The NBA is often considered the country’s most progressive sports league. The league has historically, and even more so recently, endorsed their superstars using their voice to advocate on a variety of societal issues. Usually, the two go hand-in-hand ­– The modern-day NBA superstar often speaks a message that resonates with the league’s fanbase, and the league is satisfied with the connection this creates between their players and fans. But recently, the COVID-19 vaccination has thrown a wrench into this equation. The progressive ideology of the league is currently in a crisis with empowered players who strongly refute getting the shot. Currently, the two sides are at a stand-still. It was less than 12 months ago when the NBA was applauded for their efforts for finishing the 2020 season during the peak of the pandemic. The league sent a message to on the importance of combatting COVID-19 when they created a bubble in Orlando, Florida and required strict isolation from the rest of the world. Seemingly, everyone was aligned on the importance of player safety. Now as the 2021/2022 season rapidly approaches, the players and the league don’t seem to be seeing eye-to-eye. League officials have encouraged players to get vaccinated before the preseason starts on October 3rd, but there has been no vaccination requirement set by the league. Reportedly, there was a strong faction of players opposed to a vaccination requirement at the NBA Players Union meeting on August 7th, and the union decided to take this stance with the league. The league took the message loud and clear and has backed off these talks.[1] The NBA claims that 90% of their players are already vaccinated, with more joining soon. While the 90% rate may seem high, it’s surprisingly lower than the NFL player vaccination rate. This is true even with the NFL having a more conservative leaning fanbase and player pool. While improvements to this 90% rate is a priority, the biggest headache for the league may be who falls into the 10% unvaccinated. Kyrie Irving, a Vice President of the NBA Players Union, is reportedly one of the biggest objectors to the COVID-19 vaccine. Irving is a polarizing figure. On the court, he performs in ways that can’t even be replicated in video games. His Nike shoe line is staggeringly popular on a global basis, and he’s starred in his own box-office picture Uncle Drew. But the current Brooklyn Nets point guard has repeatedly made decisions and comments that leave his supporters and the league scratching their head. In 2017, Irving claimed he believed the earth was flat. After severe backlash, he has since backpedaled on these remarks.[2] During the middle of the 2020 NBA season, Irving took a two-week absence from the Brooklyn Nets and never provided a concrete explanation as to why. He also was forced to enter NBA COVID-19 protocols and take another leave from the team after he was filmed at a family birthday party without a mask in violation of league rules. That same season he was fined by the league for failing to hold sessions with media members while referring to them as “pawns”. If we keep with Irving’s chess analogy ­– while the media serves as pawns, Irving represents a queen who is shifting unpredictably all over the board. Irving hasn’t officially voiced his anti-vax opinion, but if you scour his social media feeds you can start to paint a clear picture. Irving later posted a follow-up tweet clarifying that “mask off” wasn’t COVID-19 related. Although, his Instagram activity begs to differ. The Rolling Stone reported that Irving has spent time following and liking Instagram posts from a conspiracy theorist that claims the COVID-19 vaccination was created by “secret societies” to connect Black Americans to a master computer for “a plan of Satan”.[3] Apparently, Irving has spread this micro-chip misinformation to people he is close with across the league.[4] The NBA and Brooklyn Nets officials have yet to comment.[5] The Brooklyn Nets had their opening media day scheduled for September 27th. Irving was likely going to be peppered with vaccine-related questions in an attempt to get some clarity. Just hours before the start of media day, the Nets announced that Irving would not be in attendance due to health and safety protocols. Irving joined Nets media day via Zoom and dismissed questions about his vaccination status stating, “Please respect my privacy. Next question.” The drama continues. Irving isn’t the only NBA player who stands firm on anti-vax beliefs. Johnathan Isaac of the Orlando Magic was formerly most known for refusing to kneel for the national anthem alongside his teammates in the Orlando Bubble as a protest against police brutality. Isaac, who is an ordained minister and lives his life in lockstep with his religious beliefs, has now shared his views on a league-wide vaccination requirement. While the league has not taken steps to force players like Isaac to receive the shot, they may be assisted by local regulations. New York City and San Francisco have both enacted vaccination requirements for anyone over 12 years old entering indoor venues such as NBA arenas. This means unvaccinated players on the New York Knicks, Brooklyn Nets, and Golden State Warriors would be unable to play in home games. I know the phrase “he shot that one from the parking lot” is synonymous with sharpshooters like Steph Curry, but it’s not a realistic viable option for anti-vax NBA players who wouldn’t be allowed in the arena. Golden State Warriors forward Andrew Wiggins previously stated he would only get vaccinated if he was forced to. Wiggins was recently denied a religious exemption request by the league so if he intends on playing home games for the Warriors this season, he will have to get the shot.[6] Kyrie Irving may also attempt to obtain a religious exemption and hope for better luck than Wiggins. Irving’s mother was part of the Standing Rock Sioux Native American tribe and Irving has been making an effort to acclimate with the tribe in recent years.[7] This past month, Irving took a trip South Dakota to connect with his roots. It remains unclear the criteria the league is using when analyzing religious exemption requests and whether Irving would qualify. The NBA has yet to take the route many colleges have adopted throughout the country and forced their athletes to get vaccinated. According to the Equal Opportunity Employment Commission, employers can require employees to be vaccinated if they are to physically enter the workplace. The league has not taken this step to enact a vaccination requirement, but players may be forced to get the shot through local mandates. The league’s stance is clear ­– they want their players vaccinated. But they are treading lightly because they also don’t want to start a vaccine war with the Players Union and some of their biggest names. In league that is built on their superstars, many of them have been uncharacteristically quiet about the vaccine. LeBron James willingly shares his views on everything from Hip-Hop to political candidate endorsements, but he has cautiously danced around his feelings on the vaccine. The NBA all-time leading scorer Kareem Abdul-Jabbar is unsatisfied with the superstar silence, “They are failing to live up to the responsibilities that come with celebrity. Athletes are under no obligation to be spokespersons for the government, but this is a matter of public health”. He continued, “There is no room for players who are willing to risk the health and lives of their teammates, the staff and the fans simply because they are unable to grasp the seriousness of the situation or do the necessary research.”[8] So where does that leave us? Currently, the players and the league are staring at each other and hoping for the other to budge. Players in cities that are requiring vaccines, such as Kyrie Irving, will have to get the shot or risk not being able to play in home games. The league will conduct daily COVID-19 testing of unvaccinated players and hold their breath that the season will operate without major setbacks. This story will be ongoing throughout the season. 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] Matt Sullivan, The NBA Anti-Vaxxers Are Trying To Push Around the League ­– And It’s Working, The Rolling Stone, (Sept. 25, 2021) https://www.rollingstone.com/culture/culture-features/nba-anti-vaxxers-covid-1231988/. [2] NBA.com staff, Kyrie Irving on Flat-Earth Comments, “I’m Sorry”, NBA, (last visited Sept. 27, 2021) https://www.nba.com/news/kyrie-irving-regrets-flat-earth-comments. [3] Id. [4] Id. [5] Id. [6] Id. [7] Brian Windhorst, Kyrie Irving Finds New Name and New Family on North Dakota Reservation, ESPN, (last visited Sept. 27, 2021) https://www.espn.com/nba/story/_/id/24444427/kyrie-irving-embraces-native-american-heritage-sioux-naming-ceremony-nba. [8] Matt Sullivan, The NBA Anti-Vaxxers Are Trying To Push Around the League ­– And It’s Working, The Rolling Stone, (Sept. 25, 2021) https://www.rollingstone.com/culture/culture-features/nba-anti-vaxxers-covid-1231988/.

The classic sit-com Cheers went off the air in May of 1993, but a reboot might be in the works in South Florida. Instead of “Hey, Norm!” the new line on the campus of Florida Atlantic University is “Hey, N’Kosi!” The FAU graduate transfer QB became the first ever college athlete to sign a Name, Image and Likeness deal with an alcohol company. Islamorada Beer Company became the first sponsors to ink a deal with a college athlete and Perry’s marketing agent Trent Robison of 1st round Management can be credited with getting the ball rolling. On this week’s episode of the “Conduct Detrimental” podcast, Perry, Robison and Jose Herrera, a representative for Islamorada all joined the show to discuss the landmark deal. After pleasantries were exchanged, host Dan Lust asked Perry what his responsibilities were as a new brand ambassador for Islamorada. “I’m here to promote the business and make sure they get the extra exposure they want and need. I was excited to be a part of it and to be honest, didn’t expect it to blow up the way it did” said Perry. Perry should not be too shocked, a deal involving an alcohol company is completely unprecedented and his marketing agent Trent Robison described the new landscape of NIL deals with college athletes as “It’s the Wild West.” Well said Trent. A major hurdle that needed to be cleared to green-light the deal was first running it through both the athletic and compliance departments at FAU. That was done by Jose Hererra at Islamorada. “I texted the AD at FAU around the second week of July and he said ‘yes FAU allows alcoholic deals with players over 21.’ so we hit the ground running.” Now with the first deal launched, the sky is seemingly the limit for athletes and alcohol enterprises to collaborate across the country right? Unfortunately, for some it might not be so easy. According to an article written by Iowa University’s campus newspaper (hawkcentral.com) only about half of the ‘Power 5’ football schools will sell alcohol during games this 2021 season. Many of whom oppose the idea cite “raucous students” and the potential for dangerous incidents upon conclusion of the games. However, with this new tycoon of NIL deals and the potential for now alcohol sponsorships to be another lucrative mule for athletes to hitch their wagons to, some schools may reverse course in order to keep bringing in top recruits. N’Kosi Perry certainly believes it will have an impact with Florida recruits. “In the near future, I definitely think it will help with recruiting. They can make money starting in college. They don’t have to go to the bigger school or the NFL.” said Perry. Perry makes an interesting point, now stay with me here. A piece published by Darren Heitner of thesportsbiz.com in Oct. 2018 estimates that alcohol enterprises spend $764.5 million in sports advertising every year and nearly ⅔ of that money is focused on the NFL season. If N’Kosi Perry can represent Islamorada Beer Company, what is stopping Buffalo Bills QB Josh Allen from shotgunning a Bud Light with “Bills Mafia” and decreeing Bud Light the official beer of Bills fans. Something to keep an eye on in both the college and professional levels as. Certainly, a lot to take in with Perry and Islamorada’s breakthrough endeavour. As one older and maybe a tad wiser gentleman (my father) reminded me, it was only 50 some years ago that the NCAA did not allow players to dunk in basketball games. Now, they are signing deals to promote alcohol consumption in their communities and getting paid for it! What will the next 50 years bring? Safe to say, things we probably can’t imagine today.

BY: JAMES HOSMER Major League Baseball’s current Collective Bargaining Agreement will expire on December 1 leaving less than two months for MLB and the Player’s Association to work out a new deal. So far, talks between the sides have been relatively fruitless -- perhaps clouded by the MLBPA’s ongoing grievance against MLB filed last year [1]. A major point of contention between the sides has been the service time structure. Last month, both sides met in Denver to discuss the new CBA where MLB proposed sweeping changes to the service time system [2]. Under the current system, players become eligible for arbitration after accruing three years of service time (unless qualified for the Super Two designation) and become free agents after six years of service time [3]. MLB’s proposal included a $1 billion pool for the 2022 season (tied to revenue in future years) for teams to spend on eligible players to replace arbitration. For context, arbitration-eligible players received about $650 million for this contract year. A formula would then be used to determine what figure each player is awarded. Further, the proposal would change free agency qualification to be based on age rather than service time. The offer makes players eligible for free agency at 29.5 years of age [4]. With this proposal, MLB is attempting to eliminate service time manipulation. In theory, a predetermined timeline for free agency would leave no incentive for teams to keep young stars from being promoted and would encourage teams to field the best possible major league roster. However, a system based on age introduces a slew of other issues that will certainly prevent the MLBPA from agreeing to the proposal. Like service time manipulation, the proposed system would harm young stars. Let’s look at Vladimir Guerrero Jr., the Blue Jays 22-year-old first baseman who is having an MVP year and is contending for the Triple Crown. In the proposed world, Guerrero would play in ten major league seasons before becoming eligible for free agency -- he made his debut at 20 years old. Guerrero’s volume of work and the contributions to his team require a huge figure for compensation, and without one, money is left on the table. While the system harms young players, it benefits players that begin their major league careers later. Joel Sherman, for the New York Post, mentioned 29-year-old Yankees star Aaron Judge as a player who would benefit from the proposed system. Judge was 24 when promoted to the majors and is eligible for free agency after next season -- under the proposed system, Judge would be eligible at the end of this season [5]. Furthermore, the proposed $1 billion pool for teams to spend in arbitration would in practice, act as a cap, and the Player’s Association wants nothing to do with a cap on spending towards salaries. As discussions stand, the proposal will most likely not be adopted. But MLB’s idea to end the practice of service time manipulation warrants a look into what other strategies have been discussed. Ideas have been brought up for years; they include decreasing the number of days in a service year, introducing half-days for the time a player is on the 40-man roster, and making players eligible for the Rule 5 draft a year earlier. An idea that I agree with is to expand the 40-man roster to 50 players and grant those players service time while they are on the roster [6]. This strategy would allow teams to protect valuable players but would also start the free agency clock on those players earlier. With a potential work stoppage looming, it will be interesting to see what signals are given by MLB’s proposals in the coming weeks. And that is all that these discussions are -- proposals. By examining previous issues that the Player’s Association has dealt with, it is impossible that MLB’s exact proposal is agreed upon. However, these discussions are important as they show what MLB is willing to concede and what the MLBPA has to work with for future negotiations. [1]https://www.cbssports.com/mlb/news/mlbpa-seeks-500-million-in-damages-in-grievance-against-mlb-over-shortened-2020-season-per-report/ [2]https://www.cbssports.com/mlb/news/mlb-proposes-new-service-time-rules-in-latest-cba-negotiations-per-report/ [3]https://www.mlb.com/glossary/transactions/service-time [4]https://www.cbssports.com/mlb/news/mlb-proposes-new-service-time-rules-in-latest-cba-negotiations-per-report/ [5]https://nypost.com/2021/09/01/mlb-makes-new-service-time-proposal-to-players-union-sherman/ [6]https://blogs.fangraphs.com/a-modest-proposal-to-end-service-time-manipulation/

In yet another win for college athletes, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo has issued a memo that says they are employees under the National Labor Relations Act (the “Act”), and, as such, are afforded “all statutory protections.” The memo comes on the heels of the landmark 9-0 NCAA v. Alston decision, which recognized the profit-generating machine of college athletics while expanding players’ ability to be compensated for education-related expenses, and the NCAA’s adoption of a new name, image, and likeness policy in the face of widespread state legislation. In footnote 1 of the memo, Abruzzo sets the tone by noting that she has chosen not to use the term “student-athletes” because the term was “created to deprive those individuals of workplace protections.” The NLRB is an independent federal agency that is vested with the power to enforce the Act, which safeguards employees’ rights to organize and form a union. A memo from the agency, by itself, does not mean that college athletes are now employees, but it does tip the scales even further towards that seemingly inevitable result. The memo takes the position that misclassifying such employees as “student-athletes” and leading them to believe they do not have statutory protections is a violation of Section 8(a)(1) of the Act and has a “chilling effect on Section 7 activity.” Section 8(a)(1) makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Notably, Section 7 guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in . . . other activities.” This means that, for purposes of future investigations and litigation taking place under the Act, the Abruzzo will take the position that scholarship players at academic institutions are employees. Additionally, Abruzzo threatens to pursue independent violations where an employer misclassifies players as student-athletes. Finally, and perhaps most importantly, the memo may clear a path for college athletes to unionize and engage in collective bargaining, just as professional athletes do. Although she does not have the power to unilaterally adopt that position for the NLRB, she has significant power over the agency’s investigation and litigation process. The memo applies common-law agency rules to determine whether an employer-employee relationship exists. Under the common law “right of control” test, an employee is a person who “performs services for another and [is] subject to the other’s control or right of control.” The services performed by college athletes include the playing of the game for their respective university and the NCAA, thereby generating significant profit. The (scholarship) players receive compensation in the form of tuition, fees, room, and board. The NCAA and the respective universities also control the players’ terms and conditions of employment, including maximum practice and competition hours, minimum GPA requirements, and other restrictions. All these factors, the memo concludes, clearly satisfy both the broad Section 2(3) definition of employee under the Act and the common-law test. The NLRB issued a memo in 2017 stating that football players at Northwestern University were employees but declined to intervene in that specific case. The memo was withdrawn later that year by the Trump administration. Today’s memo revives the original position. Abruzzo points to several significant developments in the law in recent months, including the NCAA v. Alston decision and the NCAA’s new NIL policy. She cites Justice Kavanaugh’s concurring opinion which states that colleges and students could resolve compensation question by “engaging in collective bargaining.” Abruzzo also notes that college athletes have already been engaging in collective action at “unprecedented levels”, citing the racial justice activism following the murder of George Floyd and concerns regarding player health and safety during the Covid-19 pandemic. She also mentions the #wewanttoplay and #weareunited movements organized by players expressing their desire to play the 2020 season. This type of collective activity, the memo states, directly concerns terms and conditions of employment, and is protected concerted activity. Although a memo from the NLRB General Counsel is not binding on colleges, conferences, or the NCAA, it certainly expands the ability of athletes to advocate for themselves and perhaps clears the way for them to unionize. The NCAA is now on notice. Stay tuned in to www.conductdetrimental.com and the Conduct Detrimental podcast for more information as this story continues to unfold. John Nucci is a 3L at Penn State Law and can be reached via email at [email protected] or on Twitter at @JNucci23.

Amidst several ongoing lawsuits where college athletes are asserting that they are employees of the universities they play at under the National Labor Relations Act, the National Labor Relations Board’s (“NLRB”) dropped a bombshell memorandum (Memorandum GC 21-08) on September 29, 2021 whereby it opined that college athletes ARE employees of their universities.[1] The memorandum was so groundbreaking that before I could even get this article drafted, Conduct Detrimental already had an article up covering it – "College Athletes are Employees," says NLRB, Potentially Clearing the Path for Unionization! That being send, the implications of this memorandum are massive and wide-ranging, so I will cover a few additional areas that John Nucci did not address in his great article (which you should also read) and get into the weeds a little more. Although footnotes are typically reserved for citations, clarifying information, and minor explanations, Jennifer A. Abruzzo, General Counsel for the NLRB used the first footnote of Memorandum GC 21-08 – Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act to take a shot across the bow at the National Collegiate Athletic Association (“NCAA”). Ms. Abruzzo refused to use the term “student-athletes” in her memorandum because of the NCAA’s history of using the term to further its narrative that college athletes are not employees entitled to protections provided for by the National Labor Relations Act (“NLRA”) and related laws. Clearly, this memorandum is meant to stand in direct opposition to the NCAA’s stance on college athletes as employees generally and its strategy in recent lawsuits on this issue. While not binding, this memorandum will no doubt be used extensively by plaintiffs and the courts alike to push back on the NCAA’s employment arguments. Just as Alston struck a major blow on the NCAA’s amateurism argument as a sort of catch-all reason why college athletes should not be paid, it seems as though this memorandum may be a death knell for the student-athlete argument against employment. Also of importance is the fact that Ms. Abruzzo made a point to explicitly reinstate Memorandum GC 17-01 – General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context to the extent it is consistent with the new memorandum. By doing so, Ms. Abruzzo has expanded the reach and depth of the most recent memorandum to also include the findings and opinions of the prior memorandum. Going forward, the two memoranda should be used in conjunction to further the argument that college athletes are employees. Ms. Abruzzo noted specifically that the definition of “employee” is broadly defined and meant to capture the widest possible range of workers “subject only to a few, enumerated exceptions[,] . . . [which] do not include university employees, football players, or students.” One possible consequence of this decision is that the NCAA may now begin to lobby for the legislature to include college athletes under the exceptions to the definition of “employee” under Section 2(3) of the NLRA. Given the shifting tide of public opinion on college athlete compensation, the success of any such lobbying efforts is unlikely. But if the effort were to succeed, the NCAA would have a significant legal and legislative advantage comparable only to Major League Baseball’s anti-trust exemption. Throughout the memorandum, Ms. Abruzzo references scholarship athletes as being entitled to protections as employees of their respective institutions. What does this mean for walk-ons and non-scholarship athletes? Could this lead to a situation where some athletes are employees while some of their teammates are not? In referencing common-law agency rules governing the employer-employee relationship to opine that college athletes are employees, the memorandum notes finding that a person performs services for another else subject to the control or right of control of another – this element is true of any athlete at a university, whether scholarship or not; however, the non-scholarship athletes are not compensated, which is a key element of the employer-employee relationship. A future issue to be determined in lawsuits against the NCAA might be this very point. Finally, in another footnote, Ms. Abruzzo notes that there may be circumstances where a joint employer theory of liability is warranted since the NCAA and its conferences exercise certain control over college athletes, who also perform services for the NCAA and its conferences by playing sports, just as the athlete’s own institution does. This assertion guarantees that the NCAA will not be able to insulate itself by pushing NLRA responsibilities down to individual member institutions. As conference realignment is ramping up in college football, might this memorandum presage a further shift in how the NCAA, its conferences, and member institutions decide to structure their relationships? This memorandum strikes a huge blow against the NCAA, but don’t expect it to stop fighting any time soon. As college athletes gain more privileges and protections, the NCAA will shift its strategy to limiting those privileges and protections, rather than outright prohibiting them (as has been the NCAA’s strategy in the past). [1] The memorandum can be read in full on the National Labor Relations Board’s website: https://www.nlrb.gov/guidance/memos-research/general-counsel-memos.

BY: JASON RE Major League Soccer has always done things differently than its European counterparts. One of these differences is MLS’s single-entity structure - a corporate structure that creates numerous obstacles hindering the growth of the league and sport overall. This single entity-structure stifles players’ freedom of movement and choice, rewards complacency while punishing ambition, and is diametrically opposite the concept of a promotion-relegation system. As long as the league remains a single-entity, these problems will persist. MLS uses what is known as a “single-entity” corporate structure, meaning that the league owns all of the teams and player contracts centrally as one legal entity. The clubs themselves are not independent legal entities. This single-entity is legally known as “Major League Soccer, L.L.C.” and encompasses the league, the teams, the team “owners”, and players. This single-entity structure is governed by its Limited Liability Agreement, which establishes a Management Committee consisting of representatives acting as “investors” in the league. These investors are then provided with rights to operate and “own” MLS teams. Thus, each MLS team has an investor-owner that is a shareholder in the league. In fact, further decreasing competition, MLS allows investor-operators to “own” more than one team in the league. In order to control costs, the league shares revenues and holds players contracts instead of players contracting with individual teams. The players are hired by the MLS as employees of the league itself rather than the teams, and the players are then assigned to a club. This is a needlessly restrictive system on player choice and movement, disincentivizing top players from coming to the league and hindering clubs in their recruitment efforts. For example, a top player from overseas may want to come over to MLS if they live in Los Angeles, New York, or Miami – but what if they get placed in Minnesota? Not to mention that their freedom of movement once in the league is restricted with the strict free agency rules. There is a serious risk on missing out on top players who might want to come to the league. Under this structure, the MLS also controls the revenues and expenses of the league and its teams, with all revenue generated by the league belonging directly to the MLS. Similar to investors receiving dividends in a limited liability company, the MLS will then distribute profits (or losses) to its team “owners”. This structure is inherently anti-competitive and anti-ambition, as struggling clubs may be held up by the more profitable, while the more ambitious clubs are slowed in many ways by being tethered to underperforming or absent owner-investors. The early years of MLS were financially tenuous, making the single-entity structure vital to the league’s survival, as a rising tide raises all ships. Another key reason that the league utilizes a single-entity structure is to protect from liability under US antitrust laws – specifically, to keep its “single-entity defense” of the U.S. Sherman Antitrust Act. The clause in question has been interpreted to mean that parties cannot engage in a conspiracy to restrain trade if they are part of a single entity. Thus, because of this structure, the league is allowed to control costs, salaries, league membership, and all aspects of the sport in the country while skirting anti-trust laws. MLS has been careful to appear as a single-entity; requiring expansion fees for new teams, splitting revenue from broadcasting deals, and owning all the teams’ intellectual property rights. The First Circuit Court of Appeals found definitively that MLS was a legal single-entity structured corporation in Fraser v. Major League Soccer, a case brought by a group of players. The court legitimized the league’s practice, allowed the use of a “single-entity” defense and certified it as the nation’s top professional soccer league. In Europe, this single-entity structure is not used. For example, the Premier League – the most popular and profitable in the world – is a private company that itself is wholly owned by its 20 members clubs that make up the league at any given time. Each individual club is wholly structurally and legally independent, a structure that is employed by other American professional leagues. This allows greater flexibility and fewer restrictions, as the clubs are generally free to operate themselves as they see fit with little intrusion. This also allows for an open promotion-relegation system – an interconnected multi-league ladder in which top teams at the end of each season move into a higher division, while the bottom teams drop to a lower division. A promotion-relegation system increases investment in lower soccer leagues, increases attention on matches between struggling teams as stakes are higher, and disincentivizes “tanking” as there would be a punishment for finishing at the bottom of the league. Jason Re is a rising 3L at The George Washington University Law School in Washington, DC where he is the VP of Sports for the Entertainment & Sports Law Association, as well as a published author with Forbes, the eSports & the Law newsletter, and The Entertainment & Sports Lawyer Journal. He can be reached by email at [email protected] or on Instagram at jason.re24.

BY: MICHAEL MILLSTEIN While many of us anticipated that 2020 had cemented its legacy as the craziest year of the current decade, those in the college football world may argue that 2021 has well surpassed last year’s immense volatility. Earlier this year, college athletes could not make money, but now this article addresses how college football’s anti-geographic conference realignments could assist these very athletes in maximizing sponsorship deals. On June 21, 2020, the landscape of college sports changed forever when the Supreme Court issued a unanimous, 9-0 verdict against the NCAA in National Collegiate Athletic Assoc. v Alston et al.[1] In a puissant opinion authored by Justice Gorsuch, the Supreme Court held that, under antitrust principles, the NCAA’s cap on how student athletes may earn compensation is a direct violation of the Sherman Act.[2] The Sherman Act, ironic in its scope of competitiveness, lays the foundation for free competition in interstate commerce.[3] Thanks to the Supreme Court, athletes may benefit off their name, image, and likeness (“NIL”); an individual’s “personal brand.”[4] Now, nearly four full months removed from the verdict, there has been a shift in attention in how to maximize revenue for student athletes as they enter into these NIL deals. Some have taken advantage of their massive social media followings and promoted products as influencers on their Tik Tok or Instagram, while others have signed more traditional sponsorship deals such as representing adult beverages.[5] However, there may be a new, more subtle way for athletes to maximize their NIL revenue, and it stems from maximum exposure. This massive exposure comes from the new conference realignments in college football.[6] Traditionally, college football has featured conferences with schools in close geographic proximity to one another due to a plethora of reasons such as minimizing travel costs, bolstering rivalries, and ensuring time to focus on academics.[7] In spite of college football’s emphasis on tradition, conferences such as the South Eastern Conference (“SEC”), the Atlantic Coast Conference (“ACC”), and the BIG 10 (“B10”) (the geographically midwestern conference) have admitted schools with little to no geographic proximity in recent years.[8] Earlier this year, the University of Texas and Oklahoma University respectively ignited the inevitable wildfire of realignment when they both filed applications to join the SEC, subsequently exiting the BIG 12 (“B12”).[9] Now, in an effort to maintain their status as a power five conference, the B12, also mostly comprised of Southern-Midwest teams, have invited Brigham Young University (Provo, Utah), University of Central Florida (Orlando, Florida) and the University of Cincinnati to join their conference.[10] While this may close the chapter of the geographic college football conference alignment, it opens the door to a strategic new way for college athletes to profit off their NIL. Despite social media’s endless reach, making athletes all around the world relevant to those who choose to engage with them online, it may be hard to invest in an athlete who plays so far away. As is tradition in all sports, fans root for the team in their hometown; for the players in their backyard. While we may appreciate the talent of others around the league, their reach is limited unless they reach a level of maximum stardom, reserved for the few and the elite. For almost all players in college football, they have yet to ascend to that level. Therefore, a linebacker for the University of Utah may only attract NIL deals from companies who conduct business in Utah and the overall region of the Pacific 12 (“PAC 12”) conference which they play in. Therefore, their opportunities to sign deals may be geographically limited. This is where conference realignment presents exciting new opportunities, and may help strengthen programs relocating to conferences where they have a substantial geographic separation. If that University of Utah linebacker is still playing at a time when the University of Utah decides to join a new conference, perhaps the SEC, the amount of companies which may look to sign that linebacker to an NIL deal grows exponentially. Not only does that linebacker have relevance to the State of Utah, but also to the entire Southeast region due to his time playing against teams such as Florida, Alabama, and Georgia. Two major trends may emerge from this and are worth keeping an eye on. First and foremost, does the geographic exposure create a new avenue for college athletes to increase their exposure, either strengthening existing NIL deals or putting themselves in better positions to obtain a deal? Secondly, if this geographic theory does benefit college athletes, will we start to see a shift in the major powers of college football, and have new schools, who travel great lengths to play their opponents, find themselves ranked amongst the elite? Though 2022 will have a hard time outdoing the madness which has unfolded in 2020 and 2021, it could be the start of a new era in which geographically separated schools become the best financial opportunities for college athletes. [1] Nat’l Collegiate Athletic Assoc. v. Alston et al., 594 U.S. __ (2021). [2] Id.; The Antitrust Laws, Federal Trade Commission (last visited Sept. 29 2021), https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws. [3] The Antitrust Laws, Federal Trade Commission (last visited Sept. 29 2021), https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws. [4] Erin Sorenson, What You Need to Know about Name, Image and Likeness, Hail Varsity (June 29, 2021), https://hailvarsity.com/volleyball/what-you-need-to-know-about-name-image-and-likeness/#:~:text=Name%2C%20image%20and%20likeness%20(NIL,for%20participating%20in%20a%20sport. [5] See Ross Dellenger, Behind the Scenes as the Cavinder Twins Became the Faces of Day 1 of NIL, Sports Illustrated (July 1, 2021), https://www.si.com/college/2021/07/01/hanna-haley-cavinder-twins-nil-deal-basketball-tiktok; Scooby Axson, Florida Atlantic QB N’Kosi Perry signs name, image and likeness deal with alcohol company, USA Today (Sept. 8, 2021), https://www.usatoday.com/story/sports/ncaaf/2021/09/08/florida-atlantic-nkosi-perry-nil-deal-beer-company/5770694001/. [6] Alan Blinder et al., Oklahoma and Texas to Join SEC and Add to a Juggernaut, N.Y. Times (July 30, 2021), https://www.nytimes.com/2021/07/30/sports/ncaafootball/oklahoma-texas-sec-college-sports.html. [7] Id. [8] Id. [9] David Cobb et al., Texas, Oklahoma join SEC: Longhorns, Sooners accept invitations as Big 12 powers begin new wave of realignment, CBS (July 30, 2021), https://www.cbssports.com/college-football/news/texas-oklahoma-join-sec-longhorns-sooners-accept-invitations-as-big-12-powers-begin-new-wave-of-realignment/. [10] See Madeline Coleman, Big 12 Will Have Two Divisions as Four New Teams Join The Conference, BYU AD Said, Sports Illustrated (Sept. 10, 2021), https://www.si.com/college/2021/09/10/big-12-will-have-two-football-divisions-conference-invites-four-new-teams-byu-ad.

BY: ANDREW COHEN While the sports world has heard about the Trevor Bauer story, many are unaware that his story was not the first domestic violence incident by an MLB All-star this season. That belonged to two-time all-star, Atlanta Braves outfielder, Marcell Ozuna. Ozuna, is in his first season of his fully guaranteed 4 year/ 65 million dollar contract he signed with the Braves this past off-season. Amid playing his best baseball of his career, his season has been halted since the Sandy Spring Police Officers were alerted to respond to a residence regarding an assault in progress on the night of May 29, 2021. Just to paint an image for you, the Police witnessed him grabbing the victim by the neck and throwing her against the wall when they entered Ozuna’s home. Ozuna was then charged with Aggravated Assault by Strangulation under the Domestic Violence Act and Battery under the Domestic Violence Act. These are felony penalties that range from 3 to 20 years in prison. Ozuna was released from jail shortly after paying a $20,000.00 bond. What happened next? The Braves have kept him away from all team activities, just like how the Los Angeles Dodgers handled the Trevor Bauer situation. However, unlike Bauer, the aggravated assault charges against Ozuna were dropped in July. On September 9, 2021, Ozuna agreed to enter a diversion program that could result in his entire domestic violence case being dismissed. Ozuna is required to undergo a six-month family violence intervention program, 200 hours of community service, refrain from illegal drug use, and avoid any contact with his wife. However, if Ozuna completed all these requirements within his first three months, the original six-month supervision requirement would be terminated immediately. While he may have legally been off the hook, the MLB placed Ozuna on administrative leave as they continue to investigate the situation. They continue to extend his leave as they did most recently on September 29th, where the leave was extended through the 2021 postseason. There seems to be no light at the end of the tunnel of when we will see Ozuna back on the diamond. Can the Braves and the MLB find a remedy to void their contract with Ozuna? If the felony charges had stood, the Braves would have a strong case to escape the remainder of their contract with Ozuna (around $61,000,000.00) and place Ozuna on the restricted list. If Ozuna went to jail, the Braves can have a strong case for a breach of contract claim, since he cannot perform his duties, under the Unform Player Code which states; “a team can terminate a contract if a player shall ‘fail, refuse, or neglect to conform his personal conduct to the standards of good citizenship … it also allows a team to terminate a deal if a player shall ‘fail, refuse, or neglect to render his services … in any material manner that may breach this contract”. However, even if the Braves attempt to act, they will likely wait until the MLB conducted their investigation on the manner. The Braves are hoping that the MLB places a lengthy suspension on Ozuna as they would have a better case for saving a few bucks. Being that the charges are most likely to be dropped, it seems extremely unlikely that the Braves would be able to recoup any amount of money contracted to Ozuna, as it is all guaranteed. Takeaway? While we can all agree that Ozuna’s actions are unacceptable in any situation, many have different opinions regarding the correct way for the MLB and the Atlanta Braves to handle this situation, I think the MLB should handle these situations better than they currently are. The MLB should have a more consistent policy they could have started enacting the suspension and laid down a ruling instead of constantly extending the administrative leave as the public views it as they are unsure of how to act. Although, we can all agree that it is the best move to hold Ozuna out of all team activities, the matter seems to be quieted down, at the very least. This case is similar to Bauer’s case because the MLB is not taking any disciplinary action besides extending the administrative leave of the player, this does not solve anything. Both players are not currently charged, as Bauer has not been convicted of any charges and Ozuna had his charges dropped. As a result, the MLB should either let both players play if they are cleared under the law or enforce a strict/ bright-line rule around domestic abuse like many other leagues have enacted. Instead, it seems that they are not taking any action while keeping the players away from the sport until the story cools down. As a result of not having a firm disciplinary rule around domestic related instances, it is tough to know whether how much longer this story will go on for. This is also not making manners any simpler for the MLB to investigate in future cases. I hope the MLB will get their act together sooner rather than later and stop keeping fans like me in the dark. The ball is in the MLB’s court on whether Ozuna will be subjected to discipline, and if there is how harsh will it be.

Could the Bears—the team of Mike Ditka, as synonymous with Chicago as deep dish pizza, hot dogs without ketchup, and corrupt politicians—really leave their lakefront home? After years of talking about it, the team is finally taking concrete legal steps to make it happen. Earlier this week, the Bears signed a purchase and sale agreement to buy the former site of the Arlington International Racecourse for a reported $197.2 Million. The Bears wouldn’t really replace the horses in suburban Arlington Heights; would they? The prospect of a new stadium—and the new money it would bring the team—might be too enticing to pass up. In fact the first phase of the deal could close as soon as next year. The Bears have played at Soldier Field since 1971 when they relocated from Wrigley Field to accommodate more fans. Still, Soldier Field features the smallest capacity in the NFL, holding “only” 61,500 fans. Soldier Field is unlike the increasingly modern, and privately owned, stadiums hosting NFL teams. Its owned and operated by the Chicago Park District—not the Bears. The stadium was built in phases between 1922 and 1939. It was later renovated in 2002 (causing it to lose its landmark status). The fan experience has become outdated, and the stadium is surprisingly difficult to enter and exit, given its proximity to downtown Chicago. Importantly, further renovation and modernization is complicated, if not impossible; in addition to the architectural challenges, the stadium is a war memorial, dedicated to veterans of World War I. Unlike teams that own their own stadium, the Bears lease Soldier Field from the city, meaning they have to split all revenue. The team’s lease runs until 2033; according to the Chicago Tribune, the team would owe the city $84 Million if it were to break that lease in five years. The penalties go down after that. Of course, the team and city would be free to negotiate the team’s exit. Though city officials want to keep the team downtown, they may be powerless to stop the Bears from moving north. $84 Million is a relative pittance in today’s NFL and for the Bears in particular. According to Forbes, the franchise is the 18th most valuable in the world, in any sport, and 7th most valuable in the NFL, worth approximately $3.5 Billion. Under the new nine-figure media rights deal the NFL signed earlier this year, each team is set to get an estimated $321 Million—per year. High numbers for a team playing in a city park. If the Bears were to build a stadium on the Arlington Heights property, the Billion Dollar Question becomes “who pays for it?” Teams are infamously loathe to pay for their own stadiums, and publicly financed venues are rarely good deals for anyone but the franchise owners. State lawmakers have already spoken out against public financing. This will almost certainly be a legal battle in the coming years should the Bears pursue a move. Like the “Dallas” Cowboys (coincidentally) in Arlington, the “San Francisco” 49ers in Santa Clara, and the “New York” Giants and Jets in New Jersey, it seems inevitable that the Bears will follow the money to the suburbs. If that happens, the area would likely be in line to host Super Bowls and national championship games. It would also signal the end of a bygone era of landmark pre-war stadiums. At least one Bears player is in favor of the move: tight end and Arlington Heights native Cole Kmet. “SoFi is pretty nice,” Kmet said about the new state-of-the-art home of the Los Angeles Chargers and Rams. “You could kind of do something like that in Arlington Heights, which would be pretty cool.” For that, and several billion other reasons, odds are that the Bears will clear any legal hurdles necessary to make it happen. Ben Shrader is a partner at Hart McLaughlin & Eldridge in Chicago, where he serves as Chair of the Chicago Bar Association Sports Law Committee. You can reach Ben at [email protected] or find him on Twitter @BenShrader.

On Wednesday, September 22, 2021, the NCAA and each of the Power 5 Conferences filed an answer in In Re College Athlete NIL Litigation (a.k.a. House v. NCAA). September 22 had previously been set as the deadline for the NCAA and the Conferences to answer the Consolidated Amended Complaint filed by Plaintiffs Grant House, Sedona Prince, and Tymir Oliver. I previously wrote on the background of the case and the allegations made by Plaintiffs House, Prince, and Oliver here. In short, the Plaintiffs challenge the NCAA’s prohibition against student athletes receiving compensation for their name, image, and likeness (NIL), arguing that the prohibition violates antitrust laws because it constitutes a conspiracy to fix the amount student athletes may be paid for licensing and selling their NIL at $0, and because it prevents student athletes from accessing the market for the licensing and/or sale of their NIL. In federal court, defendants answering a lawsuit generally must admit or deny the allegations made against them by an opposing party. This usually takes the form of the defendant responding to every paragraph written by the plaintiffs, whether by admitting, denying, or stating that they do not have sufficient information to respond to the allegation. Here, the answers from the NCAA and the Conferences are generally very similar, suggesting that the lawyers for each of the defendants collaborated and used the same form in drafting their answers. While most of the admissions and denials made by the NCAA and the conferences were not particularly notable, there are several that stood out: The NCAA admits that it has established limitations on compensating student-athletes for the use of their NIL. The NCAA does not specifically admit or deny that the changes made in the Interim NIL Policy issued on July 1, 2021 are not intended to be permanent. Instead, the NCAA (and the Conferences) only admit that the NCAA issued the Interim NIL Policy, “with the result that certain activities relating to name, image, and likeness would not be impacted by the application of certain NCAA bylaws.” The NCAA and the Conferences deny that they have engaged in unlawful or anticompetitive conduct. The NCAA and the Conferences specifically deny that they engage in price-fixing activity by collectively requiring institutions to withhold from competition all athletes who do not comply with NCAA rules and bylaws. The NCAA and the Conferences admit that one of their arguments in prior antitrust litigation has been that the NCAA’s amateurism model and restrictions on payments to student athletes promote consumer demand for collegiate sports. The NCAA and the Conferences admit it has knowledge that some student athletes—such as tennis players, Olympic athletes, and football players playing in bowl games—are permitted to receive certain limited monetary and non-monetary awards for their athletic participation, and that some schools have used Student Assistance Funds to purchase loss-of-value insurance policies to allow athletes to remain in college athletics. The NCAA denies that NCAA President Mark Emmert’s request before the Senate Commerce Committee for a “safe harbor” against antitrust lawsuits on June 9, 2021 means that the NCAA wishes to operate without antitrust scrutiny. The NCAA admits that Mark Emmert made $2.9 million in 2019 for serving as NCAA President, and that three other NCAA employees made over $1 million and ten others made over $550,000. The NCAA and the Conferences did not address the Plaintiffs’ allegations that the NCAA lobbied against state NIL laws and executive orders and threatened legal actions against California’s Fair Pay to Play Act, passed in Fall 2019. The NCAA and the Conferences admit that the NCAA studied NIL issues and drafted proposed rules changes and legislation related to NIL. The NCAA denies that it issued the Interim NIL Policy on July 1, 2021 because of the decision in NCAA v. Alston or the changing state laws. The NCAA admits that its former Executive Vice President of Regulatory Affairs Oliver Luck made a statement in which he indicated that a person’s NIL is a “fundamental right”, and that he a doesn’t believe a student athlete who accepts a grant-in-aid waives their NIL rights. The NCAA contends that the Plaintiffs have not properly defined classes of people for which they seek recovery, including some former athletes. The NCAA also contends that the Plaintiffs are not entitled to an injunction against NIL rules that are no longer in place. The NCAA and the Conferences contend that the Plaintiffs claims are barred by settlements and agreements related to the prior litigation that led to the Supreme Court’s decision in NCAA v. Alston. The SEC says it lacks sufficient knowledge to admit or deny whether Nick Saban was correct in stating that Alabama’s starting quarterback, Bryce Young, had already earned $1 million in NIL deals. The NCAA admits that it denied Plaintiff Sedona Prince’s request for a hardship waiver to allow her to play basketball in the 2019-20 season after transferring from the University of Texas to the University of Oregon. The answer deadline in this case was the first in-court opportunity for the NCAA and the Power Five Conferences to take a position on the NIL debate and the general anti-trust arguments against the NCAA’s amateurism model in the post-Alston era. However, the NCAA and the Conferences did not take any strong positions or make any unexpected arguments, instead simply denying most of Plaintiffs’ allegations and avoiding the question of how Alston affects this case by simply denying that the Supreme Court’s decision in Alston is applicable here. Trial in this case is not until 2024. The next significant development will be the deadline for the court to determine whether to certify the classes requested by the Plaintiffs, a decision which would determine whether certain former student athletes could be entitled to NIL benefits they were prevented from obtaining during their days as student athletes.

BY: DAN LUST, DAN WALLACH AND STEPHANIE WEISSENBURGER Conduct Detrimental has obtained a copy of the NFL's emergency application seeking leave to file under seal their petition for writ of prohibition. In short, this is a further attempt by the NFL to move the trial for the Rams' relocation matter out of St. Louis. We provide full details here. By way of brief background, on August 31, 2021, the Rams, Stanley Kroenke and the NFL had their Application for a Change of Venue denied by Judge Christopher McGraugh. This denial meant that the trial, which is scheduled for January 10, 2022, would remain in St. Louis. However, the NFL and Kroenke & Co are now seeking to overturn that decision and move the case to a different location. On Friday, October 1, the NFL and Kroenke & Co filed a petition for writ of prohibition in the Missouri Court of Appeals, Eastern District. A writ of prohibition is an appellate court's written order to prohibit a lower court from acting because it does not have jurisdiction to do so. Therefore, this writ of prohibition is specifically designed to overturn Judge McGraugh’s decision. A copy of the Motion is attached below without the corresponding exhibits. In their filing, the NFL and Kroenke & Co discuss the “inflammatory pretrial publicity in the St. Louis metropolitan area and its demonstrated effect on the prospective jury pool in St. Louis City… [which] will further jeopardize Defendants’ right to a fair trial if their Writ Petition is denied and the case is ultimately tried in St. Louis City.” Simply put, they argue that “there is no way to eliminate the undue influence of Plaintiffs over prospective jurors in St. Louis City given Plaintiffs’ sweeping damages claim for alleged losses to City residents of jobs, economic development, and civic pride.” A copy of the Writ Summary is attached below. This is a potential turning point in the case. Should the trial remain in St. Louis, the Plaintiffs (St. Louis Regional Convention & Sports Complex Authority, the City of St. Louis, and the County of St. Louis) will have a decisive advantage. This is akin to home-field advantage in football, naturally. In fact, the NFL and Kroenke & Co go as far to say that, “Without a change of venue, [they] will be denied their constitutional right to a trial before a fair and impartial jury.” Furthermore, they ask that “the Court issue a preliminary and permanent writ of prohibition ordering Respondent to transfer this cause to a venue outside the metropolitan St. Louis area where no prejudice exists.” To the extent that the NFL and Kroenke & Co win on this writ challenging venue, it will certainly be a gamechanger in this rapidly evolving action. Keep a very close eye on the outcome of this writ as it will have a tremendous impact on the resolution of the case and a potential settlement. This story will be updated as more details are provided. Be sure to follow us on Conduct Detrimental. Dan Lust @SportsLawLust, Dan Wallach @WallachLegal and Stephanie Weissenburger @SWeissenburger_.

You hear the statement when athletes attempt to place their work in perspective ­– professional sports is a business. It’s true, despite the intoxicating elements of loyalty and fandom that often blurs reality. For nearly two decades, Tom Brady never seemed like a New England Patriots employee. Instead, in the hearts of all New Englanders, Brady was this angelic figure that led the team to Super Bowls. It only started to feel like Brady was an employee when contract talks between the quarterback and the organization became public, and ultimately the two sides parted ways. Professional sports only begin to feel like a business when issues between a player and team start to bubble, and the two sides become pitted against one another. Proof in point is the Ben Simmons situation in Philadelphia. Simmons, the former 2016 #1 draft pick, was declared the savior of the 76ers franchise. But the honeymoon didn’t last forever, and Simmons suddenly finds himself as public enemy #1 in the city of brotherly love. The 76ers and Simmons have undergone a falling-out which has led to a trade request, a contract holdout, and Simmons’ jersey being set on fire in the city that used to embrace him. After the 2019 season, when both sides could still look each other in the eyes, Simmons signed a five-year $177 million contract extension with the 76ers. They agreed to continue their marriage and work together to bring a championship to Philadelphia, the first since 1983. The very next season the Simmons/76ers relationship began to dissolve when Simmons’ name was floated in trade rumors for James Harden, which would have sent Simmons to Houston. Although the trade never occurred and James Harden was dealt to the Brooklyn Nets, the damage was already done and no amount of apologies or couples therapy could save it. To add fuel to the fire, the 76ers flamed out in the 2021 playoffs largely in part because of Simmons’ poor play. In their second round exit against the Hawks, Simmons averaged just 9.9 points per game and shot a woeful 33% from the free throw line. Throughout the series, Simmons was visibly battling mental barriers that culminated with passing up a wide-open dunk with under four minutes to play in the decisive game 7. Passing up that dunk was the equivalent of a professional golfer missing a 3-foot gimme to close out a tournament. The 76ers crowd audibly gasped at the sight of an NBA superstar crumbling before their eyes. After the loss, 76ers head coach Doc Rivers was asked if Ben Simmons could play point guard on a championship team. Rivers certainly didn’t have the $177 million dollar man’s back when he indifferently responded, “I don’t know”.[1] Unsurprisingly, Ben Simmons requested a trade from the 76ers this offseason. Reportedly, he isn’t comfortable playing for Doc Rivers or in front of Philadelphia fans ever again and has threatened to holdout until the team trades him. 76ers ownership has attempted to reconcile the relationship, but Simmons hasn’t budged – the bridge tying Simmons to Philadelphia has already been burned.[2] 76ers training camp began last week and Simmons, true to his word, was nowhere to be found. The 76ers heard Simmons’ message loud and clear and countered with a move of their own: Teams must walk a delicate tightrope when dealing with a disgruntled superstar. Of course, the 76ers would love Simmons to report to camp, fabricate a smile, and perform up to his contract at least until they can field realistic trade offers and send him packing. They could keep stacking fines on Simmons for failing to uphold his duties under contract and send a message to the rest of the league that player insubordination will not be tolerated. In a league where superstars take notice at how other players are being treated by their team/employer, this is a risky proposition. Simmons and his team are relying on this dissension to create enough chaos around the 76ers organization to give the superstar leverage. This isn’t the first time a high-profile athlete was dissatisfied with their contract and chose to stay on the sidelines. In 2018, Le’Veon Bell forfeited $14.5 million when he sat out the entire season for the Pittsburgh Steelers because he was unhappy he didn’t secure a long-term contract from the team. The next season Bell signed a four-year $54 million contract with the New York Jets. When all was said and done Bell still got paid, but he never recovered the $14.5 million left on the table from Pittsburgh.[3] In 1992, the #4 overall pick in the NBA Draft, Jim Jackson, only played 28 games his rookie season due to a lengthy contract holdout with the Dallas Mavericks. Eventually, Jackson’s agent Mark Termini negotiated a 6-year $20 million contract. Shockingly, Jackson was paid for the entire 1992 season despite playing in less than half of the games.[4] In what has since been known as the “Termini Doctrine”, star players can push for being paid for the time spent during contract holdouts even when they are not playing for their team. If the Simmons saga continues, his agent Rich Paul will likely attempt to employ this strategy and get Simmons all his money from the 76ers, even while he is nowhere near the team. NBA contracts are lengthy and complex, but at the very basic level they operate like any other employment contract where each side must fulfil duties and obligations. Here ­– Ben Simmons must play basketball, and the 76ers must pay Ben Simmons. Currently, Simmons is in breach of contract for “failing to render services” under Article VI Section I of the NBA’s Collective Bargaining Agreement. The 76ers interpret this as he no longer has to be paid. So where do we go from here? If the stalemate continues, the two sides can enter arbitration and employ a neutral third-party decide their fate. This process can be unpredictable and take months to play out. Alternatively, the 76ers can give into Simmons’ demands and send him to another team to reset his NBA career. It’s becoming more unlikely Ben Simmons will ever wear a Philadelphia 76ers jersey again. Now it’s just a question of where and when he will play next, and how much money this saga will cost him. 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] Scott Polacek, 76ers’ Doc Rivers: “I Don’t Know” If Ben Simmons Can Play PG on Championship Team, Bleacher Report (last visited Oct. 3, 2021) https://bleacherreport.com/articles/10006302-76ers-doc-rivers-i-dont-know-if-ben-simmons-can-play-pg-on-championship-team. [2] Dan Feldman, Report: Before He Threatened Holdout, 76ers Wanted to Keep Ben Simmons Into the Season, NBC Sports (last visited Oct. 3, 2021) https://nba.nbcsports.com/2021/09/09/report-before-he-threatened-holdout-76ers-wanted-to-keep-ben-simmons-into-season/. [3] Tyler Lauletta, Le’Veon Bell Reportedly Lands 4-Year $52.5 Million Contract With the Jets After Holding Out the Entire 2018 Season, Business Insider (last visited Oct. 3 2021) https://www.businessinsider.com/leveon-bell-jets-hold-out-2019-3. [4] Dallas News, Ex-Mav Jim Jackson Divulges Details of his 1992 Holdout Explains Why Three Js Era Never Panned Out (last visited Oct. 3, 2021) https://www.dallasnews.com/sports/mavericks/2014/01/26/ex-mav-jim-jackson-divulges-details-of-his-1992-holdout-explains-why-three-js-era-never-panned-out/.