As the fall semester approaches for colleges across the country, an onslaught of litigation has materialized involving university vaccine mandates. Many colleges have implemented vaccination mandates for their students and faculty to return to campus starting in the fall. These policies have been met with legal challenges by unwilling students and faculty to receive the shot. Indiana University was one of the institutions that decided to require a strict vaccination requirement for students and faculty on campus this fall. Medical and religious exemptions are available, but the Indiana University website has a selective list of criteria that will be considered for an exemption.[1] Notably, natural immunity or previous infection from COVID-19 will not be considered as criteria for a medical exemption. Also, the school policy doesn’t mention a distinction between university athletes and the rest of the student body when it comes to adhering to the policy. Eight students filed a complaint against Indiana University in the Northern District of Indiana seeking a preliminary injunction to thwart the university’s policy, citing various 14th Amendment violations, and claiming a right to refuse medical treatment.[2] The complaint cites Roe v. Wade in stating that a governmental entity (or a public university) must meet a heightened standard of review when infringing with a right to bodily integrity. The students claim that with the available conflicting evidence about the effectiveness of the vaccine, this heightened standard is not met by the University to require vaccines. On July 18, 2021 a federal judge denied the plaintiff’s request for a preliminary injunction ruling that the Fourteenth Amendment permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty, and staff.[3] On appeal, the 7th Circuit upheld.[4] In a concise four page opinion, the 7th Circuit stated that following precedent allows Indiana University to require vaccination status.[5] In 1905 the Supreme Court in a case named Jacobson v. Massachusetts, ruled that it was constitutional for cities to require citizens be vaccinated against smallpox.[6] On August 12, 2021, Justice Amy Coney Barret refused to grant the students request for emergency relief to strike down the University policy.[7] She did not refer the application for emergency relief to the full court and she did not ask Indiana University for a response.[8] The combination of those moves by Justice Barret tends to show that the application submitted by the students was not backed on solid legal grounds.[9] Despite the case not yet being decided on the merits, at this point there has been no indication that students challenging vaccination mandates will prevail against universities. Presumably, as Indiana University student athletes return to the campus for the fall semester, they will have to abide by the vaccination policy. The NCAA hasn’t released vaccination requirements and only has released recommendations on testing, quarantine, and isolation differentiating between vaccinated and non-vaccinated athletes.[10] Across the country, athletes’ vaccination requirements will depend on the school and conference they play in. For example, the University of Hawaii has announced they will require the vaccine for all their student athletes to compete for the upcoming school year.[11] With the recent NIL landscape giving collegiate athletes more of an opportunity to use their voice and social media platforms to express an opinion, athletes who are against vaccination mandates may choose to make their stance known to their followers. But athletes likely face a similar unsuccessful fate to challenging university vaccine policies as the rest of their fellow classmates. Matthew Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter @MattNettiMN. [1] Indiana University, COVID-19 Vaccine, https://www.iu.edu/covid/prevention/covid-19-vaccine.html (last visited Aug. 11, 2021). [2] Complaint Klassen v. Trustees of Indiana University, No. 1:21-cv-238 (N.D. Ind. 2021). [3] Klassen v. Trustees of Indiana, No. 1:21-cv-238 DRL (N.D. Ind. 2021). [4] Klassen v. Trustees of Indiana University, No. 21-2326 (7th Cir. 2021). [5] Id. at 2. [6] Jacobson v. Massachusetts, 197 U.S. 11 (1905). [7] Adam Liptak, The Supreme Court Won’t Block Indiana University’s Vaccine Mandate, The New York Times, https://www.nytimes.com/2021/08/12/us/supreme-court-indiana-university-covid-vaccine-mandate.html (last visited Aug. 13, 2021). [8] Liptak, supra note 34. [9] Id. [10] https://www.ncaa.org/about/resources/media-center/news/general-new-covid-19-guidance-for-fall-sports-released [11] https://www.staradvertiser.com/2021/08/04/sports/sports-breaking/university-of-hawaii-requiring-student-athletes-to-receive-covid-19-vaccination-to-compete-in-sports/

This week, Nebraska reported that their football program has been the subject of an NCAA investigation pertaining to improper use of analysts and consultants as well as holding prohibited workouts off campus during the pandemic. All of this allegedly was known by the school’s head coach, Scott Frost. “We just wanted to acknowledge that there is an NCAA investigation that is currently engaged with our athletic department and our football program specifically," Nebraska Athletic Director Trev Alberts told reporters. "We want you to know that we have complied 100% with the NCAA and been very collaborative with our approach with them with all of their investigation” and "We will continue to do whatever the NCAA asks us to do.” Now, before diving in, I’m not implying that Scott Frost and his staff didn’t break any NCAA rules or mandates. However, this story just seems a little suspicious given the context of the current state of Nebraska football entering its fourth season in the Scott Frost era. Is this investigation purely about upholding NCAA standards or rules pertaining to COVID-19, or is it about something else? In November of 2019, Nebraska surprisingly gave Scott Frost a contract extension through 2026 that would pay him $5 million annually. When the extension was announced, Nebraska was 8-13 under Frost through his first season and a half. This news raised eyebrows at the time because it’s extremely rare to see a coach get a contract extension with that kind of record. If Nebraska were to fire Frost without cause (meaning continued underperformance) before 2022, it would require them to pay a $20 million buyout. Why is this relevant to the reports of the NCAA investigation? It’s relevant because if the investigation can prove Frost was in the wrong with his use of analysts and orchestration of workouts during COVID, it could be a route for Nebraska to fire him with cause. This would release the liability of the Huskers to pay the $20 million buyout. Therefore, it’s fair to wonder who leaked this information to the NCAA. With everything going on in the world of college athletics, it’s unlikely that the NCAA was actively seeking to go after Nebraska. With that being said, when something shows up on their desk like this, they’ll definitely look into it. According to Brett McMurphy of the Action Network, the school has “significant video footage” confirming the illegal use of analysts during practices. Combining this with the previously referenced statements by Trev Alberts, I get a little bit of suspicion for what Nebraska might be trying to do here. It appears like the school actively went out to acquire video evidence of the illegal use of analysts at practices. While some might read this and appreciate Nebraska’s compliance department, it’s worth mentioning that nearly every elite program in the nation does the same thing. Analysts fall under a category of an assistant coach that isn't considered part of the "countable" limit of 10 by the NCAA. They are technically prohibited from directly coaching players or going on off-campus recruiting trips. However, over the last decade, many programs have expanded the role of the analyst without any backlash from the NCAA. If Frost wanted to say “we’re doing the same thing everybody else is” in his defense, he wouldn’t be wrong. In regards to the alleged workouts held off campus during the pandemic, Frost affirmed that “Everything we did through COVID was in the best interest and health of our players in mind and everything we did was approved by athletic department administration and campus administration.” If Nebraska competed for Big Ten titles and went to Rose Bowls over Frost’s first three seasons, would we still be hearing about these alleged violations? I don’t think so. This situation is strikingly similar to what occurred at Tennessee last season. After a 2-0 start, Tennessee extended head coach Jeremy Pruitt’s contract for an additional two years. Following the extension, Tennessee proceeded to lose seven of their last eight games. At the end of the season, Tennessee self-reported recruiting violations to the NCAA, and eventually fired Pruitt for cause, negating his $12 million buyout. In reading the tea leaves, it looks like Nebraska might be trying to do something along these lines here. The athletic director who hired Scott Frost, Bill Moos, stepped down earlier this Summer. Oftentimes, whenever a new athletic director comes in, the job security of the current head coach inevitably lessens. AD’s usually like to hire “their guy,” and it’s fair to think that Trev Alberts might be thinking of doing exactly that. In the current environment in college athletics, the NCAA wasn’t actively seeking out Nebraska to find violations. Given Nebraska’s lack of success, there’s a chance that the university wants to make a change at the head coaching position and avoid paying the $20 million buyout. A former Husker great, many heralded Scott Frost as the “chosen son” destined to return Nebraska football to its glory days when he was hired. Now, it looks like they’re leaving perhaps about to leave him in the cold. Frost has now obtained legal counsel, so this story isn’t going away any time soon. Nebraska begins their 2021 season against Illinois on August 28th.

“March Madness” is one of the most popular and recognizable brands in sports. The NCAA’s trademarked “March Madness” brand has turned the men’s college basketball tournament into a must-watch event even for the most casual sports fan. Whereas its notable absence from the women’s basketball tournament has been a silent contributor to the gender inequalities in collegiate athletics. The NCAA has continued to use the “March Madness” brand solely for the men’s tournament even though its trademark registrations would allow for the phrase to be used for both the women’s and men’s basketball tournaments.[1] The stark differences between “March Madness” and the “NCAA Women’s Basketball Tournament” for decades has gone underreported in mainstream sports media. However, that all changed on March 18th, when University of Oregon basketball star, Sedona Prince, went to TikTok to broadcast the disparities at the NCAA Women’s Basketball Tournament by comparing the women’s weight room with mere hand weights and yoga mats with the men’s weight room which had a plethora of equipment. Prince captioned her TikTok: “It’s 2021 and we are still fighting for bits and pieces of equality.”[2] Prince’s TikTok brought to light a much-needed discourse regarding gender equity within women’s college athletics. The TikTok went viral, and the NCAA was called out on a global stage for their unequal treatment of women’s basketball. The NCAA was then prompted to conduct an external review led by New York Law Firm Kaplan Hecker & Fink LLP of gender equity issues specifically during the NCAA championships and to make recommendations for the NCAA to implement for the future. KHF reached out to all 64 NCAA Division 1 women’s basketball programs that participated in the women’s tournament and the 113-page report found that “The NCAA’s organizational structure and culture prioritizes men’s basketball, contributing to gender inequity.”[3] The report stated that: “The primary reason, we believe, is that the gender inequities at the NCAA—and specifically within the NCAA Division I basketball championships—stem from the structure and systems of the NCAA itself, which are designed to maximize the value of and support to the Division I Men’s Basketball Championship as the primary source of funding for the NCAA and its membership.”[4] However, as the report found, “nothing could be further from the truth”[5], as television viewership for the women’s tournament was the highest it’s been since 2014, and an increasing number of women’s basketball players have huge followings on social media that triples their male counterparts. Kaplan Hecker & Fink LLP recommendations included that the NCAA should take “steps to maximize value through gender equity in marketing, promotion, and sponsorships”[6] and to “Use ‘March Madness’ for both the Division 1 Men’s and Women’s Basketball Championships” and to “Hold the men’s and women’s Final Fours together in one city.”[7] On August 17, 2021, Bryan Fisher tweeted that the NCAA will officially start using “March Madness” branding with the women’s basketball tournament moving forward.[8] This decision from the NCAA is monumental for the future of women’s college basketball and for women’s sports. As Sedona Prince, stated in her TikTok, “if you aren’t upset about this problem then you are part of it”.[9] With this recent decision to use the trademarked “March Madness” logo, the NCAA is finally making progress to fix the problems for women’s basketball it originally caused. Hannah is a 2L at Elon University School of Law and host of Podcast “Bars to the Bar” from Hoboken, New Jersey. Hannah graduated from Providence College where she was a four-year manager for the Men’s Basketball Team. Sources: [1] Bachman, Rachel, Louise Radnofsky and Laine Higgins. "NCAA Left Women Out of 'Madness' --- the 'March Madness' Phrase has been used Only for the Men's Basketball Tournament." Wall Street Journal Mar 23 2021, Eastern edition ed.ProQuest. 22 Aug. 2021. [2]Sedona Prince (@sedonerrr), TikTok (Mar. 18, 2021), https://www.tiktok.com/@sedonerrr/video/6941180880127888646. [3] Kaplan Hecker & Fink LLP, NCAA External Gender Equity Review, Phase 1: Basketball Championships (Aug 2, 2021) https://kaplanhecker.app.box.com/s/6fpd51gxk9ki78f8vbhqcqh0b0o95oxq [4] Kaplan Hecker & Fink LLP, NCAA External Gender Equity Review [5] Id. [6] Id. [7] Id. [8] Fischer, Brayn [@BryanDFischer] Twitter, 17 August 2021, https://twitter.com/BryanDFischer/status/1427654842516852738 [9] Sedona Prince (@sedonerrr), TikTok (Mar. 18, 2021), https://www.tiktok.com/@sedonerrr/video/6941180880127888646

As Chris Berman would say, “nobody circles the wagon like the Buffalo Bills.” However, recent reports suggest the Buffalo Bills (“Bills”) may be shopping for a new home outside of Buffalo. An ESPN writer reported that Austin, Texas[1] serves as a suitable location if New York State denies the alleged ask by the Pegula family — owners of both the Bills and Buffalo Sabres (“Sabres”) — for taxpayers to ‘100%’ cover the cost for a new stadium. The Pegulas are allegedly seeking $1.5 billion in their proposal[2]: $1.1 billion allocated to the Bills new stadium and the remaining $400 million for renovations to the Sabres arena. The Plan would take approximately three-to-five years[3] to complete. Erie County Executive, Mark Poloncarz, stated per The Buffalo News[4] “There was no statement by the Bills: ‘We’re going to Austin.’” Adding, the Pegula’s never gave any indication that they are looking to leave Buffalo. The two sides are looking to complete a deal prior to Bills’ lease agreement terminating at the end of the 2023 National Football League (“NFL”) season. Stadium History: To understand the desire for a new stadium, it is important to note that Highmark Stadium (“Highmark”) (1973) is the third oldest in the NFL, behind Lambeau Field (1967) and Arrowhead Stadium (1972). The Bills spent $22 million to build Highmark, adjusted for inflation today and that equates to $134.6 million. In Comparison, the New Orleans Saints built the Superdome in 1975 for $134 million, equating to $676.7 million today. Recent History: The Bills are no strangers to stadium renovations and changes. In 2014, Highmark, then called Ralph Wilson Stadium, underwent a $130 million renovation. The state and county funded nearly three-fourths of the project. Despite the changes, rumblings began around the Bills desire for an entirely new stadium. In that same year, Terry Pegula — who purchased the Sabres in 2011 for $189 million — purchased the Bills for $1.4 billion, outbidding the likes of Bon Jovi and Donald Trump. The Pegula family publicly stated their desire to keep the Bills in Buffalo. Two-years later, the Bills and New Era Cap Co. (“New Era”) agreed to a $35 million, seven-year deal for the naming rights of then Ralph Wilson Stadium. Though, the relationship lasted only four years after New Era requested to terminate the contract. Less than a year later, in March of 2021, the Bills entered a new stadium naming rights deal. A ten-year agreement with Highmark Blue Cross Blue Shield of Western New York, to name the stadium what it is today, Highmark. League Precedent: Around the NFL, the cheapest stadium built over the last thirteen years is U.S. Bank Stadium, home of the Minnesota Vikings, costing around $1.1 billion; the state and city paid approximately half of the cost. Looking into recent trends, the Raiders, Chargers, and Rams pose a frightening precedent for the Bills. The Raiders, who recently moved from Oakland to Las Vegas, paid approximately $1.1 billion towards Allegiant Stadium. The public paid around $750 million, nearly 40% of the stadium’s cost. The Los Angeles Chargers and Rams also relocated to build a new stadium, conversely the $5 billion So-Fi stadium was privately funded by the teams’ owners. However, the Pegulas have not given any public indication that they plan on relocating the Bills outside of Buffalo. Outlook: Three teams, three re-locations, and two new stadiums later would tell a gambling man to bet the house on the Bills loading their wagons and heading south to Texas. However, recency bias is just that — bias. Western New York and the Bills have one of the strongest team-fan relationships in all professional sports. Despite the initial panic, relocation is not as simple as a team owner snapping their fingers and moving a team. For a team to relocate, they need a three-quarters majority vote from all the NFL owners — twenty-four votes. Not all twenty-four votes are created equal. Jerry Jones (“Jones”), owner of the Dallas Cowboys, is an influence vote and voice in the NFL. Jones, along with Yankees Global, have ownership stakes in Legends Hospitality (“Legends”). Legends is representing the Pegulas in the new stadium negotiations as well as representing the Bills in selling sponsorships and premium seats in the potential new stadium. Additionally, by voting for the Bills to relocate to Austin, Jones would be welcoming another NFL franchise into the state of Texas, something rather unlikely. Sources: [1] https://twitter.com/SethWickersham/status/1421882529251045379 [2] https://buffalonews.com/news/state-and-regional/buffalo-bills-want-a-new-stadium-and-for-taxpayers-to-foot-the-bill/article_dc794aea-f14a-11eb-a5ae-17fdaa70c27c.html#tracking-source=home-top-story [3] https://www.rochesterfirst.com/sports/buffalo-bills/bills-planning-new-outdoor-stadium-in-orchard-park/ [4] https://buffalonews.com/news/local/poloncarz-no-blank-check-from-taxpayers-for-buffalo-bills-stadium/article_017bb92c-f565-11eb-9585-73ff6d0e8e78.html

“Pay him, pay that man his money” the infamous line spoken by Teddy KGB in the movie “Rounders” now applies to college athletes across the country. July 1 marked the beginning of infinite possibilities and potential consequences for NCAA student-athletes as the organization is going to allow players to profit off their Names, Image and Likeness. This matter has been pressing for quite some time with players even threatening to sit out during the NCAA March Madness Tournament. NCAA president Mark Emmert was able to intervene by sitting down with a few players who had the strongest opinions and beliefs. The two sides came up with an agreement that before the 2021-2022 athletic year began there would be a system in place to empower athletes and grant them opportunities to earn financial gains. Well here we are, the NCAA held true and now hundreds of athletes across the are doing their best to build a brand and cash in. Olivia Dunne, a gymnast for LSU is one of the biggest superstars of this new era, with a following of over 4.1 million on social media apps such as Tik Tok, Twitter and Instagram launched her campaign with a billboard in Times Square. Auburn Quarterback Bo Nix signed a deal with “Milo's Tea Company” a popular southern sweet iced tea. His Iron Bowl counterpart, Bama’ QB Bryce Young has made over eight-hundred thousand dollars through various endorsement deals before he’s even started his first game for the Crimson Tide. While it is encouraging to see athletes getting the opportunity to make a buck, where is the line in the sand drawn? One of the biggest counter points that the NCAA has made for years in the fight against paying players is that they wanted the student-athletes to maintain their amateur status. With a Fall sports season right around the corner and coaches and teams with championship aspirations will certainly need to discuss the approach that needs to be had in managing not only school and their sports workload but now all of the sudden their business ventures as well. Getting complete focus from every athlete on the team is a must in order to achieve a common goal in any sport. Will one player's ego grow too large because of the new car he now has or the Rolex on his wrist? For teammates that are not lucky enough to market themselves into some serious cash what will their opinions be of those with new found pocket change. While coaches and faculty might be weary of the ramifications of the new rule changes, companies such as Icon Source and Barstool Sports amongst several others have jumped at the opportunity to get involved with individual athletes and create their own network of players. Barstool itself is a fascinating case because since their launching of their own sportsbook app in 2019 in conjunction with Penn Gaming they take wagers on all different college sports. With the gambling component being more prominent than ever it has caused some hesitation amongst Athletic Directors across the country when advising athletes where to sign and the potential legal implications that could be investigated by the NCAA. Another complication of the new rule is the regulations of each school's home state. According to businessofcollegesports.com, by September 1, a total states will have signed a bill into law permitting the student athletes to earn their keep. However, some have different stipulations and understanding the revenue and tax reporting will be difficult to monitor. Many believe that this could have a negative effect on where high schoolers decided to take their athletic talents. Instead of looking at the best fit education and athletics wise they will focus on where they can go and get paid. Certainly a lot more will unfold in the months and years to come, but one thing is for certain the piggy banks of most will be a little heavier from now on.

The ACC, Big Ten, and PAC 12 announced their shared vision for the future of college athletics. What seems to be a fantastic opportunity for three conferences, both educationally and athletically, the mission appears to fall short of solving one thing—the SEC. Thankfully the SEC does not reign over all college sports. For those sports other than football, the Alliance is an incredible opportunity for the conferences to increase exposure and competition and improve their overall appeal. Although not enough information is known, perhaps the biggest winner in this alliance is college basketball. If appropriately executed, we could see more big games like the ACC/Big Ten challenge at the beginning of every basketball season. But that’s a discussion for another article. The big question here, and perhaps the only reason this alliance was formed, is the SEC. This Alliance being announced shortly after the news that the University of Texas and the University of Oklahoma would likely join the SEC makes you wonder, is this their way of fighting back? If the alliance is not broken and the three conferences can work together and agree in the future, they now have a substantial amount of voting power over the SEC. But let’s talk about what matters, winning games. Notably, the SEC has dominated the college football playoffs and bowl games over the last few years and doesn’t seem to be slowing down with only a few contenders coming out of other conferences. Although the Alliance plans to begin – as soon as practical – is some form of inter-conference scheduling enough to go head-to-head with the SEC in football? Maybe? If the scheduling is done right and not just one lousy game a year against the opposing conference, the strength in schedule could help teams better prepare for an Alabama powerhouse. Let’s remember, a strong Ohio State was not prepared to play Alabama in 2020 with the schedule they had and playing Clemson, an alliance conference team. What is more likely to help is better recruits. The Alliance spans sports and education, and with some of the best academic programs in the nation a part of this alliance, the hope is that with more appealing games, players will be inclined to play for the Alliance rather than for the SEC. If that happens, we can see teams like Alabama, LSU, and Georgia losing key players that weren't always willing to go elsewhere. Additionally, why not play for an alliance team? With the age of NIL just starting, why go to a team filled with talented players instead of being one of the best players on your team and have the ability to cash in on more national and local deals. It’s time the same six-team rotation isn’t in the playoffs every year, and we have a free-for-all every year. I remain hesitant about whether this will put the three conferences at an advantage or equal playing field against the SEC in football. However, in all other areas of sports and academics, the Alliance seems to make the ACC, Big Ten, and PAC 12 a dominant force to be reckoned with.

The National Women’s Soccer League (“NWLS”) has been around since 2012 and the league’s players have had a recognized union since 2017, the NWSL Players Association (“NWSLPA”). Despite this, the NWSL has never had a collective bargaining agreement (“CBA”) in place. That should change soon—the league and players union are involved in ongoing negotiations on the league’s first ever agreement. In the meantime, the players are fighting for higher pay by all means at their disposal, legal and otherwise. The NWSL uses a single-entity structure by which players are league employees allocated to one of the league’s member clubs. Though NWSL player salaries have improved over the years, the maximum player salary sits at $52,500 (a 10% increase from last year); the minimum salary has risen 5% but is still just $22,000 per year. An NWSL player with children on the minimum salary would be just above the federal poverty line. According to the NWSLPA, about 33% of its members make the league minimum and 75% make $31,000 or less. Compare that to MLS minimum salaries, which are almost four times higher. NWSL players who also compete for the U.S. Women’s National Team (“USWNT”) have their own CBA and make much more; the U.S. Soccer Federation covers their salaries and pays them $100,000 per year. The NWSLPA does not bargain on their behalf, or on behalf of players allocated by the Canadian national team. The USWNT of course has a well-publicized fight of its own over player pay. Like in other professional sports leagues, its not the superstars who need the union most and reap the most benefit from organized labor. It’s the journeying pros and squad players—many of whom have had to take second, third, or even fourth jobs to make ends meet while pursuing their professional soccer goals. To raise awareness of these players’ financial plight and its labor fight, the NWSLPA created an online website and social media campaign called #NoMoreSideHustles. Players and fans have been using the hashtag to help tell their stories. Dozens of similar stories appear on Twitter and the website set up by the NWSLPA. Already trending online, the movement may now have an ally in club management. Yael Averbuch West, a former NWSL pro and USWNT player helped form the NWSLPA and served as the union president and executive director. Shortly after tweeting her support for #NoMoreSideHustles, she was named interim General Manager of NWSL franchise Gotham FC. CBA negotiations, which got underway in late 2020, are ongoing. The NWSL was the first professional team sports league to resume action amid the pandemic, and the league and NWSLPA collaborated during that process. For its part, the league has stated a willingness to work with the players’ association to reach a deal. Some players have pointed to the WNBA as a model, which reached a CBA last year that enhanced player compensation by over 50% and improved health care, child care, and other player-friendly benefits. Above all, the players seek to use labor law as a vehicle to hone and improve their craft and bridge the pay gap between their counterparts in other leagues. Doing so can only help the quality of NWSL play, and most importantly, the players’ quality of life. Ben Shrader is a partner at Hart McLaughlin & Eldridge in Chicago, where he serves as Chair of the Chicago Bar Association Sports Law Committee. You can reach Ben at [email protected] or find him on Twitter @BenShrader.

First, I would like to give a special thank you to Jason Sciavicco, director of Titletown High, for providing some insight on this article. Jason, thank you sincerely for informing me and I certainly cannot wait to watch Titletown High when it comes out on August 27th on Netflix. As of August 2, 2021, only one state in the United States, California, has allowed for high schoolers to profit from the use of their name, image, or likeness (“NIL”). California law permits student athletes, including high schoolers, to make money from the use of their name, image, or likeness so long as the student athlete does not use their school’s name, logo, or team uniform in any advertisements. This differs from a lot of other states where state legislatures have either been silent on the rights of high schoolers in that regard or in the case of Texas, Illinois, and Mississippi, flat out forbade high schoolers from entering into endorsement deals prior to enrolling in college. Generally speaking, an NIL bill would: prevent schools, conferences, and athletic associations from prohibiting student athletes from profiting from their NIL. prevent schools, conferences, and athletic associations from affecting a student athlete’s athletic or scholarship eligibility as a result of engaging in NIL related activities, and lastly, prevent schools, conferences, or athletic associations from paying the student athletes for the use of their NIL. An issue, though, is that by states refusing to take a stance one way or the other, further complications could arise that could’ve been avoided if provision to the law was enacted. An example of this is Titletown High, a football documentary focused on Georgia high school Valdosta High coming out on Netflix on August 27th. Show creator Jason Sciavicco stated that "Titletown High is what happens when high school football meets the unprecedented, behind-the-scenes access of multiple cameras, over twenty microphones and 7-days a week filming." The thing worth noting about this documentary, or others like it, is that depending on the state, the athletes cannot get paid for their name, image, and likeness being used throughout. NIL laws were originally enacted to “balance the scales,” as there is a lot of money that flows through an economy stemming directly from the student athlete, yet they could never get in on the action. While this conversation was focused on college athletes, the existence of documentaries such as Titletown High suggest that perhaps it’s time to look beyond the originally intended scope. As NIL bills generally prevent the schools from paying the student athletes, what would happen in a case where a school gets a documentary shot about a team and it takes off and becomes extremely profitable? In Texas, Illinois, or Mississippi, the school can’t cut the athletes a check, and in certain cases, the student athletes can’t even be compensated by the film company, distributor, or any other party. This is especially shocking, at least in Texas, as high school football is a huge deal. In Georgia, where Titletown High takes place, the state’s high school athletic association maintains that “an athlete forfeits amateur status in a sport by … capitalizing on athletic fame by receiving money or gifts with monetary value except college scholarships,” and there is no state law specifically disallowing this practice, in fact, Georgia’s NIL law focuses exclusively on college athletes, allowing student-athletes to profit from their name, image, and likeness through sponsorships, endorsements, personal appearances, autographs, and social media marketing. It is silent on television or film appearances and to me, that can (and maybe even should) raise the dreaded “what if” question. This was a great first step, but at first glance, completely overlooks high school student athletes. Thankfully, I’ve spoken with Jason Sciavicco and he was able to shed some insight on the matter. In our conversation, I learned that the high school athletes in a series can indeed be compensated, but it must not be in connection to any athletic activities, instead, they can be compensated for the use of their name, image, and/or likeness in conjunction with a series and promotion of the project. So, have the scales been balanced? Perhaps it’s time to have a deeper discussion on what this new level of equality should actually look like. I’m not necessarily advocating for specifically allowing high school student athletes to also be able to profit from the use of their name, image, or likeness, partially because it could create a rift between parents and the student athlete as one cannot enter into a legally binding contract with a minor, unless a legal guardian also signs off on it. However, I am in fact advocating that taking a stance specifically prohibiting it seems ironic and makes the larger “push” to balance the scales seem disingenuous at best and those sorts of provisions should be done away with. At the end of the day, I’m not a politician, those aspirations are far behind me, but in the spirit of fairness, I think states should do more than just cherry pick when to try to create a level playing field. I also think that athletic conferences should not prevent student athletes from profiting in any capacity or risk losing their eligibility. Fair is fair across the board, and if a college student athlete can profit off the use of their name, image, or likeness, in a myriad of contexts, I do not see why high school student athletes are not afforded the same opportunity. There are movies made about high school student athletes, there are documentaries coming out following high school student athletes, so perhaps we should revisit the notion that states believe that high school student athletes also cannot get in on the action or otherwise, only make documentaries following colleges. 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 [email protected] and on twitter @stephonburton3, Instagram @stephonburton, and LinkedIn https://www.linkedin.com/in/stephon-burton-7abb06125/

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. In this series, we 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 month’s Sports Law Program Spotlight is… Arizona State University Sandra Day O’Connor College of Law When it comes to the best places to be in as a sports fan, few cities can match the sheer volume of events hosted by the Phoenix Metropolitan area. Home to eight professional sports clubs, MLB Spring Training, NASCAR races, PGA Tour events, and college football bowl games on an annual basis, there is no shortage of action to see. In addition, the Valley of the Sun also frequently hosts Super Bowls, Final Fours, CFP National Championships, and other major events. Therefore, it’s only fitting that Arizona State boasts one of the best sports law programs in the country. Located in the heart of downtown Phoenix, ASU’s Sandra Day O’Connor College of Law is an extremely attractive option for any prospective student interested in pursuing a career in sports. In terms of degree offerings, Arizona State offers both a Master of Sports Law and Business (MSLB) and a Concurrent Juris Doctor/Master of Sports Law and Business (JD/MSLB). So even if attending law school isn’t in the cards for you, ASU has the only program in the US that combines sports, law, and business in the same program. However, if your goal is to obtain a JD, students admitted into the Sandra Day O’Connor College of Law can apply for the SLB Program to get the “best of both worlds.” In this offering, students receive a full JD curriculum while also looping in sports law and business courses. These courses range from NCAA Compliance and Pro Sports Legal Operations just to name a few. This degree option is offered to incoming law students that have been admitted to the ASU College of Law as well as current law students up until the first semester of their 2L year. The main goal of the SLB Program is concise and straight to the point: “Getting Students Jobs in the Sports Industry.” Through the program, students receive tremendous networking opportunities to meet and learn from high-ranking officials in the sports industry.” There are externships offered to work for the local teams including the Diamondbacks, Suns, and Coyotes along with local events like the Fiesta Bowl and NASCAR races. In addition, the Arizona State Sports and Entertainment Law Journal is one of the longest going sports law journals in the country and offers students the ability to get involved in legal writing. The faculty includes some of the best sports law minds in the world. Aaron Hernandez, the Director of the SLB Program, is a former Associate Director of Football at the NCAA. Stephanie Jarvis is the former General Counsel of the Fiesta Bowl. Glenn Wong has decades of experience in the field of Sports Law and has served previously as President of the Sports Lawyers Association. Moreover, the Program is named after former MLB Commissioner, Bud Selig, who is a Distinguished Professor as well. The SLB Program prides itself on its faculty offering real life experience in the sports industry, not just traditional academic backgrounds like you might find in other programs. The Sandra Day O’Connor College of Law should be atop any prospective law student with interest in sports list of schools. Ranked as a top 25 law school by US News & World, the JD degree holds tremendous value on its own. But combined with the SLB offering, there aren’t many institutions that can match what Arizona State brings to the table. With the sports industry trending more toward hiring executives who are skilled in both law and business, this is a perfect combination for those who aspire to work at the highest levels. -Many thanks to Joe Esses (Student in SLB Program) and the faculty for giving insights to the program.

If you have not seen or read about the Supreme Court’s decision in National Collegiate Athletic Association v. Alston at this point, you might be living under a rock. For a quick refresher, or an initial introduction, to the Name, Image, and Likeness (“NIL”) era in college sports, Conduct Detrimental has you covered – The NIL Era Is Here! Because the NIL era is still in its wild, wild West phase, it is important to highlight how universities have chosen to lean in and approach the NIL era as an opportunity to empower and further educate student-athletes. While the focus of this post will be the University of Tennessee, the University of North Carolina, Florida State University, and the University of Colorado are a few other case studies in how a university can adjust to the changing landscape in college athletics in a manner that is consistent with its athletic and academic goals. The first step the University of Tennessee took as it entered the NIL era was to partner with faculty members – Dr. Courtney Childers, an Associate Professor in the School of Advertising and Public Relations, Lynn Youngs, a Senior Lecturer in the Haslam College of Business and Executive Director of the Anderson Center for Entrepreneurship & Innovation, and Brian Krumm, an Associate Professor at the College of Law, among many others. These faculty partnerships were sought out to help the school craft comprehensive policies and procedures and to provide student-athletes with resources to help them understand and navigate the various business, ethical, marketing, and legal issues associated NIL opportunities. In addition to faculty partners, Tennessee brought on a third-party partner, Altius Sports Partners, to provide an outside perspective on how to best serve the university’s student-athletes while remaining compliant with the NCAA’s rules. While the general approach is to encourage student-athletes to pursue NIL opportunities and to provide them with the resources and mentorship to make smart decisions, Tennessee’s program still grants the university with significant discretion to shut down certain NIL activities. Student-athletes are expressly prohibited from pursuing and taking on opportunities that promote gambling, tobacco, alcohol, or adult entertainment. Tennessee made sure, however, to also reserve the right to prohibit activities that “are reasonably considered to be in conflict with UT values.” If you are an attorney reading this post, you probably understand that “reasonableness” is a mushy concept that can change constantly from person to person and from scenario to scenario. Combine that with the equally undefinable concept of “UT values,” and the clear intent of the University of Tennessee is to ensure that its compliance department can adjust its stance on certain NIL opportunities as the university reviews and considers public response to NIL opportunities for its student-athletes and student-athletes at other universities. Finally, the university’s policy also states that “NIL activities should not conflict with a student-athlete’s academic or team-related obligations.”[1] As the saying goes, when it comes to defining a prohibited NIL activity, the University of Tennessee will know it when it sees it and be able to shut it down. The university’s primary goal in implementing this type of compliance program is to provide ongoing, comprehensive education to all student-athletes about NIL “in an effort to assist them in capitalizing on and maximizing their opportunities in a responsible and effective manner,”[2] while retaining broad flexibility to prevent NIL opportunities that would reflect poorly on the university. For the University of Tennessee’s compliance program, the NIL era represents an opportunity for further collaboration with its student-athletes to enrich their experiences as both students and as athletes, not a minefield that the university will need to navigate through implementation of restrictive policies and practices. [1] Tennessee Athletics Name, Image and Likeness (NIL) Information & Guidance - University of Tennessee Athletics) [2] Tennessee Athletics Name, Image and Likeness (NIL) Information & Guidance - University of Tennessee Athletics)

The controversies surrounding San Jose Sharks left winger Evander Kane this off season seem never ending. Prior to the 2020-21 season, Kane filed for bankruptcy for personal debts he’s accrued. At the end of July, his wife Anna filed for divorce which then led to her making serious allegations against Evander Kane. The allegations accused Kane of gambling on and throwing his own games to win money with bookies. Additionally, Anna accused him of abandoning her, their daughter, and their unborn son to party in Europe. She alleged that their house was being taken by the bank, she had no money to purchase formula and she had to sell her wedding ring. After the allegations were made via Instagram, the NHL as well as the Sharks released statements that these accusations were going to be investigated. Despite Kane denying these allegations the damage between him, the NHL and the Sharks may not be repairable. Reports state that several Sharks players do not want Kane to return to the team because he ignores team rules and marches to the beat of his own drum. Now, there is a new concern in this continuing saga. A federal bankruptcy judge has allowed discovery to move forward in a lawsuit against Kane. The lawsuit which was filed in 2018, but delayed due to COVID-19, is being brought by Hope Parker, his alleged ex-girlfriend. Parker alleges that Kane backed out on a promise to pay her at least $2 million dollars if she aborted their pregnancy.[1] By granting discovery, the judge is allowing Parker to seek testimony and electronic correspondence from Kane pertaining to these events. Specifically, correspondence with Kane who has said he "changed his mind" about paying Parker the agreed upon amount prior to her providing him proof of the third abortion. In court documents, Parker alleges that she has aborted a fetus conceived with the hockey player on two other occasions, and that Kane paid her $125,000 for the second procedure.[2] Parker was unwilling to terminate the third pregnancy until Kane offered her $2 - $3 million dollars to have the procedure.[3] According to court documents filed on June 13, 2018, Parker sent Kane a text message of her lab results, which verified she had terminated the third pregnancy. When Parker requested Kane update her on the status of her promised payment, Kane told Parker he was not going to pay her. In addition to this lawsuit, Parker filed a case within Chapter 7, seeking to endure that if Kane is permitted to walk away from his debts, her debt would receive different treatment. Bankruptcy law doesn’t allow a debt to be waived if it is obtained under false pretenses. False pretenses concern past or present facts that are made with the intent to defraud another person. If Parker can prove that Kane promised her the money in exchange for having the procedure and never intended to pay her then she may be able to receive the money even if Kane’s other debts are forgiven. Parker is not the only person who has filed Chapter 7 as various lenders have filed their own proceedings against Kane. Amid this current controversy, Kane has put his San Jose home up for sale. Kane and his estranged wife Anna purchased the home together in August 2020 for $3,030,000. As divorce looms for the couple, their house is on the market for $3,199,950.[4] Kane declared bankruptcy in January, with reported gambling losses of $1.5 million. At the time of the filing, he had assets of $10.2 million and liabilities of over $26.8 million.[5] The Sharks and the NHL have not released statements concerning the current legal battle. Jessica Shaw is the Secretary of the New York Law School Sports Law Society. She can be reached on Twitter @JessicaShaw22. Sources: [1] Kaplan, Daniel. “Judge Rules Sharks' Evander KANE Must Face Discovery in Abortion-for-Pay Lawsuit.” The Athletic, Aug. 24, 2021, theathletic.com/news/judge-rules-sharks-evander-kane-must-face-discovery-in-abortion-for-pay-lawsuit/6eUxPR75fBSZ. [2] Id. [3] Id. [4] Zap, Claudine. “Amid Controversy, Sharks STAR Evander Kane Selling $3.2M San Jose Home.” Real Estate News & Insights | Realtor.com®, Aug. 24, 2021, www.realtor.com/news/celebrity-real-estate/evander-kane-selling-san-jose-home/. [5] Id.

What if I told you that the Phillie Phanatic – yes, that Phillie Phanatic – could be responsible for an enormous change in copyright law? In 2019, the Philadelphia Phillies filed a federal complaint against Harrison/Erickson Inc., the creators of the now hall of fame mascot, alleging that the creators were threatening to breach an agreement that would allow the Phillies to use the mascot “forever.”[1] The threatened breach revolved around a provision in Section 203 of the Copyright Act that allows a copyright holder of a work who has assigned its rights to another party to terminate the assignment and reclaim full rights in the copyright.[2] The year 2019 happened to be the 35th anniversary of the purported “forever” assignment of the Phanatic mascot to the Philadelphia Phillies organization, and Harrison/Erickson Inc. wanted to reclaim their rights under Section 203 if a new deal with the organization could not be reached; the Phillies took the stance that the assignment truly was “forever” and therefore Harrison/Erickson Inc. was threatening to breach the agreement. In the backdrop of the ongoing lawsuit, the Philadelphia Phillies organization elected to make changes to the Phanatic in 2020 in an attempt to cement its rights in the continued use of the beloved bird(?) without having to provide additional compensation to Harrison/Erickson Inc. for the right to do so.[3] Now I am not an expert in design, but I am not sure I can see the difference in the new mascot: To be fair, U.S. Magistrate Judge Sarah Netburn did acknowledge in her recent decision on this matter that the changes made by the Phillies were “no great strokes of brilliance.”[4] So why did the Phillies seemingly win this case? What the organization hoped to do by making these “changes” to the Phanatic was to create a derivative work. Under the Copyright Act, a derivative work is defined as: A work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship[5] By taking the preexisting work, the original Phanatic mascot design created by Harrison/Erickson Inc., and recasting, transforming, and adapting it into the post-2020 version of the Phanatic mascot, the Philadelphia Phillies organization hoped to stake their claim under copyright law in the design of the new, derivative mascot. If found to be a derivative work, the Philadelphia Phillies would have copyright protections for the post-2020 version of the Phanatic mascot to the extent that the organization “material[ly] contributed” to the derivative work “as distinguished from the preexisting material employed in the work.”[6] These rights would not affect the rights of Harrison/Erickson Inc. in the original mascot design, but it would create a situation where the Phillies would be able to continue to use the derivative mascot without further obligations to Harrison/Erickson Inc. as the copyright holders in the original mascot design. The Phillies had no interest in negating or otherwise affecting Harrison/Erickson Inc.’s rights in the copyright – the organization simply wanted to stake its claim in the copyright for the derivative work and avoid having to negotiate a new deal for use of the copyrighted old mascot. And for now, it seems that the Phillies will be able to continue to use the derivative work without worrying about renegotiating their “forever” deal with Harrison/Erickson Inc: the Court determined that the new Phanatic mascot was sufficiently transformed to constitute a derivative work.[7] What is next? The legal battle will continue. Lawyers for Harrison/Erickson Inc. fear that: If left uncorrected this low bar for a derivative work will thwart the very purpose and intent of the copyright termination provisions established by Congress to fairly compensate original creators for their works 35 years after they have licensed or granted rights in their creations[8] Could the Phillie Phanatic lower the bar for what constitutes a derivative work under the Copyright Act? Probably not – I doubt that this decision will stand. But if it does, the Phillie Phanatic will be responsible for helping to create new case law that makes it easier for large sports organizations, and other large businesses, to make minimal changes to licensed, copyrighted works to effectively take ownership of those original works (before or after the 35 year window in Section 203) under the theory that what the sports organization is using is its own derivative work, not the original work. Sources: [1] Phillies.pdf (courthousenews.com). [2] 17 U.S. Code § 203 - Termination of transfers and licenses granted by the author | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu). [3] Phillies will unveil a new-look Phanatic on Sunday | RSN (nbcsports.com). [4] Magistrate judge rules Phillies can use changed Phanatic (apnews.com). [5] 17 U.S. Code § 101 - Definitions | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu). [6] 17 U.S. Code § 103 - Subject matter of copyright: Compilations and derivative works | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu). [7] Magistrate judge rules Phillies can use changed Phanatic (apnews.com). [8] Magistrate judge rules Phillies can use changed Phanatic (apnews.com).