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/.

The NHL investigation surrounding Evander Kane's gambling has been closed, but new allegations by his ex-wife Anna Kane concerning abuse have not put the left winger out of the woods. A quick recap for everyone who has not been following the story. At the end of July, Kane and Anna went through a messy public divorce which led to Anna making serious allegations against Kane. The allegations accused Kane of gambling on and throwing his own games to win money. The NHL, as well as the Sharks, promised that these accusations would be investigated. Following these accusations, a federal bankruptcy judge allowed discovery to proceed in a lawsuit against Kane. The lawsuit was from 2018 and was brought by Hope Parker. Parker alleges that Kane backed out on a promise to pay her at least $2 million dollars if she aborted their pregnancy.[1] Kane also claimed that Anna physically assaulted him and was granted a temporary restraining order. The NHL has completed its investigation concerning the allegations that Kane was gambling and throwing his own games to win money. The investigation was conducted by Patterson Belknap Webb & Tyler LLP, along with NHL Security.[2] In a statement by the NHL the league stated that the investigation uncovered no evidence to confirm Annas accusations that Kane bet or participated in gambling on NHL games. Additionally, there was no evidence to corroborate the allegations that Kane threw games or did not put forth his best efforts with the Sharks.[3] In regard to these accusation, the NHL considers this matter closed but will investigate any other new information pertaining to the gambling accusations. While Kane has been cleared over the gambling allegations, new allegations from his ex-wife Anna have emerged as well as allegations of violating NHL Covid protocol. Currently there are limited details about Kane violating NHL COVID protocols. The NHL and NHLPA have released health and safety protocols for the 2021-22 season.[4] As part of her divorce case in Santa Clara County, California, Anna filed a domestic violence restraining order. In the order Anna, alleged sexual assault and multiple instances of domestic violence.[5] The NHL is aware of the new allegations and is thoroughly investigating the matter at this time. The San Jose Sharks released a statement and said that Kane and the team have agreed that will he not be participating in Sharks 2021 Training Camp until further notice.[6] Among the allegations in the filing, Anna claimed that Kane forced her to engage in sexual intercourse in March 2019 after a funeral for their daughter who was born premature.[7] Anna also wrote that after going out with others players’ wives before a 2019 Sharks playoff game in Las Vegas, Evander smelled alcohol on her breath and verbally and physically assaulted her.[8] Other allegations include Kane violently choking Anna while visiting his mother in Vancouver, the filing included pictures of bruises from the alleged incident.[9] Evander Kane’s lawyer, Travis Krepelka, has responded to the allegations saying; “Evander denies ever abusing Ms. Kane or their daughter Kensington, whom he cherishes.”[10] It is unclear if Anna will press sexual assault charges against Kane. However, prosecutors do have the option to pursue charges even without Anna’s cooperation. Additionally, California no longer has any statute of limitations for felony sex offenses which means Kane could be prosecuted any time in the future if there is sufficient evidence of a crime. At this time, it is uncertain when the NHL’s new investigation will conclude and when Kane will be allowed back on the ice. Jessica Shaw is the Secretary of the New York Law School Sports Law Society. She can be reached on Twitter @JessicaShaw22. [1] Kaplan, Daniel. “Judge Rules Sharks' Evander KANE Must Face Discovery in Abortion-for-Pay Lawsuit.” The Athletic, Aug. 24, 2021, theathletic.com/news/judge-rules-sharks-evander-kane-must-face-discovery-in-abortion-for-pay-lawsuit/6eUxPR75fBSZ. [2] Kaplan, Emily. No evidence found that San Jose Sharks forward Evander Kane bet on NHL games; League considers this 'specific matter closed'. ESPN. https://www.espn.com/nhl/story/_/id/32260083/no-evidence-found-san-jose-sharks-forward-evander-kane-bet-nhl-games-league-considers-specific-matter-closed. [3] Id. [4] https://media.nhl.com/site/asset/public/ext/2021-22/2021-22COVIDProtocol.pdf [5] Perez, A. J. Sharks star Evander Kane facing a new set of allegations. Front Office Sports., from https://frontofficesports.com/sharks-star-evander-kane-facing-a-new-set-of-allegations/. [6] Id. [7] Pashelka, C. & Salonga, R. Evander Kane's wife Anna alleges physical, sexual abuse in restraining order filing. The Mercury News. https://www.mercurynews.com/2021/09/22/evander-kanes-wife-anna-alleges-physical-sexual-abuse-in-reported-filing-for-restraining-order/. [8] Id. [9] Id. [10] Id.

BY: RJ CURINGTON Student-athletes across all collegiate sports have signed name, image, and likeness (“NIL”) agreements with businesses. From major national corporations to local shops, all kinds of businesses are seeing the benefit of student-athletes promoting their brands. To follow on the collection of NIL considerations, this informative article outlines the types of deals made, and guides student-athletes and businesses on important terms in a NIL contract. The two common deals, besides individual endorsement deals, are college-wide deals and team-specific deals. College-wide deals are those in which an institution enters into a collective licensing agreement with a company that is available to almost every varsity student-athlete.[i] Each student-athlete can elect to participate, regardless of team or sport. This type of collective licensing agreement enables student-athletes to benefit financially from their NIL through opportunities like jersey sales, merchandise, and unique engagements while using the institution’s trademarked logo.[ii] Similarly, team-specific deals are those in which a business makes a general offer to a specific team of an institution such that any student-athlete on that team can elect to participate by signing a NIL deal directly with the company.[iii] Below lists a few key contract provisions businesses, universities, student-athletes, and representatives should consider before signing a NIL deal of any type: Location Student-athletes and businesses should look to the policies of the state where the student-athlete is attending school for the applicable NIL laws and standards.[iv] Agents, Attorneys, and Accountants Businesses should be aware of student-athletes representation when negotiating deals, but also recognize any representation is strictly limited to procuring and negotiating market opportunities during the student-athletes eligibility.[v] It is important to note that institutions are prohibited from being involved in the specifics of their student-athletes NIL actions. Consideration In every contract, the student-athlete must provide some deliverable to the endorsing business and the student-athlete must receive some benefit from the endorsing business.[vi] All that is needed is an exchange, courts typically do not evaluate the value of what is provided or received.[vii] Pay-for-Play Limitations Any endorsement deal must compensate a student-athlete only for the use of his or her NIL rights. Student-athletes and businesses must avoid compensation that is contingent on enrollment at a particular university or specific athletic performance or achievement. Payment details should always be explicitly stated in the contract.[viii] Also, student-athletes need to know when they’re getting paid, how much they’re getting paid, and how they will be getting paid. Usage Rights Clauses Setting a specific period that defines the length and limitations of a sponsoring company’s use of a student-athlete’s NIL rights for products or materials is an equitable arrangement for both parties.[ix] Exclusivity Clauses Businesses usually want exclusivity, which prevents an athlete from signing deals with competing brands.[x] If additional value is provided, student-athletes can consider aligning their NIL rights exclusively with certain products and brands. However, any exclusivity rights must be clearly defined and understood by both parties. Additionally, any exclusivity clause must contain language that permits a student-athlete to wear a competing brand when mandated at a competition or event.[xi] Businesses that create conflicts with a university’s exclusive partnerships are prohibited while participating in their sport (think Reebok sponsoring a student-athlete whose university wears Jordan equipment). Force Majeure Clauses Unforeseeable circumstances can prevent student-athletes and businesses from fulfilling a contract. A force majeure clause excuses contract performance when some “act of God” or extraordinary event occurs.[xii] Given student-athletes’ youth and unpredictable schedules, broader flexibility may be necessary to require performance while limiting harsh penalties for individuals who are still in college.[xiii] Morals Clauses Student-athletes and businesses will want to avoid association with individuals who engage in illegal, immoral, or unethical conduct. To protect their reputation student-athletes and companies can include a clause that permits termination of the endorsement deal if the other party is involved in such behaviors.[xiv] Intellectual Property (“IP”) Student-athletes and businesses must obtain consent to use the trademarks of their institution and other brands in all marketed materials.[xv] The third-party that created any media must also consent to its use in any endorsement. It is critical to specify which party is responsible for obtaining this IP clearance, and what happens if the other party is sued for contributory infringement.[xvi] Disclosure Regardless of state laws and university policies, student-athletes should clear every potential endorsement deal with their university’s athletic department. Paying close attention to detail in contract drafting and negotiation is important in protecting student-athletes, businesses, and institutions from avoidable litigation. RJ Curington, J.D., M.S. graduated from DePaul University College of Law. He can be followed on Instagram/ Twitter: @realrjcurington and Linkedin at RJ Curington. [i] Knight, Jeff and Butcher, Erin E., “College-wide and team-specific NIL deals: Considerations for colleges and universities to avoid unwanted consequences,” https://www.bricker.com/insights-resources/publications/college-wide-and-team-specific-nil-deals-considerations-for-colleges-and-universities-to-avoid-unwanted-consequences (September 21, 2021) [ii] Id. [iii] Id. [iv] Burridge, Alexander, “Contract Basics for Every Student-Athlete NIL Deal,” https://www.jdsupra.com/legalnews/contract-basics-for-every-student-3793825/ (August 18, 2021) [v] Id. [vi] Id. [vii] Id. [viii] Gambino, Jessica, “How To Approach An Athlete For An NIL Deal,” https://sweetrosestudios.com/2021/09/approach-an-athlete-for-deal/ (September 7, 2021) [ix] Burridge, Alexander, “Contract Basics for Every Student-Athlete NIL Deal,” https://www.jdsupra.com/legalnews/contract-basics-for-every-student-3793825/ (August 18, 2021) [x] https://nameimagelikeness.com [xi] Burridge, Alexander, “Contract Basics for Every Student-Athlete NIL Deal,” https://www.jdsupra.com/legalnews/contract-basics-for-every-student-3793825/ (August 18, 2021) [xii] Id. [xiii] Id. [xiv] Id. [xv] Id. [xvi] Id.

A report surfaced recently that Seahawks Safety Jamal Adams would have filed a grievance alleging that he is a Linebacker if the Seahawks franchise tagged him. Adams eventually agreed to an extension with the Seahawks but the report shined a light on a very interesting question – is the franchise tag system equipped to handle how football evolves over time? The Basics: The franchise tag was a product of negotiation for the new Collective Bargaining Agreement in 1993. Under the current CBA, each team is allowed to designate one player who is about to enter free agency as their franchise player. That player is essentially no longer an unrestricted free agent, on a one year fully guaranteed contract, with the salary amount set by the averaging the top five salaries by position for the previous league year, or if it’s higher, 120 percent of a player’s salary the previous season Where Conflicts Arise: There are two key components of the current franchise tag system that, as currently constructed, create opportunity for positional designation conflicts to arise – (1) the list of positions and (2) the standard for defining what position a player is. The positional designations for both the Franchise Tag and Fifth-Year Option are as follows: Quarterback, Running Back, Wide Receiver, Tight End, Offensive Line, Defensive End, Interior Defensive Line, Linebacker, Cornerback, Safety, and Kicker/Punter. The standard for which position players are assigned a position for purposes of both the Franchise Tag and the Fifth-Year Option is the same – the position at which they participated in the most plays during the season prior to the designation. Since at least 2008, grievances have been filed by the NFLPA on behalf of franchise tagged players who believe they should be designated as playing a different position. Those disputes have fallen into three categories thus far – Tight End or Wide Receiver, Defensive End or Linebacker, and Defensive Tackle or Defensive End. The only grievance known to have gone to the decision of an arbitrator was New Orleans Saints TE Jimmy Graham in 2014. That arbitrator determined that a player is a Tight End when lined up within four yards of the offensive line, and that the arbitrator can weigh evidence such as how the player is referred to on social media or the team’s website as a factor in determining a player’s position. More recently, most disputes over a player being a Defensive End or Linebacker have resulted in the two sides settling on the midpoint of the two franchise tag salaries for the one season. Jamal Adams’ situation raises a very interesting point though – is there a limit to the extent of what positions could be involved in a franchise tag dispute? Football has clearly evolved over time. Consider how far fans’ perspective of the game has come since the classic 1957 Topps football trading card set was released, where players are only listed as three positions – End, Back and Tackle. As sports evolve, so must their governing rules or unnecessary conflict will ensue. To illustrate the point, imagine the NBA instituted a similar franchise player system in 1993. Now, imagine 30 years later trying to define what position Giannis Antetokounmpo, Lebron James or Kevin Durant are for purposes of their salary based on the five traditional positions on a basketball team. As you can guess, that would be so difficult because of how multidimensional players are today and the ways they are used are not easy to put in one specific category. While the NFL and NBA have changed differently over time, it still demonstrates how a professional sports league, and its players union should craft the language of rules tied to salary in ways that allow for the game to evolve without creating procedural conflicts. Where the Current System Can Improve: 1. The definition of “participation” is unclear. Participation is used in multiple different contexts within the CBA. The first way is to determine if someone did or did not make an appearance – such as on an offensive/defensive play or in the team’s facility for an offseason workout. In the context of the Franchise Tag or Fifth-Year Option, “participation” actually assumes the player has appeared on the field. The real question that needs to be answered to determine “participation” for the Franchise Tag or Fifth-Year Option is “what position did the player play once he appeared on the field?” The CBA does not define player positions nor elaborate if participation is viewed from the perspective of a player’s pre-snap alignment (ie., a Defensive End lines up in a three point stance) or his post-snap assignment (a Defensive End rushes the passer). This use of “participation” without a specific definition that differs from where the word is used in a more binary sense in the CBA creates an ambiguity that is the root cause of positional identification grievances. 2. The positions at which players can be identified are not structured consistently. The main issue is that there is no Outside Linebacker designation – which would create a natural compromise between the current Linebacker and Defensive End tags. The designations of Offensive Line, Linebacker, and Kicker/Punter all encompass multiple similar positions, whereas Defensive Linemen and Defensive Backs are separated into the specific position groups within those categories. Fullback and Long Snapper do not have their own designations. Recommended Changes: 1. Break up all group tags into specific positions. The main position needed is Outside Linebacker, which would codify the practice of settling for the difference between Defensive End and Linebacker. Other advisable changes are: (A) split Linebacker into Outside Linebacker and Inside Linebacker, (B) split Offensive Line into Tackle, Guard, and Center, (C) split Running Back into Running Back and Fullback, (D) split Kicker/Punter into Kicker and Punter and (E) add Long Snapper as a position. Benefits for Clubs: Cheaper to Franchise Tag Certain Positions. For example, two guards (Joe Thuney and Brandon Scherff) were Franchise tagged in 2020, but because Tackles make up the highest paid Offensive Lineman, their franchise tender amounts made them the highest paid Guards. If there were a Guard specific tag, those two contracts would have been cheaper for the teams. Inside Linebackers, Centers, and Punters would also become cheaper without making Tackles, Running Backs, or Kickers more expensive. Added Leverage in Contract Negotiations for Certain Positions. In Fullback or Center contract negotiations, it is so unlikely that teams would Franchise Tag those players because they are grouped with much higher paid positions for purposes of the Franchise Tag (Running Backs and Tackles). Additionally, it has never even been a bargaining chip clubs had available in negotiations with Long Snappers. 2. Codify splitting the difference for players logging above 40% participation at two positions. As a player like Jamal Adams illustrates, the game of football will keep changing. Running Back or Wide Receiver, Safety or either Linebacker position, and Safety or Cornerback are among the foreseeable disputes that have yet to be filed in addition to continued disputes between Defensive End or Outside Linebacker. An idea to further avoid litigation is to agree that if a player participates in over 40% of his plays at two different positions that the value of his Franchise Tag tender or Fifth-Year Option will automatically become the average of the two positions. This would greatly benefit players by creating an automatic trigger for a raise if a player meets the criteria and avoid unnecessary legal battles between the league and its players. Edward L. Healy IV is a judicial law clerk to the Honorable Nancy M. Purpura in the Circuit Court for Baltimore County. Healy, a former NFL Management Council intern and member of the Baltimore Ravens 2012 Player Personnel department, is a 2021 graduate of the University of Maryland School of Law. He can be followed on Twitter @ELH_IV.

BY: MICHAEL FASCIALE Can the NCAA successfully argue that the fractured state-by-state approach to name, image, and likeness (NIL) compensation is, under the Dormant Commerce Clause (DCC), unconstitutional?[1] The U.S. Constitution permits the federal government to regulate commerce among the states.[2] The DCC, by contrast, is an implied restriction in the U.S. Constitution that effectively prevents states from passing laws that burden or discriminate against interstate economy.[3] Relying on favorable case precedent and the DCC, the NCAA could argue that the sheer number of intercollegiate schools subjected to inconsistent state laws interferes with a national uniform governance structure and thus unduly impacts or discriminates against interstate commerce (i.e., violates the DCC). The Supreme Court has adopted a two-tier approach in analyzing a DCC challenge.[4] First, if the statute “directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests,” federal courts will strike down the law without further inquiry.[5] Second, where the statute “regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”[6] As to the first prong, the NCAA could argue that this fractured state-by-state approach to NIL compensation puts certain states’ economic interests (those which have NIL legislation) above out-of-states’ economic interests (those which do not have NIL legislation), thus creating a competitive and commercial advantage for certain student-athletes (i.e., is discriminatory in purpose or effect). In response, one could argue that each state NIL law does not discriminate against interstate commerce because each state NIL law does not inject its regulatory scheme into the jurisdiction of other states. For example, as written, California’s NIL statute—like many other state NIL laws—is directed only towards conduct within California and applies to in-state and out-of-state entities alike. In arguing that a patchwork of state NIL laws directly regulates or discriminates against interstate commerce, the NCAA could potentially rely on favorable case precedent like NCAA v. Miller. There, the Nevada state legislature enacted a statute that required the NCAA to provide student-athletes “accused of a rules infraction with certain procedural due process protections during an enforcement proceeding.”[7] The Ninth Circuit held that Nevada statute violated the DCC because it impermissibly regulated interstate commerce.[8] However, the NCAA might have a tough time relying on Miller. The “critical inquiry,” the Ninth Circuit explained, is whether “the practical effect of the regulation is to control conduct beyond the boundaries of the State.”[9] That is precisely what the Nevada law did in Miller—Nevada was telling the NCAA how to conduct a hearing and, in doing so, intruded on an interstate organization. But here, the states with NIL laws are telling the universities within their states how to treat their student-athletes. Hence, they do not require the NCAA to do anything, and each state law is directed towards conduct within each individual state (and treats in-state and out-of-state entities alike). As to the second prong, the NCAA could argue that student-athletes will be incentivized to attend schools in states with NIL laws, effectively steering the greatest future talent toward a handful schools. This competitive advantage, the argument goes, harms the overall intercollegiate athletic landscape because the NCAA’s NIL business model requires uniformity. In response, one could argue that the burdens associated with the patchwork of state NIL laws (i.e., potential recruiting advantages) are small in connection with the purported benefits (i.e., the protection of student-athletes). Importantly, the majority of student-athletes who attend schools in states with NIL statutes will not profit extensively by marketing their NIL; rather, the minority of student-athletes will negotiate meaningful and money-making endorsement deals. Thus, the burdens associated with the patchwork of state NIL laws would not be “clearly excessive” in relation to the state’s legitimate interest in protecting student-athletes. In sum, the NCAA will face an uphill battle in court if it pursues the “state NIL laws violate the DCC” argument. Note that the DCC only applies where Congress has not explicitly authorized the states to pass laws of this type—in other words, Congress can override the DCC’s limits. Until Congress acts, however, it remains to be seen whether the conflicting state laws violate the DCC. Michael Fasciale is a third-year law student at Seton Hall University School of Law in Newark, New Jersey. He is the President of Seton Hall’s Entertainment & Sports Law Society. He can be reached on LinkedIn @Michael-Fasciale. [1] The NCAA has publicly stated that it believes that the state-by-state approach to NIL compensation is unconstitutional. See NCAA Responds to California Senate Bill 206, Nat’l Collegiate Athletic Ass’n (Sep. 11, 2019), https://www.ncaa.org/about/resources/media-center/news/ncaa-responds-california-senate-bill-206. [2] U.S. Const., Art. 1, s. 8, cl. 3. [3] See Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 337–38 (2008) (stating that the “the [D]ormant Commerce Clause is driven by concern about ‘economic protectionism’—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors”). [4] See Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986); see also Bowers v. NCAA, 151 F. Supp. 2d 526, 537 (D.N.J. 2001). [5] Id. (emphasis added). This, of course, is subject to the Virtual Per Se Rule of Invalidity, which leaves open the possibility that some such laws might still pass constitutional muster. See, e.g., Maine v. Taylor, 477 U.S. 131, 148–52 (1986) (validating a law that banned the importation of out of state fish because the state had a legitimate purpose of protecting its waters from invasive/non-native species of fish and the court found no other non-discriminatory means for achieving that interest). [6] See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). [7] NCAA v. Miller, 10 F.3d 633, 637 (9th. Cir. 1993). [8] Miller, 10 F.3d at 640. [9] Id. at 639 (citing Healy v. Beer Inst., 491 U.S. 324, 336 (1989)).