Knicks center, Nerlens Noel, is suing Klutch Sports Group and ex agent Rich Paul. According to a report from Darren Heitner for Sports Agent Blog, “Noel is claiming $58 million in lost earnings and said Paul convinced him to pass on a four-year, $70 million deal he was negotiating with the Dallas Mavericks because he "was a 100 million man.” Rich Paul who was once considered just one of LeBron’s friends has now turned himself into one of the most popular agents in the NBA. He represents some of the best players in the league such as Lebron James, Anthony Davis, Trae Young, Draymond Green, and Ben Simmons. Noel is purporting that he took Paul’s advice by not signing a 4 year, $70 million deal with the Dallas Mavericks. Instead, he signed a one year $4.1 qualifying offer with the hope to sign a max deal the following summer. Once Noel tore a ligament in his thumb he missed 42 games that season. According to the complaint, “Paul began to lose interest in Noel as a client.” “During the free agent season which began on July 1, 2018, and after Noel’s one-year contract with Dallas expired, neither Paul nor anyone at Klutch Sports presented any real proposals to Noel in terms of strategies or ideas on how Noel might secure a long-term contract or even a significant contract for the following season,” states the Complaint. Noel says that Paul had nothing to do with him going to the Oklahoma City Thunder. He was recruited by Russell Westbrook and Paul George. He ended up signing a 2 year, $3.75 million league minimum deal. Noel also learned from ex 76er’s coach, Brett Brown that they were trying to get in touch with Paul and he never returned their call. This purportedly happened with other teams as well. When Noel wanted to change agencies persuaded to stay based on a 3 year deal worth $7-10 million a year with Oklahoma City. This ultimately did not happen and he ended up signing a 1 year, $5 million deal with the Knicks. Noel finally terminated his relationship with Paul and Klutch Sports in December 2020 and says that the final straw was Noel learning that Paul “had a history of mismanaging and ignoring other clients and costing them significant money.” Now after his first season with the New York Knicks he signed a 3 year, $32 million deal. Noel’s representation says, “Paul breached his fiduciary duty by inducing Noel to terminate his representation agreement with Walters and then by failing to do any meaningful work on Noel’s behalf.” This could end up being a challenging case. No one can tell the future and injuries are part of the game. When Paul gave Noel the advice to wait a year he did not know he would get hurt and miss so many games. Not signing a contract is always a gamble no matter what sport it is. There is always the benefit of making more money or the risk of losing everything. A promise is not legally binding, so if Paul did everything in his power to help Noel then he most likely does not have a case. On the other hand, if Paul was not doing his job and taking calls from teams on Noel’s behalf then a case is possible. This could constitute a breach in contract depending on what is stated. Also, by not answering calls which could have helped Noel’s career Paul was negligent. Paul’s duty was to help Noel to the best of his ability which if proved not to be true he would breach his duty of care to Noel. This should be interesting how this will play out in the upcoming months.

Precedent. What is the language of origin? Middle English and comes from the Latin word, praecēdent. What is the definition? Precedent is an earlier event or action regarded as an example or guide to be considered in subsequent similar circumstances. Could you use it in a sentence? Jalen Duren and Emoni Bates set a precedent for future elite high school basketball recruits eligible for college the following year to choose college basketball over professional options. Two dates shook the college basketball world: August 6, 2021, and August 25, 2021. First, the 4th ranked recruit in the class of 2021 Jalen Duren committed to play college basketball instead of professionally. Then Emoni Bates, ranked 5th in the class of 2021, followed Jalen’s precedent. Both Duren and Bates committed to play for the University of Memphis and Coach Penny Hardaway’s Memphis Tigers. Though I love the Memphis Tigers, being from the most beautiful land in the world, this article is not about the Tigers. This article is about what the commitments of two mega recruits mean for college basketball and those pro-options. But before I fully answer that question, I must analyze why Duren and Bates turned down lucrative offers to play professionally. As I said in my previous article for Conduct Detrimental, money talks. Jalen Green made $500,000 to play for G League Ignite. Reports swirled before Duren’s commitment on August 6 of an offer from the G League of over $1 million to play for the Ignite, twice what Green made. Though no reports have come out related to the G League’s offer to Bates, considering his massive profile, it is safe to assume it would’ve been around Duren’s offer of $1 million, if not more. But Francis, I thought money talks? Why would high school kids turn down that kind of money? Three words: Name; Image; and likeness. Gary Parrish, a college basketball writer for CBS Sports, said this in an interview reacting to Emoni’s decision: “Jalen Green, Jonathan Kuminga … had to choose between the money the G League could provide or a scholarship and a cost of attendance stipend, and legally, nothing else more. Jalen Duren … Emoni Bates didn't have to make that decision … they're not picking between getting paid to play basketball and not getting paid to play basketball. Jalen Duren at Memphis is going to make … in excess of $1 million because of name, image, and likeness rights. And Emoni Bates … is going to do the same thing ... You (Bates) could probably make more money at … Memphis than you would … at the G League.” Brooks Hansen, the lead writer at the Memphis Tigers 24/7 sports website, said in a podcast reacting to Jalen Duren’s commitment, “Memphis would not have landed Jalen Duren without NIL, period. For elite level prospects, NIL is a game-changer.” Jalen Duren even said it himself when discussing NIL: “It eliminated the money factor … NIL leveled the playing field. It made it where some athletes are going to be fortunate to make more in college than they would in the professional route.” Exactly. But Francis, what about other top prospects like Jaden Hardy, No. 3 in the class of 2021, who still signed to the G League, or 17-year-old Tyler Smith, No. 8 in the class of 2023, who recently chose to play for Overtime Elite? Doesn’t that prove elite prospects will still choose to play professionally? Of course, talented high school basketball players will still choose the professional route. These options give kids who cannot be eligible to play college basketball the following year, like Tyler Smith, a chance to immediately make money and provide for their families. For Jaden Hardy, he made his decision on May 15, well before NIL was passed on July 1. So what do Bates and Duren’s decisions mean for college basketball and the pro options? I have no doubt the G League and fellow professional routes will still attract their share of talent. But this talent will mostly consist of younger high school players looking to make money right away. As for elite recruits eligible to play college basketball the following season: money talks, and NIL makes the most noise. Jalen Duren and Emoni Bates set a precedent for future elite high school basketball recruits eligible for college the following year to choose college basketball over professional options.

The United States District Court for the Eastern District of Pennsylvania may have just given some insight into the impact of the Supreme Court’s decision in Alston on the question of whether student-athletes are employees of their universities for purposes of Fair Labor Standards Act (“FLSA”) protection and, of course, for purposes of compensation. By way of background, Ralph “Trey” Johnson, et al. v. The National College Athletic Association, et al. was brought by five student-athletes who argued that, as student-athletes, they were employed by their respective universities, entitled to compensation, the universities were unjustly enriched by the labor of the student-athletes, and the universities had violated the FLSA. The Court’s ruling at this stage was on a motion to dismiss from the defendant universities. According to the universities, the plaintiff student-athletes did not allege facts that would establish them as employees of the universities: the universities contended that as amateurs the student-athletes could not be employees. Amateurism has long been a contentious topic in litigation surrounding the NCAA and student-athletes, particularly because of the Nat’l Collegiate Athletic Ass’n v. Bd. Of Regents decision in 1984, but the Alston decision started to significantly chip away at the NCAA’s ability to lean on this loosely, inconsistently defined term to do whatever it wants (e.g., preventing student-athletes from profiting off their name, image, and likeness). The Court here was similarly skeptical of amateurism as a catch-all defense for the NCAA’s actions and shot down the argument that amateurs could not be employees by stating: [T]he [Defendants] engage in the circular reasoning that they should not be required to pay Plaintiff’s a minimum wage under the FLSA because Plaintiffs are amateurs, and that Plaintiffs are amateurs because the [Defendants] and other NCAA member schools have a long history of not paying student[-]athletes like Plaintiffs.[1] In rejecting this argument, the Court quoted extensively from Alston and even brought in language from Justice Kavanaugh’s concurrence. (Aside: This concurrence will be increasingly valuable for lawyers bringing cases against universities and the NCAA on behalf of student-athletes). Since the decision was simply a ruling on a motion to dismiss, the outcome is not a monumental win for student-athletes yet. It is important to note that, out of the seven factors the Court identified for finding that the student-athletes were employees, two supported a finding that student-athletes were not employees, two were neutral, and three would weigh in favor of a finding that student-athletes are employees; that issue will be decided in the next stage of litigation. Stay tuned. But for now, a court has determined that student-athletes were able to allege facts that, if proven, would support the finding that the student-athletes are indeed employees of their respective universities. Plus, amateurism has taken yet another blow in the legal system. And those are important first steps in achieving the next big win for student-athletes post-Alston. For more analysis of the implications of the denial by the Eastern District of Pennsylvania of the motion to dismiss in this case, Sam C. Ehrlich, a J.D./PhD and Asst. Professor at the Boise State University College of Business and Economics, who originally broke news of the decision, has a great twitter thread: Sam C. Ehrlich on Twitter: "BREAKING: Eastern District of Pennsylvania denies motion to dismiss minimum wage/overtime lawsuit filed by Villanova football players. More to come." / Twitter. [1] Memorandum and/or Opinion – #55 in JOHNSON v. THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (E.D. Pa., 2:19-cv-05230-JP) – CourtListener.com.

This week ESPN announced that longtime on-air personality Rachel Nichols would no longer be covering the NBA for the network, and that her daily studio show The Jump would be taken off the air. The decision comes on the heels of a New York Times report in July that released audio of a conversation Nichols had in which she spoke about the placement of rising star Maria Taylor on ESPN’s NBA coverage. During the audio, Nichols, who is white, can be heard commenting on the decision from ESPN for Taylor to host NBA Countdown during the NBA finals in part because she is black. Nichols states “If you need to give her more things to do because you are feeling pressure about your crappy longtime record on diversity — which, by the way, I know personally from the female side of it — like, go for it. Just find it somewhere else. You are not going to find it from me or taking my thing away.” The conversation happened during the NBA playoffs in 2020 and Nichols is reportedly speaking to Lebron James’ longtime advisor Adam Mendelsohn and James’ agent Rich Paul.[1] ESPN was made aware of Nichols comments shortly after they happened, but they sat on their palms and refused to take any sort of action. However, when the New York Times report was published this July releasing the audio, ESPN swiftly removed Nichols from her assignment as a sideline reporter. Maria Taylor has since left the company to join NBC Sports. The backlash surrounding the audio, and the long-recorded history of ESPN’s issues with diversity ultimately contributed to the network making the decision to part ways with Nichols. David Roberts, ESPN’s senior vice president of video production released a statement concerning Nichols, “We mutually agreed that this approach regarding our NBA coverage was best for all concerned,” the statement continued, “Rachel is an excellent reporter, host and journalist, and we thank her for her many contributions to our NBA content." The future surrounding Nichols, as well as ESPN’s NBA coverage, is murky. It’s unclear if Nichols, who has been with ESPN since 2004, will remain with the company in a non-NBA role — though it seems unlikely. All signs point to Nichols searching for an on-air role at a different network, and ESPN pivoting to new talent to cover the NBA, such as 26-year-old phenom Malika Andrews. Currently, it seems like the breakup is mutual between ESPN and Nichols. The two parties are saying and doing the right things as Nichols sent out a tweet after the ESPN decision to cancel her show became public expressing her gratitude for the opportunity she had. Both sides have seemingly received effective P.R. advice as they are proclaiming “It’s not you, it’s me” as they go their separate ways. But behind the scenes we are left wondering just how icy this relationship was for the past couple months. From the moment the tape was released, ESPN executives did their best to distance themselves from Nichols and formulate a plan to transition her out as smoothly as possible. There is no denying that Nichols’ comments were wrong. But it was somewhat surprising that the network never went to bat for her considering she was once viewed as a face of the company. ESPN viewed her actions as unforgivable (albeit only when the public was made aware of them), and ultimately felt that what she brought to their NBA coverage was replaceable. There is widespread criticism surrounding ESPN’s decision to let Nichols go, including NBA commissioner Adam Silver who stated, “Careers shouldn’t be erased by a single comment.” Could a lawsuit be the next step in this saga? First things first — the way in which the infamous Nichols conversation was recorded likely violated state wiretapping laws. The details surrounding how the conversation was recorded and distributed aren’t crystal clear and thus it’s difficult to predict in the legal context. But reports are that Nichols unknowingly made the comments as her camera was still recording and an ESPN employee took the opportunity to send her comments around the company to show she was a “backstabber” to her colleagues.[2] Both Florida, where the conversation took place, and Connecticut, where ESPN is headquartered, have two-party consent wiretapping laws. This means that both parties to a conversation must consent to being recorded, which Nichols and the individuals she was talking to certainly did not do. An ESPN employee breaking state wiretapping laws to record another employee to purposefully expose them isn’t a great look for the Worldwide Leader in Sports. On top of all of that are the unknown details surrounding Nichols and ESPN’s breakup. If I were to guess, ESPN forked over a large chunk of change to Nichols in exchange for her promise to move on from ESPN quietly. The network has skeletons in their closet involving how they handled this situation, and they don’t want someone like Nichols bringing them to light. Additionally, Nichols may have a case against ESPN for wrongful termination. It was Nichols’ comments that led to her own demise, but there is no question that the executives at ESPN could have handled this better. Without all the details being made public, it’s difficult to speculate how likely it is we see a Nichols legal challenge to this breakup. But I would be surprised if this is the last we hear about the split between Rachel Nichols and ESPN. [1] Joe Hernandez, Rachel Nichols' ESPN Show Is Canceled After Her Comments About Maria Taylor, NPR, (last visited Aug. 27, 2021) https://www.npr.org/2021/08/26/1031235088/rachel-nichols-espn-show-canceled-maria-taylor-nba-jump. [2] Andrew Marchand, ESPN Embarrassed Themselves During the Rachel Nichols Saga, New York Post, (last visited Aug. 27, 2021) https://nypost.com/2021/08/25/espn-embarrassed-itself-during-the-rachel-nichols-saga/. 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 and instagram @MattNettiMN.

Marketing 150 years of history and tradition to a younger crowd has been a challenge MLB and their leaders have been faced with over the last decade. Rob Manfred has instituted new rules, juiced balls, and more, in an attempt to increase the action while decreasing the dead time, resulting in a game that would cater more to the 60-second Tiktok generation. With all that none of these marketing attempts have drawn more attention to this year's game than a new sensation in the product itself — Shohei Ohtani. The electrifying two-way player is doing what hasn’t been done in over 100 years of the game's illustrious history. The 27-year-old, Japanese born, American League All-Star Starting Pitcher, and Home Run Derby contestant, throws a 100 MPH fastball while hitting 450 foot homers. Baseball’s current Home Run leader, is the front runner for the league’s MVP award on the field, and has the looks, smile, and personality of a Hollywood superstar off it. This combination has turned Angels games into appointment television, and Ohtani into an internet sensation. Be it on Tiktok, YouTube, Twitter, Instagram, or wherever, adding the “#ShoheiOhtani” tag will break the algorithm and send your content to the moon. (Your welcome for that free marketing tip.) All this hype on the web, has not translated however, to increased stadium attendance. While Covid restrictions and fears definitely play a factor in attendance totals being down across the league, the Los Angeles Angels (Ohtani’s team) are currently ranked 20th in average road attendance, 17th in average home attendance and 18th in overall attendance. (One might make the argument that playing in California may play a role in this, however the Dodgers and Padres are ranked 1st and 3rd respectively.) Last week, in Baltimore I got to see Shohei Ohtani pitch for the first time. I have been to Camden Yards - home of the Orioles countless times in my life, and there was definitely an extra buzz around the park that night. There were Orioles fans and Angels fans of course, but there were fans of all different teams as well. The A’s, Rays, Phillies, and Brewers, were all represented. They were there to see Ohtani. Every time he stepped out on the field they cheered. With every pitch he threw or faced there were “oohs” and “ahhs”. I expected this. What I did not expect however, was the announced attendance. Just under sixteen thousand. Sure, this is nearly 60% higher than the Orioles average attendance of 10.3 thousand, but it still felt small. This is the only time Ohtani will pitch in Baltimore this year. Baseball fans in a 100 mile radius should be traveling to see him. So why did only half the tickets sell? Being someone who works in marketing (for the Orioles radio network oddly enough), and given MLB’s history of poor marketing I pondered the following question. Should it be the responsibility of the team or the league to market Ohtani when he’s on the road? The argument can be made that the league should be pushing out ads and trying to sell out every game as he travels from city to city. Experiencing an athlete of his caliber and marvel in person would certainly draw a casual sports observer closer to the game of baseball, and would undoubtedly influence a young mind, and help grow the game. On the other hand, why should teams hosting Ohtani get an extra boost in marketing spend from the league? After all, it is the team that stands to gain in ticket sales, merchandise, food, beverage, and all other park amenities from the increase in audience. So why not the teams themselves? I just told you how much they stand to gain, why not gain even more? Coming into the night the Orioles had lost 19 consecutive games. That team was certainly not drawing fans to see them play, but can the message to your crowd really say “come see our opponent play”? The team was already embarrassed in the first of the three game set with the Angels, when the home crowd booed their own manager for pitching around the dangerous Slugger. So which one is it? Either way, it's a fascinating sports business debate that will continue to come up as the season progresses. Comment below or message me on Instagram @rami.lavi and on Twitter @rami_lavi to keep the conversation going.

The loss of Tyler Skaggs is an unfortunate tragedy, the effects of which will play out in the legal world for a while. Skaggs was a veteran pitcher for the Los Angeles Angels of Anaheim. Athletes face a lot of pressure to perform well for their individual success as well as the success of the team. That pressure also means battling through pain and injury for the same success. Skaggs felt the pressures for success with the Angels and struggled through injury as well.[1] In 2015, Skaggs had Tommy John surgery and missed the entire season. He returned the following season and pitched through pain. Skaggs led the Angels in several pitching categories while the pain and pressure continued until 2019 when he passed away due to an overdose of a combination of oxycodone and fentanyl given to him by Eric Kay, an Angels staff member. Eric Kay was the former Communications Director for the Angels who had a history of opioid abuse in the past.[2] Kay had abused opioids with Skaggs for years and admitted to federal investigators that he had given Skaggs the medication days before his death. Kay had also informed investigators that there were members of the Angels staff that were aware of Skaggs’ history of drug use. The information provided by Kay has led to Kay’s own criminal trial set for November 8, 2021.[3] In addition to the criminal trial, two civil cases have also been opened against Kay, the Angels, and another former Angels staff member. Skaggs is survived by his parents Debbie Hetman and Darrell Skaggs as well as his wife Carli Skaggs. Two civil cases have been filed against the Angels: one by Tyler Skaggs parents and one by his wife. The civil action in both cases is for wrongful death and negligence. To prove negligence, a plaintiff (the Skaggs) must show four elements: (1) a duty of care was owed to the plaintiff by the defendant, (2) a breach of that duty of care, (3) injury because of the breach of the duty of care – known as causation, and (4) damages.[4] The Skaggs argument is that the Angels “…owed Tyler Skaggs a duty to provide a safe place to work…”[5] and that the duty was breached because Kay, an employee with access to players like Skaggs, provided opioids to Skaggs and should have had knowledge of this dealing and the result was Tyler’s tragic death. The argument for the claim for negligence against Eric Kay and the other member of the Angels organization is that they are liable because they were working within the scope of their employment with the Angels when the wrongdoing occurred. In response to the complaints filed, the Angels made a statement that the lawsuits "are entirely without merit and the allegations are baseless and irresponsible," and that they would "vigorously defend" in court.[6] In their attempt to defend themselves, the Angels organization has decided to not cooperate with federal subpoena’s regarding their internal “independent” investigation. For more on the Angels subpoena issue, see The LA Angels Subpoena: What Does it Mean? by Evan Mattel.[7] These civil cases are in the beginning stages with no trial dates set but there are strong arguments made by the plaintiffs that the Angels were aware not only of Eric Kay’s drug abuse but also Tyler Skaggs history. Tyler Skaggs was performing under the pressure that the ball club enabled and that meant suffering through pain and injury. He turned to opioids for pain management reasons, and he absolutely is not the only one to do so. Kay had told investigators that he believed five unnamed players within the Angels organization have been using opioids and that he had been supplying them from 2017 through 2019.[8] These players will potentially testify in Kay’s criminal trial. Tyler Skaggs tragic story has led to changes throughout baseball and has created a spotlight in the opioid epidemic throughout the country and its reach into the wide world of sports. The MLB, in agreement with the MLB Players Association, put a system in place to test players for opioids.[9] Players that test positive will be placed in a treatment plan and further positive tests could result in punishment. The agreement between the MLB and MLBPA has also led to the removal of natural cannabinoids (CBD, marijuana, etc.) from the list of “Drugs of Abuse.” This could lead to a change in pain management practices for players throughout the league and potential changes for other leagues. More research is necessary to understand the link between pain management and cannabis consumption but the research that has been done is promising and deserves more attention.[10] All in all, there has been a complex legal fallout from Tyler Skaggs passing. It is clear that the criminal and civil cases will put a bright spotlight on the opioid problem. From there, we can only hope that baseball - and society - learn an important lesson from this tragic event. [1] Debbie HETMAN and Darrell Skaggs, v. ANGELS BASEBALL, LP, Moreno Baseball, LP,, Moreno Baseball Companies Inc., Eric Kay, and Tim Mead., 2021 WL 3550550 [2] Quinn, T.J. “Los Angeles Angels Employee Details Team's Knowledge of Tyler Skaggs' Drug Use to Federal DEA Investigators.” ESPN. ESPN Internet Ventures, October 12 2019. https://www.espn.com/espn/otl/story/_/id/27828247/los-angeles-angels-employee-details-team-knowledge-tyler-skaggs-drug-use-federal-dea-investigators-espn [3] Nathan Fenno (@nathanfenno) Twitter (August 26, 2021 3:09PM) https://twitter.com/nathanfenno/status/1430970560725471236?s=21 [4] “Attorney Work Product Privilege.” Legal Information Institute. Legal Information Institute. Accessed August 27, 2021. “Negligence.” Legal Information Institute. Legal Information Institute. Accessed August 28, 2021. https://www.law.cornell.edu/wex/negligence [5] HETMAN et al v. ANGELS BASEBALL, LP, WL 3550550 [6] Quinn, T.J. “Pitcher Tyler SKAGGS' Family Files Suits against Los Angeles Angels, Former Employees.” ESPN. ESPN Internet Ventures, June 29, 2021. https://www.espn.com/mlb/story/_/id/31731359/pitcher-tyler-skaggs-family-files-suits-angels-former-employees. [7] Mattel, Evan. The LA Angels Subpoena: What Does it Mean? Conduct Detrimental August 27, 2021 https://www.conductdetrimental.com/post/the-la-angels-subpoena-what-does-it-mean [8] Fenno, Nathan. “Prosecutors in Tyler SKAGGS CASE Accuse Angels of Not Complying with Subpoena.” Los Angeles Times. Los Angeles Times, August 24, 2021. https://www.latimes.com/sports/angels/story/2021-08-24/tyler-skaggs-prosecutors-angels-investigation-eric-kay-drugs [9] Zialcita, Paolo. Major League Baseball Drops Marijuana, Adds Opioids, Cocaine To 'Drugs Of Abuse' List. NPR. NPR, December 12, 2019 https://www.npr.org/2019/12/12/787550622/major-league-baseball-drops-marijuana-adds-opioids-cocaine-to-drugs-of-abuse-lis [10]Mark A Ware, Dennis Jensen, Amy Barrette, Alan Vernec, & Wayne Derman, Cannabis and the Health and Performance of the Elite Athlete 28 Clinical Journal of Sport Medicine 480 September 2018

With legal sports betting in Arizona set to launch on Sept. 9, an Arizona Indian tribe is taking steps to try to prevent that from happening. Late last week, the Yavapai-Prescott Indian Tribe (“YPIT”), a federally recognized Indian tribe located within the State of Arizona, filed a lawsuit in the Maricopa County Superior Court seeking a judicial declaration that Arizona’s new sports betting law—which grants 10 sports wagering licenses to the state’s professional sports teams and 10 licenses to Indian tribes—is unconstitutional because it eliminates the “exclusivity” granted to Arizona’s Indian tribes under a 2002 amendment to the Arizona Constitution. The YPIT claims that the 2002 constitutional amendment—a voter-approved ballot initiative designated on the statewide ballot as Proposition 202 (the “Indian Gaming Preservation and Self-Reliance Act”)—expressly limited all gaming within Arizona to Indian tribes and, through a model compact authorized as part of that voter initiative, granted the YPIT and all other state-compacted tribes the “exclusive right” to operate Class III gaming (a category of gambling under federal law which includes sports betting). The YPIT contends that the new sports betting law (H.B. 2772)—which expands gambling beyond tribal borders and allows both tribes and non-tribal entities to operate sports wagering under state-issued licenses—violates the exclusivity granted to the YPIT under Proposition 202 and its 2003 Compact with the State of Arizona. This breach of exclusivity, the YPIT alleges, is also in violation of the state’s Voter Protection Act (“VPA”), a provision of the Arizona Constitution which limits the state legislature’s ability to amend voter-approved initiative measures unless the amending legislation “furthers the purposes of such measure and at least three-fourths of the members of each house of the legislature . . . vote to amend such measure.” H.B. 2272 easily cleared the three-fourths approval threshold in the Arizona Legislature. But that’s not the problem according to the new lawsuit. The YPIT complaint focuses on the “furthers the purposes” language of the VPA. To that point, the YPIT alleges that the “primary purpose” of Proposition 202 was to grant Arizona-based Indian tribes the “exclusive right” to engage in Class III gaming activities (which include sports betting), while claiming that the real purpose of H.B. 2772 was to accomplish the exact opposite: to “eliminate” Class III exclusivity for Arizona’s compacted Indian tribes by granting non-tribal individuals and entities the right to engage in sports betting and other Class III games (such as keno and draw games). Based on this alleged violation of the exclusivity language in Proposition 202—which rises to the level of a state constitutional violation through the Arizona Voter Protection Act—the YPIT seeks a judicial declaration that H.B. 2772 is unconstitutional. This is the primary claim advanced in the YPIT lawsuit. However, the YPIT also asserts as additional claims that the new law unfairly discriminates against tribal entities because every professional sports team in the state will be able to secure one of the ten “event wagering” licenses reserved for pro sports teams while roughly half of Arizona’s 21 Indian tribes will not be to participate in sports wagering because the new law caps tribal licenses at 10. The YPIT contends that this disparate treatment renders H.B. 2772 an unconstitutional “special law” and also violates the equal protection clause of the Arizona Constitution. The relief that the YPIT seeks from the court is an injunction prohibiting the Arizona Department of Gaming—the state’s gambling regulator—from issuing event wagering licenses and allowing sports wagering to commence under H.B. 2772, “and to maintain the status quo” during the pendency of the lawsuit, until the court determines whether H.B. 2772 is lawful. Towards that end, the YPIT has filed a motion for a temporary restraining order and preliminary injunction. An emergency hearing on the motion has been scheduled for Sept. 3. The Court will likely issue a ruling before the expected Sept. 9 launch date for legal sports betting in Arizona. To be granted a preliminary injunction—which is an “extraordinary” and “drastic” remedy—the YPIT, as the requesting party, must prove four things: (i) that there is a “strong likelihood” of success on the merits following a trial; (ii) the possibility of “irreparable injury” not remediable by money damages if the injunction is not granted; (iii) a balance of the hardships in its favor; and (iv) the public interest would be served by the issuance of the injunction. The requesting party must establish all four of these elements at the hearing; if just one is missing, preliminary injunctive relief will be denied. A clear obstacle to YPIT’s request for emergency injunctive relief would seem to be problematic language contained in section 3(h) of the standard form of tribal-state gaming compact expressly incorporated within Proposition 202. (This is substantially the same compact that the YPIT signed in 2003). Section 3(h)—revealingly entitled “Additional Gaming Due to Changes in State Law with Respect to Persons Other Than Indian Tribes—expressly contemplates that the State of Arizona would enact new laws to authorize other forms of Class III gaming for non-tribal entities. Rather than expressly prohibiting such action—as the YPIT’s complaint appears to suggest—the model compact simply gives the YPIT the right to reduce its revenue-sharing payments to the state. Section 3(h) provides, in relevant part, that “[i]f, on or after May 1, 2002, State law changes . . . to permit either a person or entity other than an Indian tribe to operate . . . any form of Class III Gaming . . . that is not authorized under this Compact, . . . then, upon the effective date of such State law, . . . the Tribe’s obligation . . . to make contributions to the State shall be immediately reduced . . . to seventy five hundredths of one percent (.75%) of its Class III Net Win for the prior quarter.” This remedial provision makes crystal clear that the YPIT—and, equally important, the voters of Arizona—understood that Proposition 202 left open the possibility of subsequent (i.e., post-2002) changes to state law that would expand Class III gambling to include non-tribal persons and entities at locations outside of tribal lands. And it provided a very specific economic remedy if that were to happen—i.e., the Tribe would be able to reduce its revenue-sharing payments to the State. Throughout their complaint, the YPIT appears to be conflating the “exclusivity” language in Proposition 202 with an outright ban on any new forms of Class III gaming. Contrary to the allegations in the YPIT’s complaint, Proposition 202 did not “expressly limit[] gaming only to Indian Tribes” (para. 26) or to “limit all forms of Class III gaming within the State to on-gambling reservation gambling by Arizona Indian tribes” under the terms and conditions of the model compact expressly incorporated within Proposition 202 (para. 29). Rather, as made clear in its “Declaration of Purpose,” Proposition 202 merely “authorized” the Governor to execute new tribal-state compacts in accordance with specified parameters “so that Indian casinos can continue to operate.” Or, as a 2002 fiscal impact statement prepared by the Joint Legislative Budget Committee Staff prior to the vote aptly described it, “Proposition 202 allows an increase in the number of slot machines at Indian casinos.” While Proposition 202 grants Arizona’s Indian tribes the right to conduct gaming in the state “with substantial exclusivity” (see section 13 of the ballot initiative), it did not expressly limit Class III gaming to Indian lands or purport to prevent the Governor or the state legislature from expanding the gambling entitlements in Arizona. The “exclusivity” provision in the model compact was tied to a certain level of revenue-sharing payments, such that if any new state laws authorizing Class III gambling infringed upon tribal exclusivity, the tribe’s remedy under section 3(h) would be a reduction of revenue-sharing payments, not a court injunction. Stated another way, the availability of this purely economic remedy—and the other similar remedies afforded by section 3(h)—negates the element of “irreparable injury” that is a condition precedent to the entry of a preliminary injunction. Daniel Wallach is the co-founder of Conduct Detrimental. He is a nationally-recognized gaming and sports betting attorney. You can follow him on Twitter at @WALLACHLEGAL.

As a two-time regular season MVP and the reigning NBA Finals MVP, Giannis Antetokounmpo is arguably the best all-around player in the NBA right now. Delivering totally awe-inspiring performances game after game, the “Greek Freak” is currently one of the most well-known basketball players in the world. With his unstoppable game play, the 26-year-old has earned his famous name and brand and has been adamant about protecting it in the past, as reported by Conduct Detrimental writer Jason Morrin. Just a few days ago, Giannis and his attorney Anastasi Pardalis filed yet another lawsuit in New York alleging false designation of origin, false endorsement, misappropriation of intellectual property rights and violation of his right of publicity by Defendants through the unauthorized use of his name and likeness. The August 24 Complaint names eleven (11) different defendants and claims each of them have been selling counterfeit stickers, apparel, buttons, masks, earrings, digital downloads, and other items bearing Giannis’ name and likeness on the online marketplaces RedBubble and Etsy. The lawsuit claims that Defendants’ merchandise cause significant consumer confusion as to the affiliation, sponsorship and/or endorsement by the NBA superstar. The pleading cites to Giannis’ efforts, his impressive professional abilities, and widespread popularity that have made his well-known brand an invaluable asset. The Complaint states that as soon as Giannis learned of Defendants’ products, he sent a cease and desist letter to each of them demanding that they immediately stop selling “Counterfeit Products violating the Antetokounmpo Rights.” In addition, he requested that Defendants provide him with a full accounting of all merchandise sold in violation of his intellectual property rights and right of publicity. While some of the Defendants responded to the letter, they all ultimately failed to take any actions “to ensure that the counterfeit activities would cease.” Defendants’ failure to cooperate prompted Giannis to file this lawsuit to protect his prominent brand that he tirelessly worked to create. Giannis further alleges that the Defendants’ products were sold with the purpose of “confusing and misleading consumers into believing that they are purchasing products associated with or endorsed” by Giannis and to “avoid expending any licensing fees.” (Giannis Antetokounmpo Complaint Filed 08/24/21) In total, the Complaint asserts the following seven (7) causes of action: 1. False designation of origin and false descriptions in violation of 15 U.S.C. § 1125; 2. Deceptive acts and unfair trade practices (N.Y. Gen Bus L. § 349; 3. Common law unfair competition and misappropriation; 4. Unjust enrichment; 5. Tortious interference with prospective economic advantage; 6. Conspiracy and concert of action; and 7. Violation of right of publicity Additionally, Giannis is asking for the following relief. (Giannis Antetokounmpo Complaint Filed 08/24/21) Giannis has been working hard to protect his brand ever since he entered the NBA, and has more than 13 trademark infringement lawsuits to show for it. This time is no different. As a player who grew up hustling and selling merchandise on the streets of Athens, Giannis has risen from humble beginnings. With the emergence and prevalence of modern technology and widespread use of social media, professional athletes are given the tools to really make a name for themselves both on the court, and off the court. As Bill Shea at The Athletic phrased the importance of Giannis’ previous trademark filings so nicely, “The situation is an example that experts say is one the risks that star athletes face: Protect their trademarks using the legal system or face the loss of those protections that allow them to control their image, brand and related monetization – which can be worth millions of dollars.” By no means are Giannis’ filings an indication of greed. In my opinion, Giannis is merely using the available resources the legal system has given him to protect his name, image and likeness in the commercial space. Stephanie is a recent graduate of New York Law School and a law clerk at Geragos & Geragos. She is also Website Editor and Guest Host for Conduct Detrimental. You can find her on Twitter @SWeissenburger_ and Instagram @Steph_ExplainsItAll

On Sunday night, Jake Paul defeated Tyron Woodley in a 2 to 1 split decision (77-75, 75-77 78-74) to move to 4-0 in his professional boxing career. Although Jake Paul has yet to step in the ring with a professional boxer, Tyron Woodley was a significant step up from Ben Askren, who looked like he had trained for approximately 45 minutes before his fight. Woodley, a former UFC Welterweight Champion, looked in-shape and prepared for this fight. It was the first time that Jake Paul has been tested in his career, with Woodley landing a couple of big shots, one of which caused Paul to stumble before being saved by the ropes. Ultimately, however, Paul did enough to win, landing some big shots of his own and fighting a more technical fight. After the fight, Jake Paul was asked about his next opponent. He dodged the question, indicating that he might step away from the sport and would come back when he feels ready. When the microphone turned to Woodley, it was clear that he was not happy about the decision and called Jake Paul out for a rematch. Paul told Woodley that he had his chance and that he was moving on. Pressed by Woodley, however, Paul stated that “if you get the tattoo [referring to the “I Love Jake Paul” tattoo that the fighters previously agreed to], then let’s run it back.” Woodley responded “bet – is that a bet?”, to which Paul replied “deal”. The two fighters then shook hands in front of several million witnesses. The question now turns to whether that agreement in the ring can be considered an enforceable agreement. The basics of contract law are clear in that there must be a valid offer, acceptance of that offer, and adequate consideration for a contract to be enforceable. A valid offer must be sufficiently clear such that any reasonable person could understand and be expected to follow it. Importantly, the parties’ subjective intent to the agreement does not matter. In this case, Jake Paul likely made a valid offer to give Woodley a rematch if Woodley upheld their tattoo bet, regardless of Paul’s subjective intent. An offer can require acceptance either by promise, performance, or some combination of both. Importantly, when an offeror requests some act – such as getting an “I Love Jake Paul” tattoo – in return for his promise, and the offeree fully performs the act, that performance constitutes sufficient acceptance of the offer to form a binding contract. Under the doctrine of “offertory estoppel”, an offer which the offeror (1) should reasonably expect to induce action on the part of the offeree, and (2) actually induces such action, is binding as an option contract to the extent necessary to avoid injustice. Importantly, the conduct of the parties after the disputed contract is also relevant. If Woodley actually gets the tattoo, then the elements of estoppel are met, and Woodley could have a legitimate argument that a contract was made, and that Paul should be estopped from backing out. Paul would likely argue that no contract was made because the terms are not definite or explicit enough to permit the full intent of the parties to be ascertained. An even bigger issue for Jake Paul is that his team reportedly negotiated an automatic rematch clause in his contract with Tyron Woodley if he lost. Paul would be hard pressed to claim that he never wanted a rematch, especially since the terms were likely negotiated prior to the first fight. Although this may seem like two fighters in the ring in the heat of the moment, this may not be the last that we hear of this rematch. Verbal agreements between parties are just as enforceable as written ones. Although they are often difficult to enforce for lack of clarity, this one was witnessed by millions of viewers around the world. John Nucci is a 3L at Penn State Law and can be reached on Twitter at @JNucci23 or by email at [email protected]

The U.S. Department of Justice (DOJ) has announced that it will distribute forfeited funds recovered from perpetrators involved with the 2015 FIFA corruption scandal which rocked the soccer world. The initial remission, which stands at $32.3 million, will be awarded to FIFA, the global governing body of soccer, as well to CONCACAF and CONMEBOL, the regional governing bodies of the Americas. The announcement comes after federal prosecutors in New York have spent years investigating and prosecuting individual soccer officials, sports marketing executives, and corporate entities for their involvement in a series of bribes and kickbacks tied to the hosting and broadcasting rights of high-profile soccer events across the globe. In addition to criminal charges, the scandal resulted in wide-spread personnel changes, including the stepping down of FIFA President Sepp Blatter in 2015, as well as a formal investigation into the validity of Russia’s Qatar’s hosting rights for the 2018 and 2022 FIFA World Cups, respectively. In a press release issued on August 24, the DOJ stated that, to date, 27 individual defendants have pled guilty or have been convicted of various crimes related to the scandal such as racketeering, honest services wire fraud, and money laundering.[1] While the U.S. Government continues to pursue bad actors involved with the scandal, the DOJ announced that the distribution—which will eventually rise to a total of $201 million—will be used by FIFA, CONCACAF, and CONMEBOL to fund youth development, community outreach, and humanitarian programs through a new “World Football Remission Fund,” established by the FIFA Foundation—an independent entity established in 2018 tasked with development of the beautiful game across the globe. While it may seem counterintuitive to provide financial restitution to the very organizations that were deeply embroiled in the events of 2015, it is important to note that the governing bodies have maintained that they have been the victims in this situation. It would appear, through the DOJ’s announcement, that the government agrees with this stance and is confident that the safeguards incorporated into the FIFA Foundation—which includes increased oversight and independent audit systems—is sufficient to meet the needs of all adversely affected by the corruption scandal. August 24th’s announcement only serves as an opening salvo for reparations to the soccer community. The U.S. Attorney’s Office’s FIFA Task Force continues to work with the DOJ’s Asset Forfeiture Program, the Money Laundering and Asset Recovery Section of the DOJ’s Criminal Division, the FBI’s New York Field Office, and the Internal Revenue Service’s Criminal Investigation Division to ensure full prosecution of corrupt individuals and corporations and make reparations for the 2015 scandal. Additionally, several other countries, including Australia[2], Costa Rica[3], Switzerland[4], and the United Kingdom[5] launched their own independent investigations into soccer officials and the events surrounding the 2015 corruption scandal. Despite allegations of bribery surrounding the awarding of the hosting rights of the 2022 FIFA World Cup to Qatar—as well as intense scrutiny surrounding working conditions in preparation for the event—there has been no indication that the Gulf nation will be stripped of the tournament. The world is preparing to turn its eyes to Qatar for the next edition of the World Cup, which is set to kick off on November 21, 2022. [1] Department of Justice Office of Public Affairs. Justice Department Approves Remission of Over $32 Million in Forfeited Funds to Victims in the FIFA Corruption Case. Web. Aug. 24, 2021. https://www.justice.gov/opa/pr/justice-department-approves-remission-over-32-million-forfeited-funds-victims-fifa-corruption [2] Reuters. Fifa crisis: Australian police agree to look into $500,000 paid to Jack Warner. Web. May 28, 2015. https://www.theguardian.com/football/2015/may/29/fifa-crisis-australian-police-agree-to-look-into-500000-paid-to-jack-warner [3] Reuters. Costa Rica opens probes into arrested FIFA official Eduardo Li. Web. May 27, 2015. https://www.reuters.com/article/us-soccer-fifa-costarica/costa-rica-opens-probes-into-arrested-fifa-official-eduardo-li-idUSKBN0OC26X20150528. [4] Associated Press. Swiss Court Puts Qatari on Trial in Soccer Case Next Week. Web. Sept. 11, 2020. https://www.usnews.com/news/sports/articles/2020-09-11/swiss-court-puts-qatari-on-trial-in-soccer-case-next-week [5] BBC. Fifa: Fraud Office investigate money laundering claims. Web. Oct. 27, 2015. https://www.bbc.com/sport/football/34651591

NCAA Student-Athletes (“SAs”) and companies around the country should recognize the extraordinary potential that exists in the market now that SAs control the rights of their name, image, and likeness (“NIL”). Still, the biggest issue in capitalizing on this potential is SAs, coaches, trainers, and companies alike don’t know what they don’t know when it comes to signing NIL deals. Responsible employers will want to avoid risking the eligibility of their favorite institution’s potential game-winning performers. Below is an introductory checklist for every SA and employer to consider when creating a NIL endorsement deal. The Location of the Student-Athlete’s University Determines Applicable Regulations The NCAA, a majority of states, and numerous universities have implemented regulations and laws governing SAs’ NIL rights. SAs and employers should look to the policies of the state where the SA is attending school for the applicable standards. Deal with the Student-Athlete’s Agents, Attorneys, and Accountants Depending on a SA’s earning potential and seriousness about capitalizing on NIL opportunities, he or she may have an agent, attorney, and/or accountant. Companies should be aware of SAs’ representation when negotiating deals, but also recognize any representation is strictly limited to procuring and negotiating market opportunities during the SA’s NCAA eligibility. Consideration Must Exist in Every Deal In other words, two occurrences must happen in every deal: (1) the SA must provide some deliverable to the endorser (Instagram post) and (2) the SA must receive some benefit from the endorser (money or gear). Typically, courts do not evaluate the value of what is provided or received – the consideration simply must be exchanged. Pay-for-Play Limitations Any endorsement deal must compensate a SA only for the use of his or her NIL rights. SAs and companies must avoid compensation that is contingent on enrollment at a particular university or specific athletic performance or achievement. However, royalty deals tied to how many sales a SA’s endorsement generates seem likely to be permissible, but they could potentially trip a few of NCAA’s pay-to-play wires. Usage Rights Clauses The ability to grant NIL rights to a company is exactly how endorsement earnings are made. Companies likely want to be able to use a SA’s NIL rights in perpetuity; however, setting an exhaustion period that defines the length and limitations of a sponsoring company’s use of a SA’s NIL rights for products or materials is an equitable arrangement for both parties. Exclusivity Clauses Companies want to avoid SAs promoting or using competing brands’ products. If additional value is provided, SAs can consider aligning their NIL rights exclusively with certain products and brands. However, any exclusivity rights must be clearly defined and understood by both parties. Additionally, any exclusivity clause must contain language that permits a SA to wear a competing brand when mandated at a competition or event. Force Majeure Clauses Unforeseeable circumstances can prevent SAs and companies from fulfilling a contract. The traditional force majeure clause excuses contract performance when some “act of God” or extraordinary event occurs. Given SAs’ youth and unpredictable schedules, broader flexibility may be necessary to require performance while limiting harsh penalties for individuals who are still in college. Morals Clauses SAs and companies will to want avoid association with individuals who engage in illegal, immoral, or unethical conduct. To protect their reputation, SAs and companies can include a clause that permits termination of the endorsement deal if the other party is involved in such behaviors. Clear Intellectual Property Rights By simply being in a photo, SAs do not automatically own all the required intellectual property (“IP”) rights to the photograph or what is pictured. SAs and companies must obtain the consent to use the trademarks of their institution and other brands in all marketed materials. The third party that originally created any media must also consent to its use in any endorsement. It is important to clarify which party is responsible for obtaining this IP clearance, and what happens if the other party is sued for contributory infringement. Source of Endorsements Certain brands and industries are restricted from entering into endorsement deals with SAs. Specifically, this includes tobacco products, alcoholic beverages, gambling associations, and companies that create conflicts with a university’s exclusive partnerships (think Adidas sponsoring a SA whose university wears Nike equipment). Disclosure is Key Regardless of state and/or university policies in place, SAs should clear every potential endorsement deal with their university’s athletic department. Being proactive will avoid a SA losing eligibility in exchange for the right to receive a t-shirt and write “XYZ Athlete” in his or her Instagram bio. Marketing opportunities are available for companies and SAs that want to capitalize. By keeping in mind the information contained in this basic checklist, companies and SAs can avoid many common pitfalls and confidentially create value for all parties involved. Alexander J. Burridge, Labor & Employment Law Associate, Bodman, PLC

After a year filled with cancellations and postponements because of COVID-19, the 2021 high school football season was getting off to a seemingly normal start. Teams had worked hard over the summer, sweating through two-a-days and weightlifting sessions, with an eye toward an (hopefully) uninterrupted and successful football season. For the most elite high school football programs this past weekend offered up the opportunity to face other elite programs, or at least what they expected to be other elite programs, on national television as part of the Geico High School Football Kickoff. ESPN’s broadcast of one game from the Hall of Fame Classic, however, did not feature two elite programs and may not have even featured two real high schools. FootballScoop, a Sports Illustrated Media Network partner, first broke the story: "A (possibly fake?) high school apparently duped its way into playing on ESPN." IMG Academy, an actual high school football power house and reigning national champion, earned the honor of playing in the prestigious Hall of Fame Classic on ESPN. Its opponent, Bishop Sycamore, on the other hand, raised questions as to whether it was even an actual high school, let alone a nationally recognized high school football powerhouse. Needless to say, the game was not particularly entertaining: IMG Academy won 58-0. (IMG Academy beat Bishop Sycamore 56-6 last season as well). During the game, things got interesting as ESPN’s announcers began questioning how Bishop Sycamore made it into the game in the first place. Apparently, Bishop Sycamore informed ESPN that it had acquired several Division I prospects and, even though ESPN was unable to confirm that these prospects played for Bishop Sycamore, ESPN slotted them in to play on national television. How could this have happened? In order to select high school teams to play in games that will be aired by ESPN, the worldwide leader in sports reportedly utilizes Paragon Marketing Group who helps select the teams that will play, works through scheduling, obtains sponsorships for the games, and handles logistics on game day. And yet, it is believed that Paragon Marketing Group selected Bishop Sycamore to play in the televised game despite FootballScoop’s Zach Barnett looking into the school after the fact and not being able to find much of anything to indicate that the school was even real: Vanishingly little on Sycamore's founding exists on the internet. What appears to be the school's website, BishopSycamore.org, is basically a blog; its most recent post, on May 21, explains how to catch a college recruiter's attention on social media. The website's About Us section is blank. By any indication, Bishop Sycamore appears to be an online charter school that provided Paragon Marketing Group with an inaccurate roster in order to make it into a nationally televised game. The defense offered by Paragon Marketing Group’s president boiled down to little more than saying “our bad” – the president acknowledged that the company wishes they had done more due diligence in vetting Bishop Sycamore, but also that it was hard to schedule people to would actually agree to play IMG Academy.[1] Andrew Brandt is fond of saying that “there will be lawyers” when things go awry in the realm of sports. With the Bishop Sycamore fiasco, will there be lawyers? If so, what cause of action is ESPN likely to bring? And who will ESPN seek a remedy from? Without being able to review ESPN’s contract with Paragon Marketing Group, it is hard to answer these questions. From the outside looking in, it seems as though ESPN could make the argument that it sustained reputational harm and financial harm (in the form of lost viewership) resulting from Paragon Marketing Group’s negligence in procuring a less-than-suitable high school for ESPN’s television broadcast. In all likelihood, ESPN cuts it losses and lawyers will probably not be involved in this instance. But if ESPN did proceed with legal action, there is the possibility that Bishop Sycamore gets dragged in because of its false and misleading statements to Paragon Marketing Group. A word to the wise – be diligent with your due diligence. [1] ESPN announcers blasted Bishop Sycamore in IMG-Bishop Sycamore blowout (awfulannouncing.com).