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

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

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

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

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

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

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

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

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

I. Introduction State legislation has varying opinions on college athletes’ publicity rights, also known as Name, Image, and Likeness (NIL) rights. Currently, the state of Mississippi is employing the most effective use of NIL state legislation. Furthering Justice Brandeis’ view of states as the laboratories of democracy, such states along with the NCAA are in a phase of analytical testing. This brief seeks to show that the state of Mississippi and its approach to NIL rights can help inform the federal push for a NIL bill. II.   History of the NCAA In 1905, President Theodore Roosevelt, a longtime football fan, called together athletics leaders from some of the top football schools and urged them to clean up the game.[1] The NCAA was founded in 1906 to regulate the rules of college sport and protect young athletes.[2] After World War II, the NCAA adopted principles that covered financial aid, recruitment, and academic standards with the intention to ensure amateurism in college sports.[3] In June 2021, governance bodies adopted a uniform interim policy suspending NCAA NIL rules for all incoming and current college athletes in all sports.[4] Over decades, the NCAA has become a sprawling enterprise.[5] The NCAA’s current broadcast contract for the March Madness basketball tournament is worth $1.1 billion annually.[6] The NCAA television deal for the Football Bowl Subdivision (FBS) conference’s College Football Playoff is worth approximately $470 million per year.[7] In 2017, the total revenue of the Southeastern Conference (SEC) exceeded $650 million, making more than $409 million from television contracts alone.[8] The president of the NCAA earns nearly $4 million per year.[9] Commissioners of the top conferences take home between $2 to $5 million. College athletic directors average more than $1 million annually.[10] Annual salaries for top Division I college football coaches’ approach $11 million, with some of their assistants making more than $2.5 million.[11] Prior to 2021, everyone involved in college athletics received generous compensation, except for the athletes themselves. III.  Evolution of NIL Rights In 1984, the Supreme Court in NCAA v. Board of Regents discussed NCAA violations under 15 U. S. C. § 1.[12] Section one of the Sherman Act states, every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.[13] Although Board of Regents discussed the authority of NCAA policies and regulations in connection with television plans, the Supreme Court provided the guidelines for claims made against the NCAA in connection with the Sherman Act. The Supreme Court explained that the Sherman Act is intended to prohibit only unreasonable restraints of trade.[14] In addition, the Supreme Court provided that an unreasonable restraint of trade may be based either (1) on the nature or character of the contracts or (2) on surrounding circumstances giving rise to the inference or presumption that they were intended to restrain trade (also known as “the rule of reason”).[15] In 2015, NIL violations by the NCAA under the Sherman Act were discussed by the Supreme Court in O’Bannon v. NCAA[16], when a former UCLA basketball star Ed O’Bannon filed a federal lawsuit against the NCAA over whether Division I men’s basketball and football players ought to be compensated for the commercial use of their NIL (in video games).[17] In 2019, Senator Chris Murphy released a report supporting the push in NIL rights, stating that college sports are an American tradition because of the college athletes, but these college athletes deserve more than our fanhood.[18] Senator Murphy argued for a system that guarantees a meaningful education as well as financial security.[19] Finally, Senator Murphy advocated for a system that respects college athletes’ contribution and dedication.[20] Recently, in NCAA v. Alston, the Supreme Court discussed NCAA violations under section one of the Sherman Act in reference to the use of college athletes’ NIL rights. Using the rule of reason, the Supreme Court decided that NCAA restraints were stricter than necessary to achieve demonstrated procompetitive benefits and declared a violation of the Sherman Act.[21] The Supreme Court made clear that the decades-old comments about college sports and amateurism made in NCAA v. Board of Regents have no bearing on whether the NCAA’s current compensation rules are lawful.[22] Concurring, Justice Kavanaugh stated that the NCAA’s business model would be flatly illegal in almost any other industry in America.[23] IV.  Mississippi’s Approach to NIL As of July 1, 2021, all NCAA athletes are able to profit from their NIL after the governing bodies from all three NCAA divisions voted to approve the interim NIL policy.  College athletes still have to adhere to NIL rules in their specific states but can profit from sponsorships and endorsements.[24] On April 16, 2021, Mississippi Governor Tate Reeves signed into law 2020 Bill Text MS S.B. 2313 (2021) (“Bill 2313”), allowing college athletes in the state of Mississippi to receive compensation for the use of their NIL.[25] Mississippi’s NIL law is rather strict in comparison to other states’ NIL laws.[26] Mississippi universities are allowed to place limitations on when their college athletes can participate in endorsement-related activities, have sole control over what athletes wear during a sponsored event, and require their athletes to notify their university of any NIL transaction within three days of the agreement coming into effect.[27] Bill 2313 speaks to the necessity of a bill passed at the Federal level.[28] What made Mississippi unique was the direct mention of boosters in particular.[29] Mississippi took a step further in 2022 with the passage of 2020 Bill Text MS S.B. 2690 (2022) (“Bill 2690”), allowing schools in the state to be involved in athletes’ NIL deal conversations.[30] The University of Mississippi (Ole Miss) has enhanced their partnership with INFLCR, a sports social media and education platform, to create Next Level.[31] Next Level is a holistic platform on which Ole Miss college athletes can create content and boost their following.[32] Bill 2690 provides that individuals or entities may “collectively” license publicity rights in exchange for compensation to student athletes.[33] Thus, The Grove Collective was founded, ensuring that NIL is done right by the law and right by Ole Miss student athletes.[34] V. The University of Mississippi and The Grove Collective The University of Mississippi aids student-athletes through their Next Level Exchange, which exists to equip Ole Miss college athletes with the resources to build their personal brand, expand their professional network, and navigate NIL opportunities.[35] Next Level provides (1) streamline payments and reporting, (2) consolidated tax documentation, (3) no transaction fees, and (4) no deal facilitation.[36] College athletes may not enter into a contract for use of their NIL that uses the licensed marks or logos of the University unless the University has provided written permission in advance of signing the NIL contract.[37] In compliance with Bill 2690, which provides that individuals or entities may collectively license publicity rights, The Grove Collective was formed. The Grove Collective markets college athletes’ businesses, provides contracts for use, assists with accounting and taxation, and fulfills the compliance disclosure required by Ole Miss.[38] Executive of The Grove Collective, Walker Jones, stated that the relationship between Ole Miss and The Grove Collective is a team effort, and the Vice Chancellor for Intercollegiate Athletics, Ole Miss coaches, Ole Miss administration, and the university added validity.[39] The Grove Collective has recently expanded into soccer, volleyball, and track and field, in addition to baseball, football, and men’s and women’s basketball.[40] Walker Jones stated that the collective is trying to branch out and assist as many of the athletes as they can.[41] VI. Key Factors of The Grove Collective: William Liston and Walker Jones The Grove Collective was founded at the end of 2021 by attorneys William Liston and Mac McDonald.[42] Liston was involved in helping write the Mississippi state legislation of NIL and had a good understanding of what was required and what the state would allow.[43] Liston raised his hand to form a third-party collective to provide an NIL platform for Ole Miss college athletes per Mississippi statute.[44] The goal was to create an entity that seeks to leverage and capitalize on the commercial value that college athletes create at Ole Miss and utilize that value to build a program that serves the best interests of Ole Miss college athletes.[45] Liston emphasizes three portions of Mississippi’s NIL bill: (1) the importance of amending Bill 2313 to include the term “collective,” (2) the provision against NCAA penalization, so long as college athletes are following Mississippi statute, and (3) the provision which grants collectives to cooperate with their respective universities. Liston has exhausted these points of emphasis in the Mississippi statute; however, he continues to advocate for protection from the transfer portal. There are many potential remedies for the harm caused by the transfer portal, including buyout clauses or guaranteed contracts to protect collectives and universities. NIL and transfer portal issues will continue to affect one another. The executive of The Grove Collective, Walker Jones, has played a crucial role in its recent development. Jones stated that to make money from NIL college athletes need opportunities.[46] Jones explains that The Grove Collective works separately but in tandem with Ole Miss, providing college athletes with exposure to opportunities and counseling on deals.[47] In comparison to other states and universities, Jones feels blessed to have a very advantageous state statute that gives The Grove Collective the ability to have a lot of creativity and a lot of coordination with the Ole Miss.[48] As an alumni and former player of the Ole Miss football team, Jones is in the best position to consider all approaches and issues that college athletes may encounter with NIL opportunities. VII. Conclusion As one of the many states to adopt an NIL bill, the state of Mississippi has continued to prove why it created the most effective NIL bill today. The University of Mississippi and The Grove Collective have played a major role in contributing to this outcome. To help inform the federal push for an NIL bill, legislation should consider the approach used by the state of Mississippi in forming the most effective NIL bill. Nolan Forthaus is the third-place winner of the 2023 Conduct Detrimental NIL Writing Competition. He is currently a 2L at Saint Louis University School of Law. He graduated with a Bachelor's Degree in Economics from The University of Mississippi in 2022. References: [1] NCAA, History, https://www.ncaa.org/sports/2021/5/4/history.aspx, (2023). [2] Id. [3] Id. [4] Id. [5] NCAA v. Alston, 141 S. Ct. 2141 (2021). [6] Id. [7] Id. [8] Id. [9] Id. [10] Id. [11] Id. [12] Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85, 104 S. Ct. 2948 (1984). [13] 15 U. S. C. § 1. [14] Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85 (1984). [15] Id. at 103. [16] O'Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015). [17] Michael McCann, In denying O'Bannon case, Supreme Court leaves future of amateurism in limbo, https://www.si.com/college/2016/10/03/ed-obannon-ncaa-lawsuit-supreme-court, (Oct. 3, 2016). [18] Chris Murphy, How everyone is getting rich off college sports – except the players, https://www.murphy.senate.gov/imo/media/doc/NCAA%20Report_FINAL.pdf, (Mar. 27, 2019). [19] Id. at 14. [20] Id. at 14. [21] NCAA v. Alston, 141 S. Ct. 2141 (2021). [22] NCAA v. Alston, 141 S. Ct. 2141 (2021) (Kavanaugh, J., concurring). [23] Id. [24] Id. [25] Icon Source, State of Mississippi NIL Laws: What College Athletes and Businesses Need to Know, https://iconsource.com/mississippi-nil-laws/, (Feb. 2, 2022). [26] Id. [27] Id. [28] Id. [29] Braly Keller, NIL Incoming: Comparing State Laws and Proposed Legislation, https://biz.opendorse.com/blog/comparing-state-nil-laws-proposed-legislation/, (May 25, 2023). [30] Id. [31] Id. [32] Id. [33] The Grove Collective, About The Grove Collective, https://thegrove collective.com/about/, (2023). [34] Id. [35] Ole Miss Athletics Foundation, Next Level, https://givetoathletics.com/nil-home-page/, (2023). [36] Id. [37] Ole Miss Athletics Foundation, Frequently Asked Questions for Businesses, https://givetoathletics.com/nil-faqs/, (2023). [38] The Grove Collective, About The Grove Collective, https://thegrove collective.com/about/, (2023). [39] Donna Sprabery, Exciting things on the horizon: Walker Jones discusses the progress of The Grove Collective, new opportunities coming for fans, https://therebelwalk.com/2022/12/exciting-things-on-the-horizon-walker-jones-discusses-the-progress-of-the-grove-collective-new-opportunities-coming-for-fans/, (Dec. 12, 2022). [40] Id. [41] Id. [42] David Johnson, The Grove Collective executive director Walker Jones answers questions about major Ole Miss NIL, https://247sports.com/college/ole-miss/article/the-grove-collective-executive-director-walker-jones-answers-questions-about-major-ole-miss-nil-initiative-194791552/, (Oct. 5, 2022). [43] Id. [44] Id. [45] Parrish Alford, Ole Miss group announces business to aid NIL opportunities, https://currently.att.yahoo.com/news/ole-miss-group-announces-business-133200984.html, (Jan. 23, 2022). [46] Donna Sprabery, A Visit with Walker Jones: NIL and The Grove Collective’s Journey to Streamline the Process, https://therebelwalk.com/2022/10/a-visit-with-walker-jones-nil-and-the-grove-collectives-journey-to-streamline-the-process/, (Oct. 20, 2022). [47] Id. [48] Id.

I. Introduction While the National Collegiate Athletic Association’s (NCAA) guidance and state law are fairly new, the discussion on Name, Image, and Likeness (NIL) has been prevalent in the college athletics landscape for many years. From O’Bannon v. NCAA, to California’s passing of the “Fair Pay to Play Act” in 2019, the NCAA doubled down on their stance towards amateur sports and student-athletes' compensation.[1] After months of back and forth regarding student-athletes’ right to market their own NIL, the NCAA threw their hands up, told their members to follow state laws and provided guidance for those members who did not have state laws on July 1, 2021. [2] At the core of the NCAA’s guidance, they instructed that there shall be no inducements for pay for play, no recruiting inducements, no institutional involvement, no conflict with Team Activities, no institutional trademarks, and no resale of memorabilia.[3] The policy also created agent protocols and included several disclosure requirements.[4] Hailed as one of the least restrictive NIL laws in the country, Missouri has taken an innovative approach in allowing student-athletes to utilize their own NIL, and influencing the rest of the country. II. Legal Background After the Supreme Court ruled in NCAA v. Alston, that the NCAA’s current practice of limiting “non-cash education related benefits” and limiting the type of compensation student-athletes could earn was a clear violation of antitrust rules, the NCAA essentially gave up its fight to stop NIL.[5] The court noted that “…the NCAA’s justification for its remaining rules — that they enhance collegiate athletics by distinguishing them from professional sports — impermissibly balances harm in the labor-side market against benefits in the consumer-side market,” versus the benefits gained by the student-athletes.[6] While the decision did not discuss student-athlete NIL restrictions, the NCAA realized after a stern warning from Justice Brett Kavanaugh reminding them, “that the NCAA was not above the law.”[7] The NCAA essentially gave up and adopted their Interim NIL Policy from the Division I Council Working Group for member-schools that had no state law one day prior to state law being enacted across the country.[8] Stressing multiple times throughout the policy, the NCAA’s interests were to continue to follow “…current NCAA rules regarding recruiting and pay-forplay…” to reinforce the ideas of fairness and integrity. While the three-page policy asked more questions than providing answers, states like Missouri found it imperative to pass their own state law. A. 2021 Missouri NIL Law In response to the new NCAA guidelines, Missouri legislators passed initial guidance in 2021.[9] House Bill 297, initially allowed student-athletes, “…to garner compensation for the issue of their name, image, and likeness rights as well as athletic reputation without hindering their ability to fully participate in athletics or receive grants and stipends…”, while also being able to hire professional representation in relation to NIL deals.[10] The provision also gave protection to the institutions, by not allowing student-athletes to enter into contracts with competition companies of existing sponsors, for immoral products, and not allowing students to use school marks and logos. B. 2022 Amendment Missouri realized quickly that they needed an amendment to current state law to “keep up with the Joneses” and passed a new NIL bill on June 16, 2022.[11] The bill went into effect on August 28, 2022, and allowed for Missouri Institutions to be more hands-on with their student-athletes.[12] The key change to the former law was the allowance of more involvement from the institution during the NIL process.[13] Schools were now allowed to facilitate deals and provide annual financial development programs.[14] While the 2022 amendment gave more flexibility to schools, the real benefit occurred during the 2023 amendment. C. 2023 Amendment In response to NIL laws being passed in Texas, Alabama and other parts of the country, Missouri lawmakers opted to go back to the drawing board in year three.[15] In July 2023, Missouri Governor Mike Parsons amended current state law for the third time, which included ways to bypass NCAA NIL oversight.[16] Beginning on August 28, 2023, college coaches could now have a more active seat at the NIL table, allowing the Tiger Fund[17] to be actively involved in fundraising instead of as a third-party collective, allowing the use of school logo and marks, and allowing Missouri High School student-athletes to start profiting of their own NIL.[18] Now coaches can participate in NIL meetings where the 2022 amendment only allowed them to only facilitate deals. However, coaches are not allowed to receive compensation for facilitating these deals.[19] For the first time, high schoolers are now able to join in and profit from their own endorsement deals. The major catch is “as long as they sign a letter of intent to attend a public university in Missouri.”[20] State Representative Kurtis Gregory stated that this new rule could “incentivize some of Missouri’s top talent to remain in their home state, helping to “close down the borders and keep Missouri’s best athletes in the state of Missouri.” An exact example of a recruiting inducement that the NCAA wanted to avoid. Interestingly enough, the Show-Me state laxed its amendment in favor of the boosters. With the passage, the Tiger Fund is now allowed to directly fundraise for NIL instead of through a third-party collective.[21] Now Boosters can donate directly to student-athletes and receive a tax deduction.[22] Finally, student-athletes are allowed to wear team gear, and use school marks in logos in advertisements.[23] While the amendment has been praised, the third passage included a roadblock. Part of the amendment reads “[t]he provisions of this section shall not be construed to qualify a student athlete as an employee of a postsecondary educational institution.”[24] For the most part, the Show-Me State’s NIL bill was almost the exact opposite of what the NCAA envisioned, however the part of the bill regarding student-athletes not being employees leans into the NCAA’s current stance on employment for student-athletes. III. NCAA Compliance and NIL While schools still have to follow NCAA Compliance Rules in order to compete, however, state law will still trump NCAA legislation. However, the NCAA is trying to assert its control in a few by-laws. NCAA Compliance and Enforcement The NCAA’s stance on Pay-For-Play is shown in By-Law 16.02.03 which requires student athletes to not accept extra benefits while participating in intercollegiate athletics.[25] In terms of NIL, student-athletes are not supposed to enter into contracts where they are not providing a service in return. In October 2022, the NCAA adopted By-law 19.7.3 which discusses Violations Presumed in Select Cases. [26] In cases involving NIL, the infractions process “…shall presume a violation occurred if circumstantial information suggests that one or more parties engaged in impermissible conduct. The enforcement staff may make a formal allegation based on the presumption. The hearing panel shall conclude a violation occurred unless the institution or involved individual clearly demonstrates with credible and sufficient information that all communications and conduct surrounding the name, image and likeness activity complied with NCAA legislation.”[27] Unlike any other violation, the member-school has to produce evidence that the NIL violation did not occur. [28] Even in the simplest criminal case, the presumption is innocent before proven guilty. In enacting By-law 19.7.3, the NCAA is trying its best to assert what little control they have over NIL. IV. Why College Athletics Needs a Federal Bill If the NCAA wants to regulate NIL in a way that promotes “fairness, integrity, and sportsmanship,” then it’s time to work with Congress to enact Federal Legislation.  The Missouri rule in particular has been a source of contention around the country.[29] Coaches nationwide have argued that the bill has created an uneven playing field and creating a competitive disadvantage.[30] While many of these schools have large athletic budgets and have their own state laws, there is an argument that the newest amendment was purely made for recruiting purposes and goes completely against NCAA NIL Policy. The Missouri law allows everything that the interim policy did not. States are willing to show the NCAA that they do not care about their policies and will enact rules to keep the NCAA from acting on its policy. Currently, no state law mirrors another, each state legislator is trying to outdo the other. If the NCAA is serious about creating a level playing field, they need to work on creating a bill that is uniform, and reasonable on restraint. Student-athletes should be able to pick the school they want to attend versus picking the school that can give them the most NIL money. If the NCAA is truly about creating a landscape where fairness, integrity, and proper recruiting tactics are paramount, they’ll take a look at all the state NIL laws and work with Congress to enact a law that encompasses the student-athletes right to publicity while protecting their own goals. University of Missouri Head Coach Eli Drinkwitz put it best: “Until there’s a uniform rule or a standard rule in place, then every institution and university, as well as state, is privileged to do what they believe is in the best interest of their student-athletes and their citizens,” in a program presser.[31] V. Conclusion Many strides have been made in allowing student-athletes to profit off of their own NIL, but more can be done. If the NCAA wants to hold on to their justification told in Alston, “that college athletes should not be paid because the distinguishing feature of college athletics is that college athletes are not paid,” then the NCAA needs to work with Congress to create a bill that not only benefits the student-athletes but also encompasses the rules they treasure so much.  Specifically, the Missouri state law is an example of how state legislators don’t care about the NCAA policy and want to put their student-athletes first. The NCAA should follow suit. Brittany Archer is the second-place winner of the 2023 Conduct Detrimental NIL Writing Competition. She is currently a 2L at the University of Missouri School of Law, and she earned her B.S. from the University of Texas in 2021. Additionally, she earned her M.S.A. from Ohio University in 2022. References: [1] Anthony M. Dalimonte, NIL Timeline: The Events that Transformed College Sports, https://www.fosterswift.com/communications-timeline-NIL-cases-transform-college-sports.html [2] Id. [3] Mizzou Athletics, Mizzou NIL Regulations & Guidelines, https://mutigers.com/sports/2022/12/28/mizzou-nilregulations-guidelines [4] Mizzou Athletics, Mizzou NIL Regulations & Guidelines, https://mutigers.com/sports/2022/12/28/mizzou-nilregulations-guidelines [5] Tamara H. Bennett, NCAA V. ALSTON, 2022 TXCLE-AIP 11-III, 2022 WL 657144 [6] Sherman Act – Antitrust Law- College Athletics – NCAA v. Alston, 135 Harv.L-Rev.471, https://harvardlawreview.org/print/vol-135/ncaa-v-alston/,(2021). [7] Bennett, NCAA V. ALSTON, 2022 TXCLE-AIP 11-III, 2022 WL 657144; Natl. Collegiate Athletic Assn. v. Alston, 141 S. Ct. 2141 (2021). [8] NCAA Interim NIL Policy, NCAA (Jul. 2021), https://ncaaorg.s3.amazonaws.com/ncaa/NIL/May2022NIL_Guidance.pdf [9] Kaitlyn Schallhorn, Missouri to allow student-athletes to profit off of likeness, (July 13, 2021), https://themissouritimes.com/missouri-to-allow-student-athletes-to-profit-off-of-likeness/. [10] Id. [11] Kurt Erickson, Parson Signs New Missouri NIL Law for Student Athletes, ST. LOUIS POST-DISPATCH (June 16, 2022), https://www.stltoday.com/news/local/govt and-politics/parson-signs-new-missouri-nil-law-forstudentathletes/article_bf80ea48-a278-5495-8f0c-2dd127f7e9b5.html [https://perma.cc/NF3K-EMDN]. [12] Id. [13] Tyler Kraft, Pay-for-Play(ers): Missouri’s Recent NIL Amendment Is a Solid Blueprint for Federal NIL Regulation, 88 MO. L. REV. (2023), https://scholarship.law.missouri.edu/mlr/vol88/iss2/13. [14] Id. [15] See Darren Heitner, The New Race by States to Remove NIL Restrictions on College Athletics, (April 27, 2022), https://abovethelaw.com/2022/04/the-new-race-by-states-to-remove-nil-restrictions-on-college-athletes/ [16] Eric Prisbell, Examining the NCAA’s aggressive push for federal NIL laws, (September 25, 2023) https://www.on3.com/nil/news/ncaa-aggressively-pushes-for-federal-nil-bill-corey-booker-lindsey-graham-tommytuberville-joe-manchin/ [17] The Tiger Fund is the University of Missouri-Columbia’s Fundraising arm of the athletic department. [18] Dave Matter, Missouri lawmakers revise state's NIL law, expand college coaches' role in negotiations, (May 9, 2023), https://www.stltoday.com/sports/college/mizzou/missouri-lawmakers-revise-states-nil-law-expand-collegecoaches-role-in-negotiations/article_56ee420a-ee95-11ed-bbf8-077630df774d.html. [19] Missouri Western University, Name, Image and Likeness Information, https://gogriffons.com/sports/2021/7/8/name-image-likeness-information (last visited November 9, 2023). [20] Liam Knox, Missouri to Open NIL Profits to High Schoolers, (July 18, 2023), https://www.insidehighered.com/news/quick-takes/2023/07/18/missouri-law-will-open-nil-profits-highschoolers#:~:text=Missouri%20to%20Open%20NIL%20Profits%20to%20High%20Schoolers&text=The%20law%20will%20allow%20athletes,a%20public%20university%20in%20Missouri. [21] Id. [22] Id. [23] MO. REV. STAT. ANN. § 173.280, (2023), https://revisor.mo.gov/main/OneSection.aspx?section=173.280 [24] MO. REV. STAT. ANN. § 173.280 [25] NCAA, DIVISION I MANUAL BYLAW 16.02.3, https://web3.ncaa.org/lsdbi/search/bylawView?id=33406#result, (last visited Nov. 7, 2023). [26] Monica Matias, NIL Enforcement Actions are Here: How Can Institutions Prepare for Possible NIL Enforcement Actions?,https://www.jdsupra.com/legalnews/nil-enforcement-actions-are-here-how 1632284/; see also NCAA, DIVISION I MANUAL BYLAW 19.7.3 https://web3.ncaa.org/lsdbi/search/bylawView?id=126324#result ( last visited Nov 7, 2023). [27] NCAA, DIVISION I MANUAL BYLAW 19.7.3, https://web3.ncaa.org/lsdbi/search/bylawView?id=126324#result,(Nov 7, 2023). [28] Matias, https://www.jdsupra.com/legalnews/nil-enforcement-actions-are-here-how-1632284/. [29] On 3 Staff Report, Eli Drinkwitz says Missouri’s new NIL law is ‘in the best interest of the state of Missouri’,(Aug. 30, 2023),https://www.on3.com/college/missouri-tigers/news/eli-drinkwitz-says-missouri-new-nillaw-in-the-best-interest-in-the-state/. [30] On 3 Staff Report, https://www.on3.com/college/missouri-tigers/news/eli-drinkwitz-says-missouri-new-nil-lawin-the-best-interest-in-the-state/. [31] On 3 Staff Report, https://www.on3.com/college/missouri-tigers/news/eli-drinkwitz-says-missouri-new-nil-lawin-the-best-interest-in-the-state/.

State laws that allow student-athletes to receive compensation from licensing their name, image, or likeness (“NIL”) were introduced to benefit student-athletes and remedy a longstanding regime that allowed colleges and universities to extract a financial windfall at student-athletes’ expense.[1]  These laws are flawed, however.  In only two years, we have seen multiple examples of high-profile student-athletes agreeing to exploitative or sham NIL contracts.  One way to prevent student-athletes from signing similar NIL contracts in the future is to include strict reporting requirements in a federal NIL law. NIL Laws Have Exposed Student-Athletes to New Forms of Exploitation On July 1, 2021, bills that allowed student-athletes to earn compensation from licensing their name, image, and likeness went effective in multiple states, including California, Texas, and Florida.  These bills have empowered student-athletes and provided unprecedented financial opportunity.  Somewhat paradoxically, though, these laws also created new ways for studentathletes to be exploited.  Indeed, in the less than three years since their enactment, multiple highprofile student-athletes have agreed to troubling NIL contracts. Gervon Dexter, Sr. and Jaden Rashada are two such examples. Gervon Dexter, Sr. was a defensive tackle at the University of Florida from 2020 to 2022.  Dexter was drafted in the second round of the NFL Draft by the Chicago Bears, and signed a fouryear, $6.72 million contract. On September 1, 2023, Dexter filed a complaint (the “Complaint”) against Big League Advance Fund II, L.P.  (“BLA”) in the United States District Court in the Northern District of Florida seeking to invalidate an NIL contract he had entered into with BLA, a company that markets itself as “Investing in the careers of athletes to empower them to achieve their dreams:  making it to the next level.”[2]  The Complaint alleges that in May 2022, when he was 20 years old, Dexter entered into an NIL contract with BLA after a BLA agent offered Dexter a “6 figure financial/NIL opportunity.”[3]  According to the Complaint, the NIL contract required BLA to pay Dexter $436,485.00.[4]  In exchange, BLA was authorized to use Dexter’s name, image, and likeness and athletic reputation in connection with BLA’s own business from the effective date of the agreement to twenty-five years after the NFL Draft.[5]  Dexter was allegedly obligated to pay BLA fifteen percent of his pre-taxed NFL earnings for twenty-five years – essentially guaranteeing BLA fifteen percent of Dexter’s earnings for his entire NFL career.[6]  After only one contract in the NFL, Dexter already owed BLA over $1 million.[7]  The Complaint seeks a judgment that Dexter’s NIL contract is null and void because it violates multiple provisions of the Florida NIL statute.[8] Jaden Rashada is another example of a student-athlete entering into a concerning NIL contract.  In October 2022, Rashada had reportedly committed to the University of Florida and entered into a $13.85 million NIL contract with the Gator Collective, a collective not affiliated with the University of Florida’s athletic department.[9] In exchange, Rashada agreed to make a certain amount of social media posts, attend events, and autograph merchandise.[10] Notably, the Gator Collective had never promised a student-athlete anything near $13.5 million before.[11] The first payment was due to Rashada on December 5, 2022.[12]  The Gator Collective did not make the payment and terminated the NIL contract with Rashada a few days later, before Rashada enrolled at the school.[13]  It was later reported that the Gator Collective did not have the money due under the Rashada NIL contract.[14]  After the university released Rashada from his letter of intent, Rashada ultimately left the University of Florida and enrolled at Arizona State University. Dexter and Rashada suffered distinct, but foreseeable harms that may befall other studentathletes who sign NIL contracts.  On one hand, Dexter may lose millions of dollars over the course of his NFL career.  Without protection and access to information, young student-athletes, inexperienced in reading or negotiating sophisticated agreements, may suffer a similar fate because their tremendous earning power attracts nefarious actors looking to hoodwink an unsuspecting student.  Even seemingly unfair contracts are difficult to nullify, so arming student-athletes with information before they sign is critical. [15]  By contrast, Rashada’s story highlights harms that student-athletes can suffer under NCAA transfer rules, which force students who are transferring to a second four-year school to sit out a year. Fortunately, Rashada’s NIL deal was terminated before the deadline to enroll in classes, and the University of Florida released Rashada from his letter of intent, so he did not need to transfer to Arizona State.  However, future student-athletes may not be so lucky – they may have to use a “free transfer” or even sit out a year if their NIL sponsor backs out of a deal. Certain States Have Adopted Reporting Requirements that may Protect Student-Athletes Gervon Dexter, Sr. and Jaden Rashada may not have entered into sham and potentially illegal NIL contracts if reporting requirements had been in effect, and they had access to information about other NIL contracts college athletes had entered into.  For example, if Dexter had access to a database of information about NIL contracts, Dexter may have realized that the terms of his particular contract – specifically, the requirement that he provide 15% of all his future NFL earnings to BLA – were not “market” and potentially violated NIL laws.  Furthermore, if Jaden Rashada or his representatives had known that other NIL contracts the Gator Collective had signed were for far less than $13.5 million, he may have questioned whether the Gator Collective had the means to pay him. Certain states have already attempted to address these issues by establishing reporting requirements for NIL contracts.  Texas’s law governing NIL contracts requires a student-athlete who attends school in Texas to disclose to his or her school “any proposed contract the studentathlete may sign for use of the student-athlete’s name, image, or likeness” before entering into the contract.[16] The NIL law that Florida enacted in 2021 required students to disclose any NIL contracts to their college or university and prohibited NIL deals that lasted longer than a studentathlete’s participation in a school athletic program.[17]  Surprisingly, those specific provisions were removed in the 2023 amendment to Florida’s NIL law.[18] These laws are a step in the right direction, but they fall short in myriad ways.  For instance, some of these laws require students to provide NIL contracts to the schools before they are signed.  But the laws do not establish the schools’ powers or obligations to review or revise the contracts.  These laws also do not require the schools to compile or disseminate information about the NIL contracts once they have been signed, including the services provided and the compensation received by the student-athletes.  That information is critical for increasing transparency into these negotiations and establishing market terms and value for services provided by student-athletes. Even if these state NIL laws did require the schools to do so, students would only have access to that information on school-by-school basis, creating a substantial burden on student-athletes to aggregate such information from across the state, without mentioning the country.  Additionally, these laws do not make clear how the schools or the students would be penalized for violations, or who would enforce such penalties. A Federal NIL Law Should Adopt Detailed Reporting Requirements and Establish a National Clearinghouse The current patchwork of reporting requirements in state NIL laws provides studentathletes with incomplete access to information, and therefore leaves them vulnerable.  Even if every state enacted an NIL law containing effective reporting requirements with actionable enforcement policies, a federal NIL law would have at least two additional benefits for student-athletes.  First, the enforcement of the federal NIL law would be left to one body and thus more consistent.  Second, a federal NIL law requiring the dissemination of information about NIL deals would provide a complete view into market value and terms.    Therefore, a federal NIL law should expand upon the reporting requirements of certain state NIL laws and establish a national clearinghouse. Specifically, a federal NIL law should require student-athletes to submit all NIL contracts to their respective schools.  The law should require the schools, in turn, to submit those NIL contracts (with no identifying personal information) to a national clearinghouse run by an independent entity, which the federal law should also arm with the power to investigate and enforce violations of the federal NIL law.  The federal NIL law should require the clearinghouse to maintain a public database of all NIL contracts and publish a semi-annual report of all NIL contracts entered into during the prior six months.  The database and report should include all the essential provisions of the NIL contracts, including, but not limited to, (i) services provided by the student-athletes; (ii) compensation received by the student-athletes; and (iii) duration of the contract. This type of law would make transparent an otherwise opaque market, which, in turn, should help establish market terms and value for services by student-athletes; reduce the risk that schools, boosters, and collectives will offer contracts they cannot fulfill; and, ultimately, protect student-athletes from exploitation. Some of the federal NIL bills that have been introduced already include aspects of this proposal by requiring student-athletes to disclose NIL deals or establishing a national clearinghouse for NIL contracts. •   The Fairness in Collegiate Athletics Act (“FCAA”) would require the NCAA to establish procedures that require student-athletes to disclose to the NCAA and the student-athlete’s school any compensation or NIL contract.[19]  The FCAA does not, however, specifically mandate the compilation or proliferation of any data related to the NIL contracts submitted to the NCAA. •    The Student Athlete Level Playing Field Act (“SALPFA”) would require (i) the Federal Trade Commission (“FTC”) to establish a clearinghouse for “endorsement contracts,”[20] (ii) student-athletes to disclose to the clearinghouse each endorsement contract,[21] and (iii) the clearinghouse to make “such disclosures available to the public on a regular basis.”[22] •   The Protecting Athletes, Schools and Sports Act (“PASSA”) would require studentathletes to disclose NIL contracts to their schools[23] and require the FTC to create a website containing anonymous data about NIL deals.[24] •   The College Athlete Protection and Compensation Act (“CAPCA”) would require student-athletes to disclose NIL contracts to their school[25] and would create the College Athletics Corporation, which would be required to publish an annual report containing information from colleges and universities, such as revenues and expenditures of athletic programs.[26] The CAPCA does not purport to establish a clearinghouse of information related to NIL contracts, however. Despite its benefits, this proposal will face opposition.  Some may argue that the market for NIL contracts should have little to no regulation, especially regulation that would force willing parties to disclose the details of their private deals.  Such regulation, the argument may go, may disincentivize sponsors from entering the NIL market altogether, which may lower the price for student-athletes’ services and consequently undermine the entire purpose of NIL. The reality is that this type of regulation is necessary here.  NIL is in its infancy.  Market terms and value for student-athletes’ services have not been set, and thus the market is ripe for bad actors to offer young people ostensibly attractive, but actually predatory NIL deals.  If the market stays a black box, the downside risk of signing NIL contracts that fall below market terms or are predatory or unconscionable will fall squarely on the shoulders of student-athletes, a class of individuals who, due to their age, are likely to have had very few or no opportunities to negotiate a sophisticated commercial agreement, like an NIL deal.  It would be simply unfair and naïve to allow student-athletes to remain vulnerable when we already have concrete examples in Gervon Dexter, Sr. and Jaden Rashada of how NIL deals can go wrong for student-athletes. Conclusion State NIL laws have exposed student-athletes to newfound opportunities and risks.  Enacting a federal NIL law that expands upon the reporting requirements that certain states have introduced and creates a national clearinghouse that aggregates anonymous information about NIL deals will promote transparency in an otherwise opaque market, ensure student-athletes reap the fruits of their hard work, and limit their exposure to continued exploitation. John Kane, Esq. is the first-prize winner of the 2023 Conduct Detrimental NIL Writing Competition. He is an associate in the litigation group of Akin, Gump, Strauss, Hauer & Feld LLP's New York office. Mr. Kane received his J.D. from the University of Virginia School of Law in 2015, where he was a member of the Senior Editorial Board of the Virginia Law and Business Review.  He received his B.A. in History from Boston College in 2010. References: [1] See, e.g., FLA. STAT. § 1006.74 (2023) (“[P]articipation in intercollegiate athletics should not infringe upon an intercollegiate athlete’s ability to earn compensation for her or his name, image, or likeness.  An intercollegiate athlete must have an equal opportunity to control and profit from the commercial use of her or his name, image, or likeness, and be protected from unauthorized appropriation and commercial exploitation of her or his right to publicity, including her or his name, image, or likeness.”). [2] See BIG LEAGUE ADVANTAGE, https://bigleagueadvantage.com (last visited Nov. 10, 2023). [3] Complaint at ¶ 40, Dexter v. Big League Advance Fund II, LP, (No. 1:23-cv-00228-AW-HTC) (N.D. Fl. Sept. 1, 2023), ECF No. 1. [4] Id. at ¶ 29.  [5] Id. at ¶¶ 53, 54. [6] Id. at ¶ 56. [7] See “Penalty Flag Thrown: Former Florida Gators Sues to Void Controversial NIL Contract,” Jonathan D. Wohlwend, September 7, 2023, https://www.natlawreview.com/article/penalty-flag-thrown-former-florida-gatorssues-to-void-controversial-nil-contract. [8] See FLA. STAT. § 1006.74(2)(a); Complaint at ¶¶ 68, 69, Dexter (No. 1:23-cv-00228-AW-HTC), ECF No. 1. The Complaint also alleges the NIL contract was an agent agreement, but that BLA and the individual agents of BLA who interacted with Dexter were not licensed in Florida as athlete agents. As a result, the Complaint also seeks a declaratory judgment that the NIL contract is null and void because it violated multiple provisions of the Florida athlete agent act, including the provision that requires agent agreements with student-athletes to contain specific language regarding the student-athlete’s eligibility. See Complaint at ¶¶ 43, 75–82, Dexter (No. 1:23-cv-00228-AW-HTC), ECF No. 1. [9] See Stewart Mandel & Andy Staples, Jaden Rashada’s unprecedented recruitment: How a 4-star QB went from $13.85 million to no NIL deal, THE ATHLETIC (February 6, 2023), https://theathletic.com/4149181/2023/02/06/jadenrashada-nil/. [10] Id. [11] Id. [12] Id. [13] Id. [14] Id. [15] See, e.g., Gilman v. Chase Manhattan Bank, 72 N.Y.2d 1 (1988) (noting the high standard to prove a contract is unconscionable under New York law). [16] See TEX. EDUC. CODE ANN. § 51.9246(g)(1); see also N.Y. EDUC. LAW. § 6438-c 6(b) (2023) (“A student-athlete who enters into a contract providing compensation to the student-athlete for use of the student-athlete's name, image, or likeness shall disclose the contract in advance of executing it to an official of the college, as designated by the college.”); VA. CODE ANN. § 23.1-408.1(G) (2022) (“Prior to executing an agreement concerning the use of his name, image, or likeness, a student-athlete shall disclose such agreement to the institution at which he is enrolled in a manner designated by the institution. If a student-athlete discloses a potential agreement that conflicts with an existing institutional agreement, the institution shall disclose the relevant terms of the conflicting agreement to the studentathlete.”); MICH. COMP. LAWS § 390.1737(1) (“A student who intends to enter into a verbal or written opportunity or contract that would provide compensation to the student for use of his or her name, image, or likeness rights shall disclose the proposed opportunity or contract to a designated official of the postsecondary educational institution that the student attends[.]”). [17] See FLA. STAT. § 1006.74(2)(i), (j) (2021). [18] See generally FLA. STAT. § 1006.74 (2023). [19] Fairness in College Athletics Act, S. 4004, 116th Cong. (2020) § 3(2)(A) (“[A]ny intercollegiate athletic association shall establish . . . rules and programs for the administration the policy described in paragraph (1), including . . . requiring student-athletes to report any compensation described in such paragraph, or any agreement to receive such compensation, to the institution of higher education in which they are enrolled and the intercollegiate athletic association within a reasonable period following . . . (i) the date on which an agreement to receive such compensation is reached between the student-athlete and the third party; and (ii) the date on which such compensation is received by the student athlete[.]”). [20] See Student Athlete Level Playing Field Act, H.R. 3630, 118th Cong. (2023) § 5(b)(2)(A). [21] See H.R. 3630 § 5(b)(2)(B)(i). [22] See H.R. 3630 § 5(b)(2)(C). [23] See Protecting Athletes, Schools and Sports Act of 2023, S. --,118th Cong. (2023) § 6(a). [24] See Protecting Athletes, Schools and Sports Act of 2023, S. --, 118th Cong. (2023) § 6(e). [25] See College Athletes Protection and Compensation Act of 2023, S. --, 117th Cong. (2023) §§ 4(b)(4)(A), (B). [26] See College Athletes Protection and Compensation Act of 2023, S. --, 117th Cong. (2023) § 8.