The coronavirus pandemic has in many ways tested the regulations of sporting bodies and the Brazil vs Argentina World cup qualifier on 9/5 provided another example of how clubs and countries are struggling to cope. Just minutes into the Brazil vs Argentina World Cup qualifier in Brazil the unthinkable happened. A group of Brazilian government officials stormed the field to detain four Argentinian players. These players were Emilio Martinez, Emi Buendia, Giovanni Lo Celso and Christian Romero, who are all based in the UK. They were accused by Brazilian health authorities of defying Brazil’s health rules by lying to enter the country. People from the UK are not currently allowed in Brazil and the players entered via a flight from Venezuela. The game would end up being suspended altogether. There is even a chance it will not be replayed. Brazil also had its own player problems. Several of their players based in England simply did not make the trip. The reason actually has nothing to do with Brazil’s health regulations. The English Premier League stopped players from joining up with their national teams if it required traveling to countries on the British government's "red list," which triggers a 10-day hotel quarantine on return. While the appearance of the government officials on the field created drama and chaos, it is the action of the Premier League to stop players from travelling to play for their country that is of concern here. Due to the Premier League’s action, eight Brazilian players as a result were unable to make the trip to Brazil; these include Ederson, and Gabriel Jesus of Manchester City Fabinho, Alisson, and Firmino of Liverpool Raphinia of Leeds Fred of Manchester United Thiago Silva of Chelsea A huge uproar erupted in response. These weren’t just any international games, but key World Cup qualifiers in a South American region that is extremely difficult to qualify from. It was surprising that some sort of exception could not be made in this scenario. Fortunately, national federations are not helpless. In full, Annexe 1, Article 5 of FIFA's Regulations on the Status and Transfer of Players states: “A player who has been called up by his association for one of its representative teams is, unless otherwise agreed by the relevant association, not entitled to play for the club with which he is registered during the period for which he has been released or should have been released pursuant to the provisions of this annexe, plus an additional period of five days.” Several national teams invoked this rule against Premier League clubs. These included the Brazil, Chile, Paraguay, and Mexican Federations. At the time of the writing of this article, the Mexican FA withdrew their ban request. This allowed Mexican forward Raul Jiminez to be eligible for Wolves this weekend. Also, Fred of Manchester United was not named to the squad for tomorrow's game vs Wolves. It is being widely reported now that some premier league clubs are preparing to defy the ban and play their banned players anyway. If they go ahead with that rumored threat, I would imagine there would be some sort of penalty involved with that. This move from the federations was brilliant and shows the importance of having a comprehensive set of rules that regulate a sport. Imagine such a rule was not on the books. The national federations would have essentially been powerless and at the mercy of the Premier League. While all the national teams may end up withdrawing their ban requests, it is effectively a threat. It is a threat that should an alternative not be made during the next qualifying window, the Premier League clubs can count on these particular international players not being available for club games commencing after the international break. There is no doubt the league will want to avoid the chaos of the last week as club managers, league officials, plead with federations to withdraw their bans which must have made match preparation a nightmare. Hopefully, all players will end up being available for their clubs this weekend. However, with the importance of World Cup qualifying, I would be surprised if alternative arrangements are not made possible by the next international window.

BY: EMILY COSTANZO On Wednesday, December 1, 2021, the Supreme Court of the United States will hear oral arguments for the case Dobbs v. Jackson Women’s Health Organization. This case, one that will ring a bell in the minds of anyone who follows any type of news outlet, will consider the constitutionality of a Mississippi law which bans abortions after 15 weeks into a woman’s pregnancy. What does this case—one finding its roots all the way back in the landmark 1973 Roe v. Wade decision—have to do with sports? According to the over 500 female athletes who signed an amicus brief in opposition to the law on Monday, a lot. This group of athletes—one comprised of 26 Olympians, 73 professional athletes, 276 collegiate student-athletes, the players’ unions of both the WNBA and NWSL, the Athlete Ally organization, and more—argue that these infringements upon their right to legally receive an abortion have “broader Title IX implications” and cite a “direct connection between reproductive rights and gender equality.”[1] Some notable signees include, but are not limited to, Diana Taurasi, Megan Rapinoe, Brittney Griner, Sue Bird, and Breanna Stewart.[2] Though each of these women made the brave and empowering decision to sign, one signee chose not only to attach her name to the filing, but also her personal story. Crissy Perham, an Olympic swimmer who earned two gold medals for the United States, discussed her decision to receive an abortion during her time in college.[3] She stated, “I was able to take control of my future and refocus my priorities. I got better in school, I started training really hard, and that summer, I won my first national championship.”[4] To be sure, no woman—athlete or otherwise—makes the decision to receive an abortion lightly. However, as the language of the brief states, the opposition to this Mississippi law and those like it rests in the importance of “bodily integrity and decisional autonomy” for women’s bodies, careers, and lives at large.[5] When further examining the relevance of this decision to the world of female athletics, these signees highlight the correlation between women embracing the rights constitutionally afforded to them and the forward progression of the women’s game in all arenas. The brief states: “Women’s increased participation and success in sports has been propelled to remarkable heights by women’s exercise of, and reliance on, constitutional guarantees of liberty and gender equality, including the right to reproductive autonomy…Continued access to, and reliance on, those rights will empower the next generation of girls and women to continue to excel in athletics and beyond, strengthening their communities and this nation.”[6] In an era that is finally emphasizing the importance of women’s sports—be that emphasis through increases in televised competitions, improvements in labor contracts, greater opportunities to purchase gear or tickets, or equality in wages—we must not forget that these women will one day step off the pitch, or out of the pool, or away from the arena, and when that day comes, they, like every other woman that stands alongside them, deserve the right to make their own decisions about their bodies. As Megan Rapinoe so aptly states, “Physically, we push ourselves to the absolute limit, so to have forces within this country trying to deny us control over our own bodies is infuriating and un-American and will be met with fierce resistance.”[7] [1] https://www.usatoday.com/story/sports/2021/09/20/supreme-court-mississippi-abortion-law-women-athletes-warning/8418765002/ [2] https://www.washingtonpost.com/sports/2021/09/21/female-athletes-supreme-court-abortion-rights/ [3] https://www.si.com/wnba/2021/09/21/female-athletes-ask-supreme-court-to-protect-abortion-rights [4] Id. [5] https://www.usatoday.com/story/sports/2021/09/20/supreme-court-mississippi-abortion-law-women-athletes-warning/8418765002/ [6] https://www.washingtonpost.com/sports/2021/09/21/female-athletes-supreme-court-abortion-rights/ [7] https://www.si.com/wnba/2021/09/21/female-athletes-ask-supreme-court-to-protect-abortion-rights

BY: MICHAEL MILLSTEIN The concerningly long list of current athletes facing serious allegations of sex crimes has acquired a new member, Manchester City’s left-back, Benjamin Mendy. Since joining Manchester City from Monaco for a reported €52,000,000 ($61,342,580) in 2017, the French international has produced various headlines for his sumptuous play on the field.[1] However, for reprehensible conduct outside the lines, Mendy now finds his name cast in a poor light as he faces allegations consisting of four counts of rape and one count of sexual assault. The first three counts of rape stem from isolated incidents back in October of 2020, with the most recent allegation occurring just this past week.[2] Although three of the alleged victims are under the age of 18, the laws governing the age of consent in England and America vastly differ. England’s legislature has set the age of consent at 16, with no “Romeo and Juliet” clause. This means that a 27-year-old, like Mendy, can legally have sexual relations with a girl who is at least 16.[3] Nevertheless, to make matters worse for Mendy, who was previously out on bail, the new rape allegation has placed him in violation of the conditions of his bail. Now, he is currently remanded by British authorities.[4] With the police investigation now underway, Manchester City released a statement in which they informed the public that Mendy is suspended pending the outcome of the investigation.[5] In spite of his current suspension from the club, Mendy’s legal team still is pursuing a bail application so Mendy can at least handle these matters from the comfort of his home.[6] Mendy noted that being placed into police custody taught him a “tough lesson” and enlightened him on how to act going forward. In an act of good faith, Mendy offered to surrender €50,000 ($58,982) to the court and subject himself to electronic monitoring. Despite Mendy’s attempts at reconciliation, given the nature of the charges pending against him and his previous falters in adhering to bail conditions, district judge, Jack McGarva denied bail.[7] The judge reasoned that he simply cannot trust Mendy to not repeat the same course of action.[8] With Judge McGarva’s decision, Mendy spent a the coming weekend locked up, and remained behind bars until his next court date on September 10. Since then, the court has announced a trial date for Mendy, set for January 24, 2022.[9] Manchester City and manager Pep Guardiola have since turned to the veteran Ukrainian, Oleksandr Zinchenko to replace Mendy. However, a recent injury to Zincehnko has left City struggling to find a replacement, and they are having trouble scoring league goals as a result. With the transfer window set to reopen in January, if Manchester City either cannot get Zinchenko back healthy nor anticipate Mendy’s return if the charges are dropped, look for them to potentially target a new wing back to serve as Zinchenko’s understudy. An interesting target whose name I expect to circulate in the coming days is Atletico Madrid’s star Brazilian left-back, Renan Lodi. Lodi will not, however, come cheap. So, if City are looking to be conservative with their spending, they may inquire about either Napoli’s Mario Rui or Roma’s Matias Vina. Whether or not Manchester City pull the trigger on Mendy’s replacement is a decision that will have to be made prior to knowing his legal outcome, and the sports world will be excitedly awaiting the outcome. [1] Sky News, “Benjamin Mendy: Manchester City defender appears in court after being charged with four counts of rape and one of sexual assault.” Sky News, Aug. 27, 2021. https://www.skysports.com/football/news/11679/12392150/benjamin-mendy-manchester-city-defender-appears-in-court-after-being-charged-with-four-counts-of-rape-and-one-of-sexual-assault [2] Id. [3] “Children and the law.” NSPCC, Apr. 13, 2021. https://learning.nspcc.org.uk/child-protection-system/children-the-law [4] Benjamin Mendy, supra note 1. [5] “Club Statement.” Manchester City, Aug. 26, 2021. https://www.mancity.com/news/club/club-statement-63765586 [6] Josh Halliday, “Benjamin Mendy: footballer remanded in custody on rape charges.” Aug. 27, 2021. https://www.theguardian.com/uk-news/2021/aug/27/benjamin-mendy-footballer-remanded-in-custody-on-charges [7] Id. [8] Id. [9] Manchester City defender Benjamin Mendy to stand trial for rape in January, France 24 (Oct. 09, 2021) https://www.france24.com/en/sport/20210910-manchester-city-defender-benjamin-mendy-to-stand-trial-for-rape-in-january.

The Tennessee Titans will be celebrating their Houston Oilers roots during Week 3 of the NFL season at Nissan Stadium. As much as enraged fans, talking heads , and news outlets want their division rivals, the Houston Texans, to own the history of the city’s former franchise, it is, in fact, owned by the Titans - the original and owner of the name and trademark. For the uninitiated, the Houston Oilers moved to Tennessee in 1997 when the City of Houston would not greenlight a new home for the Oilers after several decades in the Astrodome. The Oilers relocated to Tennessee and spent the next couple of seasons in the Volunteer State as the Tennessee Oilers, before changing their name t the Titans. A name which moves away from one which is inherently Texas, to one which is more appropriate for “Athens of the South.” It is well established that there is a direct chain of custody from Oilers to Titans. This is not a situation akin to the original Cleveland Browns moving to Baltimore, becoming the Ravens and completely relinquishing the identity, while another franchise picked it up. The Oilers/Titans ownership group never abandoned the Oilers trademark. USPTO filings dating back to the 1970s show that Houston Oilers, Inc., who have offices in both Houston and Tennessee, have kept their trademarks active. There have been previous attempts by Texans ownership to lay claim to the Oiler name. Before settling on the Texans as a name, the ownership group in Houston petitioned to become the Oilers. However, it belonged to the owners, the Adams family, and it remained in their hands. The mark was never abandoned because it remains a business commodity for merchandising and other purposes. More importantly, they are owned by the people who created the mark, not by the city who did not try hard enough to keep the team around. The US Trademark system does not simply transfer ownership of marks because some feelings are hurt. The Titans have not donned the Carolina Blue and White since the AFL anniversary season in 2008, but for good reason. The league has mandated for teams to only have one helmet design for the season. However, Titans Majority Owner Amy Adams Strunk has said when the league adopts their new rule, which has been passed for upcoming seasons, the Titans will wear their originals in select games. When you see the 80+ former Oilers get honored in Nashville during Week 3 of the NFL season, know it is being done by the owners of the original “Luv Ya Blue” franchise, and not by an attempt at stolen history and IP.

BY: LEVI LORENZ The University of Oregon boasts one of the most recognizable brands in amateur athletics thanks to Phil Knight’s sportswear giant headquartered just over an hour away on I-5. The Nike connection is why we never see the Ducks wear the same uniform twice, and it also distinguishes Oregon as the premier sports law school in the Pacific Northwest. It is not considered a “blue blood” to the likes of Tulane, ASU, and Marquette, but the NIL era may very well launch Oregon into that conversation. Despite only having a handful of professional sports franchises in the state (Portland Trailblazers, Portland Timbers), Oregon Law students have opportunities to work and network with attorneys and executives from two of the biggest athletic brands in the world. Nike and Adidas are both headquartered in the Portland area and offer summer internships to those interested in the business of sports. Want to work on contracts for Kanye? Oregon Law is the place for you. Sports-minded law students at the University of Oregon also have the opportunity to enroll in the Summer Sports Law Institute. This six-week program begins the first week of July and gives rising 2Ls and 3Ls a closer look into the industry, specifically; IP/licensing, antitrust, labor, Title XI, compliance, and international arbitration. In previous years, the program featured prominent figures such as Andrew Brandt, Gabe Feldman, and Timothy Davis hosting lectures and offering professional insights. The SSLI complements top-tier sports law curriculum taught by notable figures in the industry. Paul Loving is an experienced entertainment litigation attorney and currently holds a senior counsel position at the distinguished firm of Holland & Knight. He is rumored to have Snoop Dogg on speed dial and was acquainted with Phil Knight during his time at Nike. Rob Illig is a resident “sports law expert”; specializing in business acquisitions and contract law; Illig is amongst Oregon’s most prominent faculty when it comes to sports. According to 3L Summer Huber, President of Oregon’s Sports Law Club, these are just two of many knowledgeable and experienced faculty in the industry. Like most schools, Oregon’s athletic compliance office offers a wide range of internship opportunities for sports law students. If you’d rather get away from the University for a Summer, Oregon Law students have worked externships with virtually every type of athletic entity in the area such as the Portland Trailblazers, Seattle Seahawks, Nike (and Adidas), the Pac-12 Conference, and even Major League Baseball. So you’re interested in sports law but not sure where to begin? The Oregon Sports Law Club is a great starting point. Whether it’s hosting tailgates on game days, presenting guest lecturers who share insights about the international Court of Arbitration for Sport in Lausanne, Switzerland, or traveling to Los Angeles for an MLB arbitration moot court competition… The sports law club at Oregon spotlights an up-and-coming university with regional connections to any legal sports career imaginable. Many thanks to Summer Huber (3L, President of Sports Law Club) for providing information about the program.

BY: RJ CURINGTON The National Collegiate Athletic Associations and the National Association of Intercollegiate Athletics new name, image, and likeness (“NIL") rules allow student-athletes with thousands, and some with millions, of followers to profit off of the use of their NIL. Including through sponsorship deals to represent companies and their products while maintaining eligibility. Many lucrative NIL deals have already surfaced. A few months after enactment of the NIL rules and multiple lucrative NIL deals later, it’s safe to say that student-athletes can now be considered business-athletes, effectively making them entrepreneurs and small business owners. With the ability to now generate revenue comes great responsibility.[i] Business student-athletes will soon realize or remember that with income comes taxes, contracts need to be reviewed, and compliance is a concern to deal with. Students signing NIL deals should consider consulting with attorneys, accountants, and personal advisers.[ii] While smaller deals may be easier to navigate and simple enough to report on a 1040 tax form, that will become more challenging as the dollars increase.[iii] Further, since athletes are unlikely to be hired as employees, their taxes will not be taken out the way they would if the athlete was getting a regular paycheck. This is advantageous to get the larger gross checks and to have cash management potential. However, it’s disadvantageous if the athlete believes that check is all for them. Up to half or more could go to the IRS and their state.[iv] Business student athletes should consider that cash is not the only thing that is taxed. The “free” stuff, like a car, the products, or travel is taxed as well. These benefits are generally taxed at the fair market value, which creates even more issues as athletes can have taxable income without even receiving cash.[v] The companies write off all of the gifts on their taxes. The value of these items are usually income to the athletes too. In a cash payment for specific actions contract, the fees might be bundled for certain services, or listed as a dollar amount for each item from appearances, autograph signing, media posts, and endorsements.[vi] Merchandise allowances for services also are taxed, based on the value of the merchandise.[vii] The sponsor who wants the athlete to wear their gear is required to issue IRS Forms 1099 each year for the value of the gear. IRS Forms 1099 are sent in January for the prior calendar year. Federal taxes apply with a top rate of 37%. Additionally, state income taxes apply. But which state gets to tax this income, the athlete’s home state, or where he or she attends college? Income earned across multiple states generally requires filing multiple state income tax returns. An appearance in a nearby state could create a need to file a return for that state. Income will likely need to be apportioned to different states if the athlete lives in different states during the year. Another consideration is self-employment tax. The tax code imposes three different taxes on self-employment income: a 12.4 percent Social Security tax, a 2.9 percent Medicare tax, and a 0.9 percent Medicare surcharge tax.[viii] For 2021, the Social Security tax applies to self-employment income up to $142,000.[ix] The Medicare tax is imposed on an individual’s self-employment income, and the Medicare surcharge tax is imposed on self-employment income exceeding $200,000, or in the case of a joint return, $250,000.[x] Collectively, these three taxes make up self-employment tax. In most cases, athlete income is likely to be considered self-employment income. Besides the filing of annual tax returns, there is a compliance burden. There are quarterly estimates to make, so athletes pay into the IRS four times a year. Planning ahead is crucial so a business student-athlete doesn’t end up unable to pay their taxes. Business student-athletes should consider forming their own companies that in turn will get paid, and that will pay them. As a C corporation, S corporation or LLC, their entities may do much of the contracting, and they can open up added tax and other benefits.[xi] This new generation of business-athletes will need to make sure to keep track of their income and where it comes from. Additionally, they will want to keep track of all their expenses as those will help offset the income that they receive. Expenses such as travel, meals, phones, and internet are deductible if incurred as part of their business.[xii] New business student-athletes should consider the tax implications of their NIL endorsement deals which may require a full team effort. [i] Laird, P. Brent, STUDENT ATHLETES: NAME, IMAGE, LIKENESS, & TAXES https://kernuttstokes.com/industries/college-athletics-athletes/ (July 2021) [ii] Moody, Josh, Name, Image, Likeness: What College Athletes Should Know About NCAA Rules, US News, https://www.usnews.com/education/best-colleges/articles/name-image-likeness-what-college-athletes-should-know-about-ncaa-rules (Aug. 9, 2021, at 10:27 a.m.) [iii]Id. [iv] Wood, W. Robert, College Athletes Cutting New Name Image Likeness Deals Could Be In For A Tax Shock, Forbes, https://www.forbes.com/sites/robertwood/2021/08/30/taxing-college-athlete-name-image-likeness-deals/?sh=39575452c65a (Aug 30, 2021,11:40am EDT) [v] Laird, P. Brent, STUDENT ATHLETES: NAME, IMAGE, LIKENESS, & TAXES https://kernuttstokes.com/industries/college-athletics-athletes/ (July 2021) [vi]Id. [vii]Id. [viii] Wood, W. Robert, College Athletes Cutting New Name Image Likeness Deals Could Be In For A Tax Shock, Forbes, https://www.forbes.com/sites/robertwood/2021/08/30/taxing-college-athlete-name-image-likeness-deals/?sh=39575452c65a (Aug 30, 2021,11:40am EDT) [ix]Id. [x]Id. [xi] Laird, P. Brent, STUDENT ATHLETES: NAME, IMAGE, LIKENESS, & TAXES https://kernuttstokes.com/industries/college-athletics-athletes/ (July 2021) [xii]Id.

In 2016, former UFC fighter Mark Hunt sued the UFC, Dana White, and Brock Lesnar on the heels of UFC 200. Hunt claimed that the UFC and White, specifically, knew that Brock Lesnar had taken performance-enhancing drugs and let him fight anyway. Lesnar won the fight, but the decision was overturned when it was revealed that Lesnar failed a drug test. With that, Hunt alleged a slew of wrongdoings, including fraud, unjust enrichment, breach of contract, battery, and breach of the implied covenant of good faith and fair dealing. In 2019, the United States District Court for the District of Nevada dismissed the majority of Hunt's claims. All claims against White and Lesnar were dismissed. The only claim that remained was the alleged breach of the implied covenant of good faith and fair dealing. However, that claim was later thrown out after the UFC secured a summary judgment. Now, on September 24, 2021, the United States Court of Appeals for the Ninth Circuit brought the case back to life. The Ninth Circuit reversed the district court's dismissal of two of his claims: fraud and battery. The 2019 dismissal of Hunt's claims of unjust enrichment, racketeering, breach of contract, and breach of the implied covenant of good faith and fair dealing was affirmed. Still, this serves as a massive breakthrough for Hunt, as the district court will have to re-hear his claims for fraud and battery with new instruction from a higher court. As for the fraud claim, the Ninth Circuit held that Dana White's statement promising that Lesnar "will be the most tested athlete on this card" could form a basis for fraud as it was a false representation of material fact. While the district court felt that any damages arising out of fraud were too speculative (projecting Hunt's purse had he won and Lesnar not taken PEDs), the Ninth Circuit took a different route. The court envisioned damages through a different lens than wins and losses: withdrawal. Had Hunt known of the doping scheme, he claims he would have dropped out of UFC 200. With that, damages become a bit easier to discern, according to the court. This theory of damages is "far more susceptible to proof." As for Hunt's other revived claim, battery, the court hashed out the doctrine of assumption of the risk in sport. A battery is an intentional and offensive touching of a person who has not consented to the touching. Did Brock Lesnar commit a battery by fighting Mark Hunt in the octagon? Would the UFC be vicariously liable? The Restatement identifies assumption of risk as "[c]onsent to conduct that is merely negligent, creating an unreasonable risk of harm." In the NFL, for example, a running back cannot claim that a linebacker committed a battery after a routine tackle caused an injury. Athletes assume the inherent risks of the game. But did Mark Hunt assume the risk that he would have to fight someone taking performance-enhancing drugs? It's a question I look forward to the U.S. District Court in Nevada answering. The Ninth Circuit also reversed the dismissal of Hunt's civil conspiracy claim, as it is predicated on the fraud and battery claims. Conduct Detrimental will keep tabs on this lawsuit as it makes its way back to the district court on remand. It has been a busy year for the UFC and litigation. UPDATE: Mark Hunt caught wind of this article and posted the following on Instagram: The caption reads: "This was never about money 💴 and it never ever will be, if it was I would have made different decisions leading to this point. This was about a fair and even playing field for ALL fighters. Dana White, Lorenzo Fertita, Frank Fertita @ufc never ever gave me and many other fighters an even playing field to compete. The battle is back on and at least some justice has been served. UFC fighters are still fighting for peanuts 🥜 16 percent (shared) is nothing considering you are putting your life in the hands of another when you enter the octogon. A UFC belt should hold prestige but it’s worthless when fighters are cheating and it takes away the integrity of the sport. What do you think people??? I love seeing your thoughts 💭 good or bad 😎" Jason Morrin is a third-year law student at Hofstra Law School in New York. He is the President of Hofstra’s Sports and Entertainment Law Society. Additionally, he is a Law Clerk at Geragos & Geragos. He can be found on Twitter @Jason_Morrin.

When NIL came into effect, many people predicted there would be a plethora of “unintended consequences'' in the college athletics landscape as a result. While many agree that student athletes should’ve been allowed to profit off their name, image, and likeness long ago, there are a wide range of opinions on how NIL deals should be handled. Over the history of college athletics, we’ve seen schools like SMU, Miami, USC, and many others get busted for illicit payments to student athletes. Even today, you would be naive to think that high profile recruits don’t receive any benefits for attending a particular school. However, with NIL, some of these previously “under the table” payments can be made more overtly to the public eye. Some businesses have even gone as far as offering every single member of the roster a NIL deal. With the proliferation of these deals around the country, student athletes are obviously interested in where they can go to secure the biggest NIL deal. Alongside NIL, another recent development in the college athletics landscape has been the Transfer Portal. Previously, all football, men’s and women’s basketball, men’s ice hockey, and baseball players had to sit out a season if they transferred from their previous institution to another. However, this past Spring, The NCAA Board of Directors ratified a one-time transfer legislation allowing these athletes immediate eligibility. As a result, the combination of NIL and the one-time transfer rule makes life even more difficult for college coaches trying to manage their roster. One coach made that clear in a message last week. Sometimes, people criticize coaches for mincing their words and not expressing their real feelings towards a particular subject. However, longtime TCU head coach Gary Patterson didn’t fall into that characterization in a recent “NIL Open House” hosted by TCU. In his message, he encouraged local business leaders and TCU supporters to embrace the NIL era in college athletics. Patterson implied that if his players don’t receive sufficient NIL offers, they are likely to utilize the one-time transfer rule to find a school where they could cash in on deals. “We’re going to have to be up and running for my group by the end of November,” Patterson said, “or I have a chance to lose 25, 30 guys. That’s as plain and simple as I can speak of it.” Since July 1st, (when NIL came into effect) most coaches have skirted around questions about NIL and have stuck to talking about football, but Patterson’s honesty is refreshing because it’s the truth. At the end of the day, student athletes, just like any of us, will go where the most money is. Whether it’s a high-profile high school recruit or an established player already on a college roster, everyone will always be looking for a situation in which they’ll be better off. The fact of the matter is that if a school is unable to present their student athletes significant NIL offers, they will likely look to go somewhere that does. This new reality in college athletics is going to make a coach’s job to manage their roster extremely difficult. Even a coach as good as Gary Patterson can be undermined by a lack of support from local businesses. These days, coaches are often lauded and judged on how they develop their players’ talent. Patterson, along with Iowa State’s Matt Campbell and Northwestern’s Pat Fitzgerald are extolled for competing for conference titles with inferior talent in comparison to their peers. However, as important as development is, it’s extremely difficult to compete at the highest level consistently without an abundance of 4- and 5-star players on the roster. The ability to win relies just as much (if not more) on the ability to bring in talent than talent development and in game coaching. The correlation between annual recruiting rankings and on field success is obviously strong. A coach can have the best game plan and scheme for a particular opponent, but if the other team has better players, the game plan will often fall short. With NIL playing a huge part in the recruiting process now, I think coaches see it as a variable outside of their control that will have a huge impact on their ability to win. Their ability to set a culture, develop players, and effectively plan for games is still definitely important, but it might not be enough in today’s landscape. If a coach doesn’t have the support of local businesses willing to offer his or her players with NIL deals comparable to their competition, their on-field success will likely be negatively impacted. Along with the other traits we associate with good coaches, developing relationships with local business leaders might be just as important in the NIL era.

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.