BY: JOSH BENRUBI If the vision of memorabilia mega-giant Fanatics is to take the sports trading card industry by storm, they have officially made the first big step in successfully doing so. As the sports trading card market has gained substantial traction among nostalgia-longing consumers over recent years, Fanatics plans to make a massive splash in this industry. According to Wall Street Journal and a memorandum from the Major League Baseball Players Association (“MLBPA”) obtained by ESPN, Fanatics is set to become the exclusive licensee for baseball trading cards when well-known card manufacturer Topps’ license with the MLB expires at the end of 2025. In this groundbreaking move, Fanatics will put an end to Topps’ 70-year partnership in serving as Major League Baseball’s iconic brand for baseball trading cards. Fanatics’ Partner and entrepreneur Michael Rubin will be leading Fanatics’ offshoot trading card company head-first into the baseball trading card market. Along with Rubin in this venture will be Josh Luber, the founder of StockX. In addition to striking deals with the MLB and MLBPA, the NBA (along with its player union) and the NFLPA will both have ownership interests in the newly formed Fanatics company. From a legal standpoint, separate licensing agreements are required to license a league’s logos, branding marks, and player’s names/likenesses. Typically, the name, image, and likeness aspects are handled by respective players’ associations. Topps, which was purchased by former Disney CEO Michael Eisner in 2007, has an exclusive license with the MLB that expires at the end of 2025. Topps also has a license with the MLBPA that runs through next year. Before the licensing rights were aggregated among all professional players, Topps signed players to four-year contracts where they received a $75 advance and $500 a year for the right to their name, image, and likeness. The only other time that the MLB and its players have provided exclusive rights to their names, images, and likenesses to a non-Topps company was to Haelan Laboratories in 1953 sparking a monumental lawsuit between the two companies which gave rise to the modern publicity rights law. According to MLBPA head Tony Clark, the deal with Fanatics will provide for a significant increase in revenue that could not have been acquired through any of its previous deals. Additionally, it was confirmed that Fanatics provided an offer to the MLBPA that the MLBPA would likely not refuse – an offer that Topps could not come close to matching. With this deal, Fanatics can begin producing cards without team logos for the first three years, and when Topps’ deal expires at the end of 2025, Fanatics will be allowed to include all MLB trademarks and team logos. Considering that a T206 Honus Wagner card sold for $6.6 million on Sunday night, Fanatics wants to take advantage of this market opportunity. Additionally, according to The Athletic, Fanatics will replace Panini as the NBA’s card maker. Fanatics holds exclusive rights to produce NBA intellectual property on its trading cards starting in 2026. As Fanatics attempts to disrupt a market that has been stable and consistent for many years, companies such as Topps, Panini, and Upper Deck are beginning to be left in the rear-view mirror. To the companies that have combined for 173 years of producing sports trading cards – it’s your move. Josh is a graduate of New York Law School and the former Sports Law Society President. He is currently an Associate at Law Office of Samuel Eber, PC. You can find him on Twitter @JBenrubi_ Sources: https://www.forbes.com/sites/marcedelman/2021/08/23/after-losing-mlb-license-topps-should-pivot-to-college-sports-trading-cards/?sh=14c70dae77ab https://www.marketwatch.com/story/mlb-taps-fanatics-to-replace-topps-as-baseball-trading-card-maker-heres-what-that-means-for-the-value-of-your-cards-11629741371 https://www.espn.com/mlb/story/_/id/32052284/fanatics-strikes-deal-become-exclusive-licensee-mlb-cards https://bleacherreport.com/articles/10011007-espn-nflpa-fanatics-agree-to-20-year-contract-for-trading-cards-joining-nba-mlb https://www.actionnetwork.com/news/mlb-exlusive-trading-card-lecense-fanatics-topps https://www.one37pm.com/culture/trading-cards/fanatics-sports-cards https://www.inquirer.com/sports/baseball-cards-topps-fanatics-mlb-deal-20210819.html

Per Front Office Sports, the Pac-12 has made the decision to become the first Power Five conference to allow student-athletes to license highlights.[1] The licensing will be done through Veritone, the media licensing partner for the conference, and will open up another avenue through which student-athletes can seek to benefit from and profit off their name, image, and likeness (“NIL”).[2] President of Pac-12 Networks, Mark Shuken, stated in the conference’s press release that: As part of a network built to showcase the Pac-12 Conference, its student-athletes and programs, the Pac-12 Networks NIL Licensing Program is an important step in recognizing and celebrating the new opportunities available to student-athletes[.] . . . We are proud to provide this new, streamlined process for student-athletes and their NIL partners to easily access and make the most of Pac-12 Networks footage in this new landscape.[3] A license, for anyone unfamiliar, is a limited right in property granted by the property owner to a third-party that allows the third-party to use the property in a certain defined way. In this case, intellectual property is the property at issue and the licensing program will allow student-athletes the limited right (i.e., license) to use highlights, the intellectual property of which is owned by Pac-12 Networks, for certain NIL-related endeavors, subject to any restrictions or stipulations imposed by Pac-12 Networks. Before getting into the broader ramifications of this decision, it is important to acknowledge who the program will be available to: student-athletes and their NIL partners. In practice, assuming there will be a cost associated with licensing, it is possible that in many instances it will be the NIL partners licensing the highlights directly from the Pac-12 Networks, rather than the student-athlete themselves, because of the up-front costs associated with obtaining a license for highlights. (At this point, no statement has been made about the costs associated with licensing highlights or other content from Pac-12 Networks). It will be interesting to see, as more details of the program come out, how Pac-12 Networks will handle working with NIL partners directly as opposed to working with student-athletes. Working with student-athletes directly illustrates the commitment to celebrating new opportunities for student-athletes that Mark Shuken mentioned in his statement while ensuring that the network can still keep some cut of the profits; working with NIL partners directly furthers the profitability of the Pac-12 Networks while potentially limiting how much of that profit student-athletes are able to tap into. But student-athletes will have several different options for structuring licensing deals. Student-athletes could enter into agreements i) where the student-athlete will require the NIL partner to make an initial payment to allow the student-athlete to pay the licensing fee, if any, to Pac-12 Networks and then license that right out to the NIL partner; ii) where the student-athlete grants the NIL partner the right to procure a license for specific highlights involving the student-athlete directly from Pac-12 Networks; or iii) assuming student-athletes are able to license their own highlights for free, or elect to pay for the license, where, after the student-athlete licenses highlights from Pac-12 Networks, the student-athlete then further licenses the license to highlights to an NIL partner. In either case, the student-athlete will want to ensure that the NIL partner only has the right to use a specific highlight, or set of highlights, and that the highlight(s) can only be used in the exact manner that the student-athlete determines best for profiting from and protecting its NIL (and that does not in any way violate the terms of the original license with Pac-12 Networks). This decision by Pac-12 Networks will not expand the NIL market for student-athletes on its own, but it will allow student-athletes to have better access to the highlights and footage that make their NIL profitable, which may attract new businesses and sponsors into considering NIL deals with student-athletes. By choosing to license its highlights and footage, Pac-12 Networks has made the decision to insert itself into the NIL market and take advantage of the money available in the market; it has positioned itself as a sort of middle-man that controls and owns a highly valuable aspect in the NIL market – student-athlete highlights. The question yet to be answered is whether other conferences will follow suit. The argument could be made that conferences are better off keeping student-athletes out of the equation and maintaining the rights to all highlights and footage on their own so that it can be sold directly to businesses, cutting out the student-athlete, at the highest price. But the argument could just as easily be made that adding student-athletes into the equation will help grow the market for the highlights and footage that the conference owns, and therefore the conferences could expect increased profits even with student-athletes getting paid in that scenario. Another issue to keep in mind is how mass-licensing will work under the Pac-12 Networks program. If, for example, EA Sports decided to revive its wildly popular NCAA Football video game with the actual names, images, and likenesses of every single Pac-12 college football student-athlete, is there a mechanism in place for the conference to make the decision to license the Nil on behalf of all student-athletes? Would higher profile athletes be able to holdout for better deals than the conference and EA Sports might initially have on the table? Or would the student-athletes be in a position where they can now profit from their NIL in a potential video game, but would not actually have a seat at the table in deciding how their NIL was used and how they were compensated for such use? EA Sports showed interest in the past in licensing the NIL of all college football players, before the NIL era was even on the horizon, but there has been little indication of how such an arrangement might work, especially if different conferences begin to take different approaches on how to license conference-owned content to its student-athletes. [1] Pac-12 to Allow Athletes to Use Highlights for NIL Deals (frontofficesports.com). [2] Pac-12 to Allow Athletes to Use Highlights for NIL Deals (frontofficesports.com). [3] Pac-12 Networks announces launch of new NIL Licensing Program, 
in partnership with Veritone | Pac-12.

NHL players are returning to the Olympics after missing the 2018 games in Pyeongchang. In 2017, the NHL made the decision not to allow its players to participate in the games, and there were two reasons for this decision. First, a series of disputes between the league and the International Olympic Committee (IOC) over the costs incurred by NHL athletes and who would cover them. The IOC had paid for the travel, insurance, accommodations, and other costs for NHL players but refused to continue to do so for 2018. [1] Second, participation in the Olympics occurs during the NHL season, in past years, the NHL took a three-week break in its season to accommodate the athletes choosing to compete for their countries.[2] At the time, the decision to pull out of the Olympics upset some NHL players. The first step in allowing NHL players to compete was laid out in the new Collective Bargaining Agreement (CBA). The CBA which went into effect on July 10, 2020, approved a labor agreement into 2026 and a return to the Winter Olympics in 2022 and 2026. The CBA solved the issue on the players participation dilemma of taking a three week break to accommodating the athletes participating that plagued the leagues decision. Section 16.5(a) states “League scheduled off-days or breaks (e.g., All-Star break, Holidays, Olympics) shall count as a day off for purposes of this subsection (a).”[3] Furthermore, section 16.15 All Star Game states, “There shall be no All-Star Game in any League Year in which the NHL and NHLPA agree to participate in an international tournament or other event, including but not limited to the Winter Olympics.”[4] Both of these amendments to the agreement clear up the participation issue which prevented players from going to the 2018 Olympics. These amendments to the agreement created real solutions to the problems that needed to be solved. The remaining issue was an agreement between the NHL, NHL Players' Association (NHLP), IOC and International Ice Hockey Federation (IIHF). After months of negotiations the four organizations came to agreement, allowing for NHL player to compete at Beijing 2022. The IOC and IIHF agreed to pay for the travel costs, and insurance for the NHL players and their guests, if spectators are permitted.[5] However, Covid - 19 created a new issue; what if a player caught Covid during the games? While the NHL and NHLPS found specific Covid insurance, it was costly and the IOC and IIHL declined to pay for it. Each player would have the opportunity to purchase the Covid insurance if they chose to, but it is not required. In addition to these terms, the IOC is requiring all players who participate in the Olympics to have the Covid vaccine, exemptions will be considered on a player basis.[6] While the main problems that prevented players from competing in 2018 have been solved this is not a done deal. All four sides agreed to an opt-out clause that allows the NHL and NHLP to pull out of the Olympics if Covid cases increase or poses a threat to players. This clause is a safety net for the NHL if games are cancelled due to Covid and the league needs to use the break to make up games. The opt out clause is something that should be monitored through the season. Right now, the tentative break schedule is as follows; the break will take place from February 3rd through the 22nd. The All – Star game will be played between February 4th to the 5th then the Olympians will depart on February 6th. If all goes according to plan, players will get their wishes of competing for their home countries in the Olympics again. And hockey fans all over the world will have the opportunity to see their favorite players compete for the gold, silver, and bronze. Jessica Shaw is the Secretary of the New York Law School Sports Law Society. She can be reached on Twitter @JessicaShaw22. [1] Jennifer Calfas, NHL Players Are Not Allowed in the Olympics. Here's Why, Time, (Feb,14 2018), time.com/4947041/nhl-players-2018-winter-olympics/. [2] Id. [3]Collective Bargaining Agreement, The PA | NHLPA.com, www.nhlpa.com/the-pa/cba. [4] Id. [5] Emily Kaplan, and Greg Wyshynski. NHL Players Heading to Beijing Olympics in 2022: Bracket, Schedule, Teams, COVID Protocols. ESPN, ESPN Internet Ventures, (Sept 3, 2021), www.espn.com/nhl/story/_/id/32139447/nhl-players-heading-beijing-olympics-2022-bracket-schedule-teams-covid-protocols. [6] Id.

BY: EMILY COSTANZO As a freshman playing for a program that is oftentimes described as a “dynasty,” it would be understandable if Minnesota native Paige Bueckers did not immediately make an impact when she arrived in Storrs, Connecticut to throw on the Husky jersey. After all, she is playing under coaching legend Geno Auriemma, in a gym whose banners display the University’s 11 National Championships, and whose alumni network includes the likes of Sue Bird, Diana Taurasi, Maya Moore, and, well, more. This could not be further from what happened. Bueckers dominated the college game as soon as she set foot on the floor. Perhaps most notably, Bueckers was named the 2021 Naismith Player of the Year, an award considered by many to be the pinnacle of success in collegiate basketball. In short order, “Paige Bueckers” became a household name, but unlike the professional athletes who attract similar attention, the prodigious freshman could not earn anything on her name, image, or likeness per NCAA regulations. As the 2020-2021 season wrapped up, it seemed that the time when Bueckers’ face could be on a Wheaties box was far, far into the future. Luckily for her and collegiate student-athletes across the nation, this restriction was lifted by the NCAA’s implementation of an interim name, image, and likeness policy deemed effective on July 1, 2021. According to NCAA President Mark Emmert, “This is an important day for college athletes since they all are now able to take advantage of name, image and likeness opportunities.”[1] Although the NCAA acts as the governing body that initially allowed the implementation of said rules, universities will have the ability to adopt their own policies. The University of Connecticut policy on name, image, and likeness went into effect on July 12, 2021, and provides, in relevant part: “Student-athletes enrolled at the University may use their name, image, and likeness (NIL) to earn compensation through an endorsement contract or employment in an activity that is unrelated to any intercollegiate athletic program and obtain the legal or professional representation of an attorney or sports agency through a written agreement, provided such student-athlete complies with the University Policy of Student Athlete’s Name, Image, and Likeness…these procedures, and applicable law.”[2] Bueckers wasted no time in pursuing her own profitability. On July 13, 2021, under the advisement of her newly hired Wasserman legal team, Bueckers filed an application with the United States Patent and Trademark Office for the moniker, “Paige Buckets.”[3] The nickname, made popular in the wake of her freshman season success, will allow UConn and collegiate basketball fans alike to purchase “athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms” that proudly rep the trademark once registered.[4] Now, for the question on many of our minds—how do trademarks work? Think of it this way: when you hear the lyric, “Checks over stripes,” what comes to mind? For many of us, we immediately register the former term with Nike and the latter with its ever-present competitor, Adidas. In fact, one may argue that the mere sight of either of these symbols would alert almost anyone to register a shirt, hat, or other piece of athletic apparel with one brand or the other. How can seemingly unimpressive symbols, be they simply a “check” or three well-placed stripes, result in our immediate recognition of two billion-dollar organizations? The short answer: trademarks. Trademarks, which operate at both the federal and state levels, serve as tangible representations of the service a business is providing to the public. In the eyes of the consumer, trademarks allow us to identify the product and avoid confusion. A trademark’s value is, in essence, created in the minds of the people using the product or service as they navigate the ever-evolving world of commerce. With this newly passed legislation, Paige Bueckers will take advantage of her opportunity to enter that world for herself. [1] https://www.ncaa.org/about/resources/media-center/news/ncaa-adopts-interim-name-image-and-likeness-policy [2] https://uconnhuskies.com/sports/2021/7/14/uconn-nil-information.aspx [3] https://www.courant.com/sports/uconn-womens-basketball/hc-sp-uconn-women-paige-bueckers-buckets-20210804-20210803-m4rbpqvz6farfiq76pibawejz4-story.html [4] Id.

On August 6, 2021, the Chicago White Sox were named defendants in a lawsuit filed by a former batboy of their minor league affiliate, the Birmingham Barons. The named defendants in the case are Omar Vizquel, the Birmingham Barons, the Chicago White Sox, and Chisox Corp. The Barons filed their answer to the complaint on Tuesday, August 31. The Chicago White Sox did the same on Friday, September 3. Conduct Detrimental obtained a copy of the team's response. For some background on the lawsuit, the plaintiff alleges that Omar Vizquel, then manager of the Double-A Birmingham Barons, engaged in a pattern of sexual abuse and harassment towards him. Specifically, as alleged, Vizquel would intentionally expose himself and force the batboy to wash his back. Notably, this lawsuit calls for a holding of disability discrimination in violation of Title 1 of the Americans with Disabilities Act. The plaintiff says he has autism. The Chicago White Sox deny that they are proper defendants for any claim, deny they have violated the cited statutes, deny any liability to Plaintiff, and deny that Plaintiff is entitled to the requested relief. As in most answers, the White Sox legal team parses through the complaint paragraph by paragraph, either admitting to, denying, or claiming to have insufficient knowledge of the alleged assertions in said paragraph. For example, as the plaintiff often tries to merge the White Sox and Barons as one entity, the major league team continuously distances itself from the minor league team (and its officers) in the answer. "These Defendants admit that the Barons are the AA affiliate of the White Sox, that the White Sox employ the coaching staff and players, and that the White Sox employed Vizquel. These Defendants deny that they share centralized control of labor relations, have common management, or enjoy common financial control with the Barons." In the complaint, the plaintiff alleged that Vizquel would intentionally expose his erect penis in the presence and direction of plaintiff. The Chicago White Sox, who respond to most allegations with "These Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations" vehemently deny this one. "Upon information and belief, these defendants admit that Vizquel did NOT expose his erect penis to any bat boys." This is a direct denial of the plaintiff's claim. However, the team does not deny that Vizquel told plaintiff to wash his back. In fact, they admit it happened, rather than claiming to be naïve to the allegation's validity. The Birmingham Barons argued on Tuesday that the plaintiff can't sue the team over alleged sexual harassment by Vizquel because the ex-employee never officially reported the incident. The Chicago White Sox deny the incident ever happened. As a response to the ADA claim, the White Sox claim that they were never the plaintiff's employer. Rather, they say he was employed by the Birmingham Barons, a separate entity. "These Defendants and the Barons are not a single employer or integrated enterprise" As this case is being heard by an Alabama federal judge, the White Sox hired Birmingham, Alabama law firm Scott, Dukes, and Geisler to file their answer. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is the President of Hofstra’s Sports and Entertainment Law Society. Additionally, he is a Law Clerk at Geragos & Geragos. He can be found on Twitter @Jmorr1.

Image via: https://dolphinnation.com/2021/10/13/brian-flores-issues-surprising-response-to-jon-gruden-controversy/ By Daniel Wallach A key legal argument that the NFL recently asserted in the Jon Gruden lawsuit may undermine one of its main defenses in the Brian Flores lawsuit. Last week, the parties in the Flores case jointly filed a proposed "civil case management plan and scheduling order" with the court. That document is particularly enlightening for several reasons. First, from a clarity standpoint, the proposed case management plan provides a succinct overview of the claims and anticipated defenses. More revealingly, the case management plan also offers a "preliminary peek" into the motions and legal arguments that each side will be making over the next several months. And one of those arguments is at variance with statements previously made by the NFL in the Gruden case. At the bottom of page 3 of the joint filing, the NFL asserts that it is not a proper defendant in the Flores lawsuit because it does not hire coaches, only the teams do. The NFL maintains that it "is not and has never been Plaintiffs' employer under the relevant statutes (notwithstanding Plaintiffs' conclusory assertions to the contrary), so as a matter of law it is not subject to liability for the actions challenged here." Although the plaintiffs do not address that argument head on, I would expect them to later argue in response to the league's motion to dismiss that the NFL is a "joint employer" (and therefore liable) because it exerts significant control over each team's hiring of coaches and general managers, including by mandating compliance with the Rooney Rule. Likewise, the NFL's ability to discipline and fire coaches--a right it plainly possesses under the NFL Constitution and Bylaws--is another factor militating in favor of a finding that the league is a "joint employer." Federal courts, including those in the Second Circuit (where the Flores case in pending) have recognized that the authority to "fire and discipline" can bear on whether an entity, even though it is not the formal employer, may be considered a "joint employer" under Title VII. See Felder v. United States Tennis Ass'n, 27 F.4th 834, 838 (2d Cir. 2022). And this is where the NFL's legal arguments in the Gruden lawsuit could come back to haunt the league in Flores. In their motion to dismiss filed with a Nevada state court in early January, the NFL argued that it had the right--independent of the Las Vegas Raiders--to fire Gruden for sending racist, misogynistic and homophobic emails, reasoning that Section 8.13(A)(2) of the NFL Constitution and Bylaws granted them that right: In any event, had the NFL Parties wanted to fire Gruden, they had no need to resort to “leaks” to force his resignation (or to force the Raiders to fire him), because they themselves had the right to cancel Gruden’s contract: the NFL Constitution grants the Commissioner the “complete authority to . . . [s]uspend and/or fine” or “[c]ancel any contract or agreement” of any “coach” “[w]henever the Commissioner, after notice and hearing, decides that” the coach “has either violated the Constitution and Bylaws of the League or has been or is guilty of conduct detrimental to the welfare of the League or professional football.” (NFL Constitution § 8.13(A)(2). (NFL Motion to Dismiss, at p. 9). This prior admission implicates principles of "judicial estoppel," a legal doctrine that prevents litigants from advancing diametrically opposite positions in different lawsuits. I would expect the plaintiffs in the Flores case to cite the above constitutional language--as well as the NFL's prior admission in Gruden--to counter the NFL's expected assertion in the Flores case that it is not an "employer" for purposes of Title VII or Section 1981. Given the significant control that the NFL exerts over the hiring, firing, and disciplining of NFL coaches--a right that the NFL recently touted in another lawsuit filed by a different former head coach--the plaintiffs in the Flores case may now have enough ammunition to withstand a motion to dismiss directed to the "employer" issue. Daniel Wallach is the co-founder of Conduct Detrimental. He is a nationally-recognized gaming and sports betting attorney. You can follow him on Twitter at @WALLACHLEGAL.

In several of my recent articles I've covered the intricacies and developments around the future of Alpine reserve driver, Oscar Piastri as Formula One’s driver market silly season has been in full swing. Developments have been coming in almost hourly it seems, as the situation becomes more and more complicated. These complications have reached an interesting boiling point, bringing McLaren’s Daniel Ricciardo directly into the spotlight as well. Bear with me as I try to navigate you through this complex situation as succinctly as possible. The Beginning The whole chain of events here was initially set in motion by this surprise retirement of Aston Martin’s Sebastian Vettel. Vettel shocked the Formula One world, including his current team, Aston Martin, when he announced his retirement from the sport at the end of this year. Up until that announcement, Vettel was slated to sign a one-year extension with the team to continue racing through the 2023 season (at the very least). This left Martin with a senior leadership role to fill, and they struck quickly to find a replacement. Just days after the initial announcement that Vettel was retiring, Aston Martin announced that they had poached veteran Fernando Alonso from Alpine, where he was also expected to sign a contract extension for one year with a third-year team option, with a mind towards Alonso eventually shifting to their World Endurance Championship entry. This left Alpine with a very clear and obvious next move to fill Alonso’s seat in Oscar Piastri, who was the team's reserve driver and prime for his debut in F1. The Unraveling Things began to fall apart when Alpine, without consulting Piastri, announced that he would be driving for the team starting in 2023. This prompted Piastri to take to social media to announce that he did not have a contract with the team for next year and would NOT be driving for them in 2023. This sent the rumor mill spiraling. Before Alonso's departure, it was widely considered by the Formula One community that Piastri would be sent on a loan deal to Williams until Alonso left Formula One, then come back to the team to fill this place. This feeling was reinforced by the fact that Piastri has been undertaking an extensive development program both in Alpine simulators and in driving their 2021 car at a number of tracks, where he was slated to complete over 5000 kilometers of testing by the end of the season. This was a massive investment by Alpine because they believed they had a contractual right to Piastri and his future, and therefore their investment in him would pay off whenever he was promoted to their team in the medium-term future. The team’s unilateral announcement that Piastri would drive for Alpine in 2023 and Piastri’s immediate and public renunciation of this raised eyebrows. It is very clear that Alpine believes they had a valid contract for Piastri and that they would control his destiny in 2023. It is also clear that Piastri had a very different understanding of what was going on, and unless he had something else lined up for next year, taking to social media and publicly renouncing a Formula One seat would be instant career suicide. Where McLaren Fits In In the days since Piastri’s public announcement that he would not be racing for Alpine in 2023, his reasoning for this statement has begun to seem clearer. While nothing has been officially confirmed by either team, it is widely accepted that Mark Webber, former Formula One Driver, and Piastri’s manager, had been in secret talks with McLaren to have Piastri replace Daniel Ricciardo. These discussions were undertaken under the understanding from Webber that certain contract provisions allowed Piastri to look for positions elsewhere. It is thought that in Piastri’s contract, there is a clause that allowed for him and his manager to seek outside Formula One seats if Alpine had not confirmed him a spot by a certain set date, thought to be before the start of the summer break of this year. Because no final decision had been made before the beginning of the summer break, Webber and Piastri believed that they were free to begin soliciting offers from other teams for a seat. When Alpine originally made the announcement that Piastri would drive for them in 2023, they believed that they still had a right to him and there were no contractual issues. However, it is proving to be quite the issue, with no clear answer as to which party has the correct interpretation of the contract. With that said, the most recent announcements and press releases from Alpine have softened the original position that they had a contractual right to him for 2023, seeming to signify that there is probably something to Webber’s and Piastri’s interpretation of the contract. Instead of saying that they have a contractual right to have Piastri drive for them, their tone has changed to one of Piastri “is not showing the required loyalty” to the team who has invested heavily in him. As of now, it is unclear whose interpretation is correct, and this dispute will almost certainly end up with the FIA’s Contract Recognition Board, which essentially operates as binding arbitration between the team and driver when contract disputes arise. Without having the details of the contract, it is impossible to say exactly who is correct, but it's still not an advantageous position to be in for Alpine. The Expensive Riccardo Complication If you are a Formula One fan, you might be sitting there saying “but wait, Zach, McLaren already has a valid contract with Daniel Ricciardo for 2023, how are they trying to sign Piastri?” If in fact, you were to think this, you would be correct—but let me explain. Technically, McLaren already has its driver lineup for 2023 locked in with Daniel Ricciardo being under contract for one more season and Lando Norris being on a long-term deal. In a previous article, I mentioned this contract and how Daniel Ricardo ultimately has the power to say if he wants to stay with the team or to leave early as a contractual option, which he has publicly stated he will not exercise. Well, now that McLaren is attempting to sign Piastri out from under Alpine, this essentially leaves them with the option of buying out Daniel Riccardo’s remaining contract so that his seat can be immediately taken over by Piastri. Again, while nothing is certain at this point, speculation and reliable sources say that Daniel Ricciardo has requested a buyout of $21 million if he is to leave the team before his contract is complete. That is a massive amount of money to pay a driver to not race for you and makes it a more difficult situation for McClaren to handle as well. Why the Switch for McLaren? Since leaving Red Bull, Daniel Ricciardo has had a tumultuous time to say the very least. He spent two seasons with Renault, the team currently known as Alpine after a soft rebranding, before signing with McLaren with hopes that he could get back to his winning form from his time at Red Bull. Well, that simply hasn't happened. Even on his best days Daniel Ricardo still finds himself unable to even match the performance of Lando Norris, McLaren’s younger and much more successful driver. Yes, Daniel did end up winning a race for McLaren last season, but that one good performance has not been able to outweigh the overall mediocrity he has shown otherwise. Essentially, McLaren thinks that its best short and medium-term options are to pay Ricardo off and take the hit now so they can sign Piastri, allowing him to gain extra experience so that he can be even more formidable for the team in the future, while also simultaneously depriving one of their immediate rivals of what is widely considered to be the next big Formula One star. While it seems crazy that McLaren changed its mind so quickly, at the end of the day Formula One and its behind-the-scenes politics are emotionless, and the team has determined that this course of action would be its best option. What Happens Going Forward? It is unclear exactly what will come of all of this situation as the Formula One season progresses. It is almost certain that Alpine and Piastri will end up in front of the FIA’s Contract Recognition Board for arbitration, and their decision will ultimately affect what happens going forward. However, it does seem likely that Piastri we'll make the move to McLaren, and if he does there are still several question marks. Will Daniel Ricardo move to Alpine to fill the empty seat, or decide to leave Formula One indefinitely? Would Alpine even want to re-sign a driver that left after a tumultuous 2 years in the first place? If they choose to go down a path other than Ricardo, who does Alpine sign to replace him from the limited options available to them at this point? Well, as of right now I don't have the answers to any of these questions. There's too much up in the air, too much possibility of different eventualities to say anything that is beyond pure and utter speculation. I may not be able to answer these questions now, but I can promise one thing—as soon as the picture becomes clearer, you trust that Conduct Detrimental, and I will keep you updated as soon as these situations become more concrete. Zachary Bryson is a graduate of Wake Forest University with a B.A. in Economics and a Minor in Entrepreneurship. He is currently a JD candidate at Elon University School of Law, Class of 2023. You can connect with him via LinkedIn or follow him on Twitter at @ZacharySBryson.

First reported by Evan Drellich of The Athletic, Advocates for Minor Leaguers have issued an in-depth response to Commissioner Rob Manfred’s letter to the United States Senate Judiciary Committee. While noting the U.S. Senate Judiciary Committee is planning a hearing on issues within Minor League Baseball and Major League Baseball’s antitrust exemption, the response from Advocates for Minor Leaguers criticizes Major League Baseball’s characterization of the importance of the antitrust exemption. Commissioner Manfred’s Letter Commissioner Manfred’s letter to the U.S. Senate Judiciary Committee covered a range of topics impacted by the antitrust exemption. Specifically, in the 17-page letter, Commissioner Manfred stressed five points: The antitrust exemption allows many, including controlling housing, training standards, and meals for Minor League Baseball players and controlling team relocation for fans. Major League Baseball and its team owners incur costs because of Minor League Baseball. Many terms and conditions of employment are due to collective bargaining between the Major League Baseball Players Association and Major League Baseball, which avoids antitrust scrutiny due to the non-statutory labor exemption. Major League Baseball gives significant signing bonuses to players drafted in Major League Baseball’s First-Year Player Draft. If Congress removed the antitrust exemption, many communities may be left without a Minor League Baseball team because team owners would opt to train their players at their spring training facilities. To no surprise, Commissioner Manfred’s letter took the position that keeping the antitrust exemption in place is good for all parties, including players, fans, and communities. Advocates for Minor Leaguers Respond Advocates for Minor Leaguers have now responded to the points in Commissioner Manfred’s letter. The three-page response highlights issues with Commissioner Manfred’s argument. First, even if Congress removed the exemption, Major League Baseball can still engage in conduct that is positive for players. “The removal of baseball’s antitrust exemption will simply enable a federal court to decide whether each instance of MLB’s anticompetitive conduct is actually good for players and fans,” Advocates for Minor Leaguers wrote. By allowing a court to decide, Major League Baseball cannot engage in negative anticompetitive conduct, including wage-fixing. Second, Major League Baseball ignores the effects of the work of Minor League Baseball. “[T]he development of the Major League Product . . . occurs in the Minor Leagues.” Thus, while team owners may incur costs because of Minor League teams, they reap the significant gains that the players developed in Minor League produce. Third, the non-statutory labor exemption, which exempts agreements between and among employers and unions from antitrust liability, does not apply because Minor League Baseball does not participate in collective bargaining. This point could come into play down the road. Importantly, the Major League Baseball Players Association does not represent Minor League Baseball players. Fourth, despite Major League Baseball giving significant signing bonuses for top-tier talent, most Minor League Baseball players earn a salary between $4,800 and $14,700 per year. For comparison, the poverty guideline, which is set by the Department of Health and Human Services, was $12,880. Thus, while some players may have earned a significant signing bonus, many are not earning a living wage. Fifth, “[t]he most disappointing aspect of [Major League Baseball’s] letter is its baseless fear-mongering . . . ,” Advocates for Minor Leaguers wrote. Specifically, Major League Baseball takes the position that by removing the exemption, team owners will remove Minor League teams from communities, and team owners will limit roster spots. “Congress must learn a lesson from 1975 and ignore such scare tactics.” Takeaways Advocates for Minor Leaguers is aiming to set the record straight on the struggles of Minor League Baseball players. Minor League Baseball develops the players that go on to star in Major League Baseball. In turn, Major League Baseball and its team owners reap significant financial gains from those players. Because of the significant gains for Major League Baseball and its team owners, Advocates for Minor Leaguers, and many others, are demanding that Congress remove the antitrust exemption to eliminate lengthy contracts, wage-fixing, and other issues. With the U.S. Senate Judiciary Committee reportedly planning a hearing on the matter, the antitrust exemption will remain under the microscope. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

When I went into my third year of law school, I made the decision to settle my career in the world of Sports Law. After years of describing to the family what intellectual property was and how I would practice in the area of Patent Law, I had to once again describe to the family over holiday breaks what Sports Law was. Recently, a story surrounding NBA Superstar Kevin Durant highlights how Sports Law differs from other parts of the law. Over this past weekend, Kevin Durant met with Net’s Owner Joe Tsai in London, England. During this meeting, it was reported that KD provided Tsai with an ultimatum to fire GM Sean Marks and head coach Steve Nash or honor his trade request. This trade request was made by KD on the first day of NBA free agency, June 30th. Marks is currently in talks with the team regarding a contract extension. In mid-July, conflicting news surfaced about a contract extension for the GM that joined the team in 2016. The team denied that an extension agreement was reached between the two parties. Nash is currently halfway through his four-year contract as head coach with the Nets. In the law, a party can be held liable for economic damages that occur when they act in a way that interferes with the contractual agreements of others. This is known in the law as tortious interference or intentional interference with contractual relations. Tortious interference falls under the larger umbrella of Torts Law. An example of tortious interference occurs when a party threatens to not provide goods or services necessary for the completion of another contract or interferes with a business relationship. So this begs the question, why is KD’s demand not a tortious interference with the contracts of Marks and Nash? It seems that KD wants the Nets to terminate their contract with Nash and not sign any sort of contract that may have been signed with Marks. This would undoubtedly cause economic harm to the GM and coach. The answer may lie in the structure of professional sports leagues. More specifically, the NBA has both a league constitution and a collective bargaining agreement between the NBA and NBPA (National Basketball Players Association). These documents have their own provisions that cover contractual interference. Tampering rules are covered in Article 35 of the NBA Constitution. However, looking into the wording of Article 35, it punishes players, GMs, coaches, and others for enticing others to their team. It is silent when it comes to pushing out personnel that is currently under contract with a team. This situation of players wanting to force out coaches and GMs is nothing new in the NBA. In its history, the NBA has had several instances where players have influenced the hiring and firing of coaches and GMs. In 2004, Jason Kidd got into an argument with his coach Byron Scott in the locker room. Then boom, shortly after the locker room spat Scott was fired. In 2012, a weird saga of conflicting statements surrounded a conflict between Orlando Magic star Dwight Howard and coach Stan Van Gundy. Howard reportedly stormed into management’s office and demanded Van Gundy be fired. What resulted was a very, very awkward press conference, the firing of Van Gundy, and the eventual departure of Howard months later. The Nets owner Joe Tsai has since tweeted his support for his staff indicating that he will be going against the ultimatum set forth by KD. Whether this leads to a trade or a tumultuous season with a disgruntled superstar on the roster, more will come forward before the start of the 2022 NBA season. In the end, these stories of players demanding a change in management do not lead to any claims of tortious interference. While it can lead to fines from tampering rules, it does not lead to any sort of civil cases. The NBA seems to want to give the players this sort of power to determine their own future with a team by demanding a change in management. This latest story about the Nets highlights how the world of sports differs from other areas of the law. In a business world, these acts would be considered interference with business opportunities and would lead to heavy monetary damages. This story also helps define Sports Law and can be an example that is used when you need to explain to your extended family how you define Sports Law. Justin Mader is a recent graduate of the University of New Hampshire Franklin Pierce School of Law where he earned a J.D. and a Sports and Entertainment Law Certificate. He can be reached via Twitter: @maderlaw and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.

A big win in court for the PGA Tour -- but this is only the battle, not the war... Last week, Phil Mickelson, Bryson DeChambeau, and 9 other golfers who joined the Saudi-backed LIV Golf filed an antitrust lawsuit against the PGA Tour in the United States District Court for the Northern District of California. Three of these LIV Golfers in particular -- Talor Gooch, Hudson Swafford, and Matt Jones -- were also seeking emergency relief as part of the larger antitrust case. Specifically, these three were seeking a temporary restraining order to be allowed to compete in the PGA Tour's upcoming FedEx Cup Playoffs and get around their PGA-issued suspensions. This was positioned as emergency relief since the postseason begins Thursday. They needed the Judge to rule in their favor in order to compete but that’s not what happened. However, the day's events might be a LIV win in the long run. Two major stories on the LIV-PGA front to consider: First, Judge Beth Labson Freeman entertained oral argument on the TRO issue for approximately two hours. She ultimately ruled that the LIV golfers had failed to show irreparable harm if the TRO was not granted, i.e., that a subsequent monetary award could not make the players whole. Separately, Judge Freeman found that the players had not established a likelihood of success on the merits in the underlying antitrust case. Ouch. Naturally, in denying this relief, Judge Freeman dealt a big blow to the LIV golfers' legal claim but it was yesterday's OTHER development that may be real cause for concern if you’re the PGA Tour. Reports are swirling that Cameron Smith, the #2 ranked golfer in the world, has agreed to a staggering $100M deal to join the LIV Tour. Smith has not confirmed himself but he didn't deny it when asked today. If true, it would be the biggest PGA Tour defection to date. On the one hand, it would certainly seem to help the PGA Tour's antitrust defense. This is because a top golfer like Cam Smith leaving would be seen as an indication that the PGA Tour does not exert true monopoly power over any and all competitors. Quite the opposite actually -- that LIV is able to compete with the PGA so much so that they lured one of their top golfers coming off a massive win at the 2022 British Open. In that sense, though it might help the PGA Tour with its legal case, it would be a heavy blow to the business of the PGA Tour. If they can lose a Cam Smith, anyone really could be next to go. The PGA Tour clearly has won Round 1 — let’s not undersell it… but the war at the epicenter of pro golf is far from over.

With the 2022 FIFA Men’s World Cup looming on the horizon, clubs around the world are faced with the anxiety-inducing reality of sending their players competing in the tournament to their respective national teams in the middle of the season. To assuage the concerns of club executives over international tournaments, FIFA typically schedules them during June and July so that players are competing for their nations during the offseason. Nevertheless, the FIFA-sponsored continental tournament of Africa - the African Cup of Nations (AFCON) – is the lone outlier amongst the primary group of international competitions, held in January and February. For club executives in countries whose leagues do not mandate a winter break, releasing their African players to play in AFCON may hold a detrimental effect on the club’s overall success during the season. It is certainly not uncommon for executives to voice their displeasure over the timing of the tournament, but rarely has this displeasure resulted in the issuing of an ultimatum before a player has even signed for their prospective club. Until now. Last week, Aurelio De Laurentiis – club president of S.S.C. Napoli in the Italian Serie A, indicated during a streamed event on Wall Street Italia that his club will not be signing any more African players unless they agree to forfeit the opportunity to represent their countries at AFCON by signing a waiver which mandates as such. In explaining his perspective, De Laurentiis deemed it unfair for European clubs to continue paying salaries to their African players whilst said players are offering their services elsewhere. Such a statement holds interesting ramifications for Napoli as a club, as the Italian outfit has always employed the services of top-class African players as part of their quest toward sustained legitimacy in Italian football. Currently, the crop of African players employed by Napoli includes Victor Osimhen of Nigeria, Andre-Frank Zambo Anguissa of Cameroon, and Adam Ounas of Algeria. While this current crop of players has not released a statement at the time of writing, Napoli’s former captain – Senegalese defender Kalidou Koulibaly – issued an impassioned response to De Laurentiis’ ultimatum. According to Koulibaly, De Laurentiis is not affording African players and national sides the same respect as that of their European counterparts – a mentality that has no place in a sport that supposedly champions equality and diversity. Koulibaly was not the only stakeholder in African football to respond to De Laurentiis’ words. The Confederation of African Football (CAF) issued a statement condemning the “irresponsible and unacceptable” nature of De Laurentiis’ remarks. CAF even posited that, by publicly mandating African players to sign a waiver denouncing future AFCON participation as a condition for employment, De Laurentiis’ ultimatum may fall subject to Article 14 of the UEFA Disciplinary Regulations - an article concerning discriminatory conduct. Consequently, De Laurentiis’ ultimatum for African players interested in playing for Napoli has certainly elicited a negative response amongst the football space, but could his intentions be enforced with legal justification as per FIFA guidelines? It does not seem so. To understand the answer to this question, I spoke with Álvaro Gómez de la Vega Jiménez, the Sports Legal Manager for Spanish Club RCD Espanyol de Barcelona S.A.D. According to Jiménez, De Laurentiis’ ultimatum would violate the provision outlined in Annexe 1, Article 1 of FIFA’s Regulation on the Status and Transfer of Players. Said Article establishes the following: “Clubs are obliged to release their registered players to the representative teams of the country for which the player is eligible to play on the basis of his nationality if they are called up by the association concerned. Any agreement between a player and a club to the contrary is prohibited.” Article 2 of Annexe 1 goes on to state that said release is mandatory for all championships of “A” representative teams of the confederations – under which AFCON would be classified as the championship of the African confederation. As such, De Laurentiis would likely be prohibited from authorizing African players to sign a waiver forfeiting their eligibility to be called up for AFCON participation as a condition necessary for their signature. If De Laurentiis is concerned over the persistent absence of African players whose salaries constitute a large percentage of the wage bill, he’s well within his rights not to sign more. But De Laurentiis’ threat to force an ultimatum upon African players whom he’s keen to bring to Napoli can only be that – a threat. Anything more and his words will most certainly have consequences. Special thanks to Álvaro Gómez de la Vega Jiménez for his contributions to the article. He can be found on LinkedIn at Álvaro Gómez de la Vega Jiménez. Bryce Goodwyn is an incoming 1L at Regent University School of Law. While at Regent, he will be a member of the Honors Program and will work as a Dean’s Fellow during his 1L year completing research and administrative work. He also formed part of the recently established National Sports Legal and Business Society as the Regent University Chair. He can be found on Twitter @BryceGoodwyn and on LinkedIn as Bryce Goodwyn.

Today, the 3rd Circuit Court of Appeals delivered a bombshell judgment on NFL agent Jason Bernstein's motion to vacate a March 2020 arbitration ruling denying Bernstein's grievance against NFL agent Todd France. The parties originally found themselves in court after Giants' wide receiver Kenny Golladay (then with Detroit) abruptly terminated both his exclusive endorsement/marketing and standard representation agreements with Bernstein (of Clarity Sports) in January of 2019. Bernstein grew suspicious of foul play when he learned (via a Facebook post) that Golladay had participated in an autograph signing three days prior, which he played no role in arranging. As Golladay's separation from Clarity Sports became official, the receiver quickly signed with CAA Sports and veteran agent Todd France. This led Bernstein to believe that France was behind the autograph signing event, which would violate Bernstein's exclusive marketing and endorsement agreement, as well as NFLPA policy. Five months later, Bernstein filed a written grievance against France pursuant to the dispute resolution provisions in the NFLPA regulations. Bernstein, claiming he had suffered $2.1 million in pecuniary losses (projected commissions on Golladay's NYG contract), alleged France violated Section 3.B(21)(a) of NFLPA regulations, which prohibits agents from "initiating any communication, directly or indirectly, with a player who has entered into a Standard Representation Agreement with another Contract Advisor and such Standard Representation Agreement is on file with the NFLPA if the communication concerns a matter relating to the: (i) Player's current Contract Advisor; (ii) Player's current Standard Representation Agreement; (iii) Player's contract status with any NFL Club(s); or (iv) Services to be provided by prospective Contract Advisor either through a Standard Representation Agreement or otherwise. As required by the NFLPA Regulations, the dispute was referred to arbitration. The NFLPA appointed an arbitrator, and the parties were permitted to take discovery from each other before the hearing. On November 7, 2019, Bernstein had the opportunity to depose Todd France. France unequivocally and repeatedly denied having any involvement in the autograph signing. Further, Bernstein faced immense difficulty in discovery, as "France denied having any documents responsive to key requests about Golladay's appearance at the signing event." The arbitration hearing was held in Alexandria, Virginia, on November 19 and December 12, 2019. There, the arbitrator ruled that "Bernstein did not meet his burden of proving that France had violated either provision of the NFLPA Regulations invoked in the grievance." "More specifically, because France had nothing to do with the signing event - and because Golladay had already made up his mind to switch to France by that point - France did not violate Section 3.B(2)'s prohibition on agents providing a thing of value to induce a player to sign with him." The arbitrator thus denied Bernstein's grievance in an award dated March 27, 2020. Bernstein sought to vacate that award and made it all the way to the Third Circuit Court of Appeals, which brings us to today's ruling. "Newly revealed evidence showed that France was in fact involved with the autograph-signing event," said Circuit Judge Jordan. As discovery continued in October 2020, CAA Sports produced an email from an employee to France attaching a contract for the autograph event for Golladay's signature, plus another email from France to Golladay attaching the same contract and asking him to sign and return it. The court recognizes that there is an extremely steep hill to climb to vacate an arbitration award, as such rulings are intended to be final. However, there are grounds that may call for a vacated award, and fraud is one of them. "Bernstein says that the arbitration award here was procured by fraud because of France's non-production of responsive documents, as well as his false testimony at the arbitration hearing and his pre-hearing deposition." The court agrees: Perhaps the easiest conclusion in this case, even under a clear-and-convincing-evidence standard, is that France committed fraud. The court also held today that France lied under oath and wrongfully withheld important discovery information that Bernstein requested. France continuously represented that there were no existing documents pertaining to the Golladay signing event. "He then doubled down by denying in his pre-hearing deposition and at the hearing that he had any knowledge of or involvement in the signing event." "His lawyer voiced the same position in his opening statement at the arbitration hearing. "None of that was true, as revealed by the evidence uncovered in Bernstein's Parallel Action. Text messages and deposition testimony showed that 'Todd' was to ride with Golladay to the signing event, and emails to and from France attached the contract for the event." The court held that "France's false representations that he did not possess those emails and that he had no involvement in the event amount to clear and convincing evidence that fraud occurred. Further, the court held that Bernstein could not have discovered this fraud and that it was material to the arbitrator's ruling: Bernstein's central allegation in his grievance was that France was behind Golladay's signing event. The arbitrator concluded that Bernstein did not present any evidence in support of that theory. But Bernstein could have, and undoubtedly would have, presented such evidence if not for France's lie that he had no documents reflecting his involvement in the signing event and his further lies about being wholly uninvolved in the event. With that, the United States Court of Appeals for the Third Circuit vacated the arbitration award, holding that it was procured by fraud. "An honest process is what those who agree to arbitration have a right to expect." Jason Morrin is a recent graduate of Hofstra Law School. He was President of Hofstra’s Sports and Entertainment Law Society. He will be joining Zumpano, Patricios, & Popok as a law clerk, awaiting July, 2022 Bar Exam results. He can be found on Twitter @Jason_Morrin.