up to five years. [14] Players developed through a team’s academy as seen as “pure profit” because no transfer fees were paid to acquire them. Therefore, swapping academy players in separate deals closely linked can quickly generate short-term profits on the books for both teams. The short-term benefits are not permanent solutions because if the swapped players are later sold at a loss, that is still a loss on the books. But, for a team in need of a quick compliance fix, they can be quite useful. Teams can ensure they are not subject to punishment now and can worry about generating more revenue in the future.  If the regulations were originally created to promote healthy financial positions amongst the League’s members, this sort of salary capology, while legal may not be within the spirit of the regulations. One way the league has sought to combat potentially inflated fees is through its power to make “Fair Market Value Assessments” which examine whether the valuations assigned were within an acceptable range of those expected by clubs negotiating at arm's length. [15] The League is reportedly transitioning towards a new framework influenced by creative accounting measures, the failed Super League initiative, and state-backed ownership groups. The proposed framework comprises two primary components: a squad cost control ratio and an upper spending cap linked to broadcasting revenue. The squad cost control ratio will limit club spending on wages, amortized transfer fees, and agent fees to 85% of revenue (70% for clubs in UEFA competitions) within any given season. [16] Additionally, an upper hard cap will be introduced, restricting spending on wages, transfers, and agent fees to a multiple of the broadcasting revenue earned by the lowest-ranked Premier League club. For example, last season, Southampton earned £103.6 million ($131 million) from television revenue. Under the proposed rules, a multiple of five times that amount, or $653 million, would serve as the cap. [17] This new proposal aims to work in conjunction with the squad cost controls set to be implemented in 2025, replacing the existing Profit & Sustainability rules that led to points deductions for Everton and Nottingham Forest this season. Starting in 2025, teams will be restricted to spending 85% of their total revenue on wages, transfer payments, and agent fees. A Professional Footballers’ Association (PFA) spokesperson has stated that “we will obviously wait to see further details of these specific proposals, but we have always been clear that we would oppose any measure that would place a ‘hard’ cap on player wages.” [18] Given the comparison to American sports, where artificial wage suppressors like salary caps may require collaboration with unions, it makes sense why the PFA has steadfastly asserted its right to be consulted on the matter. In the United States, the non-statutory labor exemption has been a fundamental aspect of labor relations in American sports. [19] This exemption allows for salary caps in exchange for a guaranteed portion of league income. European Union “competition law” and its application by the Court of Justice of the European Union (CJEU), along with U.K. labor law, particularly the Trade Union and Labour Relations Act 1992, [20] could provide a basis for understanding the challenges associated with implementing a salary cap. These legal frameworks could be examined in a future article to explore the potential hurdles a salary cap would need to overcome. Caleb Clifford is a third-year law student at USC Gould School of Law with an interest in labor, employment, and IP law. He was the president of USC’s Sports Law Society and can be found on (X) @Cliffnotes_ and LinkedIn (Caleb Clifford).   [1] https://www.thetimes.com/sport/football/article/premier-league-transfers-latest-deals-3wdffdk5m [2] https://www.cbssports.com/soccer/news/premier-league-transfer-swaps-explained-why-chelsea-aston-villa-and-more-are-selling-players-to-each-other/ [3] https://www.youtube.com/watch?v=gxVctUN1GFM [4] https://www.cnn.com/2014/05/16/sport/football/financial-fair-play-uefa-football/index.html [5] https://www.toffeeweb.com/season/23-24/news/44393.html [6] https://www.skysports.com/football/news/11661/13112071/profit-and-sustainability-rules-premier-league-points-deductions-here-to-stay-for-financial-breaches [7] https://resources.premierleague.com/premierleague/document/2024/03/04/0910e1b3-f94a-41a5-9818-6e1b5c961a9a/PL_Handbook_2023-24_DIGITAL_26.02.24-v3.pdf at 98. [8] Id. at 89. [9] Id. at 80. [10] https://swissramble.substack.com/p/tottenham-hotspur-finances-202223 [11] https://en.wikipedia.org/wiki/Doing_a_Leeds [12] https://resources.premierleague.com/premierleague/document/2024/03/04/0910e1b3-f94a-41a5-9818-6e1b5c961a9a/PL_Handbook_2023-24_DIGITAL_26.02.24-v3.pdf at 134. [13] Id. [14] Id. at 84. [15] Id. at 90. [16] https://www.nytimes.com/athletic/5407740/2024/04/11/premier-league-ffp-rules-new/ [17] https://www.dailymail.co.uk/sport/football/article-13038695/How-Premier-League-team-earned-season-huge-new-TV-deal-created-record-prize-pot.html [18] https://www.espn.com/soccer/story/_/id/40049924/premier-league-clubs-agree-spending-cap-begin-2025 [19] https://www.lw.com/people/admin/upload/SiteAttachments/Nonstatutory-Labor-Antitrust-Exemption-Risk-In-Sports-Unions.pdf [20] https://www.legislation.gov.uk/ukpga/1992/52/contents

Who doesn’t love a pair of Nike Air Jordan 1s made out of a Louis Vuitton bag or the Travis Scott AJ1s made with alligator skin leather. Well, Nike doesn’t. The company has filed a complaint in the S.D.N.Y. against popular L.A. based sneaker customizer Dominic Ciambrone, aka “The Shoe Surgeon.” The complaint alleges that The Shoe Surgeon has engaged in widespread trademark infringement through customizing and creating bespoke Nike shoes, selling counterfeits, and offering kits and classes to make fake Nike shoes. Nike says his work misleads consumers, who might wrongly believe his creations are legitimate Nike collaborations.   Nike seeks to recover “the maximum amount of statutory damages for Defendants’ willful counterfeiting of over 30 Nike trademarks, totaling over $60 million, or the profits Defendants generated from counterfeiting, trebled, along with attorneys’ fees.” Nike also seeks to destroy all the infringing shoes.   The Shoe Surgeon is extremely popular among the sneaker community, celebrities, and professional athletes. His Instagram account alone has over 1.1 million followers. In the past, Nike themselves has commissioned The Surgeon on several occasions. Notably in 2018, Nike obtained Ciambrone to create a custom pair of Nike LeBron 15s to commemorate LeBron James reaching 30,000 career points. Ciambrone adorned the Nike LeBron 15 shoes in 24-karat gold and diamonds valued at $100,000. Then again in 2023, Nike had Ciambrone create a pair of custom Nike Lebron 20s to commemorate Lebron surpassing Kareem Abdul-Jabbar as the NBA’s all-time leading scorer.   The complaint states that “these commissions—limited engagements to commemorate the achievements of one of Nike’s signature athletes—did not give Defendants the unfettered right to use Nike’s marks to customize Nike shoes and manufacture fake “Nike” shoes from scratch, yet that’s exactly what Defendants have done.”   Ciambrone started his career in high school painting white Air Force 1s. Since then, his customization ability has evolved to reconstruct shoes with different leathers and fabrics. His custom pairs can range from $3,000-$30,000. Nike feels he has gone too far by “materially altering” the shoes to the point they can no longer be considered an authorized Nike product, yet still feature Nike trademarks. The Surgeon puts his logo onto the shoe, typically on the tongue, in a Nike-style font alongside Nike’s famous Swoosh. This logo is less prominent, and Nike says creates a “false impression that Nike has entered into a collaboration with Defendants on these products.”   The complaint then highlights The Shoe Surgeon’s practice of creating “unauthorized collaborations” without official endorsement or affiliation. Some examples included using Nike’s shoes in his collaborations with Celsius, Wingstop, Ruffles, and eBay. Nike says this is likely to confuse consumers into thinking that Nike themselves are collaborating with these brands. He also often uses patterns or designs made popular by luxury brands such as Dior, Louis Vuitton, and Gucci, who either have separate collaborations with Nike or none at all. This suit comes one month after French fashion brand Goyard filed a trademark infringement suit against The Shoe Surgeon for customizing Nike shoes with a pattern that closely resembles Goyard’s interlocking Ys and dots pattern.   Nike also complains that The Shoe Surgeon Academy teaches students in their 3-4 day classes not only how to deconstruct Nikes for customization, but also how to construct Nike shoes from scratch, which Nike deems are “counterfeit.” Amongst the products offered for sale in the “SRGN Creator Store” is The Shoe Surgeon Starter Bundle for Air Jordan 1 which “includes all the must-have tools and materials to create your own pair of custom AJ1s.”   For determining trademark infringement, the court will look to whether there is a likelihood of confusion among a reasonably prudent purchaser of the products at issue. Some general factors that are considered are: 1. Strength of the plaintiff's mark 2. Relatedness of the goods or services 3. Similarity of the marks 4. Evidence of actual confusion 5. Marketing channels used 6. Likely degree of purchaser care 7. Defendant's intent in selecting the mark 8. Likelihood of expansion of the product lines   The Shoe Surgeon will likely assert defenses such as fair use, having an implied license to customize shoes based on past collaborations with Nike, and the asserting exhaustion rule. The exhaustion rule means once a trademark holder sells their product, the buyer is free to resell the goods without permission. While I believe The Surgeon has some legitimate arguments for purely customizing already-made Nike shoes, he likely will have a tough time arguing constructing shoes from scratch for commercial sale is not trademark infringement.   Nike says they are not anti-customization, they just want it to be done within “Nike-controlled parameters” such as Nike I.D. After filing the complaint, Nike released a statement saying that they do “not have any issues with the limited, one-of-one customization he’s been doing for us or his clients, when allowed under Nike-sponsored athletes’ contracts. In fact, we value opportunities for our athletes, consumers and partners to express themselves through their own style and creativity.” This translates to Nike being okay with customizing when they give consent.   How this will affect smaller customizers who use Nike shoes as a canvas to paint on and customize is unclear. However, selling a customized shoe that features another brand's logo or trademark, or creating your own Nike shoe from scratch is clearly against Nike’s wishes. Depending on the outcome of this case, shoe customizers may have to be more cautious with their designs, meaning not being able to “Just Do It.”   For those wanting to track the case on Bloomberg Law: Nike Inc. v. S2, Inc. d/b/a The Shoe Surgeon et al . , S.D.N.Y., 1:24-cv-05307, complaint filed 7/15/24.   Andrew Gagnon is a rising 3L at the University of Kansas School of Law where he is a representative in the Student Bar Association and President of the Sports Law Society. He can be found on Twitter @A_Gagnon34 and LinkedIn as Andrew Gagnon .