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.

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

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

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