According to St. Louis’s NBC affiliate, KSDK, the city is seeking two-thirds of the $513 million the city received after attorney fees from their settlement with the NFL. St. Louis, St. Louis County, and the Regional and Stadium Authority (RSA) settled on November 24, 2021, for $790 million after they sued the NFL over the Los Angeles Rams’ departure, specifically how the NFL covered up Rams’ owner Stan Kroenke’s plan for leaving St. Louis as early as 2013 after he found ground in Inglewood, California that would bring the NFL back to Los Angeles three years later. The NFL knew about these relocation plans in 2013 thanks to a video call from Kroenke, which included Commissioner Roger Goodell, Relocation Director Eric Grubman, Pittsburgh Steelers' Art Rooney II, among other prominent figures. That lawsuit spanned four years from late 2018 to late 2021. The parties were going to trial, but they decided to settle. St. Louis wanting two-thirds of the settlement money could be an issue, depending on how they put the money to use, and whether it helps the ongoing problems in St. Louis. Problems in St. Louis include cutting down on crime in the northeast part of downtown, near the Rams’ former home, the Dome at America’s Center. The St. Louis Port Authority, according to CBS affiliate KMOV, announced plans to renovate “Chouteau’s Landing.”. The plans cost $1.2 billion, and they received approval from the St. Louis Port Authority. The St. Louis Port Authority entered into a redevelopment agreement with the Good Development Group on a $1.2 billion dollar redevelopment project south of downtown St. Louis. Developers say they’ve secured 50 acres for the Gateway South Project which will be south of the Poplar Street bridge and along the Mississippi River. The project includes a residential district, which will have affordable housing as well as market housing. Developers say an entertainment district will benefit from three or four major national providers of entertainment. The project also includes an innovation district for the building design and construction industry. The question sports fan in St. Louis, and the public in general, want to know is whether the Dome at America’s Center will be renovated. The XFL announced St. Louis will host a team in 2023. The team plays its games at the Dome at America’s Center. The Dome has not had any renovations since 2012, and those renovations were minor. They included a new video screen, a new field, and new clubs. The Dome has not hosted an NFL game since 2015. It needs renovations, and the Rams stressed this detail in their relocation argument. The money from this settlement needs to and should go to the Dome to renovate it prior to the Xtreme Football League’s (XFL) return to St. Louis. It is dilapidated, and St. Louis should set aside money for the Dome. The RSA is pushing for these renovations, but these reports make it seem like the RSA will not receive enough money from the settlement fund to renovate the Dome. Hopefully, Mayor Jones realizes not only the Dome but that the St. Louis area needs money to bring it out of the crime issues it has had over the years. According to KMOV, it is the downtown area that has the most crimes. People do not visit that area like they used to when the Rams were in town. Even when the Rams were in town, the area started to become a black eye to downtown St. Louis. If St. Louis wants to redevelop the aforementioned area stated above, surely, they can redevelop the area around the Dome and the “Landing.” These areas were hotspots for tailgating before Rams games and for Battlehawk games from 1995-2015 and 2019 respectively. However, according to the St. Louis Post Dispatch, the $513 million settlement will not go towards the RSA’s plan to expand the convention center, but there is no news regarding the Dome. The one-third that remains is being negotiated among the city and the RSA. The RSA was the original party to sue the Rams and the NFL for contract breach, and all they wanted was $24 million for the breach, tortious interference, and the lies the NFL told them when they were told they had a fighting chance to keep the Rams. The city should give the RSA money to renovate the Dome prior to the 2023 XFL season. History repeats itself, and although St. Louis was the number one market for the XFL in 2019 before COVID shut it down, could the XFL pull the plug in St. Louis due to stadium conditions and a poorly written lease? Alex Patterson is a Thomas M. Cooley Law School graduate and works for Kerley and Talken PC as a paralegal. He played football for seventeen years as an offensive and defensive line

By Daniel Wallach Talk about burying the lede. The path to federal court for Deshaun Watson lies in the last 5 pages of Sue L. Robinson's August 1st decision. Despite concluding that Watson committed sexual assault against four women and engaged in a "pattern of conduct" which she characterized as both "predatory" and "egregious" -- Judge Robinson suspended Watson for only 6 regular season games. In declining to suspend Watson for the entirety of the 2022 NFL regular season and post-season, Judge Robinson explained that principles of "fair notice" and "consistency of treatment among players similarly situated" required her to reject the NFL's proposal, which she characterized as both a "dramatic" and "extraordinary change" in position when compared to past disciplinary cases. For cases involving "non-violent" sexual conduct[1] -- the longest suspension previously imposed by the NFL under the Personal Conduct Policy was only 3 games. And in that case, the player -- believed to be Jameis Winston, who allegedly touched an Uber driver "in an inappropriate and sexual manner without her consent" -- had been previously warned about his conduct. Judge Robinson observed that the discipline imposed in that case -- involving similar allegations -- was "far less severe" than what the NFL seeks in the Watson case. In cases involving "domestic or gendered violence" -- for which a minimum 6-game suspension would attach -- Judge Robinson noted that no player had ever been suspended for a full season. The "most commonly-imposed discipline" in such cases was 6 games. While there were three prior cases where players accused of domestic or gendered violence were suspended for 8 games (two players) or 10 games (one player), those cases involved "multiple incidents of domestic violence," the "assault of multiple victims," or "multiple incidents of domestic violence" for which the player pled guilty to a battery. When compared with those prior cases -- none of which came anywhere close to a full-season suspension (even when multiple incidents of domestic violence and/or multiple victims were involved) -- Judge Robinson characterized the NFL's pursuit of a full-season suspension for non-violent conduct as "a dramatic shift in its culture without the benefit of fair notice to -- and consistency of consequence for" -- those in the NFL subject to the Personal Conduct Policy (which encompasses both players and owners). While conceding that it may be "entirely appropriate" to more severely discipline players for "non-violent" sexual conduct -- perhaps even more so than "violent" conduct in certain situations -- Judge Robinson cautioned that such an "extraordinary change" in the league's approach would require "fair notice" to the players similar to the notice they received in 2014 when the NFL revised its Personal Conduct Policy to include a presumptive 6-game suspension without pay for certain first-time violent offenders. By revising its policy, "the NFL gave fair notice to its players and to the public of the probable consequences of such violent conduct" -- namely, that players would face a minimum 6-game suspension. By contrast, there was no notice given to the players that non-violent sexual conduct could be punished more "more severely" than violent sexual conduct, Judge Robinson emphasized. In setting Watson's suspension at only 6 games -- which she called "the most significant punishment ever imposed on an NFL player for allegations of non-violent sexual conduct -- Judge Robinson explained that she was "bound 'by standards of fairness and consistency of treatment among players similarly situated.'" Advance Notice of Discipline Severity is the 'Law of the Shop' in the NFL The words "fairness" and "consistency" have been given short shrift by those who are quick to criticize Judge Robinson's discipline as being too lenient. That might be a valid criticism if her decision were made in a vacuum. But it was not. Rather, as the NFL has acknowledged time and again, player discipline must be "fair and consistent." See In the Matter of Ray Rice, Decision of Hon. Barbara Jones (ret.) Hearing Officer, at p. 16 (Nov. 28, 2014) (quoting NFL Commissioner Roger Goodell). During the Ray Rice arbitration, for example, then NFL Senior Vice President of Labor Policy Adolpho Birch testified that, in determining player discipline, the league is “bound in large part by precedent in prior cases, decisions that have been heard on appeal in the past, and notions of fairness and appropriateness.” Birch further acknowledged that "the reality is that we have to make decisions that are fair and consistent with both the prior case law and the prior precedent . . ." Judge Robinson's analysis of the "fair notice" issue adheres to a long line of NFL arbitral precedent recognizing that players are entitled to advance notice of prohibited conduct and potential discipline. The NFL has even gone so far as to characterize this as the "law of the shop." See Nat'l Football League Mgmt. Council v. Nat'l Football League Players Ass'n, 820 F.3d 527, 539 (2d Cir. 2016) (“[T]he parties agree that the ‘law of the shop’ requires the League to provide players with advance notice of prohibited conduct and potential discipline.”). Such notice is also required in order to comport with industrial due process. See, e.g., William E. Hartsfield, Investigating Employee Misconduct, Vol. 3, Ch. 15, Arbitration, Sec. 15.7 (July 2022 update) (stating that the concept of industrial due process "includes fair notice of the rule and the consequences for violating it. "); Elkouri & Elkouri, How Arbitration Works, Ch. 15-71, Knowledge of the Rules (8th ed. 2017) ("An employee must receive clear notice of both what the employer expects as well as the range of penalties that may be imposed."). The NFL has acknowledged the continued vitality of the "fair notice" requirement in matters of player discipline. During the 2014 arbitration arising out of the 6-game suspension of Ray Rice, Commissioner Goodell described the change to the Personal Conduct Policy -- which added a minimum 6-game suspension for certain types of violent conduct -- as "forward looking because the League is 'required to provide proper notification'" to players. The BountyGate and Hardy Decisions Judge Robinson's "fair notice" analysis will likely be one of the linchpins of the NFLPA's motion to vacate arbitrator Peter C. Harvey's modified discipline. In its motion papers, the NFLPA may wish to highlight two arbitral decisions in particular as exemplifying the broad reach of the "fair notice" doctrine: the BountyGate and Greg Hardy appeals heard by NFL-selected arbitrators. In BountyGate, former Commissioner Paul Tagliabue (serving as the arbitrator) vacated discipline based on the lack of notice, holding that "[a] sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change." In Hardy, despite "multiple separate assaults" and a finding that the conduct at issue was "egregious," Arbitrator Harold Henderson reduced Hardy's suspension from 10 games to 4 games because it violated the CBA requirement of advance notice that increased penalties would be applied. According to Arbitrator Henderson, "ten games is simply too much, in my view, of an increase over prior cases without notice [to the players of the potential for increased discipline]." If a suspension of 10 games were "simply too much" in a case involving "multiple incidents" of domestic violence where the NFL-appointed arbitrator found the conduct to be "egregious," then how might a federal judge view a suspension of 17+ games where the underlying conduct was non-violent and the longest suspension in that category was only 3 games? It suggests that the NFL may not necessarily have an easy time of it in federal court, particularly if the NFLPA succeeds in having the case heard in Delaware federal court, where Sue Robinson served as a judge (including as chief judge) for more than 25 years. [1] The NFL's case included no allegation or evidence that Watson engaged in violence, made threats, applied coercion, or used force. See Judge Robinson's August 1st Decision, at pp. 5 & 13 ("There is no allegation that Mr. Watson exerted any force against any of the therapists. . . . It is undisputed that Mr. Watson's conduct does not fall into the category of violent conduct that would require the minimum 6-game suspension.").

Today, the Superior Court of New Jersey affirmed a lower court decision that Rutgers University is not required to produce film of a December 5th, 2020 football game between Rutgers and Penn State pursuant to an Open Public Records Act (“OPRA”) exemption. On January 22, 2021, Rutgers received an OPRA request from plaintiff John Caroff, who said he wanted the film to show his thirteen-year-old daughter, whom he believes “possesses the necessary skill set for her to have considerable future career success as a football strategist and studying college football video advances her qualifications should she seek future employment with a college football staff or as part of the media covering college football." Rutgers’s Custodian of Records, Jewell Battle, denied Caroff’s OPRA request in a February, 2021 email. She explained that the video was exempt from OPRA due to “trade secrets and proprietary commercial or financial information obtained from any source” and “competitive advantage.” Thus, on April 2, 2021, plaintiff Caroff filed a lawsuit against Rutgers and Battle, seeking to compel the University to disclose the Penn State game film. Caroff made it clear that he was “not interested in commercializing it or uploading it to YouTube,” but wanted the video only to “educate his daughter.” Lower court Judge Alberto Rivas didn’t find Caroff's argument persuasive and ruled in favor of Rutgers, finding that OPRA’s proprietary information exemption applied and precluded disclosure of the video. The judge found that Rutgers did not “just give [the video] willy nilly to any person ho asks for it; it is within a defined universe.” Today, the Superior Court of New Jersey affirmed Judges Rivas’s decision, holding that the video is exempt from OPRA disclosure. The court said, “[t]he purpose of OPRA is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.” Further, the court discussed OPRA’s intended role in government transparency, which clearly doesn’t apply in this case. There are 23 explicit OPRA exemptions, including information deemed to be trade secrets and proprietary commercial or financial information. Judge Rivas only held that the video was exempt as proprietary information, not as trade secret, which the appellate court agreed with. The Superior Court also agreed that requiring disclosure of game film would give an unfair advantage to Rutgers’s competitors, as they wouldn’t have to send out scouts to observe the games, for example. With that, the Superior Court of New Jersey ruled in favor of Rutgers University and Battle. Ultimately, I respect this father doing whatever it takes to support his daughter's passion but agree with the court's ruling. The December 5, 2020 game between Rutgers and Penn State ended 23-7 in favor of the Nittany Lions. The teams combined for just 255 total yards through the air. Jason Morrin is a recent graduate of Hofstra Law School. He was President of Hofstra’s Sports and Entertainment Law Society. He will be joining Zumpano, Patricios, & Popok as a law clerk, awaiting July, 2022 Bar Exam results. He can be found on Twitter @Jason_Morrin.

Recently I had the pleasure of sitting down with 10-year NASCAR veteran Ryan Ellis to discuss contracts, crash clauses, and other legal aspects of a NASCAR driver’s daily life. In other sports, contracts and their terminology are an integral part of the process. According to Ellis, however, NASCAR’s smaller teams do not place as much emphasis on contracts. [00:00:43.830] - Jack Bradley … When did you sign your first contract in NASCAR? [00:00:58.890] - Ryan Ellis Yeah, I could be wrong on this. I think my first contract was probably with BK Racing in 2016. So that was probably four or five years, I guess three or four years into my NASCAR real start. But I might have had one before then, but don't remember. But I know I had that one that was like the one obviously I remember signing. I'm pretty sure most of them [contracts] were just like, “Hey, don't crash your car. Here's the race car. Good luck.” [00:18:22.570] – Jack Bradley You're working in these lower teams. You don't really have a contract. Would you call it trust in NASCAR? Do they really trust the drivers or are contracts just not fashionable? [00:18:45.830] – Ryan Ellis I could be wrong here. Maybe it's just me being who I am, but I think the sport is very chaotic in a lot of ways. Teams have week-to-week deals. Some get put together [at the] last minute. So I think some of it is just we're constantly doing something and they might not cross their mind. I could just be slightly naive on how many contracts are out there. I just… I don't think there are really that many out there. If they are, that's with the really new kids. I'm sure obviously the big team[s], they have their deals, but with the mid-pack or mid-tier teams down, it's kind of week to week. And then part of it is as a driver and as a team, you never want to be known as somebody that's suing somebody, a sponsor. You don't want your name in the press doing that. I've been part of some really bad deals and I'm sure teams have. Everybody has. It's just business. That's life. And if I were out there and I sued everybody that did me wrong, one, I'd probably have less money than I did if I didn't sue them. And two, I would probably not be in the garage very often because people would be like, well, Ryan might sue me. So it's just like I think they just know it's not very actionable in a lot of ways, especially with the money that we're dealing with. And they don't want their name associated and they don't want their partner's name associated with it. One important feature of NASCAR contracts is the crash clause. [00:01:26.910] - Jack Bradley I know a lot of race teams use it, but can you explain what a crash clause is and how you've had to deal with that? [00:01:37.730] - Ryan Ellis Yeah, I'll actually have to think of the last time I've had one of those. Once again, I could be wrong on this, but I think the last time I had a crash clause might have been like, in Grand Am racing. But I know if you don't have a large racing background, some of these teams, they're operating at cost, so it's not uncommon to have a crash clause. Usually, it's limited to a certain degree, but I think it depends on driver to driver. Some are like, hey, if you crash the car up to $5,000, you're liable for damage, you're liable for this, but it's hard to delineate some stuff because you can be like, well, the right front tire blew, and I knocked the fence down. That's on the team, but the same with motor stuff. But I'm sure it's changed a lot since I'm so freaking old. But it's scary because as a driver, you're kind of operating at cost, too, for the most part. So I've never been able to really sign a crash clause. So the best-negotiating power is always the power to go down to zero. And I was just like, Well, I can't drive then. … I think it's veteran based. There are probably a few races for three to five years. You're probably past that, I assume. I just don't ever remember having one. I might have had one at my first race, but at the end of the day, as I said, I can just go down to zero and be like, I can't race. If I break like my Xbox, I can't buy a new Xbox. [00:02:45.210] - Jack Bradley When you've driven in the past, say, five or six years, is it just a handshake agreement when it comes to a crash clause? Or when you're bringing your funding in, are they just well aware that the race car gets wrecked? Is it just on them? [00:03:00.770] - Ryan Ellis .... For these small teams, it's not typical to have a crash pause, probably more likely, especially if you're in your first race. But with most of my guys, I wouldn't survive if I was tearing up stuff. So I'm able to bring up probably a little bit less in terms of sponsorship money just because they know what they're getting. Coming off a crash last week, it doesn't really sound great, but yeah, it's kind of just like, hey, we trust you. We know you've been here, just do your job, and be smart. And at the end of the day, I know that our team will operate better if I don't strike the stuff in. So it's in my best favor to use my head. Another important aspect of a NASCAR driver’s life cycle in the sport is obtaining funding via sponsorship. [00:04:30.910] - Jack Bradley … Your owner, Tommy Joe Martin, stressed the importance of funding and sponsorship to whom they put in the car. You were mentioning your funding. I've seen it in the past, just with Costa Oil and some of your other partners you've had this year. How important is it to find these partners, to get these contracts or deals done to put you in these cars? [00:04:57.190] - Ryan Ellis I guess without these sponsors, I'm just not racing, period. I've been around for a long time, but there are certain rides that pop up that are just, hey, you don't need to bring anything, we’ll pay you a little bit. Sometimes they're a good deal, sometimes they're not. Sometimes if you can make the race you're in, you might make a little bit. But with Tommy Joe, I'm always transparent, always honest, and basically, if I don't bring the money, I'm not racing. And it's like that for everybody in our team. It's not just me. So without CorvetteParts.net, without team parts, I'm not at Alpha Prime Racing because that was the base of my deal, and that's what allowed Tommy to make a commitment to me. And then from there. He said, hey, we have these ten, six, whatever it was, races at the time open, and me and my marketing girl Sarah went after it and just said, we're going to try to get as many as we can and we lock a lot down, knocked a lot out, and we’re already doing that for next year. [00:20:45.390] – Jack Bradley You mentioned that when you have a sponsor come in, you of course have a contract with them. Is that contract exclusively with you and you just bring the money to the race team, or is it a contract between the three parties? [00:20:57.870] – Ryan Ellis So I think done correctly, it's a sponsored driver to team, driver to sponsor, and then driver to the team. But there's no contract between the sponsor and the team. I think that's done correctly from a driver's standpoint because that keeps the separation between sponsor and team, which is one thing that is scary because the drivers always worry about losing the sponsors to teams. Teams are worried about losing their sponsor to drivers. So I think that's the right way to do it, but everybody does it differently. I think that's probably just the most mainstream way. I work with Spire Sports and Entertainment. I have been for about three or four months now and I think we're finally going through our first set of contracts like last week. And as far as I know, I don't even know if there's a team mentioned in it right now. So it's probably just sponsor to me, and then I have a deal with Tommy, and that just keeps it separate and I'm way too dumb to know why that is, but I think it's just mainly from a legal standpoint of having a sponsor and team sue each other. The ins and outs of contracts in NASCAR are very different from that of other professional sports. I’d like to thank Ryan for his time and for helping build a picture of the business of NASCAR from a legal aspect. Jack Bradley is currently a Law school student at Duquesne University School of Law and an alum of Georgetown University (MPS) and Penn State University (BA). Jack is also the Co-founder and President of Poppy Packs, a 501c3 charity, and former Head of Marketing and Communications within NASCAR. Linkedin: https://www.linkedin.com/in/jackwilliambradley/ Twitter @JackWBradley

The Formula One world enters its second week of vacant tracks as the summer break rolls on. This week, as expected, had much less drama. I mean how could you beat last week which saw drivers announcing retirement, switching teams, and refuting signed contacts all in a couple of days? This week is more about teams and drivers progressing rather than the dumpster fires we saw in week one. This contrast highlights why Formula One fans often refer to the summer break under its adopted name: Silly Season. Ferrari Designates Robert Shwartzman for Rookie Practice Sessions Laurent Mekies, Ferrari’s Race Director, revealed this week that Russo-Israeli Robert Shwartzman will be driving the powerful F1-75 for both of Ferrari’s rookie free practice 1 session. Per the new 2022 F1 rules, teams are required to run a minimum of two such sessions throughout the season. So far only Mercedes, Williams, and Red Bull have run such a session this season. Mekies stated that Ferrari has not decided which tracks Shwartzman will run at, but he did state that they will be avoiding tracks such as Singapore where drivers require more time on track to get the most out of the car. Robert Shwartzman currently serves as an academy driver for Ferrari after finishing second place in the 2021 Formula Two championship, only behind his teammate Oscar Piastri. Shwartzman currently races under the Israeli flag following the Russian invasion of Ukraine in February 2022. Ferrari Team Principal Mattia Binotto explained this classification by pointing out that Shwartzman was born in Israel, has an Israeli passport, and does not race under a Russian license. The team also made sure that Shwartzman had no agreements with Russian-based companies. Shwartzman’s future contrasts that of former Haas driver Nikita Mazepin who lost his seat in Formula One due to his connection with Russia. Zhou Guanyu Reflects on the First Half of His Rookie Season This week Zhou, the lone rookie in Formula One this year, reflected on his time driving for Alfa Romeo so far this year. He stated that he was impressed with his growth but was very disappointed in the reliability issues that have plagued Alfa Romeo. The team runs a Ferrari power unit which has, so far this season, lead to many DNFs by Ferrari, Alfa Romeo, and Haas. Despite those issues, Zhou is optimistic about what he has been able to accomplish so far this season. He stated, “I definitely think we would have scored more points if we didn’t have that many DNFs." He followed, "but we were able to at least tick off the targets; we went through Q3, scoring points two times, so I’m happy in that way and we show good speed and momentum going forward.” Zhou has certainly had a season filled with ups and downs including one of the most dramatic crashes in Formula One since Romain Grosjean’s incredible fiery crash during the 2020 Bahrain GP. During the first turn 2022 British GP, Zhou was flipped and sent spinning on his halo into a catch fence only feet from spectators. Zhou was left in the car for quite a while as the car became pinned between the fence and a tire barrier. Luckily Zhou was able to be extracted and was taken to the hospital for evaluation. The team provided welcomed news during the race that Zhou was conscious, talking, and sustained no fractures from the crash. This crash highlighted yet another instance where the halo, a driver safety device that the FIA made mandatory on every car in 2018, potentially saved the life of a young racing driver. Even though this was a slower week, the world of Formula One still manages to keep Silly Season alive until the cars are back on the track. As always, I will be updating these stories and breaking others every Sunday until the Belgian Grand Prix on August 28th. Justin Mader is a recent graduate of the University of New Hampshire Franklin Pierce School of Law where he earned a J.D. and a Sports and Entertainment Law Certificate. He can be reached via Twitter: @maderlaw and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.

Along with conference realignment, NIL has been one of the major talking points in college athletics over the past year. Its impact on recruiting, the transfer portal, and locker room chemistry has drawn no shortage of media coverage. While lots of attention has been placed on the various ways college athletes have benefitted from their newfound ability to profit off their name, image, and likeness, the most interesting development to follow since July 2021 is the various ways schools and their fans have handled NIL. Because recruiting is the lifeblood of college athletics and is essential to have success on the field, court, ice, or pool, there was never a doubt that it was going to be impacted by NIL. In fact, some would argue that “NIL” has always been going on throughout the history of college sports, and only now is it actually legal. With that being said, the widespread abundance of boosters, alums, and supporters of a certain school funneling their money into a large “collective” to provide NIL benefits to their players was something many didn’t see coming. In a little over one year, NIL collectives have fundamentally reshaped college athletics by becoming a critical component of athletic success by using novel techniques to compensate college athletes for their NIL. Nearly every power conference school has some form of a collective, and some schools have multiple of them. It seems like every day there is an announcement of a new collective being formed. You’d think that schools would be unequivocally thrilled to see their fans create collectives for their programs. How could it be a negative for them? Before NIL, wealthy donors (aka boosters) had only one legal way to support their beloved alma mater and that was donating it to the school and athletic department. While television revenue has certainly exploded over recent history, many of the stadiums, practice facilities, locker rooms, coaching salaries, and recruiting expenses are helped paid for by boosters. Because supporters couldn’t legally “buy” players, they essentially had to buy infrastructure to put their school in the best position to win on game day. Now, the existence of collectives has changed the whole equation. Yes, fancy facilities are nice, but having a nicer locker room than your opponent doesn’t necessarily help you win the game. Having better players does. This has led to money that once went to athletic departments and schools now ending up in collectives. And to top it off, the schools aren’t the ones controlling these collectives. The boosters are. In some cases, the schools and collectives have co-existed very well. In other cases, not so much. Last week, a group of deep-pocketed USC Trojan fans and boosters announced the launch of a new collective titled “Student Body Right.” Amid the current competition in the recruiting landscape with big-time money being offered to blue-chip recruits, the group claims Student Body Right is essential for USC to properly compete with other top schools that feature collectives. While their plans are not finalized at the moment, their intent is to provide the equivalent of a base salary to every member of USC’s football team who is academically eligible. On the surface, it seems like a great thing for USC. The only problem is that those in power at USC don’t like it. USC administrators see Student Body Right as “being an existential threat that could invite serious scrutiny if the NCAA opts to enforce its NIL policies” given its operation outside of the university’s reach. Earlier this summer, USC partnered with a media agency to establish “BLVD” to exclusively serve USC student-athletes through the development of NIL opportunities. This was USC’s way of entering the NIL space without relinquishing control over the process. Until last week, this was the only known form of an organization facilitating NIL deals to Trojan athletes. But with Student Body Right launching, there is now a “competing” collective that doesn’t have the support of USC’s administration. Trojans AD Mike Bohn told the Los Angeles Times that “USC is not aware of a formal donor-created NIL collective” and “We ask any donors who would like to support USC’s athletes through NIL to please work with BLVD so that all activities are conducted in compliance with state laws and NCAA rules.” Although the NCAA has set interim NIL policies, many believe that they haven’t and won’t be enforced. Although the ruling in the Alston case didn’t have any bearing on NIL, Brett Kavanaugh’s opinion was significant because he blasted the NCAA saying they aren’t “above the law” and “The NCAA’s business model would be flatly illegal in almost any other industry in America." Many collectives are run by lawyers who don’t fear future litigation if the NCAA tries to restrict their operations. However, some schools like USC, which has faced NCAA violations in the past, aren’t too thrilled with having boosters operate on their behalf in securing NIL deals for their players. Moving forward, the school vs. collective dynamic will be interesting to follow. One thing you always hear coaches and administrators emphasize is “alignment” between everyone involved in the program. Having the university resident, athletic director, head coach, and boosters on the same page is essential for a program to reach its potential. Boosters are a necessary component of every college athletic department. Without them, a program won’t have the resources necessary to compete at the highest level. However, if boosters aren’t aligned with the administrators and coaches at a school, problems can arise. There are realistic scenarios where a collective could offer a 5-star recruit a great NIL package to attend a school, but the coaches at that school don’t see him or her as a great fit for their program. The possible issues are numerous. We’ve seen how a lack of alignment at places like Tennessee, Texas, and Auburn can negatively impact on-field results. Hopefully, those involved at USC and other schools who find themselves in similar situations can find common ground. They all share the same goal of winning, so hopefully, that can guide them in this ever-changing landscape of college athletics. Brendan can be found on Twitter @_bbell5

By Daniel Wallach The deck is heavily stacked against any litigant who seeks to overturn a labor arbitration decision in federal court -- with labor awards denied confirmation in fewer than 10% of cases filed in the Southern District of New York, which just so happens to be the NFL's preferred forum for seeking judicial confirmation of arbitrated player disciplinary rulings. By contrast, the NFLPA's preferred judicial forum for challenging arbitrated disciplinary rulings has been "anywhere but New York," as the union has sought to vacate arbitration decisions in the District of Minnesota (where it has obtained favorable rulings in the past before U.S. District Judge David Doty), and, more recently, in the Eastern District of Texas (where the NFLPA secured an early, but short-lived, court victory for Ezekiel Elliott in 2017). Is The Race To The Courthouse Rigged in the NFL's Favor? This wide disparity in outcomes -- with the NFL usually winning in the Southern District of New York (see Elliott and Brady, albeit, following an appeal) and the NFLPA enjoying success in the Minnesota and Texas federal courts -- has spawned a literal "race to the courthouse" between the NFL and NFLPA to secure the more favorable judicial forum whenever there is a league-arbitrated player disciplinary decision. The NFL will ordinarily file a motion or petition to "confirm" the arbitration decision -- which seeks to enforce or give effect to the arbitrator's ruling -- while the NFLPA will typically file a motion or petition to "vacate" (or overturn) the arbitrator's ruling (particularly when it imposes or upholds a player suspension). The need for a "race" to the courthouse is due to the application of the first-to-file rule, a judicial doctrine which recognizes that the first federal district court which obtains jurisdiction over the issues and the parties has priority, with the second federal court typically declining jurisdiction in deference to the first-filed lawsuit. Under the first-to-file rule, the lawsuit which is filed first generally has priority absent a showing of special circumstances (such as bad faith, forum shopping, or other inequitable conduct). And it's been an unfair -- some might even say fixed -- race in recent years, as the NFL invariably files the first lawsuit in federal court because it controls the "timing" of the release of the arbitration decision since the arbitrator is either NFL Commissioner Roger Goodell or a "designee" with close ties to the league (such as Harold Henderson, the arbitrator in the Elliott disciplinary matter). It has long been suspected (but never alleged or proven) that the NFL gets an unfair head start in the proverbial race to the courthouse because the NFL-affiliated arbitrator provides the league with a copy of the arbitration decision before sharing it with the NFLPA. Such an ex parte communication -- if it occurs (and can be proven) -- would constitute the requisite "compelling circumstances" -- such as in cases of bad faith, anticipatory suits, or forum shopping -- that warrants a departure from the first-to-file rule. Despite these suspicions (particularly in the Brady case), the NFLPA has never once argued that the NFL benefitted from an unfair advantage in timing due to being "tipped off" about the decision by the NFL-affiliated arbitrator. But all bets should be off in the Deshaun Watson case, where, to have a more realistic chance of prevailing, the NFLPA must secure jurisdiction in Delaware -- either by filing the first lawsuit or successfully arguing that the NFL acted in "bad faith" by engineering an early release of the arbitrator's decision to ensure that it won the race to the courthouse. Additionally, under a recent California federal court decision (more on that below), the NFLPA can argue that, as the party seeking to vacate the arbitration decision, the NFLPA is the "natural plaintiff" and its later-filed lawsuit should have priority because the arbitrator's decision is immediately binding upon Deshaun Watson per Article 46 of the CBA without the need for judicial confirmation. Why Delaware Should be the Preferred Forum for the NFLPA The case for filing suit in the Delaware federal court system is straightforward. It is the most favorable venue for the NFLPA for one obvious reason. That is the venue where Sue L. Robinson, the jointly selected Disciplinary Officer, served as a federal judge for more than 25 years. She also served as the Chief Judge for the District of Delaware between 2000 and 2007. Of the 5 federal district judges who currently serve on the bench in the District of Delaware, Judge Robinson served with 3 of them; and the other two judges -- both appointed in 2018 -- regularly appeared in her courtroom when they were practicing attorneys in Wilmington, Delaware. The importance of litigating this case in Delaware -- at least from the NFLPA's perspective -- stems from the fact that Judge Robinson's "fair notice" analysis will likely be one of the linchpins of the NFLPA's motion to vacate arbitrator Peter C. Harvey's modified discipline. In declining to suspend Watson for the full year requested by the NFL, Judge Robinson determined that the league failed to provide NFL players with "fair notice" that non-violent conduct (which has never resulted in a suspension of any longer than 3 games since the inception of the Personal Conduct Policy) could be disciplined "more severely" than "violent" conduct (which warrants a suspension of at least 6 games for a first-time offense). She characterized this as both a "dramatic shift" and "extraordinary change" in the NFL's disciplinary approach and culture, comparing it unfavorably with the "fair notice" that the league provided the players in 2014 when it amended the Personal Conduct Policy to provide for a presumptive 6-game suspension without pay for certain first-time violent offenders in the aftermath of the Ray Rice debacle. The "fair notice" principle is a subset of industrial due process. It requires that a person have fair notice not only of the "conduct" that will subject him or her to discipline, but also of the "severity" of the discipline that could be imposed. (See, e.g., William E. Hartsfield, Investigating Employee Misconduct, Vol. 3, Ch. 15, Arbitration, Sec. 15.7 (July 2022 update) (stating that the concept of industrial due process "includes fair notice of the rule and the consequences for violating it. "). Judge Robinson described this principle in her decision as giving the players "fair notice" of the "probable consequences" of certain proscribed conduct. (The NFL has acknowledged the vitality of the "fair notice" requirement in matters of player discipline under the Personal Conduct Policy. During the 2014 arbitration arising out of the 6-game suspension of Ray Rice, Commissioner Goodell described the 2014 policy change as "forward looking because the League is 'required to provide proper notification'" to the players). While there is no guarantee that this argument will persuade a federal court judge to vacate NFL-appointed Arbitrator Peter C. Harvey's modified discipline, Judge Robinson's reasoning and analysis will likely be accorded greater respect in a tribunal where she served as a federal judge (including as the chief judge) for more than a quarter of a century. Further, let's not lose sight of the fact that Judge Robinson is the only neutral and impartial arbitrator in this case. By contrast, Peter C. Harvey is a longtime outside counsel for the NFL and serves in various advisory capacities for the league, including as a member of the NFL's Diversity Advisory Committee. In addition, he advocates for victims of sexual assault and sexual violence as the Vice-Chair of the Board of Directors for "Futures Without Violence," a nonprofit organization focused on ending violence against women and children. While not quite rising to the level of "evident partiality" (or maybe it does, but that's for another day), a Delaware federal judge might be inclined to accord greater weight to the well-reasoned analysis of a former judicial colleague -- who is neutral -- than that of a private lawyer with such deep and profound ties to the NFL and who also happens to advocate for victims of sexual assault, further calling in to question his overall objectivity on the issue. In this case, optics may matter and the stark differences between the two decision-makers would be magnified in Delaware. NFLPA Must Demand Simultaneous Notification of Arbitrator Harvey's Appellate Decision Now comes to the hard part -- winning the race to the courthouse. But how can the NFLPA file the first lawsuit in Delaware if the NFL-affiliated arbitrator provides the NFL's outside counsel with a copy of the decision prior to furnishing a copy to the NFLPA? The NFLPA's outside counsel, Jeffrey Kessler, can take several protective measures to ensure that the NFL does not again wrongly benefit from such early notification. First, he should elicit an assurance from the arbitrator, Peter C. Harvey, that both sides will receive notification of his decision at the exact same time and though the same mode of communication, such as electronic mail. Second, the NFLPA should prepare a shell complaint to be uploaded to PACER by Delaware local counsel as soon as possible after receiving notice and a copy of Arbitrator Harvey's ruling by email. If these precautionary steps do not result in the NFLPA having the first-filed lawsuit, then it raises the specter of the NFL again benefitting from the early release of the arbitrator's opinion. If that were to happen, the NFLPA should not turn the other cheek -- as it did in the Brady and Elliott cases -- and acquiesce to the NFL's chosen forum (the Southern District of New York) as if nothing happened. Instead, the NFLPA should file a motion with the New York federal court requesting the transfer of the first-filed lawsuit to the District of Delaware on the basis that "compelling circumstances" exist that would warrant a departure from the first-to-file rule. As one federal court observed, "[c]ompelling circumstances sufficient to trump a plaintiff's first-filed choice of forum include a bad faith filing by that plaintiff in an attempt to win the race to the courthouse." (Di-Hed Yokes, Inc. v. Imas Dell'Orto of Am., Inc., 2005 WL 8163015, at *3 (D. Minn. Nov. 16, 2005)). Here, the requisite "bad faith" could be shown by evidence that the NFL was only able to file the first lawsuit because it was tipped off early to the decision by the NFL-affiliated arbitrator. The NFLPA is the Natural Plaintiff in This Controversy Alternatively, the NFLPA could argue that the NFL's same-day filing in the Southern District of New York was made in bad faith because confirmation of Peter C. Harvey's arbitration decision is unnecessary. This is because Article 46 of the NFL/NFLPA Collective Bargaining Agreement already provides that the arbitrator's decision on appeal "will constitute a full, final, and complete disposition of the dispute and will be binding upon the player(s), Club(s) and the parties to this Agreement." (CBA Art. 46, Sec. 1(e)(v)) (emphasis added). Since the arbitrator's decision is binding on Watson as soon as it is issued, the NFL's race to the Southern District of New York to file an unnecessary motion to confirm could legitimately be characterized as a bad faith attempt by the NFL to deprive the NFLPA -- the true plaintiff -- of its choice of forum. Delaware has an obvious nexus to the controversy since that is where the disciplinary evidentiary hearing before Judge Robinson was conducted. A recent California federal court decision involving strikingly similar circumstances -- where a party raced to the courthouse to unnecessarily confirm an arbitration award that was already binding on the parties -- can be relied upon by the NFLPA to urge the New York federal court to dismiss or stay the NFL's first-filed lawsuit, or, alternatively, to transfer it to the District of Delaware, where the NFLPA's second-filed suit would be pending. See AIDS Healthcare Found. v. Caremark, LLC, 2022 WL 2903136 (C.D. Cal. May 27, 2002) ("As the party seeking to challenge the arbitrator's award, Caremark is the natural 'plaintiff' or 'appellant' in the case, to draw the analogy. In fact, as AHF concedes in its Opposition, it is not required to obtain judicial confirmation to enforce the arbitration award. It therefore makes logical sense for Caremark to file its motion to vacate first, which unlike AHF's petition, is a necessary filing for it to obtain the relief it desires. . . . Caremark's filing in Arizona also does not evidence forum shopping, when Arizona was the site of the arbitration and therefore is a natural venue for judicial review."). If the NFLPA can secure a Delaware judicial forum -- either by winning the proverbial race to the courthouse or by successfully arguing against the application of the first-to-file rule, Deshaun Watson's chances of seeing the field by Week 7 could increase dramatically. *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.

Gabriel Heinze was fired on July 18, after only half a season in charge of Atlanta United. The former Real Madrid and Manchester United player’s poor start to the season with a 2-4-7 record along with his feud with star striker Josef Martinez didn’t sit well with Atlanta’s front office. In addition, just after he was fired, news came out that the MLS Players Association filed grievances on behalf of the Atlanta United players related to violations that Heinze committed. Among these violations were not having a practice schedule posted in advance, which made players essentially “on call” for practice. He did not give the players enough days off as required by the CBA. The CBA requires that players be given eight days off over an eight-week period along with players not being able to go more than 14 consecutive days without a day off. Heinze also refused to give players water during practice, which there had been rumors of him doing at his previous club, Velez Sarsfield. These grievances were filed around the time that Heinze was fired. A month later now, the grievances were found to be true. The players will be compensated for the denial of the days off they were required to take. According to an ESPN article, “Atlanta will add money to the players' end-of-year bonus pool, and the players will be compensated for the extra days from those funds. The players will also get an additional two days off, to be granted prior to the end of the season.” It is unknown how many consecutive days the players were forced to practice without a day off. Nothing was mentioned about the refusal of water breaks and not giving the players a practice schedule in advance. Atlanta United have enjoyed success since coming into MLS in 2017. In just their second season, they were able to capture the MLS Cup under the current Mexico national team head coach, Tata Martino. Josef Martinez was their star talisman for the MLS Cup and his feud with Gabriel Heinze this season surely played a role in his firing. Since Tata Martino has left, Atlanta United haven’t returned to that glory. Under previous manager, Frank De Boer, they struggled and didn’t have a clear play style. De Boer was sacked and later was appointed manager of Netherlands for this summer’s Euros. He was later fired by Holland following the Euros after a mediocre performance in the tournament. Atlanta United front office believed that Heinze was the man to try to get them back in contention for the MLS Cup, but after only half a season that is not the case. They now turn to former Seattle Sounders assistant, Gonzalo Pineda, to try to steer the team back in the right direction as they currently sit in ninth place in the Eastern Conference.

The rise in popularity of the sport of Mixed Martial Arts (MMA) has allowed its fighters the opportunity to participate in mainstream ventures. However, as former UFC fighter Cat Zingano can attest, with more opportunities comes more legal issues. Cat Zingano is suing the popular actress, Halle Berry for “getting snubbed” of a movie role she was promised. (Halle Berry Sued By Former UFC Fighter Cat Zingano Over Movie Role (tmz.com)). According to the lawsuit TMZ obtained, Zingano met with Berry in July 2019 about a movie she was directing named “Bruised.” Berry told Zingano she was perfect for a role and that she should keep her schedule clear because filming for the movie was looming. In accordance with keeping her schedule clear, Zingano turned down a fight from the UFC after being advised by Berry of the liability concerns the movies insurers had for her potential participation. This tough decision resulted in a negative sum game for Zingano. She now is fired from the UFC and no longer can fulfil her role in the movie Berry promised because according to Berry, the movie requires only UFC fighter to be filmed. In contract law, a binding contract needs what’s called “consideration” to be legally enforceable. This means that the party making an offer and the party accepting the offer both must be exchanging something of value i.e. consideration (RESTATEMENT (SECOND) OF (fbcoverup.com)). Berry was offering Zingano a role in a movie but Zingano did not accept the contract with something of value in return. However, this is not the end of the legal story and Zingano can still recover damages with something called promissory estoppel. Sometimes, a party has not provided sufficient consideration to create a legal contract but has relied on an offer to the extent that they could still sue for damages. There is no contract created but a party’s reliance on an offer has created a legal obligation. This is where promissory estoppel comes into play (RESTATEMENT (SECOND) OF (fbcoverup.com)). For a party to successfully sue for damages under promissory estoppel, they must satisfy three elements. The party must prove (1) she was promised something by a party that that party thought would induce her to do or not do something, (2) she relied on that promise, and (3) enforcement is necessary to avoid injustice. Cat Zingano’s legal team has a legitimate case to prove all three elements of promissory estoppel. First, Zingano was promised by Berry that she would have a role in an upcoming movie featuring fighters. Berry even advised Zingano to reject a fight offer from the UFC so she could be in the movie. Second, Zingano relied on Berry’s promise and advisement and was fired as by the UFC. She forbode making money in a fight in reliance that she would be a star in a movie. This reliance resulted in her firing and now no role in a movie. Lastly, Zingano’s team can definitely argue that enforcement is necessary to avoid injustice. Berry promised Zingano a role in a movie and reneged on her promise. Even though Zingano did not technically accept the contract, she relied on Berry’s promise to her detriment. Berry had the opportunity to film a movie with a UFC fighter like she required. Zingano met this requirement, took the steps Berry required in reliance of this promise, and was ready for action. With all this in account, it only makes sense for a court to remedy this injustice by awarding damages.

The Athletic’s Evan Drellich and Ken Rosenthal reported on Wednesday that MLB has proposed lowering the initial luxury tax threshold[1] and adding a salary floor in an introductory economic proposal ahead of more substantial Collective Bargaining Act discussions this fall. The current CBA runs through December 1. The proposal allegedly includes a salary floor, a concept long lobbied for by players and their advocates in the media[2] that would be set at $100M. Currently, six teams have payrolls below the $100M mark, with two others hovering around that number[3]. More concerning news for the players is the suggestion of a four-tier luxury system, which creates a new lowest tier beginning at a $180M threshold. Taxes related to that tier would begin at 25%. This new proposed threshold adds a fourth tier to the existing three tier system. Teams that currently exceed the 2021 luxury threshold of $210M incur a 20% tax on each dollar above that threshold. Clubs exceeding the threshold by $20M to $40M incur an additional 12% surtax upon each dollar above the $20M threshold. Exceeding the threshold by more than $40M carries a 42.5% penalty the first time and a 45% rate if the tax threshold is exceeded by more than $40M in a second consecutive season. Being $40M or more above the threshold for successive years also results in Rule 4 picks being moved back 10 selections[4]. These taxes are progressive and are outlined in the chart below[5]. According to Spotrac, just two teams (the LA Dodgers and Boston Red Sox) have exceeded the Luxury Tax mark in 2021[6], and only the Dodgers have blown past the $40M overage marker. (Chart Courtesy of MLB Trade Rumors) Still, the penalties of exceeding the luxury tax, even by extreme amounts, are paltry compared to the possible benefits. On their way to a gentleman’s sweep of the Dodgers in the 2018 World Series, the Boston Red Sox blew past the $40M overages in 2018 and during their 2019 championship hangover season. All told, the Red Sox paid less than $30M in taxes stemming from this largesse[7]. Considering the financial benefits that come with winning the World Series, it is likely that Fenway Sports Group would make this trade off again. When the 2019 Red Sox bottomed out, the club proceeded to do the unthinkable and trade their homegrown face of the franchise Mookie Betts to the Dodgers rather than award him a new contract. The team was able to get back under the tax threshold, but opted not to enter the $20M surtax phase at the deadline this season and have since seen their 10 game lead over the rival Yankees dissolve. Boston’s actions in trading Betts speaks to the fact that the luxury tax as it is currently constructed already effectively operates like a salary cap. Each season, like clockwork, billionaire baseball team owners say that they are “absolutely”[8] “willing”[9] to exceed the threshold and that the luxury tax “is not a hard line”[10] in the sand. However, if you look at teams’ actions, they gather around the luxury tax line and very few teams have shown a willingness to consistently go for it and pay the tax. The fact that this alleged proposal calls for a lower threshold that would carry a higher tax should give pause to the players’ association as they negotiate this next CBA. The actions of the owners since the creation of the tax should leave no doubt as to where many teams will draw the line on spending and therefore effectively cap player salaries. It would also remain to be seen whether teams would actually use the salary floor to raise the average salary of players (a serious concern for the union given the current club attitudes towards substantial free agent contracts). Of course, it is important to note that this is an introductory offer and that these ideas are likely to develop as negotiations continue. One positive note to take from this story is that discussions are taking place in person as the league and the players attempt to avoid a catastrophic work stoppage in 2022. For more on this story and everything at the intersection of sports and law, keep it tuned to Conduct Detrimental. [1] https://theathletic.com/news/mlb-first-cba-proposal-includes-salary-floor-lower-luxury-tax-tier-sources/AtgQP6Hp5mS1 [2] https://blogs.fangraphs.com/mlb-players-ought-to-fight-for-a-payroll-floor/ [3] https://www.spotrac.com/mlb/tax/ [4] https://www.mlb.com/glossary/transactions/competitive-balance-tax [5] https://www.mlbtraderumors.com/2021/02/mlb-luxury-tax.html [6] https://www.spotrac.com/mlb/tax/ [7] https://www.bostonglobe.com/sports/redsox/2019/12/10/here-what-red-sox-would-face-they-don-get-under-luxury-tax-threshold-this-year/PCjGCkeVgdj23kGMUN4aaL/story.html [8] https://www.si.com/mlb/yankees/news/new-york-yankees-managing-general-partner-hal-steinbrenner-willing-to-exceed-luxury-tax [9] https://www.mlbtraderumors.com/2021/07/padres-trade-rumors-luxury-tax-joey-gallo.html [10]https://www.yardbarker.com/mlb/articles/astros_gm_james_click_no_ownership_mandate_to_stay_below_luxury_tax_threshold/s1_13237_35327234

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.