Across the NFL, NBA, and MLB, sports owners are in full peacock mode. Strutting. Proud. Bruce Sherman, the Miami Marlins Owner, reportedly sought a new president of baseball above Kim Ng’s position despite the team’s recent success of making the playoffs. Ng declined the Marlins’ option. Sherman defended his reasoning by citing the team’s need for player development and drafting abilities.[1] After five and ½ years, Sherman is making it publicly known that he is the face of the Marlins instead of Derek Jeter or Kim Ng. In the NFL, David Tepper, the Carolina Panthers Owner, continues to be an active new owner in his first 5 years. First, Tepper hired college football coach, Matt Rhule, and then fired him after less than three seasons. Tepper’s new head coaching hire, Frank Reich, has the Panthers winless at 0-5. After Reich’s multiple “not fun” meetings with Tepper, Reich gave away his play-calling duties to offensive coordinator, Thomas Brown.[2] Clearly, Reich’s decision was an attempt to appease Tepper. As new owners, Sherman and Tepper are showing everyone who’s in charge. In Dallas, the owners are happy. Mark Cuban, the Dallas Mavericks Owner, took his team to Abu Dhabi to play a preseason game with the future hopes of acquiring sovereign wealth investment similar to the deal struck by Ted Leonsis, Owner of the Washington Wizards, Capitals, and Mystics.[3] Jerry Jones, the Dallas Cowboys Owner, loves the “tush push” play so much that it was not eliminated in the last owner’s meeting.[4] The safety issue of the ‘tush push’ play and the moral concern of sports washing or image laundering seem to escape the minds of Dallas owners. Of course, no owner is happier than Jody Allen, the Portland Trailblazers Owner. In early September prior to trading Damian Lillard, Allen declared, “We really need to move on. We’ve got great young talent. We’re not like other rebuilding teams who don’t have a strong core of young players. It’s time to turn the page” from Damian Lillard.[5] Not only did the Portland Blazers receive a hull of players and draft picks, but they sent Lillard to a better winning situation in the Milwaukee Bucks than the Miami Heat. By General Manager, Joe Cronin, ignoring Lillard’s trade request to be only sent to the Heat, Hankins made a better winning and career decision for Lillard’s own legacy than Lillard desired. Surely, NBA front offices will cite the Lillard trade to players like James Harden who make trade requests. The Philadelphia 76ers and new Washington Commanders Owner, Josh Harris, put his foot down by refusing to give James Harden a long-term deal; instead, Harris wants James Harden to play on a 1-year deal or receive significant trade compensation.[6] Without a long-term deal, Harden wants to play for Steve Ballmer, Owner of the Los Angeles Clippers. Recently, Ballmer celebrated the start of construction on his new Clippers stadium with 1,500 toilets and is reportedly refusing to trade Terance Mann to the Sixers for Harden.[7] Harris and Balmer are in an old-fashioned standoff with the prize of a playoff absentee player in Harden. And how are owners dealing with domestic violence problems? They are benefiting from it. Tilman Fertitta, the Houston Rockets Owner, first banned Kevin Porter Jr from the facility for his recent charges of second-degree assault, third-degree assault, and felony strangulation. After Porter’s ex-girlfriend defended Porter and the Manhattan prosecutors dropped the second-degree assault charge, Fertitta turned a tragedy into a trade positive by sending Porter, a 2027 second-round pick, and a 2028 second-round pick to Oklahoma City Thunder for Victor Oladipo and Jeremiah Robinson-Earl. Clayton Bennett, the Oklahoma City Thunder Owner, will add these picks to his already large pile and waive Porter. Instead of speaking on the problem of domestic violence or even making a half-hearted attempt at donating money to a domestic violence organization, Fertitta and Bennett said nothing and made their teams better. Charlotte Hornets This leads to the new owners of the Charlotte Hornets, Rick Schnall and Gabe Plotkin. What will their strategy be with Miles Bridges who recently violated the protection order from his 2022 felony domestic violence charges? Will they follow Sherman and Tepper and show the NBA who is in charge? Will they keep Bridges and side with Cuban and Jones choosing profit and talent over safety and morality? Will they merely “move on” from Bridges? Will they stand pat and wait like Harris and Ballmer? Or use him as a trade piece like Fertitta and Bennitt? Legally, the ownership relationship is unique between Schnall and Plotkin because they have a Rotating Ownership: “Plotkin and Schnall will serve as Co-Chairman of Hornets Sports & Entertainment and will rotate the team’s governorship every five years, beginning with Schnall.”[8] Surely, Schnall and Plotkin will want to reach a consensus as new owners dealing with their first big problem. However, Schnall has final decision-making power. This is important for the NBA because The NBA requires one voice, or one owner who speaks for the entire team. The one-voice theory is seen in constitutional law. In the three branches of government, there is only one branch that speaks to the international world, the executive branch. One person represents America and speaks for America when America must speak to the international world. How will Schnall speak? Schnall has options, but this is his first test in figuring out his own voice knowing that it also has a five-year time limit. Lebron James Why should Lebron James care about any of this? The Charlotte Hornets Rotational Ownership Model offers a unique blueprint for James to own a team in Las Vegas. Last year, James officially became a billionaire.[9] He is also involved in the ownership group with Fenway Sports Group, Owners of the Boston Red Sox, Pittsburgh Penguins, and Liverpool of the Premier League. However, the expansion fee alone is reportedly $2.5 billion plus all of the other expenses required to own a team. [10] Plus, to be an owner, you must personally put in a certain amount of money. James’ competition is Tim Leiweke, CEO of the Oak View Group, who has budgeted $10 billion for a basketball arena, hotel, gaming, and entertainment district in the Las Vegas area. Due to the rising costs and steep competition, James should be open to a Rotational Ownership Contract with either Fenway Sports Group or the Oak View Group. 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 also a Co-Founder of The Moral Questions of Sports. He can be reached via Instagram, @themoralquestionsofsports. Sources: [1] See Barry Jackson’s Miami Herald article, “One driving factor in Marlins’ decision with Ng. And a look at how her trades worked out.” https://www.miamiherald.com/sports/mlb/miami-marlins/article279076609.html [2] See Alex Zietlow’s Charlotte Observer article, “Carolina Panthers Frank Reich says owner David Tepper won’t ‘sit idly by.’” [3] See Ken Maguire’s The Associated Press article, “Mavs and Timberwolves play in Abu Dhabi as Gulf region’s influence with the NBA grows” https://www.nbcdfw.com/news/sport problms/nba/mavs-and-timberwolves-play-in-abu-dhabi-as-gulf-regions-influence-with-the-nba-grows-2/3354856/ [4] See Rob Maaddi’s FOX Sports article, “NFL explores ban on hip drop tackle, considers ‘tush push’ rule change for safety” https://www.livenowfox.com/sports/nfl-explores-ban-on-hip-drop-tackle-considers-tush-push-rule-change-for-safety [5] See Ben Golliver’s The Washington Post article, “The Blazers waved goodbye to Damian Lillard. Now what?” https://www.washingtonpost.com/sports/2023/10/06/trail-blazers-life-after-damian-lillard/ [6] See Shams Charania and The Athletic Staff article, “James Harden tells NBA investigators Daryl Morey said he’d trade guard ‘quickly’ after opt in: Sources.” https://theathletic.com/4793506/2023/08/21/james-harden-daryl-morey-liar-nba-investigation/?source=twitterhq [7][7] See Kyle Neubeck Philly Voice article, “In new interview, James Harden addresses his future and star trade rumors.” https://www.phillyvoice.com/james-harden-trade-rumors-nba-damian-lillard-interview/ [8] See NBA article, “Group Led By Gabe Plotkin and Rick Schnall Finalizes Purchase of Majority Stake in Charlotte Hornets from Michael Jordan” https://www.nba.com/hornets/news/group-led-by-gabe-plotkin-and-rick-schnall-finalizes-purchase-of-majority-stake-in-charlotte-hornets-from-michael-jordan [9] See Chase Petrson-Withorn’s article, “Lebron James is a Billionaire” https://www.forbes.com/sites/chasewithorn/2022/06/02/lebron-james-is-officially-a-billionaire/?sh=14654194453e [10]See Callie Lawson-Freeman’s article, “Lebron James wants Las Vegas NBA team. So does Shaquille O’Neal, who doesn’t want to ‘partner up.’ https://sports.yahoo.com/lebron-james-wants-las-vegas-nba-team-so-does-shaquille-oneal-who-doesnt-want-to-partner-up-191411505.html

Caselaw History Name, Image, and Likeness (“NIL”) in college sports first became a talking point in the legal field with Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85, 94 (1984). The issue there was whether the NCAA restricting schools’ rights to sell their own broadcast rights as part of a larger deal with ABC, CBS, and TBS violated antitrust law.[1] Once reaching the Supreme Court, the first seed of NIL analysis was planted. The Court stated that the NCAA horizontally restrained trade by price-fixing TV deals, which required Rule of Reason analysis under the Sherman Antitrust Act.[2] Under Rule of Reason, the plaintiff has the initial task to show the restraint causes “significant anticompetitive effects within a relevant market.”[3] If the plaintiff succeeds, the defendant must show evidence of the restraint's “procompetitive effects.”[4] Lastly, the plaintiff must then demonstrate any legitimate objectives that can be accomplished in a “substantially less restrictive manner.”[5] The NCAA’s evidence for procompetitive effects was unpersuasive, so the agreement violated the Sherman Antitrust Act.[6] One quote stands out: “The NCAA seeks to market a particular brand of football -- college football. . . . In order to preserve the character and quality of th(is) ‘product’, athletes must not be paid, must be required to attend class, and the like.”[7] Then comes O'Bannon v. NCAA, 802 F.3d 1049, 1070 (9th Cir. 2015). Ed O’Bannon, a former basketball player at UCLA, saw himself in a video game.[8] The character resembled Ed, had his jersey number, and played for UCLA even though O’Bannon never consented to have his likeness used, nor was he ever paid for it.[9] O’Bannon sued the NCAA and Collegiate Licensing Company (CLC), arguing rules forbidding paying an athlete violated the Sherman Antitrust Act.[10] O’Bannon reached the appellate courts, with the appellate court affirming that the NCAA must satisfy Rule of Reason analysis which “requires that the NCAA permit its schools to provide up to the cost of attendance to their student-athletes”.[11] According to the court, the discrepancy in “offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap.”[12] If this were allowed, the NCAA would no longer have a differentiated product and would then be no different than minor league sports.[13] NCAA v. Alston involved current and former Division I student-athletes suing the NCAA for their compensation rules, alleging that they violated Section 1 of the Sherman Act.[14] Ultimately, the Supreme Court upheld the injunction granted by the district court which restricted cash awards to players for academic achievement by capping them at $5,980 annually.[15] The NCAA still had freedom to reduce awards and/or set the criteria for earning the awards.[16] The NCAA is free to outlaw in-kind benefits unrelated to education if they want or ask for clarification from the district court before going to the Supreme Court.[17] Justice Kavanaugh’s concurrence showed us that the Supreme Court was catching up with the times and directly called out the NCAA: the NCAA’s business model would be flatly illegal in almost any other industry in America” because it is “price-fixing labor” which is a textbook antitrust issue and that the NCAA “is not above the law.[18] Alston’s Aftermath and the Logistics of Paying Players After Alston, schools still cannot pay athletes directly: coaches cannot offer money to recruits to go to a certain college nor can current student-athletes get compensation for any “athletic achievements.”[19] Student-athletes CAN earn money from “endorsements, signing autographs, selling apparel, corporate partnerships, charitable appearances, teaching camps and starting their own businesses”, etc., and can also hire “professional service providers for NIL activities.”[20] Some states even allow high school players to earn NIL deals, with no risk to their eligibility: Tennessee, California, and New York.[21] Early on, the NCAA stated that collectives, or “groups of boosters and businesses”, cannot be involved in recruiting or transfers, but states soon passed laws to allow schools or third parties to give money to student-athletes through NIL, with Tennessee as a prime example, along with Alabama and others.[22] Collectives are booming: Tennessee has Spyre Sports Group, one of three different Tennessee collectives, that works primarily with the University of Tennessee football and basketball.[23] Spyre has an annual goal of raising 25 million dollars and have raised 13.5 million dollars for confirmed NIL deals through their official collective: the Volunteer Club.[24] The Volunteer Club has one of the most high-profile deals thus far: Nico Iamaleava, the top-rated recruit out of the 2023 recruiting class, and a five-star quarterback from California.[25] On3 has his NIL value at approximately 1.2 million dollars and the deal is projected to be worth 8 million dollars over three years.[26] Who do Schools Look to Pay and What are the Numbers? This begs the question: what goes into a player’s value? On3.com offers a possible explanation: the Roster Value Index and the Brand Value Index, with three factors going into the calculation: performance influence, and exposure.[27] On3 notes that this dollar figure is the “optimized NIL opportunity for athletes relative to the overall NIL market and projects out to as long as 12 months into the future.”[28] College football recruiting is starting to mirror the veracious market for QB talent in the NFL. The top collectives for schools are “willing to spend at least $1 million on a blue-chip quarterback, with the market value for the position being toward the $1.5 to $8 million range once UT’s Iamaleava deal was public.[29] Lesser-rated QBs are cashing in on the booming market; according to one source one four-star QB is looking for $7-8 million, already having turned down an offer of $6 million.[30] It may be better to wait out the market so that a QB’s value continues to rise; one source said the rate could go as high as $5 to $8 million.[31] NIL's Effect on the Law How does all this data affect agency law? There could be a case for agents prioritizing certain positions when looking at potential clients: QB is likely given the massive growth in the market concerning the position. Moreover, agents could prioritize working in certain locations or with certain schools, given they can maximize the commission they earn because certain schools have higher budgets than others, with the Power 5 schools being an example. Furthermore, with agents that represent non-QBs, they may promote going to wherever the student-athlete can maximize their value. Agents repping QBs may prioritize player comps or the importance of garnering a social media following. Agents may also incentivize waiting to capitalize on their market value as the NIL space continues to grow. There is also the possibility for federal legislation, and there are multiple proposals: a bipartisan bill from Tommy Tuberville, a bill from Democrat Corey Booker, and a bill from Republican Roger Wicker.[32] The Power 5 conferences have some demands and preferences for these proposals; the must-haves are preventative while the preferences are concerned with “additional student-athlete support, healthcare benefits for student-athletes and enforcement of laws in new legislation”.[33] Some must-haves are: “college athletes being classified as employees; granting athletes their name, image and likeness rights in media telecasts of competition; and NIL or third-party payments being used as ‘recruiting or participating inducements.’”[34] Others include federal legislation preempting state laws, as well as to provide ‘legal liability protection for following these provisions of the new law, at least prospectively’”, effectively an anti-trust exemption, which is unlikely after the Alston opinion.[35] Athletes as employees is a particularly important issue. In Johnson v. NCAA, student athletes are arguing that they are employees under the Fair Labor Standards Act (FLSA), which entitles them to “minimum wage and overtime pay.[36] Hypothetically, these players could then unionize under collective bargaining and fight for revenue-sharing on their TV money, as Michael Hsu, a former Minnesota regent suggests, with the nightmare scenario being players could ask for as much as 50% during potential CBA negotiations, just like the pro players have successfully done.[37] The amount of revenue in play here would depend on the sport, so some athletes in different sports could benefit more than others, but the key is that every student-athlete would get something.[38] Johnson v. NCAA could affect Title IX, which “bars discrimination on the basis of sex for any educational program or activity receiving federal financial assistance.”[39] If Title IX still applies to employees, it “would require the benefits that a university provides male and female athletes to be comparable, thus creating a sizable financial stress test for schools”; but if not, “women’s sports (and non-revenue sports in general) would be vulnerable to being eliminated.”[40] Even if Title IX still applies, some male athletes could challenge the proportion of revenue given to female athletes, with a reduction almost certain, since women’s sports typically do not bring in as much revenue, using basketball as an example.[41] If this is challenged, it could undo years of progress and development in women’s sports.[42] Antitrust law could be dealt yet another blow with House v. NCAA.[43] There, athletes argue denying NIL for college athletes “should, lead to monetary damages for athletes who were denied endorsement, group licensing and other opportunities that would have existed in the college sports marketplace," and so essentially granting back pay due to the lost opportunity on endorsements, apparel, autographs, etc.[44] This case has the potential to “bankrupt the NCAA.”[45] Adam King is a recent graduate from the University of Tennessee College of Law. He is currently clerking for a practice in Crossville, Tennessee that focuses on criminal defense and estate planning, but hopes to make a name for himself in sports law. Adam can be found on LinkedIn at Adam King. Sources: [1] Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85, 94 (1984). [2] O'Bannon v. NCAA, 802 F.3d 1049, 1070 (9th Cir. 2015). [3] Id. [4] 802 F.3d at 1070. [5] Id. [6] Bd. of Regents, 468 U.S at 120. [7] Id. at 101-02. [8] O'Bannon, 802 F.3d at 1055. [9] Id. [10] O'Bannon, 802 F.3d at 1055. [11] Id. at 1079. [12] O’Bannon, 802 F.3d at 1079. [13] Id. [14] NCAA v. Alston, 141 S. Ct. 2141, 2151 (2021). [15] Id. at 2153. [16] Alston, 141 S. Ct. at 2153. [17] Id. at 2165-66. [18] Alston, 141 S. Ct. at 2167, 2169 (Kavanaugh J. concurring). [19] Pete Nakos, Why NIL has Fans, Coaches, Administrators Anxious about Future of College Sports, (March 15, 2023, 8:31 pm), https://perma.cc/3Q99-Q3TE. [20] Id. [21] Nakos, supra note 19; NIL High School Rules, on3.com, https://perma.cc/2TZ7-TB6A (March 15, 2023 9:01 pm). [22] Id.; see also NIL College Rules, On3.com, https://perma.cc/9WAP-8DUG, (March 16, 2023, 1:48 pm). [23] Dan Morrison, Tennessee Volunteers NIL Collective: Spyre Sports Group (March 15, 2023, 9:15 pm), https://perma.cc/6MUP-LMDL. [24] Pete Nakos, Spyre Sports' Volunteer Club Facilitates $13.5 million in NIL Deals, (March 15, 2023, 9:20 pm), https://perma.cc/C6PV-R9CG. [25] Pete Nakos, The Volunteer Club Signs NIL deal with Tennessee Quarterback Nico Iamaleava, (March 15, 2023, 9:23 pm), https://perma.cc/J658-5T2J. [26] Id. [27] Shannon Terry, About On3 NIL Valuation, Brand Value, Roster Value (March 15, 2023, 9:36 pm) https://perma.cc/EQL3-RRVU. [28] Id. [29] Jeremy Crabtree, NIL Creates Multi-Million Market Rate for Blue-Chip Quarterbacks, (March 16, 2023, 10:10 am), https://perma.cc/E6JG-5YPE. [30] Id. [31] Crabtree, supra note 29. [32] Jeremy Crabtree, Former Auburn Coach Tommy Tuberville to Introduce NIL Regulation Bill in Senate, (March 16, 2023, 12:00 pm), https://perma.cc/Z55G-TA3N; Pete Nakos, Five Senators Set to Reintroduce Athlete Bill of Rights in Congress, (March 16, 2023, 12:31 pm), https://perma.cc/EPS7-9MFD; U.S. Senate Committee on Commerce, Science, and Transportation, Wicker Reintroduces Bill Establishing a National Framework for Student Athlete NIL, (March 16, 2023, 12:43 pm), https://perma.cc/9UGY-4GQK. [33] Andy Wittry, ACC Memo: Power 5 Reach Consensus on What ACC Calls ‘Must Haves’ with Federal Legislation, (March 16, 2023, 12:04 pm), https://perma.cc/HV2Y-DZ2E. [34] Id. [35]Wittry, supra note 33; Andy Wittry, Can Congress Help with the Power 5’s ‘Must Haves’ and ‘Negotiated Issues’?, (March 16, 2023, 12:15 pm), https://perma.cc/UU4C-ZHMV. [36] Eric Prisbell, Johnson v. NCAA: Why College Sports Fans Need to Pay Attention to this Court Case, (March 16, 2023, 12:53 pm), https://perma.cc/54HA-STHD. [37] Wittry, supra note 35. [38] See Eric Prisbell, Student-Athletes as School Employees Could Lead to Interesting Negotiations, (March 16, 2023, 1:11 pm), https://perma.cc/S3M3-S5JA. [39] Prisbell, supra note 36. [40] Id. [41] David Berri, For the NCAA, Building the Business of Women’s Sports Starts With Basketball, (April 28, 2023, 10:46 am), https://perma.cc/VXD5-YYGA. [42] Prisbell, supra note 36. [43] House v. NCAA, 545 F. Supp. 3d 804 (N.D. Cal. 2021). [44] Id. [45] Wittry, supra note 35.

In an ever-changing sports marketing landscape, the NFL has unveiled an innovative strategy to harness the marketing skillfulness of college athletes, propelling itself into a dynamic future of fan engagement and brand connectivity. The NFL has taken a significant step in broadening its outreach by enhancing its program aimed at enlisting college players as brand ambassadors, reports Julian Cannon of DIGIDA. This fresh initiative, known as the Collegiate Marketing Program, aspires to foster a closer connection between collegiate athletes and the NFL. Notably, this year's initiative boasts active participation from all 32 NFL teams and over 100 universities nationwide, a significant expansion from the 60 participating universities last year. This expansion aligns with the NCAA's adoption of its NIL (Name, Image, Likeness) Program, which permits college students to earn compensation for the use of their personal brand. Experts estimate the NIL market to be currently valued between $750 million to $1 billion, with projections suggesting it could swell to a staggering $3-$5 billion within the next five years, as reported by On3.com. Football stands at the forefront of the NIL arena, closely followed by men's basketball. Sana Merchant, NFL Senior Director of Club Social Strategy, highlighted the NFL's pre-existing collaboration with college students, even before the NIL rule change. During this period, students were involved in creating content related to NFL alumni who were once recruited from their college programs. Through the marketing program, college athletes receive coveted exposure on NFL social platforms and gain access to the NFL's valuable intellectual property. This access enables them to incorporate NFL-sponsored content into their own promotional endeavors. The NFL, regardless of the content creator, maintains specific guidelines about where its content can be used, working in tandem with the respective colleges to establish precise policies. “We work with our partner schools to highlight key on and off-field moments that we think will resonate with our target demos,” said Merchant. “Though the game action is a core tenant of our strategy, our coverage goes much beyond that and a lot of the content we collaborate on focuses on moments where the helmets are off.” They have been covering a wide spectrum of topics, including key college matchups, compelling storylines, combine performances, drafts, rookies' debut games, and more. Merchant declined to disclose specific budget details, so for now the precise allocation of the NFL's advertising budget for these efforts remains undisclosed. Ryan Detert, CEO of Influential, an influencer marketing agency, underscored the critical importance of expanding fan bases, particularly among younger audiences like Gen Z and Gen Alpha. Detert pointed out that through the college marketing program, the NFL taps into the popularity of NIL-endorsed talent, bridging the gap between diverse demographics and piquing the interest of new fans who might not fit the traditional mold. As Detert noted, we can anticipate brands of all sizes leveraging NIL talent to better connect with younger fan bases and nurture brand loyalty moving forward. In embracing the potential of college athletes as marketers and seizing the opportunities presented by the evolving landscape of NIL, the NFL positions itself to engage fans across generations, ensuring a vibrant future for the sport. 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.

For the second time in just over a year, the National Football League has been named as a defendant in a lawsuit that accuses the league of racial discrimination. Former NFL Network journalist, Jim Trotter, filed a complaint in the United States District Court for the Southern District of New York claiming not only that he himself was subjected to discriminatory employment practices, but also asserting a slew of salacious, racially-charged allegations, including the 1930s “Gentleman’s Agreement” to exclude Black players, the blackballing of Colin Kaepernick, racist comments made by current NFL team owners, and the failings of the Rooney rule, to name but a few. The 53-page Complaint alleges that the NFL let Trotter go in response to his challenging the League – and in particular, Commissioner Roger Goodell – regarding the NFL’s track record on discrimination, as well as the League’s lack of diversity in its coaching ranks, in the League office, and in the NFL Media newsroom. In particular, the Complaint highlights two instances in which Trotter publicly asked Goodell, at the annual “State of the League” press conference before Super Bowls LVI and LVII, why “we’ve never had a black person in senior management in our newsroom.” Trotter alleges that, following these inquiries, he was asked by NFL Management to confirm whether Trotter was “in alignment” with the NFL, to which Trotter responded that he was not “in alignment” with the NFL’s lack of diversity, and reported his concerns about both discrimination and potential retaliation resulting from his questions. According to the Complaint, a few days later, and despite having previously informed Mr. Trotter’s agent that his contract would be renewed, the NFL allegedly retaliated against him by declining to renew his contract. Trotter brings six claims alleging retaliation and discrimination under three different statutes: Section 1981 of the Civil Rights Act of 1866 (“Section 1981”), the New York State Human Rights Law (“NYSCHRL”), and the New York City Human Rights Law (“NYCHRL”). The Complaint alleges that Trotter lost his job “for having the courage and integrity to stand up to the NFL.” More than Mr. Trotter’s courage and integrity, however, there are three pertinent issues presented in the Complaint which will affect the trajectory of the lawsuit. First, the Court must determine whether the NFL itself actually employed Trotter. For the Section 1981 claims, the Courts will analyze whether the NFL “exerted significant control” over Trotter: did the NFL supervise Trotter’s day-to-day activities; have the authority to hire or fire Trotter; set his work rules and conditions of employment; issue Trotter work assignments; or issue Trotter operating instructions? For the NYSHRL and NYCHRL claims, the Court will look at whether the NFL: (1) had the power to select and engage Trotter; (2) paid him; (3) had the power to dismiss Trotter; and (4) had the power to control the employee's conduct. Zurich Am. Life Ins. Co. v Nagel, 571 F Supp 3d 168, 184 (S.D.N.Y. 2021). The NFL will argue that Trotter had no contract with, and was not employed by, the NFL itself, but rather by NFL Enterprises and the NFL Network (or “NFL Media”). The Complaint attempts to preempt this issue by describing the ways that the NFL owned and controlled the NFL Media entities that actually contracted with Trotter and claiming that the NFL issued instructions regarding his work: not to mention suggesting strongly that Trotter was let go as a direct response to his questioning of Goodell. Second, the Court will evaluate whether Trotter was engaging in protected activity. Under these statutes, the term “protected activity” includes action taken to protest or oppose statutorily prohibited discrimination. This issue will likely come down to whether Trotter’s public and private inquiries regarding Black representation in the newsroom and on the news desk constituted protests of alleged discrimination. Third, the Court must decide whether the decision to let Trotter go was in retaliation for his actions and inquiries, or whether the defendants had a legitimate, non-retaliatory reason for its decision. There are, of course, more issues to be analyzed by the Southern District Court than the three discussed above. Like the pleadings in Brian Flores’ Complaint against the NFL, Trotter’s Complaint states the intention to file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission, after which he will likely amend his Complaint to include claims arising from Title VII of the Civil Rights Act. A claim under Title VII will almost certainly implicate additional issues for the Court to preside over. Defendants currently have until November 17, 2023 to respond to the Complaint by way of either Answer or Motion to Dismiss. Charles Bergin is an attorney at Kaufman Dolowich LLP. His practice focuses on labor and employment law, business litigation, immigration law and general liability defense. He has a background in entertainment law, sports law, and insurance litigation. He was named a 2020, 2021 and 2023 New York Metro “Rising Star” in the field of “Business Litigation”. Alessandro J. Angelori is an associate at Kaufman Dolowich LLP. His practice focuses on labor and employment law, insurance litigation and coverage, intellectual property matters, and general liability defense.

This past weekend, I was given the opportunity to attend the 45th ABA Sports and Entertainment Annual Conference in Las Vegas. It was an excellent conference and I felt as though I should share my experience with other law students who are interested in the sports law industry and why such law students should attend next year's conference and any others that become available to them. During three days, I met and spoke with over 50 practicing attorneys in the sports and entertainment industry. That would have taken me at least a month to do via social media (i.e., LinkedIn). Not only did I make a substantial amount of connections, but each connection started with a handshake, which placed a face to my name and my story. Suppose we all put ourselves in the shoes of a professional in this industry, or any industry, it is clear that an email from a random student might be intriguing the first time, but by the 30th student, you are attempting to create an automated template to respond to the students reaching out to you (or just ignoring them). However, when that introduction is an in-person handshake from a 6'1 goofy-looking redhead, not only do I get a personalized response, but the professional is much more likely to remember me. The professionals you meet give you their real-life story, which contains much more detail than their bio on LinkedIn or their firm’s/organization's website. This gives you the opportunity to imagine yourself in their shoes. If you think someone has your dream job, you get the chance to hear their story from exactly where you are at in life. Giving you an automatic road map to help shape how you can achieve your dream. Sure, you will deviate from their path because no two people are the same, but it places you in a much better position than you were in before you met them. The best part about hearing their story in person is that at any point if you have a question or want a deeper understanding of a certain matter, the professional will be happy to answer those questions, because what lawyer does not love talking about themself. During the conference, I was exposed to a wide variety of topics within the sports law industry. I was able to expand my knowledge on subjects such as arbitration law within sports, and then 15 minutes later was able to learn about regional sports networks ("RSNs") and how sports law experts are shaping how fans watch their favorite teams. I knew diddly squat about RSNs before this conference, and now I have a general idea and I know exactly who to point to in order to learn more. By living through the experts for a few days, it helps you narrow down the specific industry that you want to work in. I walked in thinking, “I know I want to work in sports and I know I want to use my JD, but I am unsure of the ideal position for me.” Leaving the conference and hearing numerous stories, backgrounds, and day-to-day roles, I now know that I want to work in private practice upon graduation and focus on sports clients that have issues regarding labor and employment, intellectual property, NIL, estate planning, business creation and litigation, and higher education. I know that I am not restricted to this list of areas and if the NCAA comes calling, asking me to create a structure on how to move forward in this new era, I will take on that role, but the idea is to utilize stories of these experts to give yourself a sense of direction. The biggest takeaway from the conference that every law student and young professional wanting to work in the sports and entertainment industry should know, is that every single story I heard started with, “because I knew so and so.” To work in this industry, it is crucial that you get to know as many people as you can who have prevailed in the industry because that is how you will land a job. Most students have already heard this, but I want to make sure that not only are you aware of how to get a job, but that you are aware you need to take action right now on this knowledge to obtain a job. Start connecting now. Emails, phone calls, LinkedIn, webinars, and especially conferences. Start doing them all as soon as you can. Extra Tips I Learned From the Conference 1. Everyone is human and these experts were once in your shoes, so be prepared, but just have a conversation with them, be sincere and honest. 2. Do not just talk sports law with them. Ask about their family, hobbies, and more. You want to build a connection with them, not just ask them how to get a job. 3. Do not rush the conversation. These professionals are heavily liked, so they will get pulled away from your conversation, realize that you will likely see them again, and can always shoot them an email. Do not feel you have to get your entire life story out in two minutes. 4. Reflect and enjoy the fact that you will be in a room full of the leading experts in your dream profession. You might even have the privilege of spending time with the general counsel of your favorite sports team, or even your favorite league. Self-reflection is key to growing and becoming a better student, employee, and person. Logan Hughes is a third-year law student at Ohio Northern University Claude Pettit College of Law. You can follow him on Twitter @loganchughes23 and on LinkedIn (Logan Hughes).

What is the impact of Sunset Clauses on NIL contracts? While most states have similar laws governing student-athletes monetizing their NIL, seven states differ from the rest. Texas, Oklahoma, South Carolina, Tennessee, Louisiana, Mississippi, and Illinois implement a mandatory Sunset Clause to govern the length of all NIL contracts. Six are within the purview of the SEC. As a former high-level Division One student-athlete, I know what players experience daily. The opportunity to earn life-changing money is real, but so is the chance of unfair exploitation. The purpose of the law is to balance the playing field, bringing both parties to neutral grounds. It is not meant to place one party at a significant disadvantage in negotiations and future transactions. Sunset Clauses are clauses in a statute, regulation, or contract that expire automatically on a specified date. It provides for an automatic end once the Sunset Date arrives, voiding the contract. An advantage is that both parties will no longer have obligations once the Sunset Date arrives. It provides easy outs since there are no formal actions either side must take to trigger termination. Normally, both sides negotiate the clause upfront and know the exact end date, making drafting and execution effortless. However, in these seven states, the exact Sunset Date is unknown, and parties cannot negotiate the statutorily established Sunset Clause. This leads to confusion and predatory acts. A party can use the provision to combat changing market conditions by delaying their performance until the clause is triggered, leaving the other party without legal recourse. So, in an NIL context, if the offeror knows of the Sunset Clause’s existence and the athlete does not, they could spring the end of the contract on the unsuspecting athlete. The objective of Sunset Clauses is to limit the length of NIL contracts and force expiration when a student-athlete stops competing in collegiate sports. A commonality between all seven states is a potential “game-changing” loophole stemming from the word participation. The statutes basically articulate that “the contract cannot extend beyond a student-athlete’s participation in the athletic program at a college.” Yet, none of the seven states define the term participation, raising several important questions. First, what does participation mean? After all, participating in a sport can have several different meanings—if not clearly defined. Does participating mean being on the team, playing in games, or “dressing” for games? Participation could mean any of those definitions. Both sides could broaden and narrow the definition of participation to escape contracts. If a player suffers an injury that keeps them from participating, can offerors terminate the contract? Technically, the injured player is not participating in the program. If this qualifies as not participating, then offerors gain significant leverage by using this loophole to terminate contracts with sidelined players of little NIL value. When a player is suspended by the team, school, or NCAA, their marketability takes a hit. So, when suspension periods begin does that count as not participating and trigger the Sunset Date? Suspensions range from practices and games to entire seasons, creating chances for offerors to end contracts with suspended players by citing how the athlete is not participating in the program. Even though the athlete is suspended and has violated rules unrelated to the contract, this potential escape is unfair to the athlete. What happens if the athlete takes a leave of absence from the team? The student-athlete in both scenarios likely entered the NIL contract with the intention of it lasting until their playing career ended. Expanding off the participation loopholes are questions surrounding when the Sunset Date commences. Does the Sunset Date end the contract when the student-athlete plays their last game for the school? Or does it last until graduation? Would the contract void if the player declares for the draft and then returns to school? Here, Sunset Clauses provide leverage to the player. To illustrate, if the Sunset Clause voids the contract when players declare, they can renegotiate better terms because they are likely coming off a successful season. What happens if players transfer? When transferring to another program, their participation in the initial program—the one they were with when they signed the NIL deal—would be considered over. Brands could use this to terminate the contract. However, players would argue that they are still participating in an athletic program, just not the athletic program they were in when the deal was made. Ambiguously worded Sunset Clauses in NIL statutes will lead to expensive litigation and inefficiency if every deal only lasts one to six years. Opportunities presented to college stars who don’t turn pro will dwindle because Sunset Clauses force an automatic end and renegotiation of any contract. The leverage the offering party possesses after the Sunset Date is difficult for the former student-athlete to counter. This will lead to athletes entering underpaid contracts based on arguments that their marketability decreased because they are no longer competing. Brands could also be placed at a disadvantage when negotiating with superstars possessing bright professional futures. These players can then secure huge paydays and escape contracts they signed as budding college players. The renegotiation process would consume valuable time and resources, delaying the inevitable partnership. These problems could be fixed if Sunset Clauses are clarified or removed. The first option for solving the Sunset Clause issue is to remove them and allow parties to negotiate an agreed-upon end date. These clauses create more issues than benefits and are unfairly one-sided. Leverage is removed from student-athletes, earning opportunities for athletes are capped, and the current statutes create unintended loopholes. Sunset Clauses should be eliminated from NIL contracts altogether, allowing each side to freely negotiate the length. If a player and brand find it equally enticing to agree upon a length beyond a player’s collegiate career, this should not be precluded. Players should be allowed to bet on themselves and plan several years ahead when negotiating. Brands will also benefit because they could establish partnerships with players that could create greater returns. With both sides profiting from the removal of Sunset Clauses, the legislation of these seven states should abolish Sunset Clauses within NIL statutes. The second option is to preserve them in the statute but define participation. By clarifying this term, unfair escapes will be prevented and both sides will fully understand what it means to participate in an athletic program. Offerors cannot argue the Sunset Date commenced when a player is injured, suspended, or takes a leave of absence. The definition of participation in NIL contracts should be when a student who is a player on the team engages in all team activities. Participation ceases only when a player is kicked off the team and dismissed from the athletic program entirely. Being injured, suspended, or on a leave of absence does not impact a player’s participation in an athletic program. Student-athletes cannot prolong participation by becoming a staff member upon the end of their playing career because they are no longer athletes at this point. Declaring for professional drafts and returning to school does not impact one’s participation in an athletic program. Further, transferring to a new school does not end participation as long as the player continues to play the same sport. Option three is to enact a clear Sunset Date. The best decision is to end the contract on student athletes' graduation date. I strongly support the abolition of Sunset Clauses within NIL contracts. They are unnecessary, outdated, unfair, and ambiguous. Texas, Oklahoma, South Carolina, Tennessee, Louisiana, Mississippi, and Illinois should join the rest of the country and remove Sunset Clauses from their statutes. Fewer restrictions are better for everyone involved because parties do not have to worry about tiptoeing around unclear end dates. If Sunset Clauses are removed, confusion and ambiguity surrounding the meaning of participation cease. The uncertainty of Sunset Dates will also be solved. Further, serious litigation will be avoided because loopholes will no longer exist. Money will be saved, brands and players will be placed on even grounds free to negotiate in good faith, and both sides will be in prosperous positions. Abolishing Sunset Clauses is the best approach for solving uncertainties surrounding these statutes while protecting student-athletes. By following the legal recommendations provided, the Sun will not Set on the SEC. Dan Henry is a former Division 1 Men’s Basketball Player for Saint Francis University and a current law student at Stetson University College of Law. He has experience in the sports and entertainment industry. You can follow him on Twitter @dan_henry3.

The NFL revised its gambling policy last week to include harsher punishment for players caught betting on games involving their own teams. The NCAA also announced that it will consider updating its policy. The NFL’s changes and the NCAA’s proposed updates signal a more lenient disciplinary approach for athletes engaged in betting on sporting events not involving their own teams. NFL Gambling Policy Changes Under the new NFL policy, bets placed by players on NFL games will result in a one-year suspension at minimum while the punishment for a player betting on his own team will increase to at least a two-year suspension. The NFL has reduced the length of suspension, however, for bets placed on non-NFL sporting events while in the workplace or on team-related travel. Under the revised policy, the NFL will impose a suspension of two games for a first violation, six games for a second violation, and at least one year for a third violation. Prior to the policy change, the punishment for betting on a non-NFL sporting event, even as a first offense, was at least a six-game suspension. The effects of the updated policy will be felt immediately for some teams around the league. For example, Detroit Lions wide receiver Jameson Williams and Tennessee Titans offensive tackle Nick Petit-Frere each received a six-game suspension this offseason for gambling on non-NFL games while at a team facility. In light of the new policy, the NFL agreed that both players may return to practice this week after missing only four games. Though these changes come as a win for the NFLPA, expect the Players Association to pursue more significant changes to the League’s gambling policy, including the removal of the provisions prohibiting gambling while at a team facility. NCAA to Consider Revising Its Student-Athlete Gambling Policy On the heels of the NFL’s policy changes, the NCAA directed two committees to examine penalties for student-athletes caught betting on games not involving their own teams. The committees will consider the following changes: ● On a first offense, eliminate penalties that result in student-athletes being withheld from competition — regardless of the dollar value of the wagers and including bets placed on other sports at a student-athlete's school — and require education on sports wagering rules and prevention. ● On a second offense, potentially involve withholding penalties, depending on the dollar value of the bet(s) in question. ● On a third or subsequent offense, the resulting penalty could be a loss of one full season of eligibility. Like the NFL’s changes, the concepts under consideration by the NCAA offer more leniency for first-time violations with escalating punishment for repeat offenders. The NCAA suggested that the new guidelines, which they expect to be voted on at the end of October, could be applied retroactively. These changes come amid a broader push by the NCAA to encourage state legislatures to update sports betting laws to protect student-athletes from harassment or coercion. Alec McNiff (@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 the University of Michigan Law School and holds a business degree from the University of Southern California.

MLB owners are expected to vote on the Oakland Athletics proposed move to Las Vegas when they convene in November following the World Series. The A’s relocation saga has been well-documented since the news broke back in April and is undoubtedly an unfortunate situation. Whether you want to place blame on the team or the city of Oakland, the bottom line is that the parties were unable to come to terms on an agreement to build a new ballpark. As a result, the A’s looked elsewhere and found a better deal in Las Vegas. Two fanbases that don’t have to worry about their team leaving, however, are the Tampa Bay Rays and Baltimore Orioles. Both franchises have agreed to deals with their respective cities to stay in place for the foreseeable future. The Rays announced plans to build a new ballpark in downtown St. Petersburg and the Orioles will continue to call Camden Yards home for the next 30 years. What does this mean for the Rays, Orioles, and MLB as a whole? Let’s discuss each situation. Last month, the Tampa Bay Rays reached an agreement with the city of St. Petersburg and Pinellas County to build a $1.3 billion new ballpark as part of a redevelopment of the Historic Gas Plant District in downtown St. Petersburg. The Historic Gas Plant District is an 86-acre area where Tropicana Field currently stands. The new ballpark, which is expected to open in 2028, will have a 30,000-seat capacity, three seating levels, a fixed roof, an artificial turf surface, operable walls, and a pavilion design. It’s great news for the franchise, the city of St. Petersburg, and Rays fans in greater Tampa. Tropicana Field has received a number of upgrades over the years that have improved the in-game atmosphere but was still not a long-term solution for the team moving forward. In addition, there had been rumors that have surfaced over the past few years that the Rays were considering relocation, including an odd arrangement where they would spend part of the season in Tampa and part in Montreal. Therefore, the Rays announcement they were “Here to Stay” had to induce a huge sigh of relief for Rays fans. The agreement includes nearly 8 million square feet of mixed-use development that will surround the new site of the Rays ballpark. As I’ve written before, there is a growing trend in baseball and the sports industry in general of building entertainment districts surrounding ballparks. Yes, it’s nice to have 81 nights a year where fans commune in the area around the ballpark. However, seeking additional revenue streams, teams want to attract consumers 365 days a year, and these mixed-use developments are a great way of doing so. Hopefully, the Rays will see an uptick in attendance by building a new ballpark. The Rays attendance issues have been well-documented over the years, highlighted in their recent home loss in the Wild Card round. It’s worth mentioning that this ballpark is being built in St. Petersburg and not in downtown Tampa. Many have claimed that Tropicana Field’s lack of convenience from the majority of Tampa’s population is why the team consistently ranks towards the bottom of attendance. Well, the convenience factor isn’t changing, so hopefully the specter of the new ballpark does lead to some changes. I would highly doubt the Rays are oblivious to that fact and look at the benefits of the additional revenue streams offered by the surrounding amenities more so than the detriment of its proximity to downtown Tampa. According to the latest drafted agreement obtained by the St. Pete Catalyst, the city and Pinellas County will contribute a total of $600 million toward the stadium development, and the Rays will pick up the remainder of the cost – roughly $700 million, pending multiple needed approvals. Staying in the American League East, the Baltimore Orioles also won’t be going anywhere any time soon. On the day they clinched their first division title since 2014, the Orioles announced they reached a deal with the state of Maryland and the Maryland Stadium Authority to extend the lease on Camden Yards an additional 30 years. The current lease was set to expire at the conclusion of 2023, and there was some, albeit far-fetched, speculation that team CEO John Angelos was considering relocation. Earlier this season, Angelos was seeking taxpayer funds to build, well you guessed it, an entertainment district around Camden Yards. However, due to the occupied area around Camden including a parity clause with the Ravens with M&T Bank Stadium nearby, it was seen as an unrealistic ordeal. Add this with the fact that long-time Baltimore sports fans remember when the Colts left for Indianapolis in the middle of the night in 1984 when the city didn’t agree to build a new stadium, and it’s understandable that Orioles fans may have had some nerves. But all of those nerves can go out the door now. In addition to the lease agreement, the partnership with the state includes a 99-year ground lease for select areas around the ballpark giving way to redevelopment. As mentioned, there isn’t a whole lot of room for development around Camden Yards, but there are plans to upgrade the surrounding area in some way. No specifics were given at this stage and the team is expected to fund such development. Camden Yards is one of the most iconic ballparks in the league, so it’s nice to know it will continue to be one of baseball’s most heralded cathedrals for the next three decades. While these two developments with the Rays and Orioles are obviously great for those two respective franchises, there are ramifications for the league as a whole. Rob Manfred has often claimed that MLB will not consider expansion until the stadium situations in Tampa Bay and Oakland are sorted out. With the Athletics likely headed to Vegas and the Rays staying in St. Pete with a new ballpark, it looks like we have some finality on the stadium situations. Therefore, expansion talks could be on the horizon soon. With the decline of RSNs likely sapping some teams of local television money in the near future, expansion fees of upwards of $2 billion could be a huge boon for the 30 current MLB owners. Nashville, Charlotte, Portland, and Salt Lake City are among the cities attempting to land an expansion franchise. In addition, it’s worth mentioning that Oakland could be in position as well. It’s still located in a big media market and has shown it will support a winner over the years. Regardless, it will be interesting development to watch play out when and if MLB expands. Brendan Bell is a 1L at the Sandra Day O'Connor College of Law at Arizona State University. He is also a Master of Sports Law and Business Concurrent Student as well. You can follow him on Twitter @_bbell5

Citing new information presented by the University of North Carolina, the National Collegiate Athletic Association (NCAA) has approved UNC wide receiver Devontez “Tez” Walker’s transfer waiver. Walker is now eligible to play for the remainder of the season. NCAA rules allow athletes to transfer one time. Walker enrolled at North Carolina Central University in 2020 but never played as NCCU canceled its football season due to COVID-19. Subsequently, Walker transferred to Kent State University, becoming one of the best wide receivers in the country. After the 2022 season, Kent State football coach Sean Lewis left the university to become the offensive coordinator at Colorado. Originally from Charlotte, Walker elected to transfer again to be closer to home, enrolling at UNC on January 9, 2023. On January 11th, the NCAA altered the guidelines for multi-time transfers, making it more difficult for players to acquire a transfer waiver. On August 8th, before the football season, the NCAA denied Walker’s waiver to play. The university appealed, but the NCAA denied the appeal in September. In its announcement, the NCAA reasoned that the decision to approve the waiver was based on new information UNC had not previously presented. Interestingly, in September, after the NCAA denied the university’s appeal, the UNC Board of Trustees met to discuss options for the Tez Walker, including legal options. While it is unclear what occurred during the meeting (discussions were in private session), North Carolina Attorney General Josh Stein admitted to writing a letter last week to the NCAA regarding Walker’s eligibility. The Attorney General’s letter may be entirely coincidental, but the NCAA’s statement leaves everyone wondering what information triggered the NCAA to reverse course. Due to the NCAA reversing course, more public universities may lean on state/legal resources to pressure the NCAA into reviewing their actions and decisions. 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.

Dartmouth basketball players joined together and informed Service Employees International Union (SEIU), Local 560 of Concord, N.H. that they wanted to unionize. This is the same process that Dartmouth library workers, graduate students, visitor center employers and dining service workers all performed to successfully unionize. The SEIU, also known as the Dartmouth College Employees’ Union, then filed a petition to the NLRB regional office in Boston which is directed by Laura Sacks. It is now up to that regional office and Sacks to perform an investigation and determine if Dartmouth basketball players meet the requirements under the NLRA to form a union. How a Union is Formed Forming a union is a process involving many hurdles. First, employees must come together to request to be unionized to a union organization (i.e., SEIU). The employees could request for their employer (i.e., Dartmouth College) to voluntarily recognize them as a union so they can begin collectively bargaining. If the employer chooses not to recognize them as a union, or the employees do not seek employer approval, the union organization (i.e., SEIU) will file a petition with the NLRB in that region. If the regional director of the NLRB (i.e., Laura Sacks) finds that the requirements to form a union have been met (i.e., the filing party members are employees of their employer; the employer is a private organization; and at least 30% of the employees support the petition) then the regional director will allow the employees to vote on becoming a union. If the employees get 50% +1 votes, they are a valid union. The SEIU President Mary Kay Henry did say, “With their unanimous decision to join together in a union...” showing that a vote to validate union status of the basketball team is likely. Obviously, the big problem here is that no student-athletes have been deemed employees under federal law, so the question becomes whether Laura Sacks will find that they meet the definition of an employee under the National Labor Relations Act (NLRA). Sacks could use the 2015 NLRB holding in the Northwestern Football case to find that the NLRB does not have jurisdiction to consider whether the college athletes are employees under the NLRA. Sacks could also use General Counsel of the NLRB Jennifer Abruzzo’s memo issued in 2021, saying college athletes at private universities are NLRA-protected employees because they perform services for their colleges and the universities display a level of control over the athletes that is similar to an employment relationship. It should be noted that in the 2015 Northwestern Football unionization attempt, the NLRB regional director in that case did find that they were employees under the NLRA. It was on review by the NLRB (who oversees all the regional offices) where it was issued that the NLRB did not have the jurisdiction needed to determine if student-athletes were employees of their university. How Could This Play Out (1) Sacks could find that there is no NLRB jurisdiction to determine if they are employees and rule that they cannot unionize. (2) Sacks could find there is NLRB jurisdiction, and that Dartmouth is an employer of the basketball players and allow them to vote to attempt to unionize. The matter would then likely be reviewed by the NLRB, like the 2015 Northwestern Football case. Which I remind you... was decided before the 2021 memo issued by General Counsel Jennifer Abruzzo. (3) Dartmouth could voluntarily recognize the basketball players as employees and allow them to unionize. Dartmouth College stated, “We are carefully considering this petition with the aim of responding promptly yet thoughtfully in accordance with Dartmouth’s educational mission and priorities.” Not demonstrating which avenue, they will take. (4) Sacks or the NLRB could wait for the determination from the NLRB complaint against USC, the Pac-12, and the NCAA (“the defendants”) that an NLRB administrative law judge is deciding. The administrative law judge is set to hear the case in November 2023. The main issue of that complaint is whether the defendants in that case misclassified USC student athletes as not being employees. Items To Be Noted Dartmouth College is a private Ivy-League school. Being a private “company”, the NLRB has jurisdiction over them. However, the NLRB does not have jurisdiction over public or state-run college (without a joint-employer theory). Also, the Ivy-League does not allow student athletes to have obtain athletic scholarships. This would put this decision into a separate category when talking about most other colleges if they attempted to do the same thing. Lastly, other students at Dartmouth have joined unions. Student workers in the dining hall, library, visitor center, and graduate students are all a part of a union. This tends to resemble the argument made in other student-athlete employment cases; “how can other students be declared employees of the university when they supply services to the university in return for compensation and athletes cannot?” The Big Takeaway For the first time since Northwestern’s 2014 attempt and NLRB General Counsel Abruzzo’s 2021 memo, student-athletes are attempting to unionize. This makes for the fourth legal dispute where student-athlete employment status is at issue.2 With each dispute and the noise that comes with it, makes it more and more likely for governing bodies to have to address the issue. These governing bodies consist of conferences, the NCAA, the NLRB, state and federal courts, state governments, and the federal government. Regardless of if the Dartmouth basketball team is successful in this unionization attempt, they have created another steppingstone for student- athletes to gain employment status. It appears that we are just getting closer and closer to the inevitable. __________________________________________________________________________________ 2 The other three are: (1) Third Circuit Johnson v. NCAA case; (2) NLRB complaint against USC, Pac-12, and NCAA; and (3) a recent complaint filed by the College Basketball Players Association against Northwestern (the NLRB has yet to determine if it will validate the complaint). Logan Hughes is a third-year law student at Ohio Northern University. You can follow him on Twitter @loganchughes23 and on LinkedIn (Logan Hughes)

Just a few weeks ago on August 24th, reports surfaced that Washington Nationals pitcher Stephen Strasburg was retiring from baseball. While the news didn’t catch anyone by surprise as the 35-year-old has dealt with significant injuries over the past few years, it was still extremely sad for baseball fans across the country to hear. Coming out of San Diego State, Strasburg entered the big leagues as one of the most hyped prospects of all time. But unlike some of his fellow #1 overall picks, he more than lived up to the hype. After he led the Nationals to their first and only World Series title in 2019, it appeared Strasburg was potentially on track wear the “Curly W” Nats hat into the Hall of Fame. Unfortunately, injuries got in the way, which leads us to an interesting, yet disheartening development going on in our nation’s capital. After the Strasburg retirement news in late August, there appeared to be a retirement news conference planned for September 9th at Nationals Park where the team would retire his number and honor his career. However, in the time between August 24th and this past weekend, those plans changed. Mark Lerner, the owner of the Nationals, recently released the following statement: “While we have been following the process required by the collective bargaining agreement, behind-the-scenes preparations for a press conference had begun internally," Lerner said in a statement. "However, no such event was ever confirmed by the team or promoted publicly” and that reports had “mischaracterized” the situation. More interestingly than stating there wouldn’t be a retirement press conference for Strasburg, Lerner also said the team “looks forward to seeing Stephen when we (the Nationals) report to Spring Training” in 2024. After he won World Series MVP honors in 2019, Strasburg signed a 7-year contract worth $245 million to remain in DC. It was at the time and remains the second largest free agent contract ever given to a starting pitcher. Unfortunately, the contract has been a complete disaster for all parties involved as Strasburg only made 8 starts since beginning of the 2020 season. And relevant to the retirement news, there’s still 3 years and $105 million left on the contract that runs through 2026. While neither the Nationals nor Strasburg’s camp has confirmed the source of the disagreement publicly, it’s not hard to comprehend why the retirement news conference was cancelled. There is a disagreement between the two sides on how his contract will be handled. According to Britt Ghiroli of The Athletic, the Nationals initially proposed that Strasburg would be paid in full before backtracking and seeking to change the terms of his retirement. Strasburg, represented by Scott Boras, understandably aren’t going to take too kind to the Nats sudden change of plans. When a player formally retires, they give up the remaining money left on their salary. Buster Posey, for example, walked away from $22 million when he stepped away following the 2021 season. However, if a player suffers a career ending injury, they don’t have to “formally” retire and collect what’s left on their contract. Prince Fielder, who suffered a neck injury in 2016 that ended his career, collected the remaining money owed to him from his $214 million deal signed before the 2012 season. There is some precedent, however, of players reaching settlements with their respective teams (David Wright with the Mets) or in some cases, giving money back. When Gil Mesch retired in 2011, he gave back the remaining $12 million left on his contract to the Kansas City Royals. Are the Nationals expecting Strasburg to voluntarily give up his future earnings? Absolutely not. But did they hope they could potentially work out a deal where they can pay less than the $105 million plus deferred money? Probably so. Where things go from here will be worth watching. In addition, the Lerner family has looked into the possibility of selling the franchise recently, but disputes involving the team’s television deal with the Orioles and MASN have gotten in the way. Could Lerner be attempting to minimize the “liability” of Strasburg’s contract to make it a more attractive purchase? Potentially. In addition to cancelling the retirement press conference, the team has also cut some of their scouting staff and their GM, Mike Rizzo remains without a contract beyond 2023. Long story short, there is a lot of uncertainty with the Nationals at the moment. It’s understandable that the Nationals want to avoid paying the full sum of Strasburg’s contract. It’s also understandable that Strasburg, his agent Scott Boras, and the MLBPA don’t want to walk away from a significant amount of money. Will the Nationals relinquish their position? Will Strasburg be willing to work out a settlement? That’s to be determined. But regardless, it would be a shame if the relationship between the two parties is ruined over this unfortunate situation.

In the weeks leading up to MLB’s August 1st trade deadline, there was much intrigue as to whether the Los Angeles Angels would trade pending free agent Shohei Ohtani. Instead of selling and potentially netting a significant prospect return from the two-way superstar, the Angels went “all in” and make one last push at a postseason run before Ohtani hits free agency. The team traded some of their best prospects for a handful of players including Lucas Giolito, Reynaldo Lopez, Randall Grichuk, and Dominic Leone. By doing so, the team exceeded MLB’s Competitive Balance Tax, commonly referred to as the “Luxury Tax.” Long story short, the Angels all in effort came up well short. The club struggled heavily in the month of August, losing 18 of the 26 games and falling completely out of both AL West and AL Wild Card contention in the process. In addition, Mike Trout returned to the injured list after only returning for one game and Ohtani suffered a torn UCL, ending his season on the mound. So what did the Angels front office do in response to their disastrous August? Well, they basically “undid” most of their trade deadline moves by placing nearly a quarter of their roster on waivers, including the four aforementioned players listed above. What was the incentive for the team do this? How will this affect the pennant race this season? Are there any big picture ramifications the league might want to look into regarding waiver moves? Let’s dive in. By placing Giolito, Lopez, Grichuk, Leone, and reliever Matt Moore on waivers, the Angels now appear to have gotten their payroll under the $233 million luxury tax. Although the tax calculations are not official until December, all signs are pointing towards the team being shy of the threshold. This is important for a couple of reasons. The first one being it will save Angels owner Arte Moreno some money, which isn’t a reason many fans will want to hear. However, the other reason is a little more notable. Now, if the Angels lose Shohei Ohtani as a free agent after making him a qualifying offer this winter, they will receive a compensation pick after the second round. It would have been after the fourth round if they were over the threshold. While the MLB Draft is largely considered somewhat of a crapshoot where first round picks fail to reach the majors and tenth round picks can become all-stars, getting an additional second rounder instead of a fourth rounder is still significant. While Angels management has certainly dropped the ball over the years by failing to field a .500 team with two generational players on their roster, it’s hard to criticize them for this move because it both falls within the rules and provides the franchise a benefit. However, just because it falls within the rules doesn’t mean it doesn’t bring up competitive integrity issues. First of all, by cutting ties with nearly a quarter of their roster, the Angels will undoubtedly be a far worse team on paper in the month of September than they otherwise would’ve been. Therefore, anyone who has the Angels on their schedule this month will likely benefit. Teams like the Orioles, Guardians, Mariners, Rays, Twins, and Rangers, who are all fighting for division championships or wild card berths, will face the Halos in the coming weeks and could bank some much-needed wins to get themselves into a better postseason position. But teams trade away some of their best players and weaken themselves at the trade deadline every season, so the Angels shedding some of their contributing players isn’t unprecedented by any means. How they went about shedding them is though. When “sellers” trade away players at the deadline, they don’t just give them up for salary relief. They give them up for prospects that will help them in the future. In order to acquire players that play key roles in a pennant race, “buyers” have to outbid other suitors with prospect capital to do so. The consideration of acquiring players for the future offsets the downside of trading away from the present roster. But what the Angels did doesn’t fall into that category. They essentially let the Cleveland Guardians take Gioltio, Lopez, and Moore for essentially nothing. The Guardians, who for all intents and purposes sold at the deadline in trading Aaron Civale to the Tampa Bay Rays, benefitted from being in an advantageous waiver position. Instead of being required to shell out any of their top prospects like their contending counterparts did at the deadline, the Guardians walked away with players that could help them push the Minnesota Twins for the AL Central crown for pennies on the dollar. While it’s unknown if MLB or the MLBPA will do anything drastic to stop a team like the Angels from putting a significant number of players on waivers in the future, I bet it will be a talking point at this offseason’s Owners and GM meetings. The Twins front office can’t be happy that a team chasing them for the division got to pick up a collection of players for essentially nothing. Buyers like the Rangers or Astros can’t be happy that a team didn’t have to give up any of their top prospects to acquire talent when they had to just weeks earlier at the deadline. What the Angels did was largely viewed as unprecedented and surprising in the baseball industry. Whether or not they were technically allowed by the CBA to place five players on waivers to avoid luxury tax penalties is one thing. But preserving the competitive integrity of postseason races is another and should at least cross the minds of the league’s executives in New York. A potential solution could be pushing back the trade deadline to mid-August or bringing back the waiver trade system that allowed trades up until the end of August where teams would have a little more clarity on their postseason prospects before making drastic moves. But regardless, it’s not the best look when a team potentially shakes up the playoff race to get under the luxury tax.