BY: SCOTT DECAPUA There probably isn’t another player who is in more of a pole position to cash out this offseason than Corbin Burnes. Burnes was a catalyst in Milwaukee’s 95 win and playoff bound season -- not only did he just have his best individual season, but he was THE most dominant in the league at his respective position. Both his individual and team success this season came at a great time as he is first-year arbitration eligible this offseason, meaning he and the Milwaukee Brewers will revisit his current salary of $608,000. If they cannot strike an agreement for the 2022 season, they will head to a hearing where an arbitrator will decide which salary to award the player. While there are no specifics per the MLB CBA for arbitration, the following are typically considered in arbitration proceedings: · Player’s performance in their “Platform Year” (or PY) in the year immediately prior to arbitration · Player’s performance in the two seasons preceding Platform Year, or PY-1 or PY-2 · Recent salaries of players of similar position and production value · Contribution to team success · Individual accolades A rare combination of a power pitcher with fall-off-the-table off-speed, Burnes is the type of bull you want throwing deep into games. Even after the crackdown on spidertack his stuff remained virtually untouchable -- while his spin rate did go down (like almost every other pitcher in the league) his status among the elite persisted. He was the most dominant pitcher over the entire breadth of the season, and thus is a likely frontrunner for NL MVP and NL Cy Young. In his prior years, he found a mixed bag of results. He did not find the same success in his PY-2 in 2019, but in PY-1 he was more in line with the ace he has become. In the 60 game 2020 MLB season, he posted an ERA of 2.11 with a career high SO9 rate of 13.3.[1] Burnes’ agent probably will argue that he is worthy of a significant salary increase due to his presumed candidacy for NL MVP and NL Cy Young, and his NL All Star appearance in his PY. His eye-popping statistics from his PY are also worth noting -- his 11-5 record, an ML best 2.43 ERA, ML second-best WHIP of 0.940, and ML fifth highest SOs.[2] For all of you sabermetric people, Expected Weighted On-base Average (xwOBA) is formulated using exit velocity, launch angle and, on certain types of batted balls, sprint speed. xwOBA is distinct from wOBA because it removes defenses from the equation, while still measuring an offensive contribution. The formula for xwOBA is: xwOBA = (xwOBAcon + wBB x (BB-IBB) + wHBP x HBP)/(AB + BB — IBB + SF + HBP) In short, Burnes’ xwOBA during his 2021 season is .218 after 657 PAs, which is the third best in the league behind Jacob DeGrom and Liam Hendricks (a closer).[3] DeGrom faced less than half of Burnes’ PAs this season, and the next best xwOBA of a similar sample size to Burnes is Lance Lynn’s xwOBA of .248 after 641 PAs.[4] Burnes’ agent would argue that Burnes was the most effective pitcher in the league, while supplementing that with being a key piece in their run into October as he was the ace of their 95-win team. There really is no comparison to any other player this season; all signs point towards Burnes smashing first-year eligible arbitration records. Burnes’ 2021 PY trumps Dallas Keuchel’s 2015 PY, where Keuchel was the AL Cy Young winner and was thus awarded $7.25 million in his first year of arbitration eligibility. Keuchel currently holds the record for first-year arbitration eligible pitchers and is probably the best floor for Burnes.[5] Burnes PY has the clear advantage over Keuchel’s PY in ERA (2.43 to 2.48), WHIP (0.940 to 1.017), SOs (234 to 216), H9 (6.6 to 7.2), HR9 (0.4 to 0.7), and BB9 (1.8 to 2.0), all by a significant margin. Burnes could very well break Keuchel’s first-year arbitration record among pitchers. Somewhat less likely though, we could even see Burnes break the record for all first-year arbitration eligible players, set by Cody Bellinger after his 2019 NL MVP season in his PY for his awarded $11.5 million salary.[6] It’s tough to gage the apples-to-oranges comparison between a pitcher and a position player, but if Burnes’ name is in the conversation for NL MVP, you can be assured that his contributions towards his team make his case strong in breaking the record for all first-year arbitration eligible players as well. Can Milwaukee pay out? They have the $102 million in payroll space, so its likely that they can.[7] In spite of the organization’s recent valuation of $1.37 billion, before the investment from Giannis Antetokounmpo, they might be a bit reluctant to dish out pricey commitments after agreeing to a monster contract with Christian Yelich.[8] They will be paying him until 2042 when he is 50 years old for a total of $215 million…[9] Corbin Burnes’ expected arbitration value is presumed to surpass Keuchel’s $7.25 million record for first-year arbitration eligible pitchers, but don’t be shocked if it also eclipses Bellinger’s $11.5 million record for all first-year arbitration eligible players. Scott DeCapua is a 2L at Western New England University, School of Law. Sources: [1] https://www.baseball-reference.com/players/b/burneco01.shtml [2] Id. [3] https://baseballsavant.mlb.com/leaderboard/expected_statistics?type=pitcher&year=2021&position=&team=&min=q [4] Id. [5] https://www.mlb.com/news/2021-mlb-salary-arbitration-outlook [6] Id. [7] https://www.spotrac.com/mlb/milwaukee-brewers/payroll/ [8] https://www.sportico.com/personalities/athletes/2021/giannis-antetokounmpo-buys-milwaukee-brewers-stake-nba-title-1234637555/ [9] https://www.chicagotribune.com/sports/breaking/ct-christian-yelich-contract-milwaukee-brewers-20200309-ld66yh7kmrdmtfxqksdpujwc4m-story.html

BY: EMILY COSTANZO When college sports fans turn our calendars to March, there is typically one thing on our minds—March Madness. We think about where our favorite teams will land after Selection Sunday, or our odds of creating a perfect bracket, or, in the words of the late Al McGuire, about the overall excitement that surrounds the “Big Dance.” Up until the NCAA’s recent decision, however, this iconic March moniker was reserved for one group of collegiate basketball players and one group only—the men. Despite the fact that the NCAA’s trademark registrations afforded them the ability to use the “March Madness” brand for both sides of the tournament, the governing body of collegiate athletics chose to use it solely for the men.[1] This trend ended last week, largely in part due to the NCAA’s wise—and long overdue—decision to bring in Kaplan Hecker & Fink LLP to develop a gender equity report focused specifically on the two NCAA collegiate basketball tournaments. As a part of their analysis, the firm conducted “listening sessions” with participants including, but not limited to, current and former student-athletes, coaches, athletic directors, senior woman administrators, college/university chancellors and presidents, conference commissioners, and NCAA staff, committee, and board members.[2] The findings were disheartening. The firm determined that the NCAA “has not lived up to its stated commitment to diversity, inclusion and gender equity among its student-athletes, coaches and administrators.”[3] One action step the NCAA is taking as a result? The women’s tournament will now also don the “March Madness” slogan, but with slight alterations from that used for the men’s tournament. The most notable distinction between logos will be the subtle orange accents used in the women’s brand, a powerful nod to the now-famous orange WNBA hoodies.[4] The thorough report held nothing back as it delved into the specific figures of the men’s tournament versus that of their female counterparts. According to the document, the NCAA has a longstanding contract with CBS/Turner for the media rights to the men’s tournament, while they sold the broadcast rights for the women’s tournament to ESPN.[5] The CBS/Turner contract is worth $850 million; the women’s contract was sold for $34 million.[6] The report further criticized the NCAA’s treatment of its male versus female student-athletes in saying that its structure and systems “are designed to maximize the value of and support to the Division I Men’s Basketball Championship as the primary source of funding for the NCAA and its membership.”[7] Despite the currently vast discrepancy, experts believe that the women’s tournament has an earning potential between $81 million and $112 million by 2025.[8] After the 2021 NCAA Women’s Basketball Tournament, this disappointing assessment is far from surprising. After multiple tournament attendees shared a series of now infamous photos which highlighted the stark inequities between the amenities provided to the men’s versus the women’s Final Four teams, the NCAA could no longer turn a blind eye. Fortunately, multiple coaches stood behind their athletes as they spoke out against the subpar accommodations, including Stanford’s Tara VanDerveer, UConn’s Geno Auriemma, and Oregon’s Kelly Graves. “I guess [Kaplan] just put out there what we already know. The food options, the hotels you stay in, the weight room facilities, the gift bags…I mean, come on. I can’t believe we’re still having to see disparities in those areas,” Graves stated.[9] In a time where many within the world of collegiate sport are standing up against gender inequities seen in and out of their respective competitive arenas, many more are still left to wonder—does the change stop here? Luckily, the Kaplan report offered multiple solutions extending far beyond the extension of the March Madness slogan which suggest that the fight for change is far from over. Among other game plans (no pun intended), the firm suggested that both Final Fours are held at the same site, that the men’s and women’s basketball and oversight committees conduct regular joint meetings, and that the NCAA offer financial incentives to institutions to improve their women’s programs. The overwhelming response to this report demonstrates that the fight for gender equity in sport will not stop at a simple rebranding of March Madness. In fact, Kaplan has already announced that they will conduct a “Phase II” of this assessment, wherein the firm will examine gender equity in NCAA championships in sports other than basketball. We may be at the bottom of the mountain, but at least we have begun the climb. [1] https://www.wsj.com/articles/ncaa-tournament-march-madness-basketball-11632925775 [2] https://ncaagenderequityreview.com/gender-equity-review-phases/ [3] https://www.espn.com/college-sports/story/_/id/31951330/long-awaited-ncaa-gender-equity-review-recommends-combined-final-four-mens-women-basketball-same-site [4] https://www.wsj.com/articles/ncaa-tournament-march-madness-basketball-11632925775 [5] Id. [6] Id. [7] https://www.espn.com/college-sports/story/_/id/31951330/long-awaited-ncaa-gender-equity-review-recommends-combined-final-four-mens-women-basketball-same-site [8] Id. [9] https://www.espn.com/womens-college-basketball/story/_/id/31952609/women-college-basketball-coaches-hopeful-kaplan-gender-equity-review-instigates-change

As reported by the New York Post two nights ago, New York Jets Star Safety Marcus Maye was charged with DUI after alleged car crash. Mr. Maye allegedly was driving a black Mercedes GLE43 SUV when he allegedly hit a Volvo XC60. Florida Highway Patrol (“FHP”) observed damage to the front right of the Mercedes and damage to the left rear of the black Volvo XC60. According to the police report, the Trooper observed a black male with glasses who seemed unware of what was occurring. The Trooper approached the vehicle and saw that there was vomit on the driver’s side door and on the floor itself. The Trooper immediately smelled the odor of an alcoholic beverage coming from his mouth. The driver had glossy/bloodshot eyes and slurred/slow speech. The driver was also unable to locate his driver’s license. When Mr. Maye got out of the vehicle, he was slow to walk and had a sway in his balance. Mr. Maye was allegedly asked to performed Field Sobriety Exercises which he refused. Mr. Maye was then arrested and charged with DUI by FHP. Mr. Maye refused to provide a breath sample. The police report noted that there is a video of this incident. I have watched many FHP DUI dash cams videos during my time as a prosecutor. The video will very likely show the interaction with Mr. Maye and the Trooper as well as Mr. Maye sitting in the backseat of the patrol car subsequent his arrest. Additionally, the presence of vomit is the most damning piece of evidence against Mr. Maye in his DUI case. Every potential jury member knows what that means and he would have an uphill battle to prove he wasn’t impaired at the time of driving. I once watched a video where the driver vomited on camera while speaking to law enforcement. Needless to say, it didn’t go to trial. Subsequent his arrest, he was charged via information with three separate counts: Driving under the Influence, Driving under the Influence with Property Damage or Injury, and Leaving the Scene of a Crash with Property Damage. The regular DUI and the Leaving the Scene of the Crash with Property Damage are both 2nd degree misdemeanors in the State of Florida. Usually they are only punishable by up to 60 days in the county jail but DUI is a hybrid offense where it can be punished by up to 6 months in the county jail. The DUI with Property Damage Charge is a first-degree misdemeanor punishable by up to 11 months and 29 days in the County Jail. There is some good news for Mr. Maye. The DUI and the DUI with Property Damage or Injury arise out of the same transaction or occurrence and as such, Mr. Maye cannot be convicted of both offenses. The Broward County State Attorney’s Office should have just filed the DUI with Property Damage or Injury. At trial, the DUI would be a lesser-included offense anyways of DUI with Property Damage. Thus, filing both DUI charges was unnecessary. However, that is where the good news ends for Mr. Maye. Also stated in the article was that Mr. Maye is being sued by the driver of the vehicle he allegedly hit in excess of $30,000. The reason damages sought are in excess of $30,000 is because the Plaintiff’s attorney wants to ensure this case ends up in Florida Circuit Court as that amount is the minimum amount for the case to be heard in Circuit Court. As stated in Plaintiff’s Complaint, “That as a direct and proximate result of the negligent operation of the aforementioned vehicle by the Defendant (Marcus Maye), as aforesaid, the Plaintiff, was seriously and severely injured, in among other areas, the neck and back.” If Plaintiff truly is seriously and severely injured, that could be a huge problem for Mr. Maye. That is because the Leaving the Scene charge and DUI with Property Damage could both be elevated to felonies. Thus, if the Plaintiff was injured and Mr. Maye knew or should have known the crash would cause injury, Mr. Maye could be charged with Leaving the Scene of a Crash with Injury. That charge is a 3rd degree felony and punishable by up to 5 years in prison. The same is true for the DUI charge. If the Plaintiff’s injuries are much worse than initially thought, the State could up the charges to DUI with Serious Bodily Injury. That is a 2nd degree felony punishable by up to fifteen years in the Department of Correction. Actual knowledge of injury is immaterial for this charge. If he were charged and convicted of either, it would be nearly impossible for him to escape a jail cell. Mr. Maye better hope that the alleged victim’s injuries aren’t as severe as the victim in the case involving Andy Reid’s son because if they are, not getting a mega contract will be the least of his worries. Matthew F. Tympanick is an Attorney in Sarasota, Florida. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and as a Staff Editor on the UMass Law Review. He was previously a felony prosecutor in Sarasota, Florida. In over three years as a prosecutor, he prosecuted thousands of domestic violence cases and driving under the influence offenses. You can follow him on Twitter @Tympanick20.

Today, Sebastian Telfair's conviction for criminal possession of a weapon in the second degree was affirmed by the NY Appellate Division, Second Department. Telfair was originally arrested in 2017. According to court documents, after a search of his vehicle in the early morning hours of June 11, 2017, police recovered numerous items, including luggage, clothing, sneakers, jewelry, various bags, two small bags of marijuana, and cash. The officers also found a loaded 45-caliber gun in the center console of the truck, and three additional handguns and ammunition in the flatbed area. Telfair was charged with various crimes related to weapons and ammunition possession, as well as certain vehicle and traffic violations. After trial, the jury convicted Telfair of one count of criminal possession of a weapon in the second degree in connection with the .45 caliber gun recovered from the center console of the truck. At issue on appeal was whether the prosecution was permitted to introduce evidence of prior firearm possession to prove that Telfair knowingly possessed firearms when he was arrested on June 11, 2017. The defense unsuccessfully argued that the evidence was too remote and that its probative value was outweighed by the potential for prejudice to Telfair. Telfair's 3.5 year sentence, first issued by NY Supreme Court, Kings County in 2019, is now affirmed. Earlier this year, Telfair's sister pled guilty to threatening his wife after his wife testified against Sebastian in court. 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.

BY: XANDER LANDY Are you ready for some football? For the last 20 plus years, DirecTV has been the exclusive provider of non-regional NFL games on Sundays. In order to watch those games, you must watch through DirecTV. Until now, or more specifically, in a couple years it will not be that way. The 27-year-old deal expires after the 2022-2023 season. Amazon is the front runner to acquire rights to NFL Sunday Ticket according to a CNBC report. The expected cost is somewhere around $2.5 billion per year. One reason for the change I personally think is that more and more younger people are cutting the cord. People are moving over to streaming games and other entertainment, rather than having a cable subscription. (Personally, I only have cable to watch live sports). While DirecTV allows streaming without a subscription, Amazon has a bigger streaming market. Roger Goodell echoed something similar, telling CNBC that the package may be “more attractive on a digital platform”. The Sunday Ticket provides a different problem for any buyer. Not only is it enormously expensive. There is current litigation on whether the package is in violation of the Sherman Act. The Sherman Act was created to break-up monopolies. It states that the there cannot be a concerted action to unreasonably restrain trade. That is the claim that customers have against the NFL and the 32 teams. The allegation is that the NFL’s 32 teams are colluding with each other instead of allowing members to sell competing streams. Part of this case is now going to arbitration, but there is a trial with a target for 2024. One of the most important aspects of an antitrust is defining the product. The customers are going to want to make the product defined as narrow as possible, non-regional NFL games. The NFL will try to define the product as broad as possible, entertainment across the globe. The reason for each side to define it as narrow or as broad as possible is to show market control, or lack thereof. If the product is defined as entertainment, then the NFL does not have control on the market, at least not the requisite control needed to be a monopoly. This definition is usually left up to the trier of fact. The next step for the plaintiffs is to prove anti-competitive effects. Because DirecTV is currently the only provider of NFL Sunday Ticket, and assuming there are no substitutes, then DirecTV is engaging in price fixing because they are subjective due to a lack of competition. Along with price fixing, reduced output is also anti-competitive. There is a restriction of output because there is no other way to watch the games. Xfinity cannot stream the games; Comcast cannot stream them. It is only through DirecTV. There appears enough to be a case against the NFL and the NFL Sunday Ticket Package. Amazon and others interested in the Sunday Ticket Package should be very wary of purchasing it. The deal could be worth significantly less if the exclusivity rights are deemed anti-competitive and in violation of the Sherman Act. This is just a brief introduction into antitrust. There are much more complications that go into antitrust cases. But in antitrust cases, violations can be costly. Damages are trebled. Something the future purchaser must keep in mind. Xander Landy is an Associate Attorney at Knight Hoppe, Kurnik, & Knight, he graduated as part of the Marquette Law School Class of 2021. He can be found on Twitter at @zoolandy.

BY: DAN WALLACH AND STEPHANIE WEISSENBURGER Conduct Detrimental has obtained copies of pertinent court documents filed in relation to Dallas Cowboys starter La’el Collins’ lawsuit against the NFL. Collins is seeking to block the rest of his NFL suspension with a temporary restraining order and permanent injunction. While the lawsuit was initially filed in Texas state court, the NFL and Roger Goodell opted to remove the lawsuit to federal court and now may be regretting that decision. In a crazy turn of events, La’el Collins’ federal court case has been assigned to the Honorable Amos Mazzant III -- the same federal judge who granted Ezekiel Elliott a preliminary injunction blocking the NFL from suspending him in 2017 (before the case got transferred to New York). In his 2017 #Zeke ruling, Judge Mazzant recognized "fundamental fairness" as a ground for vacating a labor arbitration award. With Judge Mazzant officially assigned to the case, it is almost definite that Collins’ legal team will not be seeking a remand to state court. A copy of the Notice of Removal is below. So, how did we get to this point? On January 6, 2021, Dallas Cowboys right tackle La’el Collins was suspended for five games without pay for violation of the NFL’s substance abuse policy. The suspension stems from Collins missing seven mandatory drug screenings since 2020 and allegedly trying to bribe the test collector. Collings timely appealed his suspension on January 7, 2021, and at one point, the NFLPA negotiated his suspension down to two games. Collins nevertheless continued pursuing the appeal, and the arbitrator ultimately reinstated his initial five-game suspension on September 9, 2021. Collins, however, is clearly not giving up without a fight. On Wednesday afternoon, Collins’ attorneys, Scott J. Becker and Levi G. McCathern, filed a request for a restraining order and immediately injunctive relief to reinstate Collins from league suspension. A copy of the Original Petition and Application for Temporary Restraining Order and Temporary Injunction and Permanent Injunction is below. The petition alleges that the NFL “failed to follow the National Football League’s Policy and Program on Substances of Abuse 2020 (the “Policy” or the “2020 Policy”) and wrongfully suspended Mr. Collins by making material misrepresentations to the tribunal.” In citing immediate and irreparable harm caused by such “wrongful actions”, it is revealed that Collins has already lost over $182,352. (2/17’s of Mr. Collins $1,550,000 base salary for 2021) from missing two games. Collins highlights important changes to the Policy pursuant to the 2020 Collective Bargaining Agreement between the NFL and the NFLPA. Most importantly, the changes made regarding the kinds of discipline players may face for violations of the Policy. A copy of the Policy attached to the Petition as Exhibit 2 is below. In Paragraph 1.5.2(c), the 2020 Policy sets forth the sole and exclusive disciplinary measures that the NFL may impose on a player already in the Intervention Program based upon the number and kind of Policy violations shown to have occurred: Collins argues that, “In both its plain text and in the structure of the permissible penalties it provides, the 2020 Policy thus makes clear that positive tests or unexcused failures to appear for testing are never grounds for suspension or banishment, no matter how many violations occur and regardless of the player’s status in the Intervention Program.” Collins alleges that at the Hearing, on two separate occasions, the NFL intentionally mislead the arbitrator by stating Mr. Collins had previously received a four (4) game suspension from the NFL. First, in its opening statement, the NFL stated: “Mr. Collins was written up for a four-game suspension. And Mr. Collins was warned that any future failures to cooperate would result in a suspension. So here we are again with another failure to cooperate, and the NFL has suspended [Mr. Collins] for five games. That is progressive discipline, four to five.” Second, in its closing statement, the NFL stated: “Mr. Collins is only suspended for five games, and that is not outrageous, especially since we warned him after the four-game suspension.” A copy of Exhibit 1, the pertinent portions of the Hearing transcript, is attached below. Furthermore, Collins cites to the fact that the arbitrator stated in the Award that “Mr. Collins previously had received a four-game suspension based on prior conduct, and the discipline imposed, a five-game suspension, is ‘additional’ to that and is the next logical progression from prior discipline. It is proportional and reasonable.” A copy of the relevant portions of the Arbitral Award is below. This story will be updated as more details are provided. Be sure to follow us on Conduct Detrimental. You can find us on Twitter: Dan Wallach @WallachLegal and Stephanie Weissenburger @SWeissenburger_.

Tom Winter, NBC News Correspondent for Investigations, and Jonathan Dienst, WNBC Chief Investigative Reporter and NBC News Contributing Correspondent, broke the news on the morning of October 7th that 18 former National Basketball Association (“NBA”) players had been arrested.[1] The NBA players were arrested, per Winter’s reporting and law enforcement officials, and charged federally for allegedly defrauding the NBA’s Health and Welfare Benefit Plan, which provides certain health and welfare benefits to certain former NBA players as well as their spouses and eligible dependents. Among the players that were arrested were Terrence Williams, the player whom the indictment states “orchestrated” the scheme, Sebastian Telfair, Darius Miles, Tony Allen, Shannon Brown, and Glen “Big Baby” Davis. According to the indictment[2], Williams allegedly worked with the other players to conduct a scheme whereby Williams would supply false invoices for medical services received to a group of former players in exchange for kickback payments to Williams. The alleged kickback payments were made to Williams by the other NBA players after they were reimbursed for their allegedly fraudulent schemes. In total, the indictment states that nearly $3.9 million in fraudulent claims were submitted, nearly $2.5 million in fraudulent payments were received, and Williams netted nearly $230,000 in kickback payments from the other NBA players. While the case against Williams and the other NBA players is not one brought under The False Claims Act, The Physician Self-Referral Law, or the Anti-Kickback Statute, the regulatory scheme created by these laws provides a helpful understanding of the reason for increased scrutiny on billing in the healthcare context and may also be implicated by the doctors who were involved in this alleged scheme. The False Claims Act, 31 U.S.C. §§ 3729 – 3733, in relevant part, prohibits anyone from “knowingly present[ing] or caus[ing] to be presented, a false or fraudulent claim for payment or approval” or from “conspir[ing] to commit a violation” of The False Claims Act. A “kickback,” while the term may be familiar from popular parlance (e.g., the kickbacks Williams received from the other NBA players would be an example of a kickback in the popular parlance) and may be allowable in some business contexts, is defined and specifically prohibited (unless certain exceptions apply) in the healthcare context in relation to the Physician Self-Referral Law (42 U.S.C. § 1395nn), commonly known as the Stark Law, and the Anti-Kickback Statute (42 U.S.C. § 1320(a)-7b(b)) (“AKS”). The Stark Law and AKS, working together with The False Claims Act, other federal laws, and similar state laws and regulations, seek to prevent the payment of remuneration[3] to induce or reward patient referrals in the healthcare industry unless, as mentioned previously, certain exceptions apply and to prevent the submission of false or fraudulent claims for payment to Medicare or Medicaid. Simply put, the government has an interest in ensuring i) that patients are referred from one doctor to another because of the level of care they will receive, not because of a financial arrangement between the two doctors, and ii) that the government is not defrauded through false claims submissions – these losses due to fraud are in the tens of billions of dollars per year according to the U.S. Attorney’s Office for the Southern District of New York’s press release regarding this indictment.[4] AKS is a criminal statute that carries an intent requirement – “knowingly and willfully.” A violation of AKS is a felony and liability may attach for both those offering the kickback and those receiving kickbacks. Those violating AKS may face fines of up to $25,000 for each violation and prison terms of up to 5 years. AKS also carries civil penalties including potential fines of up to $50,000 per violation and civil assessments of up to three times the amount of the kickback. What is interesting in this case, however, is that despite a chiropractic and rehabilitation office, two dental offices, and other doctors and doctors’ offices being referenced in the indictment, the indictment was not brought against these persons. It is unclear what role these offices and doctors had in the ultimate scheme, and if they also received kickbacks in violation of AKS and The False Claims Act, or to what extent they knew of and participated in the fraudulent scheme, but it appears based on the indictment that some of these offices and doctors may have aided Williams in perpetrating the alleged scheme by providing false invoices for Williams to then provide to the other former NBA players. It is possible that an indictment against these offices and doctors for violations of AKS could be coming next. According to the indictment and the reporting of Winter and Dienst, Williams allegedly orchestrated the fraudulent scheme from 2017 to 2020 that allegedly involved, among other alleged acts, Williams helping other players obtaining fake medical letters to support false invoices, Williams impersonating an individual who processed plan claims, and filing for chiropractic and other services that were allegedly never received. The charges brought against Williams and the other NBA players are for conspiracy to commit health care fraud and wire fraud, as well as a charge of aggravated identify theft against Williams, not the potential violations of AKS as described above which the doctors involved may face. If found guilty, Williams and the other players allegedly involved in this scheme could face significant fines and even prison time of up to 20 years. [1] Further reporting on this situation from Winter and Dienst can be accessed here, here, and here. [2] The indictment can be found here: https://www.justice.gov/usao-sdny/press-release/file/1440076/download. [3] Remuneration in this context might be in the form of cash or other items or services of value. [4] 19 Defendants Charged With Defrauding The National Basketball Association Players’ Health And Welfare Benefit Plan | USAO-SDNY | Department of Justice.

On Thursday, October 7, 2021, an indictment listed 18 ex-NBA players charged in the United States District Court for the Southern District of New York (SDNY) for an alleged $4 million health care fraud scheme. Allegedly led by Terrence Williams, picked 11th by the Nets in the 2009 draft, this scheme was a way to defraud a supplemental health plan for active and retired players, roping in several others to submit false claims for “reimbursement of expenses for medical and dental services that were not actually rendered.” One of the false reimbursements claims that was described in the indictment is a $19,000 claim filed by Williams for chiropractic services that never happened and gave a $7,672.55 reimbursement. In furtherance of this scheme, Williams also allegedly used a template for a fake invoice designed to make it look as though these invoices were official and issued by an office. Other players involved with this scheme include, Darius Miles, Alan Anderson, Tony Allen, Desiree Allen, Shannon Brown, Will Bynum, Glen “Big Baby” Davis, Christopher Douglas-Roberts, Marvin Ely, Milton Palacio, Ruben Patterson, Eddie Robinson, Greg Smith, Sebastian Telfair, Charles Watson, Antoine Wright, and Tony Wroten. Members of this fraud scheme were also charged with conspiracy to commit wire fraud as a part of what New York prosecutors call a “widespread scheme to defraud” the NBA benefit plan. This scheme was carried out from at least 2017-2020, though it could have gone over a longer time frame. In running this alleged ruse, the plan received false claims of approximately $4 million and the defendants received approximately $2.5 million in fraudulent proceeds. Per court documents, several of the fraudulent invoices and medical necessity forms drew attention due to their lack of consistency. These documents were not on letterhead, contained grammatical errors and had logistical errors, i.e. being sent on the same date but from different offices. While some players were told to repay the money they received, this was not required of all involved players. As this is just breaking, developments are still forthcoming. Stay locked in with Conduct Detrimental for developments as this action progresses. Stephon Burton is a 3L at Duquesne University School of Law in Pittsburgh, PA. He obtained his undergraduate degree from Washington & Jefferson College in 2019. He can be contacted via email at [email protected], on twitter @stephonburton3 and LinkedIn https://www.linkedin.com/in/stephon-burton-7abb06125/

A recent lawsuit filed against the Tennessee Titans could offer the latest interpretation of the rights and obligations of parties to a PSL Agreement. Professional sports teams began selling PSLs, Personal Seat Licenses, to offset new stadium construction costs in the 1980’s. Today, PSLs or some equivalent are sold by nineteen out of thirty-two NFL teams and numerous other major league sports organizations. For a one-time fixed fee, a buyer may purchase a PSL for an extended period of time, often as long as thirty years. The PSL gives the holder certain rights to specific seats in a stadium. Generally, the PSL holder has the right to purchase season tickets for those seats before the season begins and, depending on the language of the agreement, the right to sell or transfer the rights to the seats. As first reported by Paul Kuharsky, in March of 2021, a group of “Permanent Seat License” owners (PSL equivalent) filed suit against Tennessee Football, Inc. (the Tennessee Titans) and Cumberland Stadium, Inc. (Nissan Stadium). The complaint alleges that the Titans, through ticket transaction data, determined the plaintiffs to be “ticket resellers.” Although all of the plaintiffs are PSL holders, six of the eleven plaintiffs are not residents of Tennessee and Kuharsky stated that it was his “sense that the franchise sought to identify ticket buyers who have not attended a game themselves for multiple years.” The complaint alleges that the Titans limited the sale of tickets, “grossly inflated” ticket prices, limited the amount of time to purchase season tickets, limited relocation options, eliminated season ticket member perks and gifts, and did not allow for the standard six-month payment plans to those deemed “ticket resellers.” The complaint further alleges that this treatment of “ticket resellers” was a large departure from the Titans course of dealing with its PSL holders in the past. One plaintiff claimed that the resale, transfer, and/or purchase of additional PSLs was traditionally encouraged. The same plaintiff stated that, based on the suggestion of a Titans’ ticket representative, he purchased approximately eighteen PSLs, in contradiction to the publicly stated policy that PSL holders could hold no more than four PSLs. Ultimately, the plaintiffs claim that the Titans and Nissan Stadium violated their duty of good faith and fair dealing under the PSL Agreement and “have substantially and negatively impacted the value of all PSLs,” resulting in a breach of contract and a violation of the Tennessee Consumer Protection Act. Section 3(e) of the most recent Titans PSL Agreement states the Titans, “in its sole discretion and without regard to good faith or any other standard,” may limit the number of seats, prohibit any transfer/sale of seats, or terminate PSLs for any individual or entity determined to be a “ticket reseller” or “ticket broker.” Although the PSL agreement does not cover price increasing, payment plans, relocation, or timing to purchase season tickets, it appears that the Titans expected and addressed such a scenario within the agreement. Does a PSL holder have the right not to attend a single game, while selling each ticket for personal profit? Does an NFL team have the right to inflate pricing and treat ticket resellers differently than the average fan who attends each game? Absent a settlement, these questions will likely be determined by the court’s interpretation of the PSL Agreement. Courts generally do not want to reshape or reconstruct contractual agreements among private parties. Rather, the court will look to the intent of the parties, evidenced by the words within the agreement. Here, the interpretation of Section 3(e) will be crucial to the court’s decision. New stadiums are being built. More teams are relocating and rebranding. The professional sports landscape is everchanging. It will be important for teams, stadiums, and fans to monitor cases such as this one to better understand their rights and obligations regarding their Personal Seat Licenses.

Who is Eligible for Salary Arbitration? The way the Major League Baseball (“MLB”) compensation system is structured, a player is paid the minimum salary until they accrue three years of MLB service time. The Basic Agreement (“CBA”) between the Owners and the Players states that “[a]ny Player with a total of three or more years of Major League service… but with less than six years of Major League service” may be eligible for salary arbitration.[1] During the offseason after three, four, and five years of service a Player is eligible for a raise, and after six years of service, a Player is eligible for free agency. However, there is an additional group of players who are eligible for salary arbitration after their second year of Major League service; those players are called “Super Two” players.[2] What is a Super Two Player? The CBA dictates that an additional group of players can be eligible for salary arbitration after their second season if they meet two key criteria: (i) The Player has at least 86 days of service during the platform season (the season immediately prior); and (ii) The Player ranks in the top 22% in total service in the class of Players who have at least two but less than three years of Major League service. “If two or more Players are tied at 22%, all such Players shall be eligible.”[3] Each year at the end of the season, the Major League Baseball Players’ Union announces the cutoff for players to achieve Super Two status.[4] It generally falls in between 2.125 (2 years and 125 days of service) and 2.140 (2 years and 140 days of service), although it could be more or less days. After the 2020 season, the Super Two cutoff was set so that there were 19 players who were Super Two eligible, including Walker Buehler (who signed an extension), Mike Soroka (who won his arbitration case), and Juan Soto (who settled before trial). Each of these players will be eligible to go through arbitration again, and get a raise, for each of the next three seasons. What is the Point of the Super Two Process? The Super Two criteria was amended prior to the 2012-2016 CBA to increase the number of eligible players from the top 17% to the top 22% starting in 2013, which is how the system remains today.[5] This was bargained for by the Union in the negotiations in response to a growing trend of MLB organizations intentionally delaying the promotion of top prospects in order to avoid paying young players raises an additional year prior to free agency. The cutoff date for Super Two eligibility is also announced after the end of the season, which makes it harder for teams to try to work around it to save money with their young players. However, this ultimately leads to teams being extra cautious promoting their top prospects. This is one explanation for why baseball fans generally have to wait until the beginning of June to see their favorite team’s top prospect, and why some financially constrained teams (like the Rays) may wait even longer. MLB’s top prospect in 2021, Wander Franco, wasn’t called up until the end of June, virtually guaranteeing he will not be Super Two eligible after the 2022 season, despite strong performance in the Minor Leagues from the start of the year. The Super Two process is certainly to be among the structures discussed in the upcoming CBA negotiations; when top prospects are intentionally kept in the minor leagues when they have earned a spot on the big league roster it hurts clubs, players, fans, and ultimately is not good for the game. Dean Rosenberg is a 2L student at Benjamin N. Cardozo School of Law in New York City. He can be found on LinkedIn and Twitter @deanrosen7. [1]​​https://d39ba378-ae47-4003-86d3-147e4fa6e51b.filesusr.com/ugd/b0a4c2_95883690627349e0a5203f61b93715b5.pdf [2]Id [3]Id [4]https://www.mlbtraderumors.com/2018/10/super-two-cutoff-mlb-2018-2019.html [5]https://www.federalbaseball.com/2020/10/1/21454026/washington-nationals-juan-soto-could-receive-super-two-designation-2020-2021-offseason

In the 1950s and 1960s, after decades of failed attempts, players from the four major sports leagues successfully founded the players associations that unionized American professional sports. In doing so, the players guaranteed themselves some bargaining power in the wildly lucrative world of sports. With the players associations came collective bargaining agreements, leading to revenue sharing. The players in the four major sports leagues are now entitled to large portions of their league’s revenues: 48.5% in the NFL, 49-51% in the NBA, 48.5-51.5% in the MLB, and 50% in the NHL.[1] Professional tennis’ governing body, the ATP, is not as well-developed. At the top of the ranks are a few of the highest paid athletes in the world. However, some players have been less satisfied during the last few years. In 2019, the players received just 17.5% of the $2.2 billion in revenue generated from the Grand Slams and the larger ATP and WTA events.[2] Comparing that percentage to the major sports is a bit off-putting, and while several players are pushing back, the ATP pushes forward. Founded in 1972, the ATP was founded by a top player in the world with the goal of protecting the players. It has since grown into the world’s main tour. In 2019, world #1 Novak Djokovic and Vasek Pospisil, a Canadian player, founded the Professional Tennis Players Association. They created the PTPA with a goal that is ironically aligned with that of the players in 1972: to protect the players. Djokovic has repeatedly voiced concerns about the conflicts of interest within the governance of the ATP.[3] Currently, ATP policy changes need a majority vote of the seven voting board members: three player representatives, three tournament representatives, and the ATP Chairman.[4] A PTPA objective is to bring the players out of the minority. Though the PTPA was founded in 2019, it made its most prominent headlines this past summer. The ATP introduced their “30-Year Plan” which, beginning in 2023, would lock in media deals, prize money distribution, and tour structure until the 2050s.[5] Djokovic and Pospisil displayed public outrage with the ATP Chairman, and the PTPA publicly launched their “Delay the Vote” campaign. The PTPA argued that the ATP had formed a backroom deal, trying to streamline a deal that would put players’ concerns in the backseat if the decades-long deal were voted in.[6] The PTPA website outlines the organization’s disagreement with the ATP’s 30-year plan, and how the lack of transparency within the plan’s details is not benefiting the players. It seemed suspicious that the ATP would not release all the plan’s details, and the ATP actually stated that “the plan will inevitably benefit some more than others” at the beginning.[7] Eventually, the “Delay the Vote” campaign ended successfully for the PTPA and its 500+ members, announced by Pospisil on July 2.[8] Though the dust has settled for now on the disagreements from the summer, future disputes between the two organizations create an interesting thought. Up until now, discussions have been run by the players and advisory board that the PTPA put together and the ATP board. However, if legal battles were to ensue, the venue is quite unclear. The PTPA is a Canadian non-profit, and the ATP is headquartered in London. If the new organization were to seek help from the NLRB—which has issued injunctions against the MLB, NFL, and other minor league teams for undermining collective bargaining agreements—it would be interesting to see if the NLRB could establish jurisdiction over the ATP, or if they would even try to. To check all the boxes, the PTPA put together a team of board members and directors with expertise in American as well as EU sports law. Part of growth of the PTPA is the formation of their management team. Adam Larry, the Executive Director of the PTPA, has consulted for or negotiated the collective bargaining agreements for the NBA, NHL, and CFL.[9] Notable members on the PTPA advisory board include Dr. Katarina Pijeltovic, a sports law expert in the EU, and Michael Hirshfeld, the head of the NHL Coaches’ Association who also manages international relations for the Association.[10] So, while the PTPA seems to have a big hill to climb in terms of its goals, the team it has put together has the experience, and the Association is clearly trying to get a seat at the table for a very long period of time. Carson Howard. Current 2L and Masters of Sports Law and Business student at Arizona State University. Undergraduate degree in Finance from the University of Oklahoma. Can be reached at [email protected] or on LinkedIn. [1] https://www.sports-king.com/revenue-split-sports-leagues-2771/ [2] https://ptpaplayers.com/faq/ [3] https://theracquet.substack.com/p/ok-but-i-could-set-the-building-on [4] Id. [5] Id. [6] https://ptpaplayers.com/faq/ [7] Id. [8] https://www.sportskeeda.com/tennis/news-vasek-pospisil-announces-novak-djokovic-s-ptpa-acknowledged-says-atp-delayed-vote-30-year-plan [9] https://ptpaplayers.com/team/ [10] Id.

“18 NBA veterans were arrested by federal authorities and are named in the indictment, and all are facing a count of conspiracy to commit health care and wire fraud,” reported Jonathan Dienst of NBC New York. The players allegedly defrauded the NBA’s Health and Welfare Benefit Plan of nearly $4 million. The list of players includes Terrence Williams, Alan Anderson, Anthony Allen, Shannon Brown, William Bynum, Ronald Glen "Big Baby" Davis, Christopher Douglas-Roberts, Melvin Ely, Jamario Moon, Darius Miles, Milton Palacio, Ruben Patterson, Eddie Robinson, Gregory Smith, Sebastian Telfair, Charles Watson Jr., Antoine Wright, and Anthony Wroten. Terrence Williams is reportedly in charge of the operation and is accused of having impersonated an insurance plan employee as part of the scheme. Also, Tony Allen’s wife, Desiree was indicted. “Terrence Williams recruited NBA players by offering fabricated invoices to be used in false claims in exchange for a kickback. He received at least $230,000 in kickbacks from players.” Williams is also accused of impersonating an individual who processed the health care plan claims. The fake invoices and medical necessity forms had unusual formatting and grammatical errors which made them stand out. The ex-players were told to repay the money they received from the health-care plan once they were told that the claims were false. Some players paid it back and others did not. Many of these NBA players have faced criminal charges in the past. Sebastian Telfair was sentenced to 3.5 years in prison on gun charges yesterday, Shannon Brown was arrested in 2020 after he was accused of firing a rifle at two people who were looking at homes for sale in suburban Atlanta, Glen “Big Baby” Davis faced 5 years in prison after being arrested with 126 grams of marijuana but paid the $15k fine to avoid jail time in 2019, Terrence Williams was arrested and accused of brandishing a gun at the mother of his 10-year-old son during a visitation exchange in 2013, Ruben Patterson plead guilty of attempted rape in 2001, convicted of misdemeanor assault in 2001, arrested for felony domestic abuse in 2002, and arrested for DUI charge in 2010, and Darius Miles arrested on gun charges in 2011. Williams and the other ex-players that helped in this operation could be facing up to 10 years in prison for health care fraud and up to 20 years for wire fraud. Sebastian Telfair could have years added to his 3.5 sentence. The other players that have a record could also face harsher penalties. CJ McCollum was elected President of the NBA Players Association (NBPA) in August and already will be facing a major issue before the season even starts. As more information comes out it will be interesting how it affects the NBA, NBPA, and the other programs that they have in effect. Chris D'Avanzo is a 2L at Hofstra Law School and can be found on Twitter @_chrisdavanzo