With the signing period for players selected in the MLB First Year Player Draft recently concluded, the biggest headline that emerged was that the New York Mets were unable to sign their first round pick (10th overall), Kumar Rocker. Rocker had become one of the most famous college baseball players in this generation following his 19-strikeout No-Hitter and College World Series Most Outstanding Player Award in 2019. Entering this Spring, many lauded Rocker as being the top candidate to go first overall in this Summer’s MLB Draft. Although he was a First Team All-American for Vanderbilt, his performance didn’t live up to what scouts were looking for to go at the very top of the draft. Nonetheless, the Mets selected him in the top ten and many believed he was the ‘steal’ of the draft. Unlike some of the other drafts, the MLB signing bonus is negotiable around what is referred to as ‘slot-value’. Each pick in the first ten rounds has an assigned slot agreed upon by MLB and the MLBPA and each team has an assigned bonus pool they can spend according to the value of their picks. Past that, teams and agents are left to their own to determine what each player signs for. Shortly after the draft, all signs pointed to Rocker and the Mets agreeing on a $6 million signing bonus, $1.3 million above the assigned $4.7 slot value for the 10th overall pick. However, things got complicated from there, and Rocker didn’t end up signing. Let’s look at how we got here and why something like this shouldn’t happen moving forward. In the time from when the Mets drafted Kumar Rocker until the conclusion of the signing period, the Mets discovered some sort of medical issue with Rocker, obviously lessening their interest in extending him a $6 million signing bonus. While we will most likely never know where the negotiations and specific offers went from there, reports claim that the Mets either pulled their offer completely off the table or lessened it to a significant degree, which Rocker and his advisor, Scott Boras, likely scoffed at. Boras is known for not backing down or taking any discounts with his clients, and it led to Rocker not accepting anything below what he thought was acceptable. In compensation for not signing Rocker, the Mets will receive the 11th overall pick in the 2022 MLB Draft. In Rocker’s case, he can return to Vanderbilt for his Redshirt Junior season, although initial reports have ruled that out. In addition, he can begin his professional career in Independent League Baseball domestically in the United States or sign overseas in Japan or Korea. He is not allowed to sign with another MLB club as a free agent and will have to wait until the 2022 MLB Draft to do so. While it’s rare for a prospect drafted this high to not sign with the club that selects him, it is not unprecedented. In 2014, the Houston Astros decided to lessen their offer to high school pitcher, Brady Aiken (first overall), after his physical reportedly didn’t come back clean, and Aiken decided to take his talents to IMG Academy before being selected seventeenth overall by the Cleveland Indians the next year. If it makes Mets fans feel better, it actually turned out well for the Astros in this case. Houston received the number two overall pick in 2015, which turned out to be Alex Bregman, and Aiken has struggled with injuries over his Minor League career. There are a few other examples of this, but on the rare occasion it does happen, it makes many question the process of the MLB Draft. On one hand, a rare occasion like we’re witnessing now with Kumar Rocker shouldn’t spark change to the whole MLB Draft system by itself. This issue just reinforces the problems that come with it in its entirety. The lack of concreteness of what the signing bonuses are in the first ten rounds allows teams to manipulate their offers up and down the draft. The MLB Draft has become less about selecting the best player, but selecting the best player at the right price. After already drafting him, the Mets determined that $6 million (or obviously anything near that) was not the right price for Rocker, so they opted not to sign him. Not assigning concrete and non-negotiable draft bonuses to specific slots creates vagueness and allows MLB teams to manipulate draftees up and down the board. Just because the Mets didn’t believe Rocker was healthy enough to deserve a signing bonus doesn’t mean every team would’ve passed on Rocker as well. According to Scott Boras’ statement, his independent doctors claimed he had no structural damage. The fact that Rocker will not have to wait another calendar year to enter Major League Baseball because of one front office’s decision just feels wrong. The MLB Draft is already complex due to the above slot-below slot dynamic that goes on all the time, but an issue like this highlights why this system needs to be questioned. A major fix would involve changing the slot system to that of the NFL where all of the picks slots are prearranged and non negotiable. But a more reasonable change would be to allow a player in Kumar Rocker’s situation with his alleged medical issue the ability to sign with another club that believes he’s healthy. Rocker is a victim of a system that rewards the Mets for not signing a player they believed was worthy of the tenth overall selection. The Mets will just move right along and take the eleventh overall pick along with their other first round pick next year while Rocker will have to wait one more year to fulfill his dream of signing that first MLB contract. The current CBA is set to expire following this season and this issue should be on the long list of discussion points that needs to be negotiated.

Barcelona is the world’s most valuable soccer team. The world’s best player, Lionel Messi, recently agreed to a new contract that will keep him in Barca colors for another five years. Barcelona is also over 1 billion Euros in debt. And unless they can clear enough money to get under La Liga’s salary cap by August 31st, the club will not be allowed to register Messi’s new contract, which would render him ineligible to play in the league until January. La Liga’s salary cap is not fixed like in American sports leagues. Spanish teams are allowed to spend on players and staff based on several factors, including their income and expenses, and crucially for Barca, debt repayment. Barcelona’s limit for this season has been reported at between €160-200 Million (about $189-236 Million), down from €347 Million ($409 Million) last year. Even with the huge drop, Barca’s cap is still higher than every La Liga club other than Real Madrid. The problem lies in part in the fact that Barcelona’s cap figure is less than 30% of what it was two seasons ago. Add to that some questionable financial management and the fact that they haven’t stopped acquiring high-priced superstars. The upshot is that the club needs to move more than €200 Million worth of salary off their books before they can register the contracts of Messi and new signings Sergio Aguero, Memphis Depay, Eric Garcia, and Emerson Royal. Even if Barca is able to move some current players, as long as the club is over the cap, it can only allocate 25% of transfer profits for new costs, allocating the other 75% to paying outstanding debts. Other clubs know that Barcelona must move salaries, which hurts the club’s leverage in potential deals. And transfer values have generally gone down worldwide due to the pandemic’s effect on revenue, meaning the powers that be at the Camp Nou have their work cut out for them. Barca’s situation is raising a host of current and potential legal issues. For one, players they would like to—and need to—move are under contract, for extensive annual wages. This is money the club legally owes the players. Those deals would have to be re-negotiated or moved for cents on the Euro. Worse, Barca unilaterally terminated the contract of Brazilian midfielder Matheus Fernandes—via an e-mail to the player. Fernandez has said he intends to file suit over the dismissal. From a sponsorship perspective, a league with Messi on the bench is less marketable than one with him making his trademark 60-yard runs or curling in magical free kicks. La Liga’s global partners include Budweiser, Puma, EA Sports, and Panini; Barcelona’s partners include Nike, Rakuten, and Gatorade. It’s not a stretch to think they’d be less than pleased at the prospect of a half season without the league’s most marketable star and might even want to pursue “make goods” due to Messi’s absence. These factors (and common sense) lead to the prevailing thought that La Liga will figure out a way to make sure Barcelona fixes its issues, or even alter the system to allow the club to register Messi’s contract. For what it’s worth, league president Javier Tebas has maintained that the league will not change the rules for Barca’s benefit. Whatever Barcelona does to address its financial situation, it needs to be done soon—Barca kicks off the La Liga season on August 15th. Ben Shrader is a partner at Hart McLaughlin & Eldridge in Chicago, where he serves as Chair of the Chicago Bar Association Sports Law Committee. You can reach Ben at [email protected]

What goes up, must come down. This saying goes in physics, gymnastics and in life. In true fashion, Simone Biles pulled a move that no one else anticipated during the Olympic Games: she withdrew from competition. When Biles pulled herself from the Olympic gymnastics individual all-around event for her mental health, public sentiments varied. Some might say that Biles is so used to flying high that she took a page from Icarus and flew too close to the sun. I say she had the weight of the world ready to pull her down. A quick note on my own personal experience with this topic: mental health is just as important, if not more important, to your physical health while competing at any level of sport. I give so much credit to her teammates for being the support that Biles at this time. Biles didn’t “give up” on her team, and it clearly shows in the way they celebrate each other and their achievements that they want to lift each other up. Yet, the world looked to the Olympics in anticipation of Biles winning the individual all-around gold medal. It seems that the world felt entitled to watch her perform. Even with the world watching her, Biles owes nobody answers regarding her mental health. But could her individual sponsors have been an exception? Her sponsorship portfolio is an impressive reflection of her athletic career: Athleta, Visa, CorePower and more. From a corporate social responsibility perspective, it was doubtful that any sponsor would speak out against Biles. In a world where light is being shown on mental health, any corporate action against Biles at the moment would have been a step out of bounds. Rather, her sponsors got right to the punch and offered their support, a world-class social effort for a world-class athlete. If we weren’t in a world where mental health is being advocated for, would her sponsors have had a course of action for her lack of performance? Was there a return-on-investment that they relied on following her expected gold medal win? In basic first year law student contract terms, a promise for performance? Well, I’ll start by saying I don’t know the full details of her sponsorship contracts. Is she paid for social media posts? Event appearances? Medals? Just being the GOAT? Most likely secret answer E: all of the above. Let’s assume parts of her contract, such as event appearances and media campaigns, were contingent on bringing home Olympic gold. Despite the incredible team event silver medal she will be toting back to the United States, sponsorship revenue executives have to wonder if they will be losing money on campaigns bolstered by gold. After all, sports and especially the Olympics are all about the “what-ifs.” It’s a simple formula that’s been in place for centuries. Even as an earthly resource, gold is worth more than silver. A gold medal athlete is meant to make more money. But Simone Biles is proving she’s worth more than gold. Gold medals are a wonderful thing to be attained, but Biles taking her place as a champion for mental health during AND after these games might be her biggest win. Long gone are the days of quarterbacks saying “I’m going to Disneyland!” after the championship game. Queue the ending scene from The Game Plan (2007), a personal favorite movie of mine, where Joe Kingman (the one and only Dwyane “The Rock” Johnson) chooses his daughter over a fast food sponsorship. Athletes are aligning with brand partners for more than what they can bring to competition, and the way her partners promote her following the Games will be an example of how brands can model their “promise for performances” moving forward. It’s no longer all about the medals or trophies brought home but a combination of who the athlete is and what their values are. Because the greatest gymnast of all time has put her mental health over another set of gold medals to hang on her neck, the world is talking about mental health. The discussion isn’t over just yet. Andrea is a part-time evening 2L at the Elisabeth Haub School of Law at Pace University and the incoming Vice President of the Pace Sports, Entertainment and Arts Law Society. She works full-time as an Email Marketing Coordinator at BSE Global for the Brooklyn Nets and Barclays Center. You can find her on most social media channels as @dreagarcia21.

The Name, Image, and Likeness (NIL) era has arrived, and the consequences for collegiate athletics have been far-ranging. Within only one month, student athletes and sometimes even full teams have executed endorsement or sponsorship deals, while conferences like the Big 12 and SEC are scrambling at the prospect of major conference realignments. INFLCR, an Alabama-based brand building company that works directly with multiple top universities has already reported that through one month of the NIL era, at least 1,300 NIL transactions have taken place.[1] These transactions have totaled approximately $1.256 million, with the average NIL deal coming in at around $923.[2] However, underlying all the NIL-related innovations taking place in college sports, a new question has arisen: should high school student athletes be able to profit off their Names, Images, and Likenesses? Prior to July 1, 2021, this question was often overlooked in the context of NIL, but it has risen to the limelight after the sports world has gotten a taste of just how fruitful NIL possibilities can be. In late July, Southlake Carroll High School (TX) Quarterback Quinn Ewers informed Yahoo Sports that he was “leaning” towards skipping his senior year of high school to enroll early at Ohio State University.[3] Ewers, the top ranked football recruit in his class per Rivals.com, is currently prohibited from profiting off his Name, Image, and Likeness under Texas’ existing NIL structure. Texas’ NIL law expressly provides that “No individual, corporate entity, or other organization may: (1) enter into any arrangement with a prospective student athlete relating to the prospective student athlete’s name, image, or likeness prior to their enrollment in an institution of higher education.” [4] Despite Texas’ NIL limitations, Ewers’ 83,000 Instagram followers and iconic blonde mullet have already earned him NIL offers from local and national companies. With these NIL opportunities in mind, Ewers announced on August 2nd that he had decided to forgo his senior year of high school eligibility and enroll early at The Ohio State University. Ewers, via his Twitter (@QuinnEwers), stated “following Texas’ UIL informing me I would be prohibited from profiting off my own name, image, and likeness, I’ve taken time to think about what lies ahead of me, both in the short- and long-term. It’s unfortunate I’ve found myself in this situation, as my preference would have been to complete my senior season at Southlake Carroll along with the teammates and friends I’ve taken the field alongside for the past three years. However, following conversations with my family and those I know have my best interests in mind, I’ve decided it’s time for me to enroll at Ohio State and begin my career as a Buckeye.”[5] Ewers, by enrolling early at Ohio State, will not only be able to profit off his NIL, but will also have the opportunity to obtain eligibility for the NFL Draft one year earlier than if he had elected to complete his Southlake Carroll football career. With substantial benefits available for Ewers outside his home state of Texas, it is clear that the NIL spotlight is beginning to shift to high school athletic stars. Ultimately, Ewers’ decision to enroll at OSU early will make him a trailblazer in the NIL sphere. In the absence of much needed federal NIL legislation, many States that do have NIL legislation in place explicitly prohibit high school student athletes from profiting off their Names, Images, and Likenesses. The outlier is California, whose Student Athlete Bill of Rights legislation helped expedite the NIL evolution to where it is today. In California, high school student athletes are expressly permitted to monetize off their Names, Images, and Likenesses in the same way college student athletes can.[6] Without federal NIL legislation, States which have declined to pass NIL legislation to date are forced to rely on statewide high school athletic association’s NIL policies. For instance, the National Federation of State High School Associations outwardly prohibits high school student athletes from monetizing off their NILs.[7] On July 28, 2021, the New York State Public High School Athletic Association (NYSPHSAA) agreed to hold a vote in October 2021 to definitively determine whether high school student athletes can utilize their NILs without threatening their athletic eligibility.[8] If the NYSPHSAA votes affirmatively to extend NIL rights to high schoolers, it places New York and California preparatory high schools at a clear competitive advantage in athletics recruiting. Supporters of extending NIL rights to high school student athletes ground their reasoning in many of the same concepts that support giving NIL rights to college athletes: the belief that individuals should be able to allow the free market to determine the worth of their Names, Images, and Likenesses, instead of having governing bodies in sports cap that value at zero dollars. Other high school athletes like basketball phenoms Mikey Williams and Bronny James have social media followings exceeding 1 million followers across Instagram and TikTok. If high school athletes with this sort of online presence are recruited by companies for endorsement deals, they’d be forced to decline lucrative offers to maintain eligibility. However, the same premise does not apply to musicians, artists, or E-sports players who are still in high school. The obvious disconnect based on the tradition of Amateurism has put high school athletes in a bind, and the time is now for Congress and State Legislatures to act and permit high schoolers to join the NIL era. Nevertheless, one thing is for certain: Quinn Ewers’ decision to enroll at Ohio State a year early will have clear repercussions, as the future of high school sports and athletic recruiting will forever be changed. [1] Eric Prisbell, NIL: A Quick snapshot one month into the NCAA’s new era, On3.com, (Aug. 1, 2021), https://www.on3.com/news/nil-quick-snapshot-one-month-into-ncaa-new-era/ [2] Id. [3] Pete Thamel, Will America’s No. 1 QB recruit Quinn Ewers give up 7-figure NIL offers for one more season of Texas high school football?, Yahoo! Sports, (July 28, 2021), https://sports.yahoo.com/will-americas-no-1-qb-recruit-quinn-ewers-give-up-7-figure-nil-offers-for-one-more-season-of-texas-high-school-football-200803437.html [4] TX SB 1835(j)(1), 2021-2022, 87th Legislature. [5] Quinn Ewers (@QuinnEwers), TWITTER (Aug. 2, 2021, 12:48 PM), https://twitter.com/QuinnEwers/status/1422237898989088768 [6] Doug Samuels, Report: California says NIL rights aren’t just for college athletes, Football Scoop, July 22, 2021, https://footballscoop.com/news/report-california-says-nil-rights-arent-just-for-college-athletes [7] Dr. Karissa Niehoff, NIL Rulings Do Note Change for High School Student-Athletes, National Federation of State High School Associations, July 7, 2021, https://www.nfhs.org/articles/nil-rulings-do-not-change-for-high-school-student-athletes/ [8] Tommy Sladek, NYSPHSAA to vote on allowing high school athletes to benefit off name, image, likeness, CNY Central, July 28, 2021, https://cnycentral.com/sports/high-school/nysphsaa-to-vote-on-allowing-high-school-athletes-to-benefit-off-name-image-likeness

An eyebrow-raising lawsuit has been filed against Michael Finley, Mavericks' Vice President of Basketball Operations and former NBA star. Here is the full caption: The plaintiff in the complaint is seeking $35 million with a curious claim that he devised the business name and idea for "Aquafina," the water brand. While the plaintiff here doesn't make an outward legal claim as to why he is entitled to the requested money, this lawsuit appears to be for misappropriation of a trade secret. Still, it's not entirely clear if the plaintiff is making that specific claim from what the complaint reads. Of note, the complaint- filed in the Middle District of Florida, Fort Myers Division - is largely hand-written and seemingly done by the plaintiff, himself. Per the court filing, the plaintiff claims that the name "Aquafina" was his idea, created in honor of and for Finley. He seems to have arrived at the name by a simple calculus: water= "aqua" and Finley= "fina"... I guess making Aquafina? If true, this would make for a very interesting fun fact in basketball circles. However, while the plaintiff writes "Michael Finley of Aquafina," I can't find any indication, anywhere, that Finley is somehow connected to the water brand in an official capacity or otherwise. In order for Finley to be a culpable party, he would likely need to have some connection to or profit from the plaintiff's work in creating the brand. On that note, Aquafina's current CEO is the other defendant in the case. Curiously, though, the actual brand Aquafina and its parent company, PepsiCo, are not named in the case. This is truly a bizarre court filing but I guess it gets some points for creativity. Meanwhile, this is not the first time Aquafina, or its parent company, PepsiCo, have been hit with a misappropriation lawsuit. In April of 2009, two Wisconsin men filed suit against PepsiCo, alleging that they came up with the business idea for Aquafina in 1981, and a confidentiality agreement was breached when that idea was stolen. Pepsi failed to respond and the men initially won a $1.26 billion judgment! The immense victory didn't last long, though. Weeks later, said judgment was vacated by the same judge after PepsiCo's attorneys finally offered their attention. The claims were time-barred, as there was just a six-year statute of limitations. If you ask me, this lawsuit is likely destined to fail as well given the timing of the events vs. when the lawsuit was filed. Still, I call on the internet to determine whether the true origins of Aquafina are rooted in NBA greatness. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is President of the Hofstra Sports and Entertainment Law Society and is a law clerk at Geragos & Geragos. He can be followed on Twitter and Instagram @Jmorr1.

While the Games of the 32nd Olympiad have been all the talk over the last couple of weeks, it seems that the International Olympic Committee is actually seeking to suppress that talk. This is at least true in the social media space. Since the beginning of the games on July 23rd, many users on various social media sites, especially Twitter, have attempted to discuss the games through various highlights posted by users. This was followed up by a quick “strike” under the Digital Millennium Copyright Act, deleted posts, and even some suspensions or bans. In short, the Digital Millennium Copyright Act ("DMCA") is a law which was passed during the Clinton Administration (read: It’s very outdated in internet years). The main purpose of the Act, in the Copyright realm, is to shield those who host content on the internet by creating a scheme where if the content hosters put in measures to make sure they limit potential infringement on their site, they they will be shielded from being liable from Copyright infringement under a “safe harbor” doctrine. Under this oppressive striking regime, social media has seen popular users from twitch.tv and Twitter reportedly banned for watching, posting and/or commenting on highlights on their platforms . However, the counterbalance to any Copyright claim are claims of fair use. Fair use allows a potential infringer to claim that they were using the work for (among other things) criticism and comment. This creates a friction where the content hosts have a hair-pin trigger to delete, suspend, and ban users who are posting content without giving a proper basis to explain why they believe they are in the right. From a marketing standpoint, the over-policing of the DMCA is a perfect way to turn away potential new eyeballs from discussing your event. We currently live in the most digital age we ever have. Cable television has given away to streaming, and (for better or worse) articles have given away to twitter threads. The elimination of allowing small clips as a medium of displaying comment for the Olympics will eliminate the potential for people to watch an event they may not have tuned into because they saw something great on social media. From a legal standpoint, the DMCA needs review, as it has truly been primed for an update in the new age of twitter and live streaming.This applies beyond the realm of sports highlights. People are getting removed from platforms that have become their livelihood (especially on twitch) for instances which could be determined as fair use. The lack of review and jurisprudence on the DMCA can lead to a slippery slope where “Sports Twitter” has a potential to implode because of the consistent action against highlights. Obviously, the Olympics hold a lot of value in intellectual property, but there needs to be a balance struck where people can comment on, repost, and watch legally posted highlights without users sticking their necks out. It should be a gold medal for all of those involved, but the IOC and related parties are insistent on removing eyes from their events. Maxwell Tajerstein, Esq. is a NY practicing attorney. He is a graduate of St. John's University School of Law and holds a degree in Sports Management from St. John's University. The overlap Sports and Intellectual Property Law is the main focus for his writing.

A complicated legal fight in California civil court, involving Manny Pacquiao continues and now, the future Hall of Famer is counter-suing his brief, marketing partner, Paradigm Sports. First, Paradigm has escalated things by wanting a California judge to give them an injunction and stop Pacquiao's mega-fight scheduled for later this month in Las Vegas against Unified Welterweight champ, Errol Spence. But, the "Pac man's" legal team is firing back by saying Paradigm has been misrepresenting everything to the Filipino hero the whole way. Boxing insider Dan Rafael has written extensively about the legal "back and forth" for World Boxing News, From his latest item for them, "On Friday, Pacquiao filed a cross-complaint in the same court against Paradigm Sports in which he accused Paradigm of breach of conduct, breach of fiduciary duty, and fraud, among other allegations. “Manny Pacquiao’s cross-complaint filed (Friday) reveals in detail the complete sham nature of Paradigm’s complaint,” Pacquiao attorney Dale Kinsella said in a statement. “We look forward to exposing Paradigm’s conduct in front of a jury and recovering both general and punitive damages.” His item goes on to detail that Pacquiao believes he was lied to about the making of a fight with UFC star Conor McGregor, also repped by the Los Angeles-based Paradigm. And, that Paradigm also didn't live up to the lucrative endorsements they promised Pacquiao to sign with them. As we wrote previously, Paradigm says the gave Pacquiao a $3 million advance towards making his next fight and they want it back. That's now part of the dispute, as well. The agency filed a multimillion-dollar lawsuit in late June against Pacquiao in Orange County civil court, claiming breach of contract among other things. They further claimed in writing that they were able to negotiate a $25 million fight purse for Pacquiao for a bout with former Jr. Welterweight World champ Mikey Garcia that would have taken place May 15, 2021, in Dubai, United Arab Emirates. Paradigm further contends Pacquiao was to receive a $5 million purse advance for the proposed Garcia fight. That deal fell apart after Pacquiao attempted to make that $5 million advance a guarantee, even if he did not compete, per the complaint. “Pacquiao knew full well that Paradigm had exclusive rights to schedule his next two immediate fights,” Paradigm attorney Judd Burstein wrote in the complaint. “Nevertheless, in bad faith and material breach of the parties’ contracts, Pacquiao, upon information and belief, had surreptitiously entered into a contract to fight Spence.” Back to whether Paradigm has a legitimate chance at an injunction to stop Pacquiao-Spence? The short version is: that's highly unlikely. Pacquaio is attempting at 42 years old, to come off a two year layoff and beat one of the top lower weight fighters in the world. The bout is highly anticipated and is scheduled for the T-Mobile Arena in Las Vegas and on PPV. Still, Rafael reported that an assigned Orange County civil judge will hold a video conference hearing on Thursday to hear both sides. As for the wrangling on the money advanced to Pacquiao, that will take months and maybe years to figure out and settle. Originally posted on Big Fight Weekend.

As many of us know, many student athletes across the nation have been profiting from the commercial use of their name, image, and likeness (NIL) as of July 1, 2021. This overdue policy amendment has allowed hundreds of thousands of student athletes enrolled in a postsecondary educational institution – college or university – to monetize their NIL. For years, the focus of NIL rights was shining on NCAA athletes, and ignoring the conversation of affording the same intellectual property rights for high school athletes (HS Athletes). Some of the most fundamental arguments against NCAA’s previous NIL policy rested on the idea that every student (non-athlete) enrolled in school has the right to profit from their NIL. Therefore, as a matter of public policy, every student athlete should enjoy that benefit similar to their peers and not be stripped of their rights of publicity simply because they play a sport for their school. Reasonably, since college athletes are permitted to monetize their NIL rights, then the same proponed arguments should equally apply to the NIL restrictions that govern the student athletes at the high school level. Currently, the only state that expressly permits HS Athletes to monetize and profit from their NIL is California. Among the jurisdictions that have passed NIL legislation, the state legislature is either silent on the applicability of NIL rights to HS Athletes or it defers the issue to the bylaws or policies of the applicable high school athletic associations (HSAA). Conversely, there are a few states including Illinois, Mississippi, and Texas (arguably the largest state where HS Athletes could benefit from NIL) that go as far as explicitly prohibiting HS Athletes from entering into NIL agreements. Further, even if a HS Athlete is fortunate enough to live in a state that does not prohibit them from NIL activity, there is the red tape from HSAA that may prohibit or limit the types of activity that HS Athletes may engage in to remain eligible. Meanwhile, there are a number of state laws and HSAAs that are unclear or ambiguous on whether NIL activity is permitted. With over 5 million followers across social media platforms, North Carolina high school basketball athlete Mikey Williams is projected to earn millions of dollars through endorsement deals after have recently signed with a sports management agency. Williams has been able to skirt the restrictive grips of the NC HSAA because he attends a private institution and plays for a program at an academy that is not part of the HSAA and thus not prohibited from engaging in NIL opportunities. For the majority of the HS Athletes whose situation is not as fortunate as Williams’, they must comply by the HSAA or state laws such as Texas high school football athlete Quinn Ewers who is a five-star quarterback recruit committed to the Ohio State University. However, Ewers officially announced on August 2, 2021 that he will enroll into Ohio State early and forego his senior year in high school. Such a move allows Ewers to avoid Texas University Interscholastic Leagues’ NIL prohibition by graduating high school early allowing him to engage in NIL opportunities that could yield earnings upwards of seven-figures. Source: https://twitter.com/QuinnEwers/status/1422237898989088768/photo/1 In light of recent high-profile HS Athletes using alternative avenues to capitalize NIL opportunities, the HSAAs may be sharing the same hot seat that the NCAA once endured. Although the overall impact of NIL for high schools may not amount to the level of the NCAA, due to the difference in economic markets there will be regional and local areas in states where high school football is an integral part of communities (e.g. California, Florida, and Texas). With HS Athletes finding ways to work around the HSAAs NIL restrictions, the implications behind NIL limitations may force the highly recruited HS Athletes to make drastic decisions that may negatively impact the local small-business economy. Such decisions could resemble the Williams’ or Ewers’ route, whereas other HS Athletes may decide to move to a NIL-friendly state or avoid the bureaucracy of traditional education institutions and join an organization such as Overtime Elite. Unfortunately, it may be awhile before we start seeing any progress on the NIL front for HS Athletes considering the optics and public policy against young(er) teenagers being exposed to shady characters, legally binding contracts and vulnerability to unfair terms. Additionally, there are other complications with both legal and moral aspects that are tied to business deals involving brands and minors. However, it’s almost certain that there will be a tipping point where public policy that supports strict NIL governance for HS Athletes will be outweighed by the negative effects in level of competition, prestige and economic opportunity lost due to the same hill that the NCAA was once ready to die on. Sources: https://www.outkick.com/the-fight-for-nil-rights-reaches-a-new-class-high-schoolers/ https://www.forbes.com/sites/kristidosh/2021/07/31/uncertainty-remains-for-high-school-student-athletes-on-nil-rights/?sh=391ae84f4e00 Photo: CBS Sports You can find Alex Castro on Instagram @_castro_alex and Twitter @castro_alex__

Just when you thought this story couldn’t get any better… As I reported previously, the Cleveland Indians baseball team should have never underestimated a roller derby team. But they did, and now it’s bringing to light what is apparently a history of other leagues stealing roller derby names without any recognition or compensation whatsoever. The Cleveland Guardians roller derby squad is one of 65 members in a league called, the Men’s Roller Derby Association. Per reports, the Cleveland baseball team claims they knew the Guardians roller derby team was in existence and active. Yet, they chose to only complete their due diligence on the New York Guardians XFL team and Marvel’s Guardians of the Galaxy – seemingly ignoring the local Cleveland roller derby team with the exact same name, the Cleveland Guardians. And now, I think we may have found out exactly why this was not properly dealt with. When we broke the story, #DerbyTwitter fled our replies and DM's here over at Conduct Detrimental HQ. And now, with help from our new friends over at the Women’s Flat Track Derby Association (WFTDA), the Conduct Detrimental team has learned that this is not the first time a professional sports team has outright copied a derby team name from the same geographical market... without paying them a single dime. Let’s start with a little background on the WFTDA to paint the full picture. The WFTDA is the international governing body of women’s flat track roller derby representing more than 450 member leagues on 6 continents. The WFTDA sets the international standards for rankings, rules, and competition each year, and provides guidance and resources to the sport of flat track derby. Yes, they are a pretty big deal. More specifically, two roller derby leagues in the WFTDA caught our attention: Angel City Derby and Gotham Roller Derby. Angel City Derby was founded in 2006 by a collective of skaters, and the league is composed of nearly 200 members that compete against teams from the state of California and internationally. Angel City was one of the first leagues in Southern California to become a member of the WFTDA, joining in December 2007. Meanwhile, Gotham Roller Derby is based in New York City, and is the first flat track roller derby league in the metropolitan New York area and a founding member league of the WFTDA. Gotham is one of the preeminent leagues in roller derby, having won five WFTDA championships. Well, why am I telling you all of this? Because there is a women’s soccer team with a familiar name that will be the Los Angeles area’s first women’s professional team since the Los Angeles Sol folded in 2010. You guessed it… Angel City FC is a planned National Women’s Soccer League (NWSL) expansion team that is expected to begin play in 2022. According to the LA Times, nearly four dozen of the team’s 60-plus investors are women – including actress Natalie Portman and champion athletes Abby Wambach, Serena Williams, Lindsey Vonn, and Candace Parker – making it the largest female ownership group in U.S. sports history. For an incoming women-led team that has outwardly stated to Sports Illustrated that their mission is to “provide an opportunity to some of the best professional female athletes in the world to play on a stage as powerful as Los Angeles [and] send a strong message to young girls in the community and beyond,” you’d think they would be lifting up other dominant female sports teams. But it seems like the opposite could have been the case. In fact, the announcement of the Angel City franchise caused backlash on social media among women’s sports fans and particularly roller derby fans due to the long-standing existence of the championship winning Angel City Derby. On October 21, 2020, the club officially confirmed it was keeping the name Angel City FC. Despite the outrage that was brought to the soccer club’s attention, the derby team was not approached about the name whatsoever before the decision was made. In 2021, another NWSL team was rebranded to don a familiar name to the roller derby community: Gotham FC. Formerly known as Sky Blue FC, the club rebranded to NJ/NY Gotham FC and revealed a new crest and color scheme to go with it. On both occasions, not a single dime was given to these clubs for blatantly copying their names within the same market. Is this beginning to sound familiar? Looking at you, Cleveland Baseball Team... Executive Director of the WFTDA, Erica Vanstone expressed that “Angel City and Gotham are two of [the WFTDA’s] biggest teams. Gotham is the former number one team in the world. It’s hard to believe the NWSL didn’t know they existed.” Vanstone went on to say that following the unveiling of these two women’s soccer clubs, she “did not expect to learn about the lack of advance outreach to these teams, especially from a women’s franchise coming into the market in which there had already been teams of the same names for over a decade.” When Vanstone was asked about the derby community’s reaction, she felt that “it presented a good opportunity for Angel City FC or Gotham to work with these teams to co-promote. Partnerships are the best case scenario to uplift women’s sports in general. But to my knowledge, no one was given the chance to have these conversations in advance, which was just disappointing. In my mind, regardless of IP conversations, these were such missed opportunities to build fans and engage the community around a brand launch – that’s the valuation mistake here.” Is this past history of other professional sports teams taking names from roller derby just a coincidence? I think not. Despite the fact that women’s roller derby is more widely-played as a sport than its men’s counterpart, Vanstone opined that “this is the third time this has happened and some members of our community are pointing out that folks are only just caring about it now because [the Cleveland Guardians] are a men’s team, which is a valid frustration for women in sports.” Yet, the first two times this type of branding conversation happened it came from other women’s sports teams: Angel City FC and Gotham FC. Certainly, the baseball team spent a lot of money researching the name and identifying potential legal hurdles. Baseball claims they knew about the roller derby team. And you would have to imagine that as part of their research, they learned about the above-mentioned history of other leagues copying the names of roller derby teams in their market and not paying them a single time. Assuming they knew that, it is conceivable -- if not plausible -- that Cleveland Baseball assumed that the Roller Derby Cleveland Guardians would go away quietly... just like Angel City and Gotham. But that's not the case here as we've seen since the July 23rd announcement. So now we can ask the question: What's more likely did the baseball team not Google, "Cleveland Guardians," or did they intentional look past them and figured they would cut corners and save costs since there was seemingly no precedent for pay a roller derby team in recent history... which we now know from our friends in the roller derby world. The baseball team made a critical oversight here. There's no way around it. The question now is are they willing to pay a roller derby handsomely to clean up the mess... or is it time to change the name and start over. Stephanie is a recent graduate of New York Law School and a law clerk at Geragos & Geragos. You can find her on Twitter @SWeissenburger_ and Instagram @Steph_ExplainsItAll

In the late-night hours of July 13, 2021, Richard Sherman’s wife, Ashely Sherman, called the King County Sheriff’s Office out of concern for her husband. Eventually, Richard Sherman was arrested outside his in-laws’ home and was then booked at the King County Correctional Facility in Seattle. Sherman faces multiple charges, with suspicion of domestic violence underlying the charges. The reason for the domestic violence component of his charges is because he is related to the occupants of the residence where he was arrested; however, it should be clarified that nobody at the residence was ever harmed, and Sherman never entered the residence. When Ashely Sherman spoke to the media after her husband’s arrest, she stated, “ . . . he didn’t harm anybody” and “[m]y kids were not harmed in the incident. He’s a good person and this is not his character. We’re doing all right, just trying to get him out. I want people to know no one was injured.” Sherman’s initial hearing took place on July 15. At that hearing, the judge released Sherman on his promise to return to court for subsequent proceedings. The judge stated, “I see Mr. Sherman is a pillar of this community. He is a business owner. He is a husband. He is a father.” This sort of statement from a judge is refreshing because it establishes a sense of humanity and dignity that was lost during the initial reporting on Sherman’s struggles off the field. The initial reporting painted Richard Sherman as a domestic violence perpetrator and a substance abuser that drove while intoxicated, but the reality is that the situation is a much deeper issue of a struggling man with mental health concerns that the media all but forgot about in preying on his downfall at the outset. The initial reports failed to emphasize that he didn’t harm anyone or that his family was genuinely concerned about his mental health – instead he was depicted as a criminal because he was no longer seen as the famous idolized athlete that society and the media want him to be. Before the background of Sherman’s struggles came to light, he was viewed as a criminal through reports and first-hand Ring video surveillance that had zero surrounding context of what Sherman was going through and continues to go through. Eventually there were reports that expressed sympathy and put his arrest into context; however, that occurred much too late in the game only after those who knew him spoke out. Richard Sherman is tremendous community member and family man, and for the media to disregard his struggles and his privacy in perpetuating the leaks of what should’ve been private videos was a difficult frenzy to observe. To me, this is a prime example of society willing to praise athletes when they’re winning super bowls and changing their communities but then letting those same athletes drown with cinder blocks as soon any personal struggle ensues. We routinely engage in a superficial idolization of athletes – rather we should be cognizant of their lives as real people with real problems and real struggles. On an end note, I want to make it clear that I’m not saying we shouldn’t hold domestic violence perpetrators responsible, but we should just keep mental health and privacy concerns in mind when we attempt to delve into the personal lives of athletes as we know nothing about their mental state or their private lives. We glorify athletes’ fame and accolades, yet we drag them through the scrutinous limelight when they have any slip up and prey upon their downfall in a way that demonstrates a lack of sympathy for someone who’s struggling. We can – and should – do better in how we discuss athletes’ private lives and their personal struggles.

The life of a New York Giants fan offers you the highest highs and the lowest lows. I still romanticize the joyous memory of David Tyree catching a football on his helmet in Super Bowl XLII, but I am still haunted by the Deshaun Jackson’s punt return to win the game aka Miracle at the Meadowlands II. August 3, 2021 will not have the same imprint, but after a giant brawl (pun intended) occurred at training camp, it is safe to say that will be added to the column of bad memories. Football is a collision sport, violence is part of the nature of the game, and unfortunately that violence goes beyond a six second play. So where is the line for athletes? When do their actions go from, “it is the name of the game,” to legal ramifications? While the law tends to embrace the abstract, we do have a few cases that can help guide you when the next brawl happens. The case of Hackbart v. Cincinnati Bengals raised the issue of does a professional football player assume the risk of injury, thus denying him recovery of damages? The facts of this case are simple, Dale Hackbart, a member of the Denver Broncos, claimed he received injuries after an altercation from Charles Clark, a member of the Cincinnati Bengals.[1] The court ruled in favor of the Cincinnati Bengals raising the following point: even if Clark acted beyond the capacity of his professional duty, the high frequency of physical and emotional violence in the game was standard for the league. In laymen’s terms, you are playing a physical game, it comes with the territory. But for those of you that may be looking up the year of the case, you might proclaim, “Austin that was in the late 1970s, the league has changed!” Well, I am here to offer more examples to further draw the line. Let’s use an example from Nov. 2019, the Myles Garrett-Mason Rudolph fight. For this article, we will not discuss what was allegedly said and we will only use what was available to the naked eye. The odds of Garrett receiving criminal charges were low to begin with but using the legal definition of assault in the state of Ohio, the location of where the brawl occurred, the elements of assault must have the following: knowingly causing or attempting to cause physical harm on another person, with imminent apprehension. These elements are met. However, there is glaring absence in American jurisprudence of professional athletes being charged with assault-like crimes for incidents that occur during games. Prosecutors fear that charging individuals with these crimes would cause a complete disruption to the games itself. So where is the line? We will need to jump to a different sport, hockey to find an athlete being charged and convicted of assault. The incident I am referring to is Marty McSorley. Marty McSorley used his hockey stick that sent Vancouver Canuck, Donald Brashear, to the ice. Commissioner Gary Bettman stated, “clearly, this incident was not representative of NHL hockey or NHL players.” While it cannot be proven, McSorley was a regaled enforcer in the league, and since that ruling, the enforcer player, the “goon,” is slowly turning into the likes of the dodo bird, extinct. Like the many fears prosecutors had with the game of football, perhaps their worries came to fruition in the likes of hockey. Interestingly, this ruling occurred in Canada, so while there is similar jurisprudence to American law, it cannot be said that they are the same. Now, to answer the initial question, where is the line? Judging from rulings and how courts have interpreted the game, a brawl would need to go beyond fists and helmets, the crime itself would need to become so egregious that it went beyond the cold tundra, examples may be: a player, I do not know how this would happen, bringing a deadly weapon on to the field, or something to that extremity. If you are a professional athlete, my non-expert, non-legal advice is this, do not get into a serious brawl in Canada. Even with potential injuries, sports are the modern-day version of Roman gladiators, if you have the willingness and courage to step on to the professional field, to quote Public Enemy, “welcome to the terror dome.” [1] Hackbart v. Cincinnati Bengals, 435 F. Supp. 352 (D. Colo. 1977).

NCAA sports have been on summer break, but that has not stopped collegiate athletics from making headlines. On June 21, 2021, the Supreme Court issued its decision in NCAA v. Alston, 594 U.S. ___ (2021), unanimously striking down an NCAA restriction on the education-related benefits a college can offer student-athletes. Then, on July 1, numerous state laws and an NCAA rule change went into effect that allow college athletes to receive compensation for their name, image, and likeness (NIL). While those developments have left their mark, what’s coming next may have an even bigger impact on the NCAA. Enter In re College Athlete NIL Litigation (a.k.a. In re NIL Litigation), a class action lawsuit in the United States District Court for the Northern District of California. The story of In re NIL Litigation begins on June 15, 2020 when Grant House, a swimmer from Arizona State, and Sedona Prince, a basketball player from the University of Oregon (who later went viral for other reasons), filed a class-action lawsuit against the NCAA and the Power Five Conferences (Pac-12, Big Ten, Big 12, SEC, and ACC). About three weeks later on July 8, 2020, Tymir Oliver, a former defensive tackle for the University of Illinois with the same local attorney as House and Prince, filed a substantially similar lawsuit against the NCAA. House, Prince, and Oliver (the Plaintiffs) challenged the NCAA’s prohibition against student athletes receiving compensation for their NIL, arguing that the prohibition violates antitrust laws because it constitutes a conspiracy to fix the amount student athletes may be paid for licensing and selling their NIL at $0, and because it prevents student athletes from accessing the market for the licensing and/or sale of their NIL. On behalf of all current and former Division I student athletes who competed during the four years prior to the filing of the lawsuits, the Plaintiffs sought an injunction prohibiting enforcement of the NCAA’s restraint on NIL compensation. On behalf of athletes in the Social Media Damages Sub-Class,[1] the Plaintiffs sought social media earnings athletes would have received if not for the NCAA’s NIL restraints. And on behalf of athletes in the Group Licensing Damages Sub-Class,[2] the Plaintiffs sought the share of game telecast group licensing revenue athletes would have received absent the NCAA’s NIL restraints. Fast forward to today. On July 14, 2021, the District Court entered an order combining the House and Oliver lawsuits into In re NIL Litigation. On July 26, 2021, the Plaintiffs filed a Consolidated Amended Complaint. Among other things, the Amended Complaint added a Lost Opportunities Damages Sub-Class[3] and a Former Players Damages Sub-Class,[4] and added players on FBS football teams at independent schools to the definition of the Group Licensing Damages Sub-Class. The Amended Complaint also cites the Alston decision, pointing out that the unanimous Supreme Court rejected the NCAA’s position that its amateurism restraints are not subject to traditional antitrust analyses. The NCAA had argued that NCAA v. Board of Regents, 468 U.S. 85, 119 (1984) contemplated an antitrust exemption for the NCAA’s amateurism model. But the Supreme Court rejected this argument, instead finding that the NCAA is subject to rule of reason antitrust scrutiny because it exercises monopsony (i.e. a single buyer controls the demand for goods or services) power in the market for student-athlete services. Based on this finding, the Alston court rejected the existence of an amateurism exemption and found that the NCAA’s restraint on education benefits violated U.S. antitrust law. While Justice Neil Gorsuch made sure to state in his majority Alston opinion that it was only intended to apply to the contested restriction on education benefits, it is not difficult to see how the Supreme Court’s rejection of an amateurism exception to antitrust law could extend to the challenged NIL restraints in In re NIL Litigation. Further, Justice Kavanaugh was not so restrained in his concurring opinion, specifically addressing the legality of the NCAA’s remaining compensation rules and stating that they should each be subject to a rule of reason analysis without the benefit of an amateurism exemption. He even went so far as to acknowledge that the NCAA is “suppressing the pay of student athletes” by engaging in price-fixing of the athletes’ labor, suggesting that he believes it violates antitrust law to prevent athletes from being paid directly for their labor. The NCAA has 21 days to answer the Amended Complaint, a deadline that falls on August 16, 2021. This will be the first in-court opportunity the NCAA has to take a position on the Supreme Court’s Alston decision and how it affects their amateurism model. One can expect the NCAA to argue that the Alston decision is limited to the educational benefits restraint it specifically addressed, and therefore it has no bearing on whether the NCAA should pay damages for past NIL benefits class members would have received if not for the NIL restraints. But with the rejection of the antitrust exemption in Alston and Kavanaugh’s questioning of whether any price-fixing measure put in place by the NCAA survives antitrust scrutiny, it’s hard to see how the NCAA’s defense holds up. We could be looking at the complete restructuring of the NCAA amateurism model, and the young athletes of today are here for it. [1] The Social Media Damages Sub-Class is defined as all current and former student-athletes who compete on or competed on an NCAA Division I team in a one of the Power Five Conferences at any time between four years prior to filing the lawsuit and the date of judgment. [2] The Group Licensing Damages Sub-Class is defined as all former NCAA athletes who competed on a Division I athletic team at any time between four years prior to filing the lawsuit and the date of judgment. [3] The Lost Opportunities Damages Sub-Class is defined as all current Division I athletes in the second or later year of eligibility (or first year of eligibility after receiving a red shirt the prior year) who receive NIL compensation for all or any part of the period between July 1, 2021 and June 30, 2022. [4] The Former Player Damages Sub-Class is defined as all former NCAA athletes who competed on a Division I athletic team at any time between June 15, 2016 and the time of trial who would have receive NIL compensation if not for the NCAA’s restraints.