Seemingly overnight, Minor League Baseball is changing. Major League Baseball elected to recognize the Major League Baseball Players Association (MLBPA) as minor leaguers’ union representative (avoiding an election), and an arbitrator validated the union-authorization cards. Now, the MLBPA and Major League Baseball, through their respective negotiators, will work together to draft a new collective bargaining agreement for the newly-unionized players. How We Got Here Consistently subject to low wages and difficult living conditions, minor league players have been pushing for better working conditions for years. In 2014, multiple players filed a class action lawsuit, Senne, et al. v. MLB, et al., on behalf of thousands of minor league baseball players that were not paid during spring training or received salaries below the poverty line. The lawsuit had multiple amended Complaints and multiple Class certifications, including the final classes encompassing players from California, Arizona, and Florida. The allegations included violations of the Fair Labor Standards Act (FLSA) and state minimum wage laws in California, Arizona, and Florida (Florida and Arizona are the locations for Spring Training). In response to Senne, in 2018, Congress passed the “Save America’s Pastime Act.” The Act exempted minor league baseball players from FLSA protections. Thus, under federal law, teams were allowed to pay minor leaguers below minimum wage. Prior to the 2021 baseball season, Major League Baseball restructured Minor League Baseball teams by eliminating over 40 teams and hundreds of roster spots. Shifting to 2022, fortunes began to turn for minor leaguers. Due to consistent advocacy from players and organizations alike, including Advocates For Minor Leaguers, Major League Baseball began requiring teams to provide housing for minor leaguers, among other better living conditions. Further, in March, Judge Joseph C. Spero ruled in Senne that minor leaguers are year-round employees. Moreover, Major League Baseball violated or failed to comply with state minimum wage law requirements. The ruling eventually led to the parties reaching a settlement, including Major League Baseball paying over $120 million to players. In June and July, the United States Senate Judiciary Committee sent letters to Advocates for Minor Leaguers and Major League Baseball questioning Major League Baseball’s antitrust exemption on Minor League Baseball and its players. First established in 1922 in Federal Baseball Club of Baltimore v. National League, Major League Baseball’s exemption from the Sherman Antitrust Act of 1890 has allowed Major League Baseball to control nearly every aspect of Minor League Baseball, including wage-fixing and other working conditions, leaving players little opportunity to negotiate salaries due to lengthy contracts with minimal pay increases. Thus, the U.S. Senate Judiciary Committee sought to reconsider the exemption. With the fortunes turning, Tony Clark, Executive Director of the MLBPA, determined that it was the right time to push unionizing for minor leaguers. The Future The MLBPA has already added all employees of Advocates for Minor Leaguers and will now focus on organizing the player-leadership for minor leaguers and work on negotiating a new CBA after the season. With most minor leaguers earning a salary between $4,800 and $14,700 per year, expect player wages to be a focal point of the CBA negotiations. Other topics could include upgrading facilities, improving travel and scheduling, and adding meals. The increase in costs will leave teams seeking new ways to finance the future. With the national success of summer baseball teams like the Savannah Bananas, teams should push to generate more media revenue through television or streaming networks. Either way, all 120 Minor League Baseball teams have signed Professional Development Licenses with Major League Baseball until 2030. Thus, any effort by Major League Baseball to downsize will have to happen at a later date. Changes to Minor League Baseball are approaching rapidly. Now, players will have the opportunity to shape a new future that includes higher wages and better living conditions. 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.

For many attorneys and law students aspiring to utilize their legal degrees to work in the sports industry, an in-house position with a professional organization is considered the peak of an arduous climb to the top of the sports law world. Oftentimes, legal positions in some of the mainstream sports in America, namely football, basketball, and baseball, are typically those that are sought after by the sports enthusiasts in the legal world. Nevertheless, due to the exponential growth of its popularity and the constant expansion of its professional leagues, the path toward in-house positions in American soccer has never appeared more open for those aspiring to work within the beautiful game. As an incoming law student who ultimately hopes to attain an in-house counsel position within professional soccer, I wanted to learn from those who are currently in positions toward which I and several others passionate about the intersection of soccer and the law aspire. Accordingly, I have decided to start a process that I wanted to document by way of Conduct Detrimental to share with all who are interested – an interview with a member of the legal counsel at every MLS club. From these interviews, I hope to be able to provide insight into the nature of legal counsel positions in professional soccer. And at the end of this process, I hope that we will all be more knowledgeable on what it requires to successfully convert our greatest passions into a dream occupation. For my first interview, I was fortunate to speak with Joe Kennedy – General Counsel of Nashville Soccer Club. A graduate of Duke University and Catholic University of America, Columbus School of Law, Kennedy worked in both private practice and in-house for an NBA franchise before transitioning to the MLS. His words were incredibly insightful, and it was a pleasure to learn from him. Without further ado, here is the interview with Nashville Soccer Club General Counsel, Joe Kennedy: BG: Tell us a bit about your story – what led your interest in working in-house within soccer to develop and the career steps you took that eventually placed you in your current position. JK: I graduated law school in 2009 and went to work at a law firm in DC doing healthcare regulatory work. After about three years, I lateraled to a firm in Atlanta doing transactional work in healthcare. After about two years in my firm in Atlanta, I got a call from Scott Wilkinson, CLO of the Atlanta Hawks, who asked if I wanted to interview for a junior lawyer position that just opened up in his department. At that point, I was ready to leave the law firm life and was very lucky to end up getting the job. I was there for about six years before I got a chance to come here to Nashville and have enjoyed every moment of it. As far as interest in sports, I have always been a sports fan since I was a kid. I played every sport I could growing up and was eventually lucky enough to play lacrosse at Duke University. After that experience, I had a pretty good idea that I’d eventually like to work in the sports world at some point in my career. BG: What does a typical workday look like for you as General Counsel at Nashville SC? Is your position more of a consultancy role, or do you primarily serve as the club’s representative in all pertinent legal matters? JK: The fun part of my job is that there is no typical day. Because I get to oversee all of the club’s legal issues; I have the opportunity to get exposure to different types of matters with all different departments. I get to work with a lot of great people from each area of the business, including sponsorships, marketing, ticketing, soccer ops, etc. Each one of these departments has their own challenges and faces different types of legal matters. This makes each day unique. BG: I noticed that you also served as Vice President and Assistant General Counsel for the Atlanta Hawks. What are the differences that you’ve found between the role of General Counsel of an NBA and MLS franchise? JK: The general business of an MLS team and NBA are pretty much the same: ticket revenue, sponsorship revenue, event revenue and media revenue. That being said, the main difference I’ve noticed is in coming to a new expansion team vs. an established one. Nashville SC played its first MLS game about a week before COVID shut everything down. I arrived a bit over a year after that and so in many ways, we were starting a team from scratch even when I arrived. That process is much different not only because you’re doing everything for the first time, but you’re also participating in a startup environment. So we had to complete the tasks of building a team (stadium construction, community outreach, ticket sales, etc.) while also implementing internal processes to make sure we were operating efficiently. You can contrast that experience to an established business like the Atlanta Hawks where you may be engaging in new business ventures but you have an existing infrastructure in which to do it. For me, that’s been the biggest difference. BG: If you could list 3 of the most important skills necessary to work as in-house counsel for an MLS club and provide a brief explanation for their importance, which skills would you choose? JK: Business-focus: the biggest difference between a law firm job and an in-house job is that you have to have a business focus in addition to a legal focus. I like to think of myself as a businessperson who has a legal background. It doesn’t help my company if I dig into minute details of a contract for three weeks and hold up a transaction for highly unlikely events. However, it does help if I can identify the likely risks and mitigate those quickly so we can see the upside of a deal as soon as possible. Generalist: most MLS clubs are small to mid-sized businesses. Because of this, lawyers for the clubs have to tackle all kinds of matters such as intellectual property, litigation, contracts, MLS rules, etc. In order to be successful, you have to be able to know each one of these areas enough to adequately protect the company. Relationship builder: this is somewhat abstract, but an in-house lawyer is an employee of the company who practices law. To do that effectively, I think the lawyer needs to have a personality fit with the company and the club. It’s important that the people around the general counsel trust her or him enough to come to that person with highly sensitive matters. For that to happen, I think it’s important that other employees have a great relationship with the lawyer. It’s also crucial that the lawyer establish external relationships with sponsors, other teams, the league, player agents, etc. BG: How did you prepare yourself for a career in the sports industry whilst in law school? JK: I think there’s more sports and entertainment offerings in law schools now than when I was in school. Of course, it helps to take sports law classes and get internships if you can. However, I’d suggest taking as many different classes as you can and getting as much exposure to various areas of law as possible. It’s also important to have a transactional background so getting law firm exposure to any type of business transactions is helpful. BG: What is the one critical piece of advice that you could offer from your experience to law students aspiring to work in-house not only in soccer but in sports as a whole? Additionally, what is one piece of advice that you could offer about the industry to law students that you wish you were given when you were in law school? JK: I think that when law students first get into the practice of law, there is a period of a few years where they have to learn the actual skills of the legal profession. For example, a litigator has to learn how to draft pleadings, where to stand in the courtroom, etc. For those, unfortunately, you just have to put in a bunch of time and effort. But, what’s been interesting to me is the process of growing after those few years of learning the trade. I find that as I get older, there is more of a demand for leadership skills, empathy and establishing relationships. One of the exciting aspects of this for me has been the process of trying to improve myself outside the office. Therefore, I make sure I take time away from work to travel, experience new things, meet new people with different backgrounds, read books, exercise and take on new hobbies. I find there’s always new things I can learn and other ways I can get better as a lawyer and human being. So, all that being said, my advice to law students in general would be to work hard but also make sure to develop yourself as a person and be curious about the world outside the law. It’s easy to get caught up in the track of trying to make partner, make more money, get more prestige, but I’ve found that those things can be draining if you don’t devote energy to other areas of your life. To quote one of my favorites, Ted Lasso: “Be curious. Not judgmental.” Special thanks to Joe Kennedy for taking the time to participate in this interview. He can be found on LinkedIn at Joe Kennedy. Bryce Goodwyn is a 1L at Regent University School of Law. He is a member of the Honors Program and works as a Dean’s Fellow during his 1L year completing research and administrative work. He also formed part of the recently established National Sports Legal and Business Society as the East Region Chair. He can be found on Twitter @BryceGoodwyn and on LinkedIn as Bryce Goodwyn.

Montrezl Harrell is a seven-year NBA veteran with career averages of 12.9 PPG and 5.3 REB. Alongside Bill Walton, Harrell is one of only two centers in NBA history to have ever been named the “NBA Sixth Man of the Year.” Yet, only two years after receiving such a prestigious honor, Harrell’s NBA career was in limbo, stemming from his May 12th, 2022, felony drug charge. Following a routine pullover, police found three pounds of marijuana in the backseat of Harrell’s vehicle. For first-time offenders in Kentucky, possessing eight ounces to five pounds of marijuana is considered a Class-D felony. Class-D Felonies can result in a one-to-five-year prison sentence or a fine totaling up to $10,000. Pending these charges, Harrell remained unsigned, and doubt began to creep in on whether we had all witnessed him play his last NBA game. Then, on August 31st, Harrell’s career trajectory changed. Madison County District Court held that his Class-D Felony would be reduced to misdemeanor possession. Additionally, these charges can be expunged from his record in 12 months, providing he remains in good legal standing. Fast forward a week, and on September 6th, a little over two years after being named the 2019-2020 NBA Sixth Man of the Year, Harrell finally received a two-year, $5.2 million deal from the Philadelphia 76ers. Harrell, having played for Head Coach Doc Rivers and Assistant Sam Cassell on the LA Clippers, knows the ins and outs of their system. In fact, it is under Rivers that Harrell won the aforementioned award. Additionally, the 76ers have long sought a reliable backup center for perennial MVP candidate Joel Embiid, who, while possessing game-changing skills, has had durability concerns throughout his career. Harrell is a solid reinforcement and will be a player to watch this season. It seems that Montrezl Harrell has finally received some “brotherly” love. About the Author: Brandon Blumer is a 2L law student at New York Law School. You can connect with him via https://www.linkedin.com/in/brandonblumer or via Twitter @BlumerBrandon

On September 13, 2022, the National Basketball Association released a statement announcing the suspension of Sun’s majority owner Robert Sarver. The NBA's statement stemmed from an internal investigation following an ESPN article published in November 2021. The law firm of Wachtell, Lipton, Rosen & Katz acted as the independent party conducting the investigation. The investigation included interviewing current and former employees as well as the evaluation of documents including text messages, emails, and videos. The report stated that Mr. Sarver “engaged in conduct that clearly violated common workplace standards, as reflected in team and League rules and policies. This conduct included the use of racially insensitive language; unequal treatment of female employees; sex-related statements and conduct; and harsh treatment of employees that on occasion constituted bullying.” The statement released by the NBA outlined the key findings from the investigation as follows: Mr. Sarver, on at least five occasions during his tenure with the Suns/Mercury organization, repeated the N-word when recounting the statements of others. Mr. Sarver engaged in instances of inequitable conduct toward female employees, made many sex-related comments in the workplace, made inappropriate comments about the physical appearance of female employees and other women, and on several occasions engaged in inappropriate physical conduct toward male employees. Mr. Sarver engaged in demeaning and harsh treatment of employees, including yelling and cursing at them. The statement from the NBA describes the consequences of these findings. The first consequence is that Sarver will be suspended from organizational activities for a period of one year. Alongside this suspension, the NBA stated that Sarver will complete a training program that they state is “focused on respect and appropriate conduct in the workplace.” The second consequence is that Sarver will be fined $10 million. The NBA will send that money to organizations that address “race and gender-based issues in and outside of the workplace.” The statement concluded with quotes from NBA Commissioner Adam Silver summarizing the NBA’s position on the matter. “The statements and conduct described in the findings of the independent investigation are troubling and disappointing,” said NBA Commissioner Adam Silver. “We believe the outcome is the right one, taking into account all the facts, circumstances, and context brought to light by the comprehensive investigation of this 18-year period and our commitment to upholding proper standards in NBA workplaces. “I am hopeful that the NBA community will use this opportunity to reflect on what this great game means to people everywhere and the values of equality, respect, and inclusion that it strives to represent. Regardless of position, power, or intent, we all need to recognize the corrosive and hurtful impact of racially insensitive and demeaning language and behavior. On behalf of the entire NBA, I apologize to all of those impacted by the misconduct outlined in the investigators’ report. We must do better.” Finally, and maybe most importantly for the NBA regarding transparency, the NBA included a link to the full 43-page report compiled by David Anders and Sarah Eddy, the partners leading the investigation. This statement highlights a big difference between the NBA and the NFL. Both the NFL and NBA have had controversies surrounding an owner of a team in their respective leagues. However, one league has demonstrated complete transparency. The other league, however, has been investigated by Congress regarding its handling of the investigation into its owner. Those who follow both know which one is which. The NBA has been a model for transparency since Adam Silver took the helm as Commissioner in 2014. While people may not be happy with how harshly the NBA handled Sarver. The transparency of the NBA allows those comments. The 43-page report goes into the process and findings following the investigation in more depth than the NBA's statement. The transparency also allows the NBA to handle questions and point to a document that can justify their choices in punishment. The NFL has shown that they are doing almost the exact opposite when it comes to the investigation and punishment of their owners. The NFL has refused to release a full report of its investigation into the Washington Commander’s owner, Dan Snyder. They have been so secretive with the report surrounding its investigation that Congress had to step in. Congress initiated its own investigation which included a voluntary appearance by NFL Commissioner Roger Goodell and the issuance of a subpoena to Dan Snyder. Snyder has since refused to comply with the subpoena. The report remains a secret. This story and its comparison to the NFL’s handling of Dan Snyder reminds me of one lesson I learned in my Sports Law class in law school. Adam Silver, a lawyer, heads the NBA, and Roger Goodell, a businessman, heads the NFL. This difference in professional background could be one reason we see a difference in how the NBA and NFL handled their respective investigations. The NFL could learn many lessons including transparency and promptness following this statement from the NBA. Justin Mader is a recent graduate of the University of New Hampshire Franklin Pierce School of Law where he earned 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/.

Hours before the start of week one, the College Football Playoff (CFP) Board of Managers unanimously voted to expand the college football playoff to a 12-team model, finally drawing an end to discussions that have been ongoing since early 2019.[1] The Board of Managers is now tasked with overseeing the new format’s implementation by 2026. Some hope the expansion will take place sooner, maybe as early as 2024, dependent on feasibility as determined by the CFP Management Committee. The Committee is appointed by the Board of Managers and made up of ten conference commissioners and the University of Notre Dame’s Athletics Director. In the coming months, the Committee must determine game dates and locations, broadcast rights, and revenue allocations.[1] The 12-team field will consist of “the six conference champions ranked highest by the selection committee (no minimum ranking requirement), plus the six highest-ranked teams not included among the six-highest-ranked conference champions.” [1] The first-, second-, third-, and fourth-seed teams will receive a first-round bye, and the remaining eight teams will play in the first round, with the higher seed hosting the lower either on-campus or at a site chosen by that higher seed.[1] Many are happy to see the new model and believe it will create more room at a table that has been largely dominated by two conferences for the past decade and a half - the SEC and the Big 10. The SEC has won five of eight national championships since the CFP’s introduction in 2014, including three straight titles.[2] This dominance has created challenges, namely recruiting difficulties and a lack of national appeal, especially when considering other collegiate championships, like men’s college basketball’s March Madness tournament. March Madness has become a national phenomenon, with millions filling out brackets and following the action, watching first-round upsets, and rooting for Cinderella teams to make deep runs in the tournament. In contrast, college football has continued to condense into regional powerhouses, and recent conference realignment has created even more concern that the rich get richer and continue to edge out other programs. With the expanded model, the hope is that the additional playoff access boosts national appeal and teams in additional conferences move from afterthoughts to actual contenders. The tentative timeline has the first-round games scheduled for the second or third weekend of December, with twelve days between conference championship games and playoffs. The Committee is set to meet in the coming days to begin discussing implementing the new model, possibly by 2024. The automatic bids for the highest-rated champions are a huge shift, almost ensuring entrance for the Big 12, ACC, and Pac 12. This system creates added playoff opportunities for additional Group of Five conferences like the Sun Belt. The at-large bids also increase the opportunity for one- and two-loss teams to remain in contention.[3] While the new model has been largely met with enthusiasm, there are concerns. The extended season touches a lot of areas: greater interference with fall semester finals and the beginning of spring semester; the December signing period will likely be pushed back; with players looking at a 16/17 game season, there is an increased opportunity for injury; additional games will likely compete for airtime with NFL playoffs. If the model is implemented before 2026, existing contracts with media partners and venues will need to be considered. There are concerns with adequate accommodations and ticket availability, as well as questions concerning the new revenue distribution model. Nearly 80% of the current CFP revenue is allocated to the Power 5, with the remaining 20% going to the Group of Five.[4] Following expansion, the annual revenue is projected to triple to nearly $2 billion; however, little has been released regarding a new payout plan.[5] Additionally, questions remain surrounding media rights, playoff locations, and how current bowl sites will be integrated into the new format. Following a weekend of week two upsets, with two Sun Belt teams upsetting AP top-ten teams (Marshall handed No. 8, Notre Dame, their second loss of the season and Appalachian State defeated No. 6 Texas A&M), discussions surrounding CFP expansion feel even more important and timely. The Board of Managers and Management Committee have a lot to iron out in the coming months.[6] Julie Chambers is a 2L at New England Law, where she is President of the Entertainment and Sports Law Organization. She can be reached at LinkedIn at https://www.linkedin.com/in/julie-chambers-38a3401b8/. Sources: [1]https://www.si.com/college/2022/09/07/12-team-college-football-playoff-issues [2]https://www.saturdaydownsouth.com/sec-football/first-and-10-good-luck-getting-sec-to-play-ball-on-16-team-playoff/ [3] https://collegefootballplayoff.com/news/2022/9/2/bom-votes-12-team-playoff.aspx [4] https://www.si.com/college/2022/09/07/12-team-college-football-playoff-issues [5]https://apnews.com/article/college-sports-football-business-entertainment-college-football-e2e2beb24fac0b8782b96e841cfb9b40 [6]https://www.espn.com/college-football/story/_/id/34562517/week-2-top-college-football-trolls-app-state-roasts-texas-marshall-celebrates- upset-win.

Earlier this year and in one of my first articles for conduct detrimental, I covered the suspensions and defections of current PGA Tour players to the new, “upstart” LIV tour. since then, much has occurred that warrants revisiting the issues, and evaluating the veracity of my predictions. One of the predictions I made in that article was the possibility of antitrust action being taken against the PGA for the way that they were approaching this newfound competition. Well, it seems that that prediction was spot on. As reported by ESPN, the Wall Street Journal, and others, The US Department of Justice has opened an investigation into potential antitrust violations by the PGA. Additionally, Mickelson, DeChambeau, and nine other “ex” PGA members filed a lawsuit in federal district court in northern California—also alleging antitrust violations—and seeking a temporary restraining order to allow them to compete in the upcoming rounds of the PGA tour. Since news of that lawsuit first broke, several of the golfers have dropped out of the suit (bringing the total number down to 7), but, interestingly, LIV Golf Inc itself joined the suit. (see article detailing this here). LIV joining the suit makes sense from the perspective that they purport to stand for golfers who want more freedom as to where and how they play golf, and joining the lawsuit is a great way to bolster this “value” in the eyes of the public. The PGA: Unchanged Rhetoric and Attitudes Despite these lawsuits, the PGA has not softened its position regarding players who leave to play in the LIV tournaments. In a memo from PGA Commissioner Jay Monahan (as reported by ESPN), Monahan states: “Fundamentally, these suspended players—who are now Saudi Golf League employees—have walked away from the Tour and now want back in. With the Saudi Golf League on hiatus, they're trying to use lawyers to force their way into competition alongside our members in good standing.” I have a number of issues with this statement. First, I don’t fall for the rhetoric that suggests that the golfers who left for LIV are trying to “force their way back” into the PGA. Yes, they are trying to re-enter, but they shouldn’t have been expelled in the first place—because 1) PGA members are independent contractors, which gives them the freedom to “work” elsewhere, and 2) the PGA has the discretion to grant up to three releases per year (per golfer) to compete in events other than PGA tour events if there are conflicts—yet no releases of any kind were offered to golfers who “defected” to LIV. They were suspended immediately and for no other good reason other than “we don’t like the tour you’re playing for” (you could argue that not all the suspended players attempted to get a release, but I think it is pretty clear the PGA wouldn’t have granted it). Second, it calls attention to the fact that the players who have signed contracts with LIV are considered “employees”—an ironic and duplicitous statement coming from the PGA. As mentioned in my first article on the subject, the PGA consciously CHOOSES to have golfers not be recognized as employees but instead views them as independent contractors—meaning they legally can't prevent or bar members from competing in other tours, and ESPECIALLY can't penalize them for doing so (both of which the PGA has attempted to do). While it does appear that LIV has something more analogous to an “employment” contract with its golfers—contracted players are obligated to play in all events on the tour, including if the tour expands the number of events—there is no evidence that these contracts would preclude LIV contracted golfers from playing in PGA events. While obvious to me, the PGA seems to forget that it could have avoided this entire issue, including the antitrust (and likely federal labor law) suits if it had chosen to recognize members as employees—but it was more interested in saving itself money. While the PGA may be “confident” that it will prevail in these lawsuits, I think there is a high probability their past and continued hostile attitude and “punishments” to golfers who “defect” will cause them to lose the antitrust lawsuits already instituted, and a high probability of being found in violation of federal labor laws (if a suit is brought alleging they are treating “independent contractors” as employees are instituted—and I think one could [and should] be brought). Their continued rhetoric and actions in the face of these real possibilities of losing are bold, to say the least, and could very realistically be aiding in their defeat. The Big Picture—Positive Impacts No matter if you are “Team PGA” or “Team LIV,” if you take a step back, you have to conclude that this conflict will create positive change. Ultimately, this conflict can be boiled down to player rights and freedoms, which most people agree are good things to have. Before LIV, the PGA had no competition, and regardless of what the DoJ decided, the PGA was at least “acting” as a monopoly. It was “their way or the highway”—and “their way” maximized their own profits while giving the lowest it reasonably could to golfers to still incentivize them to play. Now, the PGA has competition, which is causing it to have to shift some of its hoarded revenue to the players—which is what they all wanted in the first place. Mickelson has said that the changes the PGA announced (increasing the purses and adding some events with guaranteed payouts) are “welcomed” and a good sign—but these forced changes are ultimately why the PGA is so upset. They want to keep their power (and their money) close at hand, and they have had to relinquish some of both. I think this is a good thing—competition makes the market (in this case for talent and golf content that is interesting) more efficient, still allowing the PGA to make money, but giving golfers more of their share. I think this is something golf fans should be happy about, no matter which side they are on in this ongoing LIV/PGA debacle. Zachary Bryson is a graduate of Wake Forest University with 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://www.espn.com/golf/story/_/id/34227586/us-department-justice-investigating-pga-tour-behavior-towards-liv-golf https://www.espn.com/golf/story/_/id/34341768/phil-mickelson-bryson-dechambeau-11-golfers-file-antitrust-lawsuit-pga-tour https://www.espn.com/golf/story/_/id/34508592/phil-mickelson-says-feedback-liv-golf-pga-tour-competitors-appreciative-new-windfall-sport https://www.cbssports.com/golf/news/liv-golf-joins-player-led-lawsuit-against-pga-tour-as-two-more-golfers-drop-out/

As reported by Jeff Passan, two prospects, Willy Fañas and Keiderson Pavon, are suing the Los Angeles Angels in the Dominican Republic, alleging that the Angels breached agreements with the prospects by unilaterally terminating the agreements after a change in management. Evidence put forth by the prospects includes a video by an Angels employee of the moment Keiderson Pavon was “signed” by the Angels. A Common Practice Major League teams backing out of agreements with international prospects has been common practice throughout the years. In January, Maria Torres and Ken Rosenthal of The Athletic provided an in-depth look at the issues plaguing Major League Baseball’s system for signing international athletes. Specifically, teams may reach agreements with prospects as young as 12 years old, hoping that the prospect will continue to develop and be ready for a minor league contract by the time he is 16—when the prospect is eligible to sign with an MLB team. Reaching an agreement at such a young age effectively shields the prospect from other teams, thereby eliminating the market for the prospect and reducing the prospect’s ability to negotiate at a later time. Due to the outpouring of support for a change to the system, as a part of the new collective bargaining agreement (CBA) between Major League Baseball and the Major League Baseball Players Association (MLBPA), both sides agreed to discuss an international draft, setting a deadline of July 25, 2022, to reach a deal. Despite both sides offering proposals, the parties were unable to agree on a framework for an international draft. Although, not all players are in agreement that an international draft will fix the issues with the current system. Either way, the current CBA runs through 2026. Therefore, the addition of an international draft will likely wait until the next CBA. Trouble For The Angels? The Dominican Republic’s labor laws are historically pro-employee, which are applicable here due to the alleged signing occurring in the Dominican Republic. Generally, contracts can be verbal agreements. In the employment context, there is a presumption that the contract exists. Thus, the employer must overcome the presumption of the existence of a contract. Here, the presumption may be difficult for the Angels to overcome due to the video in Keiderson Pavon’s case, which included an Angels employee stating to Pavon, “you are signed.” Thus, there is a presumption that a contract exists that the Angels could not unilaterally terminate. The prospects’ cases will be tracked by teams and athletes alike due to the potential ramifications if the prospects succeed. This is not the only issue for the Angels. Currently, owner Arte Moreno is exploring selling the team, which could fetch up to $2 billion dollars. Additionally, the team was embroiled in a dispute with state officials over the sale of Angel Stadium. Even though the MLBPA is making it a priority to make changes for Minor League Baseball players, including pushing Major League Baseball to name the MLBPA as Minor Leaguers’ collective bargaining representative, expect the MLBPA to continue to put pressure on Major League Baseball to make changes to the international system. However, until Major League Baseball and the MLBPA agree to changes, the issues will persist. 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.

Just over one week ago, the Major League Baseball Players Association (MLBPA) sent authorization cards asking Minor League baseball players to designate the MLBPA as the Minor Leaguers’ collective bargaining representative. Now, as reported by Evan Drellich of The Athletic, a majority of Minor Leaguers have returned the union authorization cards to the MLBPA, designating the MLBPA as their collective bargaining representative—a key step in forming a union with the National Labor Relations Board (NLRB). Ordinarily, if 30% of workers sign authorization cards, the NLRB can require an election to determine their representative. However, due to a majority of Minor League baseball players designating the MLBPA as their collective bargaining representative, Major League Baseball can voluntarily recognize the union and thus bypass an election. The MLBPA has sent a letter to Major League Baseball requesting that Major League Baseball voluntarily recognize the MLBPA as Minor Leaguers’ representative. However, Major League Baseball may not grant the MLBPA’s request. Although the organization has not issued an answer to the MLBPA’s request, it is likely that Major League Baseball would rather go through the election process and challenge or appeal to election results. The MLBPA is capitalizing on Major League Baseball being under the microscope regarding wages for Minor Leaguers. Over the past couple of months, both Advocates for Minor Leaguers, an organization dedicated to improving working conditions for Minor League baseball players, and Major League Baseball have responded to written questions from the United States Senate Judiciary Committee regarding Major League Baseball’s antitrust exemption and its effect on Minor Leaguers. While the U.S. Senate Judiciary Committee has yet to issue a formal response, the committee has previously stated that it will hold a hearing on the issue. Designating the MLBPA as Minor League baseball players’ union representative would be monumental for the players and teams. If Minor League baseball players are able to collectively bargain with Major League Baseball, players across the country would see better benefits and living conditions and higher wages, including likely pushing yearly salaries higher than the living wage. At the same time, the MLBPA’s membership would grow from 1,200 Major League baseball players to more than 5,000 across Major League Baseball and Minor League Baseball. Until then, the MLBPA has made it clear that improving working conditions for Minor League baseball players is a priority that needs addressing. 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.

As soon as my head made contact with the ball, I knew something was wrong. The nightmare had just begun. My biggest fear while playing soccer competitively was a head injury. Playing as a lone striker it was often my job to challenge for long balls in the air. I had developed a system to avoid head injuries. Only go for the header if you would 100% win it. If not, just “body” the opposing player and avoid head-to-head contact. For over 10 years this worked, and I never experienced a head injury. This all changed in October 2019. At the time, I worked as Team Administrator Intern with Hartford Athletic of the USL. I often helped the outside backs with crossing drills after training by finishing off their crosses. One day a cross was whipped by Harry Swartz, and I headed it in the goal. Now, I had headed a ball possibly a million times in my lifetime, but this time was different. As soon as I made contact with the ball, I felt everything shake in my head and face. I immediately knew something was wrong. Long story short, it turns out I suffered my first concussion. I had awful symptoms that lasted for months. I never thought I would get a concussion with my defensive approach to heading. However, I didn’t realize heading on its own is dangerous to anyone. This is why this week's news from the English Football Association (English FA) did not come as a surprise to me. The English FA has released new guidelines concerning heading at the professional level. Previously heading restrictions in the UK and US had been placed only on youth soccer players. Under these new guidelines “Professional clubs will be directed to limit 'high force' headers - those following a long pass of more than 35 meters or from crosses, corners and free-kicks - to 10 per training week, while also developing specific player profiles which will help tailor their training needs.” This should be welcome news for professional players in England. Although limiting headers in training is a great step, heading is still very much part of official matches. Ever since my concussion, I sometimes struggle watching players violently head the ball. Is it possible that this is the first step towards a limitation of heading in official matches? The laws of the game are fluid and have constantly changed over the past 100 years. There was a time when goalkeepers could pick up a pass back or a time with no red cards/yellow cards. The NFL, for example, has implemented several rules in the past 10 years to cut back on concussions. The NFL claims these rule changes have reduced concussions by 35%. These guidelines from the English FA may end up being the first step towards official soccer matches with no heading or limited heading. Unlike the NFL getting rid of tackling, any sort of limitation to heading, although drastic, would not completely change the game of soccer. Soccer is still largely a passing game played with the feet. It is actually not unusual to do drills in training where the ball has to stay on the ground. This also comes at the time when there have been other proposed rule changes to the game. For example, Real Madrid President Florentino Perez of Super League fame has proposed shortening soccer games in an effort to court a younger audience. In fact, FIFA recently held a tournament in July 2021 called the Future of Football Cup where 5 new rule changes were implemented as an experiment of sorts. These included unlimited substitutions, yellow card sin bins, 30-minute halves, kick ins instead of throw ins and dribbling from corners. Perhaps if and when these new rules are implemented a limitation on heading will be added as well. I guess time will tell. David Abunaw is a rising second year law student at the University of Pennsylvania Law School and Sports Events Chair of the Entertainment & Sports Law Society. Connect with him about sports and entertainment on Instagram: @davidako10 and Twitter: @davidabunaw.

On July 1, 2021, the long-awaited Name, Image, and Likeness (NIL) era of collegiate sports commenced. Effectively, within the limitations of various State laws, University NIL policies, and the NCAA’s new flexible NIL approach, student-athletes are permitted to monetize based off their names, images, and likeness to formally grow their individual brands, a stark contrast from the NCAA’s previous Amateurism rules prohibiting such conduct. Within the first day of NIL eligibility, Barstool Sports founder and President Dave Portnoy, otherwise known as El Presidente, jumped on a live stream to announce the establishment of Barstool Athletics. Under this newly announced branch of the media giant that is Barstool Sports, Portnoy invited student athletes to apply to become members of the Barstool Athletics team. Details of the Barstool Athletics program are few and far between; Portnoy himself stated during the live stream that “I didn’t give it a ton of thought.” Nevertheless, within days of the announcement, Portnoy confirmed that over 100,000 student athletes had already applied to be founding members of Barstool Athletes. Portnoy’s comments and the speed at which Barstool Athletics “signed” student athletes has prompted the Sports Law world to raise questions about whether Barstool Athletics may cause student athletes to be ruled ineligible by their respective universities’ athletic departments. This comes as a direct result of Barstool Sports’ current nature; in January 2020, Penn National Gaming purchased a 36% stake in Barstool Sports for over $160 million. Since this purchase, Barstool has launched the Barstool Sportsbook, currently offering in-person and online betting in Pennsylvania, Michigan, Indiana and Illinois. Barstool also hosts multiple gambling shows and podcasts, further entrenching their status in the gambling sphere. The clear connection between Barstool Sportsbook and Barstool Athletics raises significant questions about the supposed legality of Barstool Athletics’ NIL program. As sports attorney and Conduct Detrimental Host Dan Lust noted, certain State laws and University NIL policies explicitly prohibit NIL agreements that promote sports gambling or casinos. Given Barstool’s roots in the gambling industry and popular Barstool personalities’ frequent promotions of Barstool Sportsbook, student athletes who have joined the Barstool Athletics frenzy may be risking their eligibility for currently uncertain rewards. And, with over 100,000 applicants to the Barstool Athletics program, the potential for mass ineligibility rulings may be looming ominously over uninformed student athletes. In response to concerns online regarding Barstool Athletics’ threat to student athletes’ eligibility, newly initiated Barstool Athletics member and New Mexico State University Swimmer Carli Baldwin took to TikTok to alleviate the uncertainty surrounding Barstool Athletics. In her TikTok video, Baldwin explains that in Portnoy’s welcome email to Barstool Athletes, Portnoy emphasized that Barstool Athletics would not be asking any interested student athletes to sign any sort of exclusive agency or branding contracts. Rather, Portnoy stated that Barstool Athletics’ plan was to enable student athletes to promote their own individual brands and likenesses via Barstool’s expansive online media presence. Baldwin continued to explain that, despite beliefs over the nature of the program, Barstool Athletics was acting marketing agency for student athletes, instead of what many believed to be a sponsorship program. If Baldwin’s TikTok explanation remains true in practice, it certainly could alleviate some of the concerns facing the legality of Barstool Athletics. On July 11th, Darren Heitner, a Florida sports and entertainment attorney and recurring guest on the Conduct Detrimental podcast, discovered that Barstool had filed intent-to-use trademark applications on July 2nd to protect the Barstool Athletics name. These trademarks sought to register the Barstool Athletics name as a service provider of business management and advice for athletes, as well as a service provider for entertainment services including podcasts, news, and commentary surrounding sports and entertainment. Barstool’s trademark filings support Carli Baldwin’s message that Barstool Athletics is not a student athlete sponsorship, but rather an entity to help support and grow student athletes’ individual brands. Due to the ongoing uncertainty in the absence of Federal NIL legislation, Barstool Athletics appears to be a vehicle to enable student athletes to achieve success and maintain appropriate compliance in expanding the reach of their names, images, and likenesses. Ultimately, whether Barstool Athletics can truly differentiate itself from Barstool’s gambling brand so as to ensure student athletes do not face eligibility questions will depend on how individual universities interpret their own NIL policy or State’s law regarding NIL agreements with gambling entities. Thumbnail link: https://www.blackhawkameristar.com/casino/sportsbook Thumbnail taken from the Blackhawk Ameristar website

The historical rarity of Shohei Ohtani’s game has taken the baseball world by storm. Ohtani’s novelty—a player who provides superstar value on the mound and at the plate — has only one historical model: Babe Ruth. Even that is imperfect; Ruth’s hitting didn’t flourish until he abandoned pitching. Truly there is no precedent for Ohtani making the 2020 All-Star Game as both a hitter and a pitcher. Ohtani is shattering records on the field and will likely do so off it as well: unprecedented play deserves unprecedented compensation. At the moment, Ohtani is under contract only for 2021 and 2022. Technically, the Angels possess his rights through 2023, meaning if no extension can be reached, the two sides would head to arbitration, where a third-party judge would decide Ohtani’s 2023 salary. That figure would likely almost double the standing record. Arbitration The arbitration process was introduced to baseball as a way of staying demands from the Major League Baseball Players’ Association (MLBPA) for free agency. Though free agency was eventually enacted in 1977, arbitration remains part of the Major League Baseball landscape. Today, a player is eligible for arbitration after accruing 3 years of major league service time. In the fourth through sixth years, if no contract is agreed upon, the arbitration process begins. Both sides submit a figure and plead their case to a third party, who selects one of the figures as the player’s new salary. Shohei’s Case There are no set rules or limits to what is argued in arbitration. However, the most common topics tend to be the following: Player’s performance in their “Platform Year,” the year immediately prior to the arbitration. Player’s performance in the two years preceding the Platform Year, or PY-1 and PY-2. Recent salaries of players of similar position and production value. Contribution to team success. Individual Accolades. The current mark for the highest salary in the third year of a player’s arbitration is $27 million to Mookie Betts, then of the Boston Red Sox, in 2020. We believe each of the above factors favor Shohei Ohtani soaring past Betts’s award. Shohei’s PY-2 year, was affected both by an injury (which kept him off the mound) and the COVID-19 pandemic. But his performance this year, “PY-1”, clearly demonstrates a sky-high ceiling for Ohtani: one of the MLB’s ten best hitters and ten best pitchers. His platform year performance is unknown for now; we’ll cautiously assume it to be similar to, if slightly less than, this year’s. As for comparing him to players of similar production, one would have to believe he is in a class of his own. His value to the Angels lies in both his superb play on the field and his immense star power: He accounted for over 28% of All-Star merchandise revenue and has obvious marketing potential not just to American baseball fans but fans in Japan, the second biggest baseball market in the world. Metrics love Ohtani, and yet sell his performance short. His Wins Above Replacement are currently first in baseball. But because is a starting pitcher who produces at the plate on his off days, he effectively serves as two different players while taking only one roster spot, effectively creating a free roster spot for his club. An agent arguing for Ohtani in 2023 could state: Hits at an MVP caliber level, similar to Betts in 2020, when he got a $27 million award. Pitches at a borderline Cy young level, similar to David Price in 2012 who got $19.75 million after a Cy Young campaign. Creates a free roster spot for his team, an asset arguably worth millions on its own. Is one of the most marketable stars in the game both in this country and in his native Japan. Will Ohtani Even Make it? Given the unique nature of the player, it seems unlikely the Angels will allow the process to get to arbitration. But if they did, what would a fair offer be? His hitting alone would seem likely to be worth north of $30 million given Betts award in 2020 and the inclination of arbitration award to increase. Similarly, his pitching should be worth at least $20 million. Counterweighting his less impressive PY-2, yet giving some value to his free roster spot and marketability, $50 million seems like a reasonable place to start. we’d expect the Angels to submit a number just north of that. The real question is the value of that roster spot, and his marketing value. While those specific values are worthy of deep analysis on their own, it’s our position that $50 million— slightly less than double the current record – could be reasonable compensation. Britton Yoder and Samuel Roos are rising 1L students at Penn State Dickinson Law. Inquiries can be sent to [email protected] and [email protected]

Well folks, we made it. We have finally reached the NIL era, and boy is it sweet. As of July 1st, college athletes have the green light to make money off of activities relating to their names, images, and likenesses and, much to the NCAA’s surprise, the sky remains blue and above our heads. While the decision affects all college sports across all three divisions, only one sport receives this news with the backdrop of a season marked by traditional powers failing to make the postseason and losing Mount Rushmore-level coaches. That’s right y’all – it’s July and we’re talking college hoops. The basketball season as a whole was already expected to look different this past year given COVID-19 protocols. What few people expected, though, was the collective fall of teams that are accustomed to dominating and rise of new contenders. For the first time since 1976, neither of basketball’s perennial powerhouses and essential one-and-done factories – Duke and Kentucky – participated in the NCAA tournament. Two other blue-blood programs at least made the March Madness field but suffered disappointing exits. North Carolina was on the wrong side of a blowout in the first round and Kansas betrayed their Final Four aspirations in a second-round loss to USC. For Hall of Fame coaches Roy Williams and Mike Krzyzewski, this season served as a swan song (Williams retired this year, Coach K will after next season). This, paired with the rise of programs like Villanova, Gonzaga, and Baylor in recent years, could be evidence that parity in basketball is approaching an all-time high. Just a few short months after the historic 2020-2021 season ended with Baylor’s dominant win over Gonzaga in the national championship game, the United States Supreme Court’s opinion in the Alston case sent shock waves through the sports world and helped usher in the NIL era. But did it also save the big-name programs from a potential recruiting purgatory? The effect of new NIL rules remains an unknown, but that leaves plenty of room for speculation. Consider this: it’s a Friday night during conference season and you check the headliners for an ESPN double-header. Is there any chance that at least one of the matchups doesn’t feature a traditional power? Not likely. The brand names tend to get those primetime spots and, for the networks carrying the games, they almost always deliver. According to sportsmediawatch.com, this year’s Duke-UNC game posted the event’s lowest TV rating in 14 years. Even so, it was the fourth most watched game of the regular season. Despite the fact that these teams are suffering, their brands draw eyes to the television. As athletes look to financially capitalize on their names via sponsorships and merchandise, the promise of additional TV-time can be another valuable advantage for the brand names to hold over the little guys when recruiting and, with many of these programs reeling from disappointing seasons and recruiting cycles, it comes at just the right time. Look also for a resolution in House, another NIL case out of California still in its early stages. The case involves a class of current and former college athletes, led by Arizona State swimmer Grant House and Oregon hooper Sedona Prince, requesting rights to a cut of the TV revenue generated by their games and meets. They claim that, had the NIL rules been applied back then and going forward, the athletes would be getting some of that TV money. If the decision in House looks anything like the one in Alston it could expand athletes’ potential NIL earnings to include a share of the money earned by their televised performances. For reference, the NCAA Tournament alone fetched almost $2 billion in TV revenue in 2019. Getting a crack at that pot o’ gold is a dream for players and could lead to basketball’s brightest stars flocking back to the teams that see the most TV time. Even if the athletes don’t get their hands on that money, though, the exposure alone may be enough. Although nothing is certain, keep your eyes peeled. Those familiar teams that are down on their luck are in prime position for a huge rebound.