As the NFL season kicked off this past weekend, former MVP Lamar Jackson had more on his mind than just preparing for the Oakland Raiders. ESPN’s Adam Schefter reported that contract talks between Jackson and the Baltimore Ravens have stalled as the season approaches because Jackson wants to focus on football. Jackson, who is not officially represented by an agent, could be in line to sign a contract extension worth north of $100 million guaranteed. Since entering the league in 2018, the 24-year-old has been assisted by his mother, who acts as his manager, Felicia Jones. She was reportedly heavily involved in Jackson singing his four-year $9.5 million rookie deal with the Ravens in 2018. Schefter further reported, “A deal between Jackson and the Ravens could be completed during the season, but that likely will be when the former MVP has the time to focus on the negotiations, according to sources.”[1] It’s unclear when Jackson will carve out the time during a busy NFL season to hammer out a deal that will ensure generational wealth. Many NFL players spend their bye week in Cabo, perhaps Jackson and his mother will spend that time in a boardroom. Is Jackson’s choice not to hire an agent as he pursues a deal worth seven figures a wise one? Bomani Jones of ESPN certainly doesn’t think so: But as the always-grounded Kanye West once put so eloquently – “Every agent I know, know I hate agents”. It’s becoming more popular for athletes to subscribe to Kanye’s thinking and question the importance of hiring a sports agent. Those that follow the hip-hop icon’s train of thought believe that self-representation allows an athlete to exert full control over their own career, and more importantly, reap all the benefits. In this method of self-representation, Jackson (and his mother) control negotiations from the start and will not have to pay an outside party a standard agency fee. Although the player-agent relationship in the NFL is more player-friendly than most other professional sports because rules prohibit NFL agents from taking more than 3% of their player’s contract.[2] But in Jackson’s case, that 3% can still be a large chunk of change. Trust me when I say I never want to be on the other side of an argument as Mr. Kanye West. But the flip side is that if the sole reason Jackson and the Ravens haven’t yet reached a deal is because Jackson simply doesn’t have the time to negotiate – that should precisely be the reason to hire an agent. Like many other services, you pay an agent to do things that you simply don’t have time to do. Clearly Jackson’s focus is elsewhere besides his contract, and Ravens fans are happy to hear he’s so engulfed with football. Jackson’s on-field success speaks for itself. The former MVP has quieted every doubter since coming out of college, and he has quickly become one of the faces of the sport. Now it’s time to get paid like it. Every day that goes by without Jackson putting pen to paper places him at injury risk and places that money in jeopardy. Jackson has seen three major season-ending knee injuries to his Baltimore Raven running back teammates just within the past month. Jackson has actually been quite durable throughout his career. But his scrambling style of play allows opportunities for Jackson to take hits, and all it takes is one bad hit to cause severe financial damage. It may be smart for him to ink this deal as soon as possible because his value can only go down. Then there’s the cautionary tale of self-representation going wrong due to a lack of experience negotiating these megadeals. Despite what Jerry McGuire made us all think, a sports agent’s job isn’t just proclaiming, “SHOW ME THE MONEY” and getting your athlete paid. NFL contracts are complex with different opt-outs and guaranteed money structures that if utilized properly could benefit the individual player. Due to the violent nature of the sport, it’s important for a player like Jackson to structure his deal in a way that best protects him in the case of injury. Richard Sherman, a former All-Pro cornerback and Stanford alum, made waves in 2018 when he self-negotiated a contract with the San Francisco 49ers that netted him $9 million per year for three years. In what was initially celebrated as a win for the athlete in the athlete/sports agent budding rivalry Sherman boasted, “I can get all the information I need, so a sports agent is becoming an unnecessary commodity”[3]. Well as it turns out, the choice to not utilize the unnecessary commodity Sherman was referencing could have cost him millions of dollars. In 2018 after Sherman’s contract was signed, the NFL Players Association decided to intervene on behalf of Sherman and renegotiate the timing of a $2 million roster bonus. Sherman originally agreed that he must pass a physical early in training camp to be eligible for the roster bonus, but the renegotiated term allowed for Sherman to pass the physical up until November to be eligible for the large payday.[4] Those few months of rehab if Sherman was coming off an injury could have been all the difference in pocketing $2 million. The demise of an experienced sports agent may have been premature on Sherman’s part. Teams take notice when players come into contract talks without representation. Richard Getlin of NFL Network tweeted, “Dream scenario in a negotiation? Having decades of wisdom, experience and knowledge on my side, and going against an amateur on the other.”[5] Make no mistake about it, professional athlete contracts are viewed in terms of winning and losing and teams feel more comfortable when they are dealing with someone who lacks experience with deals of this magnitude. That’s not to say that players are always in good hands when they hire an agent. Nerlens Noel, a center for the New York Knicks, is currently suing his former agent Rich Paul for costing him $58 million in lost potential salary. Noel claims breach of fiduciary duty, breach of contract, and negligence against Paul and his agency Klutch Sports. The claims arise out of Paul’s advice to Noel to decline a 4-year $70 million deal with the Dallas Mavericks in 2017 in hopes Noel will get offered more money the following year. As it turns out, the next season Noel broke his thumb, and he spent the next two years making the league minimum of $3.7 million combined.[6] Jackson won’t have to worry about filing a lawsuit against his former agent like Noel, but he also is hoping to avoid the pitfalls of self-representation faced by Sherman. The financial upside in the short term for Jackson is obvious. When he finally signs his name on the dotted line, he won’t dish out a fee to an agent for facilitating the deal. The hope is the decision to self-represent will not cost him money for years to come. Matthew Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and instagram @MattNettiMN. [1] Adam Schefter, Sources: Lamar Jackson Immersed in Preparing for the Season instead of Negotiating NFL Deal for Himself, ESPN (last visited Sep. 14, 2021) https://www.espn.com/nfl/story/_/id/32201903/sources-lamar-jackson-immersed-preparing-baltimore-ravens-season-negotiating-deal-himself?platform=amp. [2] Leonard Dozier, The Average Sports Agent’s Commission, Sapling (last visited Sep. 14, 2021) https://www.sapling.com/8386882/average-sports-agents-commission. [3] Mike Florio, NFLPA Helped Sweeten Richard Sherman’s Self-Negotiated Contract, NBCSports (last visited Sep. 14, 2021) https://profootballtalk.nbcsports.com/2018/03/24/nflpa-helped-sweeten-richard-shermans-self-negotiated-contract/. [4] Id. [5] Jesse Reed, Examining Pitfalls of Negotiating NFL Contracts Without an Agent, SportsNaut (last visited Sep. 14, 2021) https://sportsnaut.com/examining-pitfalls-of-negotiating-nfl-contracts-without-an-agent/. [6] Brian Windhosrt, New York Knicks’ Nerlens Noel Sues Rich Paul, Klutch Sports; Claims $58M Loss in Potential Salary, ESPN (last visited Sep. 14, 2021) https://www.espn.com/nba/story/_/id/32079344/new-york-knicks-nerlens-noel-sues-rich-paul-klutch-claiming-loss-58m-potential-salary.

Ever since the first wave of conference realignment about 10 years ago, there has been an arbitrary dividing line between the 10 FBS conferences. The ACC, Big Ten, Big 12, Pac-12, and SEC have been labeled as the “Power 5,” while the American, Conference USA, MAC, Mountain West, and Sun Belt make up the “Group of 5.” While the only explicit difference of P5 and G5 conferences is the distribution of revenue each conference receives from the College Football Playoff, Group of 5 teams have to overcome the overwhelming bias towards the power conferences in revenue, media coverage, recruiting, rankings, fan support, and job prestige for coaches. Because of this, a G5 team ever making a 4 team CFP seems extremely far-fetched. However, that didn’t stop one G5 conference from aggressively trying to shed the narrative that they don’t deserve to be considered alongside the ACC, Big Ten, Big 12, Pac-12, and SEC. To fix the league’s perception as a highly inferior conference in the hierarchy of college football, the American Athletic Conference (AAC) developed a marketing plan to get itself out of the Group of 5. Beginning in 2017, the conference launched its “Power 6” campaign to signal that it should be considered as equals to the rest of the power leagues. Ever since, “P6” logos have been shown on the conference’s advertisements, stadium banners, and even helmet stickers. Mike Aresco, the commissioner of the conference, stressed that AAC teams should be included in the conversation for College Football Playoff bids. While the CFP committee always says it takes the four best and deserving teams regardless of conference, it’s clear that Power 5 teams have a clear advantage. In 2020, Cincinnati went a perfect 9-0 in the regular season in the AAC but finished 8th in the final CFP rankings while 2 loss Oklahoma and 3 loss Florida finished ahead of them. However, earlier this Summer, there was a brief glimmer of hope that seemed to provide a clearer path to the Playoff for the conference. In late June, The College Football Playoff Board of Managers approved a feasibility study of expanding the CFP field to 12 teams, tripling its size from its current 4 team format. In the proposal, the 6 highest ranked conference champions would be automatically admitted into the Playoff. Therefore, if the American Conference champion was ranked higher than at least one of the champions from the Mountain West, Conference USA, Sun Belt, or MAC (or even a P5 league), they would be admitted into the CFP. While the format didn’t inherently favor any one Group of Five league over another, the AAC would’ve been in the best position to take the added 6th automatic bid. Since 2014, the AAC has produced the highest ranked G5 team in the final CFP rankings 5 of the 7 years, including each of the last 4 seasons. With programs like UCF, Houston, and Cincinnati finishing in the Top 10 at least once over the past decade, and a collection of competitive programs to boot, there’s reason to believe that the American would get a team in the CFP on a consistent basis. Mike Aresco had finally gotten what he’d been after for several years of pleading: Access. However, just a few weeks later, all that hope was abruptly halted. With the news that Texas and Oklahoma were leaving the Big 12 for the SEC, the college sports world was thrown into chaos. Without its two flagship institutions, the Big 12 was desperate to stay afloat amid rumors that the rest of its members were seeking out other conferences. As it turned out, Big 12 Commissioner Bob Bowlsby was able to keep the remaining member institutions on board and sought to bring in competitive athletic programs to help fill the vacancies left by Texas and OU. In order to do that, he picked four of the premier non P5 schools: Cincinnati, Houston, and UCF from the aforementioned AAC as well as Independent BYU. While there is no replacement for the brands of Texas and Oklahoma, Bowlsby did a great job to find adequate replacements. All four of those athletic departments have competitive teams in many sports, especially football. But the American Conference, seemingly in a great position just weeks earlier, lost three of its best programs. With those schools set to join the Big 12 in 2023 or shortly after, all of the AAC’s progress to CFP access was thrown for a loop. While teams like Memphis, SMU, Tulane, and Navy all field competitive teams, the loss of the three powers in Cincy, UH, and UCF weakens the league dramatically. While Playoff expansion talks have been slowed by conference realignment concerns since the Texas and Oklahoma news, there still is a small sliver of hope for the AAC. If the CFP does end up expanding and contains an automatic bid for at least one G5 league, the AAC could easily grab that spot on occasion. Mike Aresco is seeking to replace the vacant spots left behind, and could bring in competitive programs to fill the void. But similar to the Big 12 losing Texas and Oklahoma, the departures of Cincinnatii, Houston, and UCF hurt the American badly in the college football hierarchy. Mike Aresco and the AAC finally had what they had been after for so many years, but anyone who watches college football knows that success can be so fleeting in an ever changing landscape.

BY: CAITLIN PARISE I have come to realize that there is still a lot of confusion lingering behind what NIL means and its business in the world of college sports. To best understand the what of NIL, we must also understand the why. Below discusses what NIL is, the policy concerns fronted by the NCAA regarding NIL, and what concerns are now at issue following the emergence of compensation for NIL. Sponsorship NOT Scholarship: During conversation with a fellow sports fan, the question was raised; “So college athletes getting paid on top their free education, right?” On the surface, the headline ‘College Athletes Will Get Paid to Play’ might come off as a bit ambiguous and offer the idea that schools will be paying athletes to participate in collegiate sports. This is not the case [6]. The money that pays for athletic scholarships comes from the school, its donors, etc. The money that athletes are now able to receive will come from third party businesses in the form of sponsorship deals – the same kind of sponsorships professional athletes are able to accept. This is where Name, Image, and Likeness enters the conversation. Name, Image, and Likeness (or NIL) is essentially an athlete’s personal brand, whether that means a video game creator designing characters with the athlete’s features or utilizing the athlete’s personal following on social media to promote brands. The athlete can receive money in exchange for allowing the use of their name, images, and general likeness [6]. In short, NIL in college sports marks the return of personal autonomy and identity back to college athletes in the U.S. The questions continued; “Doesn’t this ability to take sponsorships for a sport put the average student at a disadvantage just because they do not participate in athletics?” The answer is no, in fact NIL compensation does not put the average student at a disadvantage but rather grants the average student athlete the same opportunities as any of his non-athletic peers. I propose the following scenario: At University X, a student on an athletic scholarship for D1 football had just won the SEC championship. He decides to sell his championship ring on eBay to make a little money. After all, it was his ring, why shouldn’t he make a little money? The ring sold for $$2,000. At the same university, a student receiving an academic scholarship towards her Art Major has just won a huge award for a painting. She decides to sell her award-winning piece on eBay to make a little money. After all, it was her art, why shouldn’t she make a little money? The piece sold for $2,000. The art student was contacted and commissioned by for countless future pieces and plans to continue to make sales throughout the following colligate years. The student athlete was forced to reimburse the school the cost to recover the rings, and due to NCAA restrictions, now faces ineligibility or temporary suspension. The student athletes name is Fred Gibson, a wide receiver at the University of Georgia who played during the 2003 SEC Championship. Jerseys his last name across the back were sold in the school’s apparel store and yet Gibson never saw a dime of the profit [1]. This was all due to the NCAA and their restrictions on of amateurism. NCAA Policy Concerns & NIL The NCAA based the majority of its purpose of existence around the idea that they protected athletes from being treated as professionals. As noted in the Supreme Court decision of NCAA v. Aston, it is well established that the NCAA’s only remaining defense as to why they wanted to keep the restrictions over NIL compensation in place was the idea that its rules ‘preserve’ amateurism [2]. To be fair, this idea to restrict abilities of young people in the interest of preservation is not new to national policy. Stepping back from the lens of sports law, take a moment to consider other laws pertaining to the preservation of youth and innocence. The way our laws have been written reflects, as matter of public policy, a collective concern to protect young people. This is seen across both civil and criminal laws such as the minimum age to contract is 18 years old, and even shortly after turning 18 a court may still allow a young person to terminate an otherwise binding contract simply due to their age. Drinking laws require a minimum of the participant to be 21 years old, sexual consent a minimum of 17 years old, driving a minimum of 16 years old [3]. It is undoubtable that we recognize the late high school through college years as those during which the youth of our country should slowly gain more and more personal responsibility, while remaining under the guidance of governing bodies. The NCAA’s guidelines seemingly spoke to this same public policy of truly caring about protecting youth, the young athletes for which they set rules of guidance. But, based on the actions of the NCAA just prior to the July 1st decision, I call B.S. On September 30th 2019, California passes legislation (originally slotted to go into effect in 2023 but was eventually set for July 1st 2021,) to prohibit schools from punishing college athletes who accept endorsements. The NCAA referred to the legislation as an "existential threat" to college amateur sports [4]. On June 30th 2020, the night before the state laws go into effect, the NCAA passed new laws allowing such compensation from endorsements to athletes for their NIL [4].This is to say that less than a year later, the NCAA itself adopted the “existential threat” it had previously prohibited and bashed. For decades they pushed to convince the nation that they were the supreme in deciding what was right for college athletes to protect the veil of amateurism. Yet, in a single year, they have decided to abandon their protection of these athletes, exposing young players to whatever the world of government and professionalism might have in store. Either this was one of the largest moves of negligence, a breach by the NCAA of their self-proclaimed duty to serve and protect an entire body of young athletes now susceptible to the harms of professionalism, or the curtain has just been pulled back. Behind it, antitrust law violations. Maybe a mix of the two. To be clear, this is not to say that these young athletes are not capable of make decisions for themselves. The point here is that if the NCAA hoped to remain at all relevant or important to the world of college sports, they should not have committed this irresponsible move to abandon the youth they so desperately wanted to protect. It seems more likely that this ‘duty to protect’ was never actually a genuine concern. What is clear is that the apparent need for the NCAA is fading. What Now? When the NIL decision went into effect, only a handful of states had laws in place, and all others were given to complete free range to ‘wing it’ or wait for federal laws [4]. As coined on Conduct Detriment’s podcast, the world of college sports is about to become “The Wild-Wild West” [5]. ANY company can reach out to ANY athlete with ANY offer. Either young college students must learn to spontaneously attain the ability to read a contract like a seasoned lawyer, or every company must have the very best interest of all young athletes in mind without any alternative agenda – neither of which are very likely. In a perfect situation, there would have been an educational resource made available to athletes to provide them with enough information about the business and legal issues that come along with signing your personal brand to another company BEFORE this July 1st date, but this was not the case. During the interim while state and federal legislatures fine tune their hurried laws [6], there must be a collective response to where the NCAA has failed. Parents and coaches must educate themselves to this new business and legal landscape to continue to be resources of guidance for their young athletes. Schools must offer educational classes on media, branding, and financial responsibility to athletes and any young entrepreneurs who are subject to this youth sponsorship advertisement. Finally, it is the responsibility of the athlete to investigate, in detail, exactly what it is they are signing their name to and if it speaks to the athlete as an individual. As a law student, it wasn’t until my second year during a professional responsibility class that I was finally asked to think about my own ethical code and put it in writing. It is unfair to assume every college athlete has been given the chance to flesh out their own codes to follow when conducting their legal and contractual business. The idea of pairing with an organization is exciting, but the athlete should remember to seek opportunities that speaks to their personal code as a student, as an athlete, and as a person – not just the most lucrative deals. For an organization to claim with such conviction they wanted to protect athletes, it’s insane how in the entire NCAA D1 manual there is not a single section of cautionary advice regarding how to eventually make a transition to professional sports [7]. Sources: 1. https://www.heraldtribune.com/news/20030516/ringgate-nine-bulldogs-ineligible-for-selling-championship-rings 2. https://www.supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf 3. https://ypdcrime.com/penal.law/ 4. https://www.espn.com/college-sports/story/_/id/31086019/everything-need-know-ncaa-nil-debate 5. https://open.spotify.com/episode/25YQRGNKobbsk7vYo2QQOA?si=zNUBjmDmQDSmlM_3Ads2Vw&dl_branch=1 6. https://www.espn.com/college-sports/story/_/id/31740112/rule-changes-mean-athletes-schools-more 7. https://www.ncaapublications.com/productdownloads/D116JAN.pdf

BY: ISABELLA VON HABSBURG Any professional athlete can tell you that the road to greatness is no picnic. Naomi Osaka’s journey to excellence has been a long one, and definitely not without its hardships. From the start of her rise to fame, she has worked day in and day out to prove herself, but never letting herself stray from the traits that make her the unique athlete she is. Her incredible passion and determination have led her to where she is today - one of the highest-paid athletes in the world. Below are some of her career highlights: No. 1 ranked by the Women’s Tennis Association (WTA) 1st Asian player to hold the top rank in singles 4x Grand Slam singles champion Ranked 8th among all-athlete endorsement incomes in 2020 No. 2 Highest-Paid Tennis Player overall and the No. 1 Female Although she is one of the youngest professional female athletes on the tennis circuit, Osaka has never let her age or gender get in the way of her making her voice heard - but it hasn’t always been an easy road. Her shy personality has made it difficult for her to deal with the social aspects of her sport - such as press conferences. Despite her reserved mannerisms, Osaka has made a point to use her position as a professional athlete for the greater good - specifically regarding the rampant racism this past year. When it comes to the press, however, Osaka feels differently about utilizing her voice. Having never been formally media-trained, Naomi has always been her true self when it comes to answering questions from the press. While it is not the press that she has issues with, it is the format of press conferences held after matches. Osaka stated “ I believe that we can make it better, more interesting, and more enjoyable for each side. Less subject vs. object; more peer to peer.” While most of her fans have seemed open to a potential format change, not everyone has been so accepting, and she has dealt with insurmountable public scrutiny since then. Osaka did not let the differing opinions get in her way, though, until this year. Before the 2021 French Open, she released a statement that she would not be participating in the required post-match press conferences - this was met with contempt and anger from journalists and the tournament organizers. The French Open organizers immediately threatened to slap her with a $15,000 fine for athletes who do not comply with press requirements. Despite this threat, following her first match, Osaka stood her ground and did not participate in the press conference - leading the French Open to follow through with fining her $15,000. Because of the continued scrutiny, Osaka ultimately chose to do what was best for herself and withdrew entirely from the tournament. She publicly admitted to her battle with depression and anxiety, which began after her first big win in 2018. By being honest about her struggles, she has created an open and transparent conversation surrounding athletes’ lack of support and resources and mental health. A powerful and public decision such as this one comes with controversial opinions. While most have showered Osaka with love and support, some industry members did not take too kindly to her decision - Piers Morgan even labeled her as “world sport’s most petulant little madam.” I often wonder how the public would have reacted if she pulled a Marshawn Lynch. Would she get the same support that he did - or would she have been dismissed as an emotional young woman? Image via Bleacher Report Naomi Osaka has built a name for herself both on and off the court. And, while she currently sits atop the list of top-paid athletes, she has never compromised her beliefs and background, especially when it comes to the brands that she aligns herself with. Her current sponsors include brands like Nike, Beats, and Hyperice, and with each partnership, she makes it a goal to utilize each sponsorship in the most impactful way possible. A recent accomplishment of Osaka’s is founding her own skincare company - Kinlo. By launching this company, Naomi hopes to make products that don’t change her skin color while at the same time working to erase the myth that dark skin doesn’t need sun protection. More of her impressive partnerships are with Nike and Play Academy, a program launched in Japan to promote exercise and teamwork in young girls. This program has now expanded into the U.S. and Haiti too!! You’ve all seen her sporting her trademark headphones before a match. Now, not only are they a sponsor of hers, but the headphones also allow her to block out any noises that might distract her while also calming her social anxiety in the public eye. She has always been and continues to be transparent in her choices. Her sponsors are not just of monetary value to her, and she finds each of them equally important to pursue her dreams and goals of personal growth. By shining a light on the lack of mental health resources provided for athletes, Naomi Osaka has set off a chain reaction of other athletes choosing their health over their sport - and she is in great company with athletes like Simone Biles. Biles also recently decided to take a step back from the sport she loves so much during her time at the Tokyo Olympics. Both of these athletes are examples of how much pressure athletes deal with daily - not to mention the expectations for them to surpass their already incredible achievements each time they compete. And I wish I didn’t have to, but I have some sad news to end with. After her loss at last weekend’s U.S. Open, Naomi Osaka made a public statement that she will be taking time away from tennis - the environment around her has changed. It is not conducive to her mental health or her work as a professional tennis player. Osaka explained that she no longer feels joy from winning a match; instead, she feels only relief. As a competitive equestrian for many years of my life, I fully understand the hardship of no longer feeling joy or happiness after winning a competition, instead of just thanking God that I didn’t disappoint anyone along the way. I can’t even imagine how Naomi has struggled with the hardships that she has had to endure this past year, especially, and I commend her for taking a step back from the sport for herself and not for anyone else. I stand with Naomi Osaka, and I do not doubt that she will continue to advocate for women and mental health support in sports even during her time away from the court. Isabella von Habsburg is the founder of Isa’s Sports Insights @InsightsIsa and can be found on Twitter @ivh_92496

BY: DEAN ROSENBERG Football is a dangerous sport - there are eleven big, strong, athletic players on each team crashing into one another at full-speed on every play. The margin for error between a game-changing play and a game-changing penalty is razor thin. With advances in medicine and research in the last fifteen years, public pressure to combat concussions proliferated. To fight against helmet-to-helmet hits, in 2008 the NCAA created a targeting rule, which “forbid players from making forcible contact with the crown of the helmet or making forcible contact to the head or neck area of an opponent.[1] The rule has been amended thrice since then: (i) in 2013, a clause was added in which a player called for targeting would be disqualified for the remainder of the game; in 2016, targeting calls were eligible to be reviewed and overturned (or assessed and levied after the fact); and in 2019, the replay rules were amended to require the booth to either confirm or deny targeting (no longer could referees defer to whatever call was made on the field, given a lack of overwhelming evidence on one side or another). The NFL also has implemented targeting rules to discourage defenders from leading with their heads to make tackles, but a massive difference is that the NCAA rule includes a suspension in addition to a 15 yard penalty whereas the NFL rule just includes the penalty.[2] One must make several different illegal hits in order to be suspended from an NFL game. A college player, on the other hand, needs just one momentary lapse in judgement in a game full of marginal battles and hundreds of split decisions, to be suspended from future competitions. These new rules have certainly forced coaches and players to put an emphasis on fundamental tackling and discourage hard hits on bang-bang plays. Despite this, football is a game of instinct and reaction, and the NCAA may be unfairly punishing players by doubly-penalizing them and by negating any requirement of intent. In his research, criminal law scholar Jerome Hall lays out seven common elements of all crimes: legality; mens rea; act; concurrence; causation; harm; and punishment.[3] Fellow scholar James Fitzpatrick notes that for one to infer a mens rea relevant to criminal guilt you must have (i) intent to do an act, and (ii) knowledge of the circumstances that makes that act a criminal offense.[4] In football terms, this should equate to a player being guilty of committing targeting when they (i) intend to make the helmet-to-helmet tackle (intent) and (ii) are aware of the rules that forbids helmet-to-helmet tackling (knowledge of circumstances. This belies the problem of the targeting rule - the game is moving so quickly that it would be extremely difficult to conclude beyond a reasonable doubt that a player intended to make that sort of illegal tackle. For instance, a defensive player might lower his head to make a tackle at an offensive player's waist, which is legal. If the offensive player simply ran right into him and got tackled at the waist, there would be no issues. But if that same offensive player tripped and fell, or lowered his head to ‘run through’ the defender, the ensuing contact would become illegal and more often than not the defensive player is penalized, despite a clear lack of intent. It can be concluded that whenever a targeting play is in question there was a helmet-to-helmet hit. However, it can not be concluded that any play resulting in helmet-to-helmet contact was intentional. Punishing a player (and his team) with a fifteen yard penalty plus an automatic first down in addition to a suspension seems severe. In the 2020 College Football Semi-Final, one of Clemson’s best defensive players and a leader on their defense, James Skalski, was ejected after a hard hit on Ohio State’s quarterback Justin Fields in the first half of the game. It is true that Skalski’s tackle was illegal and Ohio State should be awarded fifteen yards and a first down, but throwing Skalski, a fifth year senior, out of what could have been his last college game on a bang-bang play like that is cruel. These targeting calls have a ‘strict liability’ feel to it, which in the legal world can be best described as ‘an illegal act occurred. It doesn’t matter what you were thinking or why you did it, if you were the person who did it, you are responsible.’ Perhaps when an issue as critical as the mental and physical well-being of young adults is in play, it behooves an organization to approach with as much caution as possible. Concussions are a serious issue in football and the NFL and NCAA should be lauded for their recent efforts to change the rules to prioritize player safety. With that being said, the college targeting rule triggers an automatic replay review to look at the play. If a player’s malintent can’t be inarguably concluded, it may make more sense to let that player finish the game and use the week in between games to study the replay and make a better decision on the suspension. As of now, the suspensions as a result of targeting penalties can not be appealed, and for young men who are playing college football because they love it, the difference between a game-changing play and a life-changing suspension is too small. Sources: [1]https://www.uscannenbergmedia.com/2021/04/02/the-scoop-and-score-the-targeting-rule-in-college-football-is-perfect-how-it-is/ [2] https://www.si.com/college/2018/08/21/college-football-helmet-targeting-rule-explained [3] https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3136&context=ilj#:~:text=They%20%22stipulate%20what%20is%20common,causation%3B%20harm%3B%20and%20punishment. [4] https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3136&context=ilj#:~:text=They%20%22stipulate%20what%20is%20common,causation%3B%20harm%3B%20and%20punishment.

BY: MATTESON LANDAU Since 2016, The USWNT has been making headlines regarding their legal battle for equality in pay and treatment compared to their male counterpart, the USMNT. In May of 2016 the team’s collective bargaining leadership group, composed of prominent players, filed a complaint with the Equal Employment Opportunity Commission. At the end of 2016 the team’s collective bargaining agreement (CBA), which had been in place since 2005, expired, and the team agreed to a new CBA in April 2017 which covers issues including “increased pay, better travel accommodation, equal per diems as the MNT,” and others. [1] This stood as a massive win for the USWNT and women’s sports equality as a whole. Then, in March 2019, the USWNT filed a complaint in federal court asking for “back pay, equal pay to the MNT, and other compensation” claiming they were not paid in compliance with the new CBA. [1] The US Soccer Federation denied the allegations, citing business reasons for unequal pay rather than discrimination. In May 2020, a federal judge in California ruled against the USWNT on their “their contention of discrimination under the Equal Pay Act,” but did not quash the lawsuit entirely. [2] In fact, while the USWNT was competing in the Tokyo 2020 Olympics in July, they filed an opening brief in the appeal of their equal pay lawsuit, which is being heard by the Ninth Circuit. In the brief, the USWNT argues that Federal District Judge Klausner did not take performance into account “when he found that the women and men had made roughly the same amount.” [2] Since 1991, the USWNT has won 4 World Cup’s and 4 Olympic Gold Medals, while the USMNT has never won either, did not qualify for the last World Cup, and has not qualified for the Olympics since 2008. [3] As the formal appeal process moves forward, the team is working to settle with U.S. Soccer outside of court. USSF currently pays equally for matches which it controls, but the main pay disparity occurs in matches organized by FIFA, most notably World Cup matches. [4] For example, at the last men’s and women’s World Cups, respectively, the French men’s team took home $38 million USD while the United States were given only $4 million for a championship on the women’s side. [5] USSF is attempting to creatively solve this disparity in the upcoming USMNT and USWNT collective bargaining agreements by including an even split of World Cup prize money. For the first time ever, USSF President Cindy Parlow Cone plans to have both the men’s and women’s player unions sign the same CBA, which will “reallocate a portion of FIFA’s World Cup payments” to the women’s team. [6] Although the ultimate goal is to see FIFA itself providing equal payouts, U.S. Soccer has found a creative way to expedite the process on a domestic level. While there are still many challenges to overcome before the USWNT truly has equal pay, Cone’s plan for World Cup prize money represents an important shift in the approach by USSF. Sources: [1] https://www.starsandstripesfc.com/2017/2/3/14498152/complete-updated-uswnt-ussf-cba-negotiation-timeline [2] https://apnews.com/article/international-soccer-soccer-womens-soccer-lawsuits-courts-19b5599494006be69d6162ecd35058a3 [3] https://www.ussoccer.com/history/awards/us-soccer-awards [4] https://www.si.com/soccer/2021/07/23/uswnt-players-appeal-equal-pay-lawsuit-us-soccer [5] https://www.nytimes.com/2021/09/10/sports/soccer/us-soccer-equal-pay.html [6] https://www.espn.com/soccer/united-states-usa/story/4472012/us-soccer-asks-usmntuswnt-to-divide-fifa-world-cup-prize-money-equally

BY: EMILY COSTANZO Just before the start of the 2021 Hungarian Grand Prix, Formula One driver Sebastian Vettel demonstrated his refusal to remain silent. Standing proudly before thousands of fans, Vettel donned a rainbow shirt, facemask, and racing boots.[1] The shirt displayed two powerful words: “Same Love.”[2] Of course, this choice of pattern and phrase was no accident—Vettel was publicly displaying his support of the LGBTQ+ community, while simultaneously denouncing the recent legislation passed in the race’s host country. In July 2021, under the administration of Prime Minister Viktor Ordan, Hungary passed legislation that bans those in the LGBTQ+ community from appearing in school materials or on television shows for students and viewers, respectively, under 18 years old.[3] The legislation, unfortunately, is not the first of its kind in the country. Prior to this, the Hungarian government outlawed both gender transition and adoption by those who identify as LGBTQ+.[4] However, those who support Hungary’s LGBTQ+ community are not embarking upon the fight against these hateful policies alone—the European Parliament recently voted in favor of pursuing legal action against Hungary. In the eyes of the parliament, these laws are “another intentional and premeditated example of the gradual dismantling of fundamental rights in Hungary.”[5] Luckily, they have a number of legal tools at their disposal to efficiently—and hopefully successfully—attack this legislation. According to the BBC, the parliament is urging the European Commission to “use a new tool that allows the EU to reduce budget allocations to member states in breach of the rule of law, in order to ensure that the Hungarian government reverse the decision.”[6] Everyone from government officials to LGBTQ+ event organizers to everyday citizens are joining together to push back against the policies, but with a far right-leaning administration in control, this will certainly be an uphill climb. In his showing at the Grand Prix, Vettel sent the clear message that he, too, is ready to join this fight. In an era where professional athletes across the world are voicing their concerns about, support for, and belief in various political and social justice issues, Vettel’s very public display will draw much-needed attention to this evident discrimination. However, Vettel’s activism may be nipped in the bud before it even truly begins. Manuel Neuer, captain of the German Men’s National Soccer Team, was investigated by the Union of European Football Associations (UEFA) for his decision to wear a rainbow armband during matches.[7] The Association’s concern? The potential “political” implications associated with the band. Let us ask ourselves this: are Pride shirts, masks, hats, or otherwise actually political statements? If you posed this question to Vettel, he would likely answer that question with another one—is love? Although UEFA ultimately ruled not to pursue disciplinary hearings against Neuer (nor against Harry Kane, who followed in Neuer’s footsteps shortly thereafter), the mere fact that an investigation was raised demonstrates the possibility of legal action against these athletes, rather than (or even in addition to) those perpetuating discriminatory practices. Ironically, the same leagues who boast these athletes-turned-activists are, in some cases, the ones to reprimand them for their related behavior. We need only to turn our focus to the backlash faced by athletes who have chosen to kneel, sport Black Lives Matter apparel, or raise their fists in solidarity to see that although activism in general is embraced, activism in sport is still something many people are uncomfortable with. Lest we forget the infamous, “Shut up and dribble” comment…[8] It is crucial now, more than ever, that the professional athletes willing and able to vocalize their opinions on injustices off the field, court, or racetrack continue to do so. They are in the unique position to have a prominent stage to stand up for what is right and speak out against what is not, politically or otherwise. As Sebastian Vettel so eloquently said, “It doesn’t matter your skin colour, it doesn’t matter your background, it doesn’t matter where you come from, it doesn’t matter who you fall in love with. In the end, you just want equal treatment for everybody.”[9] [1] https://www.espn.com/f1/story/_/id/32165654/sebastian-vettel-stop-judging-people-like-do-love [2] Id. [3] https://www.npr.org/2021/07/09/1014744317/anti-lgbtq-law-in-hungary-will-hurt-the-people-it-claims-to-protect-critics-say [4] Id. [5] https://www.bbc.com/news/world-europe-57761216 [6] Id. [7] https://www.pinknews.co.uk/2021/06/29/euro-2020-rainbow-armband-england-captain-harry-kane/ [8] https://www.npr.org/sections/thetwo-way/2018/02/19/587097707/laura-ingraham-told-lebron-james-to-shutup-and-dribble-he-went-to-the-hoop [9] https://www.espn.com/f1/story/_/id/32165654/sebastian-vettel-stop-judging-people-like-do-love

A federal lawsuit was filed against Syracuse University last week that alleges several Title IX violations involving the handling of one of the school’s former lacrosse players. The lengthy 86 page complaint can be found here.[1] The allegations stem from a series of events that transpired last spring involving a member of the men’s lacrosse team, Chase Scanlon. Scanlon, who transferred to Syracuse from Loyola in 2020, was arrested as he was walking into practice at Manley Field House on May 7, 2021 and charged with fourth-degree criminal mischief and second-degree harassment. The arrest took place three weeks after a domestic dispute that occurred on campus on April 17, 2021. Scanlon was arraigned on his charges and pleaded not guilty. Since then, Scanlan’s criminal case been transferred to the Onondaga County Integrated Domestic Violence Court and there has not been any information released on the status of his charges. The details surrounding the domestic dispute are graphic. Reports are that Scanlan began a heated exchange with his ex-girlfriend, who was also a Syracuse student and a member of the women's lacrosse team. The interaction quickly escalated and led to Scanlan breaking her phone, damaging her apartment, and placing her in a restrictive hold to the point where she felt like her ribs were going to break. Below is a photograph of the damage that was allegedly caused by Scanlan during his tirade:[2] The victim of the altercation chose to remain anonymous in the complaint and is referred to as the pseudonym Jane Doe (hereinafter referred to as “the Plaintiff”). She has decided to sue Syracuse for a series of decisions made by University officials that occurred during Scanlon’s time at Syracuse. Syracuse Athletic Director John Wildhack and former men’s lacrosse coach John Desko are also named as Defendants.[3] Below is a brief overview of the timeline laid out in the complaint in addition to reports from various local media outlets as the story unfolded: February 2020 – Scanlan and the Plaintiff begin an on-again off-again relationship that features sexual assault and abuse. January 2021 – The Plaintiff reaches out to her assistant coach on the women’s lacrosse team to notify her of the abusive relationship. January 22, 2021 – The Plaintiff coordinates with Syracuse Universities’ Title IX Office to enter into a “No Contact Order” against Scanlan. The Plaintiff does not file a formal complaint and the University does not choose to independently investigate Scanlan. March 8, 2021 – After reaching out to the Title IX Office, the Plaintiff has the “No Contact Order” removed against Scanlan. April 17, 2021 – Scanlan and the Plaintiff are involved in a domestic incident which the Plaintiff alleges began when Scanlan walked into her apartment just as she had gotten off the phone with another male SU student. Scanlan erupted into rage, broke her phone, damaged her apartment, and physically assaulted her. April 19, 2021 ­– Scanlan is suspended from the men’s lacrosse team indefinitely. April 25, 2021 – The men’s lacrosse team holds an anonymous vote to evaluate the team opinion on Scanlan’s future with the program. The team votes to permanently remove Scanlan from the team by a final tally of 57-1. On the same day, Associate Athletic Director Jamie Mullan informs the team captains that Scanlan would be reinstated and would be allowed to attend practice. April 28, 2021 ­– Onondaga County District Attorney William Fitzpatrick announces that his office is investigating the events that transpired on April 17, 2021. Coach Desko holds a press conference and states the reason Scanlan was originally suspended on April 19, 2021 was for “violating team rules and expectations”. May 7, 2021 – Scanlan is arrested as he is walking into lacrosse practice and charged with fourth-degree criminal mischief and second-degree harassment. Shortly after his arrest Scanlan was suspended from the men’s lacrosse team for a second time. The complaint paints a haunting image of the University’s handling of the situation involving Scanlan and the Plaintiff. It states the University’s Title IX Office “failed to adequately respond to the domestic violence and stalking that Plaintiff suffered”. The complaint continues, “The Scanlan assault was the avoidable conclusion of a chain of sexual harassment and domestic violence that included animal abuse, stalking, reproductive coercion and property damage.”[4] Title IX is a set of laws that prohibits sex discrimination in education programs or activities that receive federal assistance. Title IX applies to both public universities and private universities, such as Syracuse, that receive federal funding. In total, the Plaintiff is bringing four claims under Title IX against the University and its officials including sex discrimination, creating a hostile environment, and retaliation. The complaint is seeking to prove the University was aware of Scanlon’s violent nature and repeatedly looked the other way. The Plaintiff is claiming the school violated Title IX policy in their failure to investigate previous reports of harassment that put the school on notice of Scanlon’s violent nature with the Plaintiff. Additionally, she is seeking to show the school failed to properly discipline Scanlon after the April 17, 2021 incident, including readmitting Scanlan to the team to only suspend him again two weeks later. The University has since answered the complaint with a motion to dismiss denying all claims and concluding they met all the requirements imposed by Title IX.[5] The contrast between the complaint and the University’s response exemplifies the rapidly changing landscape surrounding Title IX. In 2020, the Trump administration overhauled Title IX creating a whole new set of standards on college campuses across the country. The alterations constructed by Betsy DeVos granted the respondent – Scanlan in this instance – considerably more due process. This means the respondent has a greater opportunity to defend themselves against claims being brought against them. The new rules grant the respondent the ability to cross-examine the complainant in a live hearing held on campus.[6] The Plaintiff made note of that requirement in her complaint and claimed she didn’t feel comfortable participating in a live cross-examination with Scanlan. This she stated, was one of several reasons why she didn’t file a formal complaint with the University Title IX Office. The changes granting respondents more power in Title IX procedure could have been a major factor in Syracuse “flip-flopping” Scanlan from suspended, to reinstated, back to suspended in a three-week period. During this period, Scanlan’s former teammates took to social media to voice their displeasure with the allegations and speak out against domestic violence. Another change under the Trump administration policy is the time period in which a school’s duty to respond to reports of sexual harassment will trigger. Schools can no longer be held to a constructive “should have known” standard, and they must have actual knowledge of sex discrimination to trigger their obligations. It’s unquestionable that the Title IX changes grant colleges more protection in constructing their internal investigations and procedures while also increasing the burden on students bringing claims. Chase Scanlan has since left Syracuse and declared for the National Lacrosse League draft on August 23, 2021.[7] The draft was held on August 23, 2021 and the former Orange attackman went undrafted. On June 7, 2021, just a month after Scanlan’s arrest, John Desko retired after 23 years as the Syracuse Men’s Lacrosse Team head coach. Desko was replaced by the former head coach of the Women’s Lacrosse Team, Gary Gait. Gait was the Plaintiff’s head coach during her time on the women’s lacrosse team. Since Desko’s retirement, Syracuse Women’s Basketball head coach Quentin Hillsman resigned amongst rumors of inappropriate behavior, threats, and bullying involving his players. A total of 11 women’s basketball players transferred from Syracuse during the past year. The Athletic has reported that Syracuse officials were aware of Hillsman’s conduct and didn’t initiate an adequate investigation in a timely manner.[8] Matthew Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and instagram @MattNettiMN. [1] Complaint, Doe v. Syracuse Univ., no. 5:21-cv-977 (N.D.N.Y. 2021). [2] Douglas Dowty, Syracuse Lacrosse Star Chase Scanlan Arrested At Manley, Jailed on Domestic Violence Charge (last visited Sept. 9, 2021) https://www.syracuse.com/orangelacrosse/2021/05/su-lacrosse-star-chase-scanlan-jailed-on-criminal-mischief-charge.html Skyler Rivera, Syracuse Officials Knew About Quentin Hillsman’s Misconduct, the Athletic Reports, The Daily Orange (last visited Sept. 9, 2021) https://dailyorange.com/2021/08/329671/. [3] Complaint, Doe v. Syracuse Univ., no. 5:21-cv-977 (N.D.N.Y. 2021). [4] Jake Nazar, A Closer Look at Jane Doe v. Syracuse University, SB Nation (last visited Sept. 9, 2021) https://www.collegecrosse.com/2021/9/6/22635311/closer-look-jane-doe-v-syracuse-university-lacrosse-federal-lawsuit. [5] Mtn. to Dismiss, Doe v. Syracuse Univ., no. 5:21-cv-977 (N.D.N.Y. 2021). [6] Meghan Downey, The Trump Administration’s New Title IX Rule, The Regulatory Review (last visited Sept. 9, 2021) https://www.theregreview.org/2020/05/20/downey-trump-administration-title-ix-rule/. [7] Tommy Sladek, Ex-SU Lax Star Wants to Go Pro, Faces a League Suspension if Selected, CNY Central, (last visited Sept. 9, 2021) https://cnycentral.com/sports/college/ex-su-lax-star-chase-scanlan-wants-to-go-pro-will-face-league-investigation-if-selected. [8] Skyler Rivera, Syracuse Officials Knew About Quentin Hillsman’s Misconduct, the Athletic Reports, The Daily Orange (last visited Sept. 9, 2021) https://dailyorange.com/2021/08/329671/.

BY: BRENDAN DUGGAN If the start of the NFL season wasn’t enough for you, Monday Night Football just got a little bit more exciting. Last week, ESPN announced a deal to make Drake the music curator for ten Monday Night Football games this season. Drake will select music for the NFL season’s “promotional spots, live telecasts and pre-game shows,” that will include Drizzy’s latest music, some of his classics, along with music from selected artists who capture the “energy and mood” of MNF. The announcement comes a week after Drake released his highly-anticipated sixth studio album, Certified Lover Boy. The Canadian rapper revealed the release date on an episode of SportsCenter on August 27, exactly one week before the album dropped. Since then, Drake made Billboard 100 history as the first artist to own nine of the top ten positions in the company’s 62-year history. Drake’s vast relationships with professional athletes span several sports and generations. Drizzy has long-tenured friendships with top athletes like LeBron James and Kevin Durant, as well as young prodigies like Bronny James and Mikey Williams. A courtside season ticket holder in Toronto, Drake and his contagious energy helped bring the Raptors their first-ever championship in 2019. As far as the NFL, Drake’s relationship with Odell Beckham Jr. landed the Cleveland WR in his 2020 music video, “Laugh Now, Cry Later,” which took place at Nike’s HQ in Oregon. Perhaps an MNF partnership will bring more NFL athletes Drake’s way, and his influence could one day bring an NFL team to Toronto. From ESPN’s perspective, Vice President of Sports Marketing Emeka Ofodile credits Drake as an artist who “sits firmly at the intersection of music and sports.” As far as the deal itself, the one-year, ten-game partnership comes after ESPN hired artists Diplo and DJ Khaled in 2019 and 2020, respectively. Although the announcement did not include details of the contract, both Drake and ESPN will benefit from this partnership. For ESPN, Drake’s Certified Lover Boy sold 604,000 copies in the first week, the most commercially successful album since Taylor Swift’s 2020 album Folklore. Additionally, Drake’s presence as an artist and entertainer brings excitement to the start of the NFL season. Lastly, Drake’s connections and musical expertise brings NFL fans closer to the cultural experience of watching MNF. For Drake, ESPN’s Monday Night Football is one of the most-watched programs in the country. Monday’s Ravens-Raiders matchup brought in 15.3 million viewers, the most MNF viewers since week one of 2013. Drake’s album will continue to be played and associated with the start of the season, which fans have been patiently waiting seven months for. As Drake continues to bridge the gap between music, sports, and culture, I wouldn’t be surprised to see the chart-topping rapper in the booth for special guest appearances. With the NFL back in action with packed stadiums full of excited fans, a partnership with #1 artist Drake is a mutually beneficial match made in heaven. Brendan Duggan is a 1L at Brooklyn Law School. He is also the founder of Sideline Views, a sports and entertainment multimedia brand. You can follow him at @SidelineDuggs.

A recent patent infringement complaint in North Carolina illustrates how patents cover and help sporting events. While golf is the undeniable king of patents in the sports realm, with over 22,000 patents since 1976, other sports do see innovation and patenting as well. Take, for example, Michael J. Costabile’s inventions captured in U.S. Patent Nos. 7,920,052 and 10,504,300 (the “’052 and ‘300 patents”). Mr. Costabile is a formed NBA referee who alleges that his claim to fame is blowing “a whistle on a foul in the last moments of an NBA game between the Milwaukee Bucks and Philadelphia 76ers that resulted in Charles Barkley making two free throws and winning the game for the 76ers by a single point”, which was highly contested due to the timing of the whistle and uncertainty if it was blown before or after the end of game buzzer. Using this as an origin story, Mr. Costabile claims he had an epiphany to invent, and came up with a system in which stopped a clock upon a whistle by a ref, and which started a clock by a button on the ref’s belt. This was used by the North Carolina High School Athletic Association for years. As is done, the system was fine-tuned, and additional patent applications were filed, which resulted in the ‘052 and ‘300 patents. In addition, a company, Precision Times System, was created to market and sell products covered by the ‘052 and ‘300 patents (http://precisiontimesystem.com/). Enter Keith Fogleman and his company, USTOPIT, LLC. In a recently filed complaint for patent infringement, Mr. Costabile alleges that Mr. Fogleman has infringed the ‘052 and ‘300 patents. The complaint alleges that Mr. Fogleman, with knowledge of the Precision Times System products and patents, reached out to multiple entities in order to reverse engineer the inventions. The complaint goes so far as to state that one engineer even stopped the process when he learned of the existing patents. Mr. Fogleman did end up offering a competing product, which led to the filing of the infringement complaint. While this is at an initial stage, there are a couple key issues and reminders to take from the allegations in the complaint. For one, patent damages are predicated on knowledge of patents, and the date of knowledge can be very important as to when infringement begins. The complaint states that Mr. Fogleman knew of the patents through his previous employment as a basketball referee himself and also as an employee of Major Display Scoreboards, who may or may not have had possession of an early version of Precision Time System’s products. Still further, patent statutes give courts authority to increase the damages in patent infringement lawsuits up to three times the amount found or assessed. This is known as the “treble damages” award. The trebling of damages is discretionary, and usually only done in cases of willful or wanton infringement. In the complaint, there is allegation that Mr. Fogleman attempted to reverse engineer products covered by the ‘052 and ‘300 patents, and was even told that one party would not do so due to the patents. If true, this may raise the case to be a willful or wanton infringement. However, the complain also acknowledges that a notice letter was sent to Mr. Fogleman’s patent attorney, who replied that he believed that Mr. Fogleman’s product has designed around the ‘052 patent. This last part is important. Having valid opinion of patent counsel can aid in limiting damages in a patent infringement suit, such as by indicating that there was no willful infringement. However, there are requirements. There would need to be a formal and signed opinion of non-infringement. In addition, such an opinion is not binding on any court, and there could still be a finding of infringement with damages. The opinion could potentially limit the damages, and preclude the court from trebling the damages. This will be an interesting case to follow, and it will be seen if Mr. Costabile has blown the start whistle too soon. However, the complaint does offer some reminders that it is always good to talk to a patent attorney when being accused of infringement, as there are many factors to consider for moving forward with a proposed product. These can result in moving forward with caution, waiting for an official analysis and opinion, or blowing your own whistle to stop everything. LinkedIn: https://www.linkedin.com/in/luke-mohrhauser-988a3010/ Twitter: https://twitter.com/patentluke Luke T. Mohrhauser is a Patent Attorney and Chair of the Mechanical and Electrical Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Luke directly via email at [email protected].

When I previously wrote about the lawsuit being brought by four Western Michigan University soccer players for Conduct Detrimental – Western Michigan University Soccer Players Strike Back at School’s Vaccine Mandate (conductdetrimental.com) – the lawsuit was still very much in its beginning stages. I believed then, and still believe now, that the case would be important in a broader sense because of its implications on the permissibility of vaccine mandates and on how the court would reason through the freedom of religion issue that it would be faced with. As a quick refresher, the lawsuit was brought by four soccer players at Western Michigan University who claimed that the school’s requirement that athletes be vaccinated against COVID-19, or be removed from playing sports for the university, violated their constitutional rights to freedom of religion under the First Amendment. Scanning over news headlines regarding this case, it would appear that the soccer players have already won the lawsuit. Most of the headlines I found stated in some form that a judge determined that Western Michigan University could not mandate the vaccine for its student-athletes. The attorney for the plaintiffs even referred to it as possibly being the first case in the country “where the court has blocked a mandated vaccine for athletes.”[1] But that is not quite right – the actual rulings in the case so far are a bit more nuanced. Any determination that the university could not mandate the vaccine, however, is only temporary as the actual legal ruling in the case was for a temporary restraining order. Under the terms of the temporary restraining order, the student-athlete lawsuits in the case will be able to remain on the soccer team at Western Michigan University, despite the university’s vaccine mandate on student-athletes, pending resolution of the matter in court.[2] So, yes, the university cannot mandate the vaccine for its student-athletes, but the court may ultimately find that it can. In granting the temporary restraining order, Judge Paul L. Maloney stated that the burden would be on the university to “establish the compelling reason for its actions” and also to “explain why the decision to remove the unvaccinated players from intercollegiate competition is narrowly tailored” to achieve the aforementioned compelling reason for the vaccine mandate.[3] Administratively, as discussed in the prior article on Conduct Detrimental, it appears that Western Michigan University anticipated the possibility of such a challenge on the student-athlete vaccine mandate. In denying the religious accommodation requests to the vaccine mandate made by the soccer players, Western Michigan University stated: The University has a compelling interest in taking action to avoid the significant risk posed to the intercollegiate athletic programs of a COVID-19 outbreak due to unvaccinated participants. Prohibiting unvaccinated members of the teams from engaging in practices and competition is the only effective manner of accomplishing this compelling interest.[4] [Emphasis my own] Now will they be able to get a court to uphold their mandate? Is mandating that student-athletes be vaccinated or be removed from their teams the “only effective manner” of avoiding the risk of COVID-19 being spread through intercollegiate athletics? That question remains to be answered. Interestingly enough, Judge Maloney also oversaw a case brought by an administrative assistant at Michigan State University based on its vaccine mandate and denied a temporary restraining order because he felt that the plaintiff in the case was unlikely to show that Michigan State University vaccine mandate was not “rationally related to a legitimate governmental interest, i.e., the health and safety of the public.”[5] Michigan State University vaccine mandate applied to all students, staff, and faculty unlike Western Michigan University’s vaccine mandate that only applied to student-athletes – I think that distinction is key in understanding why Judge Maloney granted a temporary restraining order in one case and not in the other case. For now, the student-athletes will be exempted from the vaccine mandate pending trial and will remain on the soccer team at Western Michigan University. And to raise the stakes just a little more, twelve more student-athletes at Western Michigan University have joined the lawsuit since it was first brought.[6] [1] Court blocks mandated vaccine for WMU soccer players, MSU employee loses natural immunity argument (fox2detroit.com). [2] Judge: Western Michigan can't mandate vaccine for all student athletes (yahoo.com). [3] Judge: Western Michigan can't mandate vaccine for all student athletes (yahoo.com). [4] Vaccine mandate lawsuit: Western Michigan University soccer player defends decision to fight school's COVID policy - ABC7 Chicago. [5] Court blocks mandated vaccine for WMU soccer players, MSU employee loses natural immunity argument (fox2detroit.com); Judge blocks WMU from mandating COVID vaccine for athletes (freep.com). [6] Lawsuit claims WMU vaccine mandate for athletes violates medical, religious freedoms | WWMT.

BY: MORGAN FRAZIER How much is a little girl worth? According to the FBI, absolutely nothing. After receiving a credible compliant from USA Gymnastics about Larry Nassar sexually assaulting gymnasts, the FBI’s Indianapolis field office effectively did nothing and allowed Nassar to continue assaulting girls for nearly a year. According to a scathing report released in July by the Department of Justice, the FBI did not undertake any investigative activity for 5 weeks after meeting with USAG. Even then, the FBI only interviewed 1 victim. Following that interview, the FBI conducted “no investigative activity in the matter for more than 8 months,” they did not advise authorities about the allegations, nor did they take any action to mitigate the risk to gymnasts that Nassar continued to “treat.” During that period, it is alleged that Nassar assaulted at least 70 girls. This terror could have been avoided if the FBI simply did its job. This past Wednesday, four of America’s most decorated gymnasts delivered powerful testimonies at a Senate hearing detailing the abuse they suffered from Nassar. One of the more gut-wrenching claims came from 2012 Olympic gold-medalist McKayla Maroney. She stated: “After telling my entire story of abuse to the FBI in the summer of 2015, not only did the FBI not report my abuse, but when they eventually documented the report 17 months later, they made entirely false claims about what I said." Furthermore, she alleged that the FBI, USAG, and the U.S. Olympic Committee of working together to conceal the allegations against Nassar. The DOJ concluded that the FBI “failed to respond to the Nassar allegations with the utmost seriousness and urgency that they deserved and required, made numerous and fundamental errors when they did respond to them, and violated multiple FBI policies.” At the Senate hearing, all FBI Director Christopher Wray could do was apologize to the survivors for the FBI’s failure to stop the “monster” back in 2015 when the FBI had the chance. For his part, Wray has implemented new training protocols and procedures which have been impactful. However, apologies and new reforms are not enough. The truth of the matter is that only a few individuals besides Nassar have been held accountable for their actions – and none of those individuals are the FBI special agents who botched the investigation that allowed Nassar to continue to sexually assault girls. Enough is enough. There needs to be more investigation into how the Nassar case was mishandled, as well as answers as to why the DOJ refused to prosecute Jay Abbott and Michael Langeman – the FBI agents who (mis)handled the case. Langeman was a supervisory special agent in the FBI’s Indianapolis field office when he interviewed Maroney in 2015 about her allegations of abuse by Nassar. The DOJ report said that he and Abbott lied to investigators from the inspector general’s office about their actions and that they never officially opened an investigation. Langeman was recently fired by the FBI, and Abbott retied several years ago. As 8x NCAA Champion Maggie Nichols said, the survivors do have a right to know why their well-being was placed into jeopardy by these agents who chose not to do their jobs. Hopefully more questions will be answered when Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco appear before the Judiciary Committee in October.