In 1984, when the U.S. Supreme Court decided its seminal case dealing with college athletics, National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma, one thing became very clear: college football on television was a business. And in 2021, business is good. College football’s television ratings are off to a roaring start in 2021. Through the first six weeks of the season, 12 games have brought in at least five million viewers. Fox’s broadcast of Ohio State visiting Minnesota on Thursday, September 9 is the most-watched opening Thursday game on record. And so far this season, there’s only been one week – week 5 – that did not have at least one game that had more than five million viewers. And it was more of the same this past weekend (Week 6) -- CBS announced this week, for example, that its October 9th broadcast of Alabama vs. Texas A&M was the highest-rated television program that aired on any network during that day, averaging more than 8.3 million viewers, with more than 12 million viewers tuning in during the dramatic ending.[1] The thriller between Oklahoma and Texas at the Cotton Bowl resulted in an increase of 21% in ratings compared to the teams’ game last year. And, overall, Week 6 in college football featured three of the season’s top nine audiences (thanks also to a matchup of top #5 programs, Iowa and Penn State).[2] The biggest reason obviously behind the booming numbers is the return to normalcy for college football broadcasts – fans are back in the stands this year at full capacity, networks are no longer doing remote broadcasts like viewers saw during the pandemic-disrupted season of 2020, and teams are back to playing full 12-game regular season schedules with both non-conference and conference games slated. Another reason is that the premiere non-conference games in 2021 have been highly compelling, such as Oregon-Ohio State, Penn State-Auburn in a whiteout under the lights in Happy Valley, Wisconsin-Notre Dame at Soldier Field, and a top-5 clash between two powerhouse programs, Clemson and Georgia. And, undoubtedly, the constant uncertainty of games being either postponed or cancelled due to COVID turned some fans off from the product last year. This lack of normalcy clearly impacted last year’s ratings. The 2020 regular season, for example, had only 10 games that topped at least five million viewers, with the first 5-million-plus viewer game of the season happening in Week 6. Meanwhile, five games in Week 1 of the 2021 season easily reached that number (with more than 8 million viewers watching Florida State-Notre Dame and nearly 9 million viewers tuning in to see then #3 Clemson face off against then #5 Georgia in Charlotte).[3] The Clemson-Georgia game beat ABC’s most watched primetime regular season game last year by nearly 2.3 million viewers.[4] But it’s not just the figures from 2020 that 2021 is showing major differences from -- FOX’s overall viewers, for example, are up a whopping 30% from 2019, with the network averaging nearly 4 million viewers for its Saturday broadcasts.[5] And the Georgia-Clemson matchup was the highest-rated week one game since the 2017 college football season. This ratings increase has also been impacted by Nielsen’s decision to integrate viewing that takes places at bars, restaurants, and other public establishments into its ratings measurements (“OOH ratings”)[6]. Nielsen introduced OOH ratings in 2020, and they undoubtedly have led to an increase in the overall number of viewers. These booming ratings bode well for what has so far been a wildly fun and unpredictable college football season. Buckle up and get ready for more great football broadcasts for the next three months. John Rigby is an Associate Attorney at Venable LLP in Los Angeles. He is a graduate of the University of Iowa and the UCLA School of Law. He’s attended two UCLA games at the Rose Bowl this season – the rest he’s watched comfortably on TV. [1] https://247sports.com/Article/CBS-Sports-presentation-of-Alabama-Texas-AM-football-game-most-watched-TV-program-of-the-day-172963821/ [2] https://www.sportsmediawatch.com/2021/10/alabama-texas-am-ratings-sec-cbs-oklahoma-texas-penn-state-iowa-viewership/ [3] https://apnews.com/article/college-football-sports-entertainment-arts-and-entertainment-television-programs-8cc6fd80f01557b2dd3c98c2e97bfea3 [4] https://www.hollywoodreporter.com/tv/tv-news/tv-ratings-saturday-sunday-sept-4-5-2021-1235009729/ [5] https://www.sportsmediawatch.com/2021/10/alabama-texas-am-ratings-sec-cbs-oklahoma-texas-penn-state-iowa-viewership/ [6] https://frontofficesports.com/in-win-for-networks-nielsen-begins-incorporating-out-of-home-viewership/

When the news came in that Texas and Oklahoma were leaving the Big 12 for the SEC, we knew a major trickle-down effect was on the horizon in terms of conference realignment. While initial rumors suggested that the Big 12’s future was in serious jeopardy, Bob Bowlsby was able to bring in BYU, Cincinnati, Houston, and UCF to help fill the void and keep the league alive. However, as I wrote earlier on the website, the Big 12’s misery was passed on to the AAC as Cincinnati, Houston, and UCF are among the conference’s best programs on an annual basis. Therefore, the power structure in the Group of 5 is currently up in the air. Before this latest round of realignment, the AAC was universally renowned as the best Group of 5 league in college athletics for the better part of the last decade. With the best teams and the most lucrative television contract of any non Power 5 league, it was clear that the MAC, Sun Belt, Mountain West, and Conference USA all looked up to the AAC. Now, with the recent success of athletic programs like Coastal Carolina, San Diego State, Appalachian State, and Louisiana (Just to name a few) in those other leagues, it’s fair to wonder if the AAC’s reign atop the Group of 5 is sustainable. With all of this context, an interesting development occurred this week on the conference realignment front. On Tuesday, Conference USA Commissioner, Judy MacLeod, sent a letter to the AAC requesting a dialogue on conference realignment and regionalization. While the letter didn’t lay out any explicit plans, the idea would be to discuss potential reorganization between the two leagues, such as creating one conference in the east and one in the west. As it sits, the C-USA and AAC have little geographic identity and have vast footprints. Both stretch from the Eastern Seaboard all the way to Texas, with overlapping members in many states. So what is the motive behind the proposed reorganization? Saving money. ADs and commissioners often talked, especially in the aftermath of the pandemic, about their desire to decrease travel expenses. However, the current geographic footprint of the AAC and C-USA doesn’t cater to reducing travel expenses at all. For instance, Temple and SMU, separated by 1,600 miles, are both in the AAC. In fact, the only school that SMU can “bus” to in conference is Tulsa. In the proposed reorganization, the AAC and C-USA reorganization would likely be made along East–West lines. An idea of the changes could look like this: CURRENTLY (Cincinnati, Houston, UCF as Big 12 Members) *Wichita State is a non football member of the AAC Potential Reorganization Proposal This reorganization would allow neighboring schools to compete in the same conferences, injecting more natural geographic rivalries and allowing schools to save on travel expenses at a difficult time financially. C-USA schools like FAU and FIU would be in the same conference as USF, currently in the AAC. East Carolina, in the AAC, would find itself in the same conference as Charlotte, currently in C-USA. The same goes for SMU, an AAC member, and C-USA schools North Texas, Rice, UTEP, and UTSA. Not only will it significantly reduce travel expenses, the geographic rivalries can spark more ticket revenue and sponsorships. Even though this proposal seems like a great idea, initial reports suggest that it won’t come to fruition. AAC commissioner Mike Aresco is still focused on creating the top Group of 5 league and a push for Power 6 status, and league sources say the conference has no interest in such a move. So the idea of dropping down and offering a lifeboat to the weaker C-USA is a non-starter in their eyes. While this proposal is prudent and financially responsible, it’s not a surprise that it’s looked down upon by the AAC. Self-preservation and self-interest rule the day in conference realignment. It always has, and it always will. The American has been rumored to be attempting to pry UAB and Charlotte from Conference USA in recent weeks. So even though Judy MacLeod’s proposal definitely has a little self-preservation element to it, it doesn’t mean it isn’t a rational idea for both leagues. But as we know, you can’t assume rationality when it comes to the business of college sports. I hope in the future, people in power in college athletics grow to understand that oftentimes, they are better off when they are together, not apart.

Since he burst onto the scene at 19 years old, Juan Soto has been one of Major League Baseball’s (MLB) best hitters. He is a rare example of a young prodigy panning out exactly the way his organization promised. The transfer of power from Washington’s former right field prodigy to Soto has been seamless and, in many ways, Soto has exceeded the success of his predecessor. Now, Soto will get to reap the rewards of his elite play as he enters his second year of arbitration eligibility. MLB arbitration is a process that was established in the 20th century that allows players to earn more money while giving teams more control over their players. After three years of “service time,” a player is eligible for arbitration for the next three seasons. If the two parties cannot come to an agreement, they will both set figures on what they think the value of the player is. From there, they will argue their case in front of an independent arbitrator, who will decide which figure is more appropriate. The MLB’S Collective Bargaining Agreement (CBA) sets forth criteria for the purposes of salary arbitration argumentation. The following are the five most common considerations: Player’s performance in their platform year (PY), the year immediately preceding the arbitration year. Their performance in the two years before the platform year (PY-1 and PY-2). How players of similar performance have performed and been compensated. Player marketability. Team success. Soto’s production can be best compared to three notable players who have settled in arbitration in the last 4 years: Cody Bellinger, $11.5 million (2020) Carlos Correa, $11.7 million (2021) Mookie Betts, $10.5 million (2018) Statistical Comparison Juan Soto’s most favorable set of statistics comes from Statcast, which includes measures like exit velocity, barrel percentage, and hard-hit rate. Unfortunately, the CBA doesn’t allow Statcast in arbitration. However, Juan Soto isn’t limited to one set of statistics to break the limits of arbitration in 2022. Let’s take a look at the platform years of these athletes. We will use the traditional stat line and power numbers (Home Runs and OPS+). OPS+ measures the athlete’s On-Base Plus Slugging numbers against the league average, which is 100 OPS+*. Carlos Correa’s platform year was played in a pandemic, so I have extrapolated his home run total to match Juan Soto’s 151-game total in 2021: Juan Soto: .313/.465/.534, 29 HR and 175 OPS+ Cody Bellinger: .305/.406/.629, 47 HR and 167 OPS+ Carlos Correa: .264/.326/.383, 13 HR (extrapolated) and 93 OPS+ Mookie Betts: .264/.344/.459, 24 HR and 108 OPS+ Soto begins to solidify himself at the top of this list. Statistically, he exceeds the performances of Correa and Betts, falling closer in line with Bellinger’s 2019 MVP season. PY-1, Awards, and Postseason Success Each of these players had a “separator” entering their arbitration proceedings. This separator pushed them above that year’s field and earned them a substantial amount of money. As we can see, Mookie Betts’s platform year doesn’t necessarily line up with his compensation. However, the year preceding, his PY-1, was the first inkling of proof that Boston had something special. Let’s compare the PY-1 of Betts and Soto, which is extrapolated to the 158 games Mookie Betts played in: Soto (2020): .351/.490/.695, 43 HR (extrapolated) and 217 OPS+ Betts (2016): .318/.363/.534, 31 HR and 133 OPS+ Cody Bellinger’s separator was his personal accolades. Let’s look at some key awards that both Soto and Bellinger earned entering arbitration: Soto: NL Rookie of the Year (2nd, 2018); 2 Top-10 MVP finishes; 1 Silver Slugger (2020); All-Star Appearance (2021) Bellinger: NL Rookie of the Year (1st, 2017); MVP Award (2019); 1 Silver Slugger (2019); 2 All-Star Appearances (2017 & 2019) Taking a quick glance at everything, Juan Soto doesn’t necessarily perfectly match the separators of Bellinger and Correa. But he has come close enough to prove that no matter how you cut it, Juan Soto is special. He sufficiently checks every box, from Platform Year performance to career accolades and postseason success. One may ask, however, what is Juan Soto’s separator? Soto is the face of baseball. From being on video game covers to perennial MVP candidacies, Soto gives Washington more attention than it deserves. Plus, he’s only 22 years old, two years younger than any of the other athletes discussed entering their second year of arbitration. With Washington trading away almost its entire roster, the Nationals have made it clear that the 2021 NL MVP contender is not a guy they want to get rid of1. Nothing is more valuable than a young superstar to build an entire organization around. Soto’s Outlook Let’s say Juan Soto miraculously make it to arbitration. How much would he earn? What amount should his side of the “vs.” file for? The winner-take-all process requires a meticulous balance to be struck in the process of determining the amount to submit. Go too low and win, you may be underpaid. Go too high and lose, you may be criminally underpaid. It’s not crazy to think that he could file anywhere in the range of $13 million to $15 million and have a winning case. If his salary settled in that range, it would set an arbitration record. Juan Soto’s skillset is special. His compensation will reflect that. The bottom line: front offices don’t allow their franchise players to make it to arbitration. It is far too unpredictable and has the propensity to damage the fragile relationship between a player and the front office. Soto won’t make it to arbitration, but sometimes it’s fun to imagine how the market would react if he did.. Regardless, the Nationals would rather lock down their franchise cornerstone for as long as they can. With Soto becoming Spotrac’s first ever “$500 million man,” he is destined to sign a major deal this offseason2. Britton Yoder is a 1L at Penn State – Dickinson Law. He can be found on Twitter @yoyoyoder04. * All statistics and awards were taken from baseball-reference.com 1. https://www.sportsbettingdime.com/mlb/nl-al-mvp-odds/ 2.https://www.nbcsports.com/washington/nationals/juan-soto-now-projected-earn-more-500-million-next-contract

Major League Baseball (MLB) will now require teams to provide housing for minor league baseball players starting in 2022.[1] With that backdrop in mind, it’s time to reevaluate whether the “Save America’s Pastime Act” (SAPA) actually saves professional baseball or really obstructs major avenues of it.[2] SAPA, a federal law passed by Congress, must be read in conjunction with the Fair Labor Standards Act (FLSA), which “establishes [federal] minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private [and public] sector[s].”[3] The FLSA specifies exemptions for employees of certain establishments and in certain occupations. Minor League Baseball (MiLB)[4]—and specifically the baseball players within MiLB—are subject to the FLSA’s “Seasonal Exemption.” The Seasonal Exemption specifies that any employee “employed by an establishment which is an amusement or recreational establishment” is exempt from federal minimum wage and overtime provisions “if [] it does not operate for more than seven months in any calendar year . . .”[5] Because a minor league baseball season does not operate for more than seven months in any calendar year (the season takes place primarily between April and August), MLB deems MiLB players “seasonal workers” who are generally exempt from minimum wage requirement and overtime lawsuits brought by players. This result has sparked fierce debate.[6] Courts have historically sided with both MLB and the players in deciding baseball-related wage issues. In Jeffrey v. Sarasota White Sox, for example, the court sided with MLB. The plaintiff, a groundskeeper for the defendant Sarasota White Sox Inc. (a MiLB team), claimed that he was entitled to recover payment of time and a half for hours that he worked in excess of forty hours per week under the FLSA’s Seasonal Exemption.[7] The Eleventh Circuit found that the Sarasota White Sox Inc. was entitled to the Seasonal Exemption because it was an amusement or recreational establishment that operated for less than seven months out of the year.[8] In Bridewell v. Cincinnati Reds, however, the Sixth Circuit sided with the players.[9] There, the Sixth Circuit found that the Cincinnati Reds organization was not entitled to the Seasonal Exemption because it did not qualify as a seasonal entertainment establishment under the FLSA (i.e., the organization operated for more than seven months out of the year).[10] In analyzing the organization’s entire operations, the court reasoned that, although the Cincinnati Reds received income during the off-season, almost all of it was tied directly to the playing of baseball games during the season.[11] Again, in a class-action lawsuit captioned Senne v. Kansas City Royals, forty-five minor league baseball players challenged the Season Exemption.[12] After the players navigated various procedural hurdles (including complicated choice-of-law and forum-related questions), the players filed a Second Amended Complaint, generally alleging that the players should qualify as protected employees and no longer be subject to the Season Exemption.[13] In October 2015, the court preliminarily certified the collective action—of which over 2,200 players opted in—but MLB successfully moved to decertify the players’ collective action.[14] Subsequently, the players moved for reconsideration after addressing the district court’s concerns, and the district court re-certified the FLSA collective action.[15] Against this backdrop, MLB aggressively lobbied to diminish Senne’s scope, which ultimately culminated in the enactment of SAPA.[16] Congress passed SAPA to exempt minor league baseball players from the protections of the FLSA. Read in conjunction with the FLSA, SAPA thus fortifies the Seasonal Exemption by capping the federal compensation of minor league professional baseball players and preventing all professional players from qualifying for overtime pay. Most minor league baseball players make less than $15,000 per year, work multiple jobs, and don’t receive a livable annual salary.[17] Even more, MiLB players are not compensated during spring training—a mandated work requirement. In effect, even though many professional players work more than forty-hours per week, SAPA disrupts the efficacy of bringing suit and reinforces the idea that players should be precluded from the benefits received by non-exempt employees under the FLSA. Inconspicuously placed on page 1,967 of a 2,232-page omnibus spending bill, SAPA seems to actually obstruct major avenues of professional baseball, rather than save it.[18] Although the housing mandate was a win for the players, it was simply one major step in the right direction. Until SAPA is revised or replaced, it will continue to accelerate the denigration of minor league baseball and threaten the stability of MiLB. Michael Fasciale is a third-year law student at Seton Hall University School of Law in Newark, New Jersey. He serves as the President of the Seton Hall Entertainment & Sports Law Society, and as an Articles Editor on the Seton Hall Law Review. He can be reached on LinkedIn @Michael-Fasciale or on Twitter @MFasciale_. [1] See Jeff Passan, (@JeffPassan), Twitter (Oct. 17, 2021, 6:26 PM), https://twitter.com/JeffPassan/status/1449864524945936397. [2] See John Brucker, [Screw America’s Pastime Act: The Mirage of SAPA & Minor League Baseball Wages], 51 Seton Hall L. Rev. 517 (2020) (providing a comprehensive analysis of this argument). [3] Wages and the Fair Labor Standards Act, U.S. Dept. Of Labor, https://www.dol.gov/agencies/whd/flsa. [4] How The Minor Leagues Work, MiLB.Tv (Apr. 20, 2016), https://www.milb.com/news/gcs-173407668 (defining MiLB as “teams made up of players under the control of a major league system”). [5] The Fair Labor Standards Act of 1938, 29 U.S.C. § 213(a)(3)(A) (2018). [6] See Brucker, supra note 1, at 522–33 (arguing that the exemption is “almost offensively inconsistent with the modern realities of the sport’s main attraction [i.e., the players,]” and contending that such immunity “contradicts the original legislative intent of the law.”). [7] Jeffery v. Sarasota White Sox, 64 F.3d 590, 596–97 (11th Cir. 1995). [8] Jeffrey, 64 F.3d at 597. [9] Bridewell v. Cincinnati Reds, 155 F.3d 828, 832 (6th Cir. 1998). [10] Bridewell, 155 F.3d at 829. [11] Id. at 830. [12] Senne v. Kan. City Royals Baseball Corp., 114 F. Supp. 3d 906, 908 (N.D. Cal. 2015). [13] Senne v. Kan. City Royals Baseball Corp., 934 F.3d 918, 924 (9th Cir. 2019). [14] Senne, 934 F.3d at 925. [15] Id. [16] Save America’s Pastime Act, H.R. Con. Res. 5580, 114th Cong. (2018). [17] Jeff Passan, Major League Baseball to Require Teams to Provide Housing for Minor League Players Starting in 2022, ESPN (Oct. 17, 2021), https://www.espn.com/mlb/story/_/id/32412532/boston-red-sox-hit-2-grand-slams-first-2-innings-alcs-game-2-first-team-do-postseason. [18] Note that, even though SAPA appears to shield MLB from federal wage law disputes, it does not preempt state-law based claims.

Major League Baseball’s postseason is in full swing as Houston/Boston and Los Angeles/Atlanta battle for the AL and NL Pennants, respectively. Despite my disappointment over last week’s nonsensical check swing call by Gabe Morales, I’ve been trying to make the most of these games because it will be some time before we see baseball again, and it could be even longer than usual before we get regular season baseball back. This week, I appeared on the Simply Amazin’ Podcast with Tim Ryder, where we talked about the parameters surrounding the upcoming Collective Bargaining Agreement (CBA) discussions. For those that are not aware, the current CBA will expire on December 1 of this year. Under federal labor regulations, both sides must make the other aware of their intention to seek a change in labor terms more than 60 days before the expiration of the existing agreement and must inform a mediation service within 30 days of giving notice[1]. Major League Baseball and the MLB Players Association (MLBPA) both filed such notices with the Federal Mediation and Conciliation Service at the end of August. In 1994, Major League Baseball suffered a months-long work stoppage that only ceased when then-NY Federal District Judge Sonia Sotomayor ended the 232 day lockout by reinstating the previous labor agreement and order baseball to start its season with its regular players and not replacements while the negotiations proceeded[2]. It took some time for the game to recover, and that is my current fear for the game. For the first time in a while, Major League Baseball has done an effective job at marketing its young stars. Shohei Ohtani, Fernando Tatis, and Juan Soto are superstars that have now joined other marketable stars like Bryce Harper at the top of the game. Now may be the worst time ever for baseball to avoid playing its next season on time. With that said, this negotiation will come down to money, not fan concerns, so let’s look at what the two sides will battle over. Key Battles In 1994, MLB owners were hoping to implement a salary cap to create cost certainty. Today’s goals are not dissimilar. It’s not that the owners are openly campaigning for a salary cap akin to that found in the NFL or NBA, but instead for the new CBA to clarify service time and arbitration costs. This is the primary battleground for negotiations. Currently, MLB has a luxury tax that acts as a soft cap on team spending. The “Competitive Balance Tax” is currently set at $210M for the 2021 season and penalizes teams that go over that threshold by adding a “tax” to each dollar over that threshold. In the first year of exceeding the threshold, the team must pay 20% tax on the excess, 30% in the second year, and 50% in the third year[3]. Generally, teams try to stay below this tax threshold or reset their tax status after a year or two above the threshold. Some teams, however, don’t even exceed $100M in salary. MLB’s recent proposal during their first face-to-face meeting with MLBPA seeks to address both issues. First, MLB proposed creating a salary floor, which would require teams to spend at least $100M. However, the proposal also calls for a new, lower luxury tax threshold of $180M with a new 25% tax on excess spending[4]. The taxes collected would be shared with certain low-budget teams to help those teams reach the $100M threshold. Despite a salary floor being a win for the players, a lower salary threshold may have a chilling effect upon player salaries, which is obviously a primary concern for the players. MLB teams used to control a player’s rights forever. However, these days they are limited to 6 years of service time, as agreed upon by the MLBPA and the owners. MLB’s new proposal suggests a universal free agency age of 29.5 years. The result would be young stars like Juan Soto and Vladimir Guerrero, Jr. being controlled by their clubs for 10 years before they could reach free agency due to their early debuts. Under the current system, players are eligible for arbitration after 2 or 3 years of service time. MLB has proposed doing away with the arbitration system, which rewards players with higher pay for their good play. Instead, arbitration-eligible players would receive some portion (as determined by a new algorithm) of a $1B pool, which would be tied to league revenue in the future. The concept of tying a salary pool to league revenue is eerily similar to a salary cap, which will undoubtedly be a source of consternation for the players[5]. Final Thoughts At this moment, I have serious concerns over whether a deal will be reached between the owners and players ahead of the expiration of the current CBA on December 1st. There seems to be a lot of daylight between the MLB proposals and the players’ goals for the next generation of baseball. These proposals theoretically create methods for the owners to make more money by selling their teams because cost certainty leads to greater organizational value (see NBA, NFL), but may fall short in compensating the players for giving more freedom away. Any delay in reaching an agreement would have disastrous consequences for the game, beginning with pushing back the ability of teams to retool their rosters due to market uncertainty, and ending with a canceled World Series in the worst case scenario. Additionally, the MLBPA’s lawsuit against the owners, focused on Commissioner Manfred’s decision to unilaterally implement a 60 game season in 2020[6], hangs over these negotiations. My fingers are crossed for a fair and timely deal, but I won’t hold my breath. Keep it tuned to Conduct Detrimental for more on this issue as it develops! Tarun Sharma is a current 3L at the University of Minnesota and former Baseball Operations Professional for the San Francisco Giants and Arizona Diamondbacks. He is an occasional co-host on the Conduct Detrimental podcast and handles some social media and legal research for the Conduct Detrimental Group, as well. You can find his thoughts in the weekly Big Boom(!) Sports Law Newsletter by Conduct Detrimental or on twitter @tksharmalaw. Sign up at conductdetrimental.com to get the week’s biggest sports law news in your inbox! [1] “MLB, Players' Union File Labor Notices as Expiration of CBA Nears.” ESPN, ESPN Internet Ventures, 23 Sept. 2021, https://www.espn.com/mlb/story/_/id/32263799/mlb-players-union-file-labor-notice-expiration-cba-nears. [2] Fleisher, Larry. “Remembering the Time Supreme Court Justice Sonia Sotomayor Saved Baseball from Using Replacement Players.” Forbes, Forbes Magazine, 3 Apr. 2020, https://www.forbes.com/sites/larryfleisher/2020/04/03/remembering-the-time-supreme-court-justice-sonia-sotomayor-saved-baseball-from-using-replacement-players/?sh=752577674271. [3] Pistone, Andrew. "MLB Luxury Tax Explained: How It Works and Why It Exists." Franchise Sports. 15 July 2021. Web. 18 Oct. 2021. [4] Anderson, R.J. "MLB Proposes $100 Million Salary Minimum and $180 Million Luxury Tax in Latest CBA Negotiations, per Report." CBSSports.com. 19 Aug. 2021. Web. 18 Oct. 2021. [5] Axisa, Mike. "MLB Proposes New Service Time Rules in Latest CBA Negotiations, per Report." CBSSports.com. 02 Sept. 2021. Web. 18 Oct. 2021. [6] Axisa, Mike. "MLBPA Seeks $500 Million in Damages in Grievance against MLB over Shortened 2020 Season, per Report." CBSSports.com. 13 May 2021. Web. 18 Oct. 2021.

We’ve all seen it happen. A “no-touchdown” call gets reversed after the video footage showed the football barely crossing the invisible plane that separates the first yard line from the endzone. A safe-at-first call gets overturned after the high-definition camera captured the opposing runner’s cleat barely beating the baseball to first base. A “good-goal” call gets reversed after the film revealed the left-winger interfering with the goaltender before the puck entered the net. And a common foul gets elevated to a flagrant foul after the tape showed the center engaging in excessive contact against the opposing team’s point-guard. Many sports fans, if not most, want the same thing—the call ultimately made to be the one most likely to be correct. The specific standard of review employed for re-watching the video footage, therefore, has far-reaching ramifications. To promote justice throughout professional sports, the National Football League (NFL),[1] National Hockey League (NHL),[2] National Basketball Association (NBA),[3] and Major League Baseball (MLB)[4]—the four major professional sports leagues in the United States (i.e., the Big Four Leagues)—should employ a de novo standard of review for instant replay review. A de novo standard of review requires an appellate court to review a matter anew, as if no court had heard or decided on the matter before. The Big Four Leagues should use a de novo review for instant replay challenges because instant replay officials have access to superior information as compared to on-field referees (e.g., slow-motion replay, multiple camera angles, and the ability to re-watch a play numerous times). Accordingly, under a de novo standard, the instant replay officials (i.e., the “appellate court”) will not give deference to the on-field referees’ conclusions (i.e., the “lower court”) and will decide what the most likely call is only by consulting the video footage. Implementing such a standard will (1) promote accuracy and justice in sports; (2) benefit the league, the players, the referees, and the fans; and (3) ensure that the ultimate call was the one most likely to be correct. Some argue that using heightened replay review standards “maintain . . . the human element of sports” and “discourage coaches from frequently and frivolously challenging calls.”[5] Under the NFL’s clear and obvious visual standard, for example, a “pass interference ruling . . . will be changed in replay only when there is clear and obvious visual evidence that the on-field ruling was incorrect.”[6] The MLB’s clear and convincing evidence standard requires instant replay officials to decide “whether to change the call on the field, confirm the call on the field[,] or let [the stand] call on the field due to the lack of clear and convincing evidence.”[7] NHL instant replay refs can overturn on-ice calls if there is a “clear view . . . of the opposite or different circumstances.”[8] And for a call to be overturned in the NBA, “there [must be] ‘clear and conclusive’ visual evidence for doing so.”[9] But using heightened replay review standards for instant replay review in professional sports is unreasonable because it subverts accuracy, creates controversy, and invites imperfection throughout the game.[10] For example, on April 11, 2021, the Philadelphia Phillies played the Atlanta Braves on ESPN’s Sunday Night Baseball. In the top of the ninth inning, while the score was 6-6, infielder Alec Bohm attempted to score off of a pop fly to left field. The home-plate umpire, in real-time, called Bohm safe after he appeared to slide under the catcher’s tag. Bohm’s spike, in fact, missed the home-plate. The Braves challenged the call. Using the MLB’s current standard, the instant replay officials let the on-field call stand due to the lack of clear and convincing evidence that Bohn missed the home-plate.[11] The Phillies, with the help of the blown call, ended up winning the game 7-6. In using a de novo standard of review for instant replay review, the on-field call in the Phillies-Braves game would likely have been reversed because the replay review umpires would not have given deference to the on-field umpires’ conclusions. That is, the replay review umpires should have decided whether Bohm was safe only by re-watching the play in slow-motion and analyzing it through multiple camera angles; the home-plate umpire’s “safe” call should have been immaterial. If the MLB studied this play through a de novo lens, this call likely would have been overturned. Doing so would have promoted accuracy and justice by ensuring that the ultimate call made was the one most likely to be correct. Michael Fasciale is a third-year law student at Seton Hall University School of Law in Newark, New Jersey. He serves as the President of the Seton Hall Entertainment & Sports Law Society, and as an Articles Editor on the Seton Hall Law Review. He can be reached on LinkedIn @Michael-Fasciale or on Twitter @MFasciale_. [1] The NFL first implemented its replay review system in 1986. See Ty Schalter, Has the NFL’s Instant Replay Run Its Course?, FiveThirtyEight (Jan. 30, 2020), https://fivethirtyeight.com/features/has-the-nfls-instant-replay-run-its-course/#:~:text=When%20the%20league%20first%20implemented,replays%20led%20to%20a%20reversal. [2] The NHL first implemented its replay review system in 1991. See Dana Fjermestad, The Historian: Replaying History, NHL (Oct. 28, 2010), https://www.nhl.com/islanders/news/the-historian-replaying-history/c-541889. [3] The NBA first implemented its replay review system in 2001. See Scott Allen, Upon Further Reiew: A Brief History of Instant Replay, Mental Floss (Oct. 13, 2010), https://www.mentalfloss.com/article/26075/upon-further-review-brief-history-instant-replay. [4] The MLB first implemented its replay review system in 2008. See id. [5] Steve P. Calandrillo and Joseph Davison, Standards of Review in Law and Sports: How Instant Replay’s Asymmetric Burdens Subvert Accuracy and Justice, 8 Harv. J. Sports & Ent. L. 1, 25, 36 (2017). [6]Competition Committee Finalizes Replay Rule for 2019 Season, NFL Football Operations (Jun. 20, 2019), https://operations.nfl.com/updates/football-ops/competition-committee-finalizes-replay-rule-for-2019-season/ (emphasis added). [7]Replay Review, MLB, available at https://www.mlb.com/glossary/rules/replay-review (emphasis added). [8] Helene Elliot, Upon Further Review NHL’s Replay System is Good, Los Angeles Times (Dec. 19, 2011), https://www.latimes.com/sports/la-xpm-2011-dec-19-la-sp-elliott-nhl-20111220-story.html (emphasis added). [9]Referees in NBA Replay Center to Determine Certain Replay Outcomes for 2015-2016 Season (Sep. 30, 2015), https://official.nba.com/nba-replay-center-2015-16-season-changes/ (emphasis added). [10] See id., (arguing that sports should borrow standards of review from the world of law). [11] See Jomboy Media, MLB Gets Replay Review Wrong in Phillies vs Braves Game, A Breakdown, YouTube (Apr. 12, 2021), https://www.youtube.com/watch?v=w0ellSNbZ-4 (for a detailed video breakdown of the play).

Since August 2021, the NHL and greater hockey community have been following allegations surrounding Evander Kane. Kane’s ex-wife, Anna, accused him of gambling on and throwing his own games to win money with bookies. After an investigation, the NHL stated that they uncovered no evidence to confirm Anna’s 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. After Kane was cleared of the gambling allegations the league began investigating two new allegations against him. The first concerned claims that Kane violated the NHL COVID protocols. The second claim was that Anna alleged sexual assault and multiple instances of domestic violence in a divorce court filing. Following both allegations Kane and the San Jose Sharks agreed that he would not be participating in Sharks 2021 Training Camp. The NHL has wrapped up their investigation concerning the COVID protocol violation and the abuse allegations from Anna. The NHL has announced that Kane has been suspended 21 games for violating the NHL COVID Protocols.[1] During training camp, Kane was being investigated for using a fake vaccination card, however the NHL did not specify if he submitted a fake card. Kane will be eligible to play for the Sharks on November 30th against the New Jersey Devils. In a statement Kane said “I would like to apologize to my teammates, the San Jose Sharks organization, and all Sharks fans for violating the NHL COVID protocols. I made a mistake; one I sincerely regret and take responsibility for. During my suspension, I will continue to participate in counseling to help me make better decisions in the future. When my suspension is over, I plan to return to the ice with great effort, determination, and love for the game of hockey.”[2] The NHL COVID Protocols were adopted for the 2021-22 by the league and the NHLPA. The protocols do not specify fines and suspensions for players and teams who violate the protocols. However, the protocol says, “Established violations of, and/or lack of compliance with, the COVID-19 Protocol will result in significant Club and individual sanctions, including potential forfeiture of games, fines and reimbursements of expenses, loss of draft choices, and/or ineligibility for participation in training activities.”[3] Based on this, it is unclear how the league came up with a suspension of 21 games. Kane is the only player so far that has been reprimanded by the NHL for violating the COVID Protocols. Additionally, if Kane did submit a fake vaccination card the penalty may not seem too harsh because the NHL is recommending that players get vaccinated but is not mandating them. Section 1 of the protocol states “All individuals are strongly encouraged to become fully vaccinated (as defined below), ideally with an mRNA (Pfizer or Moderna) vaccine, where such option is available. Quite simply, vaccination is the most effective measure to protect against infection with COVID-19.”[4] However, submitting a fake vaccination card is illegal in Canada and the United States. Conversely, the NHL stated that the domestic abuse allegations by Anna could not be substantiated. It seems that the NHL has closed all matters relating to the abuse allegations. While the NHL has closed the door on the abuse allegations Anna can still press sexual assault charges against Kane. Prosecutors have the option to pursue charges even without Anna’s cooperation. California doesn’t have a statute of limitations for felony sex offenses which means Kane could be prosecuted any time in the future if there is sufficient evidence. Jessica Shaw is the Secretary of the New York Law School’s Sports Law Society. She can be found on Twitter @JessicaShaw22. [1] Ellis, Steven. “Evander Kane given 21-Game Suspension for Violating NHL's Covid-19 Protocol.” The Hockey News on Sports Illustrated, 18 Oct. 2021, https://www.si.com/hockey/news/evander-kane-given-21-game-suspension-for-violating-nhls-covid-19-protocol. [2] Id. [3] https://media.nhl.com/site/asset/public/ext/2021-22/2021-22COVIDProtocol.pdf [4] Id.

Sources told ESPN's Adrian Wojnarowski, “Ben Simmons had been thrown out of practice by Rivers after he declined several times to sub in for a drill. The 76ers have fined Simmons $1.4 million for his absence from four preseason games and levied numerous team fines for missed practices, on-court workouts, and meetings.” Due to the situation at practice, Simmons is suspended for the season opener which means he will lose an additional $227,000. Based on the Collective Bargaining Agreement (CBA), will this treatment be a new trend for star players demanding to be traded? There are not many situations in the sports world where the star player does not get what they want when demanding a trade. Based on his history Simmons’ is not used to not getting his way which has caused a lot of drama the past couple of months. In this situation the Sixers have the right to not trade him and could fine him accordingly for player misconduct. According to Article VI of the CBA, “when a player fails or refuses, without proper and reasonable cause or excuse, to render the services required by a Player Contract or this Agreement, or when a player is, for proper cause, suspended by his Team or the NBA in accordance with the terms of such Contract or this Agreement, the Current Base Compensation payable to the player for the year of the Contract during which such refusal or failure and/or suspension occurs may be reduced.” The Sixers do not have to pay Simmons just because he showed up to practice as well. In the CBA, “when a player, without proper and reasonable excuse, refuses or intentionally fails to attend any practice session scheduled by his Team, he shall be subject to such discipline as is reasonable under the circumstances.” When he refused to go into a team drill, he put himself into a situation to be disciplined. The Sixers deemed his actions to be conduct detrimental to the team. Also, under the CBA “the Player agrees: (i) to give his best services, as well as his loyalty, to the Team, and to play basketball only for the Team and its assignees; (ii) to be neatly and fully attired in public; (iii) to conduct himself on and off the court according to the highest standards of honesty, citizenship, and sportsmanship; and (iv) not to do anything that is materially detrimental or materially prejudicial to the best interests of the Team or the League.” This shows that players cannot get away with doing the bare minimum and actually have to do some work to in order to be paid. There may be a trend here with organizations dealing with star players. If players want to make a lot of noise it makes sense for teams to not trade them for less than just compensation. The team should not trade a player because the player wants to leave. If the trade does not make sense for the team, then they should not be entitled to do so. The players are committed to their contract and are expected to play all the way through if healthy. If players really want to leave the only viable options are for them to retire or agree on a buyout. The player could ultimately lose a large percentage of their contract. This could emphasis the players to act professionally so that they are marketable to be traded. Also, if it gets to be too much like it is for the Sixers than based on the CBA they can continue to suspend Simmons or keep him away from the team. The star player may not be happy, but the CBA gives organizations the chance to do what is best for the team.

Introduction to Austin Meadows: The Tampa Bay Rays season has officially ended and the organization’s focus has now shifted to preparing for the 2022 season, which includes dealing with impending free agents and arbitration eligible players. One of the Rays’ key hitters, outfielder Austin Meadows, surpassed the service time threshold in 2021 and will hit arbitration for the first time this winter.[1] In 2019, Meadows was one of the best outfielders in the American League, earning all-star recognition for the first time.[2] However, Meadows has struggled in the postseason each year with the Rays, and had a down-year in the abbreviated 2020 season before bouncing back in 2021.[3] With all this in mind, I took a deeper dive into Meadows’ arbitration profile from both the Player-side and the Team-side to figure out what his case may look like should it go to trial this winter.[4] Figures 1-3 are appended below. Player Representative Summary of Arbitration Profile: Meadows' reps are going to focus on three major themes when they build their case. First, plenty of time will be spent on Meadows’ elite 2019 season, where he finished in the top 20 in the AL in (i) HR, (ii) AVG, (iii) fWAR, and recieved down-ballot MVP votes.[5] He was one of only 7 AL hitters to finish in the top 20 in each of those categories, along with Mike Trout, Alex Bregman, Xander Bogaerts, George Springer, Rafael Devers, and Nelson Cruz. Second, Meadows' reps will point to his role on the Rays as one of the key run-producers since his first full season in Tampa in 2019. Meadows ranks in the top 2 on the Rays in GP, R, H, HR, RBI, SLG, and fWAR since 2019, leading the team in most of those categories.[6] Lastly, Meadows’ reps will focus on his strong platform season performance, especially his RBI total (106) which ranked in the top 10 in MLB.[7] Meadows has consistently driven in runs and hit for power, and the 2021 season showed his ability to produce when on the field - Meadows ranked at or near the top of the Rays leaderboard in almost all substantial offensive categories.[8] This could be a result of Meadows’ clutch hitting - his career batting average increases from .251 with the bases empty, to .273 with runners on base, and .284 with runners in scoring position.[9] Team Summary of Arbitration Profile: There are several key themes the Rays will touch upon in their profile of Meadows. The Rays will concede that Meadows had a strong, all-star quality season in 2019 but also bring up that he was not able to repeat that performance in 2020 or 2021. In Meadows’ all-star season he batted .294 and got on base at a rate of .364.[10] Yet, in 2020 his slash dipped to .205/.296/.458 and in 2021 it was .234/.315/.458.[11] A MLB average slash line in 2020 was .245/.322/.418 and in 2021 it was .244/.317/.411,[12] so Meadows was below league average (except for slugging) in both seasons at the plate. Aside from RBIs, Meadows did not rank in the top 30 in MLB in any category in 2021. Secondly, the Rays will argue that Meadows’ value is capped by his poor defensive play. Meadows’ career DRS and UZR are both negative, indicating that Meadows’ defense has been below average. Out of Meadows’ 142 games played in his platform season, he made 79 appearances in the outfield and 60 at DH, which limited his value to only his offensive performance.[13] Lastly, the Rays will highlight Meadows’ prolonged slump in the postseason. Meadows is a career 12 for 83 in the playoffs with a paltry slash of .145/.193/.289. In the Rays 2020 playoff run, Meadows went 2 for 13 in the ALDS, 2 for 22 in the ALCS, and 3 for 16 in the World Series. Player Comparisons: The MLB CBA dictates that “comparative baseball salaries” be one of the critical factors taken into account to determine a Player’s arbitration award.[14] Figure 1 identifies my projected market range for Meadows based on platform season and career performance, with player-side comps in green and team-side comps in red. Based on Meadows’ profile and the market for comparable players, the following are projected ranges of filing numbers: Player Filing Range: $4.6M - $4.8M Team Filing Range: $3.8M - $4.0M Midpoint Range: $4.2M - $4.4M Meadows Representatives’ Comparisons: Mark Trumbo - $4,800,000 Trey Mancini - $4,750,000 Travis Shaw - $4,650,000 In arguing that Meadows should be valued above the $4.2M - $4.4M midpoint, Meadows’ representatives will make the argument that he is more like the green group of hitters, particularly Trey Mancini, than the red group (Fig. 1). It’s clear that Meadows had a stronger platform season, so the key to this line of argument will be overcoming Meadows’ inferior career numbers. Meadows trails the green group of hitters in quantitative career stats, a large result of playing less games than the others, but his strong platform season makes up for that (Fig. 2-3). However, only Trumbo and Conforto had ever earned an all-star appearance, something that Meadows accomplished in 2019. Additionally, Meadows is the only person in Figure 1 who ever received any MVP votes. Rays Comparisons: Michael Conforto - $4,025,000 Eugenio Suarez - $3,750,000 Nomar Mazara - $3,300,000 The Rays have a relatively straightforward argument: prove that Meadows and Michael Conforto have had nearly identical production (“statistical twins''). Conforto earned $4.025M after his first time through arbitration, which is likely to be below the midpoint (Fig. 1). If the Rays can convince the panel of arbiters that Meadows is more similar to Conforto than to any of the green group of players, they will win this case. Meadows and Conforto had very similar platform seasons - Meadows with a slight advantage in RBIs and in defensive metrics, Conforto with better qualitative stats and higher WARs (Fig. 2-3). Eugenio Suarez is also very comparable to Meadows both in the platform season and in their careers, and Suarez’s salary ($3.75M) is way below the midpoint (Fig. 1-3). The Rays can also distinguish Meadows from the green group of players by looking at career games played - each of the three players above Meadows were consistently available for their teams while Meadows struggled with injuries and sometimes platoons. Further, unlike Meadows, both Shaw and Trumbo were strong defensive players when they hit arbitration for the first time. Mancini never hit below .242 whereas Meadows has only hit above .242 once. Dean Rosenberg is a 2L student at Benjamin N. Cardozo School of Law in New York City. He can be found on LinkedIn at https://www.linkedin.com/in/dean-rosenberg-4a1507a1/ and on Twitter @deanrosen7. Figure 1: ​​1 TE Market Figure 2: 1TE Market Platform Season Statistics Figure 3: ​​1 TE Market Career Statistics [1] https://www.baseball-reference.com/players/m/meadoau01.shtml [2] https://www.mlb.com/news/2019-all-star-game-rosters [3] https://www.baseball-reference.com/players/m/meadoau01.shtml [4] This article will not address possible rebuttal arguments for each side [5] https://www.fangraphs.com/leaders.aspx?pos=all&stats=bat&lg=al&qual=y&type=8&season=2019&month=0&season1=2019&ind=0&team=0&rost=&age=&filter=&players=&startdate=&enddate= [6] https://www.fangraphs.com/leaders.aspx?pos=all&stats=bat&lg=all&qual=100&type=8&season=2021&month=0&season1=2019&ind=0&team=12&rost=&age=&filter=&players=&startdate=&enddate= [7] https://www.fangraphs.com/leaders.aspx?pos=all&stats=bat&lg=all&qual=y&type=8&season=2021&month=0&season1=2021&ind=0&team=0&rost=0&age=0&filter=&players=0&startdate=2021-01-01&enddate=2021-12-31&sort=7,d [8] https://www.fangraphs.com/leaders.aspx?pos=all&stats=bat&lg=all&qual=100&type=8&season=2021&month=0&season1=2021&ind=0&team=12&rost=&age=&filter=&players=&startdate=&enddate= [9] https://www.fangraphs.com/players/austin-meadows/15672/splits?position=DH/OF&season=0 [10] https://www.baseball-reference.com/players/m/meadoau01.shtml [11] Id [12] https://www.baseball-reference.com/leagues/majors/bat.shtml [13] https://www.baseball-reference.com/players/m/meadoau01.shtml [14] https://www.dol.gov/sites/dolgov/files/olms/regs/compliance/cba/2019/private_/30majorclubs_k9831_060122.pdf

October 29th is fast approaching. While this date should be meaningless, the attorney for Jeremy Pruitt, the former Nick Saban assistant and head coach at the University of Tennessee, has given some meaning to the date by designating it as the final day for the University of Tennessee to reach a settlement with his client regarding his termination as the coach of the Volunteers. One-half of Conduct Detrimental’s fearless leadership duo, Dan Lust, has previously discussed this situation: After three years as the head coach for the University of Tennessee Volunteers football team, where he compiled an underwhelming 16-19 record (including a record of 10-16 in Southeastern Conference play), Jeremy Pruitt was fired by the University of Tennessee after a disappointing 3-7 record for the 2020 season. The university took the position that Pruitt was being fired for cause because of potential recruiting violations that were revealed during an internal investigation of the program. In the termination letter that was sent to Pruitt in January, the University of Tennessee noted that the potential violations were “likely to lead to an [National Collegiate Athletic Association (“NCAA”)] finding of Level I and/or Level II violations of one or more Governing Athletic Rules” and that the conduct, which was attributed to assistant coaches and recruiting staff members, were “the result of either [Pruitt’s] material neglect or lack of reasonable preventive compliance measures.”[1] Social media lit up at the time with rumblings of cash being delivered by University of Tennessee football staff members delivering cash to recruits in McDonald’s bags And then things went silent for a few months: Pruitt’s firing was no longer a focus of the news cycle and the University of Tennessee moved on by hiring Josh Heupel as its fifth head coach since 2009. Then, on October 19th, Jeremy Pruitt entered the news cycle again as the media began reporting that Pruitt’s attorney sent a letter, dated October 7th, to the University of Tennessee’s general counsel, Ryan Stinnett, seeking a meeting to facilitate a multimillion-dollar settlement related to Pruitt’s firing. Pruitt, through his attorney, is taking the position that the firing was not proper; essentially, the argument being made is that the University of Tennessee did not have cause for its firing of Jeremy Pruitt. But Jeremy Pruitt’s attorney may have made a rookie mistake in using the media to pressure the University of Tennessee with bad publicity to encourage a settlement with his client. In his letter, Pruitt’s attorney gave the university the October 29th deadline to settle or face a lawsuit that would “cripple UT’s athletic programs for years.” Allegations were lobbied in the letter that administration at the University of Tennessee encouraged, or were even involved in, recruiting tactics that would violate NCAA rules and that boosters for the university have been involved in recruiting in ways that violate NCAA rules.[2] In his response letter to Pruitt’s attorney, Stinnett took on these allegations – which may be construed as thinly veiled threats to encourage a settlement – directly and with force.[3] If, assuming these allegations, which the University of Tennessee vehemently denies and that Stinnett calls “vague and unsupported,” are true, they only serve as further proof that the University of Tennessee had cause to fire Jeremy Pruitt pursuant to paragraph 3.2.2(c) of Jeremy Pruitt’s employment agreement with the university due to Pruitt’s failure to report such findings.[4] If Pruitt knew of some of these allegations of wrongdoing that his attorney is now asserting against the University of Tennessee while he was employed as the university’s head coach, this knowledge and subsequent failure to report the potential violations to university leadership would be justification for Pruitt’s for cause firing. The failure by Pruitt’s attorney to carefully consider this implication when sending a letter to the University of Tennessee has given the university further ammunition to support its case that the firing of Pruitt was rightfully done for cause. And, as evidenced by Stinnett’s response letter, the university has no desire to back down or settle because of the threats made in the letter sent by Pruitt’s attorney. Let this serve as a warning to all attorneys: be careful that you do not strengthen the other side’s arguments when zealously defending your client. [1] Tennessee firing football coach Jeremy Pruitt after internal investigation (espn.com); Jeremy Pruitt lawyer threatens to cripple Tennessee athletics in suit (knoxnews.com). [2] Tennessee firing football coach Jeremy Pruitt after internal investigation (espn.com); Jeremy Pruitt lawyer threatens to cripple Tennessee athletics in suit (knoxnews.com). [3] University Respond to Pruitt's lawyers | PDF (scribd.com). [4] University Respond to Pruitt's lawyers | PDF (scribd.com).

Baseball has an inherent feeling of inclusivity. It’s a sport played around the world at all ages and enjoyed by fans of all backgrounds. There are occasions when the game is not easily enjoyed by some fans as compared to others. In October of 2018, a few Seattle Mariners fans sued Washington State Major League Baseball Stadium Public Facilities District alleging that T – Mobile Park (formerly Safeco Park) does not adhere to stadium standards set out by the Americans with Disabilities Act (ADA).[1] The ADA is the governing body that addresses discrimination against individuals with disabilities. The ADA requires that places of public accommodation must provide full and equal enjoyment for people with disabilities.[2] Sports stadiums are not exempt from this concept and must be “accessible and usable” by those with disabilities. The Department of Justice (DOJ) implements the rules of the ADA and in the early 90’s created Accessibility Stadiums which established the rules for stadiums to follow to create an accessible environment for those with disabilities. Stadium Guidelines establishes that wheelchair seating must have a line of sight that is comparable to the line of sight that is provided for other spectators. A distinction is also made for stadiums where spectators stand. The Guidelines establish that seating locations must provide a line of sight over standing spectators. (Image diagraming the sightlines described by Accessible Stadiums owned by the DOJ)[3] The plaintiff fans used wheelchairs and sat in the designated areas around the ballpark in various sections. The plaintiff’s expert claimed that “the sightlines of spectators using wheelchairs were nearly always more obstructed than the sightlines of spectators not using wheelchairs.”[4] Naturally, the defendant owners and operators expert countered this statement claiming “spectators using wheelchairs are ‘able to see over the shoulders and between the heads of people in the row immediately in front, and over the heads of people in the second row in front of the accessible seating.’”[5] The district court ruled in favor of the Owners and Operators and the plaintiffs appealed. The district court recited both requirements, that fans using wheelchairs must be able to see the playing surface between the heads and shoulders of fans immediately in front of them and that fans using wheelchairs must be able to see the field over the heads of those two rows in front. Plaintiffs argued that the district court made the mistake of only addressing the first requirement and not the second in their decision. In September of this year, the Ninth Circuit Court of Appeals heard the plaintiffs appeal and agreed with plaintiffs. The court of appeals was not satisfied with how the district court came to its conclusion and ruling for owners and operators and decided to vacate the decision and remand it back to the lower court for further proceedings. No decision was made in regard to whether the sightlines are compliant with the ADA guidelines. While there was no decision regarding the actual sightlines at the stadium, this decision comes as a sort of win for the plaintiffs. This is a chance for further hope, a chance for further analysis and review to be done as far as what is actually visible for those in wheelchairs when at the stadium. The district court did not make their decision by examining both standards, sightlines over the first and second row of fans. The court has the opportunity to re-examine and there is hope for changes to be made for a more accessible and enjoyable experience for those with disabilities. Civil suits usually end in a settlement where money is paid to the plaintiffs to end the litigation however, a settlement is unlikely for two reasons. First, there is likely no chance for a settlement in this case because what the plaintiffs are looking for here is a better experience at the ballpark and no amount of money improves the experience when you are at the ballpark. Finally, a settlement is also unlikely because the defendant owners won initially at the trial level and likely feel like they will win again even after this victory for plaintiffs. With a victory already under their belt, the defendants will likely feel that they will win again, all they must do is show that those sitting in the wheelchair accessible sections can see over the heads and shoulders of those in the first and second rows in front of them. At this time there is no set date for the case to be re-tried. [1] Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., 11 F.4th 1101, (9th Cir. 2021) [2] 42 U.S.C. 12182(a) [3] https://www.ada.gov/stadium.pdf [4] Landis v. Washington State Major League Baseball Stadium Pub. Facilities Dist., at 1104 [5]Id

A trade in sports is most commonly an exchange of “goods” between two teams. For example, an athlete or draft pick in exchange for each other or cash. There is another form of trade in sports we don’t see quite as often. When an athlete reaches a milestone, and wants the memorabilia attached to it, a fan can stand in their way. This is most common in baseball after a milestone home run. The fan who caught the homer will be asked by a team staff member to return the baseball to the athlete as it is sentimental. Soon, these lucky fans would realize the value of the object and the position they were in and use this as leverage to make some hefty demands. In July of 2011, Christian Lopez caught a home run ball at Yankee Stadium, that hit was also Derek Jeter’s 3,000th of his career. Lopez was quickly escorted by Yankee team officials to meet Jeter, and was given season ticket in Legends suites, and signed memorabilia from the Yankee captain. He said in a press conference that it was a “no brainer” that he would give back the sentimental token. But was it? The estimated value of that ball was a quarter of a million dollars! The tickets value was about 70,000. (And Lopez may have had to pay taxes on them too.) Soon fans would start to wise up. In 2015, Yankee teammate Alex Rodriguez would also reach this milestone in the same fashion. (Jeter’s 3,000th was an uncharacteristic, Rodriguez like, deep homer run into the bleachers in left. Whereas A-Rod’s was a “Jeterian” inside out swing resulting in a homer run aided by the Yankee stadium short porch.) That ball was caught by the human ball hawk - Zack Hample. Hample has made a name for himself running around baseball stadiums all over the country, catching baseballs, often times running across multiple sections with zero regard for anyone around him to make these catches. After each catch he celebrates like a child and posts the video of his “heroics” online. Hample is obviously a student of the memorabilia industry, and understands the value he had in his hand. After many attempts to have the ball returned, and what was reported as some outrageous offers in exchange, the YouTuber still refused to hand the ball over. Where Hample succeeded another fan in may of 2019 failed. In Detroit, Eli Hydes caught a home run off the bat of Albert Pujols which was the sluggers 2,000th career RBI. Like Hample, Hydes refused to return the ball, despite some generous offers from the team. Hydes however left the ballpark without ever authenticating the ball by Major League Baseball deeming it worthless. (Hample’s ball was authenticated per a picture on his Twitter account where he has me blocked.) This all brings me to Sunday in Tampa Bay. Tom Brady and the Bucs were playing the Chicago Bears. Brady threw a slant over the middle to Wideout Mike Evans for a touchdown late in the first quarter. The score was Brady’s 600th of his career, the only QB ever to reach that milestone. Evans must not have known this at the time, as he quickly ran over and handed the ball to a fan in the front row. Immediately Bucs security started scrambling to get the ball back. After not much argument the fan, a 29 year old named Byron Kennedy, returned the ball. He told reporters he was promised some autographed swag, but was dismayed to learn the balls value was worth far north of $500,000 and likely closer to $750,000. The question is can a case be made for Kennedy to have the ball returned. Was the deal he “negotiated” not in good faith? There are a few factors that come into play here. If the barter between the fan and Brady is deemed a contract, it is fair to say this contract should be void. For one Kennedy obviously was caught up in this shocking moment and was quoted saying that while he was hesitant he knew how much the ball meant to Tom. This may indicate that he felt pressured into the agreement and could be filed under “undue influence”. The use of undue influence by one party over another puts the free will of one of the parties entering the contract into question. Another argument can be made that this is the case of an Unconscionable Contract, defined as an instance where a contract is so heavily one sided and unfair to one of the parties that it is deemed unenforceable under the law. Kennedy receiving a signed jersey or helmet in exchange for a ball valued at nearly a million dollars would definitely qualify as one sided. A third argument can be made that this was simply a mistake by Kennedy. He did not know the value of the ball at the time the deal was done, leaving the contract vulnerable. Unfortunately for Kennedy there are other factors. First, the determination of weather or not this is a contract at all. He agreed to return the ball in exchange for a small fee, does this qualify as a contract? Second, the ball may have never belonged to Kennedy. Despite Evans handing the ball over, the ball is the property of the Tampa Bay Buccaneers, and there is likely a clause in the fan conduct agreement (although it is not in the ticket terms and conditions) which relinquishes the fans rights to all jerseys, ball, and any other items they receive from an athlete at the game. With all that, $750,000 is no small chunk of change, and Kennedy’s claim would likely not be a welcome sight for Brady’s legal team. A quick settlement would likely be sent the fans way to make this go away quietly. Or, does he lose the case become the fan who sued Tom Brady, after his own negligence cost him thousands.