This week, the Supreme Court of the United States heard oral arguments in a case that could have a major impact on the sports and entertainment world. The case, The Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith, explores the limits of the fair use doctrine, which the Supreme Court also examined in 2021 in Google LLC. V. Oracle America, Inc. The big question in Goldsmith is “[w]hether a work of art is “transformative” when it conveys a different meaning or message from its source material.” Case Background In the 1980s, photographer Lynn Goldsmith licensed a photograph of Prince to Vanity Fair Magazine. Vanity Fair magazine commissioned Andy Warhol to design a cover for Vanity Magazine using the photograph. Warhol utilized the photograph to create fifteen additional works. After Prince’s death in 2016, Goldsmith notified The Andy Warhol Foundation for the Visual Arts, Inc. of the alleged violation of Goldsmith’s copyright in the original Prince photograph. In 2017, the Foundation sued Goldsmith for a declaratory judgment that Warhol’s works were non-infringing or fair use of Goldsmith’s original Prince photograph. The District Court for the Southern District of New York ruled that Warhol’s use of the photograph was fair use. Goldsmith appealed to the United States Court of Appeals for the Second Circuit, and the Circuit Court ruled that the District Court erred and Warhol’s works are not fair use. Fair Use Defense First codified in the Copyright Act of 1976, 17 U.S.C. § 107 details the four factors for the fair use defense: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The Supreme Court’s analysis will focus on the first factor and whether Warhol’s works are transformative. The District Court found Warhol’s work to be transformative because the works “can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” The Circuit Court disagreed. Specifically, Warhol’s works “retain[] the essential elements of the Goldsmith [p]hotograph without significantly adding to or altering those elements.” At oral argument, the Supreme Court Justices utilized pop culture references to illustrate scenarios that may or may not constitute fair use. For example., Justice Thomas asked whether adding “Go Orange” (referencing Syracuse University) as a banner on Warhol’s Orange Prince would have sufficiently transformed the work to satisfy the first factor. Attorneys for the foundation indicated that Justice Thomas’s banner would not have sufficiently transformed the work. Where to draw the line? That is the big question in front of the Justices. Any ruling will have a major impact on the sports and entertainment industries as companies try to determine what can constitute fair use. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

It has been reported by Richard Childress Racing that Tyler Reddick has been bought out of his Richard Childress Racing (RCR) contract by 23XI Racing, allowing him to compete for the team in 2023. In July, it was reported that top NASCAR driver Tyler Reddick was leaving RCR to head for Michael Jordan – owned 23XI Racing in 2024. The move caught owner Richard Childress and the team off guard, as in NASCAR it is unusual for a driver to have a contract done a full year before leaving their current team. The last time this situation occurred was in 2014, coincidently with Kevin Harvick parting ways with RCR to head for Stewart-Haas Racing. Richard Childress has made it publicly clear that he was not happy with Reddick’s antics or the fact that he was leaving in 2024. In the past month, RCR has signed two-time Cup champion Kyle Busch to drive the #8 Chevy. When the announcement was made, it was overshadowed by the question of what the team would do with Reddick. At the time, Childress stated that the team would field a third car for Reddick alongside Busch and Austin Dillion. The news was made public after Kurt Busch announced that he would not be returning to 23XI in 2023. Reddick will be taking the place of Kurt Busch, who has been out of competition since July due to a concussion sustained at Pocono. In his press conference, Busch stated, “I know I am not 100% in my ability to go out and race at the top level in the NASCAR Cup Series.” The 2022 season has marked a decline in the safety of race cars in NASCAR. Drivers have become increasingly worried about the safety of the “next-gen” model after several drivers sustained concussions from rear-end collisions, apparently due to the design of the rear of the car. Reddick will join Bubba Wallace to complete the 23XI stable for 2023. This leaves Kyle Busch and Austin Dillon at RCR. At this time, it is unclear if RCR will seek to expand to a three-car program or if the idea of a third car was merely a tactic in negotiations. This is an outcome that many industry members believed was inevitable with Kurt Busch’s concussion and Kyle Busch joining RCR. This resolution will allow both programs to focus on the future without the looming distraction that would have been present if Reddick had stayed at RCR in 2023. Jack Bradley is currently a Law school student at Duquesne University School of Law and an alum of Georgetown University (MPS) and Penn State University (BA). Jack is also the Co-founder and President of Poppy Packs, a 501c3 charity, and former Head of Marketing and Communications within NASCAR. Linkedin: https://www.linkedin.com/in/jackwilliambradley/ Twitter @JackWBradley Sources: https://www.usnews.com/news/sports/articles/2022-10-15/concussed-nascar-champion-kurt-busch-to-step-away-from-sport https://nascar.nbcsports.com/2022/10/15/tyler-reddick-to-drive-for-23xi-racing-in-2023-kurt-busch/ https://tobychristie.com/2022/10/11/report-23xi-racing-has-bought-out-tyler-reddicks-rcr-contract-for-2023/ https://nascar.nbcsports.com/2022/07/16/no-time-for-rcr-tyler-reddick-to-look-back-focus-turns-to-track-austin-dillon-richard-childress-kevin-harvick/ https://nascar.nbcsports.com/2022/07/12/tyler-reddick-will-join-23xi-racing-in-2024/

The Pac-12 Conference has had a rough go of it over the past few years. From missing out on the College Football Playoff each of the past five seasons to losing USC and UCLA to the Big Ten this past summer, it's clear that the premier conference on the West coast is going through tough times at the moment. Amid the adversity, the last thing the Pac-12 wants to see is a problem with its own network. Nonetheless, the Pac-12 Network filed a lawsuit this week against a major television provider for a breach of contract. According to Jon Wilner of the Mercury News, the network has filed a lawsuit against Dish for “withholding payments and violating the terms of their distribution agreement.” The dispute stems from the 2020 football season heavily impacted by COVID-19, especially in the Pac-12 where many schools didn’t even play half of the normal 12 regular season games. Wilner notes that the Pac-12 is seeking damages and injunctive relief in order “to both recoup the license fees Dish has already improperly withheld and to prevent any continued withholding of fees due under the parties’ agreement,” per the suit. Both Dish and the Pac-12 declined to comment on the matter, and two sources with backgrounds in sports media contracts tell Wilner that the redactions in the suit make it difficult to draw any definitive conclusions. For example, the two sides agreed on a rebate for the 2020 season “calculated pursuant to the parties’ agreed-upon rebate provision.” However, Dish, per the suit, “also inexplicably demanded from the Pac-12 additional rebates for the two contract years before 2020-21.” The explanation for Dish demanding additional rebates is redacted. Because of the redactions, Wilner’s sources were left wondering how Dish concluded that the shortfall in 2020 impacted the prior years and, therefore, prompted the decision to withhold present-day payments. The Pac-12 obviously contends that Dish’s position is improper and unreasonable because Dish could not possibly have suffered losses during the 2018-19 and 2019-20 contract years from COVID-19-related football shortfalls occurring one to two years thereafter. The Pac-12’s complaint includes a demand for a jury trial, so it will be interesting to see how this case plays out moving forward. The future of the Pac-12 Network is certainly up in the air at the moment along with the future of the conference as a whole. The Pac-12’s media rights deal just went to the open market after its exclusive negotiating window with Fox and ESPN concluded. Anyone interested in college sports law should pay attention to not only the resolution of the lawsuit but the Pac-12’s new media rights deal as well. Even though commissioner George Kliavkoff has expressed confidence that the remaining 10 members are committed to the conference, nothing can be set and stone until a new media rights deal with a strong grant of rights is signed. There is a lot of speculation that the Pac-12 could go heavy into streaming with Amazon or Apple with hopes to maximize revenue to keep its members from looking toward the Big Ten or Big 12. The college athletics landscape is shifting every day with lawsuits, conference realignment, transfers, and changing leadership. Add this lawsuit to the long list of business and legal issues facing the industry in this crazy time. Brendan can be found on Twitter @_bbell5

*Trigger Warning – This article includes allegations of grooming and sexual abuse that may be disturbing to individuals.* The NHL post-season has been relatively quiet. The draft came and went, and various teams traded and released players. Teams prepared for another season, and each hoped to win a cup. However, just days before the regular season was set to begin a Twitter post engulfed one player in allegations of grooming and sexually abusing a minor. On Friday a Twitter user by the name of @Emily_Smith3333 posted a message accusing Tampa Bay Lightning defenseman Ian Cole of assaulting her while she was in high school.[1] The Twitter account was created in September and is the only tweet associated with the account. Currently. there is little information about the identity of the individual who posted on the account. The tweet tagged the Lightning and NHL official accounts on the platforms. The detailed statement claimed that Cole had been playing in the NHL for several years when he began a four-year relationship with the individual when she was in high school. [2] The message states that Cole was aware that the individual was a minor and pressured her to have sex as well as pressuring her into doing things without consent.[3] The statement continues by saying that Cole bragged about his relationship with the individual to his NHL teammates and made repeated misogynistic comments to her.[4] Additionally, the allegation alleges that the individual was not the only minor that Cole had a sexual relationship. She states that Cole also engaged in relations with another minor from the individual’s high school after she had graduated. [5] The statement did not say when and where these incidents occurred. While Tampa’s season begins on Tuesday against the New York Rangers, Cole will not be skating with the team. Over the summer Cole was signed to a one-year $3 million contract with Tampa. The NHL and Lightning are aware of the allegations and have opened an investigation into them. There is no word if a police investigation will also be opened. As of now the Lightning have suspended Cole pending investigation of the allegations. In a statement released by the team “The Tampa Bay Lightning is aware of the allegations against player Ian Cole and are cooperating fully with the NHL on an investigation. Our organization takes these allegations very seriously. While we continue to gather more details, we have decided to suspend Ian Cole pending the results of an investigation. No members of the organization, including players, will comment further at this time.”[6] Cole has also released his statement via his agent on Twitter saying “I take the allegations made against me today in an anonymous tweet very seriously. I completely deny these allegations and will fully cooperate with the NHL and Tampa Bay Lightning, their officials, and legal departments in the forthcoming investigation. I look forward to clearing my name and demonstrating to the NHL and the Tampa Bay Lightning that these allegations are unfounded. I will have no further comment until the NHL’s investigation concludes.” This is not the first time the NHL has had to deal with allegations of sexual abuse. Last year Evander Kane was accused of abuse allegations by his ex-wife Anna. Additionally, the Chicago Blackhawks were engulfed by an investigation into sexual assault allegations from 2010 that led to various high-ranking members of the organization resigning. Moving forward it will be interesting to see how the Lightning and NHL handle the investigation. Jessica Shaw is a recent graduate of New York Law School and can be reached on Twitter @JessicaShaw22. Sources: [1] Crawford, K. Michigan native, NHL player Ian Cole suspended after accusation of sexual abuse, grooming a minor. Yahoo! Sports. Retrieved October 9, 2022, from https://sports.yahoo.com/michigan-native-nhl-player-ian-222435354.html [2] Id. [3] G, J. NHL investigating allegation

The National Football League (NFL) has made headlines for all of the wrong reasons following Thursday Night Football’s week 4 matchup between the Bengals and Dolphins. After Dolphins’ Quarterback, Tua Tagovailoa, sustained his second head injury in as many weeks[1], the National Football League Players Association (NFLPA) and NFL agreed to update their concussion protocols in an attempt to better protect players who sustain injuries to the head.[2]The current policy states that a team physician along with an unaffiliated neurotrauma consultant (UNC) will examine and determine if a player can return after sustaining suspected damage to the head.[3] The updated policy is rumored to change the current rule of a player returning after they display signs of “Gross Motor Instability”, which would eliminate much of the subjectivity of the current policy.[4]Rather, the new protocols would prohibit a player from returning to the game if they demonstrate “any instability.”[5] The current NFL collective bargaining agreement (CBA) states that the “the responsibility for the diagnosis of concussion and the decision to return a player to a game remains exclusively within the professional judgment of the [team physician].”[6] This means, regardless of the sideline UNC’s testing and/or opinion, the team doctor makes the ultimate decision which could lead to a conflict of interest between what the team wants and what is best for the player’s health. NFL chief medical officer Dr. Allen Sills stated that while the final language and consequences of the new policy are being discussed, they could be approved before Week 5 of the NFL season begins.[7] Under the current CBA of the NFL, the NFLPA has the right to investigate a matter which concerns the “health, safety, or medical care provided by Club-affiliated personnel.”[8]While the investigation is ongoing, it has already resulted in the firing of the UNC involved in the clearing of Tua after it was found he made “several mistakes” during his evaluation.[9] The firing of the UNC takes some of the heat off of the NFL and the Dolphins and amending the collective bargaining agreement could help protect injured players. However, neither of these addresses the root cause of the issue. In the 321 total games between preseason and the regular season, NFL players suffered a total of 187 concussions, calculating that 58% of games resulted in a concussion.[10] In a study conducted by a team of researchers led by Boston University Neuropathologist Ann McKee, 175 out of 202 (87%) former football players’ brains showed signs of chronic traumatic encephalopathy (CTE).[11] Head trauma and long-term injury is a prominent problem for football players during and after their career. The primary issue at hand is the Dolphins’, and potentially every NFL team’s, treatment of their players. The Dolphins tried to justify their decision by stating Tua’s injury was a back injury.[12] However, language in the concussion protocol never mentions proving it was a back or head injury, just proof that it was a neurological issue.[13] Attempting to use this loophole as a justification for their decision highlights the problem with the NFL. They value team success more than player health. It is a shame it took such a frightening injury to bring this issue to light, but we can only hope that players and fans alike keep the pressure on the NFL and its teams to implement policies that protect the long-term health of the players. Evan Mattel is a 2L at Hofstra Law, Vice President of the Sports and Entertainment Law Society, Representative for the New York State Bar Association's Entertainment and Sports Law Section, and a member of Hofstra's Labor and Employment Law Journal. He can be found at @Evan_Mattel21 on Twitter or on Linkedin Footnotes: [1] See What we know about the injury to Dolphins QB Tua Tagovailoa, and what’s next, ESPN (Sep. 30, 2022) https://www.espn.com/nfl/story/_/id/34697326. [2] See Ian Rapoport & Tom Pelissero, NFL, NFLPA agree to parameters of updated concussion protocols, NFL (Oct. 01, 2022) https://www.nfl.com/news/nfl-nflpa-agree-to-parameters-of-updated-concussion-protocols [3] See NFLPA to investigate handling of Dolphins’ QB Tua Tagovailoa concussion evaluation during game v. Bills, NFL (Sep. 25, 2022) https://www.nfl.com/news/nflpa-to-investigate-handling-of-dolphins-qb-tua-tagovailoa-concussion-evaluatio [4] See id. [5] Jack Baer, Tua Tagovaoila Rule? NFL, NFLPA reportedly working on change preventing players’ return after ‘instability’, Yahoo Sports, (Oct. 1, 2022) https://sports.yahoo.com/tua-tagovailoa-rule-nfl-nflpa-reportedly-working-on-change-preventing-players-return-after-instability-001833719.html?soc_src=social-sh&soc_trk=ma [6] Collective Bargaining Agreement, NFL (Mar. 15, 2020) https://nflpaweb.blob.core.windows.net/website/PDFs/CBA/March-15-2020-NFL-NFLPA-Collective-Bargaining-Agreement-Final-Executed-Copy.pdf [7] See Rapaport & Pelissero, supra note 2. [8] Baer supra note 5. [9] See Marcel Louis-Jacques, Unaffiliated neurotrauma consultant who evaluated Tua Tagovailoa fired, sources say; investigation ongoing, ESPN (Oct. 1, 2022) [10] See Injury Data Since 2015, NFL (Feb. 27, 2022) https://www.nfl.com/playerhealthandsafety/health-and-wellness/injury-data/injury-data. [11] See Meredith Wadman, Ninety-nine percent of ailing NFL player brains show hallmarks of neurodegenerative disease, autopsy study finds, Science (July 25, 2017) https://www.science.org/content/article/ninety-nine-percent-ailing-nfl-player-brains-show-hallmarks-neurodegenerative-disease [12] See Jodan Dajani, Tua Tagovailoa injury: Orthopedic surgeon discusses QB’s scary situation, decision to play Thursday night, (Sep. 30, 2022) https://www.cbssports.com/nfl/news/tua-tagovailoa-injury-orthopedic-surgeon-discusses-qbs-scary-situation-decision-to-play-thursday-night/ [13] See NFL Concussion Diagnosis and Management Protocol, NFL (Aug. 01, 2022) https://www.nfl.com/playerhealthandsafety/resources/fact-sheets/nfl-head-neck-and-spine-committee-s-concussion-diagnosis-and-management-protocol

On Monday, the Supreme Court of the United States declined to review the City of Oakland’s antitrust case against the National Football League (NFL). By the Supreme Court declining to intervene, the city’s chances to recover damages for the Raiders’ 2017 relocation to Las Vegas are minimal. Additionally, the case sets a bad precedent for the city if another team decides to leave. The Raiders returned to Oakland in 1995 after spending over ten years in Los Angeles. Upon return to Oakland, the city leased the Oakland Alameda County Coliseum to the Raiders with an original term of sixteen years, which the parties eventually extended in 2009 and 2014. As the Coliseum began lagging behind other NFL facilities, the city began negotiating with the Raiders to find a solution that would keep the Raiders in Oakland, including proposing to donate the land to the Raiders in 2014, proposing a $500 million renovation in 2015, and proposing building a new $1.3 billion stadium in 2016. In 2017, the Raiders applied to the NFL to relocate to Las Vegas, which thirty-one teams approved—the Miami Dolphins being the lone holdout. In 2018, the Raiders filed a complaint in the United States District Court for the Northern District of California alleging Sherman Antitrust Act violations via horizontal price-fixing and a group boycott, and over $240 million in damages. Specifically, the league engaged in a group boycott by refusing to deal with the city by removing a team and not granting the city an expansion franchise and engaged in a horizontal price-fixing scheme by limiting the number of NFL teams—driving up the price of having an NFL team. The District Court dismissed the antitrust claims are “too speculative to confer antitrust standing.” After appealing to the United States Court of Appeals for the Ninth Circuit, the Circuit Court upheld the District Court’s ruling. In a last-ditch effort, the city appealed to the Supreme Court, which the Supreme Court declined to review on Monday, leaving the city out of options. The ruling is another sting for a city that has watched multiple teams leave. Beyond the Raiders heading to Las Vegas, the Golden State Warriors left in 2019 for a new home in San Francisco. Currently, the city and the Oakland Athletics are negotiating over a new baseball stadium, which would be located at Jack London Square. However, the city and the A’s have yet to reach a deal, and it is becoming increasingly likely that the A’s will join the Raiders in Las Vegas. With the A’s possibly leaving for Las Vegas, the ruling on the city’s antitrust claims sets a bad precedent. Thus, the city will likely have to look at other options for recovering damages if the A’s leave. In the end, the losses keep piling up for the city, and another team may leave soon. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

A look back In January 2019 English side Cardiff City FC (“Cardiff”), a premier league team at the time, struck an agreement with French Ligue 1 side FC Nantes (“Nantes”) for the transfer of striker Emiliano Sala for 15 million pounds. After the public announcements from each club, the Argentine player boarded a small private aircraft to go from western France to Wales. January 21st, 2019 was the last time anyone would see the striker, as the plane tragically crashed in the English Channel that day, killing both Sala and the pilot. The Dispute As a result of the tragic death of Emiliano Sala, an unprecedented inquiry developed into whether Cardiff still owed the transfer fee to Nantes. The FIFA procedural rules, FIFA Regulations on the Status and Transfer of Players, FIFA Rules Governing the Procedures of the Players’ Status Committee, and the Dispute Resolution Chamber (2018 edition), all have no mention of this scenario. However, FIFA stepped in and decided on September 25, 2019, that Cardiff must pay Nantes the first installment of the 6,000,000 euro transfer fee plus 5% interest per annum. Cardiff immediately appealed the decision to the Court of Arbitration for Sport. The decision can be found here. On appeal in front of the three-person panel in Switzerland, Cardiff contended that from a contractual perspective with a glimpse into the common intention of the parties, the transfer agreement could not be valid as two conditions precedent to the contract were not fulfilled. First, Cardiff claimed the player was being transferred and Nantes failed to validly terminate their employment relationship pursuant to the French Labour Code. Secondly, Cardiff claimed the player could at no time have been deemed a Cardiff player due to the absence of player registration with the premier league, the common intention of the parties. After a long hearing back in March of 2022 and months of examining evidence and law, the panel for the Court of Arbitration for Sport ruled on August 22 that the player transfer was completed because all conditions precedent in the transfer agreement were satisfied before the tragic death. Therefore, Cardiff’s payment obligations were rightfully triggered pursuant to the transfer agreement, and the Welsh side must pay the first installment of the transfer fee plus 5% interest per annum from the date January 27, 2019, until the date of effective payment. The Reaction Although the Court of Arbitration for Sport has ruled on this matter, it does not seem like this will be the end of the dispute among the clubs. In response to the decision, Cardiff publicly stated, “Cardiff City is disappointed by the decision of the Court of Arbitration in Sport. Once the club’s lawyers have digested the reasons for the decision we expect to appeal and will not be making any payments to FC Nantes in the meanwhile. If those appeals are unsuccessful and the club is liable to pay the transfer fee, the club will take legal action against those responsible for the crash and recover its losses. This will include FC Nantes and its agents.” Nantes released its statement stating, “FC Nantes welcomes the decision rendered today on appeal by the Court of Arbitration for Sport. The court has completely rejected the appeal lodged by Cardiff City and has confirmed the decision rendered by FIFA on September 25, 2019, concerning the transfer of Emiliano Sala. The Court, therefore, ruled as Nantes had argued since the start of the proceedings, that the player’s transfer to Cardiff City was over when he died tragically in an aviation accident. FC Nantes is delighted that this procedure,- initiated by Cardiff City and then delayed on numerous occasions by Cardiff City, - which has been difficult for all those close to Emiliano, is finally over. The club hopes this will mark the end of the public misinformation campaign, which FC Nantes has never reacted to, out of respect for the player’s family. Along with their initial ruling for Cardiff to pay the first installment of the transfer, FIFA has imposed a three-window transfer ban for the now Championship club (i.e., the second division of England). Although the ban has not taken effect due to the ongoing appeals, it seems that pressure is slowly caving on Cardiff to pay the French side or face the consequences of the FIFA punishment. Zac Montanez is a recent law graduate of New York Law School. He can be found on LinkedIn here.

On the latest episode of Conduct Detrimental, Dan Lust and Dan Wallach discussed the NFLPA’s initiation of an investigation into the concussion protocols performed on Miami Dolphins’ quarterback, Tua Tagovailoa. During their discussions, the Dans talked about the controversy surrounding the game including video clips showing Tua stumbling after a fall in which Tua’s head whipped into the grass. They also discussed how the Dolphins’ social media team seemed to flip-flop on their reports of Tua’s injury during the game. This only fueled concerns that the concussion protocols may have been conducted in a way that allowed Tua to return to the game prematurely. In this article, I dive deeper into the NFL’s Collective Bargaining Agreement, highlighting the sections that gave the NFLPA the power to initiate an investigation as well as the punishments that could be handed down by the league should they find any wrongdoing by the team’s medical staff. I conclude with a short trip into the world of medical malpractice, comparing the standards of proof with those stated in the NFL’s CBA. The NFL, over the past decade, has made it a priority to enhance player safety on multiple fronts. The NFL uses complex analytics to help develop new helmets that provide more protection for players. This year, we saw the implementation of Guardian Caps which players wore during preseason practices. On the same line, the NFL established the Head, Neck, and Spine Committee. In Article 39, Section 16, the NFL gave the committee power to create the “Concussion Diagnosis and Management Protocol.” As part of this protocol, the Committee issued an “NFL Concussion Checklist.” The CBA goes on to state, “[t]he application of the NFL Concussion Checklist to evaluate potential concussions during NFL preseason and regular season games is mandatory.” The formatting of the quote above is ripped straight from the CBA. The NFL wants to emphasize the mandatory nature of following the NFL Concussion Checklist by underlining the word in the CBA itself. The next section in the CBA is the power behind the NFLPA’s complaint brought to the league surrounding the Dolphin’s handling of concussion protocol. The CBA states “The NFLPA, the NFL Management Council or any player involved in an alleged failure by a club employee or other member of a club’s medical staff to follow any of the mandatory steps required by the NFL’s Concussion Checklist shall each have the right (independently or collectively) to bring forward a complaint about such alleged failure to the Representatives, which complaint shall be submitted in writing.” Now that the complaint has been brought forth by the NFLPA, the question is: what happens next? As with most things in the NFL or any major sports league, the short answer is arbitration. The NFL and the NFLPA appoint Representatives to participate in the arbitration over the complaint. The CBA outlines, “The Impartial Arbitrator shall determine: (1) whether a Club employee or member of a club’s medical team knowingly and materially failed to follow any of the mandatory steps in the NFL Concussion Checklist and, if so, (2) whether there were any relevant mitigating or aggravating factors present in the incident, including, without limitation: (a) whether the deviation resulted from an ambiguity in the Checklist or its failure to address the facts triggering the underlying violation, (b) whether any player interfered with the club employee or medical team’s ability to perform its duties, and (c) whether competitive concerns motivated the deviation.” As sports law fanatics, this provision provides what we look for when scoping out potential legal issues within sports. This provision provides the standard by which the arbitrator will determine the outcome of the complaint. This standard is stated as knowingly and materially failed to follow any of the steps outlined in the Concussion Checklist. The provision then goes on to do one of my favorite things and add complexity to the standard by accounting for mitigating factors. If the arbitrator does find that the employee of the Club knowingly and materially failed to follow the Concussion Checklist, then the CBA states the Commissioner shall hand out a punishment. The potential punishments include: (a) issuance of a letter of reprimand advising that club employee(s) and/or member(s) of the club’s medical staff knowingly and materially violated the NFL Game Concussion Protocol, (b) requiring the club employees or medical team members involved with the deviation from the Protocol to attend remedial education; and/or (c) a fine against the club in an amount no more than Five Hundred Thousand Dollars ($500,000); and any other discipline that the Commissioner deems warranted by the violation. Those who have played sports or are fans of sports have undoubtedly heard stories about players “playing hurt.” It happens all the time and stories come out yearly about players who found out about an injury and decided to hold off on surgery or did not realize the severity of the injury in question. The NFL has included a provision in the punishment section of the CBA in the hopes of discouraging teams from putting players back in too soon following a concussion. Specifically, the CBA states, “In the event that the NFL Commissioner determines that the violation of the NFL Concussion Checklist was motivated by competitive considerations (e.g., intent to leave player in game and knowingly, intentionally and materially disregard the Protocol in order to gain a competitive advantage) the Commissioner may require the club to forfeit draft pick(s) and additional fines exceeding those amounts set forth above.” If the NFL finds that concussion protocol was violated by a team’s employee, this conclusion may also give rise to a legal claim against that medical professional for Medical Malpractice. Given that the Tua concussion controversy occurred during a home game for the Miami Dolphins, Florida law will govern any potential action. The Florida statute provides, “the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.” It continues, “The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” Florida law attaches the preponderance of the evidence standard to its medical malpractice claims or whether something is more likely or not based on the evidence. The preponderance of the evidence standard is most likely the standard the arbitrator uses when they reside over the complaint brought by the NFLPA. If the team is punished by Roger Goodell for failing to follow concussion protocols and Tua has somehow suffered harm from this failure, then Tua may just have a solid claim for medical malpractice against the team as well. This article highlights the different connections between this controversy and the law. It is important to note that concussions have been a problem for the NFL since the league was established. Currently, the NFL is still paying former players from a concussion fund that started payments in 2017. Given this history, it is the hope that the NFL does its due diligence in ensuring that teams are following proper concussion protocol to protect the players. Justin Mader is a recent graduate of the University of New Hampshire Franklin Pierce School of Law, earning a J.D. and a Sports and Entertainment Law Certificate. He can be reached via Twitter: @maderlaw and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.

Over three years since the NCAA began investigating the University of Memphis men’s basketball team over former athlete and current Golden State Warrior James Wiseman’s eligibility, the Independent Accountability Resolution Process (IARP) Panel has determined that Memphis committed multiple Level II and III violations, avoiding significant sanctions. Additionally, the IARP panel cleared Head Coach and alumnus Penny Hardaway of any wrongdoing. Hardaway’s Prior Interactions with Wiseman Prior to being hired as the head coach at Memphis, former National Basketball Association (NBA) all-star Penny Hardaway became a representative of Memphis’ athletic interests when he donated $1 million to Memphis’ athletics department to construct a Sports Hall of Fame in 2008. Later, beginning in 2015 served as an assistant coach and later head coach at Memphis East High School and founded Team Penny, a team that participates on the Nike Elite Youth Basketball League Circuit (EYBL). While he was in high school, former top recruit James Wiseman played for Team Penny and later transferred from a high school in Nashville to Memphis East High School. Hardaway coach Wiseman during his time at Memphis East. To assist with Wiseman’s relocation from Nashville to Memphis, Hardaway made approximately $11,500 to Wiseman’s mother without Wiseman’s knowledge. The IARP panel determined that the payment to Wiseman’s mother did not violate NCAA bylaws due to the benefit being generally available to other prospective students. Specifically, “[t]he record establishes the head coach’s long-standing commitment to providing financial assistance to many individuals, particularly youth, in the economically disadvantaged Memphis community, even prior to when he became a representative of Memphis’ athletic interests.” Wiseman’s Eligibility In October 2019, the NCAA Academic and Membership Affairs office issued an interpretation of NCAA bylaws, which found that Hardaway’s payments to Wiseman’s mother and other student-athletes constituted a violation of NCAA violations. On October 31, 2019, the NCAA enforcement staff notified Memphis that allowing Wiseman to compete may violate NCAA bylaws. Memphis ignored the NCAA enforcement staff’s decision rather than following the NCAA’s processes for appealing the decision and opted to allow Wiseman to continue playing for three games. By failing to follow NCAA processes and ignoring the NCAA enforcement staff’s decision, the IARP panel found that “Memphis failed to meet its fundamental obligation pursuant to [NCAA] Bylaw 12.11.1 to withhold [Wiseman] from competition.” Arising out of the failure to withhold Wiseman from competition, the IARP panel found another violation when Memphis provided Wiseman with expenses when he participated in the subsequent contests. Thus, the IARP panel determined that Memphis’ conduct constituted a Level II violation. Of note, by determining that disregarding NCAA bylaws on withholding athletes from competition merely constitutes a Level II violation (rather than a Level I violation), the possibility arises that universities may disregard the bylaw in the future. Other Violations and Penalties Other Level II violations included failing to monitor the activities of Coach Hardaway, failing to disclose and provide access to electronic devices, and failing to produce requested and relevant documents within the scheduled timelines. Level III violations consisted of providing impermissible recruiting inducements by taking photographs of a prospective-student athlete in a Memphis jersey, posting a video of a prospective student-athlete to the team’s social media account, making an impermissible written offer of aid via text to a prospective student-athlete’s parent, and providing an impermissible free meal. Penalties include a $5,000 fine, three years of probation, including certain requirements that Memphis must fulfill during the probationary period, public reprimand and censure, and vacation of the three wins Wiseman participated in after October 31, 2019. End of IARP With the University of Memphis decision, the IARP nearing its end. In August, the Division I Board of Directors decided to eliminate the IARP. The Board of Directors is aiming to accelerate the timelines for issuing infractions decisions. Notably, IARP decisions took years to reach resolutions, including the case of North Carolina State University (which lasted over two years) and the IARP panel did not render a final decision until after all players and coaches had left the university. The IARP has four remaining cases prior to dissolving—the University of Kansas, the University of Louisville, the University of Arizona, and Louisiana State University. Outside of Kansas’ case, all other cases involve coaches that are no longer affiliated with the universities. For Memphis, avoiding a postseason ban is a big win for the basketball team and university. For all other schools, the end of the IARP moves closer. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

This season, the NHL will play a series of games overseas. Four European cities will have the opportunity to witness an NHL game on their home ice.[1] One city, however, has used the “Global Series” to take a stand. The Czech Republic announced that it will not allow Russian players to participate in the Global Series game between the Nashville Predators and San Jose Sharks.[2] This decision is related to the ongoing conflict between Russia and Ukraine. [3] For Nashville, this would include its tone-setting forward Yakov Trenin, as well as two of its top prospects, forward Egor Afanasyev and goaltender Yaroslav Askarov. For San Jose, role player Evgeny Svechnikov and potential first-line winger Alex Barbanov would be excluded. Opponents of the Czech Republic’s actions may argue that it unfairly punishes NHL players with no responsibility for their government’s actions. The move could deny these players a once-in-a-lifetime experience due to things outside of their control. In fact, Russian NHL players, such as Askarov [4] and Kirill Kaprizov [5], have had recent battles with the Russian government. Those who support the move, however, may see it as an important step to help end the conflict between Russia and Ukraine. Neither the NHL nor the teams have made official statements regarding their approval/denial of the decision, but they are left with an interesting policy decision. If they publicly support the decision, it would be much to the chagrin of its players (and likely their teammates). However, outright reprimand of the decision could cause serious backlash from the NHL’s fan base, particularly in Europe. Perhaps the NHL takes a middle-of-the-road approach that NHL agents have seemed to endorse. Whatever the NHL, Predators, and Sharks decide to do, their words will set the tone in their relationships with Russian athletes for the remainder of the Ukrainian conflict and beyond. Britton Yoder is a 2L at Penn State – Dickinson Law, where he serves as president of the Sports & Entertainment Law Society. Sources: [1] The cities include Bern, Switzerland; Tampere, Finland; Berlin, Germany; and Prague, Czech Republic. [2] Washington Post, Czech Government Tells NHL Teams that Russian Players are Unwelcome (22 September 2022). [3] Global companies and financial institutions have pulled their business out of Russia and its constituent countries. The International Olympic Committee has also banned Russian athletes, while the UEFA has excluded the Russian national team from competition. [4] At one point, Askarov’s outlook with the Nashville Predators was uncertain due to SKA Moscow’s supposed desire to prevent Askarov from going to the United States. [5] Star Tribune, Wild GM Bill Guerin: ‘I was really nervous’ about getting Kirill Kaprizov back from Russia (26 August 2022).

Given the history of Women’s sports around the world, it is likely no surprise to hear that there is often a feeling of mistrust between these athletes and the federations they are associated with. In the United States, we all look to the USWNT’s fight for equal pay as an example. Right now, though the biggest example of this is playing out in Spain. On September 22nd it was reported that 15 members of the Spanish Women’s National Team had resigned from the squad. According to news reports in Spain, the players had issues with several aspects of Head Coach Vilda’s approach. The federation’s statement alluded to these concerns saying the players had written about the effect of Vilda’s management and coaching style on “their emotional state and their health.” It has been reported that the players are unhappy with the management of injuries, the atmosphere in the locker room, Vilda's team selection, and his training sessions In response, the Royal Spanish Football Federation backed the head coach and remained firm that they would not remove the coach. The federation also asserted that for the players to return they would need to apologize for their actions and admit fault. Also threatening bans between two to five years for this being what the federation considers a “very serious infraction.” On September 23rd further clarity was brought to the situation. Team captains Irene Paredes, Jennifer Hermoso, and Patri Guijarro have stated that they did not request the coach’s dismissal but had communicated the feelings of the players. Feeling as though there were internal aspects that could and should be changed. A statement shared by the players on the 23rd stated “We requested in our communication sent to the RFEF not to be summoned until situations that affect our emotional and personal state, our performance and, consequently, the results of the Selection and that could lead to undesirable injuries are reversed.” It is also important to note that the players have reiterated that they wished for this to remain internal and did not want to publicize these issues. Faulting the federation for making these issues public. Players have also contended the federation’s statement that they “renounced” the national team; asserting rather that they wanted situations affecting their emotional state and performance to be reversed before their return. This standoff is not the first issue in the term of Rubiales, the federation chief since 2018. In one of his first acts as president, fired the coach of Spain’s men’s national team on the eve of its opening match at the 2018 World Cup. He was under scrutiny after leaked messages revealed a questionable management style and business practices. He has also had to deny claims of using soccer funds to pay for lavish private events. With this issue being ongoing it is difficult to know what will happen next or where this will go. But the federation’s statement remains strong that team selection decisions are non-negotiable. Making the standoff a “high-risk move” for the players. But taking a step back there are two important secondary things to consider. This is not the first time Women’s National Team Players have had to take drastic steps to be taken seriously and have action be taken. It is on par with the increase in labor movement activities we have seen here in the United States. Workers are realizing their collective power and fighting for environments that are better and safer for them. The second is that the USWNT is no stranger to similar mistrust and major complaints against their federation. USWNT is scheduled to play Spain on October 11 in Spain for an international friendly. Depending on how this issue plays out it may not be out of the question for the team or its players to do something in support of the 15 Spanish players. In the meantime, the team is set to play next on October 7th leaving little time between the onset of these issues being made public and their next game. Further complicating the issue and any attempts at a resolution between the players and the federation, giving this “standoff” more power. Emlyn Goodman is a recent Law Graduate who currently working in NCAA Compliance. She can be found on Twitter @emlyngoodman and on LinkedIn at https://www.linkedin.com/in/emlyn-goodman-j-d-b46113113/

I have a feeling that most people seeing the title of this article are scratching their heads and are slightly confused. “WakeyLeaks? What’s that?” In 2016, it was revealed that one of Wake Forest Football's assistant coaches (also an alumnus of the University and the Wake football program), Tommy Elrod had been providing other teams with the Wake Forest playbook before games. That year, as Wake Forest prepared to play Louisville on the road, Wake Forest coaches found a binder—which would be conveniently placed at the very top of a trash can on the Demon Deacon sideline—which contained all of Wake Forest’s secret and trick plays they had been developing throughout the season, and specifically for use in the Louisville game. The ramifications of this discovery were massive for the program. upon investigating the incident, the university found evidence that Elrod had leaked plays to at least three different ACC teams dating back to 2014, the first year of head coach Dave Clawson's tenure at the school. It's unclear exactly how many opponents ended up with their hands on their playbook but based on the trajectory of the program since this discovery was made (and how it has changed drastically since then), it was certainly widespread knowledge at the time. In 2016 (the year the scandal was uncovered), Wake scored an average of 20.4 points per game, which ranked 119th out of 128 Division I programs. The very next season, when there was little meaningful turnover on the roster, the Demon Deacons averaged 35.3 points, 21st in the country among Division I programs. In their 2016 matchup against Louisville, Wake scored 12 points. In 2017 they scored 42, and in 2018 the Demon Deacons scored 56. Quite the “quick turnaround” if you ask me. First, before diving deep into the heart of this article, I wanted to take a second to point out how insane it is to me that this is not discussed more in the college football world. Wake Forest is a Division I team in the ACC—the same conference as national powerhouses Clemson, (some would say) Louisville (who did have Lamar Jackson at the time), and Notre Dame. If a scandal like this had happened at any of those schools (or God forbid any SEC school), we would still be talking about it every single Saturday—it would be mentioned in every single broadcast of every single game that team played in perpetuity. But, at the time, Wake wasn't a good football school. Dave Clawson was brought in to turn the program around, which he has done. However, if Clemson or Alabama were in a “period of rebuilding” (a concept that seems more theoretical than actually possible today), and this happened to them? The college football world would grind to a halt. There. I got the obligatory rant as a Wake Forest alumnus out of the way, and now we can move into my real question: why weren’t there legal ramifications for Elrod? Did the Demon Deacons have any legal recourse available to them? The question of available legal recourse is trickier than you might first imagine. It is clear from the investigation done by the team (and as coverage by The Athletic) that Elrod used his access to the team's information and plays to take these plays and distribute them to other coaches. But what legal doctrines could the university have employed to try and recover for this wrong? Trespass to chattels? Intellectual property? Let's explore these two areas, which I think are possibilities—even if longshot possibilities. Here, for reasons that I will get into momentarily, I think it is important to clarify why I think at least part of this playbook is protectable. I understand that within athletics, it is common practice to attempt to “steal” signs (as in baseball) or plays (like here in football) by looking to film and other accepted mediums. A lot of football plays are seen before any given opponent plays that team, and therefore they can look to film to try and pick out what play is going to happen, when it's going to happen, and then figure out the best way to counteract it. As reported by The Athletic, the playbook in 2016 contained several trick plays that had been newly created and never before put on the field. These plays had never been subject to being videotaped or seen by any other means by any opponent, and therefore the only way for them to know about these plays would be if they had advance notice they existed (which The Athletic article makes it appear Louisville did). Surprisingly, the legal remedies are quite limited. NC Statutes and Rules: The closest state statute which I could find that would relate directly to this case was N.C. Gen. Stat. §14-74. This criminal statute states, in part, that: § 14-74. Larceny by servants and other employees: If any servant or other employee, to whom any money, goods or other chattels,… by his master shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with such money, goods or other chattels, or any of the articles…, with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by his said master; or… convert the same to his use, with like purpose to steal them,… the servant so offending shall be guilty of a felony: (emphasis added) While this arcane statute has not been updated in some time based solely on the choice of language, it seems to state that anyone that knowingly steals something of value from an employer is “guilty of a felony.” The civil doctrines of trespass and conversion to chattels seem to offer civil recourse here as well, where the program could be compensated for the loss in value of these plays. Intellectual Property? Conversely (and controversially), one could argue that these plays constitute intellectual property, and therefore subject to federal intellectual property laws. Generally, intellectual property is considered to be the result of some creativity of the creator, and therefore the creator has some protectable interest in their creation. Now don't get me wrong, I understand that you can't patent, copyright, or trademark, football plays—but there is one area that I think at last has an “argument” to be made: Trade Secrets. Keep in mind, I am just a law student who’s attempting to make a point—I apologize if my characterizations are oversimplified or flawed, and these opinions are based on my understanding only. Trade secrets essentially are practices or processes known within an organization that derives value for that organization by not being widely known by other parties the organization competes with. To be considered a trade secret in the United States, an organization needs to: Make a “reasonable effort” to keep the information secret and out of the public’s hands This secret must have some intrinsic economic value (to the third parties) The value must come from the fact that the information is not widely known. Looking at that first point, Wake Forest had policies, practices, passwords, etc. employed to protect these secret plays that had never been used before. After the breach, they changed their passwords, conducted an investigation, and did, even more, to make sure this didn’t happen again. Looking at the second point, I think it's a fair argument to make that these secret plays had some form of economic value. Looking to the market value of these secrets, never before seen plays, other teams were willing to steal them (and did steal them) with the help of Elrod—which implies that they were valuable enough to warrant trying to steal, and risk getting caught. If you are looking at the Demon Deacons' value of these plays, while not directly monetary, the value of the plays makes it more likely to win football games, which makes it more likely to make more money from your football program in general. Trade secret litigation is complex and nuanced, but I think there is at least an argument to be made here that you could consider, (at the very least) the plays that had never been seen before trade secrets. Their value was solely in the fact that they were secret—because trick plays once commonly known are no longer valuable (because they don’t work). Wake itself obviously valued these plays, as evidenced by the processes used to protect them, and Elrod and Louisville certainly valued them enough to go through the efforts of stealing them. The revealing of these secrets before Wake Forest was ready to do so inhibited a competitive advantage that they could have had, which has some intrinsic economic value. There are some issues with this analysis though. Because these were football plays, the Demon Deacons were going to reveal these plays voluntarily—but on their own time. At that point, they could no longer claim trade secret protection, because they disclosed the secret. However, my counter to this would be disclosure happened before Wake wanted it to, therefore destroying the value that they expected to have. It's also an issue that the true “monetary” value of these plays is almost impossible to calculate due to the nature of the plays. Additionally, I don't think this would have covered the entire playbook. As I stated before, most football plays are public knowledge, and it is a regular practice within the industry to attempt to steal or determine what plays are going to be played and when. It poses a difficult question whether these trick plays would be considered part of that public knowledge, or by their nature and because they had never been used before, they were still considered “secret.” As I mentioned above, I am no expert in this field—not even close, to be precise. However, based on my understanding of the justifications for trade secret law, I think there is an argument you could make that football plays that are 1) developed in secrecy; 2) That have never seen the light of day; 3) That were subject to reasonable measures of protection and secrecy; 4) that are stolen and used by other teams against the creator—MIGHT constitute something protectable under trade secret law. Reasons no action was perused: Okay. if, for the sake of this argument, you agree with me that at least one of these above legal theories could reasonably have been employed by the Demon Deacons in this situation, why was there no legal action taken? Well, if assuming there was an option, I think it boils down to the simple facts of a cost-benefit analysis. Even if the university could prove one of these theories, it's going to take a lot of money, time, and effort to litigate these issues. On top of this, as I established earlier, neither of these are surefire “slam dunks,” so Wake Forest could be risking all of that investment of time and money for ultimately no return (or a low one even if you win). Ultimately, I think nothing was even pursued because it was cheaper and more efficient for the team to just cut its losses and start over than worry about trying to litigate this. I also think a cultural reason might be behind this as well. As I've stated it's very common within sports for your plays/signs to be “stolen,” and Wake might have just thought of this as the risk of doing business and dismissed it without even thinking about legal recourse. if I had a time machine I would love to go back and ask officials within the athletic and legal departments at Wake Forest to see what they thought, and also in an alternate universe what the outcome would be if they did bring a suit. But instead, I'm sitting here on a Friday afternoon trying to apply my limited legal knowledge to a complex and fascinating issue. The ultimate moral of this story is best summarized I think in a question (and its answer) posed by my intellectual property professor: Q: “What's the best way to keep a trade secret?” A: “Don’t let anyone know you have a secret.” Zachary Bryson is a graduate of Wake Forest University with a B.A. in Economics and a Minor in Entrepreneurship. He is currently a JD candidate at Elon University School of Law, Class of 2023. You can connect with him via LinkedIn or follow him on Twitter at @ZacharySBryson. SOURCES: https://theathletic.com/3403878/2022/07/12/wakeyleaks-wake-forest-dave-clawson/