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.

The structure of America’s sports leagues is an ironic reflection of the country’s ethos towards capital and labor. We love the free market until it’s the wrong cohort who can take full advantage. Athletes’ salaries are artificially capped, but team profit is unlimited. Revenues are split…but the dollars in that pool are open to interpretation (see NHL CBA §50.1(a)), and players can choose where they want to play…if they stick around long enough (see MLB CBA Article XX(B)(1). Players’ lack of control over their own destiny is astonishing. Depending on the sport, the free market does not exist before an athletes’ late twenties and a player’s fate is often left to the team’s development system (see The Edmonton Oilers). In May, I was at my buddy Joel’s place, watching his hometown Chelsea play for the FA cup. We spoke about the differences in player development and business structure of euro football and hockey and found great irony in football’s free market system contrasted against American sports’ egalitarian mandates. He then asked me an extremely law student question, “why is the draft legal?” Excellent question, Joel. At first glance any league’s draft ought to violate the Sherman Act, and that’s exactly what NFL player, Yazoo Smith, argued in 1968. He contended that if not for the NFL draft he could have negotiated a far more lucrative contract as an NFL rookie. The District Court agreed and held the NFL draft was a group boycott, and therefore, a per se violation of the Sherman Act. On appeal, the DC Circuit’s analysis differed but came to roughly the same conclusion. It held the draft was not a per se violation of the Sherman Act but still monopolistic under the rule of reason; where the court balances a provision’s anticompetitive effects against its pro-competitive benefits.[1] Justice Wilkey laid the hammer down in his ruling opinion: “the draft that has been challenged here is undeniably anticompetitive both in its purpose and in its effect”[2] and “the draft inescapably forces each seller of football serves to deal with one, and only one buyer, robbing the seller, as in any monopsonistic market, of any real bargaining power.”[3] So….why do the NFL, MLB, NBA, and NHL have drafts today? Collective bargaining. Months before Wilkey decided this case, the NFL’s lawyers brilliantly used two Supreme Court cases, Meat Cutters v. Jewel Tea & Connell Co. v. Plumbers and Steamfitters, to circumvent antitrust law under a “non-statutory labor exemption.” This theory binds parties of a collective bargaining agreement (“CBA”) to its provisions, whether they violate antitrust law or not. In the NFL’s case, it allowed the league to enforce the first-ever express entry-draft provision in its 1977 CBA and continued the NFLPA’s infinite ineptitude, which lasts to this very day.[4] PS. There are two awesome pieces on the subject: 1. Eriq Garder’s 2009 article “Rookie Abuse”: https://slate.com/culture/2009/04/in-1970-james-yazoo-smith-sued-the-nfl-to-shut-down-the-draft-what-happened-next.html 2. Joshua Kloke’s “The case for abolishing the NHL draft”: https://theathletic.com/2711295/2021/07/26/the-case-for-abolishing-the-nhl-draft-i-dont-think-its-that-crazy/?article_source=search&search_query=the%20case%20for%20abolish Sources: [1] Smith v. Pro Football, Inc., 593 F.2d 1173 (D.C. Cir. 1978) [2] Smith v. Pro Football, Inc., 593 F.2d 1173, 1185 (D.C. Cir. 1978) [3] Id. [4] https://slate.com/culture/2009/04/in-1970-james-yazoo-smith-sued-the-nfl-to-shut-down-the-draft-what-happened-next.html

As reported last week, now former Minnes Viking’s CB Jeff Gladney and 2020 1st Round pick has been indicted by a Texas Grand Jury of Felony Assault of a Familial Household member with their Breathing Impeded. Here is a copy of the indictment. Based on the information contained in the indictment, this is how I interpret the chain of events: It is alleged that the parties engaged in a verbal argument that turned physical when Mr. Gladney allegedly began to choke the victim (his romantic significant other) and that choking action allegedly caused the victim to lose the ability to breathe. Mr. Gladney then allegedly punched the victim numerous times and then allegedly shoved her into a car window. Grand Jury Process As seen above, Mr. Gladney has been formally charged by a grand jury. However, what does that actually mean? In the State of Texas, every felony must be indicted by a grand jury unless the Defendant chooses to waive the indictment. The grand jury gets to hear all evidence the prosecution has and that includes evidence that may be deemed inadmissible at trial such as hearsay. Thus, since Mr. Gladney was indicted, the grand jury heard all the evidence that the prosecution had at the moment and determined that there is sufficient evidence for the case to go forward. Building a Domestic Violence Case Those who has ever prosecuted a domestic violence case knows they are so difficult to get a conviction on. That is because often times the alleged victim is uncooperative. Currently, the alleged victim is cooperative. That being said, what could the prosecution base their case on if the victim decided later on in the legal process not to cooperate? 1. Independent Witnesses In domestic violence cases, true independent witnesses are few and far between. That being said, true independent witnesses are a godsend because they do not have a dog in the fight. Unless they have some relationship to one party, they tend to have high credibility with a jury. However, even independent witnesses do not want to get involved. Most will try every trick in the book to get out of testifying. However, if they are subpoena they do not have much of a choice but to cooperate. 2. 911 Call/Jail Calls Is there a 911 call(s)? If so, check it for excited utterances. You might even get lucky and even hear the Defendant at the other end of the call. My office once prosecuted a domestic violence case where the defendant was using a Taser on his girlfriend and you could actually hear the Taser on the other end of the 911 call zapping the victim. It was a very compelling piece of evidence. If he was arrested, did he make any calls from jail? I once obtained a conviction against a Defendant without the victim testifying in part because the Defendant called the victim after the incident to apologize what he did. He stated how sorry he was about 30-40x during the call. Another Defendant called the victim from jail and was confronted by the victim with, “Do you have any idea how hard you kicked me?” His response (clear as a bell), “Ain’t nothing I can about that now.” Needless to say, all three men were convicted or pled guilty and served jail time. 3. Forfeiture by Wrongdoing Texas Code of Criminal Procedure §38.49 states as follows: (a) A party to a criminal case who wrongfully procures the unavailability of a witness or prospective witness: (1) May not benefit from the wrongdoing by depriving the trier of fact of relevant evidence and testimony; and (2) Forfeits the party’s right to object to the admissibility of evidence or statements based on the unavailability of the witness as provided by this article through forfeiture by wrongdoing. Thus, if the victim in the case becomes uncooperative at the alleged hand of Jeff Gladney, then he cannot hide behind the Confrontation Clause and all previous inadmissible hearsay comes in. As previously reported by ESPN, Mr. Gladney attempted to bribe the victim and attempted to intimidate the victim into keeping quiet. If the victim eventually decides not to cooperate and a nexus was established between her failure to cooperate and the Defendant’s actions in procuring that unavailability, the prosecution could use everything that the victim said to law enforcement. This is important because one of the elements of this crime is that the victim’s breathing had to be impeded. If the victim doesn’t testify, Mr. Gladney would not be convicted of strangulation because there would not be any admissible testimony to that effect. That being said, using Forfeiture, law enforcement could testify that the victim stated to them that her breathing was impeded. Now you add in the evidence of the alleged attempt to silence the victim and you have the formula for a conviction as charged. Matthew F. Tympanick is an Associate Attorney at Wicker Smith in Sarasota, Florida. He is a graduate of University of Massachusetts School of Law where he served as a Public Interest Fellow and as a Staff Editor on UMass Law Review. He was previously a felony prosecutor in Sarasota, Florida. In over three years as a prosecutor, he prosecuted thousands of domestic violence cases. You can follow him on Twitter @Tympanick20.

Sports law is an ever-evolving and expanding subset of the law, and as the recent NCAA v. Alston ruling, NIL, and Super League controversy have shown, there are far more legal roles in sports than the typical pro agent. From arbitration and player unions to compliance and contracts, a law degree can open the door to a wide range of opportunities at both the collegiate and professional level of athletics. Many law schools around the country recognize the potential of sports law and offer some opportunities in the field, while some boast full-fledged sports law programs and concentrations. However, unlike business law and health law, U.S. News & World doesn’t offer lists detailing sports law programs; this makes the law school search difficult for a prospective 1L with aspirations for a career in sports. Enter the Sports Law Program Spotlight! Although this was originally intended to be a monthly series, we will be putting these spotlights on a more frequent basis due to the popular demand by both prospective law students and law schools themselves. We will highlight a law school that offers strong opportunities in the field of sports law. These opportunities include, but are not limited to: ● a sports-centric curriculum; ● sports law certifications; ● unique legal internship opportunities within the sports market; ● and sports law journals. The focus of this Sports Law Program Spotlight is… University of Florida Levin College of Law. When it comes to athletics, there are very few schools who can match the success of the Florida Gators. With 42 total national championships and 21 since the 2008-2009 academic year, it’s obvious that sports are a big deal in Gainesville. However, the University has high academic prestige as well and its Levin College of Law stands as one of the best law schools in the nation. Ranked 21st overall and 6th among public institutions by US News & World, there’s no wonder why the interest among prospective law students is extremely high. But to learn more about the intersection between sports and the law at Levin, I was honored to speak with Hunter Bedard, a 2L and fellow Conduct Detrimental contributor. Here is an overview of what the school offers to students with passion and interest in the field of sports law. Not all law schools have a formal sports law program, and Florida’s Levin College of law falls into that category. However, that doesn’t mean that prospective law students interested in sports shouldn’t consider the school. In fact, Hunter originally was averse to attending Levin because it didn’t have a formal program. But throughout the application process, he found that there were valuable opportunities within the school to develop as a future sports lawyer. The two biggest offerings that should interest sports minded applicants are the Florida Entertainment and Sports Law Review and the Entertainment and Sports Law Society. Florida Entertainment and Sports Law Review (FESLR) In the Levin College of Law, there were previously only four law journals offered to students. However, a fifth journal was recently added, much to the liking of those interested in sports law. The Florida Entertainment and Sports Law Review (FESLR) is a student-run, legal journal focused on the practical application of the law in the sports and entertainment industries. The journal is structured where professors and practitioners with expertise in the field write articles while students like Hunter act as staff editors. This gives law students firsthand experience to scholarship and preeminent legal writing pertaining to sports law. As one of the 17 inaugural staff editors of the new FESLR, Hunter and his peers essentially act as gatekeepers when it comes to editing the work that is published for the review. Entertainment and Sports Law Society (EASLS) While FESLR is just getting started, the Entertainment and Sports Law Society at the Levin College of Law has been around for a while. Founded by prominent sports attorney, Darren Heitner, EASLS was established for the purpose of educating students of legal opportunities in the entertainment and sports business world, informing students about current issues in entertainment and sports law, and networking with other similar law schools and professional organizations across the nation. Hoping to follow in Heitner’s footsteps, Hunter serves as the current president of the society. The biggest event put on by EASLS is the annual Entertainment and Sports Law Symposium, where a collection of experienced professionals from the field of sports law come to Gainesville to share insights and advice. Overall, EASLS brings like-minded law students together to discuss and learn about the dynamic issues involved with the intersection between sports and the law. In summary, the University of Florida Levin College of Law offers a great experience for prospective law students interested in sports law. The overall educational experience prepares students for a career in sports. In terms of curriculum, the school does offer a “roadmap” of suggested courses to take for students interested in entertainment and sports law. The roadmap consists of courses that easily could overlap with the sports world like IP, antitrust, transactions, negotiation, etc. There is even a course dedicated to sports law issues and a sports law seminar as well. To be successful, every lawyer needs a well-rounded educational experience that can be applied to any area of law. The newly added Florida Entertainment and Sports Law Review to go along with the Florida Entertainment and Sports Law Society provide ample opportunities to get involved. So, while at the moment there might not be an offering of a sports centered curriculum model or sports law certificate, the Levin College of Law still is a great place for future sports lawyers to learn. Just ask Darren Heitner, he seems to be doing well :)

Well, those few years of celebrations were fun, weren’t they? In an effort to crack down on the issue of taunting (who knew there was an issue?), the NFL released a series of new rules today, along with a video showing certain actions that will now be penalties this season. In a statement from the league in the announcement video, the league claims that, “[W]e saw an increase in actions that clearly are not within the spirit and intent of this rule and not representative of the respect to opponents and others on the field.” As a result, the league has instructed to crack down and enforce these taunting rules strictly. The Fun Police are back at it again, levying heavy penalties should a player be called for such conduct. Now, two taunting penalties committed by one player will result in an automatic disqualification. In addition to this heavy penalty for repeat offenders, the taunting player may be fined and/or suspended depending on the severity of the actions. In the press release, the NFL provides some examples of what exactly constitutes a “taunting act.” Here, these acts consist of “using abusive, threatening, or insulting language or gestures to opponents, teammates, officials, or representatives of the League” and “using baiting or taunting acts or words that may engender ill will between teams.” Taunting is under the rules of unsportsmanlike conduct, which is “any act which is contrary to the generally understood principles of sportsmanship.” Who knew that the League would be so focused on ill will between the teams in a sport where the players are actively trying to inflict punishment on the other team? One thing that comes to mind here is how much celebrations have become part of the League’s culture, so much so that the NFL social media accounts typically release videos for Best Celebrations during the season. For reference, there were only TEN taunting penalties called all last season. In a league where spectators still jokingly wonder what exactly a catch is (ask Dez Bryant and Calvin Johnson about the NFL’s wonderful interpretation of that rule), the immediate concern that comes to mind is how exactly will this be enforced? The NFL has a well-known reputation of botching rulings with reference to these ambiguous rules. With the catch rule in mind, one can’t help but think that this rule will more affect the outcome of games, rather than merely being a guidelines for how the game should be played. Especially in the case of an all-star caliber player expressing emotion – a 15 yard penalty or ejection could seriously alter the trajectory of a game. It seems once again that the League can’t seem to get out of their own way. How long will this strict interpretation last? Will the NFL listen to their fans when the vast majority approve of such celebrations and taunting? It will be interesting to see whether the NFL digs their heels in, or whether they decide to pull back. Daniel A. Goldstein is a practicing attorney at Carnes Warwick PLLC in Raleigh, North Carolina. He is a graduate of Campbell University's School of Law, and obtained his undergraduate degree from the University of North Carolina, at Chapel Hill. He has written on sports law-related issues for the North Carolina Bar Association's Intellectual Property blog. You can follow him on Twitter @dgunc3 and on Instagram @dangoldstein3.

Sports activities are considered to be one of the major driving forces for economic development and are considered to be an essential sector in various economies. The sports sector is famous for the mega sporting events that require proper dedicated sports infrastructure, along with training facilities and sports complexes. These sports events and infrastructure are for the amusements of fans who have been flocking to these sports stadiums to enjoy their favourite sports and get a glimpse of their role models since time immemorial. However, the outbreak of SARS-CoV-2(covid pandemic/ pandemic) and the subsequent lockdown brought this physical fan engagement at sports infrastructure to a grinding halt. Pandemic and Sports Infrastructure The interruption in the practice of spectatorship at stadiums, due to the pandemic, became a part of daily life in March 2020 and has raised various invasive protocols concerning organizing the sports events. Although various sports leagues at both international and domestic level have resumed, there has been a considerable modification in the way sports infrastructure were utilized and involved. The participation of fans, as well as other stakeholders, has changed since the spread of the pandemic leaving sports arenas empty across the world. Amid all this, the biggest burden has been over the state and local government as well as self-funded private bodies, which have been making efforts to fund their share of sports-related infrastructure expenditures, at a time where there has been zero income. The absence of income due to the pandemic jeopardizes the ability of the government body as well as the private bodies involved, to effectively manage their share of sports facility construction and maintenance charges. Sports Infrastructure as Economic Hubs Sports being a highly commercial activity in nature attract various associated forms of businesses including hotels, bars, entertainment parks, restaurants, and other recreational centres which experience a high rate of footfall on game days/nights. However, the loss of footfall on game days/nights at these sports complexes means that these associated businesses face decreases sales activity thereby affecting a peripheral source of income. Not only does this affect the financial status of these sports infrastructures but the economic repercussions result in job losses as well as local sales tax revenues, thereby adding to the financial distress of the concerned bodies. Implications of the Pandemic on Sports Finance The Covid-19 Pandemic has brought around multiple financial challenges for the government and sports regulatory bodies that are searching for efficient and effective ways to effectively manage the debt or recover the investment associated with the sports infrastructure projects. As the situation deteriorates, these sports infrastructures continue to challenge the financial position and stability of revenue for these infrastructures. The concerned bodies have either already started or will soon start navigating revenue sources to solve the financing issues to ensure proper operations and maintenance of the stadiums. One of the common sources of funding for sports facilities come from game-day collections, which has been absent due to fan-less environments at stadium created by the pandemic. In addition, the lack of fans can create a ‘spill over effect’ throughout the region as local businesses, such as restaurants, and hotels, struggle without the presence of game-day-related foot traffic, leading to a decline in sales revenues. It has been noticed that in the pandemic, the professional sports franchises have been relatively less affected than these sports facilities. Although in-stadium attendance has been absent, the franchises have not been affected as they have got their share from the broadcast deals, individual team sponsorships deal, online sale of merchandises, brand endorsements as well as league title sponsorship deals. Recommendations In the short run, a remedy would be to lend the mega sports infrastructures to the health department to be used as make-shift hospitals or large-scale vaccination centres. Large hospital chains can take the stadium space for rent. This would not only speed up and improve the vaccination as well as a treatment facility, while generating income for the government or the sports regulatory body but will also help in improving the Covid-19 situations thereby assisting in the fast resolution of this pandemic, and thus bringing back fans in these infrastructures. The majority of the existing sports infrastructures can be categorized to be dead assets (at least temporarily) and the best way to earn out of any dead asset is to sell it or monetize it. Fortunately, the Indian government has understood this and in a chance to increase revenue from dilapidated sporting venues, the government in its 2021-22 Union Budget announced that it will monetize its stadiums. Stadiums would be leased to the private sector by way of an operational and maintenance contract. Although the same question of the absence of fans and sports events arises, it needs to be understood that once these stadiums are monetized and handed over to companies (in this case mostly event or premises management companies), these companies can organize corporate events or generate revenue using their business model. Moreover, stadiums can help in ensuring social distancing in events where the physical presence of a large number is required. This should not be a one-time system of monetizing but should be taken seriously by the government and encourage more big corporate bodies to participate in monetizing these mega sports infrastructures so that even in the off-season, the stadiums do not fail to generate income and thereafter build a contingent fund. India can also adopt practices followed in western countries especially the USA, where the lottery system, public funding through issuing of bonds, tourist taxes as well as revenue bonds have proven to be a great revenue source, provided the policy and public welfare allow these to prevail. Sports have been a core element of our social life but unfortunately, sports facilities are not found to be one of the priorities while thinking of public infrastructure, even though the costs and impacts those sports have on the community are substantial from a social and economic perspective. Adding to this the repercussions of the pandemic will result in long-lasting impacts. Covid-19 pandemic has caused a disruption which has never earlier been experienced by our generation and might continue to repercussion on the social and economic scenario.It is high time that a policy change is brought in place to deal with these issues and not wait till situations go out of hand.

As reported by TMZ today, Trevor Bauer is suggesting that his alleged accuser edited her injury photographs and also claimed that she had hoped for a major cash settlement from the star. As stated by Bauer’s attorneys “Bauer’s accuser has taken a proceeding designed to prevent future acts of “domestic violence” and turned it into a tool for attracting media attention and attempting to end Bauer’s baseball career.” That is a pretty valid opinion but only partially factually accurate. As stated in my previous post, under California’s Domestic Violence Prevention Act, a Court may issue a restraining order to prevent domestic violence or abuse if the party seeking the order “shows, to the satisfaction of the Court, reasonable proof of a past act or acts of abuse.” “Abuse includes intentionally or recklessly causing or attempting to cause bodily injury to, attacking, striking, stalking, threatening, harassing, making annoying telephone calls to, or disturbing the peace of the other party.” Thus, the hearing set to begin on August 16, 2021, using the plain language of the statute, is to establish whether past abuse has occurred with the intent to prevent future abuse. This all begs the question, why are Bauer’s attorneys bringing the heat today? From a logical tactical standpoint, today is Thursday. It is well-known in media circles that Thursday is the night of the week where people actually watch TV. By filing these documents now and TMZ acquiring them, they have a real opportunity to be picked up by, at a minimum, by local news but also the national news media for tonight’s evening and late night news. Additionally, with the permanent restraining order hearing set to commence on Monday, this story will likely also be reported in the Sunday newspapers as well as any online newsletters with a sports focus. Additionally, why else could Bauer pushing back this hard publicly? The reason could be that it might give the individuals running the independent criminal investigation pause. By essentially stating that the victim is exaggerating evidence and looking for a windfall, Bauer is could be trying to destroy her credibility for the Los Angeles County District Attorney’s Office. When preparing to file charges and go to trial on a domestic violence case, the victim’s credibility will always be at issue. A victim who (whether deservedly or not) has the ability to be pinned as greedy and/or vindictive by a jury is a very unsympathetic victim. The result of that is the jury may seriously questions anything the victim has to say (however how plausible and likely it may be). If the trial is only the victim’s word vs the Defendant’s, then that is a very steep hill to climb to get a conviction with the victim having real credibility issues. I once had a domestic battery trial where my victim admitted on the stand of conducting a serious of crimes with the Defendant (A mistrial was not granted because it was the Defendant’s attorney who actually asked the question and asked the question in such a way that they opened the door for that exact type of response). The Defendant’s attorney hurt the credibility of the Defendant but hurt my victim’s credibility more and he was later acquitted. It is entirely possible that is what Bauer’s attorneys are doing here. That is because even if Mr. Bauer succeeds in removing the temporary restraining order, the MLB isn’t going to just going to remove him from paid administrative leave. The MLB is still likely to wait until the Pasadena Police Department finishes its investigation and decides whether to arrest Mr. Bauer or hand the case over the Los Angeles County District Attorney’s Office for their review. The MLB needs to cover of a department with more information than they do deciding whether Mr. Bauer faces criminal charges. From there, the MLB is able to decide what the next step is. Matthew F. Tympanick is an Associate Attorney at Wicker Smith in Sarasota, Florida. He is a graduate of University of Massachusetts School of Law where he served as a Public Interest Fellow and as a Staff Editor on UMass Law Review. He was previously a felony prosecutor in Sarasota, Florida. In over three years as a prosecutor, he prosecuted thousands of domestic violence cases. You can follow him on Twitter @Tympanick20.

At this point, it almost seems like a joke - Assistant Coach Becky Hammon still has not been offered an elusive Head Coach position in the NBA. For several years, Hammon has been recognized as the assistant coach standing next to San Antonio Spurs’ Head Coach, Gregg Popovich. She even stepped in as the first acting female head coach for a game when Pop was ejected in a game in late 2020. Hammon spent 15 years playing professional basketball in the WNBA, with the New York Liberty and the San Antonio Silver Stars. She certainly has the coaching skills, basketball legacy, popularity, and admiration to stack her resume. Pop and the Spurs players respect her immensely. After her temporary role as Head Coach, DeMar DeRozan said “any player who knows the history of women’s basketball knows what she meant to the sport. She’s one of us. When she speaks, we are all ears.” The players may listen when she speaks but the NBA’s top executives and hiring directors certainly are not. Hammon has interviewed for several head coach positions but still has not received the offer that would change NBA history. In a recent interview, Hammon said she does not want to be hired “just to check a box” because she is a woman, rather she’d prefer to be hired because of her skill set and accomplishments. That’s understandable. But here’s the thing -- she probably hasn’t been hired yet because of her gender. Hammon certainly has those accomplishments, between her own playing time and her coaching position with a relatively successful professional team. It’s not just Becky Hammon either; it’s Dawn Staley from the University of South Carolina, it’s from Kara Lawson from the Celtics. College coaches are often tapped for head coaching jobs in the NFL and no one blinks an eye, despite not being able to replicate the same success (i.e., Nick Saban, Greg Schiano, potentially Urban Meyer, etc.). Then there’s those who are hired as head coaches who might have just gotten the role because of their name (ahem, Jason Kidd). I was a Jason Kidd fan when I was a kid (and when the Nets played in New Jersey) but he retired in June 2013 and less than two weeks later he was named as head coach of the Brooklyn Nets - with no time spent grinding away as an assistant coach. People often make comments like “well why does a woman need to coach a men’s team?” - but no one questions when men have found success as WNBA head coaches - 50 percent of all current WNBA coaches are men. Double standard much? The NBA shouldn’t hire Hammon or Staley or Lawson or any other woman to avoid a potential discriminatory label or lawsuit. That would be incredibly disrespectful, on top of the lack of consideration the league has already shown. Instead, they - and other women leaders in the NBA - should be promoted and hired because they deserve to be. People often say they can’t wait for the day that stories like this aren’t in the news anymore, where women are breaking barriers for simply excelling at their careers and it’s noteworthy. Until that actually happens, the sports world needs to get their act together so that coaches like Becky Hammon get their chance to leave their mark on the NBA. Sources: https://nba.nbcsports.com/2020/12/31/nba-players-react-to-becky-hammon-getting-head-coaching-chance/ https://www.espn.com/nba/story/_/id/32004024/san-antonio-spurs-assistant-becky-hammon-want-nba-head-coaching-job-check-box Photo Credit: https://news.abs-cbn.com/sports/06/13/21/nba-becky-hammon-dawn-staley-among-portlands-coaching-candidates-report Amanda Malool is a third-year law student at Rutgers Law School in Newark, New Jersey. She is the Vice President of Rutgers’ Entertainment, Arts & Sports Law Society. Additionally, she is a Summer Associate at Fernandez Garcia Law. She can be found on Twitter @AmandaMalool.

The Cleveland Indians, via Tom Hanks narration, recently announced their name change to the Cleveland Guardians. However, reaction to the name was rather mixed and the team shortly found itself in another naming controversy. This article will provide a general overview of the situation and the relevant trademark law involved. The Many Names of Cleveland Baseball Between 1869 and 1889, the team in Cleveland was known as the Blue Stockings and the Forest Citys. Before 1915, other names were used, such as the Spiders, Naps, Bronchos, Buckeyes, and Babes. In 1915, they became the Indians which has lasted more than a century [1]. Now, mired in the controversy of employing a name depicting Native Americans, the team finally decided to change the name. The name Guardians comes from a set of 4 sandstone pillars, each containing 2 carved out “Guardians” on the Hope Memorial Bridge, just outside of Progressive Field in Cleveland. The Guardians represent “the spirit of transportation,” [2] a fitting ode to Cleveland’s Rust Belt persona. Fitting, but perhaps not original. A Cleveland Controversy It quickly became apparent that the Cleveland Guardians already exist, as a Cleveland Men’s roller derby team operating since at least 2013. This is the kind of issue that trademark law seeks to prevent, or at the very least provide a conclusory legal remedy. A brief trademark law review is thus warranted. Trademark Basics Trademarks are source identifiers, consisting of a word, phrase, name, symbol, design, or any such combination. Trademark ownership grants certain protections. Those protections emanate from 3 major sources: state common law, state statutory law, and federal statutory law. Use of an unregistered mark in commerce provides some limited protections. Such protectionary parameters flow from the judicial decisions of the relevant state. Generally, the protections are geographically limited and confined only to where the mark is being used in commerce. State statutory laws are legislatively adopted laws that provide additional and formal protections for trademarks. Generally, these additional protections extend throughout that state. The cleanup hitter of trademark law is the Lanham Trademark Act [3], which is the basis for federal trademark protection. Successful trademark registration with the United States Patent and Trademark Office (USPTO) affords national protection of the mark in connection with commerce for the specific classes of goods and/or services identified. First to Use Doctrine & Filings Brand protection generally requires federal registration, but the U.S. is still a “first to use” jurisdiction. Meaning, first use of the mark determines superior rights. The rub, unregistered marks or state registered marks are confined geographically, even if used before a similar mark which ultimately registers with the USPTO. The first user generally can continue use of the mark, though use is limited to its existing geographic usage while the federally registered mark has superior rights everywhere else. Review of Ohio and USPTO records reveals that the roller derby Cleveland Guardians have been using the name since 2013 and own a trade name registration in Ohio on that name. The Present Dilemma It is possible for similar unregistered, state registered, and federally registered marks on similar goods and/or services to co-exist, subject to geographical limitations. Both teams have now filed USPTO trademark applications, the baseball team filing first. However, if the Cleveland baseball team is successful in its USPTO application, it is likely that the roller derby team would still have first use rights to the name in Cleveland or perhaps all of Ohio. Therein lies the dilemma. If the baseball team’s registration is successful, yet they cannot use the name in Ohio, what is the point? Clearance Searches & Strategy Before a business decides on a name or applies for a trademark, clearance searches serve to mitigate potential issues. It is likely the baseball team conducted a search and discovered the roller derby team’s use. The baseball team’s strategy in moving forward likely comes down to two points: (a) the roller derby team may not have been using their mark in connection with commerce and/or (b) the team is relying on asymmetric legal warfare. A realties of the legal system is that such controversies are time, energy, and resource intensive. The baseball team may be relying on the belief that the roller derby just does not have the resources to fight. In fact, as Stephanie Weissenburger points out, this near exact situation has occurred on two recent occasions, to roller derby teams no less [4]. The Road Ahead The USPTO will now conduct a review of the applications. If the baseball team’s mark moves to the “publish for opposition” phase, it appears likely that the roller derby team will challenge the application. There does exist contractual arrangements where the parties can outline co-use of the mark and these agreements can be submitted to the USPTO to prevent a likelihood of confusion or rejection of the applications. However, the USPTO is not bound to these agreements, and none appear to be in place yet. Given the Covid-19 pandemic, USPTO processing times have slowed to almost 2 years. Meaning, it may be some time before we have a resolution on this matter. For now, Cleveland baseball fans can welcome the Cleveland Guardians, trademark pending, for the 2022 season. For a deeper dive into this subject, please navigate to: https://www.mareaslegalcounsel.com/insights/cleveland-controversy Matthew D. Batista, Esq. is the managing attorney of Mareas Legal Counsel, APC in San Diego, CA. He has extensive experience working at the intersection of sports/entertainment and intellectual property law. The firm can be found at mareaslegalcounsel.com and @mareaslegalcounselapc on Instagram. References: [1] https://www.si.com/mlb/2021/07/23/cleveland-guardians-name-change-decision-explained [2] Id. [3] 15 U.S.C. §§1051 et seq. [4] https://www.conductdetrimental.com/post/exclusive-roller-derby-exec-explains-baseball-guardians-critical-oversight

Financial Fair Play (FFP) was agreed in principle by the governing body of Europe, UEFA, in 2009 to prevent clubs from spending more than they earn to try to avoid long-term financial problems. The FFP rules stated that clubs must break even over a three-year period. These regulations provided sanctions for clubs who overspent with fines and potential disqualification from European competitions. For bigger clubs with wealthy owners, it was a check on their spending so they couldn’t spend a lot of money without consideration of revenue. At the same time, this benefitted the bigger clubs because as they made more revenue, they could spend more than the smaller clubs who made less in revenue. Due to the pandemic, UEFA allowed for owners to inject more money into their clubs if they can prove the losses were caused by the pandemic. This is where UEFA has come in and is now looking to revamp FFP. UEFA will set out proposals to implement a salary cap and luxury tax to replace the current FFP system by next year akin to the NFL and NBA. Under this new system, clubs in European competition would be limited to spending a fixed percentage of their revenue on salaries. Any clubs found breaching the cap would have to pay a luxury tax, in which the overspend would be put in a pot to be redistributed. People within the sport believe that this system would be more transparent than the original FFP rules put in place, but only time will tell whether or not that is the case. When FFP was first announced, many thought this would be a positive for the sport. 12 years later, many now claim that FFP is ineffective and even non-existent. Big clubs still continued to spend big money as we saw moves like Gareth Bale to Madrid for 101 million euros (119 million USD) in 2013 or the biggest transfer ever when Neymar moved to Paris Saint-Germain in 2017 for 222 million euros (261 million USD). To say that FFP didn’t do too much to limit the spending of clubs is an understatement. As we saw more money get poured into the sport and richer owners like Nasser Al-Khelaifi of PSG start to take over clubs, FFP didn’t do much to limit their spending. Manchester City were even caught by UEFA for inflating their sponsorship deals to try to skirt the FFP rules to be able to spend more money. They were originally handed a two-year ban from European competitions along with a 30 million euro fine, but this was later overturned by the Court of Arbitration for Sport (CAS). This made FFP seem like it was non-existent to fans and other clubs. After this summer’s transfer window for PSG where they brought in the likes of Lionel Messi and Sergio Ramos, fans and media questioned how they were able to make all of their signings under FFP. Lille centerback Jose Fonte chimed in about PSG’s spending, "I just want to understand the Financial Fair Play in France. Every single club is restricting their spending. They can’t buy a lot, they can’t get players on big wages but then PSG comes and it looks like there’s no law." Fonte is speaking for many fans and other clubs who are seeing clubs like PSG and Manchester City seemingly spend all of the money they want without seemingly having to worry about FFP. Hopefully this is a step in the right direction to try to bring more balance to the sport when it comes to spending and to give smaller clubs a better opportunity to compete within their domestic leagues and European competitions.

Something is lurking off the coast of Seattle and yes you will need a bigger boat. The Seattle Kraken are officially the 32nd team of the NHL. The Kraken will be members of the Pacific Division in the Western Conference. However, this is not the first time that Seattle has had a professional hockey team playing for the Stanley Cup. The Seattle Metropolitans played in the Pacific Coast Hockey Association from 1915 to 1924. The Metropolitans made seven postseason appearances in their nine seasons, playing for the Stanley Cup. The Metropolitans won the Stanley Cup in 1917. Ultimately the team folded in 1924 when a replacement arena could not be found. In the past five years the NHL has welcomed two teams through expansion, the Vegas Golden Knights were added in 2017. The NHL is one of the few leagues that have recently expanded. The MLB added their last team in 1995, the NFL added theirs in 2002 and the NBA added theirs in 2004. The NHL expansion process can be hard to understand because of all the moving parts. Don’t worry because this article will break down the process from start to finish. For a team to be added to the NHL, the partner(s) of the proposed team have to go in front of the NHL Board of Governors and ask for approval. The Board of Governors consists of one appointee and two alternatives from each team, the appointees are usually the owner of the club. In December 2018, the Board of Governors approved a proposal by the Seattle Hockey Partners to grant an expansion franchise to the city of Seattle. The Seattle Hockey Partners consists of David Bonderman, Jerry Bruckheimer and Tod Leiweke. Minority owners include Chris Ackerley, Ted Ackerley, Jay Deutsch, Mitch Garber, Adrian Hanauer, Andy Jassy, Len Potter, David Wright, and Jeff Wright. After the team was approved the process of picking a name and establishing the franchise begins. On July 23, 2020, the franchise announced their name, the Seattle Kraken. The franchise also debuted their team colors, branding, and home jersey. The last step to officially becoming a team is paying the final installment of the expansion fee. On April 30, 2021, the Kraken paid the final installment of the $650 million expansion fee, officially making them the 32nd team of the NHL. With the Kraken becoming an official team, it was time to create a roster of players. The Kraken expansion draft was held on July 21 and followed the same rules as the Vegas Golden Knights expansion draft in 2017. The Kraken were allowed to select one player from each team excluding the Golden Knights. They could select a total of 30 players: 14 forwards, 9 defensemen and 3 goalies. Additionally, the Kraken has to choose a minimum of 20 players under contract for the 2021-22 regular season. The Kraken also cannot buy out players chosen in the expansion draft earlier than the summer following its first season. NHL teams had two options of protecting players from the draft. The first option was protecting seven forwards, three defensemen and one goalie. Or teams could protect eight skaters (forwards/defensemen) and one goalie. Now all the Kraken must do is get ready for their inaugural season. The Kraken will play their first game on October 12, 2021, against the Vegas Golden Knights and their first home game on October 23, 2021, against the Vancouver Canucks. Will the Kraken be like the Golden Knights and make it to the Stanley Cup Final in their first season? Only time will tell, good luck to the Kraken and welcome to the NHL. Jessica Shaw is the Secretary of the New York Law School Sports Law Society. She can be reached on Twitter @JessicaShaw22.