On the December 23, 2023, episode of The Ringer’s NBA Show Group Chat Podcast, the hosts: Justin Verrier, Rob Mahoney, and Wosny Lambre criticized Adam Silver’s player punishment policy in light of the indefinite suspension of Draymond Green. The group made the following points: -  “I don’t like this idea that the player’s union is ceding ground to Silver and giving him autonomy to suspend long term.” -  “I would love [NBA] to put a number of games on this. I would love for an an actual determination to be made by the League and the Union to come to have some kind of agreement or to make a ruling and have it challenged and let it play out. But, the reason that a lot of those things do not happen is that the league is dodging precedent. They don’t want people to say 'Well, Myles Bridges got this but player X got this.' Then, you are doing an equivalency game of intimate partner violence versus DUI. It feels to me that the league is trying to skirt that stuff as much as it can. I think that’s bull****, frankly. I think that it’s a pretty cowardly way to go about this process and trying to dodge accountability for trying to suspend players for committing actual crimes.” -   “There is definitely a chilling effect of the lack of transparency that all of us are against.” -   “It is also not the NBA’s responsibility. This is where we lost the plot for a lot of these player punishments. It is not the league’s responsibility to facilitate Draymond Green’s therapy. The league needs to check damaging and destructive behavior and not the mental health behind that behavior. You give him a set number of games that he is suspended for a set action.” This hot take episode is aptly named, “NBA Festivus: The Airing of Grievances!” These sports, business, legal, and moral issues can be broken down into (1) the power of the players union and indefinite punishment, (2) the NBA is dodging precedent and scope of NBA’s responsibility, and (3) the NBA’s lack of transparency. 1.      Did the NBA Players Union cede too much control to the NBA for Draymond Green’s indefinite punishment? Is there a slippery slope for future players? On Saturday, January 6, 2024, the NBA reinstated Draymond Green and officially ended his indefinite suspension which totaled 12 games. Did the NBA Players Union give up too much control? Joe Dumars explained the indefinite suspension when he said, it was due to “Green's "repeated history of unsportsmanlike acts."[1] In the 2023-2024 season, Green has been ejected 3 times for the most in the league with the Denver Nuggets’ Nikola Jokic and Detroit Pistons’ Jalen Duren behind Green with 2 ejections.[2] This season included 6 different suspensions with Draymond Green possessing 2 of the 6 suspensions—5 games and 12 games.[3] Other than Ja Morant’s 25 games suspension and Miles Bridges 30 games, the other two suspensions were 2 games for Devonte’ Graham and 4 games for Joshua Primo.[4] One may look at Morant who is a repeat offender like Green and who could be a bad Instagram post away from an indefinite suspension. Since Morant is out for the season with a torn labrum, there is currently little, if any, risk of future indefinite punishments. 2.      Should the NBA continue to dodge precedent? What is the scope of NBA’s responsibility? According to the American Bar Association, “stare decisis holds that courts and judges should honor ‘precedent’ or the decisions, rulings, or opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable—and less seemingly random.”[5] The term “precedent” is frequently used in sports media. Usually, the term arises when player contracts are discussed such as “DeShaun Watson’s fully guaranteed contract set a precedent for other quarterbacks.” What people really mean is that “the market” or “fair market value” for a specific type of player has been set. This gives negotiators leverage to demand for an amount, because if one team fails to pay, then another team will surely pay. However, there is no legal obligation to obey what the market deems as fair. No General Manager breaks the CBA language when a team underpays or overpays for a player. In sports, the market is not required to be consistent nor predictable. In practice, precedence seems to be in the spirit of a line from the film, Pirates of the Caribbean Curse of the Black Pearl, “The Code is more like a guideline than actual rules.” Just as sports precedence is a guideline for the market, it is also a guideline for punishment. In this case, the Ringer NBA Show Group Chat used “precedent” as a benchmark for punishments. Similar to the fair market value of players, the CBA language does not require that punishments be consistent or predictable like the legal system. Under-punishing or over-punishing leads to a poor public-relations-look which can cause bigger problems in the future. This under-punishing lesson was harshly learned by Roger Goodell after his initial light punishment against Ray Rice. The light punishment caused such an uproar when the video was released that Rice was out of the league and the NFL had to revamp its entire punishment system. One wonders whether Rice would have lasted longer in the NFL if Goodell initially punished Rice hard like he did with DeShaun Watson. Adam Silver is not trying to perfect a player punishment system; rather, he is trying to perfect the NBA.[6] If the media rights companies do not want to pay for boring games, Silver finds a way to make them exciting. If the All-Star game is bad, Silver works with the Players Association to fix it. While the NBA Ringer Show Group Chat disagrees about the wide scope of Silver’s power, just remember Draymond Green’s conversation with Silver where Green was “going to retire.”[7] Judges do not care about whether a guilty suspect retires. Silver does. Fortunately, Silver’s hands were not tied to a punishment system and said, “You’re making a very rash decision and I won’t let you do that.”[8] Silver went beyond the scope of judges and the NBA’s business is better for it. 3.      Adam Silver’s view of punishment fails to be transparent. What is Silver’s method? The Ringer Group Chat levels a fair criticism that Silver’s punishment policy lacks transparency. At best, Silver has taken a lesson from Former Texas Rangers Owner and Former President, George W. Bush who said, “There’s an old saying in Tennessee. I know it’s in Texas. It says, Fool me once, shame on…..you. If we get fooled, we can’t get fooled again.” In recent high-profile cases of punishment, we might find a way to make sense of Silver’s nebulous policy. Step 1 is Silver stays in the shadows and advises the Owner. In the cases of Kyrie Irving and Ime Udoka, the teams issued their punishments. Irving and Udoka returned quietly. When rumors rose of Udoka possibly taking the New Jersey Nets head coaching job, it is reasonable to assume that the NBA advised against it. The Nets later hired in-house Assistant Coach, Jacque Vaughn. Step 2 is that if a player repeats the poor behavior, then Silver puts on his George Bush Jr. hat and punishes hard. For example, initially, Morant received an 8-game suspension and Green received a 5-game suspension. Then, Morant and Green returned and later repeated their poor behavior. Silver stepped out of the shadows and punished both players hard: 30 games for Morant and 12 games for Draymond. Silver may get fooled the first time but makes up for it the second time. Overall, creating a perfect player punishment system is not the best business strategy, and that’s a positive outcome for the NBA. 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. References: [1] See Paul Kasabian’s Bleacher Report article, “Warriors’ Draymond Green: ‘Very Confident’ I Can Remove Antics After NBA Suspension.” https://bleacherreport.com/articles/10104310-warriors-draymond-green-very-confident-i-can-remove-antics-after-nba-suspension#:~:text=Green%20was%20initially%20suspended%20indefinitely,Irving%20of%20Sporting%20News%20noted. [2]“NBA Festivus: The Airing of Grievances!” Podcast can be found at https://www.theringer.com/2023/12/25/24014545/nba-festivus-the-airing-of-grievances. [3] Spotrac, “NBA Fines & Suspensions” See https://www.spotrac.com/nba/fines-suspensions/fines/ejection/ [4] Spotrac, “NBA Fines & Suspensions” See https://www.spotrac.com/nba/fines-suspensions/suspensions/ [5] “Understanding Stare Decisis” American Bar Association, Dec. 16, 2022 https://www.americanbar.org/groups/public_education/publications/preview_home/understand-stare-decisis/#:~:text=Stare%20Decisis—a%20Latin%20term,and%20opinions%20from%20prior%20cases. [6] Even if Adam Silver wanted a legal-like player punishment system, judges have discretion during sentencing which explains why some criminals receive harsher sentences than others for the same conduct. See the Las Vegas judge’s “extensive” judicial reasoning when determining whether a man should go to prison. https://abcnews.go.com/US/wireStory/man-caught-camera-attacking-las-vegas-judge-sentenced-106198407 [7] Anthony Slater and The Athletic Staff, “Draymond Green considered retirement, said NBA commissioner Adam Silver talked him out of it. https://theathletic.com/5187590/2024/01/08/draymond-green-podcast-comments-warriors-retirement/ [8] Id.

On May 14th, 2018, the national landscape of sports betting underwent a significant transformation as the Supreme Court struck down the Professional and Amateur Sports Protection Act (PASPA) in NCAA v. Murphy as unconstitutional, ruling it in violation of the Tenth Amendment’s anti-commandeering principle. No longer were states prohibited from passing new legislation allowing gambling on professional and amateur sports. This decision was music to the ears of many Native American tribes, who have long held permissions to conduct gambling activities. Primarily governed by the Indian Gaming Regulatory Act (IGRA) of 1988, the legislation codified three classes of games with a different regulatory scheme for each. Class 1 gaming includes traditional Indian gaming and social gaming for minimal prizes. Class 2 gaming encompasses bingo, while Class 3 functions as a “catch-all” and covers various forms of gaming, including sports betting. Before a Tribe may lawfully conduct Class III gaming, it must be permitted in the state, a compact with the state must be negotiated and approved, and the Tribe must adopt a gaming ordinance approved by the local state’s Chairman of the Gaming Commission. In Florida, for instance, the Seminole tribe, owners of the famous Hard Rock Hotel & Casino, inked a compact with the state in 2021 worth at least $2.5 billion, allowing the tribe to run statewide gaming, sports betting included, in return for the funds. The judicial branch has stood behind the state’s executive branch and supported the Seminoles in their gaming business and compacts, fending off legal battles aimed at removing the monopoly created by the compact. As recently as November 2023, the Florida Supreme Court rejected a request by two pari-mutuel companies to halt online sports betting offered by the Seminole Tribe. The focus of the legal fight is at the part of the deal aimed at allowing gamblers to place mobile sports wagers anywhere in the state, with bets handled by computer servers on tribal property. The private companies contend that allowing people physically located outside of tribal property to place sports bets would violate the state’s 2018 constitutional amendment requiring voter approval of any expansion of gambling to be approved by Florida voters. The state, on the other hand, argues that the language of the amendment does not include sports betting under its definition of casino gambling. Irrespective of legal disputes, after the approval of online sports betting, the market has thus exploded. A demographic particularly enthusiastic about joining the game is young American college students. According to an April 2023 survey of 3,527 Americans between ages 18 and 22, nearly 60% have bet on sports, while 6% reported losing more than $500 in a single day. This demographic engages in betting through various means, with 28% favoring the mobile app approach for their wagers. Albeit the thrill of online sports betting runs rampant among college students, it is crucial to delve into the darker side of this burgeoning trend: sports betting addiction. While the excitement of placing bets on favorite teams or players can be enticing, it is essential to recognize the potential risks and consequences associated with compulsive gambling behaviors. Although gambling addiction affects people of all backgrounds and ages, adolescents of college age are uniquely likely to engage in impulsive or risky behaviors due to developmental factors and the college lifestyle. Like other addictive behaviors, gambling can stimulate the reward centers of the brain, making it difficult to stop, even with accumulating losses. Colleges are not oblivious to this knowledge, actively engaging in multi-million-dollar advertising deals, such as the seven-figure agreement reached in 2021 between Louisiana State University and Caesars Entertainment to advertise sports betting across the campus. In response to concerns about partnerships between sportsbooks and universities, the American Gaming Association (AGA) took decisive action in March 2023 by implementing stringent code changes. AGA member sportsbooks are now explicitly barred from future collaborations with universities for sports gambling promotion, except for engagements with alumni networks or content on responsible gaming. The revised code eliminates terms like “free” or “risk-free” in promotional bets and standardizes the “legal age of wagering” to 21 or over, despite state variations allowing those 18 or older to participate. Notably, these changes do not apply retroactively to existing partnerships, allowing them to continue as mutually agreed upon. However, they exclusively pertain to AGA member companies, leaving entities like Caesars Sportsbook unaffected (LSU ended its agreement with Caesars shortly after the AGA’s update to its responsible marketing code). Moving beyond the realm of college students, the vulnerability to sports gambling addiction extends beyond campuses. Estimates put the problem-gambling rate among Native Americans at more than double the rate among all U.S. adults. Considering the history of tribal gaming (see IGRA), it’s no surprise Native Americans suffer at a statistically significant rate of gambling addiction. Consequently, various tribes have enacted programs to assist problem-gambling and support responsible gaming. The Washington Indian Gaming Association, for example, contributes more than $3 million per year to promote education on responsible gambling, as well as the development, prevention, treatment, and well-being programs. These include implementing diverse treatment programs for tribal and non-tribal members, funding problem gambling initiatives, promoting prevention and education, training staff to recognize and address problem gambling, designing culturally appropriate treatment approaches, facilitating the Intertribal Providers Coalition for monthly meetings, and offering self-exclusion programs for guests with problem gambling behaviors. As “Exhibit A” of tackling gambling addiction among college students, lawmakers and regulators alike can look at the initiative’s tribes have enacted. This is not to say betting on sports is wrong or “needs to be fixed.” Rather, for the sake of vulnerable populations, we must regulate this vice, just like any other in this beautiful country, to ensure the least amount of victimization as possible. Ultimately, college students have every right to gamble on sports, just like any other American of majority in a state where it is legal. The profits extrapolated from these wagers go to important resource allocations, such as state taxes, and help fund pivotal tribal infrastructure, including community programs, charities, emergency services, and cultural preservation, among others. The key is to work within this protected niche to provide a win-win for all parties involved, whether that be having fun, procuring funds for important means, or, simply, for the thrill of the game. References: https://time.com/6342504/gambling-addiction-sports-betting-college-students/ https://www.ncaa.org/news/2023/5/24/media-center-ncaa-releases-sports-wagering-survey-data.aspx https://theconversation.com/colleges-face-gambling-addiction-among-students-as-sports-betting-spreads-204434 https://www.ncpgambling.org/responsible-gambling/safer-sports-betting/ https://www.stlpr.org/fixed-odds/for-native-americans-tribal-casinos-help-and-hurt https://www.washingtonindiangaming.org/issues/supporting-responsible-gaming/ https://www.tampabay.com/news/florida-politics/2023/11/17/sports-betting-seminole-tribe-supreme-court-block-app-gambling/ https://www.usnews.com/education/best-colleges/articles/sports-betting-on-college-campuses-what-to-know https://lailluminator.com/2023/06/02/lsu-to-fold-on-its-controversial-sports-betting-deal-with-caesars/ https://www.clickorlando.com/news/local/2023/12/04/2018-gaming-amendment-never-included-sports-betting-florida-attorneys-tell-supreme-court/ Aaron Polonsky is a 3L at the Boyd School of Law @ UNLV. He can be found at https://www.linkedin.com/in/aaron-polonsky/.

The NCAA Division I Council voted this past week to implement new regulations aimed increasing "protections" afforded to student-athletes concerning their name, image, and likeness (NIL). These rules shift control to athletic departments and teams on campus, thereby placing constraints on student-athlete autonomy. Notably, schools and associated NIL collectives are still prohibited from negotiating deals with recruits or transfers before their enrollment. Commencing in August, individuals entering into NIL deals will be mandated to register with the NCAA, providing details about their agreements. Additionally, the organization intends to introduce new contract standards and deliver education on NIL matters to both athletes and institutions. Student-athletes are obligated to disclose information related to NIL agreements exceeding $600 in value to their schools within 30 days of entering or signing the NIL agreement. The NCAA will use that information to develop an aggregated database to help schools and athletes have a more realistic picture of the going rates for endorsement deals. The council's decision establishes a consistent national requirement, aligning with over 20 state laws already mandating similar disclosures. Additionally, the NCAA plans to create a voluntary registration process for NIL service providers, such as agents and financial advisors. This registry, based on feedback from athletes who have worked with these providers, aims to centralize credible and trusted agents while assisting student-athletes in making informed decisions. Details will be finalized and overseen by a committee yet to be determined, ensuring alignment with student-athletes' needs. Collaborating with schools, the NCAA aims to provide education on contractual obligations, including the development of a template contract and recommended terms. This initiative seeks to ensure student-athletes and their families make informed decisions about NIL agreements. Ongoing general education and resources will be extended to support student-athletes and those assisting student-athletes on policies, rules, and best practices pertaining to NIL. This education will also be extended to other key stakeholders. Morgyn Wynne, Vice Chair of the Division I Student-Athlete Advisory Committee and former softball student-athlete at Oklahoma State, expressed confidence in the council's actions. She stated that the standardized contract recommendations and voluntary registration of service providers will boost student-athletes' confidence as they explore NIL opportunities. Wynee emphasized "Division I student-athletes in many states are already reporting the details of their NIL agreements. Disclosing that same information to schools — which would later be shared with the NCAA for the purposes of identifying trends — will offer student-athletes the benefit of better understanding about what a reasonable agreement might be for them." Despite the NCAA's recent steps toward NIL regulations, which appear to address the need for enhanced protections, these new rules and the shift in control back to athletic departments may inadvertently restrict the autonomy of student-athletes. As the landscape of NIL policies continues to evolve, it remains to be seen whether these changes balance safeguarding athletes' interests and preserving their individual freedoms. The true impact of these regulations will unfold in the coming months, raising questions about whether the NCAA's quest for oversight may unintentionally infringe upon the very essence of student-athlete independence in NIL decisions. Madelyn Feyko is a 2L at the Hofstra Law and is the Vice President of Sports for the Sports and Entertainment Law Society. She can be found on LinkedIn at the following link: https://www.linkedin.com/in/madelyn-feyko-8942b520a/ or on Twitter @madelyn_feyko.

NBA agent Jarinn Akana filed a lawsuit against Indiana Pacers Head Coach Rick Carlisle for breach of contract and promissory estoppel in Dallas County Court. Akana worked closely with the late agent Dan Fegan before Fegan's passing. Fegan represented stars including DeMarcus Cousins, John Wall, and Monta Ellis. Fegan and Carlisle were close friends, according to the complaint. With that, Akana claims that he, Carlisle, and Fegan had conversations in late 2017 and early 2018 about Fegan's intention to renegotiate Carlisle's contract with the Dallas Mavericks. Shortly thereafter, Fegan unfortunately passed in a car accident. Akana says that he and Carlisle later arranged a meeting in Dallas wherein the parties reached an oral agreement that Akana would represent Carlisle in contract negotiations with the Mavericks and Carlisle would "take care of [Akana] and pay him what was fair." Prior to this agreement, Fegan was helping Carlisle out with negotiations with the Mavericks (which Akana claims in the complaint was a "direct violation of the NBPA Regulations Governing Player Agents, which prohibits a person from simultaneously representing coaches and players in the NBA"). Per the complaint, Akana met with Mark Cuban and lawyers for the Dallas Mavericks concerning the renegotiation of Carlisle's contract. Akana says that he ultimately achieved an incredible result and "fully performed" his duties, helping to make Carlisle one of the highest paid coaches in the NBA and securing his alleged principal a salary increase of seven figures per year. Carlisle was extended through the 2022-2023 season. Prior to the negotiations, Carlisle was on a five-year deal initially worth $35M. The parties allegedly agreed that Akana would be paid annually a percentage of Carlisle's salary until the contract's expiration. Akana says that Carlisle balked at the amount of money Akana expected, and instead wrote a check to Akana for $200,000 on January 1st, 2019. Akana had asked for a larger percentage of Carlisle's salary but nonetheless says he begrudgingly agreed to proceed under those terms. But Akana couldn't bear what happened next. The following year, Akana says, Carlisle refused to pay him at all and even made threats that Carlisle would report him to the NBPA for violating regulations (specifically, representing both players and coaches simultaneously). Akana claims that Carlisle offered Akana a one-time payment of $250,000 which he was to accept or receive nothing at all. The total amount potentially due at that time was $800,000, per the complaint. Akana says he refused the offer. Akana says Carlisle has refused to pay him since then. Thereafter, on June 17, 2021, Carlisle ended his tenure with the Mavericks. As the life of the contract was not fully lived out, Akana says he is still owed $400,000. With that, he filed a lawsuit against Carlisle, alleging he has suffered damages in the amount of $400,000. Jason Morrin is a Workers’ Compensation, Injury, and Employment attorney in New York. He graduated cum laude from Hofstra Law School where he was president of the Sports and Entertainment Law Society. His reporting for Conduct Detrimental has been cited by ESPN, The New York Post, USA Today, Bleacher Report, and more. He may be reached at [email protected] or on Twitter @Jason_Morrin.

Over the last several years, it’s undeniable that front offices across Major League Baseball have become more analytically driven. As a result, many that cover and follow the sport have wondered about scouts and their place in the modern game. While Moneyball and the success of organizations like the Houston Astros have certainly validated the concept of valuing analytics, the common sentiment you’ll hear is that a blend of the subjective evaluations and the objective data is the best approach to building a winning baseball team.However, that has not stopped every club from downsizing their “old school” scouting departments in favor of “new school” analytics or simply as a means to reduce expenses. In response to their terminations following the 2020 season, two former scouts for the Detroit Tigers have filed a lawsuit against the club alleging age discrimination. Gary Pellant, 68, and Randall Johnson, 67, filed the suit last week in U.S. District Court in Detroit, claiming a shift toward analytics was accompanied by a "false stereotype" that older scouts lacked acumen for newer scouting tools. In recent years, baseball as a whole has incorporated more and more technology into the player evaluation process. In the past, “analytics” consisted of merely a radar gun and/or a stopwatch. Today, services like Rapsodo, Statcast, KinaTrax, Pitchf/x, etc have certainly expanded the way professional and amateur players are scouted. They claim wrongful termination and post-termination employment interference in violation of the Age Discrimination and Enforcement Act of 1967 and violations of the Elliott-Larsen Civil Rights Act, a Michigan law that took effect in 1977. They also alleged disparate treatment age discrimination and/or disparate impact age discrimination in violation of the Elliott-Larsen act. The complaint stated that "Plaintiffs are among hundreds if not thousands of employees to be separated from employment with defendant in the last eight years as a result of a decision by the defendant and the MLB to replace older employees with younger employees.” In addition, the scouts said that they were among four Tigers scouts over 60 who were terminated and that remaining scouts ranged in age from early 20s to early 50s. The suit said 51 of at least 83 "older scouts" were let go among the 30 teams. This comes after seventeen former MLB scouts sued the league, its teams and commissioner Rob Manfred this past June in U.S. District Court in Denver. They alleged violations of the ADEA along with laws in 11 states and New York City. Moreover, the lawsuit noted that after Manfred took over as commissioner in 2015, "MLB endeavored to begin heavily recruiting younger scouts, at the same time intentionally pushing out from the older scouts with prior knowledge, qualifications, expertise, and training, based on a false stereotype that older scouts lacked the ability to use analytics and engage in video scouting with the same acumen as younger scouts." Given this is not the first lawsuit filed by fired scouts, it will be interesting to see how these cases develop. Were these terminations truly related to the scouts age and stereotypical inability to adapt to the times? That is the major question. Regardless, the apparent trend of scouts being terminated for potentially discriminatory reasons is something to monitor moving forward. MLB and its clubs should be interested in how the courts view this case. Brendan Bell is a 1L at Arizona State Law School and can be found on Twitter @_bbell5

Over the last two years, we've seen massive moves in conference realignment. The latest round of realignment started in the summer of 2021, when Texas and Oklahoma left the Big 12 for the SEC. That ignited a domino effect for several schools and leagues, including the American Athletic, Sun Belt, and Conference USA. However, one year later, an even bigger bombshell dropped: USC and UCLA departed the Pac-12 for the Big Ten. Eventually, Oregon and Washington followed the Trojans and Bruins and the Pac-12 as we knew it effectively "died." Nonetheless, it appears that realignment is far from over as Florida State took the first step to get out of the ACC. Last week, The Florida State board of trustees voted to sue the ACC to challenge the legality of the league's grant of rights and its $130 million withdrawal fee. Unlike the aforementioned schools above who left for greener pastures in the SEC and Big ten respectively, Florida State's situation presents more challenges in terms of leaving the ACC. FSU and its conference foes are tethered to the ACC via a lengthy grant of rights that runs until 2036. The grant of rights is a legal document signed by each current member of the ACC that transfers ownership of media rights from the school to the conference. What this means is that the ACC, not FSU -- or any other member school -- owns the rights to broadcasts of games. Schools signed this in 2013 as a reaction to the departure of Maryland to the Big Ten, under the rationale that the grant of rights acts as an insurance policy that would prevent anyone from leaving the league during the duration of the agreement, which in this case is through 2036, because a school without TV revenue would have little value to any other conference or enough revenue to stand as an independent. In other realignment scenarios, schools either waited out the grant of rights (the Pac-12's agreement ends in summer 2024) or paid a hefty buyout to leave early (Texas and Oklahoma paid $50 million each to the Big 12 to leave that agreement just one year early). Therefore, FSU is opting to challenge the validity of the grant of rights with legal action. FSU filed a 38-page lawsuit in Leon County Circuit Court in Tallahassee that seeks a declaratory judgment against the ACC to void the grant of rights and withdrawal fee as "unreasonable restraints of trade in the state of Florida and not enforceable in their entirety against Florida State." FSU is represented by a team of attorneys at Greenberg Traurig, LLP, led by David Ashburn, managing shareholder of the firm’s Tallahassee office. The suit included seven-counts, which are listed below. First count: The penalty package for exiting the GoR along with a "severe" "withdrawal penalty" is estimated at more than $570 million. FSU complains that it violates Florida law. Second count: Unenforceable penalty on the grant of rights penalty. Ashburn said the court can invalidate the fee or set a new, smaller fee for an exit. Third count: Breach of contract. "So first and foremost, the ACC has failed to appropriately give FSU the value of its athletic program media rights back being diluted those agreements those rights going forward," Ashburn said. Fourth count: Breach of fiduciary duty. "It tracks in many respects the contractual obligations and the ACC does have fiduciary duties to its members." Fifth count: Fundamental failure of contractual purpose Sixth/seventh count: Unconscionability and violation of public policy Some notable takeaways from the board meeting that was made public via Florida law was that ESPN gave the ACC an "ultimatum" during the negotiation of the current deal in 2016 that there would be no further negations until the deal expires. Additionally, FSU has sought unequal revenue distributions based on success in the revenue generating sports, but the ACC has refused. In response, The ACC preemptively filed a lawsuit against against Florida State in Mecklenburg County, North Carolina, on Thursday claiming the school is prohibited from challenging the grant of rights deal. "In light of Florida State's clear intention to take action, the ACC proactively filed a declaratory action yesterday in defense of the Grant of Rights, the Conference and each of its members," an ACC spokesperson said of the conference's filing. The root of the issue is FSU's concerns over the growing revenue gap between the "Power 2" (Big Ten and SEC) and the rest of college sports. FSU estimated that the annual discrepancy could be approximately $30 million. FSU fears this gap will prevent them from competing at the highest level, and they aren't unreasonable in that belief. Every lawsuit that involves the NCAA or a conference like the ACC is a must-follow for those passionate about the intersection of sports and the law, but this one involves an unprecedented issue that could shape the future of the college athletics landscape. A grant of rights document has never been challenged in this fashion, so it will be extremely interesting to see how the courts handle this suit. If FSU is successful, other schools including Clemson, Miami, and North Carolina will likely follow FSU's lead. The ACC will likely stand strong and attempt to fight this to the bitter end, knowing that if FSU prevails, the league's outlook is extremely bleak. Venue will be a factor here, as obviously each side wants the case being heard in their respective state. Either way, every detail that comes out of this case is must-see news. FSU versus the ACC is just the latest lawsuit that will define the future of college athletics. Brendan Bell is a 1L at the Sandra Day O'Connor College of Law at Arizona State University. You can follow him @_bbell5 on Twitter

After a stellar performance on Sunday night in week 15 against the Jacksonville Jaguars, Baltimore Ravens’ Quarterback, Lamar Jackson, may have inadvertently admitted to contravening the NFL’s Gambling Policy. Following the Ravens’ victory, NBC Sideline Reporter Melissa Stark interviewed Jackson, together with his teammate, Defensive End, Justin Madubuike. When Stark mentioned that Madubuike reached his 12th Sack of the season, Jackson, off camera, could be heard laughing attracting the camera’s and Stark’s attention. Stark, seemingly wanting to understand more of Jackson’s reaction, asked Jackson if he knew of this achievement. I transcribe: Stark: Did you not know that either? Jackson: Yeah, he owes me some money, that’s all. Stark: Did you predict this? Jackson: Nah, I call him Baby Aaron Donald…Shout-out to [Madu]buike. Following a question to Madubuike, Stark continued: Stark: …You’re not done here… Why do you owe him money? Madubuike: He pushed me to be great… I’ll [inaudible] him some money, that’s just what it is. While the most recent NFL’s Gambling Policy is not publicly available, the 2018 NFL Gambling Policy states: All NFL Personnel are prohibited from placing, soliciting, or facilitating any bet, whether directly or indirectly through a third-party, on any NFL game, practice, or other event. This includes betting on game outcome, statistics, score, performance of any individual participant, or any other kind of “proposition bet” on which wagering is offered.[1] On its face, it would not make sense that Madubuike would bet against himself. However, even if Jackson is “owed money” for “pushing” Madubuike to “be great” (e.g. for providing advice, pre-game tips, motivational words), the potential issue is whether Jackson and Madubuike agreed to transfer money because of the statistical result. If so, the above appears to have been contravened. With reference to the 2018 NFL Gambling Policy, which appears to be the most recent publicly available version of the Policy, gambling is defined as follows: » Gambling – the wagering of money and/or something else of value, on an event with an uncertain outcome with the intent of winning additional money and/or thing(s) of value. Generally, gambling involves all three of the following elements: » Prize – Any item of value that is offered to the winner. This could include money, other goods or services and/or any other thing of value, regardless of the amount of such value. » Chance – The “winner” of the prize is uncertain at the time the wager is made. The use or exercise of skill, strategy, and/or knowledge, unless it completely negates the element of chance, does not convert an activity into something other than gambling. » Consideration – In order to receive a chance to win the prize, the participants provide or risk something of value”.[2] Furthermore, gambling may include “private wagers between teammates, family and friends, or others”.[3] Ultimately, one ought to not speculate. It is not certain as to whether Jackson’s comments pertain to the Sack statistic whatsoever. While the NFL may choose to investigate the matter, one can recognize that this may hardly be a morally culpable act, if at all. While I do not suggest moral culpability on Jackson’s part, this is an opportunity for the NFL to reign in the Policy or provide guidance to the NFLPA accordingly to better educate its players. However, one might suggest that there are more pressing issues in the NFL beyond the Gambling Policy, such as with mental health, domestic violence, substance abuse, financial management, and more. At the very least, this may serve as a reminder to athletes and their agents that they are constantly in the public eye; their words matter. Players should be reminded of current issues within their teams and around the NFL to navigate interviews intelligently, with the assistance of their agents. Again, while this could be at best, harmless banter, or at worst, a relatively harmless wager, the NFL must ensure players are educated on the most serious gambling offences, such as match fixing, betting on outcomes on NFL games, and providing insider information. [1] See the National Football League Communications, “Gambling Policy for NFL Personnel 2018” online: , accessed December 19, 2023 [NFL Gambling Policy] at page 2. [2] Ibid at page 1. [3] Ibid.

Earlier this week, United States District Court Judge John P. Bailey granted the parties’ Motion to Convert the Temporary Restraining Order to a Preliminary Injunction after the states and NCAA agreed to the motion in Ohio v. NCAA. The Order will remain in effect through the spring seasons. NCAA bylaw 14.5.5.1 is the focus of Ohio v. NCAA. The rule referred to as the “Transfer Eligibility Rule” states, “A transfer student from a four-year institution shall not be eligible for intercollegiate competition at a member institution until the student has fulfilled a residence requirement of one full academic year (two full semesters or three full quarters) at the certifying institution.” One noted exception is for athletes transferring for the first time. According to the lawsuit, the Transfer Eligibility Rule illegally restrains athletes’ ability to engage in the labor market by discouraging athletes from transferring, disadvantaging second-time transfers, and denying second-time transfers the opportunity to compete for a year. Just last week, the same judge granted the Temporary Restraining Order in the lawsuit, preventing the NCAA from forcing athletes to sit out a year after transferring for a second time. Further, the order suspended the Restitution Rule, stopping the NCAA from imposing retroactive sanctions if an ineligible student-athlete competes under an order that is later vacated, stayed, or reversed. Now, after both sides agreed to the motion, Judge Bailey converted the Temporary Restraining Order into a Preliminary Injunction, and the court canceled the hearing set for December 27th. A trial will likely occur sometime next summer—unless the parties reach a settlement beforehand. Administrators, athletes, and fans alike may have seen the end of the Transfer Eligibility Rule. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

Former USC star running back and Heisman trophy winner, Reggie Bush, filed a lawsuit against the NCAA on August 23, 2023. The lawsuit includes claims for defamation and false light, stemming from a July 2021 comment made by an NCAA spokesperson in response to a question from an ESPN reporter about whether the NCAA planned to revisit penalties imposed in prior years, including heavy sanctions levied against USC, in light of the NCAA’s adoption of its Interim NIL Policy (“NIL Policy”). The NCAA’s statement was defamatory, according to Bush, because it falsely implied that Bush engaged in a “pay-for-play” arrangement rather than what would now be allowable NIL activity. The NCAA quickly filed a motion to dismiss the case for failure to state a claim. Putting aside for the moment the merits of the defamation claim itself, the NCAA’s motion to dismiss raises interesting questions about what exactly constitutes “pay-for-play” under the NIL Policy. The NIL Policy, issued in July 2021, permits student-athletes to profit from their “name, image, and likeness” (NIL), when consistent with state law, without affecting their eligibility to compete in NCAA athletics. The NIL Policy, however, contains two major stipulations: athletes still cannot engage in “pay-for-play” arrangements, and schools cannot offer “impermissible recruiting inducements” for attendance. Bush’s defamation case turns, in part, on whether the benefits that Bush and his family allegedly received constitute “pay-for-play.” Those benefits were outlined in a 2010 report issued by the NCAA’s Committee on Infractions (“COI”) after a four-year NCAA investigation into Bush’s eligibility and other potential violations by USC.[1] The COI found that Bush and his family accepted cash, housing, an automobile, appliances, hotel lodging, and more from third parties while Bush was a student-athlete at USC in violation of NCAA amateurism rules.[2] In his complaint,[3] Bush asserts that, even assuming as true that he and his family received the benefits alleged in the COI Report, those benefits do not constitute “pay-for-play” because they were not received in exchange for his participation in athletics. To support this, Bush points to the NCAA Bylaws, which define “pay” as “the receipt of funds, awards or benefits not permitted by the governing legislation of the Association for participation in athletics.”[4] According to Bush, it is undisputed that the benefits he and his family allegedly received were not made in exchange for his enrolling at, or competing for, USC. In other words, there was no quid-pro-quo with boosters, the school, or anyone else, that influenced his decision to play football at USC. Therefore, Bush claims, the benefits were not “pay-for-play”; rather, Bush says the benefits were offered simply because of his image and success, making them akin to profits earned through his NIL, which are allowable under the NIL Policy. The NCAA responded to Bush’s arguments in its motion to dismiss by asserting that the benefits Bush and his family allegedly received were, and are, commonly understood to be “pay-for-play” under NCAA rules. As compared to Bush, the NCAA takes a much broader view of “pay-for-play,” stating in its motion to dismiss that “[m]ost people would understand [“pay-to-play”] to encompass any situation where a purported amateur is using his athletic talent to obtain remuneration, regardless of its source.” (Emphasis added). The NCAA also stated, in response to Bush’s argument regarding the Bylaws’ definition of “pay,” that “[b]y banning pay ‘for’ athletics participation, the Bylaws aim to prohibit all forms of payment made because of, not merely in exchange for, the student-athlete’s participation in athletics.” (Emphasis added). As an example of this, the NCAA pointed to the NCAA Bylaw outlining “Prohibited Forms of Pay,” which forbids “[p]referential treatment, benefits or services because of the individual’s athletic reputation or skill or pay-back potential as a professional athlete.”[5] The NCAA’s proposed interpretation of “pay-for-play” is curious in that it is so broad that it could easily be construed to encompass nearly all NIL agreements—which, of course, are generally considered to fall outside of the prohibited category of “pay-for-play.” After all, what, if not his or her “athletic reputation or skill,” allows a high-profile student-athlete to command a six to seven figure NIL deal? Perhaps the distinction is that NIL arrangements require the student-athlete to engage in some kind of promotional activity in exchange for compensation. Therefore, the student-athlete is compensated (arguably) not for his enrollment at a particular school or for his success on the field (both of which would constitute impermissible “pay-for-play”), but for the promotional activity in which he has engaged—be it endorsing a product on social media, appearing at a promotional event, or signing memorabilia. But this raises two issues: first, how exactly can one separate a student-athlete’s athletic reputation and/or skill from the promotional activity for which he is compensated; and second (assuming we can separate those things) why should a student-athlete’s ability to receive compensation while maintaining NCAA eligibility turn on whether he has engaged in a minor promotional activity in exchange for that compensation? As to the first issue, no one can seriously contend that the lucrative NIL deals many student-athletes have secured were not secured “because of the individual’s athletic reputation or skill.” Sure, the terms of the deal may also require that the student-athlete engage in a promotional activity of some kind. But whatever that promotional activity might be, it is valuable to the company—and therefore, the student-athlete is ultimately compensated by the company—only “because of” the student-athlete’s athletic reputation or skill. In some areas of law, under Title VII for example, “because of” is read to incorporate the standard test of “but-for” causation. See, e.g., Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013). “But-for” causation is established whenever a particular outcome would not have happened “but for” the purported cause. Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1740 (2020). In other words, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” Id. When applied to Title VII employment cases, the “but-for” causation standard “means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the [relevant factor] was one ‘but-for’ cause of that decision, that is enough to trigger the law.” Id. The NCAA’s statements in its motion to dismiss suggest that the “because of” language in the NCAA Bylaws was intended to incorporate a standard similar to the “but-for” causation standard applied in Title VII cases. For example, the NCAA states that “the Bylaws aim to prohibit all forms of payment made because of, not merely in exchange for, the student-athlete’s participation in athletics.” This language indicates that even in situations in which there are multiple reasons that a player has received payment, that payment remains prohibited so long as just one of those reasons is the student-athlete’s participation in athletics. In other words, a player cannot avoid liability just by citing some other factor (i.e., a promotional activity) that contributed to him receiving the payment. To summarize, under the “but-for” standard, so long as payment to a student-athlete as part of an NIL deal would not have been made in the absence of the student-athlete’s athletic reputation and/or skill, one must conclude that the payment was made “because of” the student-athlete’s athletic reputation and/or skill. And the fact that there may have been an additional factor that motivated the payment would not change this outcome. This, of course, would mean that all kinds of NIL activity that is universally considered permissible under the NIL Policy could actually fall within the category of “pay-for-play.” Take, for example, Blake Corum, standout running back for the Michigan Wolverines. Boasting partnerships with Subway, Outback Steakhouses, and Celsius, among others, Corum has an annual NIL valuation of nearly $1 million according to On3.com. Under the but-for test, the question we must ask is whether Corum would be likely to receive the same compensation but-for (i.e., even in the absence of) his “athletic reputation or skill.” The answer, of course, is obviously no. Moreover, under the but-for standard, it is irrelevant that any promotional activity Corum may have engaged in as part of these agreements—for example, appearing in commercials or attending a promotional event—also may have motivated these companies to pay him. So long as changing a single factor—here, Corum’s athletic skill or reputation—would affect the outcome, that factor is a “but-for” cause and will trigger the Bylaw. Thus, under the extremely broad interpretation advanced by the NCAA, nearly every NIL deal now accepted as permissible could in fact be prohibited as “pay-for-play.” The second problem with treating the act of a promotional activity as the distinguishing factor between “pay-for-play” and allowable NIL activity is that the distinction serves no legitimate purpose. Requiring a student-athlete to engage in some promotional activity in exchange for compensation does little, if anything, to advance the NCAA’s purported goal of protecting student athletes “from exploitation by professional and commercial enterprises.”[6] The following hypothetical illustrates the arbitrariness of the NCAA’s standard. Assume that student-athlete A, who is already enrolled at and competing for a particular school, accepts compensation from a third-party, but does not engage in any promotional activity in exchange for the compensation. Assume also that student-athlete B receives the same amount of money as student-athlete A from a company in exchange for posting an endorsement of the company’s product on social media. In both scenarios, the student-athletes receive the same amount of compensation, the compensation comes from a third-party (as opposed to the school itself, a booster, or someone else affiliated with the school), and the payment is (at least in theory) unrelated to the players’ willingness to attend or play for the university at which he is enrolled. The only difference, of course, is that student-athlete B has participated in a minor promotional activity—here, posting an endorsement on social media. And yet, the former apparently constitutes a “pay-for-play” arrangement for which student-athlete A would be deemed ineligible, while the latter would be entirely permissible as “allowable NIL activity.” Other examples also demonstrate the absurdity of this distinction. For instance, reports of student-athletes leveraging a more favorable NIL deal by threatening to transfer or declare early for the NFL Draft have become commonplace in the current NIL landscape. In a typical example of these scenarios, the student-athlete assesses the NIL opportunities presented to him by the school’s collective and decides whether the amount he can collect from those opportunities is sufficient to keep him at his current school. In response, the collective scrambles to piece together additional NIL opportunities to increase the student-athlete’s total potential income, thus incentivizing the student-athlete to remain at the school, rather than transfer to a school capable of offering greater NIL compensation. This scenario would seem to fall squarely within the NCAA’s proposed interpretation of “pay-for-play,” which (according to the NCAA in its motion to dismiss) includes, “any situation where a purported amateur is using his athletic talent to obtain remuneration, regardless of its source.” After all, it is only because of the student-athlete’s athletic talent that the collective at his current school is willing to offer him additional compensation. Moreover, this situation would seem to also involve improper recruiting inducements, given that the additional payments are made with the purpose of dissuading the student-athlete from transferring to a different program. And yet, the NCAA does not condemn these incidents as “pay-for-play” or “impermissible recruiting inducements” in violation of its NIL policy, presumably because the arrangements include a promotional activity on behalf of the student-athlete. Instead, the NCAA pretends that payment was made solely for the promotional activity and thus labels these arrangements “allowable NIL activity.” But, again, even if the promotional activity somehow removes this scenario from the NCAA’s proposed definition of “pay-for-play,” why should a player who receives the same compensation under similar circumstances, but does not engage in a minor promotional activity, receive the harsh punishment of being deemed ineligible for having engaged in “pay-for-play”? None of this is to suggest that all (or any) of the arrangements discussed above should be prohibited by the NCAA. To the contrary, it simply highlights the absurdity of the NCAA’s position on “pay-for-play” and the general arbitrariness of the NCAA’s rules—not to mention the selective enforcement of those rules. In reality, there is no meaningful distinction between what the NCAA calls “pay-for-play” and what it calls “allowable NIL activity.” Accordingly, the NCAA should concede that any distinction it tries to draw between “allowable NIL activity” and impermissible “pay-for-play” arrangements is completely arbitrary and totally impractical. “Pay-for-play” is already happening—the NCAA just refuses to refer to it as such. But labeling certain arrangements “allowable NIL activity” simply because they include some minor promotional activity does not change the fact that those arrangements fall squarely within the NCAA’s articulation of “pay-for-play.” Once the NCAA accepts this fact, perhaps it will be more inclined to take the next step toward implementing a system that is based in reality with clearer and more transparent rules and limitations, to the benefit of all parties. 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. [1] Bush has consistently disputed the allegations contained in the COI Report and continues to do so. [2] COI Report at 55-56. [3] The complaint was filed in Marion Superior Court in the State of Indiana. It is available at https://public.courts.in.gov/MyCase#/vw/CaseSummary/eyJ2Ijp7IkNhc2VUb2tlbiI6Imx5QkllMlZLa29GWW92cXpISHNocjRNUmdZN2s3S0wyLUV6N2RzZEh3M3cxIn19(Case No. 49D01-2308-CT-033106). Bush has since filed an Amended Complaint, but the allegations discussed herein are unchanged in the Amended Complaint. [4] NCAA Bylaw 12.02.10 (2023-24) (emphasis added). [5] NCAA Bylaw 12.1.2.1 (2023-24) (emphasis added). [6] NCAA Motion to Dismiss at 3-4.

On December 9, Shohei Ohtani ended his free agent courtship by signing a record-breaking 10 year / $700M contract with the Los Angeles Dodgers. Ohtani’s deal not only made him the highest paid player in Major League Baseball, but it also made him the highest paid athlete in America. Ohtani’s former teammate and future hall of famer, Mike Trout, is the second highest paid player in professional baseball; he is currently playing under a 12 year / $426M contract with the Los Angeles Angels—$274M less in total value. Although the total value is jaw dropping, Ohtani’s deferred salary is what makes this deal even more unique. Deferred salaries in of itself are not unique to MLB. Former Arizona Diamondback’s owner, Jerry Colangelo, notoriously negotiated several deferred contracts in the early 2000’s. His approach led to a star-studded ball club and an eventual World Series win in 2001. However, when Ken Kendrick took over as the managing partner in 2004, he had to foot the bill for 18 different deferred salaries left over by Colangelo, 15 of which were no longer a part of the Diamondbacks organization—most notably Randy Johnson, Curt Schilling, and Luis Gonzalez. According to Kendrick, he was responsible for $254M in deferred salaries. This, in essence, financially restricted the Diamondbacks over the next decade because they had to continue paying former players along with their current roster. On a larger scale, this led to MLB codifying deferred salaries into its Collective Bargaining Agreement (CBA); the CBA has largely maintained the same structure for deferred salaries since. Currently, there are no restrictions on how much money can be deferred, but each club is responsible for paying the deferred salary in an amount “equal to the present value of the total deferred compensation obligation, on or before the second July 1 following the championship season in which the deferred compensation is earned.”In other words, clubs can continue to defer as much as they want, but they will be subject to the Competitive Balance Tax (CBT)—commonly referred to as the “luxury tax.” The luxury tax refers to an increased tax rate for each dollar that exceeds a predetermined amount set forth by the CBA. The predetermined amount is outlined in the current CBA (in effect until the end of 2026); the remaining total is as follows: $237M in 2024, $241M in 2025, and $244M in 2026. And the tax rate is is determined by using the average annual value of each player’s contract, plus any additional player benefits (e.g., moving expenses, travel allowances, etc.). Thus, if a ball club spends more than $237M in its 40-man roster payroll in 2024, they will be taxed an excess amount. The tax rate is compounded over time for each consecutive year a club exceeds the predetermined amount. In year one, a club will have to pay a 20% tax on all overages; in year two, a club will have to pay a 30% tax on all overages; and in year three and beyond, a club will have to pay a 50% tax on all overages. If a club’s payroll goes below the luxury tax threshold for a season, then it resets, and they will go back to paying 20% if the exceed it again in the future. There are also additional surcharges if a club goes $20M over the threshold; the surcharge ranges from 12% to 60%. Ohtani’s new contract creates a situation where the luxury tax will inevitably collide with his deferred salary. However, like Colangelo’s Diamondbacks, the Dodgers front office could not have asked for a better situation for their immediate future. Typically, deferred salaries are spread out over a long period of time (i.e., ten years). And basic economics would tell us that the value should decrease over the length of the contract because of inflation and the decrease of the U.S. dollar over time. Since this is the case, it could look like Ohtani may have left some money on the table. This requires a deeper look. If Ohtani’s chose to not defer any of his salary, then his contract would have an average annual value (AAV) of $70M for the next 10 years, and the Dodgers’ CBT payroll would reflect such. But any money deferred outside the term of the contract is calculated using its present-day value. Ohtani elected to defer 97% or $680M of his contact outside the term of his contract. Therefore, after adjusting for inflation, the Dodgers only have a payroll hit of roughly $53M when they start paying his annual salary of $68M in 2034. Their remaining payroll will look something similar to this: $52M in 2035, $50.5M in 2036, $49M in 2037, $48M in 2038, $47M in 2039, $46M in 2040, $44.6M in 2041, $43.5M in 2042, and $42.5M in 2043. Ohtani will still receive his $68M during each of those years, but it will not be as hard of a strain on the team’s payroll for CBT purposes; there is reportedly no interest with the deferred salary, so there is no additional compensation for the team to consider. One major factor to also consider for Ohtani is if he chooses to move out of California by 2034. If he moves to a state with no state-income tax, then he can maintain millions more. If moves out of California to a tax-free state (i.e. Texas), then he will pay approximately 39.6% of his income in taxes (federal). If he stays in California, then he will pay approximately $53.75% in taxes (state, federal, and payroll). Obviously, Ohtani does lose the opportunity costs that comes with receiving the $68M now, but he will more than make up for it with off-the-field deals. The only real “risk” Ohtani faces with a deferred contract is the club’s ability to pay him. However, Forbes valued the Dodgers as worth $4.8B in 2023, so they are nearly a sure bet to be able to pay him. The Dodgers, like the Diamondbacks of the early 2000s, are in a win-now mode, only their window is much larger. And since the Dodgers have been to the postseason for 11 consecutive seasons, it is likely that MLB will see its best player in the postseason for years to come. Caleb Ortega is a 2L at South Texas College of Law. He served in the United States Marine Corps and is the Secretary of his school’s Sports & Entertainment Law Society. He can be reached on X and LinkedIn. References: [1] https://www.sportico.com/personalities/athletes/2023/shohei-ohtani-dodgers-contract-details-700-1234757983/ [2] https://www.eastvalleytribune.com/sports/deferred-contracts-still-limiting-d-backs-budget/article_a2bbfeec-ee4f-514c-9460-bb3725a7abf6.html [3] https://www.mlb.com/news/shohei-ohtani-dodgers-deal-deferrals-explained#:~:text=“Article%20XVI%20–%20Deferred%20Compensation”,Uniform%20Player%27s%20Contract%20may%20provide. [4] https://www.mlb.com/glossary/transactions/competitive-balance-tax [5] https://www.mlb.com/news/shohei-ohtani-dodgers-deal-deferrals-explained [6] https://www.cnbc.com/2023/12/14/why-shohei-ohtanis-700-million-contract-and-deferred-income-is-risky.html#:~:text=The%20Japanese%20superstar%20will%20receive,a%20guaranteed%208%25%20interest%20rate. [7] https://www.voanews.com/a/7400829.html# [8] https://smartasset.com/investing/inflation-calculator#1jDpbQlOr1 [9] https://www.forbes.com/teams/los-angeles-dodgers/?sh=1910ba8223ae [10] https://www.usatoday.com/story/sports/mlb/columnist/gabe-lacques/2023/10/12/los-angeles-dodgers-mlb-playoffs-history/71154122007/#

Alongside NIL, the one-time transfer rule has changed the landscape of college athletics. Prior to the launch of the “Transfer Portal,” NCAA football, men’s and women’s basketball, baseball, and men’s hockey players were required to sit out for a full season of play if they decided to transfer. Before the enactment of this rule, many players still changed schools in search of more playing time, enhanced competition levels, better academic opportunities, etc., but the quantity of transfers in today’s environment is not even comparable to the pre-2021 figures. Once the NCAA opened pandora’s box of allowing one transfer while retaining eligibility, it was only a matter of time before athletes, agents, and lawyers alike started to begin pushing for multiple transfers. In the time since the passing of the one-time transfer rule, the legal environment has swung even more towards college athlete empowerment. The 9-0 decision in the Alston case, looming employment lawsuits like the House case, and even Charlie Baker’s new proposal that would create a “new D1” have certainly changed the narrative in rapid fashion. To avoid sitting out after transferring for a second or even third time, many athletes have attempted to obtain a waiver from the NCAA, indicating a “good” reason for their additional transfer. These waivers have routinely been denied by the NCAA, which has caused quite a stir in many cases. However, the NCAA’s insistence on preventing athletes from maintaining eligibility after multiple transfers has recently taken a hit. After an antitrust lawsuit was filed by seven different states on the matter, U.S. District Court Judge John P. Bailey granted a 14-day temporary restraining order prohibiting the NCAA from enforcing its transfer waiver rules. The states involved in seeking the restraining order were Colorado, Illinois, New York, North Carolina, Ohio, Tennessee, and West Virginia. Ohio Attorney General Dave Yost stated “At the hearing, we found out that 99 players had been denied a waiver, and 44 are currently in process waiting. It’s reasonable to believe that 100 athletes or more could be impacted by today’s restraining order against the NCAA double transfer rule.” The lawsuit alleged requiring athletes to sit out means lost potential earnings form NIL or professional career opportunities. It pointed to exposure from competing in national broadcasts, claiming: “One game can take a college athlete from a local fan favorite to a household name.” Despite the ruling, college administrators are still holding fast in their belief that athletes shouldn’t maintain immediate eligibility following a second transfer. Georgia President and Board of Directors Chair Jere Morehead believes a policy to allow unlimited transfers is “inconsistent” with the NCAA’s mission of graduating student-athletes. Moreover, in unpacking the NCAA’s argument Sportico’s Michael McCann notes the NCAA has “sharply rebuked the AGs’ legal arguments as endangering college athletes’ academic interests, disturbing college athletics’ competitive balance and embodying government overreach into a private association.” The NCAA also argues the attorneys general are seeking to “rewrite the rule of a private association” to effect “virtually unlimited” transferring in college sports and offer “virtually no facts or legal authority to support their proposed change.” In its argument, the NCAA contends the AGs are misreading the U.S. Supreme Court’s ruling in the Alston case in saying “The ruling concerned a narrow and unrelated issue: NCAA limitations on education- related benefits (not athletics, transfers or NIL).” The TRO also prohibited the NCAA from enforcing its rule of restitution, which allows punishment for playing athletes who are later deemed ineligible. As for how many schools will play student-athletes while the rules are suspended, Kennyhertz Perry attorney Mit Winter remarks: “I think it’s unlikely the NCAA tries to enforce its transfer rules against any athletes now. It will instantly get sued. And I think the judge is also likely to grant a preliminary injunction after the end of the TRO’s 14-day period.” Winter also points out that to grant a TRO, a court “has to find there’s a likelihood of success on the merits of the underlying claims. This means the judge believes the state AGs will likely prevail on their claim that the NCAA’s transfer waiver rules violate fed antitrust law.” After Judge Bailey’s decision, according to Yahoo’s Ross Dellenger, the NCAA originally claimed that as a result of the decision, it “will not enforce the year in residency requirement for multiple-time transfers and will begin notifying member schools.” However, Dellenger reports the NCAA has since provided clarity, and a student-athlete who competes in a game over the next 14 days will, in fact, lose a season of eligibility if the court’s ruling is reversed. Where things go from here will definitely be worth monitoring. A full hearing is set for December 27, where more clarity on the matter would certainly be welcomed by athletes seeking a waiver, coaches, and compliance personnel across the country. Regardless, this is just another example of the legal environment threatening the NCAA’s governance power over college athletics.

(Image via Joshua Bessex/Getty Images) Per the Dallas Police Department, Buffalo Bills Defensive End Von Miller has an arrest warrant active against him for allegedly assaulting a pregnant person. According to the police report, Miller and the alleged victim got into a verbal argument that turned physical when Mr. Miller allegedly assaulting the victim. The allegations according to the Dallas Morning News is Mr. Miller grabbed the alleged victim by the throat and shoved her. For the record, I prosecuted close to 1,000 domestic violence cases while I was a misdemeanor and felony prosecutor for over 3 years. I have also defended client(s) against this very charge. What does this charge legally mean to Von Miller? First, in the State of Texas, Assault is defined as the following: Texas Penal Code: Section 22.01 Assault (a) a person commits an offense if the person: 1) Intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse. 2) Intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse. 3) Intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or practice. Assault is usually a Class A misdemeanor but if the alleged offender knew the alleged victim was pregnant at the time, the charge becomes a 3rd-degree felony. A 3rd-degree felony is punishable by no less than 2 years and no more than 10 years. Additionally, the Dallas Police may have enough to arrest Mr. Miller but a grand jury needs to agree with the charge. That is because in the State of Texas, all felonies must be charged by grand jury. That means the police will arrest Mr. Miller, but they need a grand jury to agree with them in order to formally charge Mr. Miller. As we saw in the Deshaun Watson case, grand jury indictments are not automatic. The District Attorney’s Office, if they wish, could simply charge Mr. Miller with assault, which would allow them to bypass the grand jury proceedings. Whether this case is formally charged will depend on victim cooperation and corroborating evidence. Alleged domestic violence cases can change on a dime. The reason is that how an alleged victim feels one day may change the next. I expect the alleged victim to meet with the District Attorney’s Office to discuss this matter. She very well may change her tune when she inevitably asks the prosecutor, “What is he looking at?” The prosecutor’s response would likely be, “Potential prison time as the sentencing guidelines call for prison time”. For which, I expect her to respond, “I do not want him to go to jail/prison. I just want him to get help.” I personally was told that almost every single time I interviewed an alleged domestic violence victim. If the victim doesn’t agree with how the prosecutor wishes to proceed, I don’t expect her to testify in front of the grand jury. Without a cooperating victim, this matter would depend on corroborating and/or on independent evidence. Were there any independent witnesses present when this alleged incident occurred? If so, I would expect the case to be formally charged. Is there a 911 call where there could be excited utterances? Excited utterances are an exception to the hearsay rule and victim unavailability is immaterial (there are hearsay exceptions where victim unavailability is required). Did the alleged victim make any statements while under the stress of the situation to law enforcement? Did law enforcement observe any injuries on the alleged victim? All of that will go towards whether or not Von Miller is formally charged with assault on a pregnant person. My read on the situation is this: If the alleged victim is cooperative, I think it would be difficult for Mr. Miller to dodge the indictment. Whether he is actually convicted is still a very long way away. We shall see. Matthew F. Tympanick, Esq. is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense, Personal Injury Law, and Sports Law. Arrested or Injured? Don’t Panic…Call Tympanick! 1(888)NOPANIC. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and a Staff Editor on the UMass Law Review. He has appeared nationally on television, radio, and podcasts discussing criminal cases specifically sports criminal cases. He was previously a felony prosecutor where he prosecuted thousands of misdemeanor and felony criminal cases. He also has tried over 40 jury and non-jury cases. You can follow him on Twitter, Instagram, and Facebook @TympanickLaw.