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.

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/

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.

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.

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 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.

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.

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.

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 jzn57@psu.edu.

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.

The creation of the European Super League sent waves across the footballing world on April 18. It was supposed to bring more money to these elite clubs that were invited into the league, but also potentially change the landscape of European football. The European Super League was supposed to replace the UEFA Champions League for the clubs invited. To put it into context with American sports, imagine all of the blue-chip college basketball teams creating their own tournament in lieu of the NCAA Tournament. It would certainly bring them more money, but would also change March Madness as fans and media love it to be. 48 hours after the Super League was formed, nine of the twelve teams decided to abandon the Super League amidst backlash from the fans and the media. These nine clubs were ordered to pay a “gesture of goodwill” by UEFA to benefit children, youth and grassroots football. Along with that, these nine clubs also agreed to face a fine from UEFA of 100 million euros if they seek to play again in an unauthorized competition or 50 million euros if they breach any other commitments to UEFA. A Spanish judge has now voided the order of the goodwill payment and the potential fine for these nine clubs for playing in an unauthorized competition. These clubs were also facing fines from their respective leagues, in which the judge specifically ordered the leagues not to take action. The English Premier League and the Italian Football Association cannot impose any fines or penalties according to the judge. The three remaining clubs left in the Super League, Real Madrid, Barcelona and Juventus, were threatened by UEFA with fines and possible expulsion from European competitions like the Champions League or Europa League. These teams cannot be banned from UEFA sanctioned competitions as stated in the judge’s original order in April. The judge claimed that punishments handed down from UEFA or FIFA could violate free competition laws. This is a big crush to UEFA, who has done everything in their power to try to stop these teams from forming a Super League. The creation of the Super League is a threat to UEFA as it would make the Champions League a lot less valuable for TV deals, sponsors, endorsements, etc. UEFA enjoy hosting the premier club competition in Europe and the Super League would threaten that hierarchy. The creation of the Super League would take away the top clubs that help make the Champions League the best club competition in the world. This is certainly something UEFA cannot allow to happen as it would diminish the Champions League and with that means the loss of a lot of revenue. It is very possible that a few years down the line we see the Super League try to make a comeback. Just like the Champions League has expanded to involve more teams to boost revenue, top teams will look to find ways to boost their revenue. The Super League would do just that as it guarantees these top teams the ability to play in the best club competition in the world while not having to worry to qualify for it. The teams in the Super League would be guaranteed qualification unlike the Champions League, where you qualify depending on how well you do in your domestic league. With the Super League, most teams would be invited in regardless of where they finish in their league, which was one of the main concerns of fans and media. A team could get relegated to the second division, but still compete in the Super League. The fans and media have won the battle of the Super League…for now.

It’s only been approximately two weeks since NCAA Student Athletes (“Athlete”) have been permitted to monetize their Name, Image, and Likeness (“NIL”) and although the “Wild, Wild West” has quickly turned into an overused cliché it has lived up to the hysteria that the majority of stakeholders believed it to be. The NIL era is only in its infancy and has already been bountiful in providing us with a bevy of legal issues to consider in sports including contracts, intellectual property, and state law violations. Big or small, a contract is a legally binding agreement whether established in writing or as a verbal agreement (emails or DMs count) promising to perform an act or service in return for consideration regardless of the form of compensation. From free merch in exchange for a tagged post to a Boost Mobile endorsement in Times Square, a deal is a deal and there have been a lots of them! We’ve seen the paid sponsorship posts on social media, as well as the appearances and camps but what most of us don’t see behind the scenes are the terms that are agreed upon which raises some fundamental questions. Do both parties, especially those unrepresented 17-21 year old Athletes, understand what they are agreeing to? Do they know what they are prohibited from doing? Do both parties comprehend the risk and liability if either party breaches the contract? Undeniably, my younger self was not reading the fine print on agreements nor would I have appreciated the gravity of what may result from a breach a contract. Nonetheless, we’ve seen a lot of paid partnership and sponsorship deals. A prevalent story that has landed on the front page of sports law raised the legal warning flag when hundreds (if not, thousands) of Athletes licensed their NIL rights in perpetuity to Yoke Gaming with a lot of slack on how, when, and what purpose or manner the company may use the media. Keep in mind, the Athletes are not allowed to “capture, record, use, publish, distribute, display, post or share any portion of the Video Game Experience.” For transparency, I have not read the full terms of agreement, but it’s apparent from the sports law community that the consideration exchanged for the Athletes’ intellectual property was … less than optimal. Granted we give technology companies our personal data every day to when we agree to terms that we don’t read but something about these particular NIL deals for the use of exploiting royalty-free media didn’t sit well with me. Another topic starter that has taken the NIL era by storm involves Barstool Athlete’s last-minute venture to join the NIL train and sign players in exchange for free merchandise. The moment Dave Portnoy, Founder of Barstool Sports, held his emergency conference, the alarms began to sound on whether the Barstool name is too closely associated to Penn National Gaming, a casino and gambling company, which happens to own a 36% stake in Barstool Sports. This became an issue because certain state laws that govern NIL prohibit Athletes from endorsing or entering into agreements with companies that are associated with gambling, tobacco, alcohol, and others. The answer to this law school hypothetical likely falls under the safe harbor umbrella of “it depends” which is fair considering there is still no permanent NCAA NIL guidance (shocker!), various state NIL laws in effect, and individual university or college NIL policies that all have their own guidelines. Despite the looming questions, the benefit of allowing Athletes to exercise their right to monetize their NIL is here to stay and it’s been long overdue. Considering everything that has unfolded, it’s safe to say that ambiguities and conflict are part of the growing pains that were expected and despite it only being two weeks, it’s difficult to picture a world without the NIL era.