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

First, I would like to give a special thank you to Jason Sciavicco, director of Titletown High, for providing some insight on this article. Jason, thank you sincerely for informing me and I certainly cannot wait to watch Titletown High when it comes out on August 27th on Netflix. As of August 2, 2021, only one state in the United States, California, has allowed for high schoolers to profit from the use of their name, image, or likeness (“NIL”). California law permits student athletes, including high schoolers, to make money from the use of their name, image, or likeness so long as the student athlete does not use their school’s name, logo, or team uniform in any advertisements. This differs from a lot of other states where state legislatures have either been silent on the rights of high schoolers in that regard or in the case of Texas, Illinois, and Mississippi, flat out forbade high schoolers from entering into endorsement deals prior to enrolling in college. Generally speaking, an NIL bill would: prevent schools, conferences, and athletic associations from prohibiting student athletes from profiting from their NIL. prevent schools, conferences, and athletic associations from affecting a student athlete’s athletic or scholarship eligibility as a result of engaging in NIL related activities, and lastly, prevent schools, conferences, or athletic associations from paying the student athletes for the use of their NIL. An issue, though, is that by states refusing to take a stance one way or the other, further complications could arise that could’ve been avoided if provision to the law was enacted. An example of this is Titletown High, a football documentary focused on Georgia high school Valdosta High coming out on Netflix on August 27th. Show creator Jason Sciavicco stated that "Titletown High is what happens when high school football meets the unprecedented, behind-the-scenes access of multiple cameras, over twenty microphones and 7-days a week filming." The thing worth noting about this documentary, or others like it, is that depending on the state, the athletes cannot get paid for their name, image, and likeness being used throughout. NIL laws were originally enacted to “balance the scales,” as there is a lot of money that flows through an economy stemming directly from the student athlete, yet they could never get in on the action. While this conversation was focused on college athletes, the existence of documentaries such as Titletown High suggest that perhaps it’s time to look beyond the originally intended scope. As NIL bills generally prevent the schools from paying the student athletes, what would happen in a case where a school gets a documentary shot about a team and it takes off and becomes extremely profitable? In Texas, Illinois, or Mississippi, the school can’t cut the athletes a check, and in certain cases, the student athletes can’t even be compensated by the film company, distributor, or any other party. This is especially shocking, at least in Texas, as high school football is a huge deal. In Georgia, where Titletown High takes place, the state’s high school athletic association maintains that “an athlete forfeits amateur status in a sport by … capitalizing on athletic fame by receiving money or gifts with monetary value except college scholarships,” and there is no state law specifically disallowing this practice, in fact, Georgia’s NIL law focuses exclusively on college athletes, allowing student-athletes to profit from their name, image, and likeness through sponsorships, endorsements, personal appearances, autographs, and social media marketing. It is silent on television or film appearances and to me, that can (and maybe even should) raise the dreaded “what if” question. This was a great first step, but at first glance, completely overlooks high school student athletes. Thankfully, I’ve spoken with Jason Sciavicco and he was able to shed some insight on the matter. In our conversation, I learned that the high school athletes in a series can indeed be compensated, but it must not be in connection to any athletic activities, instead, they can be compensated for the use of their name, image, and/or likeness in conjunction with a series and promotion of the project. So, have the scales been balanced? Perhaps it’s time to have a deeper discussion on what this new level of equality should actually look like. I’m not necessarily advocating for specifically allowing high school student athletes to also be able to profit from the use of their name, image, or likeness, partially because it could create a rift between parents and the student athlete as one cannot enter into a legally binding contract with a minor, unless a legal guardian also signs off on it. However, I am in fact advocating that taking a stance specifically prohibiting it seems ironic and makes the larger “push” to balance the scales seem disingenuous at best and those sorts of provisions should be done away with. At the end of the day, I’m not a politician, those aspirations are far behind me, but in the spirit of fairness, I think states should do more than just cherry pick when to try to create a level playing field. I also think that athletic conferences should not prevent student athletes from profiting in any capacity or risk losing their eligibility. Fair is fair across the board, and if a college student athlete can profit off the use of their name, image, or likeness, in a myriad of contexts, I do not see why high school student athletes are not afforded the same opportunity. There are movies made about high school student athletes, there are documentaries coming out following high school student athletes, so perhaps we should revisit the notion that states believe that high school student athletes also cannot get in on the action or otherwise, only make documentaries following colleges. Stephon Burton is a rising 3L at Duquesne University School of Law in Pittsburgh, PA. He obtained his undergraduate degree from Washington & Jefferson College in 2019. He can be reached at [email protected] and on twitter @stephonburton3, Instagram @stephonburton, and LinkedIn https://www.linkedin.com/in/stephon-burton-7abb06125/

Sports law is an ever-evolving and expanding subset of the law, and as the recent NCAA v. Alston ruling, NIL, and Super League controversy have shown, there are far more legal roles in sports than the typical pro agent. From arbitration and player unions to compliance and contracts, a law degree can open the door to a wide range of opportunities at both the collegiate and professional level of athletics. Many law schools around the country recognize the potential of sports law and offer some opportunities in the field, while some boast full-fledged sports law programs and concentrations. However, unlike business law and health law, U.S. News & World doesn’t offer lists detailing sports law programs; this makes the law school search difficult for a prospective 1L with aspirations for a career in sports. Enter the Sports Law Program Spotlight! Although this was originally intended to be a monthly series, we will be putting these spotlights on a more frequent basis due to the popular demand by both prospective law students and law schools themselves. In this series, we highlight a law school that offers strong opportunities in the field of sports law. These opportunities include, but are not limited to: ● a sports-centric curriculum; ● sports law certifications; ● unique legal internship opportunities within the sports market; ● and sports law journals. The focus of this month’s Sports Law Program Spotlight is… Arizona State University Sandra Day O’Connor College of Law When it comes to the best places to be in as a sports fan, few cities can match the sheer volume of events hosted by the Phoenix Metropolitan area. Home to eight professional sports clubs, MLB Spring Training, NASCAR races, PGA Tour events, and college football bowl games on an annual basis, there is no shortage of action to see. In addition, the Valley of the Sun also frequently hosts Super Bowls, Final Fours, CFP National Championships, and other major events. Therefore, it’s only fitting that Arizona State boasts one of the best sports law programs in the country. Located in the heart of downtown Phoenix, ASU’s Sandra Day O’Connor College of Law is an extremely attractive option for any prospective student interested in pursuing a career in sports. In terms of degree offerings, Arizona State offers both a Master of Sports Law and Business (MSLB) and a Concurrent Juris Doctor/Master of Sports Law and Business (JD/MSLB). So even if attending law school isn’t in the cards for you, ASU has the only program in the US that combines sports, law, and business in the same program. However, if your goal is to obtain a JD, students admitted into the Sandra Day O’Connor College of Law can apply for the SLB Program to get the “best of both worlds.” In this offering, students receive a full JD curriculum while also looping in sports law and business courses. These courses range from NCAA Compliance and Pro Sports Legal Operations just to name a few. This degree option is offered to incoming law students that have been admitted to the ASU College of Law as well as current law students up until the first semester of their 2L year. The main goal of the SLB Program is concise and straight to the point: “Getting Students Jobs in the Sports Industry.” Through the program, students receive tremendous networking opportunities to meet and learn from high-ranking officials in the sports industry.” There are externships offered to work for the local teams including the Diamondbacks, Suns, and Coyotes along with local events like the Fiesta Bowl and NASCAR races. In addition, the Arizona State Sports and Entertainment Law Journal is one of the longest going sports law journals in the country and offers students the ability to get involved in legal writing. The faculty includes some of the best sports law minds in the world. Aaron Hernandez, the Director of the SLB Program, is a former Associate Director of Football at the NCAA. Stephanie Jarvis is the former General Counsel of the Fiesta Bowl. Glenn Wong has decades of experience in the field of Sports Law and has served previously as President of the Sports Lawyers Association. Moreover, the Program is named after former MLB Commissioner, Bud Selig, who is a Distinguished Professor as well. The SLB Program prides itself on its faculty offering real life experience in the sports industry, not just traditional academic backgrounds like you might find in other programs. The Sandra Day O’Connor College of Law should be atop any prospective law student with interest in sports list of schools. Ranked as a top 25 law school by US News & World, the JD degree holds tremendous value on its own. But combined with the SLB offering, there aren’t many institutions that can match what Arizona State brings to the table. With the sports industry trending more toward hiring executives who are skilled in both law and business, this is a perfect combination for those who aspire to work at the highest levels. -Many thanks to Joe Esses (Student in SLB Program) and the faculty for giving insights to the program.

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

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

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

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

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

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

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

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

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