We’ve all seen this story before. A 2nd or 3rd generation athlete rises through the ranks in junior and high school sports, creates some buzz, get offers from every school imaginable, and all sports fans and media members begin to ponder: “Could this kid be greater than his family before him?” Enter Arch Manning, Grandson of NFL Hall of Famer Archie, and nephew of Hall of Famer Peyton and future Hall of Famer Eli. His collegiate bidding war could be seen as THE biggest commitment race in the history of the college football. The reason? NIL and the money which it now brings along. Arch isn’t your prototypical 5* recruit (which he, by the way, has been given that status from Rivals, ESPN, and 24/7 Sports). His potential marketability could change any given program forever just on sheer buzz and legacy. The Class of 2023 play-caller won’t just be the only one cashing out, because wherever he chooses to attend university will be the talk of every sports outlet imaginable, and from there the money will flow aplenty. Furthermore, it will be very attractive for potential endorsements to pony up to bring the family along for the ride. The potential collaboration between School and Family and Arch himself is an idea that will have companies licking the lips. No “Omaha!” will be required because this play seems like a sure thing. Now where will Arch play? Sports Illustrated has reported that 6 schools are currently favorites to land the prodigal Quarterback: Alabama, Clemson, Georgia, LSU, Ole Miss, and Texas. If Arch decides to stay home in Louisiana, play at Ole Miss like his Grandpa Arch and Uncle Eli, go link up with Nick Saban in Alabama, or join another contender in Georgia – the SEC would be beyond thrilled the potential ability to market all 4 Quarterbacks, 3 Generations of Manning, as quarterbacks who have played in arguably the nation’s most premier conference. It would also be remiss to mention that Texas is joining the SEC in 2026, right in the prime of Arch’s collegiate career, which could make for a huge powerplay in Austin to get Texas #back to glory. As we edge towards 2023 it will be beyond exciting to track this story, but however it ends – the money will not be far behind.

BY: JOHN AZZATO One NFL tradition that fans know and love: Training camp fights. There seems to be an uptick in training camp fights in 2021, more specifically during joint practices, and it’s time to explore what could happen in the aftermath. Joint Practice Overview Usually, teams will have joint practices during training camp in order to ascertain how their players fare against another team. Two teams will usually schedule a joint practice at one of their training camp locations. Then, each team has a separate practice, and both teams will scrimmage. This provides a multitude of benefits for each team. These benefits include fringe roster players getting game-like action, coaches evaluating players and scheme in a game-like situation, as well as players finally hitting players on another team. However, joint practices clearly have some pitfalls. For one, injuries are always a risk when contact is permitted. There is no bigger blow to a team’s morale than losing an important player in a scrimmage that doesn’t count. One other pitfall to joint practices is fighting. Joint practices usually are scheduled when the season is just weeks from commencing. Players are excited, as they are finally going against players on another team, and tensions begin to rise. Sure, the fans love to see two players on different teams go at it. It has even become a sort of summer tradition for fans of the National Football League. NFL Rules Operations.nfl.com showcases a page titled: “Accountability: Fines and Appeals”. On this page, a chart appears listing un-permitted conduct, with fines attached to a first and second offense respectively. For fighting, a player faces a $36,148 fine for their first offense, and a $72,299 fine for their second offense. The rulebook also includes a section explaining the purpose of these rules: “The rules are intended to protect players from unnecessary risk, promote player safety and emphasize sportsmanship”.[1] However, these rules don’t seem to apply to training camp fights. For example, Cornerback Troy Hill of the Cleveland Browns and Wide Receiver Sterling Shephard of the New York Giants fought during a joint practice on August 20th, 2021. Yet, no fines or punishment from the NFL has been allocated. Consequences? Could a player injured during a joint practice fight bring a civil lawsuit against a player/team for that conduct? This is a comparable scenario to the one provided in Hackbart v. Cincinnati Bengals.[2] Dale Hackbart of the Denver Broncos was hit in the back of the head and neck by Boobie Clark of the Cincinnati Bengals.[3] After his team secured an interception, Hackbart tried to block Clark and fell to a knee.[4] Clark then struck Hackbart with his right forearm in the back of the head and neck. [5]However, the strike was not a part of the play, but an intentional strike out of anger.[6] The trial court found that this strike was not actionable, as it had taken place during a football game which is an activity of “special warfare”.[7] However, the Tenth Circuit of the United States Court of Appeals ruled that tort concepts could apply to football scenarios like this one despite the violent nature of the game. [8] However, one question is left unanswered... If these rules are in place to protect the players from unnecessary risk, why aren’t they being enforced in training camp and joint practices? Sources: [1]Accountability: Fines & Appeals | NFL Football Operations [2] Hackbart v. Cincinnati Bengals, 601 F.2d 516 (10th Cir. 1979). [3] Id. at 519. [4] Id. at 519. [5] Id. at 519. [6] Id. at 519. [7] Id. at 519. [8] Id. at 526.

BY: Pranay C Malempati An elite, franchise quarterback is a highly coveted asset in the NFL and it is rare that one becomes available at a very young age. We have a unique situation right now, as trade talks are heating up about Houston Texans quarterback Deshaun Watson, as he undergoes a criminal investigation for sexual misconduct. Watson will not be in any legal trouble for the extent of this NFL season, since his deposition isn’t scheduled until February 2022. However, it is still unclear whether he will play this year because the NFL has the option to put him on the commissioner’s exempt list, which is essentially a forced paid leave. The ongoing criminal investigation and prospect of potentially going on the exempt list, along with his contractual no-trade clause, makes Watson’s trade situation tricky. Reports say the frontrunner is currently the Miami Dolphins, who Watson would be willing to waive his no-trade clause for. Watson is apparently not willing to waive his no-trade clause for the Philadelphia Eagles, who people thought were another potential destination. Both the Carolina Panthers and Denver Broncos, who had been in trade talks for him, are apparently sticking with the guys they’ve got for now. Whichever team trades for Watson should keep a few potential scenarios in mind when deciding how much to give up and planning for the future. But since Miami seems like his most likely landing spot, let’s keep our eyes there and consider how a trade could work out both for the Dolphins and for Watson. Miami’s starting quarterback is currently Tua Tagovailoa, who was the fifth overall pick a year ago. Tagovailoa had an up-and-down first season, but has shown promise in training camp and preseason. Say the Dolphins trade for Watson and he gets placed on the commissioner’s exempt list. They could ride it out with Tua for this season and hope he performs well, which would presumably give them a good problem at quarterback if Watson’s criminal investigation clears up. But if Watson ends up being able to play, this Dolphins team could be a dark-horse Super Bowl contender. With an upper-echelon quarterback and a receiving corps consisting of Devante Parker, first-round pick Jaylen Waddle, and Will Fuller (who, albeit injury prone, has great chemistry with Deshaun Watson), this could be a top three passing attack in the league. Watson would have a chance to lead the league in passing yards. Throw in a talented defense coming off a good season with top-10 potential this year and Miami would have a real shot to steal the AFC East crown from the Buffalo Bills. As long as they have better offensive line play than Houston did during Watson’s tenure, and it’s hard to to imagine they wouldn’t, he could lead this team quite far, whether it be this season or down the line. Obviously, the worst-case scenario would be that Miami trades for Deshaun Watson, the commissioner places him on his exempt list, and then Watson’s criminal troubles hold him out of the NFL for longer than just this season. In that case, Miami would likely have ended up throwing away its future, given that Houston wants “three first-round picks, two second-round picks, and players.” That would be okay if Tua pans out to be a good starting quarterback, but that is tough to know at this point in time. There is a way the Dolphins could protect their future, and they are reportedly trying to do this. Miami could send its draft picks to the Texans conditionally, with the condition that Watson overcomes his criminal investigation within a set time frame. However, it is unclear whether Houston would be willing to accept conditional picks because they could wait around and hope Watson’s trade value rises later in the season. Deshaun Watson is an elite quarterback who would drastically change the future of most teams, including the Dolphins. Miami’s trade decision will come down to how much faith they have in Tua Tagovailoa and whether they think Watson will be able to play in the foreseeable future. If they do trade for Deshaun and he is able to play, Miami will have the pieces around him to do damage this season, and potentially in the playoffs.

BY: EMILY COSTANZO When someone mentions “professional hockey” in the U.S., most people think of the gleaming Stanley Cup trophy, Wayne Gretzky, or the brutal (yet entertaining) on-ice fights. They think of the Bruins, or the Rangers, or, perhaps, even the Mighty Ducks. What most people don’t consider, however, is the fact that there exists an entire population within professional ice hockey that has been mistreated, overlooked, and undercompensated for years—women. Currently, women’s professional ice hockey is divided into two leagues—the National Women’s Hockey League (NWHL) and the Professional Women’s Hockey Players Association (PWHPA). Although each league undoubtedly boasts some of the best athletes in the game, for purposes of this article, I will focus on the NWHL and its six member organizations. As of April 2021, the NWHL increased its salary cap from $150,000 to $300,000 per team and continued its exercise of a 50-50 revenue splitting model.[1] Although this substantial increase demonstrates progress towards the development of an equitable, sustainable league, the NWHL is still without one of the most powerful legal tools a professional athletics league can have—a collective bargaining agreement. Without the protections of a collective bargaining agreement (hereinafter “CBA”), nearly every single woman in the NWHL is forced to maintain employment outside of her team commitment, as the wages provided by the league are impossible to live on alone. These women work as coaches, nurses, and more, deprived of the ability to earn a living simply as what they are—elite professional athletes. For reference, the NHL salary cap is currently $81.5 million per team, with an increase expected for upcoming seasons.[2] The NHL, along with the MLB, NBA, and NFL, each have their own CBAs, introduced in 1994, 1968, 1964, and 1968, respectively. As of August 2021, the only female professional league to have its own CBA is the WNBA.[3] Often referred to as the “primary basis for determining legal relationships between owners and players in professional sports,” CBAs allow players associations to advocate on behalf of their fellow athletes on different terms and conditions of employment including, but not limited to, wages, working conditions, employee benefits, and management responsibilities.[4] This legal instrument is a labor contract between a union representing employees and the employer for whom they work, and it is a contract whose terms are negotiated.[5] It is important to note that CBAs differ from most contracts in that the obligations set forth within them do not cease upon the expiration of the contract.[6] Instead, so long as a majority of the bargaining unit employees continue to support the union, the union representatives will bargain for another CBA.[7] In the interim, the terms of the expired CBA will continue.[8] It is indisputable that the NWHL has made phenomenal strides forward since their inception in 2015, but without a functional CBA, many fear their ability to continue this forward trend. As Anya Packer, former executive director of the NWHL Players Association, states in reference to the league’s salary increase and revenue splitting model, “…that is about the ceiling for what that group can do without somebody ready to come in, unionize, and make a CBA.” The key, says Packer, is outside investment. “I wish I could say it was five years down the road, but it’s all kind of waiting on when people are going to invest back in women.” So, what can be, or is being, done? Although the NHL enacted a “partner program” wherein their organizations provide financial support and other resources to their NWHL counterpart, a great deal of this responsibility falls upon the millions of us who identify under the umbrella of “sports fans.” It is time to put the pressure on, and dollars behind, making a change. When we pause to truly consider the state of women’s ice hockey, we must ask ourselves this—what if these athletes were our daughters, sisters, or friends? Would our interest and investment in them and the sport they adore be anything other than obvious? If we, as sports fans, increase our support for the NWHL, providing them with the opportunity to secure the resources they need to develop a sustainable league, the hope is that one day, one of those beloved, powerful women in our own lives will have the opportunity to be on the ice representing a league who values her as much as we do. [1] https://www.forbes.com/sites/ericalayala/2021/04/30/former-nwhlpa-director-anya-packer-discusses-her-new-role-increased-salary-cap/?sh=1bff5e4e6914 [2] https://www.nhl.com/news/nhl-salary-cap-projections-for-next-season/c-315855100 [3] https://wnbpa.com/cba/ [4] Matthew J. Mitten, et.al., Sports Law and Regulation: Cases, Materials, and Problems (3d ed. 2013). [5]Collective Bargaining Agreement, Practical Law Glossary Item 4-504-1300 [6] Id. [7] Id. [8] Id.

We’ve seen Messi and Ronaldo do unthinkable things on the pitch time and time again, but this time they’ve grabbed the headlines for something other than their performances. Arguably two of the best players ever have both moved to new teams in the same transfer window. It’s very rare to see two players of their caliber decide to begin a new chapter in their careers in the same summer. Then again, this summer has been one for the ages in the football world both on and off the pitch. After last summer’s debacle between Messi and Barcelona, many thought Messi was ready to leave Barcelona again this summer. This was not the case…until Barcelona learned that they could not register Messi under La Liga’s financial fair play system. This opened the door for the Argentine to move to a new club after having spent 21 years at the club. In the end, Paris Saint-Germain won the race for Messi’s signature. Not only did PSG bolster their squad with the six-time Ballon d’Or winner. They also added Sergio Ramos, Georginio Wijnaldum, and Euro player of the tournament, Gianluigi Donnarumma. These were all for free. Free in the sense that there were no transfer fees involved for the players, instead they all will receive lofty wages. Along with that, PSG spent 60 million euros (71 million USD) on Achraf Hakimi and secured the loan of Nuno Mendes with an option to buy rumored to be 40 million euros (47 million USD) according to Fabrizio Romano. As mentioned in my previous futbol finance article, players and clubs across Europe were left scratching their heads about if Financial Fair Play would step in after the immense transfer window from PSG. With the FFP system looking to be revamped by UEFA, there is currently no measures in place for it. This has allowed PSG to sign all of these players and pay them hefty wages to try to build a team that can finally conquer the Champions League that has avoided them since Nasser Al-Khelaifi took over the club. PSG had the biggest transfer window of any club, but the Premier League had the best window for any league. Of course, Cristiano Ronaldo was the biggest transfer in terms of hype. The all-time leader in international goals is returning to Old Trafford where he enjoyed a successful spell in the mid 2000s in which he captured his first Champions League trophy and first of five Ballon d’Or trophies. Manchester United were able to acquire the Portuguese forward for only 15 million euros (18 million USD) before add ons. On the other side of Manchester, Manchester City broke the record for most expensive English player ever when they secured the signing of Jack Grealish for 100 million pounds (139 million USD), which broke the previous record set by Manchester United in their signing of Harry Maguire. The most expensive transfer in the Premier League belongs to Chelsea in their signing of Belgian striker Romelu Lukaku for 115 million pounds (160 million USD). The top scorer in Belgium history became the most expensive player ever in terms of transfer fees across a career at a total of 288 million pounds (400 million USD). In a time where clubs claim to have been strapped for cash due to the pandemic, it doesn’t seem like the spending has slowed down much, if at all. Real Madrid president Florentino Perez, who was named the chairman of the European Super League, claimed that Madrid had no money to spend due to the pandemic. This was part of the reason as to why the Super League was created, to create more revenue for big clubs like Madrid. For a club with no money, Perez had no problem offering 200 million euros (238 million USD) for French star Kylian Mbappé, who had only one year left on his contract. This is a huge sum of money for a player in general, let alone a player who’s contract is going to expire next summer and is looking more and more likely that he will not sign a new contract to stay in the French capital. Madrid did secure the signing of another young French player in Eduardo Camavinga, the youngest player to appear for France since 1934. What we’ve seen this summer may not be replicated for a long time. Two of the biggest stars the game has ever seen both moved to new clubs in the same summer. Transfer records were broken, and a lot of money was thrown around although most clubs have been “affected” financially due to empty stadiums for the past year. This has set up for one of the best title races in Premier League history along with what should be one of the most entertaining Champions League’s in history. Greg Termolle can be found on Twitter @Gregterm.

Every sports law scholar and attorney can likely recite the famous “three-part test” (the “Test”) [i] used in analyzing an athletic department’s compliance with Title IX of the Education Amendments Act of 1972 (“Title IX”).[ii] This prominence is likely due to federal appellate courts universally relying on the Test[iii] to evaluate sex discrimination in sports for almost thirty years. [iv] This focus from the courts, along with the many detailed interpretations of the Test by the United States Department of Education’s Office of Civil Rights (“OCR”), has entrenched the Test “as the foundation for understand and assessing Title IX compliance.” [v] However, is the Test the only standard in evaluating such cases? Perhaps not. When the University of North Dakota (“UND”) terminated its women’s hockey program after the 2016-17 season despite a history of success, [vi] eleven players sued the school for violating Title IX. This lawsuit was dismissed by the United States District Court for the District of North Dakota – Fargo (the “District Court”) in 2019 for failing to state a claim, particularly that the plaintiffs did not state an actionable claim under the Test.[vii] However, the players’ main argument was not that UND failed to satisfy each prong of the Test, but that UND did not comply with Title IX in ways beyond the Test. On appeal, the United States Court of Appeals for the Eighth Circuit (the “8th Circuit”) found this novel argument compelling in a decision released this August.[viii] OCR’s first Title IX interpretation came in 1979 (the “1979 Interpretation”)[ix], which introduced the Test. However, as meticulously described in Chief Judge L. Steven Grasz’s opinion, “the 1979 Interpretation’s plain text and structure show that the agency expressly gives institutions different ways to comply with the different obligations which the agency has decided Title IX imposes.”[x] The 1979 Interpretation “delineates three overarching compliance subsections”, with the third subsection, “Effective Accommodation of Student Interests and Abilities”, being most crucial in this case. Under this subsection, the agency stated it will assess compliance under three separate provisions: (1) “Determination of Athletic Interests and Abilities”; (2) “Selection of Sports”; and (3) “Levels of Competition”. UND relied on the “Levels of Competition” provision, which encompasses the Test, while the plaintiffs alleged that UND failed to adhere to the “Selection of Sports” provision. Of most importance, this provision states what “effective accommodation” means for “contact sports”, like ice hockey: “. . . if an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex under the following circumstances: (1) The opportunities for members of the excluded sex have historically been limited; and (2) There is sufficient interest and ability among the members of the excluded sex to sustain a viable team and reasonable competition for that team.”[xi] At its core, the plaintiffs’ argument is that UND must have a women’s hockey team because there is a men’s hockey team at the school, opportunities for women to participate in intercollegiate hockey at UND have been historically limited, and there is sufficient interest and ability among female students at UND to field a viable and competitive team. It appears these former Fighting Hawks may have a strong case under the “Selection of Sports” provision.[xii] The three-judge panel agreed with the plaintiffs that, even though the “Selection of Sports” provision has never been “interpreted” by OCR or analyzed by the courts, the Test is only one of the many factors that are examined to determine compliance under Title IX and found their argument convincing enough to reverse and remand the matter back to the District Court so the players can fully state their case. As Judge Grasz stated, “[t]he agency’s decisions to repeatedly clarify the 133 words in the three-part test does not mean it has decided to abandon the 1979 Interpretations other 5,300-plus words.”[xiii] Circuit Judge David Stas concurred noting, “we have to read the policy interpretation as a whole, not just zero in on one part of it. . . We can only assume, in other words, that the agency did not go to the trouble of constructing a ten-page document only to have a few lines of it—those devoted to the three-part test—mean anything.”[xiv] While the UND players are not guaranteed to win this case, the potential impact of a court like the 8th Circuit finding that the Test is not the conclusive element in Title IX analysis could be immense for future Title IX litigants and completely change how schools attempt to comply with Title IX. At the very least, an institution would have to think twice about eliminating its women’s hockey program when it fields a men’s team or creating a men’s program without a corresponding women’s program. *Daniel S. Greene is an attorney based in Syracuse, New York. He has been published by The Sports Lawyers Journal and New York State Bar Association’s Entertainment, Arts and Sports Law Journal, and has guest lectured on various sports law topics at the Syracuse University College of Law. [i] Dep’t of Educ., Off. for C.R., Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test—Part Three (Mar.17, 2005), https://www2.ed.gov/about/offices/list/ocr/docs/title9-qa-20100420.html. The Test states: “(1) The number of male and female athletes is substantially proportionate to their respective enrollments; or (2) The institution has a history and continuing practice of expanding participation opportunities responsive to the developing interests and abilities of the underrepresented sex; or (3) The institution is fully and effectively accommodating the interests and abilities of the underrepresented sex.” [ii] 20 U.S.C. §§ 1681–1688 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” [iii]See McCormick ex rel v. School Dist Mamaroneck, 370 F.3d 275, 300 (2d Cir. 2004) (noting that “most Title IX litigation has centered around application of this test.”); see also Donna de Varona and Julie Foudy, Minority Views on the Report of the Commission on Opportunity in Athletics, 14 Marq. Sports L. Rev. (2003), p. 7 (stating that “[t]he lawfulness of the three-part test has been affirmed by every federal appellate court to consider the issue.”). [iv]Cohen v. Brown University, 991 F.2d 888, 891 (1st Cir. 1993). [v] Unwalla, Simone, “Ghost Athletes: A Subversion of Gender Equity and Violation of Title IX” (2019). Honors Theses (PPE). Paper 41, p. 14-15. [vi] “University of North Dakota cuts its women’s ice hockey program: Title IX lawsuit ahead?”, The Hockey Blawg, https://www.thehockeyblawg.com/single-post/2017/07/05/university-of-north-dakota-cuts-its-women-e2-80-99s-ice-hockey-program-title-ix-lawsuit-a. [vii] “Federal judge dismisses UND women’s hockey lawsuit”, Sydney Mook, Grand Forks Herald, June 20, 2019, https://www.grandforksherald.com/sports/hockey/2721836-Federal-judge-dismisses-UND-womens-hockey-lawsuit. [viii] “Berndsen v. N.D. Univ. Sys., No. 19-2517 (8th Cir. August 10, 2021), https://ecf.ca8.uscourts.gov/opndir/21/08/192517P.pdf. [ix] Title IX of the Education Amendments of 1972: A Policy Interpretation, 44 Fed. Reg. 71,413 (Dec. 11, 1979), https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html. [x]See note viii, p. 8. [xi]See note ix, Section VII.C.4.a. [xii] “How To Revive a Hockey Team”, Kirsten Whelan, The Victory Press, June 15, 2018, https://victorypress.org/2018/06/15/how-to-revive-a-hockey-team-und-womens-ice-hockey/. [xiii]See note viii, p. 8-9. [xiv]See note viii, p. 16.

BY: Pranay C Malempati Earlier this week, Jacksonville Jaguars head coach Urban Meyer announced that he and his team had considered COVID-19 vaccination status when cutting players to form the required 53-man roster. This is controversial because the rules, agreed upon between the NFL and NFLPA, currently prohibit the NFL and teams from requiring that players be vaccinated. The NFLPA’s spokesman told Pro Football Talk’s Mike Florio that “these comments have led the [NFLPA] to open an investigation.” The NFLPA can investigate all it wants, but it seems very unlikely that they will be able to bring any type of action, especially legally. According to Brooklyn and NYU sports law professor Jodi Balsam, it would be difficult to investigate what Meyer and the Jags actually considered when they made roster decisions. “You can investigate anything,” Balsam said, “but it comes to nothing unless there is a basis for staking a legal claim or asserting a legal right as to what your investigation unearths.” Balsam said the legal claim the NFLPA is likely trying to make is that the agreement they made with the NFL should prohibit consideration of vaccination status in roster cuts. She said one way the NFLPA could investigate is by doing a statistical analysis of the players who were cut and determining if there was a statistical bias based on vaccination status. However, regardless of the type of investigation the NFLPA conducts, it would be difficult to bring a legal claim. Commissioner Roger Goodell said that if a team cannot play a game due to COVID-related holdouts, the team has to forfeit. That clearly made an impact on the league, as about 75% of players were vaccinated prior to the decision in July, compared to over 90% currently. This potential of forfeiting will allow the Jaguars, and other teams, to invoke the last clause of the NFL’s termination form, which a team has to fill out for every player it cuts from its roster: NFL teams can say that unvaccinated players are “anticipated to make less of a contribution to the club’s ability to compete on the playing field” because they are more likely to get COVID-19 and therefore be held out of multiple games. Balsam compared this to a regular illness or non-football injury. If a player is sick, whether it’s COVID or anything else, or gets injured outside of football, the coach retains absolute management discretion regarding the player’s status. If the coach wants to bench the player, or the team wants to cut him, they can do that. Why should it be any different when it comes to vulnerability to COVID? Urban Meyer did walk back his comments, saying that no player was released based on being unvaccinated. But that doesn’t necessarily mean vaccination status wasn’t a consideration at all, so the NFLPA will still conduct its investigation. No matter what they find, though, it will be difficult for the NFLPA to bring a legal claim and prevent teams from considering vaccination status in the future. “I’m not sure what the NFLPA thinks they negotiated for,” Balsam said, “and whether the NFL would agree that vulnerability to COVID can be a factor. . . I doubt strongly that the NFL would concede an inch of coaching discretion.” Pranay can be found on Twitter @pracurry

This week marked the beginning of the Name, Image, and Likeness (“NIL”) era of collegiate football. As the 2021 season began, the Power Five conferences released their new policies regarding COVID-19. Arguably the most intriguing of these are the forfeiture policies, which generally reflect the same ideas throughout the conferences. The SEC was the latest to reveal its forfeiture policy, requiring any team that must cancel a game due to COVID-related reasons to receive a loss for that game. Should the opposing team not also have a COVID-related cancellation, they would receive an automatic win. These policies are not surprising given the increased push in the sports world to get players vaccinated, however, they may have an interesting impact on athletes’ NIL deals. For the last two months, many athletes have taken advantage of their newfound freedom to profit from their name, image, and likeness by signing with sponsors. Many of these deals market off the athletes’ social media with sponsored posts about different products or brands. Other deals utilize the screen time athletes get during games to promote their products. These kinds of deals almost seem too easy for the players to capitalize on – players continue to perform as they had before, but now, colleges and universities are not the sole beneficiaries from their talents. However, with the threat of COVID and forced forfeitures, cancelling games equals profit loss. The fewer games the athletes participate in, the less screen time they receive. Moreover, NIL deals may also be heavily reliant on the number of games the teams win. Brands want to sponsor the best players, so if players aren’t winning, they aren’t earning. The more games they play, the more opportunities to win, and the more players will likely earn. The Pac-12’s new idea of allowing athletes to use their game footage to secure sponsorships reinforces how the loss of screen time can affect NIL deals: the lack of game footage could negatively impact athletes' potential NIL profits. Footage from this upcoming season would be available to the athletes to use, but if they are forced to forfeit a game, they lose potential game footage that could have helped them secure deals. USA Today revealed that “under the league’s licensing arrangement, the Pac-12 Network owns licensing rights to any game footage hosted by the conference, so it can give players almost immediate access to their game footage that will be aired this season. The Pac-12’s licensing partner, Veritone, plans to help with this new project as there are numerous ways this footage could be used by sponsors. Veritone’s Mike Arthur, explained a few: “A sponsor could enter into an agreement with an individual athlete and subsequently license footage from the network, or a sponsor could come to the network directly, in which case a student-athlete clearance fee would be passed back to the sponsoring brand.” This footage would not allow athletes to earn compensation from personal use on social media, however. The Pac-12 is the first of the Power Five conferences to pursue this avenue for athlete compensation, but the others are likely not far behind. The risk of missing games can hinder college athlete NIL deals, but these new forfeiture policies may be pushing athletes to another solution – getting vaccinated. Most schools have yet to mandate COVID-19 vaccines for students but have attempted to implement different policies to encourage vaccinations. The forfeiture policies are likely another attempt to facilitate a smoother, fairer football season amidst the pandemic. However, it is undeniable that more athletes being vaccinated would lower the risk of game cancellations. The risk of game cancellations resulting in forfeiture may be enough to convince athletes to get vaccinated, and further, not risk any potential payout. With the newfound potential to earn, athletes should focus on being able to play as many of their games as they can. As the North Carolina Tar Heels head coach Mack Brown stated, “Make it about your ball, not your brand. Without your ball, you're not going to make any money.” Kate can be found on Twitter @Katerosey1. She is a student at Texas A&M School of Law and is the creator of Sports Law Girl.

One of Nike’s most popular shoes of all time, and the first ever basketball shoe to have Nike Air technology, are the Air Force 1s. Nike Air Force 1s came out in 1982 but became prominent during the re-release in 1986. Almost four decades later millions of people wear them daily and are still on Nike’s best seller list. According to Nike, they have maintained sales more than $800 million per year with about $300 million in profit just from the Air Force 1’s alone. For this reason, other designers and companies try to copy this shoe. In the current case, Nike is suing John Geiger for selling his “GF-01” shoes. Nike claims that Geiger’s shoes “infringe the trade dress of its Air Force 1s and that Los Angeles-based, La La Land Production & Design Inc. is helping manufacture the lookalikes. A copy of Nike’s complaint obtained by Complex states, “By marketing and selling shoes using Nike’s registered Air Force 1 trade dress, John Geiger knowingly and intentionally creates confusion in the marketplace and capitalizes on Nike’s reputation and the reputation of its iconic shoes.” The situation is messy due to La La Land Production & Design Inc. being the manufacturer of the GF-01 due to their history with Nike. “They were the production company named in the Nike v. Warren Lotas lawsuit over his “bootleg” Dunk designs last year.” While Nike’s lawsuit against La La Land is being expanded, it no longer includes Lotas, who settled with the company in December. La La Land has already responded to Nike’s latest move, having filed an amended counterclaim against the sportswear giant. “It accuses the company of using “unduly aggressive, disproportionate, highly burdensome litigation strategies” to enforce “questionable” trade dress rights.” La La Land also adds, “Nike’s strategy aims to quash competition and intimidate legitimate businesses … that often lack the resources to defend themselves against such a well-resourced opponent. There is a bullying nature to these actions that chills creativity and lawful competition.” John Geiger, former manager for Darrelle Revis, worked with Nike, “in the design of the Zoom Revis in 2012 and worked with The Shoe Surgeon on the Travis Scott Air Force 1 “Misplaced Checks” and Air Force 1s adorned with multiple Swooshes in premium materials before founding his own brand.” The “Misplaced Checks” were one of the biggest Air Force 1 concepts to ever release without Nike. The last couple of years the “ultra-premium material base and streetwear style” has been his way to standout. Instead of paying $1,000 for high end shoes or $300 for Jordans, Geiger wanted to hit the market with something in the middle before anyone else had the chance. He has successfully done so by having celebrities like Wale, Fabolous, and Iman Shumpert wear his products. Geiger took to Instagram to address the lawsuit, saying how Nike has benefitted off him and other designers for years. He even describes the shoe and intent as being, “very clear throughout the 2 years of developing and selling the GF-01 that this silhouette was inspired by Nike and also made sure that anyone purchasing the shoe is aware it is a designer shoe crafted with higher end materials and quality, along with my trademark and changes to the silhouette. I also created my own mold for our outsoles with branded JG trademark and changed the pattern multiple times all while following trade dress guidelines.” Nike is not new to lawsuits, but brands like BAPE that produce obvious tributes to Nike’s shoes have never been hit with a lawsuit in the way that designers like Geiger and Lotas have. Therefore, it seems Nike can pick and choose which companies to go after. Geiger has a history with Air Force 1s, made other modified versions of the shoe with other companies, and even received his own trademarks. There must be a reason Nike is targeting Geiger or they are just upset that he chose La La Land as his manufacturer. Geiger might have had no other choice but to work with La La Land to keep his business afloat. His trouble trying to find a manufacturer is also clearly illustrated. From a Bleacher Report article in 2018, Geiger states, “My 001 model consists of 36 pieces and takes three hours and 45 minutes to make each pair by hand. I moved my whole production from Italy to the USA last minute because I just wanted to be more hands-on." It is impossible to have a full-scale company taking almost four hours to make one shoe. He should have done his due diligence to see that La La Land is in a lawsuit with Nike in which they could easily target his product. When dealing with a large company like Nike who has massive amounts of resources it is never a good idea to assume any risks. Luckily for him based on his Instagram post he does not seem afraid to fight back against the goliath that Nike is. In my opinion, Nike should not succeed in this case. The success of a plaintiff’s trademark infringement claim turns to whether there is a likelihood of confusion between the plaintiff’s and defendant’s trademarks. A plaintiff trademark holder will be successful if he can show that the defendant’s similar mark causes a likelihood of confusion amongst consumers. Courts use several factors when determining the likelihood of confusion such as similarity of products, sophistication, quality, and proof of confusion with the product. Here, Geiger does not use the Nike swoosh symbol. He created his own trademarked symbol for his brand which looks like a “j combined with a g.” Everything Geiger has done with the GF-01 has been totally different than what Nike is doing. Geiger put his own touch onto a basic shoe by using higher materials, a mold that is also trademarked, and has changed his patterns over the years. The GF-01 is even in a totally different price market. Other companies and brands have a similar shoe such as Veja V-10, Cali-Wedge Sneakers, Puma Suede Classic, and Adidas Superstar who are still selling their shoe today. If gigantic brands can sell their shoe that is similar to the Air Force 1, then a brand in their own unique market should be able to as well. Nike should not be able to monopolize a shoe that is basic and easy to reproduce. Chris D'Avanzo is a 2L at Hofstra Law School. He can be found on Twitter @_chrisdavanzo.

BY: ALEXANDER GATES Background The Premier Lacrosse League (PLL) was founded by brothers Mike and Paul Rabil in 2018.[i] The PLL marketed themselves to the existing professional lacrosse players by addressing pain points that had soured many players. The league promised players a full-time job that included higher salaries, better media rights deal, health insurance benefits, and an equity stake in the league.[ii] The PLL is unique to the entire sports world in that they use a tour-based model of play which does not include teams that are associated with a city or region.[iii] Rather, every team has its own name and by nature of the arrangement is mobile. Major League Lacrosse (MLL) was established in 1999 by Jake Steinfeld, Dave Morrow, and Tim Robertson.[iv] Unlike the PLL, the MLL follows the traditional structure of a sports league where owners own the franchise separate from the league and where teams are associated with their home city or region.[v] There were several deficiencies to the existing MLL structure which created the opportunity for the Rabil brothers to establish their own league. The MLL was considered to be a part-time job, in which a majority of the players were required to have a second job in order to survive financially.[vi] Because it was a part-time job, the league had no requirement to provide its players with healthcare benefits.[vii] On December 16, 2020, the PLL and MLL merged “with subsequent season operations and activities to formally exist under the Premier Lacrosse League”.[viii] As part of the deal, the PLL would “retain the rights to all of the former MLL teams for future expansion considerations”.[ix] PLL – MLL Post Merger Analysis Section 7 of the Clayton Act deals with the enforcement of mergers and acquisitions by determining whether the consolidation “may be substantially to lessen competition, or to tend to create a monopoly”.[x] The traditional Section 7 analysis of a horizontal merger by antitrust regulators includes five steps to determine whether or not it has anti-competitive tendencies.[xi] The relevant parts of this analysis include (1) defining the market, (2) determining the market share, (3) defining the market concentration before and after a proposed merger, (4) concluding if the merger will increase market concentration, and (5) balancing the pro-competitive and anti-competitive effects of the proposed merger.[xii] In applying the first prong of the analysis, it can be argued the relevant market is nationwide. Similar to American Football League v. National Football League, the court determined the relevant market to be nationwide because “each league recruited players and coaches throughout the nation”.[xiii] The same is true of the PLL and the MLL. With respect to the second prong, it is hard to determine the market share of each league and is considered a moot point in the grand scheme of things. However, with the third prong, it is clear that the two leagues will not be competing for market share after the merger as they were doing so before. Therefore, in accordance with the fourth prong, the PLL will have control over the entire market share for outdoor lacrosse. The fifth prong poses some serious issues in terms of questioning the merger’s pro-competitive and anti-competitive nature. Immediately, one can see the anti-competitive nature of the merger as the PLL is the only professional outdoor lacrosse league at the moment. They dominate not only with the talent they attract but also with their media rights belonging to NBC. This might pose a threat to new entrants in the form of a new league to rival the PLL. This merger is also anti-competitive in nature as not all MLL players could have a spot on a PLL team after the merger. As seen in Robertson v. National Basketball Ass’n, we could possibly see litigation regarding the players who were planning to play for an MLL club but lost the chance because the organization was eliminated by the merger.[xiv] On the other hand, it can be argued the merger has pro-competitive effects. The MLL was stagnant for many years in terms of exposure of the league and the players. Even though professional lacrosse is relevantly new as compared to other established sports leagues, it is considered to be one of the fastest growing sports in North America. There is ample opportunity for a new entrant into the world of lacrosse as the PLL has changed the game for the better and has allowed the opportunity for other leagues to be created to improve the game. Conclusion As mentioned previously, the PLL – MLL merger occurred in 2020 and had no antitrust issues. However, it can be seen in the fifth prong of Section 7 of the Clayton Act that having just one lacrosse league has more anti-competitive effects than pro-competitive effects. Alexander Gates is a JD/MBA candidate in the class of 2022 at Quinnipiac University School of Law. He is also the Editor-in-Chief of the Quinnipiac Health Law Journal. If you would like to contact him, please e-mail [email protected]. [i] Caron, E. (2019, May 15). Inside the making of the Premier Lacrosse League. Retrieved July 07, 2020, from https://www.si.com/lacrosse/2019/05/15/paul-rabil-pll-premier-lacrosse-league-players-business-sports-startups-nbc [ii] Ibid [iii] Baker, K. (2019, February 13). Premier Lacrosse League models Silicon Valley for modern fans. Retrieved July 07, 2020, from https://www.axios.com/premier-lacrosse-league-silicon-valley-startup-ccae48c0-599a-4a75-927c-fd287f833f51.html [iv] About MLL. (n.d.). Retrieved July 07, 2020, from https://majorleaguelacrosse.com/news/2019/2/25/about-mll.aspx [v] About MLL. (n.d.). Retrieved July 07, 2020, from https://majorleaguelacrosse.com/news/2019/2/25/about-mll.aspx [vi] Ibid [vii] Ibid [viii] PLL, (2020, December 16). The Premier Lacrosse League and Major League Lacrosse Announce Merger, from https://premierlacrosseleague.com/articles/the-premier-lacrosse-league-and-major-league-lacrosse-announce-merger [ix] Ibid [x] 15 U.S.C. 18 (2012) [xi] King, Jaime S. et al., The Anti-Competitive Potential of Cross-Market Mergers in Healthcare. Saint Louis University Journal of Health Law & Policy, Volume 11, Issue 43 [xii] id. [xiii] Am. Football League v. Nat’l Football League, 323 F.2d 124 (4th Cir. 1963) [xiv] Oscar Robertson v. National Basketball Assn, 1970 WL 532

BY: JACOB BLOOM Minor league baseball players make less per-hour than what the federal minimum wage mandates.[1] Yes, you read that correctly. Major League Baseball, which grossed a record $10.7 billion dollars of profit in 2019[2], does not feel the need to pay many minor leaguers a wage of $7.25 per hour of labor. Additionally, many of these athletes are not paid at all during their off-season and spring training.[3] How is any of this legal? The Sherman Anti-Trust Act outlawed the predatory business practice of “wage fixing” in almost every business practice conducted in the United States. However, in 1922, the Supreme Court decided it would be prudent to provide an exemption for professional baseball in the infamous case of, Federal Baseball Club v. National League, 259 U.S. 200 (1922). Here, Supreme Court Justice Oliver Wendell Holmes established that the business of baseball is “purely state affairs". As a result, baseball was not to be considered interstate commerce, and therefore was exempt from the Sherman Anti-Trust Act. With 32 professional teams in 17 states, one would only assume that in the following ninety-nine years, the holding of Federal Baseball Club would be overturned, right? Well, in 1953, the Supreme Court decided to reaffirm the holding of Federal Baseball Club. In Toolson v. New York Yankee, 346 U.S. 356 (1953), the court established that since Congress had not provided legislation on the matter, Major League Baseball would continue to be considered exempt as to the Sherman Anti-Trust Act. The legal sequence of decisions rendered in Federal Baseball and Toolson, came to an end in Flood v. Kuhn, 407 U.S. 258 (1972). The court for the first time admitted that the basis for major league baseball’s antitrust exemption was tenuous, and that baseball was in fact engaging in interstate commerce. However, this admittance was worthless. In a 5-3 decision, the court stuck with the legal doctrine of stare decisis and upheld the exemption. Where are we now? Major League Baseball players rejoiced after Congress passed the Curt Flood Act of 1998. The Act granted MLB players the same antitrust privileges and protections as their contemporaries in other professional sports. The analysis should stop there, right? Wrong. The Act only provided such protections to major league baseball players. Conversely, minor leaguers could still be subjected to wage fixing. You know, akin to those employed by the robber barons during the turn of the 20th century? This allows professional baseball team owner’s to directly collude together, with the goal of limiting the wages and salaries of minor league baseball players. Subsequently, Miranda v. Selig, 860 F.3d 1237 (2017) was filed with the intent to prove that major league baseball owner’s open collusion with the goal to suppress wages is a clear violation of antitrust laws. What was made of this bottom of the ninth effort? The ninth circuit decided to uphold the antiquated established precedent, and the Supreme Court declined to hear the case. After Miranda, legal experts believe that the Supreme Court wants nothing to do with this issue. “They basically said, we just don’t want to deal with this,” stated Sam Ehrlich, professor of sports law at Boise State University.[4] However, maybe is it possible that the tides are starting to change in the favor of minor leaguers? Enter NCAA v. Alston, 594 U.S. (2021). Alston was the unanimous decision reached this past June, where the Supreme Court declared the NCAA’s limiting benefits provided to student-athletes “extinguishes the free market in which individuals can otherwise obtain fair compensation for their work”. Justice Gorsuch maintained that by limiting education-related compensation that college athletes were receiving from their schools, the NCAA was in clear violation of the Sherman Act.[5] The court’s decision in Alston included some ever-so-subtle mentions to baseball’s antitrust exemption as well. In reference to Federal Baseball Club, the court reasoned, “that ‘exhibitions’ of ‘baseball’ did not implicate the Sherman Act because they did not involve interstate trade or commerce—even though teams regularly crossed state lines (as they do today) to make money and enhance their commercial success.” Is the court’s sentiment in Alston not clearly an open invitation to litigants to raise the issue? Virtually all other professional sports leagues in the U.S. operate while not being privileged to such an antitrust exemption. Why should Major League Baseball be legally allowed to continue to operate like this? Supreme Court Justice Brett Kavanaugh recently stated in Alston that, “the NCAA is not above the law”, and I do not see how the MLB is either. Writing this during the celebration of Labor Day, I cannot help but to feel disgruntled with the fact that thousands of minor leaguers have had no choice but to accept such unlivable wages for decades. Ten minor league baseball teams play this Labor Day. Ironically, many players will make below federal minimum wage for their efforts due to a decision rendered before Lou Gehrig’s rookie season. Hopefully, it will not take another century for Congress, and or the Supreme Court, to ensure fair wages for minor league baseball players. Jacob Bloom is a 3L at Hofstra Law School. He can be found on Twitter @bloom_jacob. [1] https://www.washingtonpost.com/sports/2021/07/16/minor-league-baseball-player-pay-low/ [2] https://www.cnbc.com/2019/12/22/report-mlb-revenue-for-2019-season-a-record-10point7-billion.html [3] https://www.washingtonpost.com/sports/2021/07/16/minor-league-baseball-player-pay-low/ [4] https://www.washingtonpost.com/sports/2021/07/16/minor-league-baseball-player-pay-low/ [5] https://www.jdsupra.com/legalnews/ncaa-v-alston-the-beginning-of-the-end-9351737

BY: HANNAH VALENTE Throughout history, schools at every level have learned to appreciate the necessity of both accommodating and encouraging sports participation from previously underrepresented groups. This has been done to include students of color, women, and students with disabilities in the past. Today, at the forefront of political and social debates, are the rights of transgender students to participate in sports. Several states have enacted bills that ban transgender student-athlete participation which directly clashes with the National Collegiate Athletic Association’s affirmation of their commitment to inclusion and gender equity. As the number of students who identify as transgender has risen across the United States, so too has the discussion of whether to permit transgender student-athletes to participate in sports that coincide with their gender identity rather than their assigned sex at birth. Eight states (Alabama, Arkansas, Florida, Idaho, Mississippi, Montana, Tennessee, West Virginia) have enacted laws that restrict transgender athletes at all levels of participation as of this year. In the NCAA’s Inclusion of Transgender Student-Athlete’s resource, the NCAA sought to provide practice and policy recommendations for transgender student-athletes “with fair and equal opportunities to participate.”[1] This past April, the NCAA Board of Governors publicly backed transgender student-athletes by claiming that it will not hold collegiate championship events in locations that aren’t free of discrimination.[2] The NCAA, stated that it “firmly and unequivocally supports the opportunity for transgender student-athletes to compete in college sports.”[3] Florida has been at the nucleus of the debate between banning transgender student-athlete participation and the NCAA commitment to inclusion. On June 1, Republican Governor Ron DeSantis of Florida signed the “Fairness in Women’s Sports Act” which requires public schools and universities to have student-athletes compete according to their sex assigned at birth, not according to their gender identity. The bill states that “an athletic team or sport that is designed for females, women, or girls may not be open to students of the male sex, based on the student’s biological sex listed on the student’s official birth certificate at the time of birth.” [4] After signing the bill, DeSantis exclaimed: “In Florida, girls are going to play girl sports and boys are going to play boys sports.”[5] The bill is currently being challenged in Florida Federal Court by a plaintiff, “D.N.”, a thirteen year old soccer player. The lawsuit claims that the “Fairness in Women’s Sports Act” does not focus on overall fairness for women’s athletics, but rather violates Title XI protections for women’s sports and is unconstitutional. DeSantis, is determined to defend this bill as evident by his comments stating, “We will stand up to groups like the NCAA who think that they should be able to dictate the policies in different states. Not here, not ever.”[6] Two months, after DeSantis signed the “Fairness in Women’s Sports Act”, The NCAA Board of Governors convened on August 3, 2021, and reaffirmed the Association’s policy which is “to provide fair and nondiscriminatory championships opportunities to all student-athletes, including transgender college athletes.”[7] The NCAA further stated that “Any host who cannot commit to the nondiscrimination policy should contact the NCAA immediately.” This policy, and what could be viewed as a threat, to bar future states from hosting future championships, has not stopped states from passing legislation outlawing transgender student athletes’ participation. Nevertheless, the NCAA has not released any public plans to change the 50 championships currently scheduled for Florida. If the NCAA were to follow through with their commitment to only host championships in states that unequivocally supports the opportunity for transgender student-athletes, this decision would cost Florida an estimated loss of $75 million dollars.[8] However, Florida does not seem to be worried about this potential massive loss of revenue to the state or the potential retaliation from the NCAA. State representative, Randy Fine, claimed to be unafraid of the NCAA stating, “They’re a bunch of clowns and they will fold and we’re not worried about it, look, we’re going to stand for women.”[9] Only time will tell if the NCAA will stand firm in their commitment to hosting championships in locations that follow their nondiscriminatory policy. Hannah is a 2L at Elon University School of Law and host of Podcast “Bars to the Bar” from Hoboken, New Jersey. Hannah graduated from Providence College where she was a four-year manager for the Men’s Basketball Team. She can be found on Twitter @hannahjane503. [1] https://ncaaorg.s3.amazonaws.com/inclusion/lgbtq/INC_TransgenderHandbook.pdf [2] https://www.nbcnews.com/feature/nbc-out/ncaa-backs-transgender-athletes-says-events-will-be-places-free-n1263879 [3] Id. [4] https://www.flgov.com/2021/06/01/governor-ron-desantis-signs-fairness-in-womens-sports-act/ [5] https://www.espn.com/espn/story/_/id/31547344/fl-transgender-women-now-banned-women-sports-public-schools [6] https://www.espn.com/espn/story/_/id/31547344/fl-transgender-women-now-banned-women-sports-public-schools [7] https://www.ncaa.org/about/resources/media-center/news/general-board-receives-equity-report-reaffirms-transgender-participation [8] https://www.news4jax.com/news/local/2021/08/17/ncaa-ratchets-up-pressure-on-florida-to-allow-transgender-athletes-to-compete-in-womens-sports/ [9] https://www.news4jax.com/news/local/2021/08/17/ncaa-ratchets-up-pressure-on-florida-to-allow-transgender-athletes-to-compete-in-womens-sports/