The NHL has begun investigating allegations that the San Jose Sharks left wing Evander Kane has been gambling on his own games. On an Instagram page purporting to be Evander’s wife, Anna Kane dropped some serious allegations that Evander has been working with bookies and betting on his own games. For purposes of this article, I will assume that the posts from the @A.Kane_ Instagram account truly came from Evander's wife, Anna Kane. That said, she made a crystal clear plea to the NHL and Commissioner Gary Bettman in her Instagram story stating: “@nhl Can someone ask Gary Bettman how they can let a player gamble on his own games? Bet and win with bookies on his own games?” Anna Kane also posted a screenshot on her Instagram, and explained in an Instagram story, that she received an alleged email from Evander which he gave her instructions on moving out of their house which was being taken by the bank and she had to sell her wedding ring. In a since-deleted story, Anna Kane stated: “How does the NHL let a compulsive gambling addict still play when he’s obviously throwing games with bookies to win money? Hmm maybe someone needs to address this.” Earlier this year, Evander’s financial troubles came to a head. In January, Evander filed for Chapter 7 bankruptcy in which he listed his liabilities as $26.8 million and admitted that $1.5 million of that was due to gambling. However, this wasn’t Evander’s first publicized gambling issue. In 2019, Evander was sued by The Cosmopolitan casino in Las Vegas, where they allegedly extended $500,000 of gambling markers to Evander, in April of 2019, that he allegedly failed to pay. Further in May 2021, Evander was sued for $15 million by a lender, Professional Bank, for allegedly defrauding the company on a loan application. This brings us to the NHL collective bargaining agreement (“CBA”). The CBA was ratified on January 12, 2013, and is effective until September 15, 2026, following a four-year extension in June 2020. Of most importance here is exhibit 14 “Form of Standard Club Rules” which states, “Gambling on any NHL game is prohibited.” (emphasis added). Article 18-A sets forth the commissioner discipline for off-ice conduct. The commissioner’s disciplinary authority is set out in 18-A.2, which states: “Whenever the Commissioner determines that a Player has violated a League Rule applicable to Players (other than Playing Rules subjecting the Player to potential Supplementary Discipline for On-Ice Conduct), or has been or is guilty of conduct (whether during or outside the playing season) that is detrimental to or against the welfare of the League or the game of hockey, he may discipline such Player in any or all of the following respects: (a) by expelling or suspending such Player for a definite or indefinite period; (b) by cancelling any SPC[1] that such Player has with any Member Club; or (c) by imposing a fine on the Player not exceeding the maximum permissible fine under Section 18.7(b).[2] The easiest comparison we can make in this situation is Pete Rose. Rose is known for two things in baseball: most hits of all time and his permanent ban from the MLB (preventing him from being elected to the Cooperstown Baseball Hall of Fame). Rose was a known gambler and, like Evander Kane, struggled financially.[3] On March 20, 1989, the MLB and Commissioner Peter Ueberroth began their investigation of tax and gambling issues involving Rose. After a two-month investigation, by special counsel John Dowd, a 225-page report resulted including records and testimonies that evidenced Rose had bet on the Reds when he was a player-manager and manager from 1985-1987. Ultimately on August 24, 1989, Rose voluntarily placed himself on baseball’s permanently ineligible list, and the MLB agreed not to release the investigation findings. Rose has remained on the ineligible list since 1989, despite his efforts to be reinstated. The NHL Public Relations tweeted out that they are conducting a full investigation into the aforementioned allegations. The next steps here are for Commissioner Gary Bettman to suspend Evander Kane indefinitely until they complete their investigation. Evander Kane could face future fines and the possibility of his SPC being cancelled. Worst of all, if the allegations prove to be true, Kane may never play in the NHL again... and the sport's relationship with gambling would be set back decades. Pete Rose, baseball... déjà vu. Mike Lawson is an Associate for O'Connell and Aronowitz in Albany, NY. He is the Producer of the Conduct Detrimental Podcast and can be reached on Twitter @Mike_sonof_Law. [1] Standard Player’s Contract. [2] A fine may be in an amount up to fifty percent (50%) of the Player's Paragraph 1 NHL Salary and Bonuses, but not including Performance Bonuses, divided by the number of days in the Regular Season, but in no event shall it exceed $10,000 for the first fine and $15,000 for any subsequent fine imposed in any rolling twelve (12) month calendar period. Player Salary and Bonuses forfeited due to a fine will be calculated based on a Player's Averaged Amount. [3] In 1990, Pete Rose pled guilty to two felony counts of filing false income tax returns, in which he was sentenced to six-months in prison and fined $50,000.

Over the past month, we have seen the ripple effects of the NCAA’s suspension of Name, Image, and Likeness regulations span far and wide. This has spurred questions in more realms than anticipated - from the Barstool Athletes debacle to outstanding taxation and intellectual property debates. There is a reason this new NIL era has been coined the Wild West, and it continues to make waves today. The newest questions are centered around Ohio State’s latest five-star recruit, Quinn Ewers. The powerhouse quarterback is reported to have the potential to earn almost one million dollars in NIL deals, should he choose to forgo his senior season. As an athlete in the state of Texas, Ewers is unable to benefit off his name and likeness while still playing for his high school team. The state’s NIL laws state that no individual, corporate entity, or other organization may enter into any arrangement with a prospective college athlete relating to the athlete’s NIL prior to the athlete’s enrollment in an institution of higher education, a regulation that stands in stark contrast to opportunities other high schoolers have been able to cash in on with their NIL. Earlier this month, Mikey Williams made headlines when he became the first prep basketball player to sign with a prominent representation agency. The high school phenom is reported to rake in seven figures while still playing his final year at Vertical Academy in North Carolina. Unlike Ewers, Williams has no limitation on profiting off his NIL. Williams will continue to work towards his diploma while playing against top competition in showcases with his prep team. Vertical Academy is not under the governance of a state high school athletic association that puts restrictions on student-athletes monetizing their NIL. Instead of participating in a state sanctioned league, the Academy will function as a high level club team that will play against other prep schools. In a recent article by the National Federation of State High School Associations, the governing body said that their stance against its student-athletes profiting off their NIL was backed by concern for potential effects on the recruiting process and a want to keep high school athletics centered around the team. Coaches across the country have voiced fears of the detrimental repercussions players signing NIL deals could have on their team’s chemistry. Still, others have advocated for their players' right to profit. Regardless, Ewers still has the potential to make hundreds of thousands of dollars before playing a single snap of Division I football. With the starting position seemingly wide-open for the Buckeyes and the August 3rd camp start date looming, the eighteen year old has a heavy decision to make. Will he stay and hopefully lead his elite high school team to another state championship game, or will he cash in and head to Columbus early? Ewers expects to make his decision within the next week. Julie Chambers is a rising 2L at New England Law | Boston. For inquiries, email [email protected]. References: https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB01385F.pdf#navpanes=0)%0D https://www.espn.com/high-school/story/_/id/31861613/mikey-williams-signs-excel-sports-nil-deal-expected-generate-millions-high-school-basketball-star https://www.nfhs.org/articles/nil-rulings-do-not-change-for-high-school-student-athletes/

This year, mental health has been featured in the newsfeed more than ever before. From Naomi Osaka to Simone Biles, athletes in all sports are allowing themselves to be vulnerable while discussing the challenges they face in and out of the arena, particularly the ones inside of their heads. Spectators seem to forget that our favorite athletes are human, too. Athletes frequently experience anxiety, doubt, and pressure, but during the Olympics, they experience these feelings in front of the entire world. Simone Biles has been a household name since the 2016 Rio Olympics. She is the GOAT – the greatest of all time. However, after realizing her mental health was not where it needed to be during her vault rotation in the women’s team final, she withdrew from the event. She later withdrew from the women’s individual all-around competition as well. Despite her withdrawal from competition, Biles remained a staunch supporter of her teammates, cheering them on from the sideline. Her decision to focus on her mental health showed Biles’s strong leadership and courage. Her insight to protect her own safety as well as remove any possible negative impact on the team’s overall performance clearly depict valor in the face of succumbing to public pressure. Simone Biles has faced a year far more challenging than most realize, becoming an advocate for abuse survivors and having her scores capped due to having an “unfair advantage” over other gymnasts. Biles later revealed that the support she was given after her withdrawal from competition made her realize she was worth more than her accomplishments. Ultimately, Biles showed the public and the sports world that it’s okay for their athletes to not be at their best all the time, and that athletes deserve respect even when choosing not to compete. Michael Phelps, who has earned 28 Olympic medals, came out in support of Biles after her withdrawal from the team and individual all-around events, saying that few know of the pressure that comes with being one of the most successful and decorated athletes in your sport. Phelps is one of the most decorated Olympians of all time, yet he revealed the depression and suicidal thoughts he faced after the 2012 Olympics. While many athletes have started to come forward about the weight of pressure that comes with being at the top of their sport, mental health issues continue to be a taboo subject. When Naomi Osaka pulled out of the French Open after event organizers threatened her removal after her decision to not participate in media events, she was criticized across the internet for not being “tough enough”. Sha’Carri Richardson was unable to attend the Tokyo Olympics following a positive drug testing for marijuana in her system, which invalidated her times at the Trials. When asked about her test results, Richardson revealed she had learned of her biological mother’s passing from a reporter at the Trials. While some may disagree with her actions, no one can know the feelings Richardson experienced in those moments when faced with such loss. As Richardson herself said: she’s human, she just runs a little faster. Athletes should not have to remind the public that their mental health matters, too. As the Tokyo Olympics continue, and more athletes come forward with their personal experiences with mental health, hopefully the public’s understanding and empathy will increase. In addition, the world of sports will hopefully start to take athlete mental health more seriously, taking proactive measures to protect, support and empower our athletes. The topic of mental health will only cease to be taboo when it is openly discussed. Strong mental health is an important and fundamental need for everyone, even those aiming for a gold medal. The athletes we love to watch are not only extremely talented, but human, and they deserve to be treated as such. If we want to keep watching these athletes compete and succeed, we should remember to extend them the same courtesy that we ourselves demand – respect.

Texas and OU’s potential exit from the Big 12 Conference to the Southeastern Conference took another dramatic turn on Wednesday of this week. During the same week that Texas and OU caused tremors across the college football landscape by officially petitioning to join the SEC in 2025, the Big 12 now appears to be on the offensive, as the conference issued ESPN a cease and desist letter. Bob Bowlsby, the commissioner of the Big 12, asserts that ESPN took actions to “harm” the league, and mentions that ESPN engaged in tortious interference- an intentional interference of contractual relations. Given the escalating legal situation between the Big 12 and ESPN, where do Texas and OU fit into the picture? Ross Dellenger of Sports Illustrated reports that Big 12 commissioner Bowlsby also accused ESPN of attempting to incentivize an unnamed conference (American Athletic Conference) to add Big 12 members, consequently destabilizing the Big 12 so that Texas and OU would be able to avoid exit fees. Moreover, Bowlsby claims that Texas and OU have been “As deceptive as they possibly could.” ESPN briefly responded by stating that the claims found in the cease and desist letter have “no merit.” Will legal action or future lawsuits derail Texas and OU’s objective to join the SEC? Although Big 12 commissioner Bob Bowlsby assumed a more aggressive public position to protect the interests of the Big 12, it is likely too late. Ultimately, there are forces outside of the commissioner’s control that are too great to prevent Texas and OU’s departure from taking place. Now that Texas A&M’s Board of Regents recently voted in favor of Texas and Oklahoma joining the SEC, it is likely that Texas and Oklahoma will be unanimously admitted to the SEC. If approved by a ¾ majority vote by SEC member schools, it will be increasingly more difficult to thwart Texas and OU’s efforts. It is also within the realm of possibility that the quickly deteriorating relationship between key entities at the negotiating table on all sides may lead to an early Big 12 departure for Texas and Oklahoma. Through a means of buying out the remainder of their media rights contracts ($70-$80 million) with the Big 12, Texas and Oklahoma could force the move earlier than 2025. Given the immense fundraising abilities that both Texas and OU possess, if called upon, boosters would be able to play a role in facilitating the move to the SEC as early as the 2022 season. Thirdly, given the accelerated rate at which the ongoing proceedings are moving, it is possible that other Big 12 members may bolt for the door early and seek entry to other conferences prior to 2025. It is already reported that Baylor, Texas Christian University (TCU), and Texas Tech have already reached out to the Pac-12 about a potential move out west. If Texas and Oklahoma’s admission to the SEC does not implode the Big 12, the departure of Baylor, TCU, and Texas Tech would certainly act as the catalyst for widespread realignment around the college football world. My Concluding Remarks: A Texas Longhorn’s perspective It is my belief that despite potential legal challenges from varying entities, Texas and Oklahoma will eventually find their way to the SEC as early as 2022 or 2023. From a Texas grad’s perspective, this is a great move for the Longhorns. By joining the SEC, Texas will be able to make more money in media rights earnings, improve recruiting prospects, and set themselves up well long-term for an expanded, 12 team college football playoff. On the other hand, I can understand why a move of this nature will indirectly widen the gap between top programs and smaller college football programs. If the SEC increases its membership to 16 teams, this will likely lead to the creation of super-conferences in the future. This is leading down the road to the creation of additional super-conferences. If so, it will set off a chain reaction that will likely resemble what we saw in college sports in 2011-12. The question is, who will be left without a seat when the game of conference musical chairs ends. Article written by: Mel Stack, Incoming 1L student at the University of Miami School of Law. Interested in more information on this topic? Check out Blue Bloods to Bolt from Big 12? by fellow writer Joe Esses.

Should high school players be allowed for forgo their senior year of high school to enroll early in college for NIL opportunities? Before you say yes, stop and at least consider the following. According to the Dallas Morning News, Southlake QB, Quinn Ewers, is considering skipping his senior year to enroll early at Ohio State to earn nearly a million dollars in NIL deals.[1] As the number 1 overall recruit in the nation (according to 247Sports), Ewers naturally draws a lot of attention. Sounds great, right? I live adjacent to Southlake. I’ve watched Quinn play. He’s electric. Box office. Worth the price of admission. Why does that matter? Well, a lot of high schools benefit from big names drawing in additional ticket sales. If the best players are removed, schools that struggle with funding may have to find other ways to compensate. Here in Texas, high school football reportedly produced 1.62 million dollars a year in 2017-2018.[2] Who knows what that number will be if the best players begin leaving early. Football is a huge revenue generator for high schools across the state. You may say that these players aren’t responsible for that problem. Perhaps they should only look out for themselves and their families. I won’t argue that point. Instead, I simply ask each person reading this to consider the ripples that come from those decisions. Another such ripple you should consider is what it means to have that much money early. This is a concern heard across the country for NIL. Are we really that eager to get hundreds of thousands if not millions of dollars in the hands of 17/18 year-olds? Just think about it. It’s currently their right, but the psychological research on decision-making for people that age screams that it’s a bad idea without restrictions or boundaries. And I can support that assertion because I’m also a licensed psychotherapist with a specialization in sports psychology. But that discussion and the potential solutions are beyond the scope of this article. Nevertheless, I want you to think long and hard about what you would have done with that money at that age. I doubt you had the financial literacy on your own to make educated decisions. To conclude, I’m all for options and opportunities, but with additional regulations and legislation that protect people from themselves. In this instance, if we are going to endorse highly rated high school athletes like Quinn Ewers to leave early, we should at least CONSIDER how to protect them from themselves financially and how we are going to help the communities that may lose a substantial amount of money. Quinn Ewers may be one of the first, but he won’t be the last. [1] https://www.dallasnews.com/high-school-sports/football/2021/07/28/southlake-carroll-5-star-qb-quinn-ewers-considering-skipping-senior-season-to-profit-off-nil/ [2]https://www.dallasnews.com/high-school-sports/football/2020/04/26/the-financial-ramifications-of-canceling-spring-hs-sports-and-what-no-football-would-mean-for-uil-area-schools/

The official free agency period in the National Hockey League (NHL) began on July 28th and the first few hours have been busy. The flat cap of $81.5 million could not restrain teams any longer as teams spent more than four times the amount in the first two hours of free agency compared to 2020. The salary cap used to be tied to hockey-related revenue under the collective bargaining agreement between the NHL and the NHL Players Association; teams would forecast how the cap would rise with revenues and budget. Unfortunately, this model was disrupted when the coronavirus pandemic abruptly ended the sports season. This added a new wrinkle for general managers as cap space is now seen as a premium luxury. This leads to this article’s main discussion; would a luxury tax resolve the issues of the flat cap? The NHL’s salary cap was introduced in 2005 to bring more parity to the league. While the intention of parity should be welcomed zealously, over the past decade the NHL has had the least amount of parity for championships. The NHL had six unique champions compared to the NBA at seven and eight each for the NFL and MLB respectively. The salary cap prevents teams from keeping their current stars, for example, Dougie Hamilton, the former defenseman for the Carolina Hurricanes, who just signed with the New Jersey Devils a whopping seven-year, $63 million for an average annual value (AAV) of $9 million per season. Or for better illustration, the Las Vegas Golden Knights traded their star goalie, Marc André Fleury to the Chicago Blackhawks for virtually no return.[1] The league shouldn’t see teams trade away their own cornerstones in the name of salary cap. So how should the NHL resolve this? An outright removal of the salary cap would probably yield another lockout, and no one wants that, I certainly do not wish to see this as the NHL kept me sane during the national lock down. Instead, a moderate solution should be proposed. A few ideas may consist of a soft cap in which would give teams more flexibility, but a bolder move would be a luxury tax. The luxury tax would aid the revenue-sharing practice the NHL currently uses.[2] The luxury tax would apply a tax for salaries above a certain threshold. As a result, the revenues generated from the tax would be reallocated to teams playing in smaller markets. This would create better efficiency than the current revenue-sharing models. Imagine the Tampa Bay Lightning signing back all their players from their past two championships, and the money beyond the luxury threshold would go to a team like the Columbus Blue Jackets. This money could serve as a draw for players that would have considered leaving the small-market team. On the other hand, as great as that fantasy might sound, let’s look at Major League Baseball (MLB) a league that embraced the luxury tax. Only eight teams in 2019 surpassed the luxury tax and small-market teams still seem to suffer. Perhaps this narrative does serve as a warning for those that are against the luxury tax proposal. The goal of parity seems to be an ideal, virtually unattainable but always worth striving for. I am sure endless proposals and counterproposals have been made, but as a fan of the game, we should want as many teams as possible competing for championships, when the league benefits, all of us fans benefit too. Austin is a rising third year law student at Washington College of Law, Am. U.; M.S., Finance, Am. U.; B.A., Geo. Wash. Univ. [1] Filipe Dimas, Abandoning the salary cap for a luxury tax would benefit the NHL more than just the Leafs, THELEAFSNATION, https://theleafsnation.com/2021/07/28/abandoning-the-salary-cap-for-a-luxury-tax-would-benefit-the-nhl-more-than-just-the-leafs/, Jul. 28, 2021 (last visited Jul. 29, 2021). [2] Dimas, supra.

Revolutionary changes came to college sports earlier this month. For the first time in the NCAA’s inequitable history, its student-athletes were afforded the opportunity to profit off of their names, images, and likenesses... legally. With that, everyone and their mother looked to enter into this unmarked territory, presenting business opportunities for brands without total understanding of potential ramifications. Granted, attempting to act in compliance with NCAA’s cryptic policy and scattered state/school regulations gives one less confidence than when filling out a March Madness bracket. Barstool Sports, a popular digital media(?) company, wasted no time jumping into the fray. Founder Dave Portnoy announced that the company would create an athletics arm with the intention of signing college athletes. Student-athletes were immediately attracted to this idea. The Twitter handle Barstool Athletics (@stoolathletics) had garnered over 23,000 follows by July 3. However, Portnoy quickly became the target of criticism and doubt - not a new concept for him. This public skepticism largely stemmed from comments he made during Barstool Athletics’ inception. Portnoy recalled, “Barstool Athletes, Inc. is the most barstool thing ever. No thought put into it. No clue what we were doing.” Such a statement doesn’t exactly ring well in the world of compliance. In fact, the compliance office at American International College explicitly stated that working with Barstool is prohibited activity for its athletes. The stated fear centered around a perceived Barstool connection to gambling and its sportsbook, which is an activity that student-athletes definitively cannot endorse. Barstool made an attempt to combat this complication by forming a separate entity, Barstool Athletes, Inc. Portnoy, now seemingly aware of a host of implicated issues in his program, spent the last few weeks exploring avenues to safely commence his program. Today, he sent an update to all Barstool Athletes. Conduct Detrimental received a copy of said update, which is depicted below. One thing is clear: they are still figuring it out and have a ways to go. It appears that Portnoy is planning on giving signed athletes a rewards card for discounts at stores and restaurants. “Chipotle said no which sucks,” brutal news for any offensive lineman in the program, among others. Portnoy tells athletes to expect merchandise soon. While the above benefits of Barstool Athletics are neat, the real profit potential likely comes in the form of apparel sales. Per Portnoy’s email and this article, Barstool athlete Spencer Lee created a t-shirt that Barstool will sell. 80% of all proceeds will go directly to Lee. Barstool has had a ton of success with apparel in the past, turning current events in sports and entertainment into wearable laughs. This line of apparel may be a tougher sell, though, as many Barstool athletes aren’t particularly well-known. Lee, on the other hand, is a renowned wrestler at The University of Iowa who will likely see success in this sale. As the shirt alludes to, Lee went viral after winning the 2021 National Championship just days after experiencing his second ACL tear. “I’m wrestling with no ACLs.” Truly an unbelievable feat. “Excuses are for wusses” is a fitting phrase for the t-shirt. Further, according to Josh Gerben, Lee has filed a trademark for the slogan. In the email update, Portnoy writes, “we’ve been working on player specific ideas with some athletes but compliance officers at some schools has been a major issue and setback.” “It’s almost like the schools don’t wanna see their athletes make money.” Dave, I would counter by saying it’s almost like schools want to see their student-athletes continue to play sports without risking eligibility. Your 'head-first dive' mentality has proven successful in almost every arena of your work. But this is a new space with ambiguous regulations that are changing as we speak. It really won’t hurt to proceed with caution. Compliance officers are not the issue; they are doing their jobs.

Image from CNN There are some “special” places in this world. And then…there’s Cleveland. Sitting all alone up there, in a class by itself. Occupying the rarified air that is usually only reserved for a Hollywood comedy, with its guaranteed laughs and fumbles that occur with almost predictable regularity. So, it was no surprise that when the Baseball Club Formerly Known As the Cleveland Indians announced last week that it was changing its mascot name to the Cleveland Guardians, New York attorney Dan Lust, co-founder of Conduct Detrimental, discovered that there already WAS a “Cleveland Guardians” sports team: the men’s roller derby one, to be exact. The team even already owned the domain name ClevelandGuardians.com. What would have been a surprisingly bad move by any other MLB team looked to be sadly on-brand for the hapless “216”-ers. A team’s mascot name is synonymous with a team’s brand. The Yankees. The Dodgers. Instantly recognizable to even casual sports fans, these brands conjure up the entirety of the experience that any one fan has had with a team. Say “Cleveland”, and folks MY age (40+) almost universally think at least quickly of the movie “Major League” from the 1980’s. This branding is the keystone to a team’s – and their fans! – identity. Look no further than the Cleveland Browns’ NFL team’s own “Dog Pound” of fans for an illustration of this. As a trademark lawyer myself, I hear any team’s mascot name, and I say “Have you trademarked it yet? You need to protect your intellectual property!” (I’m a rather unapologetic nerd like that.) Intellectual property – copyrights, trademarks, patents, and business secrets – is an often-overlooked set of assets to almost any organization. As with any professional sports team, it is reasonable to expect that they have had dozens of lawyers on this intellectual property, protecting it from the outset. So when Cleveland announced last week that it would be changing its mascot name, it was a little strange that no trademark application immediately appeared in the United States Patent & Trademark Office’s online database for trademark searching, called TESS. Jump to today, Wednesday, July 28, 2021, and what did I stumble across on TESS while I was waiting for a client to email me some pictures of a product that she’s trademarking? “Cleveland Guardians”! In fact, there WAS an application from July 13, 2020 in the search results! What?! How did they manage to keep their new name secret for over a YEAR?! Well…it turns out that last July (2020), an application was filed with the USPTO that is related to the “Cleveland Guardians” name, by someone purporting to represent the organization (or at least TRYING to do so). TESS has the following record on that 2020 application here: Now, the applicant filed this trademark application as an “intent-to-use” application, or a “1b” application, meaning that he did not yet actually use the name “Cleveland Guardians” in commerce yet, but that he was indeed planning to do so. So, for the filing of a 1b application, there is no need to submit a “specimen”, or a picture or website or some such other article that “proves” that one is using the applied-for mark in commerce, yet. But our little eager beaver DID submit a specimen! However…he submitted it for “ENTERTAINMENT IN THE NATURE OF BASEBALL GAMES”. So that is what the application reflected. Oh no! What a mistake! What now? Not to be hindered in the slightest, our intrepid applicant has provided us all with a TRANSLATION of “entertainment in the nature of baseball games”. For my over four decades of sports fandom, I never knew that “entertainment in the nature of baseball games” translated to “Cleveland Guardians”! Whew, am I ever glad this fellow helped me discover my gap in sports knowledge. The USPTO, stuffy old government arm that it is, was not amused, finding that “ENTERTAINMENT IN THE NATURE OF BASEBALL GAMES” was merely descriptive, and our would-be hero of 2020 sadly was denied the right to trademark this phrase. Or to trademark “Cleveland Guardians”, his purported “translation”. Which leads us to today’s revelation: On July 23, 2021, just last week, the Cleveland Indians Baseball Company, LLC, FINALLY filed an application for the trademark of “Cleveland Guardians” with the USPTO: While there is no English translation of “Cleveland Guardians” into any other tongue included on this application, we do wish the applicants the best of luck, both with the USPTO and on the diamond. They’re going to need it, to compete with that roller derby team! Let’s just hope they get around to changing the name of the LLC, too. Mikal-Ellen Suzuki Bennett is intellectual property counsel at the multi-state firm of Kincaid & Associates, PLLC, and works in the firm’s Wilmington office. She practices mostly intellectual property law these days and spends as much time as she can outdoors and/or with her friends and family. She retains her lifelong love of her family, sports, chemistry, and all things WVU. Let’s Go Mountaineers!

With the implementation of “Name, Image, and Likeness,” (NIL) legislation around the country, student athletes are now able to profit off of their likeness and enter into endorsement contracts. While this is an exciting time for student athletes, there are still many obstacles and barriers involved in the early state laws that may prevent student athletes from getting paid. One of the biggest barriers to student athlete’s compensation will be conflicting contract interests with their university and their university’s athletic department. Under Florida law, student-athletes are prohibited from entering into a contract for NIL compensation that conflicts with a term in a university team contract. Similarly, California’s NIL law “prohibits a student athlete from entering into a contract providing compensation to the athlete for use of the athlete’s name, image, or likeness if a provision of the contract is in conflict with a provision of the athlete’s team contract.” Since student athletes are prohibited from entering into agreements that conflict with the university's contract interests, student athletes are expected to enter into agreements that either coincide or do not affect the university’s contract interests while also disclosing their potential contracts with their university’s athletic department to prevent conflicting contract interests. Instructing every eligible college athlete to disclose their potential NIL endorsement deals to their university seems like a tall task for athletes, coaches and everyone else involved; however, most of the potential conflicting contract interests will involve the university’s major athletic sponsors. For example, a student athlete at The University of Alabama will likely know that their main apparel sponsor is Nike since the Nike logo appears on their jerseys and other athletic apparel. Thus, it would be very unlikely for a student athlete at Alabama to enter into an agreement with a competing athletic company like Adidas or Under Armor, especially when they could possibly enter into a NIL agreement with the same company that sponsors their university. Although it is unlikely for a student athlete to enter into a contract that conflicts with their current university or athletic department, it is bound to happen at some point in this NIL era. Will the student athlete be forced to resign from their university’s athletic team if they refuse to terminate the conflicting contract? Until a student athlete enters into a contract that conflicts with their university's contract interests, we do not have the precedent to answer these types of questions. However, the majority of issues involving conflicting contract interests are likely to emerge before a student athlete agrees to attend an NCAA institution. With the emergence of NIL, student athletes will seek to get paid before choosing where they start their college career. Signing a significant deal with a major sports brand will definitely affect the student athlete’s ability to earn revenue, especially if the university the student athlete wishes to attend has a different major sports brand as their main sponsor. For instance, 17-year-old, Mikey Williams, became the first high school athlete to sign a NIL contract when he agreed to a deal with Excel Sports Management. Since Williams is considered to be one of the top national basketball prospects, he is projected to generate millions of dollars of his name, image and likeness rights. Although Williams could enter into blockbuster deals with major basketball brands, his endorsement choices will affect where he decides to enroll two years from now. If Williams were to enter into a contract with Nike, he would likely choose an institution that is sponsored by Nike and would allow him to gain revenue from the contract he signed while in high school. Williams, and other athletes in his position, would be unlikely to choose an institution that would not allow him to capitalize on the contract that he already had signed, which would result in the schools without a Nike sponsorship losing their chance to have an athlete like Williams play for their school. Conflicting contract interests pose a variety of major issues and headaches for institutions going forward, especially for smaller institutions without major sport brand sponsors. While on the other hand, it also creates a multitude of issues for student athletes. Based on potential contract interests, are student athletes better off signing NIL contracts after they enroll at an institution? How will all student athletes disclose their contracts to their universities? Conflicting contract interests will be an important issue to keep in mind as other states continue to pass NIL legislation and NIL rules are fully implemented into college athletics.

Image from Slap the Sign (slapthesign.com), a Fansided Website Texas and Oklahoma are bolting for the greener pastures that is the SEC. Obviously, this realignment will have a massive effect on the college landscape, for both major and minor sports alike. However, a curious thought came up as I pictured Texas and Oklahoma leaving a collapsing Big 12 conference. Where do other national brands go? And who on Earth is going to compete with the SEC, especially in football? In addition to snagging Texas and Oklahoma from the Big 12 (albeit for hefty buyout fees for each program), Ohio State, Clemson, and Michigan are other massive programs rumored to be in the running to assimilate into the SEC. While pundits and journalists have been reporting that these schools are being courted, the sports media sphere has been surprisingly silent on the position that this puts Notre Dame in. Do they make the jump and go to the ACC including football? Do they try to break off and join the SEC and follow the other football powerhouse, Clemson? Do they remain independent? We know the details surrounding Oklahoma and Texas leaving the Big 12, what that move will cost each program, and the massive potential for gain that each program has by joining the SEC. However, what would Notre Dame stand to lose by pulling out of their NBC contract? Would it be beneficial to make the jump and finally join a football conference? As it stands, Notre Dame’s contract with NBC was renewed in 2016 and terminates in 2025, worth roughly around $15 million annually for football. The current contracts terms were not announced, but NBC has at least retained these television rights to Notre Dame football since 1991. The confidentiality of the contractual terms lends some uncertainty to this proposition, for example, the buyout provision to end the agreement early could be so high that it doesn’t make fiscal sense for Notre Dame to join a football conference and forego its remaining independence. Regardless, that’s an incredibly fruitful agreement for both one of the main broadcast companies in media, and a team who (like it or not) is still viewed by some as college football royalty. Pulling out of the contract would also have ramifications in the scholastic realm for Notre Dame too. The University uses revenue from the contract to fund various scholarships and fellowships, both for undergraduate and graduate schooling. While Texas has its own TV network, the Longhorn Network, both that network and the SEC network are both owned and operated by ESPN, so this presents a slightly different situation for Notre Dame should they try to jump to a conference, while still maintaining the NBC contract. However, squaring the NBC agreement with the ACC Network agreement would prove quite challenging. Notre Dame does stand to make a substantial amount of money from joining a conference though. For example, in 2019, ACC schools reportedly received an average of $29.5 million based on the total revenue; however, Notre Dame reportedly received only $7.9 million of the $465 million in revenue that the ACC made. To note, that number was seemingly the lowest revenue number of the Power 5 conferences. Ultimately, it seems like it will come down to how much the “independent” title is worth to Notre Dame football, and the university. Everyone has a price in theory, right? It will be interesting to see what Notre Dame’s is, when they are inevitably faced with a decision on which conference to align with for football. Another exciting wrinkle in this situation is today’s development that the Big 12 has sent a cease-and-desist letter to ESPN, which consists of demanding ESPN end “all actions that may harm the conference and its members and that it not communicate with the Big 12 Conference’s existing members . . .”. Since Notre Dame is independent, it would seem to be likely for pushback to come from NBC itself, but it still nevertheless creates an interesting scenario should Notre Dame start to look for a conference home for its football program before the contract runs out. Daniel A. Goldstein is a practicing attorney at Carnes Warwick PLLC in Raleigh, North Carolina. He is a graduate of Campbell University's School of Law, and obtained his undergraduate degree from the University of North Carolina, at Chapel Hill. He has written on sports law-related issues for the North Carolina Bar Association's Intellectual Property blog. You can follow him on Twitter @dgunc3 and on Instagram @dangoldstein3.

Late Wednesday afternoon, Big 12 Commissioner Bob Bowlsby sent a cease-and-desist letter to ESPN president Burke Magnus demanding that ESPN cease and desist from “all actions that may harm the [Big 12] and its members.” The letter further demanded that ESPN not communicate with the Big 12’s existing member schools or any other NCAA Conference regarding the Big 12’s members, conference realignment, or the potential financial implications and incentives of conference realignment. But what did ESPN—which has a broadcast deal with the Big 12 and the other Power Five conferences and owns or airs the vast majority of college bowl games—do to “harm” the Big 12? Bowlsby’s stated reasoning for sending the cease-and-desist letter was twofold. First, Busby believes ESPN has been working with at least one other conference to induce current Big 12 schools not named the University of Texas or Oklahoma University to join another conference. Second, Bowlsby accused ESPN of violating its television rights agreement with the Big 12 by taking actions which impair the Big 12’s rights under the agreement. The letter marks a significant escalation in the already ugly (but nevertheless intriguing) battle that began with Texas and OU admitting their intentions to leave the Big 12 for the SEC. Bowlsby followed up the cease-and-desist letter—first published by Ross Dellenger of Sports Illustrated on Twitter (@RossDellenger)—by stating that he has documented evidence that ESPN tried to encourage another conference to add Big 12 members in an effort to destabilize the Big 12 so Texas and OU could avoid paying exit fees required by the Big 12’s grant of rights agreement. If true, Bowlsby’s legal theory is that ESPN’s attempted inducement of a Big 12 school to join another conference (possibly the American Athletic Conference, as reported by multiplesources) could constitute tortious interference with an existing contract. State laws differ, but generally speaking to establish a claim for tortious interference with an existing contract, the Big 12 must show: (1) the existence of a contract subject to interference; (2) ESPN willfully and intentionally committed an act of interference with the contract; (3) the act of interference proximately caused the Big 12 damage; and (4) the Big 12 suffered actual damages. There is no question that contracts between the Big 12 and its member schools exist, and any defection by a Big 12 school to another conference would certainly result in damages to the Big 12; those elements are easy to prove. What would be difficult for the Big 12 to demonstrate is that ESPN intentionally committed an act that interferes with the contracts between the Big 12 and its member schools. Generally speaking, the Big 12 would have to produce evidence that ESPN intended to cause or induce a member school to breach its contract(s) with the Big 12, or that ESPN tried to prevent the member school from performing its obligations under the contract(s). As the cease-and-desist letter is worded, whether the Big 12 could prove such an intentional act of interference seems unlikely. Specifically, Bowlsby states that he is “aware that ESPN has also been actively engaged in discussions with at least one other conference regarding that conference inducing additional Members of the Big 12 Conference to leave the Big 12 Conference.” If the assertion is that ESPN is talking to the AAC about the benefits of poaching Big 12 schools, I’m not sure that constitutes an intentional act to interfere by ESPN, since ESPN is not actually speaking directly with the member schools about breaching their contract(s) with the Big 12. However, Bowlsby has said that he has evidence, so it is possible more proof will be forthcoming. That said, if what Bowslby says in the letter is true, it’s more likely the Big 12 would have a viable breach of contract action against ESPN. Indeed, talking with and potentially incentivizing another conference to induce Big 12 member schools to leave would certainly seem to constitute actions prohibited by the television rights agreement with ESPN, specifically: “actions likely to impair, or [that are] inconsistent with, the rights of the [Big 12] has acquired under [the television rights agreement with ESPN].” Ultimately, it seems more likely that the cease-and-desist letter and Bowlsby’s subsequent comments are an effort to put ESPN, the SEC, Texas, and OU on notice that the Big 12 believes there is more to the story than just the company narrative about how Texas and OU began their journey to SEC membership. Bowlsby and the Big 12 appear ready to argue that the effort to get Texas and OU to the SEC and avoid exit fees dates back months, that it wasn’t just a simple case of Texas and OU approaching the SEC about joining, and that it involved intentional actions by ESPN and the SEC. So, if there were any questions about whether the Big 12 was going to slip quietly into the annals of college sports history without an ugly (but still intriguing) legal fight, let those questions be put to rest. They appear ready to fight, and they’re bringing ESPN with them into the CONFERENCE REALIGNMENT WARS! John R. Sigety (https://www.krcl.com/attorney/john-r-sigety/) is an attorney at Kane Russell Coleman Logan PC in Dallas, Texas. He is a graduate of Tulane University Law School, where he obtained his law degree and a sports law certificate. He has written extensively on sports law issues. You can follow him on Twitter @JohnRSigety

Image from Sneaker Bar Detroit Kyrie Irving was recently seen on Instagram airing his displeasure with Nike for attempting to release a design of his signature shoe (Kyrie 8), calling them “Trash” and apologizing to fans and sneakerheads alike in advance of the drop. He also stated that he had no part in the design or the marketing of the sneakers and Nike does in fact plan to release them without his approval and “regardless of what [he] says.” This is unlike Nike, who generally respects its signature athletes to a high degree. According to “Hoops Hype” a basketball fan forum, signature deals are given to elite players and in these types of deals, a brand will give the athlete a sneaker to create and ultimately release (think of any Lebron or Kobe shoe for reference). Compensation aside, one big part of a signature deal is the balance of creative control between the brand and the athlete. Certainly, Nike granted Kyrie some degree of creative control, whether it be an approval process, or even coming up with the designs himself. This can be seen with all of his other models. The real question of that dispute is whether Nike retains the final say. Legally speaking, there is more than likely a clause in the contract about promoting and otherwise not disparaging products of the collaboration between the athlete and the brand. As noted in another article, “Bryson DeChambeau: How Not To Treat A Sponsor,” “It’s not very often that professional athletes get into feuds with their sponsors, but when they do, the remarks made by the athlete could have significant ramifications including termination of the sponsorship. Almost every athlete endorsement agreement has legal language covering this exact type of scenario. Brands want to protect themselves from paying an athlete a good amount of money to endorse their brand and then have the athlete turn around and disparage the brand.” Certainly, Nike won’t get a kick out of Kyrie’s actions and if they really felt strongly enough about the action, could potentially pursue a breach of contract action. A breach of contract occurs when a party (or both) fails to fulfill its contractual obligations. Breaches can take two forms: 1) material, in which a party fails to fulfill an obligation as it pertains to a major part of the contract; or 2) immaterial, in which a party fails to fulfill an obligation as it pertains to a minor part of the contract. It is worth noting that the aggrieved party in a material breach might not have to fulfill its contractual obligations, while the inverse is true in the case of an immaterial breach. As the contract could very well contain a non-disparagement clause preventing Kyrie from speaking ill about any of the potential products or face a voided contract, Nike could potentially withhold payment or void the deal altogether, ending it right then and there. Without knowing the intricacies of the contract, it is difficult to speculate on just what sort of breach this is, but regardless, Nike, having been very lawsuit friendly as of late, might test the waters and see if it could bring a suit, and honestly, I wouldn’t be surprised. While this is not related to any court proceeding, if what Kyrie says is true, it sounds like Nike is operating in bad faith. Giving an athlete a signature shoe, and not only refusing to change the design when he voices his opinion, but to proceed with plans to release the shoe is most definitely not a good look. As this just happened early in the day on July 28th, this is still ongoing. Hopefully, they get this worked out and Kyrie can avoid an unnecessary lawsuit, because really, who wants to go to court because they didn’t like the design of their signature shoe?