On Saturday night, Conor McGregor suffered a gruesome leg injury during his fight with Dustin Poirier. Toward the end of the first round, McGregor tried to plant on his left foot when his ankle and lower leg gave out and turned a direction that a leg is not supposed to turn. McGregor underwent a three-hour surgery to insert a titanium rod and repair a fractured tibia and fibula. After the fight, Poirier said he thought McGregor injured the leg when he landed a kick, even pointing to the leg right after it happened. McGregor, however, dropped a bit of a bomb on Thursday, with the following quote from a video posted on his Instagram: “I was injured going into the fight. People are asking me, ‘when was the leg broke? At what point did the leg break?’ Ask Dana White. Ask the UFC. Ask Dr. Davidson, the head doctor of the UFC. They knew I had stress fractures in my leg going into that cage. It was debated about pulling the thing out.” Before each fight in Nevada, all fighters are required to fill out a medical questionnaire. This process is followed by other states, including Connecticut, who just two months ago suspended Bellator fighter Derek Anderson for six months because he failed to disclose a kidney issue prior to his fight. Assuming McGregor failed to disclose his injuries to the Nevada State Athletic Commission, a suspension should certainly be on the horizon. The bigger issue, of course, is that McGregor claims the UFC and its Chief Doctor Jeff Davidson were aware of the injuries before the fight. If the UFC and Davidson were complicit in failing to disclose those injuries and allowed McGregor to fight, not only could we see fines and penalties from the Nevada State Athletic Commission, but they may be exposed to unthinkable civil liability. As the Chief Physician of the UFC, Davidson owes a duty of care to his fighters. When he breaches that duty by ignoring known stress fractures before a fight, and when a major injury occurs just minutes into the fight, the duty-breach-causation-harm circle is complete. Moreover, if UFC President Dana White was aware and let the fight happen, both he and the UFC are exposed to liability. Importantly, MMA fighters do not have a collective bargaining agreement, which means McGregor would not have to exhaust any potential remedies under a CBA before filing a lawsuit. Given his star power and ability to draw eyeballs every time he fights, the amount of damages in such a case could be astronomical if the injury severely impacts McGregor’s career. After the Kevin Durant achilles’ injury, Dan Lust pointed out that a potential malpractice lawsuit against Warriors team doctors could top $1 billion given Durant’s earning ability. McGregor’s earning power, however, dwarfs that of Kevin Durant. He is not just well-paid, he is the highest paid athlete in the world, earning over $180 million in 2020 alone. The UFC and Dana White have a history of pressuring fighters to perform through injury. Nevertheless, they would very likely assert the defense that McGregor had knowledge of the injury going into the fight and assumed the risk by not canceling the bout. While a viable lawsuit would inflict serious damage to the UFC’s finances and alter its operations, the international behemoth is likely capable of absorbing that big of a legal haymaker. John Nucci is a 3L at Penn State Law and a Summer Associate at Woods Oviatt Gilman LLP in Rochester, NY. He can be contacted at [email protected].

The pandemic thrust COVID-19 protocols to the forefront of football’s player safety agenda in 2020. All levels of competition were forced to make seismic shifts in day-to-day operations. The conversation was clear: ‘Return to Play’ safely. Youth football presented an array of challenges—and arguably the most daunting among them are parents. Parents largely fuel the dialogue of player safety in youth football and have even begun taking legal action against youth football organizations. Kimberly Archie and Jo Cornell argued their sons’ posthumously discovered degenerative brain disease was linked to trauma sustained in Pop Warner. The case’s dismissal was an attenuation for future youth concussion claims, given the literature on C.T.E. in football is still evolving. However, state legislatures across the country are scrambling to protect youth football associations from imploding in liability: mandating state governing bodies redefine their concussion protocols which have in the past been challenged. Although the contact sports exemption in Karas makes the assumption of risk a robust defense for athletic associations, it is not an absolute bulwark. Nor are the developing protocols entirely sufficient. And while the state of Illinois, namely, has taken significant strides in updating its concussion laws, it is apparent to us that Concussion Oversight Teams (COTs) as defined by SB1692 can be improved. The law specifies no legal duty on their behalf, and administrative malpractice in under-resourced school districts may leave plaintiff-players with little recourse when the standard of care is compromised. Illinois identifies potential members of COTs for each district. Interestingly, at a minimum, a COT may be “composed of only one person [that] need not be a licensed healthcare professional.” Medical screening should be a legal function of a breach of duty and a causal connection to a present injury. Medical monitoring, a greater imposition of liability, was an overshot in Pierscioneck v. Illinois High School Association because only a tenuous link existed between the tortious acts of the defendant-association and the damages sought. Though the duty of a COT likely does not rise to that of a medical practitioner, athletes and parents alike should be assured that return-to-play protocols are designed by qualified individuals. A lack of district resources should not exempt the development of these protocols from medically driven standards. Illinois concussion law seems to be underwhelming in comparison to its peers. Texas’ HB2038 sets forth a stringent set of guidelines: COTs must include a physician, and athletes suspected of suffering a concussion must be cleared by a “physician skilled in concussions.” Illinois, on the other hand, allows athletes suspected of having a concussion to be cleared for play by an “athletic trainer, APN, or PA.” School districts will continue to center their risk management strategies around concussion education, prevention, and identification. Concussion liability, if not properly thwarted, could reshape and even dismantle the way under-resourced school districts showcase football competition and talent. Courts, as in Pierscioneck, often find youth concussion claims to be “nonjusticiable.” But if youth athletic associations want to continue to field football, they must find ways to solidify the standard of care among COTs. States such as Texas give their COTs force by requiring a physician without exception, while Illinois gives a way out. In this sense, it seems as if COTs in Illinois might be a display for public opinion to meet a legal standard of “reasonable care.” While we consider the athletes to be disadvantaged as a result, under-resourced districts can also suffer legal ramifications without any state financing of COTs. Perhaps this allows athletes to compete in an unsafe environment, putting these districts at legal risk that they are unequipped to combat.

With news that the College Football Playoff Board of Managers approved a study to see how feasible a 12-team playoff would be, the question arises: how will the new Name, Image, and Likeness laws affect the CFP? To start, let’s talk about the current CFP operation: there have only been four teams in the playoffs since the CFP started in 2014. Increasing the number of teams will likely increase viewership of the CFP, since many fans have been demanding an expansion to the original four-team practice. Twelve teams may not be the magic number that works, but an expansion is widely desired regardless. The ESPN and CFP contract currently averages $600 million every season. However, the suspected value of a 12-team playoff lies around approximately $1-2 billion per year. Now, NIL is coming into play. On July 1st, 11 states enacted NIL laws, joining Pennsylvania, who immediately granted NIL rights on June 30th. Oklahoma and Nebraska also enacted NIL laws, but where schools could give NIL rights immediately, but must do so before July 1st, 2023. Two more states, Arizona and Connecticut, are to enact NIL by the end of 2021. Since then, college athletes have already started announcing signed partnership agreements. Around the same time, the NCAA’s Board of Directors officially suspended the organization’s name, image, and likeness rules prohibiting athletes’ rights, and have created interim rules in its stead. State NIL laws vary, but the NCAA’s rules will now allow athletes to profit from their NIL in numerous ways, such as monetizing their social media accounts, signing partnership agreements, starting businesses, etc. Schools in NIL states are to follow their state’s law when dictating what their athletes are allowed to do. This comes into play especially with sports betting since states, like Texas (enacted NIL July 1st) still ban any type of gambling in the state. Schools in states without enacted NIL law are instructed to create policies on how their athletes will be affected by NIL. Since not all states have enacted NIL laws, we may see a large wave of transfers in the next coming years, as well as an even more competitive recruitment. Such a substantial number of transfers can drastically change a team’s dynamic, and the schools in NIL states, especially those with added NIL programs, will likely see better recruitment classes. An athlete whose school reaches the playoffs receives more airtime, and in turn, the bigger their brand and name becomes. Athletes can then receive higher earnings from their partnerships by playing in these playoff games. Athletes may also be more likely to stay in school longer in order to earn more money from partnerships. More teams in the playoffs would equal more players, and inevitably, more players with partnerships. Many of the schools who constantly dominate the CFP and repeatedly rank in the Top 25 are located in NIL states, like Alabama, Georgia, and Ohio. This makes them even more popular for incoming recruits and transfers. Will this create the uneven playing field that the NCAA was afraid of? Or really, does it just maintain the “norms” we see of the same teams competing for the championship every year? The expansion is meant to broaden the opportunities for more schools to feel the CFP spotlight, and with that, allow student-athletes to earn more from their name, image, and likeness rights. An expansion of the CFP is extremely likely with the amount of revenue that is almost guaranteed to follow. However, the expanded number of teams is still questionable. The CFP feasibility study is expected to be delivered near the end of summer, possibly at their September meeting. The expansion will likely bring substantially more revenue, but the question of how much NIL will affect the CFP is less clear.

Jon Jones is easily one of the biggest stars in the Ultimate Fighting Championship (UFC). He has had an incredibly successful career and amassed a record 28-1, with his lone loss coming by disqualification. Although wildly successful inside the octagon, outside it, Jones is no stranger to controversy. He has been in legal trouble throughout his career, failed several pre-fight drug tests, and feuded with fighters and fans online. However, this time, Jones has taken aim at the UFC and its leader Dana White. It all started in May of 2020 when negotiations began for Jon's upcoming fight. After Jon watched Deontay Wilder lose a boxing match and still walk away with north of $20 million in prize money, he was rightfully pissed off. Jones then fired off a series of tweets, claiming that the UFC has been ripping fighters off for years. And while Jones said he does not need the UFC to make it up to him, his message was very clear: Jones will not be fighting unless he makes what he deserves. Jones was willing to back up those statements having sat out since February of 2020. Meanwhile, Jones had been teasing that he would go up to Heavyweight, a move that was justified by him having cleaned out the Light Heavyweight division. He gave up his Light Heavyweight (LHW) title, a belt he defended a record 11 times since earning it in 2011. With no significant challenge in LHW and a vacant belt, it seemed Jones was ready to move on. Moving on does not mean letting go. Since Jones' initial dust-up with the UFC, he still has not booked a fight. Dana White continually gets asked in press conferences why Jones has not been booked, and his response always sounds something like: take it or leave it. White consistently dismisses the money issue when asked about Jones and claims that the UFC puts on fights every weekend. They would welcome Jones back at any time. The kicker? He will have to fight for whatever prize the UFC offers. The trick for superstar fighters, like Jones, is they know the money is there. Jorge Masvidal, Conor McGregor, and Khabib Nurmagomedov make huge sums of money when they book a fight. But when you compare their pay to the UFC's revenue, even on a single event, the disparity is clear. Often, just the ticket sales alone (called "the gate") is enough to cover the entire card of fighter salaries and bonuses. This is significant because the UFC does not make most of its money on the gate. The UFC lives on pay-per-view buys. In the most recent event, UFC 264, Dana White estimated that they sold 1.8 million PPV at $70 each. Quick and dirty $126 million. I think we all understand why fighters like Jones are done taking $500,000.

In 2016, the UFC was sold for $4.025B but even before the lucrative sale, questions surrounding fighter pay had begun to permeate the mainstream. It’s fair to ask why some fighters are getting paid only $15,000 to show, while the company is generating such large revenue each event. And furthermore, why are fighters willing to fight for such a low number given the costs of putting on a legitimate fight camp, including paying coaches and a nutritionist, as well as the rest of the expenses involved in competing at the highest level? The answer lies partly in the amended complaint of the ongoing antitrust suit between a class of named plaintiffs led by former UFC fighters Cung Le, Jon Fitch, and Nate Quarry among others, and former owners of the UFC, Zuffa LLC. The complaint alleges that Zuffa “engaged in an illegal scheme to eliminate competition from would-be MMA promoters by systematically preventing them from gaining access to resources critical to successful MMA promotions…” The critical resource that Zuffa allegedly prevents access to is championship level fighters. That is to say, other promotions suffer because, among other things, the UFC has a stranglehold on the highest ranked fighters in each division. While there are a few fighters outside the UFC in the top 10 of each weight class globally, the UFC holds a vast majority of the highest ranked fighters under contract and champions in other promotions, In fact, according to rankingmma.com UFC fighters occupy 85% of the top 10 rankings across all weight divisions. Given the lack of highly ranked fighters, other promotions, try as they may, are hard-pressed to sell “world championship” fights when the competitors are not even ranked inside the top 10 globally. World championships are a true indicator of fighter popularity, as shown in the graphic below, depicting Google search prevalence over time for Michael Bisping, in blue, Robert Whittaker, in yellow, and Israel Adesanya, in red. Adesanya has become one of the biggest draws in the sport but each peak in search prevalence comes around the time that one of these fighters is engaged in a championship fight. The popularity garnered by winning a championship stays with the fighter while he holds the title which would explain why Adesanya, the current UFC Middleweight Champion is so highly searched right now. It goes without saying but the UFC is certainly aware that the highest ranked fighters make for the most popular fights and thus, the most money. What’s more, the biggest draws in MMA history have always been with the UFC. Beginning with the likes of Chuck Liddell and Tito Ortiz, to Georges St. Pierre, Brock Lesnar, Ronda Rousey, and now Conor McGregor and Israel Adesanya, the fighters with the biggest star power have always been under the UFC banner. It’s estimated that UFC 264, featuring McGregor vs. Poirier 3, sold 1.8M PPVs, which would make it one of the highest selling fights of all time. No other promotion can boast a star with drawing power even close to the aforementioned athletes which only further contributes to the UFC’s market dominance. All of this brings us to the ultimate question, why aren’t UFC fighters paid more? The average UFC fighter’s salary, of course that includes Conor McGregor’s as well as that of the least popular up and comer, is $166,000 per year. That number equals around 19% of total revenue generated by the UFC in a given year which pales in comparison to the revenue sharing arrangements that are collectively bargained for in other leagues. NFL players by comparison are set to earn at least 48.8% of revenue in the upcoming 17 game season, and NBA players make between 49%-51% of total revenue. Aside from the fact that UFC fighters do not have a union to collectively bargain on their behalf, the UFC uses the above mentioned vice grip on elite talent to essentially lure fighters into signing contracts that heavily favor the promotion in the hopes of eventually being able to reach the championship summit and capitalize on potential popularity in the future. The UFC has capitalized on this cycle by cornering the market of elite fighters and locking them into contracts that are more slightly more lucrative than their competition can afford, garnering what is referred to as monopsony power. Monopsony power essentially means that the UFC is, for all intents and purposes, the sole buyer in the elite fighter market. To illustrate that point, it is alleged in the ongoing lawsuit against them that the UFC has up to a 90% total share of the MMA market, which would equal an HHI of 8,100. The Herfindahl-Hirschman Index, or HHI, is a commonly accepted measurement of market concentration where anything in excess of 2,5000 is considered highly concentrated. A maximum HHI of 10,000 means the market is controlled by a single firm. The UFC’s alleged 90% share of the market affords them near sole control of the MMA market which, coupled with UFC President Dana White’s strong opposition to unionization, and the fighters willingness to fight for low pay in the hopes of joining the elite PPV draws, and the UFC is in prime position to continue dominating competitors and paying the fighters a meager percentage of the revenue they generate.

The NCAA finally caved to relentless public pressure and lifted its prohibition on college athletes’ ability to capitalize on their rights of publicity. An unsurprising outcome since California passed the first collegiate name, image, and likeness bill in 2019. This is a structural paradigm shift in American sports but let’s take a moment to fully appreciate how this regulatory battle turned into the wild west. Twenty-four states followed California after Governor Gavin Newsom signed SB206 on national television alongside Lebron, but it was ultimately the boys in Florida lead by attorney Darren Heitner, that pushed this inevitability into overdrive. You see, those first laws all took effect sometime in the non-immediate future, California’s SB206 was originally set to take effect 2023. Heitner and Co. went full Socrates and asked “Why?” and ensured theirs would be effective July 1, 2021, D-Day. This left college sports with a patchwork of state laws because the NCAA refused to read the writing on the wall and draft reasonable bylaws. They must not get paid enough in Indianapolis. The NCAA ultimately bent the knee and lifted their name, image, and likeness prohibitions on July 1 with only two rules for the country to abide by: no pay for play and no “impermissible inducements.” Players must otherwise abide by their state’s law or their school’s policy. It was beautiful chaos. Left to their own devices, athletes agreed to most deals that came their way with minimal guidance of how said deal may affect their eligibility, which at this point, is determined on a school-by-school basis. Bringing us to Portnoy. Dave Portnoy, founder of Barstool Sports hopped on Instagram Live on July 1, and ham-fistedly announced Barstool Athletics, which, was self-admittedly thrown together just minutes prior to the announcement after Jacksonville State Volleyball player, Adelaide Halverson inquired about being a “Barstool Athlete”. Barstool Athletics was born. Sidenote, it’s absolutely hilarious that Barstool didn’t have a plan in place for this. In the following days, thousands of athletes have reportedly reached out to the Barstool team to become an endorsed athlete with free merchandise seeming to be their only compensation. SportsLawTwitter™ began questioning whether partnering with Barstool Athletics would jeopardize athletes’ eligibility because Barstool Sports majority owner is Penn National Gaming, a bookmaking and gambling operation. Though there are no express regulations against gaming endorsements, inquisitive minds asked whether Barstool’s connection with sports gambling would violate any internal college policies. One institution finally affirmed, American International College. According to the above tweet, AIC’s compliance department either A) doesn’t understand the lack of NCAA rules, which is brilliant or B) is being willfully dishonest to pass along blame. As we’ve established, THE NCAA HAS TWO RULES AND Massachusetts hasn’t even passed their own NIL law and the bill that IS working its way through the legislature is silent on gambling endorsements. Let’s conduct a short thought experiment using the assumption that Barstool Sports is a gaming company instead of a massive media company (it isn’t): Why are we prohibiting college athletes from partnering with gambling companies? Is it because *sports* betting is illegal in Mass? No, Celtics are official partners with Draftkings. Is it because NCAA institutions are prohibited from having gaming partnerships? No, the University of Colorado partners with PointsBet. Is it a vice thing? Are we pretending to be so puritan that we can’t stand the idea of college athletes being endorsed by a gaming company when every professional league has partnerships with one? Are we afraid an athlete will somehow give Penn National inside information on AIC’s big weekend series against Mercyhurst? Betting lines don’t even exist for the Atlantic Hockey Association. AIC, I’m but a lowly law student and have no operational experience in college athletics but I do know a couple of things: 1) your athletics department isn’t exactly Michigan and 2) Springfield isn’t exactly Los Angeles, exposure is limited. I’d be in the business of allowing your athletes to take what they can get, especially when that something is the most popular digital media brand in New England. This site’s founder, Dan Lust called on Barstool to do the right thing and warn athletes about the potential perils of partnering with them, but me and my infinite influence is calling on AIC and other schools that arbitrarily prohibit partnerships within certain industries to stop it and let the kids GET PAID….in merch.

In late 2020, more than a dozen Miami Gardens residents filed suit against Miami-Dade County and Mayor Carlos Gimenez for racial discrimination, seeking to prevent Formula One races from being held at Hard Rock Stadium, where the Miami Dolphins play. The plaintiffs alleged that their civil rights as well as state, county, and city laws were violated by the large-scale, car-racing event at the Hard Rock Stadium in their city. Liberty Media, the entity that owns and controls Formula One, announced, in September 2016, its goal of expanding Formula One racing to Miami. The plans initially contemplated a long weekend of racing in 2019, through the streets of downtown Miami, near Bayfront Park and the Port of Miami, among the city's restaurants, shops, and residential areas. In May 2018, Stephen Ross, the owner of the Miami Dolphins and the owner of the exclusive franchising rights to Formula One races in South Florida, expressed the goal of Formula One, "[i]n cooperation with the City of Miami and Miami-Dade County," to "deliver yet another global event that will be a destination for people from around the world and drive economic value to South Florida." Close to one-hundred Miami Gardens residents attended a October 29, 2019 commission meeting to express their opposition to Formula One racing in their neighborhood. Various residents and city leaders voiced their concerns about the myriad of negative impacts the racing would have on Miami Gardens: "catastrophic health impacts"-namely, hearing damage and air pollution, disruption to their daily lives, not being able to access their homes during races, unacceptably high noise levels, and extreme traffic congestion. The Miami Gardens residents and community leaders also highlighted the unprecedented outcry from the Miami Gardens residents, the Dolphins' lack of effort to engage them in the process, the community's historical lack of representation in and influence on the County, and the apparent double standard between the Defendants' response to the downtown Miami residents' opposition to the race as compared to, in contrast, the Defendants' disregard of the Miami Gardens residents' similar outcry. Formula One agreed to a $5 million pact with Miami Gardens over the next 10 years. In an effort to garner support, F1 proposed a community benefits package which includes priority hiring of Miami Gardens residents, the creation of a STEM program for children and other concessions to address residents’ concerns. Still, nearby citizens felt strongly in opposition and unsuccessfully attempted to overturn the election of a city council member who supported F1's proposal. The council would eventually vote to approve F1's offer, leaving this lawsuit as the residents' last chance. After much deliberation, the United States District Court for the Southern District of Florida issued its decision on July 7, 2021, holding for the defendants, F1 and the Miami Dolphins. Ultimately, the residents' suit was dismissed because they did not state a claim that was plausible enough to lead to relief. The court reasoned that the defendants were grounded in their reasoning for holding the race at Hard Rock Stadium in Miami Gardens. Said rationale was to eliminate the need for a formal street closure, which would have been required at other proposed locations, such as Bayfront Park. As for the plaintiffs' 14th Amendment equal-protection claim, the court held that the allegations did not amount to a plausible showing that the County specifically targeted Miami Gardens because it wanted to inflict harms associated with the event specifically on Black residents. "While it is certainly plausible that the harms alleged will disproportionately impact Black residents, simply by virtue of the fact that 73% of Miami Gardens' population is Black, that alone is not enough to show discriminatory intent." "[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact."). In order to allege an equal-protection claim, a plaintiff must set forth facts showing not only a racially disproportionate impact, but a racially discriminatory intent or purpose as well. The latter fell short here. Excerpts from the court opinion are depicted below: