An open question in college athletics in the post-Alston has always been, to put it bluntly, how the heck will the National Collegiate Athletic Association (“NCAA”) try to reign in abuses of name, image, and likeness (“NIL”) compensation to ensure that a not-so-secret regime of pay-for-play is not the ultimate result? Balancing its adherence to the Supreme Court’s ruling in Alston with its desire to maintain some level of normalcy in the way it conducted its business was never going to be simple for the NCAA. And, therefore, somewhat wisely, the NCAA took a relatively hands-off approach to NIL for the past year. The NCAA’s interim NIL guidance,[1] issued in June 2021, did not actually provide much guidance: in effect, the guidance only said that college athletes, or student-athletes as the NCAA continues to insist on calling anyone who plays a college sport,[2] were able to earn compensation from NIL (which the Supreme Court had already required in Alston, so no new right was really being granted) and could engage in NIL opportunities consistent with state law, any school requirements, and any conference requirements. In other words, the NCAA punted (sorry) responsibility for NIL regulations to other groups, which is not necessarily a bad thing given the Supreme Court’s firm stance against the NCAA in Alston – the NCAA was likely seeking to avoid further antitrust scrutiny in the wake of Alston by having a light hand on enforcement at least in the immediate wake of the decision. But this is not to say that the NCAA was not concerned about policing improper NIL arrangements. Preventing unfair competitive advantages that would result from pay-for-play arrangements, even if disguised as NIL, remains a primary concern for the NCAA. While there have not yet been any allegations by the NCAA against any member school about violations of NIL arrangements – and the first such allegation will be a nuclear moment in college sports – that is not to say that the NCAA is not looking into possible violations. On August 18, 2022, the NCAA sent a letter to its 1,100 member schools reiterating the fact that its enforcement staff is “actively investing potential abuses of NIL transactions” and imploring member schools to cooperate with such investigations by reporting potential violations. [3] A possible follow-up to this request could be an official NCAA rule requiring schools to share any information about NIL deals that their athletes are entering. It seems, however, that the leaders of the NCAA’s member conferences are becoming impatient with the NCAA’s approach to enforcement. James J. Phillips, Commissioner of the Atlantic Coast Conference (“ACC”), Brett Yormark, Commissioner of the Big 12 Conference (the “Big 12”), Greg Sankey, Commissioner of the Southeastern Conference (the “SEC”), Kevin Warren, Commissioner of the Big Ten Conference (the “Big 10”), and George Kliavkoff, Commissioner of the Pac-12 Conference (the “Pac-12”)[4] sent a letter[5] on August 31, 2022, to Senators Tommy Tuberville (R-Ala.) and Joe Manchin (D-WV) in response to the Senators seeking feedback on a bipartisan NIL bill that they would be working together to draft. [6] The Commissioners noted that while they “recognize the rights of students to engage in [NIL for endorsements, camps, and lessons],” they were frustrated with the “piecemeal fashion through differing state laws and NCAA guidance” that NIL has been regulated thus far. [7] Unfortunately, problems have emerged where it appears boosters are inducing high school and potential transfer student-athletes to attend their favored universities with payments inaccurately labeled as NIL licenses, with no connection to the value of any endorsement or NIL activity. This kind of inducement was not what anyone had in mind when NIL was created[.][8] The argument in favor of federal NIL legislation made by the Commissioners essentially boils down to two major concerns: 1) fraudulent NIL deals that are disguised pay-for-play arrangements, and 2) NIL deals that are not correctly valued but are otherwise legitimate, resulting in some level of the compensation being an improper inducement. These concerns are both legitimate: pay-for-play is widely deemed as being a negative for college sports and nothing is prohibiting the NCAA from preventing it. But there has not been any solid indication that either of these scenarios are happening in the current landscape of college sports.[9] The lack of concrete examples of these impermissible situations makes it difficult to effectively legislate against their occurrence. Despite this difficulty, the Commissioners attempted to provide five guidelines to help Senators Tuberville and Manchin in their drafting of federal NIL legislation: Pay-for-play should be expressly prohibited. Protections for student-athletes (the term used by the Commissioners in their letter) should be built in to regulate anyone representing them in NIL deals and to provide that appropriate dispute resolution mechanisms exist in relation to NIL deals. Long-term rights to a student-athletes’ NIL should be prohibited. NIL compensation should be tied to market rates. A mechanism for disclosing NIL agreements to compliance officers at NCAA universities. It remains to be seen if Senators Tuberville and Manchin will have any luck getting their proposed NIL bill passed. Per Sports Illustrated, many, myself included, “believe it to be a long shot to pass in a divided Congress.”[10] At least eight federal NIL bills have been filed since 2019 and failed to gain any traction. Perhaps the best chance that this particular iteration has of being passed is the fact that Manchin is tied to it and, as the frequent swing vote in a divided Congress, might be able to push it through as part of a deal to pass or modify other legislation [1] NCAA adopts interim name, image, and likeness policy - NCAA.org. [2] There is not an easy answer as to why the NCAA insists on referring to college athletes as student-athletes. One explanation is that it represents a linguistic attempt by the NCAA to continue to classify college athletics as an amateur sporting endeavor, amateurism being a major draw to college sports according to the NCAA. [3] NCAA asks member schools to help with NIL violation investigations (espn.com). [4] The ACC, Big 12, SEC, Big 10, and Pac-12 are, of course, the “Power 5” of NCAA member conferences, representing the biggest conferences with the most financial sway and political power. [5] A5 083122 Response To Request.pdf - Google Drive. [6] Tommy Tuberville leading new congressional push for NIL regulation - Sports Illustrated. [7] A5 083122 Response To Request.pdf - Google Drive. [8] Id. [9] Both scenarios are DEFINITELY happening (people like winning way too much to not bend the rules a little); I am only pointing out that we have not yet seen concrete proof that either scenario is happening. [10] NIL: Power 5 commissioners urge congress to take action - Sports Illustrated.

After a news-filled and chaotic offseason, college football returned last weekend with a collection of Week 0 games across the country. While a lot of the conversation was centered around the Big Ten clash between Nebraska and Northwestern in Dublin, there were other lower-profile games that took place. One of those matchups featured North Carolina and Florida A&M. Unsurprisingly, the Tar Heels came away with a lopsided win. However, the developments that occurred pregame and postgame have generated a lot of buzz in the college athletics industry this week. Florida A&M, an HBCU FCS program, was set to depart Tallahassee for Chapel Hill on Friday morning before the 8:15 PM kickoff the following night. However, news began to break on Friday afternoon that the Rattlers would be without upwards of 20 players due to eligibility issues. This led to their flight being delayed into the evening and speculation that the game would not be played. Sources with knowledge of the situation claimed that FAMU players deliberated not playing the game and held a team vote to determine whether they would take the field with their depth chart significantly depleted. As we all know, football is a demanding sport where having a sufficient number of able players every game is an absolute must for the health and safety of everyone involved. While it may have been a tough decision for the players on whether to play or not, it definitely wasn’t a tough decision for Florida A&M administrators. While the Rattler football team was in limbo back in Tallahassee on Friday, FAMU President Dr. Larry Robinson was reportedly already on campus in Chapel Hill Friday and made it clear that the expectation was to play the game despite the lack of available players. Why would FAMU officials be so adamant that the game be played? Well, like many decisions that have been made in college sports lately: it was about the money. As an FCS football program, FAMU is capped at 63 scholarships while North Carolina can currently carry 85 scholarship players. It is a scenario that is often played out in college football called a “buy game.” That’s where a higher-level FBS program takes on one from a lower level and pays them (quite well at the Power Five level) with the expectation that it will be an easy win. In this case, North Carolina was scheduled to pay FAMU $450,000, but only if the game were in fact played. So while the Rattler players ultimately decided to play the game, there definitely could have been added pressure put on them by those in power at Florida A&M. Schools like FAMU don’t receive mega contracts from media rights deals or lots of ticket revenue from filling 100,000 seat stadiums. Playing a buy game is essential for funding, not just the football program, but also the athletic department overall. After the Rattlers fell 56-24 in a spirited effort given their lack of depth, the players inked a demanding letter to the university highlighting a large number of deficiencies in athletics oversight and school leadership. The letter addressed to President Roberts, pinpoints a lack of timely financial aid payments, academic support, compliance, summer housing, meals, representation on the latest athletic director search committee, and ticket allotments for families. This is a move that is somewhat unprecedented in college athletics. Very rarely do you see players calling out university officials for any reason, let alone list a number of significant issues. But as news keeps on coming in about the situation, the players are probably well within their right to be doing this. It was very damaging to the morale of our football team to read on various media outlets, '26 FAMU Football Players Ruled Ineligible,'" the players wrote. "This narrative implies that we are not performing in the classroom. In fact, that couldn't be further from the truth. The issue at hand is not academic performance, but procedural issues within the registrar's office, compliance department, and academic advisement. It has been reported that FAMU has a dearth of compliance staffers in their athletic department, which can obviously lead to a number of eligibility issues that surfaced last weekend for the Rattlers. Prominent attorney Tom Mars told ESPN he has signed documentation that a FAMU star player was advised to take the wrong number of courses this summer, leading to his ineligibility and eventual four-game NCAA suspension. It’s likely that wasn’t the only case of bad advice, given that 26 Rattlers were ultimately unable to take the field against the Tar Heels. Where things go from here is definitely up in the air. FAMU officials responded with a statement reading “FAMU is committed to upholding high standards and rigorous adherence to NCAA guidelines.” “After the assessments of Spring and Summer 2022 academic progress, the Compliance team exercised its due diligence to complete the certification process on August 11, before the Fall sports season began.” Obviously, something was missing in that certification process, or we wouldn’t be where we are today. In this new era of college athletics with the advent of NIL, the transfer portal, and social media, college athletes have more power than ever before. By writing that scathing letter, the FAMU football team used some of that power for good, highlighting the change that needs to occur for the betterment of their student-athlete experience in Tallahassee. There has been a lot of talk about college athletes becoming employees and receiving direct compensation from their schools, and deservedly so. However, the first and foremost priority of athletic departments across the country is to create the best experience and provide support to their student-athletes. When that’s not the case, change needs to happen. Good on the Florida A&M players for standing up for themselves. Florida A&M takes on Jackson State this upcoming Saturday. Hopefully, they’ll have more players eligible to take on Deion Sanders’ squad in the Orange Blossom Classic. Brendan can be found on Twitter @_bbell5

The inaugural year of the name, image, and likeness (“NIL”) era has been driven by football, particularly at the football bowl subdivision (“FBS”) level. It was no surprise when Opendorse published its findings on the first year of NIL that football was the top sport for most NIL activities (29.3%), followed by baseball (8.0%) and men’s basketball (7.6%). [i] So, it would be a safe assumption that if there was only one school in a state that sponsored FBS football, baseball, and men’s basketball that such a school would dominate the NIL landscape in that area, right? Wrong. In New York and Colorado, the only school that, respectively, sponsors all three of these sports at the Division I level have combined for zero NIL deals throughout all their athletic programs. Those schools are the United States Military Academy (West Point, New York) and the United States Air Force Academy (Colorado Springs, Colorado). This may be puzzling since it would make sense for America’s finest and brightest to be some of the most marketable athletes in the country. Army head football coach Jeff Monken would agree. “I think the academy would be a good place for those people who would want to spend [NIL] money,” said Monken when asked about NIL. “They’ve got not only a great platform—we’re on national TV about every week—we have great young men who are playing at a high level and winning a lot of football games. They’re going to professionally go on and do great things. They can have a person that goes from being a football player who can represent a product or whatever it is to later as a professional person as well.”[ii] So, why is there a lack of NIL activity at Army and Air Force? As I’m sure you’ve guessed by now, it has to do with the fact that they are federal service academies. Federal law prohibits all athletes at the five “federal service academies” (Army, Navy, Air Force, Coast Guard, and Merchant Marine Academy)[1] from exercising their right to publicity since they are employees of the federal government due to the government paying for their tuition, housing and fees. [iii] The specific statute in play is 5 CFR § 2635.702 (Use of public office for private gain), which states: “An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity. . .”[iv] This includes using one’s NIL as a cadet or midshipman for financial gain. Interestingly enough, while athletes at the academies are designated as employees, this is the exact opposite of what the NCAA and many universities are currently pushing for. In the active federal case Johnson v. NCAA, the NCAA is arguing that college athletes are not employees of the schools they attend under the Fair Labor Standards Act (FLSA). Classification as FLSA employees would entitle college athletes to minimum wage and related benefits, similar to their classmates participating in work-study programs. [v] Will NIL hurt athletics programs in these service academies? Well, it certainly is not going to help. There is no shortage of wealthy alums from these institutions, including Bill Foley (owner of the NHL’s Las Vegas Golden Knights and Army graduate), capable of providing NIL opportunities, and there are many marketable moments for academy athletes such as the nationally televised Army-Navy football game. But, at the same time, people are attending prestigious military institutions like Army, Navy, and Air Force for more than just playing sports. As Monken noted, “We may never have the opportunity to take advantage of [NIL], and that’s OK. Our guys are here for a higher calling. It’s not about individual name, image, and likeness. It’s about playing this sport for them. But that doesn’t mean it wouldn’t be nice to earn something from name, image, and likeness. They don’t have a desire to do that. It’s not part of who we are as an institution. I commend our guys. They know that. They have a chance to check out if they want to, but they stay. It speaks to the type of people they are and the commitment they’ve made to this institution to be leaders in the Army. They have a brotherhood.”[vi] Perhaps the Pentagon will issue a policy in the future permitting athletes at the federal service academies to monetize their NILs. It was only a few years ago that Defense Secretary Mark Esper issued a policy allowing college athletes graduating from the service academies to delay their service requirements to play professional sports, so perhaps the door has been opened to create more leniency for star athletes at the academies. [vii] However, there may not be an appetite for engaging in NIL opportunities among the cadets at the United States Military Academy or the United States Air Force Academy, or the midshipmen at the United States Naval Academy, considering the grueling nature of the schooling and training at those institutions. Either way, with the Black Knights, Midshipmen, and Falcons’ respective 2022-23 football seasons about to kick off this Saturday, we can all look forward to watching arguably the last “traditional” college athletes partake in the sports we love. Daniel S. Greene is an attorney based in Syracuse, New York. He has been published by The Sports Lawyers Journal and New York State Bar Association’s Entertainment, Arts and Sports Law Journal, and has guest lectured on various sports law topics at Syracuse University’s College of Law and School of Sport Management, as well as at Cazenovia College. [i] “N1L: One Year of Name, Image, and Likeness”, Opendorse, https://opendorse.com/wp-content/uploads/2022/07/N1L_Full_063022_3.pdf, page 7. [ii] “Army West Point’s All-American commitments ineligible for NIL”, Shanahan Report, https://tomshanahan.report/2022/06/army-west-pointss-all-americans-ineligible-for-nil/. [iii] “Senior military colleges” (e.g., The Citadel, Texas A&M, VMI) can partake in NIL. [iv] 5 CFR § 2635.702 found at https://www.law.cornell.edu/cfr/text/5/2635.702. [v] “NCAA Ushers Dog Groomers, Strippers Into Athlete Employee Case, Sportico, https://www.sportico.com/law/analysis/2022/ncaa-argues-against-college-athletes-as-employees-1234686299/. [vi] See endnote ii. [vii] “Military academy athletes can get waivers to delay service, go pro”, ESPN, https://www.espn.com/college-sports/story/_/id/28081051/military-academy-athletes-get-waivers-delay-service-go-pro.

During his Wednesday morning press conference, PGA Tour Commissioner Jay Monahan made it evident that the PGA Tour has zero intention of abandoning its 501(c)(6) tax-exempt status after he announced upcoming changes to the PGA Tour structure in response to the ever-growing LIV threat. “Never,” Monahan replied when asked if the PGA Tour contemplated abandoning the 501(c)(6) statues. Monahan went on to say, “The 501(c)6 status and the integrity of that and all it does for us, that’s always going to be a central fabric to who we are as an organization.” However, it may not be up to Monahan whether the PGA Tour ultimately retains its tax-exempt status when those changes begin to materialize. Like the majority of the world, you probably don’t know what a 501(c)(6) status is or why it matters. According to the Internal Revenue Code (IRC), “IRC 501(c)(6) provides for [tax] exemption of business leagues, chambers of commerce, real estate boards, boards of trade, and professional football leagues … which are not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.” This tax-exemption that accompanies the IRC 501(c)(6) status is pivotal for the PGA Tour. According to Rep. Greg Steube (R-Fla.), “the PGA Tour in 2019 took in $1.5 billion in revenues, profited more than $250 million from 2016 to 2019, and skirted about $80 million in federal corporate taxes.” Many professional sports leagues and/or organizations have claimed 501(c)(6) status at one point in time, most notably the NFL and MLB. But what are the requirements to qualify for 501(c)(6) status? To meet the requirements of IRC 501(c)(6) and Reg. 1.501(c)(6)-1, an organization must possess the following characteristics: It must be an association of persons having some common business Organization interest and its purpose must be to promote this common business interest; It must be a membership organization and have a meaningful extent of membership support; It must not be organized for profit; No part of its net earnings may inure to the benefit of any private shareholder or individual; Its activities must be directed to the improvement of business conditions of one or more lines of business (discussed under “The ‘Line of Business’ Requirement,” page 21) as distinguished from the performance of particular services for individual persons; Its primary activity does not consist of performing particular services for individual persons; and Its purpose must not be to engage in a regular business of a kind ordinarily carried on for profit, even if the business is operated on a cooperative basis or produces only sufficient income to be self-sustaining. These characteristics are critical as the IRC states that “an organization must possess all the above characteristics to qualify under IRC 501(c)(6).” It is also important to note that, “the characteristics are interrelated and an organization that fails to meet one characteristic will probably fail at least one of the other characteristics.” So, now the question turns back to the new plans announced Wednesday and whether those planned changes violate any of the necessary characteristics to qualify as a 501(c)(6) organization. While we could spend hours if not days analyzing every requirement individually, let’s set our focus on the characteristic that is most likely to come into question, characteristic number four, “No part of its net earnings may inure to the benefit of any private shareholder or individual;”. What is an inurement and when does that inurement affect the association’s exempt status? According to the IRC, an Inurement results from "an expenditure of organizational funds resulting in a benefit which is beyond the scope of the benefits which logically flow from the organization's performance of its exempt functions." G.C.M. 38559 (Nov. 8, 1980). The IRC provides examples of cases where the exemption was denied because of inurement of earnings such as, “an organization that used its funds to provide financial assistance and welfare benefits for the members.” (Rev. Rul. 67-251, 1967-2 C.B. 196). That example should be extremely troubling to the PGA Tour as one of the major factors in the PGA Tour’s ongoing battle with LIV Golf is the newfound demand for guaranteed earnings in professional golf, as shown in the recently proposed changes in the form of the “Earnings Assurance Program” that will guarantee a league minimum of $500,000 per player on tour. That Earnings Assurance Program may not seem like an issue at face value, but that view changes when you investigate the way the program will allegedly operate. Per the most recent proposal released by the PGA Tour, any PGA Tour member who fails to earn $500,000 on the course in a given year, the PGA Tour will split the difference to help the player reach the $500,000 in yearly earnings. (Example: Player A makes $250,000 in a year from tournament play, thus, PGA Tour pays the player the other $250,000) Bringing it back to the inurement of it all, the argument can definitely be made that this Earnings Assurance Program is a bona fide inurement as the PGA Tour would be utilizing reserve funds “to provide financial assistance and welfare benefits for the members,” because the sole purpose of the program is to provide financial assistance to players when they cannot make enough money during a given year. While lawyers and regulators can, and surely will, have heated arguments on whether the new PGA Tour changes constitute an inurement, and therefore, its 501(c)(6) should be denied, it should be noted that the over-arching theme of the proposed changes and the evolving PGA Tour-LIV Golf arms-race to secure top players may lead to unintended consequences like the PGA Tour ultimately losing its IRC 501(c)(6) tax-exemption status. As of now, the IRC has backed the PGA Tour’s 501(c)(6) status pointing to the furthering of a common interest in accord with Section 1.501(c)(6)-1 of the Income Tax Regulations which states, “a business league is an association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit.” Specifically, regarding the PGA Tour the IRC said, “the organization was formed to promote interest in a particular sport, to elevate the standards of the sport as a profession, and to sponsor and conduct tournaments for the encouragement of its members.” Many avid golfers, have associated this promotion of the sport of golf with the phrase “growing the game.” Whether you agree that the game is actually being grown, the PGA Tour will definitely lean on this theme going forward because the IRC stated that Section 1.501(c)(6)-1 of the Income Tax Regulations “provides that the activities of the organization should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons.” The “growing the game” theme can be seen in Monahan’s statements during his Wednesday press conference. “Every single member of the PGA TOUR is going to benefit from the changes that we're going to be making,” Monahan said. “The TOUR is going to continue to grow by having the best players in the world committed to it, by us continuing to lean into and invest in our ethos, which is the single-best competitive platform.” For now, Jay Monahan said that the Tour will try to create for-profit subsidiaries that could create additional value for the members. One possible for-profit subsidiary was announced immediately after Monahan’s press conference, the TGL, a primetime, tech-driven league concept that will debut in January 2024 led by Tiger Woods and Rory McIlroy. Only time will tell whether the PGA Tour and Jay Monahan can weather the brewing storm, but it surely never hurts to have Tiger Woods (the bona fide needle) on your side. (P.S. – was Phil right???) Benjamin Kaner is a 2L at New York Law School with a passion for sports and law. Benjamin is passionate about all sports but especially Golf, International Football, and Formula 1. Benjamin is interested in working with sports leagues and teams in the future. You can find Benjamin on Twitter and Instagram @BenKaner.

A teary-eyed Lionel Messi said goodbye to Barcelona on Sunday morning. Addressing a crowd largely made up of current and former teammates, Messi expressed his love for the club and his desire to stay. Messi who came to Barcelona as a 13 year old said goodbye to the club after 21 years. After years of speculation if Messi would ever leave the club he finally has. Why? It would appear Messi is the first high profile casualty of Financial Fair Play regulations. In the future, history may record today as a win for the financial health of the game. Financial Fair Play was introduced by the Union of European Football Associations (UEFA) in 2010. The premise was simple. Many European soccer clubs were in massive debt because they spent inordinate amounts of money on players, staff etc. in the hopes of winning competitions. In reality, most of them just ended up in massive debt. UEFA recognized this and introduced FFP as a safeguard to protect clubs and overall, the health of the game in Europe. The rules are quite clear: Depending on the amount of debt a club owes there is a limit on how much they can spend on transfers and/or player wages etc. Barcelona could be considered a case study for FFP. At one point Barcelona was the first club in any sport to surpass 1.4bn in annual revenues. Now the club reportedly has a gross debt of over 1.4bn. This has been largely due to poor management of transfers and the losses from Pandemic have only made things worse. If Barcelona had kept Messi on the salary from his last contract the club would have had salaries represent 110% of the club’s earnings. Even with Messi willing to take a 50% pay cut the club would still have been in breach of FFP regulations. This is because without Messi on their books the club would still hold wages that are 95% of club’s earnings way above the recommended 70% by La Liga. Javier Tebas, the La Liga Chief, had said a month ago that for Messi to stay, Barcelona would have to significantly lower their wage bill and no leniency would be shown. As it’s happened Barcelona were unable to do this, and Messi is gone. Financial Fair Play regulations have been mocked at times by the football community. A great example of this being when Manchester City’s ban from the Champions League for breaking FFP rules was overturned by the Court of Arbitration for Sport. According to reports at the time, many felt City was “getting away with it” or that FFP was a “joke”. Consequently, this Messi situation is a major win for FFP. As the Barcelona President put it “The club is above everything - even above the best player in the world.” This has shown that the FFP regulations can be taken seriously. If the FFP regulations can prevent Messi from staying at Barcelona, then every other club around Europe is on notice now. There is no way this was an easy decision for Barcelona or La Liga for that matter. Messi was the face of the franchise and the league. Will the financial losses from sponsors from losing Messi outweigh the losses from keeping him? We will find out soon enough but most likely not. La Liga will still remain one of the top 5 leagues in Europe. At the end of the day rules are rules. If rules are to be effective, they must be applied equally across the board. If European super clubs are to improve their debt without the formation of a super league, then more tough decisions lie ahead. Some may not like it, but Financial Fair Play is working exactly as intended. 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.

In 2010, International Management Group (IMG) and Reliance Industries Ltd. (RIL) signed a joint-venture agreement which leads them to secure the commercial rights for organizing an IPL-style football tournament with the help of the All India Football Federation (AIFF). The deal was close to Rs. 700/- crores. AIFF won the bidding to host FIFA U-17 World Cup in 2017. 21st October 2013 was the date on which IMG-Reliance, AIFF, and Star Sports formed an organization which is known as Football Sports Development (FSDL). In 2014, the I-League team Chennai City FC send the desist notice to Chennaiyin FC regarding the dispute of infringement of the trademark. However, things get sorted between both parties as they get settled their dispute. The credit shall be given to the legal team of Chennaiyin FC for successfully defended their dispute without an alarming huge litigation process. Therefore, the team owners need to protect their intangible assets like Trademark to avoid such disputes which can cost a huge amount of damages. In 2010, the All India Football Federation cancel their deal with ZEE Entertainment Enterprises regarding the telecast of their domestic league matches. After the inception of IMG Reliance with Star Sports as the promoter were to introduced a league in IPL style, the AIFF, later on, agreed to sell their telecast or broadcasting rights to Star Sports for their Durand Cup, Indian Super League, and other domestic leagues, excluding I-League. The Indian Super League is the fourth most viewed football league in the world. The total market value of the Indian Super League is EUR 45.38 million. In the 2019-20 season of ISL, Spanish player Javi Hernández was signed by ATK at Rs. 4.37/- crore [Rupees Four Crore Thirty-Seven Lakhs only] and declared as the most expensive signing have ever done in the history of the Indian Super League. Sunil Chettri is the most expensive Indian Football player signed in the ISL by the Bengaluru FC at the amount of Rs. 2.5/- crore [Rupees Two Crore Five Lakhs only]. In Indian Super League, various club owners don’t know how to operate the club, how to sign any player, what kind of players they needed, what kind of gameplay can be suited in the Indian Subcontinent, and what kind of style can be benefited to the Indian players. Therefore, many club owners come to a legal arrangement to acquire such knowledge. Delhi Dynamos, a former ISL club in Delhi was done their alliance with the Eredivisie elite club, Feyenoord Rotterdam. Atletico de Madrid was partnered and buy 25% shares in the Kolkata franchise which was formally known as Atletico de Kolkata. FC Pune City was also done their technical partnership with Italian-based Serie A club ACF Fiorentina. City Football Group, who owned London based Manchester City FC and partly owned New York City FC in the US, Melbourne City FC in Australia, Yokohama F. Marino in Japan, Montevideo City Torque in Uruguay, Spanish Club Girona, Sichuan Jiuniu in China, and Lommel SK in Belgium, acquired 65% stakes of Mumbai based football club which is Mumbai City FC. This deal was one of the biggest acquisitions done by any foreign football club in the Indian Super League. ATK has done its merge with Mohun Bagan FC. It is one of the oldest and historic clubs in India. After this merger, the historic club again rejuvenated and changed its name to ATK-Mohun Bagan FC. The two champions club already had a great history in terms of their participation in a different league. East Bengal FC which was previously owned by the Bengaluru-based Quess Corp. was not been able to operate this organization due to financial instability in the company. On Sep. 3, 2020, Shree Cement Limited which is a Kolkata-based company, agreed to buy majority shares of 76% of the club. After 3 weeks, the club transferred its sporting rights to Shree Cement East Bengal Foundation including its assets, liability, and intellectual property to the new company. The German powerhouse club, Borussia Dortmund did a partnership with Hyderabad FC for developing a youth development program system for Indian football. Such more investment needs to be done by big corporate houses. Barcelona FC has a very unique concept of ownership which is known as Club Member Ownership. There are 1,40,000 socis or members in Catalan who have the club owner membership. Such a concept can be adopted by Indian football clubs by inviting subscription of membership at an affordable rate. This can further become a norm to involve more fans by giving voting rates, exclusive season tickets, and many other perks. The Indian Football players were part of the European clubs like Bhaichung Bhutia who spent five years in English Club Bury, Sunil Chhetri played for Kansas City Wizard in the USA & also for Sporting CP (Portugal Club) in their reserve team and recently Gurpreet Singh Sandhu becomes the first Indian football player to play in UEFA Europa League. The ISL is heading in the right direction. The Indian Super League is valued around INR. 3.7 billion. However, we need to evolve our football structure if we want to qualify for the FIFA World Cup 2026. It is also the responsibility of Football Clubs and player’s sports agents/ lawyers to protect the interest of the clubs and players before it gets infringed or any legal dispute arises.

Kyrie Irving, having recently voiced his opinion on the latest version of his signature sneaker has apparently softened his stance. Through NBA Reporter, Shams Charania, Irving issued the following statement: “When you’re building something great, there sometimes comes a point when you need to recalibrate and refocus to ensure everyone involved is aligned. This is where the KAI11 brand and Nike are. It was unfair to put the blame on Nike or any one person. With that being said, we are diligently working, restructuring, and reimagining things together to make sure we get it right.” This is a full 180 from his previous stance, taking to Instagram to call the sneakers “trash” and lamenting that he hasn’t been involved with the design or creation of the shoes. To say that this sort of retraction was unexpected could not be more of a falsity, but I am surprised that Nike decided to play ball and not void the contract or otherwise initiate a lawsuit. In my last article, “Nike Won’t Get a Kick Out of Kyrie’s Instagram Comment,” I suggested that Irving’s initial statement could have constituted a breach of contract with Nike, specifically violating a clause that prevents the ambassador, in this case Irving, from making disparaging statements about the products or the brand. It stands to be confirmed if such a clause does indeed exist in his contract, but I would be incredibly surprised if it didn’t. It’s also not surprising that Irving walked his statement back because according to Forbes, as of 2019, he was making $11 million annually from Nike. If Nike had voided the contract because the comment was a breach, he would have lost out on that and that’s a lot of money to lose, especially because of an Instagram comment. Irving has long been known to be very vocal, speaking his mind on just about anything, from the planet being flat to the need to “cleanse the energy” in the Celtics arena and burning sage to do so. It is very possible that Nike really didn’t have too much of a problem with his statements, or rather it was almost expected to happen at some point since they contracted with a “Wild Card.” However, if anyone is in any sort of sponsorship, partnership, or otherwise influencer type deal, I would advise them to avoid publicly disparaging the company’s product, at least while the contract is still in effect. Let this be a lesson, there seems to be a happy ending for Irving, but I don’t think the average person would be quite as lucky. Anyone entering into any sort of agreement, especially a sponsorship, partnership, or otherwise influencer deal should be very aware of the terms of the agreement including potential remedies for a breach. Whenever you’re entering into any sort of agreement, in order to understand terms and remedies, I would also advise reaching out to an attorney for review, just to err on the side of caution. Stephon Burton is a rising 3L at Duquesne University School of Law in Pittsburgh, PA. He obtained his undergraduate degree from Washington & Jefferson College in 2019. He can be reached at burtons2@duq.edu and on twitter @stephonburton3, Instagram @stephonburton, and LinkedIn https://www.linkedin.com/in/stephon-burton-7abb06125/

We all remember Fyre Festival, AKA the Greatest Party That Never Happened (as Netflix described it). Although Fyre is now infamously known for defrauding investors out of $26 million dollars, its now-jailed founder and CEO, Billy McFarland, and rapper Ja Rule, did do something right; they masterminded an ingenious marketing campaign. Tickets for the 2017 music festival cost anywhere from $1,000 to as much as $12,000 – more if you bought a package deal. And yet the fraudulent festival sold out in just 48 hours. Why? Because its organizers utilized social media and online influencer culture like never before. Fyre flew films crews, models and digital influencers to a remote island in the Bahamas where they produced an epic promotional video. Those hired to be featured in the video included Kendall Jenner, Bella Hadid and Emily Ratajkowski, to name a few. The trio and another 250 influential individuals posted photos on-location to Instagram and Twitter to their millions of followers. Jenner was reportedly even paid $250,000 for a single Instagram post. (Photo Credit: The Fashion Law) With every photo and video, Fyre looked more and more like a luxury dream party and an exclusive, must-attend event. And the global online community bought into all the hype. Unfortunately for the scarred ticket holders – and the influencers – they ultimately discovered that Fyre Festival was more like the Hunger Games, and not Coachella like they thought. See Exhibit A below: the delicious dinner served. But the defunct festival proved one thing; traditional advertising was no longer going to cut it, and one sports media company had been taking note. Enter Barstool Sports. Barstool, led by Dave Portnoy, has created a global empire – drastically growing their fan base without the use of traditional marketing tactics. The brand has become so popular due to its free publicity and social media campaigns, which have created viral videos and stories spread across all media outlets. With the NCAA finally announcing that college athletes can earn compensation for the use of his or her name, image and likeness (NIL), Barstool identified yet another unconventional marketing opportunity: Barstool Athletics. Portnoy posted a video on Twitter, announcing Barstool Athletics and explained how the idea came to fruition. "I didn't give it a ton of thought, until a couple of hours ago when Adelaide Halverson, she is a volleyball player [from] Jacksonville State DM'd me. She was like 'Yo I want to be the first Barstool Athlete." He later went on to say, “Barstool Athletes Inc is the most barstool thing ever. No thought put into it. No clue what we were doing. And 2 hours later the most powerful student athlete organization in the country. Still no clue what’s happening. #fortheplayers #barstoolathlete.” And now, more than 140,000 athletes across the country have submitted applications to become “Barstool Athletes.” But is Barstool Athletics really #fortheplayers or is it just Barstool orchestrating one of largest marketing pushes we’ve ever seen? A few days ago, Barstool started sending out branded merchandise to thousands of collegiate athletes enrolled in their program. This is when it starts getting interesting… Many might not realize it but, depending on specific state law, an athlete may actually lose his or her eligibility by entering into a deal that is clearly not commensurate of the fair market value of the services provided (i.e. A $5 Million sponsorship for one social media post). As we learned from the Lululemon Team Program, a company can’t just send college athletes their products solely because they are college athletes. The athletes MUST do something in return. If they don’t, such athletes and the businesses are violating NCAA rules and potentially state law. It’s not Lululemon who told us that. It was the NCAA and Oklahoma. Everyone in the NIL world knows this, so Barstool must too. You'd hope... From the NCAA’s interim NIL policy: “While opening NIL activities to student-athletes, the policy leaves in place the commitment to avoid pay-for-play and improper inducements tied to choosing to attend a particular school. Those prohibitions would remain in effect.” So is putting "Barstool Athlete" in your bio enough? If you're looking at Lululemon-- they played it safe and appeared to ask their athletes to go one step further, actively posting in support about the company. See below: This combination appears to have been acceptable to the NCAA and affected schools. However, keep in mind that Lululemon has a mere fraction of the athletes that Barstool has. Assuming Barstool goes the Lululemon route, a logical option all things considered, it means that Barstool Athletes that receive any sort of product from Barstool could soon be asked to actively post about it across their social media channels. Otherwise, once again, the athlete could be viewed as directly engaging in pay-for-play and would be considered an NCAA and NIL violation. Portnoy is under a microscope now... he SHOULD play it safe... Interestingly, the Barstool Athlete application explicitly requires the individual “to add Barstool Athlete to [their] social media bios.” By participating in the program, the athlete is also agreeing that they will comply with all relevant laws and policies relating to NIL. This additional language is why Barstool may have to follow Lululemon's lead and ask for a further quid pro quo. Needless to say, simply calling yourself a "Barstool Athlete" might not be enough anymore. As Barstool continues to lean into the gambling side of their business, more questions arise as to whether they can even partner with schools. If schools weren't on red alert about this potential compliance issue, they sure are now. Late last night, Sports Attorney and Professor at University of Florida Law, Darren Heitner, announced that the first Division 1 program reportedly told athletes to cease all NIL involvement with Barstool Sports. The question that remains is whether Louisville’s is an outlier... or just the first domino. And, moreover, what - if anything - Barstool can do to fix this impending problem. While Barstool may not have an epic promotional video like Fyre Festival (yet), with thousands of college athletes already forced to push the Barstool brand on their social media, "Barstool Athlete," it certainly has garnered significant attention and engagement. This next step would reach an entirely new, Fyre, level. And this seems logical assuming Barstool has learned anything from Lululemon. While the chief marketing mastermind behind Fyre Festival is in prison, the team at Barstool Sports is working overtime, making waves, and making money. And Barstool stands to cash in huge if Portnoy can just convince athletes to promote the company in exchange for free merch. Stephanie is a recent graduate of New York Law School and a law clerk at Geragos & Geragos. You can find her on Twitter @SWeissenburger_ and Instagram @Steph_ExplainsItAll

Brian Ortega, the #2 ranked featherweight in the Ultimate Fighting Championship (UFC), recently joked that he would take a dive in his upcoming championship fight for a million dollars. When former two-time bantamweight champion T.J. Dillashaw pressed Ortega on his seriousness, Ortega said, “Bro, I’d get my ass beat for a million dollars.” Although Ortega was joking, it is not absurd to think that many fighters would take such an opportunity without hesitating. Last year, the UFC paid its’ fighters only 20% of 980 million dollars in revenue. In comparison, the competing mixed martial arts promotion Strikeforce paid its’ fighters 63% of revenue and Bellator paid theirs 44.7%. Although the UFC has such a large revenue flow, they continue to pay their fighters only a small fraction of what they are worth. On August 7, Ciryl Gane defeated fan favorite Derrick Lewis to win the interim heavyweight title. With this title, Gane is guaranteed to fight heavyweight champion Francis Ngannou for a chance to become the undisputed heavyweight champion. Despite participating in a fight of such high magnitude, both Gane and Lewis were only paid $32,000. Bellator paid its fighters significantly more money at their last big pay-per view. At Bellator’s last championship event, A.J. McKee submitted Patricio “Pitbull” Freire by guillotine choke to win the featherweight championship. This main event was the last fight in a grand prix tournament for a million dollars. McKee was paid $150,000 for participating in addition to the million-dollar bonus and Pitbull was paid $250,000. Even some fighters on the preliminary card were paid more than UFC fighters Gane and Lewis who were the main event on an important pay per view. For example, the fighters Kiefer Crosbie and Georgi Karakhanyan were paid $50,000 and $70,000 to show, respectively. Although either Kiefer or Karakhanyan could possibly become champions one day, it is shocking to see that they were both paid more than a man who actually won a belt, Ciryl Gane. With this in perspective, it becomes possible to believe that some UFC fighters would take a dive to win a million dollars. Brian Ortega is one of the best fighters in the world and even he was willing to talk about taking a dive. Joke or not. Moving forward, the MMA community and sport world’s eyes will be directed at the lawsuit pending against the UFC. This lawsuit was class certified in December 2020. In the lawsuit, a group of former fighters filed a complaint that states that the UFC used its monopoly and monopsony power to suppress fighter’s pay. If the fighters are successful, the UFC will have to change its business structure in a way that would guarantee that fighters would be paid more than they are now. In this world, the UFC would use more its revenue to pay fighters with contracts that reflect this. For now, the fighter’s attorneys will continue to fight for the pay they are owed.

In a deal that is first in its kind for a major European league, Spain’s La Liga has announced that it has agreed in principle to sell 10 percent of its business to private equity firm CVC Capital Partners for 2.7 billion euros (3.2 billion USD). It is said that around 90% of the funds will be channeled directly to the clubs. This should benefit both lower and high tier clubs in the league. The clubs still need to vote on it, but Barcelona and Real Madrid have already publicly rejected this deal. Both Barcelona and Real Madrid oppose this deal because it will hand over the rights for 50 years and CVC would come out on top with annual returns of over 20%. The proposed deal would give CVC Capital a 10% stake in La Liga. This is likely a deal that La Liga was forced to enter due to the money the Premier League has seen come in recently along with the demise of the Super League, which would’ve given the top three clubs in Spain a big cash boost. The Premier League has done an extremely good job in marketing the league and giving it a worldwide appeal, while La Liga has failed to do this even at a time where they had the two best players in the world in Messi and Ronaldo. This has hurt La Liga in the long run due to the Premier League clubs having much more money to sign players and attract top talent. La Liga realizes this and said in its statement, “It is an ambitious plan which will give La Liga and its clubs the resources to continue the transformation into a global digital entertainment company, strengthen the competition and transform the experience for fans.” This comes at a time where Spanish clubs have struggled financially due to the pandemic forcing teams to play in empty stadiums. The Premier League on the other hand, have had no problem splashing hundreds of millions on new signings, even with teams playing in empty stadiums. In what will be the biggest deal of the Premier League transfer window, Chelsea are on the verge of signing Belgian striker Romelu Lukaku for 115 million pounds (159 million USD) according to the Adam Schefter of soccer, Fabrizio Romano. This is just one of a few big deals that English clubs have been able to pull off due to how big the Premier League has become and the revenue they bring in via TV deals, sponsorships, etc. La Liga is different to the Premier League as they introduced somewhat of a salary cap back in 2013. This salary cap or “financial fair play” sets a maximum amount of money that a club can spend on players and coaching staff each season in relation to the amount of revenue the club has made throughout the season. Barcelona rejecting the deal means they lost one of the best players in the world in Lionel Messi. Messi agreed to take a 50% pay cut to stay with Barcelona, but this would still put Barcelona over the salary cap. Barcelona needed to reduce 100 million euros worth of wages from other players according to newly re-elected president Joan Laporta, but were unable to as players didn’t want to reduce their wages after the pandemic. Messi also could not take a huge pay cut to the extent of being paid a miniscule amount due to Spanish laws that require any new contract to be a minimum of 50% of previous wages. Had Barcelona accepted the deal with CVC, they may have been able to keep Messi. Instead, they rejected it in favor of a long-term approach and have lost arguably the biggest player in the club’s history. This will put a huge dent in La Liga’s appeal with them having lost one of the best players ever in Lionel Messi. La Liga has lost three of their biggest players in Messi, Raphaël Varane and Sergio Ramos all in the same summer while the Premier League is spending big money on top tier talents like Romelu Lukaku and Jadon Sancho. La Liga will need to hope that the rumors of Madrid going after Kylian Mbappé come true to give La Liga a new face of the league that will give the league more appeal after the departure of Messi.

Exactly one month into the NIL era of college athletics, On3—a college sports and recruiting website—published an article that examined the impact of NIL deals already transpiring for NCAA student-athletes. The concise report highlighted several key takeaways, but none more significant than the fact that “53 percent of all transactions were reported by athletes playing sports outside of football or men’s and women’s basketball.” This important percentage demonstrates a flaw in the argument of many NIL critics who claimed that NIL would only benefit Alabama’s starting QB, or Duke’s star point guard. This is not to say that Alabama’s Bryce Young will not generate substantial revenue. In fact, head coach Nick Saban recently admitted the quarterback has received “ungodly” offers of “almost seven figures”. But the headlines around massive NIL deals do not represent what the novel NIL era is all about. As impressive as the six-figure deals are, the new legal policy allows all NCAA student-athletes from all three divisions to compensate off their Name, Image and Likeness. On3’s report uses research from INFLCR, a brand-building company that has over 100,000 athlete users. Their findings confirmed that: 1,361 total transactions had taken place as of July 29 Transactions totaled $1.256 million, with an average transaction value of $923 10% of transactions came from lacrosse, swimming, or diving athletes—most commonly from lessons and summer camp transactions 12% of transactions came from non-Power 5 schools It’s also important to note that this is an early snapshot, not a full list of comprehensive data. INFLCR is not the only company that works with student-athletes to monetize their NIL, as brands like Opendorse aim to disrupt the emerging space as well. Major sports and entertainment agencies have also started to recruit athletes for NIL marketing purposes, such as CAA Football landing Bryce Young, and Wasserman recruiting Paige Bueckers (who could make over $1M while still at UConn). Although only 1% of registered athletes made NIL transactions through INFLCR’s platform in the first month, expect these numbers to rise as football and basketball season come into full effect. INFLCR’s CEO Jim Cavale believes “we’re going to see double (those figures) next month or the month after because it’s starting to ramp up.” Although the start to the NIL era may seem slow, the principle that all college athletes can now monetize their Name, Image and Likeness remains that paramount takeaway. As exciting as the news story about UMiami QB D’Eriq King signing one of the first NIL deals worth $20,000 was, let’s not forget about the Division II softball player who can now legally make money from hosting a summer camp, or the Division III wrestler who can now profit off 1-on-1 lessons at his small-town college. The policy enacted by the NCAA was long overdue, and it’s essential to remember there are over 450,000 college athletes out there—including ones at schools people have never heard of—that can now make money off their name, image and likeness. Brendan Duggan is a 1L at Brooklyn Law School. You can find him on Twitter @SidelineDuggs.

In a lawsuit filed on July 14, Myles Powell, a former Seton Hall star basketball player, alleged that the university, its head basketball coach, and a trainer downplayed a serious knee injury that, he claims, ultimately prevented him from getting drafted to the NBA. While he was initially told the injury was a bone bruise, it was eventually revealed to be a torn meniscus. Powell believes the defendants knew all along. Powell alleged four counts in a civil lawsuit: (1) Negligence against Tony Testa (trainer/medical expert) (2) Negligence against Head Coach Kevin Willard and Vicarious Liability against Seton Hall (3) Breach of Fiduciary Duty (4) Breach of Contract The defendants filed a brief in support of their motion to dismiss the lawsuit on August 6, 2021 in United States District Court in New Jersey. In the brief, they claim that all counts must fail as a matter of law. Specifically, the defendants argue that counts 1 and 2 (Negligence) must fail because of New Jersey’s Charitable Immunity Act. Said Act, according to the defendants, “shields educational institutions like Seton Hall and its employees and agents, from the type of liability alleged in the Complaint." Further, the defendants argue that count 3 (Breach of Fiduciary Duty) must be dismissed because of an additional safeguard ingrained in law. Per the brief, the defendants write, “[t]his count is patently baseless as New Jersey, as a matter of law, does not recognize a fiduciary duty or any fiduciary duties owed between a university and student, or a coach to a student athlete.” The defendants give examples of the types of relationships that may give rise to fiduciary duties in New Jersey: “trustee and beneficiary, guardian and ward, agent and principal, attorney and client, corporate director and shareholder, and the members of a partnership.” None of which, they claim, includes university and student, or coach and athlete. Finally, Seton Hall and its allegedly culpable agents argue that Powell’s final count, breach of contract, must fail. The contract in question is the National Letter of Intent that Powell signed, originally binding him to play basketball at the university. The defendants reason, “Plaintiff has failed to state a claim for breach of contract because Plaintiff has not identified any provision of the contract that was allegedly breached, and an examination of the contract reveals that it does not even remotely contain the contractual duties that Plaintiff alleges and claims existed and were breached.” “Plaintiff yet again attempts to couch legal conclusions as factual allegations.” For the foregoing reasons, Seton Hall, Kevin Willard, and Tony Testa request that their motion to dismiss the lawsuit be granted. The defendants spent little time attempting to refute Powell’s factual allegations. At this time, the defendants feel that their position should succeed as a matter of law; thus, responding to factual allegations is not yet necessary. The motion is scheduled to be heard September 7. If the judge denies the motion and gives Powell the right to conduct discovery, the defendants will begin to refute the facts as well. At this stage, it was not yet necessary. Last season, Powell played in the NBA G League for the Westchester Knicks. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is the President of Hofstra’s Sports and Entertainment Law Society. Additionally, he is a Law Clerk at Geragos & Geragos. He can be found on Twitter @Jmorr1.