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

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

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

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

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

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

It’s no secret that athletic departments, student-athletes, and brands alike are facing a plethora of complications due to the “wild west” landscape created by July’s NIL changes. However, discussion surrounding the “wild west” has primarily been concerned with what the interim NIL policy leaves unaddressed; but as endorsement contracts continue to roll in, they’re revealing that even the limitations which are expressly outlined may prove to be just as difficult to monitor. As it stands today, NIL limitations (absent additional state or school policies) primarily prohibit: Compensation based on athletic performance (pay for play) Compensation based on enrollment at a specific institution Compensation for work not performed On their face, these restrictions seem rather unambiguous. For the purposes of this article, we’ll focus our attention to the first limitation: prohibition of pay for play. You simply can’t be compensated based on the number 0f touchdowns you score. It’s clear and easy to detect, right? Yes, it is! Well…until it isn’t. Let’s take a look at this compensation structure extracted from an actual Men’s Golf student-athlete endorsement contract to illustrate the point. (Names/company redacted for confidentiality) Compensation for Services: (i) Ambassador shall receive a free subscription to Anonymous App during the Term of this Agreement; and (ii) Ambassador shall receive a fee per round entered on the Anonymous App in the amount of the following: Turn your attention to the differences in compensation for a tournament round versus a non-tournament round. This golfer would make double the money for fulfilling the same obligations at a tournament than they would outside of one. Here’s the problem: tournament rounds require qualification. Qualification is awarded based on individual performance. Thus, being compensated more handsomely for obligations fulfilled during tournament rounds is, in practice, rewarding student-athletes for athletic performance…violating the explicitly outlined “pay for play” NIL limitation. Without an understanding of the structure of college golf on the part of the compliance office, or the hidden intricacies of NIL restrictions on the part of the athlete and company, this endorsement deal would probably seem standard. As you can imagine, this problem can be extrapolated across any qualification sport – and the ramifications would hurt everyone EXCEPT the company benefitting from the athlete’s endorsement. The 5 key takeaways: There are questions as to the breadth of the “pay for play” limitation. It’s more clear when applied to the context of individual qualification sports like the example above, but what about increased compensation based on playoff appearances in team sports? If a player isn’t necessarily rewarded for individual performance, but rather for the general increase in publicity surrounding a playoff win? Either way, lots of grey area remains to be parsed out within this single restriction. Student-athletes aren’t equipped to accurately analyze their own endorsement contracts, even as it relates to the most obvious and unambiguous NIL restrictions. Absent a fundamental understanding of the competition structure of a particular collegiate sport, even compliance offices are ill equipped to detect every potential violation in their athletes’ contracts. I’m not asserting that every company drafting endorsements is out to take advantage of student-athlete naiveté in the name of self-interest. However, I am asserting that whether it be a result of intentional deceit or genuine ignorance, many contracts being proffered to young athletes are troublesome. This isn’t just a law student making a case for the necessity of attorneys in the collegiate sports realm to create job security. There is a genuine need for student-athlete legal advising as they navigate the NIL waters that have proven to be murky for all parties involved. Addison is the President of Michigan State University Sports & Entertainment Law Society. You can find her on Twitter @AddyStandlee.

In an effort to protect its students as the Delta variant of COVID-19 puts more and more Americans at risk, Western Michigan University instituted a policy whereby all students and faculty members are encouraged – although not required – to get vaccinated. If any student or faculty member chooses not to get vaccinated, the university requires weekly COVID-19 testing until fully vaccinated.[1] By taking a different approach with student-athletes, the university opened itself up to a lawsuit from four members of its women’s soccer team.[2] Given that all four players are on athletic scholarship at Western Michigan University, the punishment for failure to receive a vaccination has significant financial consequences. Rather than holding student-athletes to the same institutional standards, Western Michigan University made the determination that student-athletes should be held to a higher standard – vaccination was required or the student-athlete would be dismissed from their team.[3] This story will likely be covered extensively because of the ongoing debate about vaccine mandates in the United States at large, but there are nuances to the background facts of this case that are important to obtaining a clearer picture of what to make of the lawsuit. Most importantly, Western Michigan University made several administrative mistakes that led to lawyers getting involved. By imposing a different set of requirements for students and faculty members than the university imposed on student-athletes, the appearance of discrimination was created. While appearances do not equate to legal victories, they are important for consideration in certain analyses utilized by courts. Perhaps foreseeing this very type of lawsuit, the university did set up a procedure whereby student-athletes could request a religious or medical exemption to the vaccine mandate. The university failed to actually send out information about the procedure though until after the plaintiffs made a formal request. After the plaintiffs submitted their statements of justification for religious exemptions, the university denied the requested exemptions and once again waited to provide further information as to the justification until the plaintiffs reached out to the university.[4] The justification that was given? The university has an interest in protecting student-athletes against the spread of COVID-19 because of the significant risk of spread caused by participating in college athletics. In explaining this interest, the university described it as “a compelling interest” and that the vaccine mandate was “the only effective manner of accomplishing this compelling interest” – this language will assuredly be dissected by the court (it reads as though it was crafted for the purposes of appealing to a court’s constitutional analysis). The university also, somewhat surprisingly, noted at the same time that the “insufficiency or insincerity of Plaintiff’s religious beliefs” did not influence the decision to deny the exemptions. Having an administrative procedure for exemptions in place does little good if it is arbitrarily administered.[5] Western Michigan University failed on an administrative level and, to some extent, this lawsuit was the result. Now to the lawsuit itself. The crux of the argument made by the plaintiffs is that they are Christians and are bound by the Bible and its moral teachings. Furthermore, the plaintiffs contend that they find their identity in their religious beliefs. The plaintiffs are seeking, in additional to several other forms of relief, injunctive relief to prevent the university’s vaccine mandate to student-athletes and a declaration from the university that the plaintiffs’ constitutional rights were violated.[6] The first claim being brought by the plaintiffs, and the only one that this article will briefly address, is that the vaccine mandate targeted at student-athletes and subsequent denial of religious exemptions by the university constituted a violation of the plaintiffs’ First Amendment rights to freedom of religion. Plaintiffs’ counsel argues that the university’s vaccine mandate on student-athletes “substantially interferes” with the exercise of their religion (i.e., part of the plaintiffs’ religious belief and expression is the ability to make medical decisions), that the mandate targeted Christians, that the mandate “further[s] no compelling governmental[7] interest,” and that the mandate was not the “least restrict means” of furthering the university’s interest nor was the interest “narrowly tailored.”(Remember the language the university used in explaining its reason for denying the exemption?).[8] Constitutional law is a tricky area that I am not qualified to wade too far into, but the court will have plenty of recent, significant case law to look to in deciding the controversy at hand. The case will be important not only as a piece of sports law, but as a referendum on vaccine mandates in the COVID-19 era and in the furtherance of the legal system’s understanding of the First Amendment. Stay tuned – this will be an interesting one! [1] Vaccination Information | COVID-19 | Western Michigan University (wmich.edu). [2] Student-athletes say Western Michigan’s COVID vaccination mandate violates religious freedom (yahoo.com). [3] Microsoft Word - Complaint-Glowacki v Howell--Final for Filing (greatlakesjc.org). [4] Microsoft Word - Complaint-Glowacki v Howell--Final for Filing (greatlakesjc.org). [5] Microsoft Word - Complaint-Glowacki v Howell--Final for Filing (greatlakesjc.org). [6] Microsoft Word - Complaint-Glowacki v Howell--Final for Filing (greatlakesjc.org). [7] Western Michigan University, as a public institution, is a state governmental entity. [8] Microsoft Word - Complaint-Glowacki v Howell--Final for Filing (greatlakesjc.org).

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

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

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

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