The Phillie Phanatic is one of Major League Baseball’s most recognizable mascots, but did you know that its existence and ownership was at the heart of a recent sports law controversy? You would be excused if you didn’t, but thanks to a recent out-of-court settlement, it appears that both the Phanatic’s creators and the Philadelphia Phillies are satisfied with their new arrangement, even though terms of their settlement are not immediately apparent. The Phillie Phanatic was commissioned after the 1977 season, when the Phillies and executive vice-president Bill Giles[1] decided that a zany mascot like the San Diego Chicken would serve them better than their current mascots, Revolutionary War-era brother Philadelphia Phil and sister Philadelphia Phillis.[2] The Phillies commissioned former Jim Henson artists Bonnie Harrison and Wayde Erickson to create the Phillie Phanatic, which, according to canon, is a flightless bird born in the Galápagos Islands that emigrated to the Phillies’ then-ballpark, Veterans Stadium.[3] While the Phanatic made his public debut in Philadelphia in 1978, Harrison and Erickson actually retained the copyright to the Phanatic at first.[4] Six years later, the creators agreed to sell the copyright to the Phillies for a sum total of $250,000[5]--which in 1984 was a little less than one month’s salary for Hall of Fame third baseman Mike Schmidt.[6] In 2019, the creators attempted to invoke 17 U.S.C. § 203, in order to reclaim the copyright and negotiate a new license commensurate with new economic realities in Major League Baseball. If Harrison and Erickson could regain ownership of the copyright, they could potentially be free to sell the Phillie Phanatic to another team in any other market...or maybe even take the Phanatic on the road as the ultimate barnstorming free agent, once again, kind of like the San Diego Chicken. In response to Harrison and Erickson’s threats to attempt to negotiate a new copyright deal, the Phillies sued Harrison and Erickson, asserting that they are the true copyright owners of the Phillie Phanatic and that the creators had “an improper copyright.”[7] The next year, in 2020, the Phillies literally made their own Phillie Phanatic, in what was clearly a maneuver to prove how little the Phillies thought the creators’ copyright was worth. The changes are easy to see in this side-by-side[8]...the Phanatic’s blue feathers are now a lighter shade of blue, it has a slightly smaller snout (a Ryne-oplasty by Ryne Sandberg, perhaps?), and it wears blue socks with red shoes instead of red stirrups with green shoes. But Harrison and Erickson still saw a green bird wearing a Phillies jersey with a star for a number and the name Phanatic on the back, so they amended their countersuit against the Phillies citing “willful violations” of the copyright.[9] After the Phillies and the Harrison/Erickson team exchanged their first pitches, U.S. Magistrate Judge Sarah Netburin (that’s a special kind of judge who specializes in sorting out evidence...kind of like pre-calling the balls and strikes), from the Southern District of New York (that’s the federal courthouse based in Manhattan, New York City), concluded that Harrison and Erickson owned the copyright to the original Phillie Phanatic, but that the Phillies made enough substantial changes to make their new Phanatic a “derivative product” that was eligible to stay on the Phillies’ payroll.[10] Reading Netburin’s verdict, it sounds like she had no choice but to rule in the Phillies’ favor for the new Phanatic: To be sure, the changes to the structural shape of the Phanatic are no great strokes of brilliance, but as the Supreme Court has already noted, a compilation of minimally creative elements, ‘no matter how crude, humble or obvious,’ can render a work a derivative.[11] Meanwhile, in this writer’s opinion, the Phillies were smugly confident all along in their likelihood of success in this case. In a tweet from the Philadelphia Phillies themselves, they said their Phillie Phanatic “has evolved, but clearly hasn’t matured.”[12] Ultimately, after the Magistrate Judge made her findings, she transferred the case to Senior U.S. District Judge Victor Marrero.[13] But as of last Friday, the parties agreed in principle to settle their lawsuit.[14] Why would the Phillies settle the lawsuit if they were so confident? We don’t know the terms of the settlement, but maybe Harrison and Erickson accepted peanuts to go away. Or at least enough money so that the Phillies could know that “The Original Phillie Phanatic” wouldn’t be sticking its tongue out at the Phillies, stealing publicity and goodwill. Ultimately, unless something goes terribly wrong, the Phillie Phanatic will not be a free agent and he will still be delighting and/or terrorizing fans of all stripes at Philadelphia Phillies home games. Mike Engle is an associate attorney for the United States federal government. During his time at Hofstra Law School in New York, his articles were published in the Hofstra Labor & Employment Law Journal and the DePaul Journal of Sports Law & Contemporary Problems. He was also an invited guest on the now defunct vlog Law & Batting Order. Mike resides in Upstate New York with his wife, Gillian. Interact with him on Twitter @EngleLaw29, but only during off-duty hours and preferably not during Montreal Canadiens games! [1] Moran, Robert, Phillies Should Be Allowed to Use Modified Phanatic, Federal Judge in Copyright Dispute Says, THE PHILADELPHIA INQUIRER (Aug. 11, 2021), https://www.inquirer.com/phillies/philadelphia-phillies-phanatic-mascot-lawsuit-copyright-20210811.html. [2] Philadelphia Phil and Phillis, BASEBALL REFERENCE (June 7, 2019, 13:31) (accessed Oct. 12, 2021), https://www.baseball-reference.com/bullpen/Philadelphia_Phil_and_Phyllis. [3] Felthousen-Post, Cyn, 1978: Phillie Phanatic Makes His First Ever Appearance, Starting Weird Legacy, GROOVY HISTORY (Apr. 25, 2020) (accessed Oct. 12, 2021), https://groovyhistory.com/phillie-phanatic-philadelphia-history-facts [4] AlBaroudi, Wajih, Phillie Phanatic Staying in Philadelphia After Phillies Settle Lawsuit with Mascot Creators, CBS SPORTS (Oct. 8, 2021, 20:14), https://www.cbssports.com/mlb/news/phillie-phanatic-staying-in-philadelphia-after-phillies-settle-lawsuit-with-mascot-creators/ [5] Id. [6] Mike Schmidt Stats, BASEBALL REFERENCE (accessed Oct. 12, 2021), https://www.baseball-reference.com/players/s/schmimi01.shtml#all_br-salaries [7] Reichard, Kevin, Split Decision on Phillie Phanatic Copyright Battle, BALLPARK DIGEST (Aug. 24, 2021), https://ballparkdigest.com/2021/08/24/split-decision-on-phillie-phanatic-copyright-battle/. [8] Moran, supra at Note 1; Farzetta, Marc, TWITTER (@MarcMarzetta) (Feb. 23, 2020, 11:42), https://twitter.com/MarcFarzetta/status/1231620380764311553?s=20. [9] Hermann, Adam, Phillie Phanatic Legal Battle Reignites With a Fiery Update, NBC SPORTS (Oct. 1, 2020), https://www.nbcsports.com/philadelphia/phillies/phillie-phanatic-creators-reignite-legal-battle-claim-team-now-stealing. [10] Reichard, supra at Note 7. [11] Id., quoting Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). [12] Philadelphia Phillies, TWITTER (@Phillies) (Feb. 23, 2020, 13:26), https://twitter.com/Phillies/status/1231646496929480707?s=20. [13] Moran, supra at Note 1; Reichard, supra at Note 7. [14] AlBaroudi, supra at Note 4.

Roberto Clemente's three sons: Roberto Clemente Jr., Luis Roberto Clemente, and Roberto Enrique Clemente sued the Commonwealth of Puerto Rico and its Governor, Hon. Pedro R. Pierluisi Urrutia, among others. Pierluisi imposed a mandatory $21 commemorative license plate purchase on Puerto Ricans who acquire a license in 2022. The yellow license plate celebrates the 50th anniversary of Roberto Clemente's 3,000th hit with a picture of Clemente, the number "21," and the phrase "3,000 hits." Plaintiffs say they did not authorize any use of their Father's likeness. The plaintiffs say the revenue from this government action are funneled in their entirety to the Roberto Clemente Sports District Fund, administered by the Department of Treasury for the exclusive use of the Department of Sports and Recreation. "The Government has informed publicly that it expects to obtain $15,000,000.00 from these endeavors in year 2022." Competing with that notion, the Clemente children explain that they are not associated with the license plate program and never authorized it. The plaintiffs claim they are the sole owners of the Roberto Clemente trademark, his right of publicity, and his likeness. A search in the United States Patent and Trademark Office shows that Roberto Clemente is a registered trademark owned by Clemente Properties, Inc., a company owned by Clemente's sons. "It is hard to imagine a more appalling use of the Roberto Clemente mark," the Plaintiffs say. "The Roberto Clemente mark is being used as a source of funds destined to destroy his dream and his creation: Ciudad Deportiva." They say Puerto Rican people have assumed they were behind it and, as a result, have "suffered innumerable attacks and disdains in the televised, written and on-line press, in social networks, in events, and during every day activities." "The People righteously rejected the imposition of a charge for the use of the Roberto Clemente mark and likeness in the license plates and vehicle certification tags, in times when our economy is suffering and the cost of living in Puerto Rico increases every day." Plaintiffs say on March 30, 2022, they notified Defendants through the Secretary of Justice about the trademark infringement and lack of authorization for its use. However, they claim, Defendants continued to "knowingly" and "intentionally" misappropriate the mark. Plaintiffs filed suit for Lanham Act violation in the United States District Court for the District of Puerto Rico, seeking injunctive relief and damages. They retained intellectual property management agency CMG Worldwide. Jason Morrin is a recent graduate of Hofstra Law School. He was President of Hofstra’s Sports and Entertainment Law Society. He will be joining Zumpano, Patricios, & Popok as a law clerk, awaiting July, 2022 Bar Exam results. He can be found on Twitter @Jason_Morrin.

The Phil Mickelson v. PGA Tour feud is no longer confined to the media, as the embattled lefty now heads a group of ten other golfers – including Bryson DeChambeau and Talor Gooch – in suing the Tour for alleged violations of antitrust law. The 105-page complaint includes several allegations, including (1) unlawful “monopsonization” of the market for elite golf event services; (2) unlawful agreement to restrain trade (with the European Tour); (3) unlawful restraint of trade; (4) breach of contract; and (5) a declaratory judgment that the Tour’s suspensions of the plaintiffs violated their right to a fair procedure. Below are key takeaways from the complaint. Unlawful Monopsonization of the Market The first count of the complaint alleges that the Tour is behaving as an illegal monopsony, which occurs when a single buyer substantially controls a market because they are the exclusive purchaser of services in that market. In this case, the market is the competition and play of elite professional golf. The count alleges that the Tour has abused its monopsony power through anticompetitive conduct including the threat of lifetime bans, restrictions on players competing in conflicting events, and suspending players who defected to the Saudi-backed LIV Golf. These actions, the complaint alleges, harm the plaintiffs by preventing competition for their services, preventing sponsors from working with them, and “depress[ing] compensation for the services of elite professional golfers below competitive levels.” In short, the argument is that the Tour has excessive control over where golfers can play and sell their services, and that control has an anti-competitive effect on the market. Some of these arguments are a symphony of inconsistency. To begin with, many of the plaintiffs received jaw-dropping money – in some cases more than their entire career earnings – just as a sign-on bonus for joining LIV. While it’s true that some plaintiffs may not have received bonuses exceeding their career earnings, LIV is shelling out $255 million in purses over its eight events this year, with the last place finisher in each event earning $120,000. By comparison, the purse for the Master’s tournament – golf’s crown jewel – was $15 million last year, the most in the history of the event. Massive sign-on bonuses, record-breaking tournament purses, private jets, and guaranteed six-figure payouts for last-place finishers do not exactly scream “depressed compensation below competitive levels.” Additionally, although many sponsors have dumped golfers who have defected to LIV, there is no indication that such actions were the result of direct or even indirect pressure from the PGA Tour. It is far more likely that these sponsors simply do not wish to be associated with LIV due to the source of its funding – the Saudi Public Investment Fund – which has been accused of spending billions of dollars to “sports wash” its long track record of human rights abuse. For instance, UPS severed its 14-year relationship with Lee Westwood following his request for a release to play in LIV’s first event. Notably, UPS is not even an official sponsor of the PGA Tour. Far from attributing their decision to any alleged pressure exerted by the PGA Tour, UPS instead pointed to the fact that continued sponsorship of Westwood would be “inconsistent with their business priorities.” The PGA Tour will argue that they are not telling the plaintiffs that they cannot play on the LIV Tour, but simply telling them to pick a side and that doing so is not illegal. In that respect, the plaintiffs are not precluded from playing golf on any other Tour. Additionally, since the Tour is a membership organization, its members agree to abide by certain rules and conditions, and the plaintiffs have chosen not to do so and were well-aware of the repercussions. Moreover, LIV has poached several big names and has drawn vast media attention over the last several months. Although LIV itself is not a plaintiff, this early success is starkly inconsistent with claims of anti-competitive effect. Finally, the plaintiffs here will be hard-pressed to show the actual injuries they claim given their significant sign-on bonuses, collateral benefits, and the guaranteed prize money in their new league. Unlawful Restraint of Trade and Unlawful Agreement to Restraint Trade Under these counts, the complaint alleges that the PGA Tour and DP World Tour (formerly European Tour) have unlawfully reached agreements with the purpose of eliminating competition by way of a group boycott of the plaintiff’s services. The complaint makes an interesting revelation that Saudi Golf representatives met with European Tour officials about a potential partnership in July 2021. At this meeting, European Tour officials allegedly expressed interest and acknowledged LIV’s appeal but stated that their main concerns were the PGA Tour’s “mighty power” and the need to avoid a “collision course” between the two tours. These statements, the complaint alleges, prove that the PGA Tour’s influence prevented the European Tour-LIV partnership from ever taking shape and instead led to an unlawful strategic alliance between the European Tour and the PGA Tour. However, reports of a strategic alliance between the two tours stretch as far back as November 2020, more than eight months before this alleged meeting. In turn, it is far more likely that the European Tour made a business decision to maintain its existing partnership with an established and respected organization rather than sever ties in favor of an unproven, upstart venture. These counts repeatedly refer to a memo written by PGA Tour Commissioner Jay Monahan, which outlined the strategic alliance plans, as a “Monopoly Manifesto,” and claims that after the agreement was reached, the two tours enforced their regulations in a manner that had not been previously seen. The regulations the complaint refers to are conflicting-event releases, which have previously been granted to golfers seeking to compete in non-Tour affiliated tournaments. The complaint alleges that the two tours departed from their “longstanding practice” of granting such releases when they denied all requests from golfers to play in the LIV series. However, Jay Monahan has repeatedly distinguished the historical practice of granting such releases with the requests made by those seeking to play in LIV. In short, the Tour has freely permitted its members to play in one-off events that happen to conflict with a PGA Tour-sanctioned tournament. These one-off events pale in comparison, however, to an eight-event series where many of the events directly conflict with its existing tournament schedule. The complaint further alleges that the PGA Tour has “leaned on” the Major governing bodies, including the Royal & Ancient Golf Club of St. Andrews, Augusta National, and the PGA of America, to “do its bidding” by maximizing the threat to defectors that they may be excluded from playing in Major tournaments. These allegations are inconsistent with the fact that each of these governing bodies have permitted LIV players to play in their respective Major tournaments despite the PGA Tour’s imposition of suspensions. Additionally, the complaint does not appear to reference any specific instances of conduct by the PGA Tour with respect to these governing bodies and simply makes blanket statements alleging threats and coercion. It remains to be seen whether the governing bodies will change their criteria for tournament entry moving forward. Miscellaneous Notes Mickelson Suspension. One notable takeaway from the complaint is that Phil Mickelson was suspended by the PGA Tour in March for attempting to recruit players to LIV. His request for reinstatement was then denied in June after he played in the first LIV event in London, and his suspension was extended again into March 2024 after he played in the second LIV event. After Mickelson’s controversial comments early this year about joining LIV despite their “horrible record on human rights,” Mickelson suggested that he was voluntarily stepping away from the game of golf to focus on himself. The substance of this complaint, however, suggests that this decision may not have been entirely voluntary. DeChambeau Signing. According to reports, Bryson DeChambeau initially signed on with LIV on June 10, 2022. The signing came as a surprise to many since Bryson made a public statement that he was staying on the PGA Tour just a few months prior. However, according to the lawsuit, Bryson was actually under contract with LIV at the time he made this public statement. Bryson has never been very popular among PGA Tour members or fans. Although his talent is unquestionable, he has often been criticized for being a “phony” by PGA Tour members who claim that his public persona is inconsistent with who he actually is. Making public statements of loyalty to the PGA while under contract with a competing entity would seem to validate those criticisms. Jury Trial. In addition to a temporary restraining order, the plaintiffs are also seeking a jury trial to recover monetary damages. Such damages would amount to the loss of career opportunities, reputation harm, and loss of income-earning opportunities as a result of being unable to play in the FedEx Cup Playoffs As mentioned above, it seems like an uphill battle at best for many of these plaintiffs who are making more money than at any point in their careers to prove loss of income-earning potential. Timing of Filing. The plaintiffs, in this case, were notified of potential consequences of defection to LIV, including exclusion from the FedEx Cup Playoffs, as far back as early 2021. Additionally, the plaintiffs were actually suspended on June 9, nearly two months ago. Despite these warnings, three players (Talor Gooch, Matt Jones, and Hudson Swafford) are now seeking a temporary restraining order stressing the urgency of the matter and the threat of immediate harm since the Playoffs are set to begin on August 8th. This delay will likely be featured heavily in the Tour’s response, as reflected by Monahan’s letter to members after the filing stating that the lawsuit came this week “despite knowing they would be ineligible for tournament play as early as June, and of course, the years’ worth of communication in advance of their decision to join the Saudi Golf League.” Final Takeaways Although the complaint alleges dozens of anti-competitive practices, the PGA Tour has successfully defended against similar allegations in the past. In response to the onslaught of allegations, the Tour will assert that they are not restraining competition, but merely protecting their own business interests by telling golfers to pick a side. The golfers who have chosen the side of LIV golf will be hard-pressed to show any actual injury since they are flaunting their newfound riches all over social media. In my opinion, being unable to play in a couple of FedEx Playoff events with purses far less than each individual LIV event despite months of notice that they would be excluded from doing so does not rise to the level of irreparable harm the complaint posits. The source of LIV’s funding – the Saudi Public Investment Fund – is a double-edged sword. Although it provides LIV with seemingly endless amounts of money, it also presents a key vulnerability in their unlawful group boycott claims. Namely, sponsors and Major governing bodies have plenty of independent justifications for refusing to align themselves with the Saudi-backed league separate from any anti-competitive motivation. With the FedEx Cup Playoffs just around the corner, we can expect the PGA Tour’s response in the coming days. Expect the Tour to lean heavily on the fact that the plaintiffs agreed to be subject to the PGA Tour’s policies and conditions, that they are not restraining competition by telling the plaintiffs to choose a side, and that their actions are necessary to protect their own business model, and that the plaintiffs should not be rewarded by the delayed filing. For its part, the PGA Tour has assured members that they should be confident in the legal merits of its position. Ultimately, this case will take quite a while to resolve and will have massive consequences for both the PGA Tour and the game of golf. John Nucci is a recent graduate of Penn State Law where he served as President of the Sports and Entertainment Law Society. He can be found on Twitter at @JNucci23 or reached via email at [email protected].

It is a bad month to be a PR representative within the motorsports industry. If the Alex Palou saga wasn’t bad enough, it seems Alpine F1 and Oscar Piastri have not learned from the conflict that occurred less than a month ago in IndyCar. As previously reported, Chip Ganassi Racing reported via social media that they had signed Alex Palou to a contract keeping him with the team through 2023. Palou quickly jumped on Twitter and refuted the allegations, stating that he did not sign a contract nor approve the media post and was instead leaving Ganassi for Arrows McLaren. This conflict has led to Chip Ganassi Racing suing Palou for breach of contract. This suit is currently ongoing. In almost the same fashion as seen within IndyCar, Alpine F1 has posted via social media that they have signed their developmental driver and Formula 2 champion Oscar Piastri to move up to F1 in 2023. Similar to Palou, Piastri released a tweet refuting the news stating, “I understand that without my agreement Alpine F1 have put out a press release late this afternoon that I am driving for them next year. This is wrong and I have not signed a contract with Alpine for 2023. I will not be driving for Alpine next year.” (Piastri) Similarly, in both cases, we are unsure what is truly occurring. Within the Palou case, the team has maintained that Palou is signed to be a driver at Chip Ganassi Racing in 2023, while Palou has stated that he has no obligations to Ganassi and will leave for McLaren at the end of the season. While we currently have less information in the Piastri case, it is clear that the logic runs parallel to what has been said in the IndyCar case. It is bizarre how this error could occur twice in such a short time span. The news comes as longtime Alpine driver Fernando Alonso announced that he was leaving the team to join Aston Martin F1 Team. Alpine were quick with their announcement making it less than 24 hours after Alonso’s. Oscar Piastri last drove for Prema Racing in Formula 2 as well as being a part of Alpine’s developmental program. While Piastri has not raced in F1, he holds an impressive resume, including winning the 2020 F3 Championship and the 2021 F2 championship. Given Piastri’s results in lower series, it is clear that several F1 teams would be interested in recruiting his talent. We will see in the coming days how Alpine F1 and Piastri will decide to handle this conflict. It is important to note that Alpine F1 is based in the United Kingdom, and its parent company Renault s.a.s., is based in France, while Piastri is a citizen of Australia. If a suit is filed, it will be interesting where it will be held. Jack Bradley is currently a Law school student at Duquesne Univesity School of Law and alum of Georgetown University (MPS) and Penn State University (BA). Jack is also the Co-founder and President of Poppy Packs a 501c3 charity and former Head of Marketing and Communications for Norm Benning Racing. Source Piastri, Oscar Twitter. Aug 2.2022. https://twitter.com/OscarPiastri/status/1554527452231262210

Phil Mickelson, Bryson Dechambeau, and nine other golfers competing in the Saudi Arabian-funded LIV Tour are suing the Professional Golfers Association (PGA). LIV claims the PGA is acting as a monopoly in the professional golf market. The LIV tour, LIV is the Roman numeral for the Arabic number 54, started play this year, and they are going head-to-head with the PGA to be the number one professional golfing league. As reported by CNN, Greg “The Shark” Norman is a leader for LIV, and he recruited Mickelson, Dechambeau, Talor Gooch, Hudson Swafford, Matt Jones, and others to join LIV after these golfers competed in the PGA. As reported by CBS Sports and other networks, Norman and LIV even tried to recruit current NBA on TNT analyst Charles Barkley, but they were unsuccessful. LIV is seeking a temporary restraining order that would allow its golfers to compete in the PGA’s FedEx Cup Playoffs. However, PGA Commissioner Jay Monahan banned LIV golfers from joining or rejoining the PGA Tour. LIV responded by claiming that PGA is a monopoly under antitrust law. A monopoly is defined under the Sherman Act §2, 15 U.S.C. §2 states “[e]very person who monopolizes, attempts to monopolize, combines, or conspires with person(s) to monopolize trade or commerce with the United States, or foreign nations, commit a felony].” There are two elements for an entity to be classified as a monopoly. First, they must possess monopoly power in their relevant market, and the power’s willful acquisition or maintenance must be distinguished from growth or development as a superior product. Simply, there must be monopoly power, and the individual or entity must show they have anticompetitive or exclusionary conduct over those trying to enter the same market. In the golfing market, the PGA has not had serious competitors entering the male golfing market until LIV entered the market this year. The PGA has shown they have monopoly power because no other male professional golfing league could compete with the PGA. This year, they have shown anticompetitive or exclusionary conduct by banning LIV golfers from the PGA Tour or sharing in the revenues the PGA made from the tournaments they held, such as the Masters, the U.S. Open, the British Open, and so forth. The PGA banned LIV golfers from competing in next week’s FedEx Cup playoffs, and the LIV golfers argue this action by the PGA is exclusionary. This action by the PGA excludes LIV golfers because the PGA does not want other golfers from another professional league taking up spots when golfers from the PGA, in their mind, rightfully deserve those spots. The PGA has a negative view of Saudi Arabia, and Saudi Arabia funds LIV. If the PGA Tour wants to avoid this lawsuit, in my opinion, they should allow these eleven golfers to compete in the FedEx Cup Playoffs. Mickelson and DeChambeau are two recognizable names and extraordinary golfers the two past generations recognize. Should they compete, the PGA would gain a larger profit and fan support. The PGA is, essentially, holding a monopoly over the male golfing world, and LIV, by suing and asking for a temporary restraining order, is trying to show to the sports world that the main pro leagues are monopolies in their respective sports. Take the NFL for example, the United States Football League recently concluded its season, and the Xtreme Football League will kick off in the next few years. Ever since the AFL and NFL merged back in 1970, no other football league has been able to compete with the NFL. The XFL’s second stint was the best and most efficient to do so until the COVID-19 pandemic shut it down back in February/March of 2019. Should LIV prevail in this lawsuit, and are granted their request for a temporary restraining order, they are setting a precedent for other leagues to challenge the “Big Four,” the NFL, MLB, NHL, and NBA. Alex Patterson is a 3L at Thomas M. Cooley Law School in Lansing, Michigan. He played football for seventeen years as an offensive and defensive lineman. He graduated from Lindenwood University-Belleville in 2018 with a Bachelor’s in Sports Management. He can be followed on Twitter @alpatt71.

In February, shortly after former Dolphins head coach Brian Flores filed a lawsuit against the National Football League (NFL) and certain teams, including the Miami Dolphins, the NFL began investigating the Miami Dolphins over the claims made in Flores’s complaint. Today, the NFL announced its findings from the investigation, including a suspension for owner Stephen Ross. On January 10, 2022, after posting a winning record in two of his three seasons with the Dolphins, the Dolphins fired head coach Brian Flores citing a lack of collaboration. Specifically, Ross stated, “I don’t think we were really working well as an organization that it would take to really win consistently at the NFL level.” On February 1, 2022, Flores filed a class-action lawsuit against the NFL, the New York Giants, the Denver Broncos, and the Miami Dolphins. Since then, the plaintiffs have amended the complaint to add multiple coaches, including former Cardinals head coach Steve Wilks, and other teams. In the complaint, Flores alleged that the Dolphins racially discriminated against him by depicting Flores as an “angry black man” due to Flores’s refusal to follow the owner’s directive, which was to lose games to acquire higher draft picks. The allegations include owner Stephen Ross telling Flores that “he would pay him $100,000 for every loss.” Other allegations include Flores meeting with “a prominent quarterback” on a yacht for lunch with Ross, a violation of league tampering rules. After meeting with the quarterback and Ross, Ross painted Flores as difficult. In response to the allegations, the NFL launched an investigation led by former Securities and Exchange Commission Chair Mary Jo White. A veteran of football investigations, White also led investigations into the Washington Commanders and Dan Snyder. White’s investigation was limited to (1) whether the Dolphins violated NFL tampering rules and (2) whether the Dolphins intentionally lost games to improve the team’s draft position. As to tampering, White found that beginning in 2019, the Dolphins had “impermissible communications” with Tom Brady while Brady was under contract with the New England Patriots. Further, the Dolphins had impermissible contact with Brady after the 2021 season while Brady was under contract with the Tampa Bay Buccaneers. Lastly, in January 2022, the Dolphins had impermissible contact with New Orleans Saints head coach Sean Payton. “The investigators found tampering violations of unprecedented scope and severity,” said Commissioner Roger Goodell. As to intentionally losing, White found that the Dolphins did not intentionally lose games. On the other hand, “Mr. Ross expressed his belief that the Dolphins’ position in the upcoming 2020 draft should take priority over the team’s win-loss record.” However, any comments from Ross about paying Flores $100,000 to lose were not to be taken seriously. As a result of the findings, among other punishments, the Dolphins will forfeit a first-round selection in the 2023 draft (the Dolphins own two first-round picks) and a third-round selection in the 2024 draft. Additionally, Ross is suspended through October 17, 2022, and fined $1.5 million. What Does This Mean? At the very least, the findings support some of the allegations in the Flores lawsuit, which is still ongoing. Currently, the lawsuit is waiting on a ruling on the NFL’s motion to compel arbitration, which would prevent the public from hearing the lawsuit. In May, Nevada Judge Nancy L. Allf denied a similar motion in the NFL’s case against Jon Gruden. Thus, reading between the lines, the NFL could be releasing White’s findings because it anticipates a denial in Flores’s suit, which would keep the lawsuit in open court. Now, Flores has support for his allegations, and if the lawsuit remains in court, more could be on the way. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber

BY: JACKIE ADEDOKUN In the coming months the Great Britain will be stepping up their review of gambling in the country in an effort to reform their Gambling Act of 2005 (Gambling Act). This important piece of legislation governs all regulation of gambling in Great Britain. Just last week, the United Kingdom’s Prime Minister, Boris Johnson, appointed Chris Philip as the new Gambling Minister. Philip is expected to take a more stringent approach to the gambling legislation overhaul than his predecessors, having previously campaigned for stricter regulation on the subject before. One of the biggest changes to possibly come out of this reform will be the banning of gambling sponsors on sports jerseys. This could have huge ramifications for many sporting teams in the UK and none bigger than the Premier League and the Championship. Of the 20 teams currently apart of the English top flight nine have front shirt sponsorships with gambling companies that are worth $79.22 million (£57.64 million).[1] There are currently six clubs in the Championship with such sponsorships on the front of jerseys. The increased movement to clamp down on gambling’s influence in the sport comes after a greater need to address mental health concerns, decrease gambling addiction, and for prominent sporting leagues to set a better example for all viewers, but especially younger viewers. In the past, teams in both the Premier League and the Championship have decided to not sell children shirts with gambling sponsors on the front of the shirt. Many believe that this in of itself should tell clubs and others alike that gambling should not have a place in football. In addition to the aforementioned reasons to address gambling’s effect in the UK, the Gambling Act has largely been viewed as outdated. As its name suggest, it was created in 2005 but didn’t take affect until 2007. Its main aims were to keep gambling crime free and promote transparency. However, it has been ill prepared to address online gambling which has exploded in popularity in recent years. The ability to place bets wherever one is, has welcomed a level of comfortability that could not have been foreseen 16 years ago and this has only increased after the COVID-19 pandemic resulted in numerous country-wide lockdowns. Transparency, or a lack thereof, has also become a major issue in recent years. Under the Gambling Act, gambling operators selling into the British market must have a gambling commission license to transact with and advertise to British consumers. Much to the annoyance of the British government and some British citizens, many foreign-based gambling companies have struck partnerships with UK based companies that hold gambling licenses and then they operate through them. British companies and licenses are at the forefront of some of these gambling operations, but the real owners are not British. In the end it is unclear who exactly is running the business and who bettors are giving their money to. So, what could a gambling ban mean for the likes of the Premier League and the Championship? Talks of a gambling reform in Britain have been ongoing for years, but even though it is now picking up steam, we probably will not see any real change take affect until the 2023 season. The 21-22 season has just begun and legislation on this matter will most likely go into 2022. Broadcasting rights revenue are massive in the Premier League and will soften the blow if gambling is ousted. Furthermore, different businesses other than gambling will always be looking to sponsor a team in the Premier League given the amount of exposure clubs in that league get. The Championship is a slightly trickier since many teams in this league do not make as much money as those in the Premier League. Additionally, the league’s title sponsor is a gambling company. The official name of the league is the SkyBet Championship. Gambling reform has not arrived yet, but many clubs and leagues are going to have to rethink the sponsorships they have in place. 1. https://www.yahoo.com/now/uk-ban-gambling-jersey-ads-040154565.html

We have new developments in the exhausting, ever-changing saga surrounding Kyrie Irving and his vaccination status. Fans shouldn’t start dusting off their Brooklyn #11 jerseys anytime soon. Irving reportedly still isn’t vaccinated, but his status for the 2021/2022 NBA season has become clearer. The Brooklyn Nets announced earlier this week that Irving will not be a part-time member of the team for the upcoming NBA season. In terms most of us can understand – Irving needs to show up 40 hours a week or not show up at all. To place this announcement into context, we have to backup and ask why the point guard was ever considered a part-time basketball player in the first place. I wrote weeks ago on New York City adopting a mandate which required members of the Brooklyn Nets to be vaccinated to play and practice in their home arena. At the time, there was hope this mandate would persuade Irving to become vaccinated and reclaim his status at point guard for the Brooklyn Nets. San Francisco also adopted a similar rule and their vaccination requirement, along with the potential of losing $15 million, was enough to push Golden State Warrior Andrew Wiggins to get the shot and rejoin his team. Unlike Wiggins, Irving still hasn’t been convinced. Every member of the New York Knicks and Brooklyn Nets has been vaccinated besides Irving. Irving’s thoughts and feelings around the vaccine remain unclear. Irving conducted an Instagram live session on Wednesday night where he attempted to get his side of the story out. He talked for over 20 minutes in which he stated he “was against people losing their jobs to vaccine mandates” and he was coming to this decision “from logic and not emotion.” If Irving is just buying time while he “conducts his own research”, please don’t tell ESPN NBA announcer Jeff Van Gundy. While a cloud of confusion lays over this entire story, one part remains obvious – Irving’s hesitancy has left the Brooklyn Nets caught between a rock and a hard place. The Brooklyn Nets have their sights set on an NBA title and Kyrie Irving playing basketball helps them get them there. Unless something changes, the only way Irving plays for the Nets this season is if he joins the team for road games and becomes a part-time player. This week, the Nets shot down that possibility. Kyrie Irving was set to make $35 million this year. The NBA, along with the Players Union, has already announced that any game a player misses because of his refusal to get vaccinated will cost them a game check. In Irving’s case, game checks amount to a hefty $381,181.22. Based on this announcement from the league, Irving will lose game checks for every home game he remains unvaccinated.[1] As a result of not receiving the shot, Irving is forfeiting nearly half his salary. So one question remains, what about the other half? The Nets announced that while they do not welcome Irving’s part-time presence in their organization, they will still pay him as if he were there. That means Irving will be paid half his salary (the half he would have received for playing road games) to sit at home and contemplate his views on modern science and freedom of choice. This decision is a signal that the Brooklyn Nets and their pro-vax owner Joe Tsai are walking on eggshells.[2] It wasn’t feasible from a basketball standpoint to only have Irving join his teammates on the court for road games. But they also don’t want to upset the superstar in hopes that he eventually joins the team and helps bring a championship to the borough. So, the solution the Nets came up with is to pay Irving his road game checks while the team foots the bill. In a league that revolves around its superstars, Brooklyn had no choice but to cater to Irving by paying half his salary. The Nets still have players on their current roster, Kevin Durant and James Harden, who remain close to Irving. Revoking his entire salary sends a dangerous message to other superstars around the league. But for curiosity’s sake, what would happen if the Nets completely turned their back on Irving and withheld his entire pay? We can break down Irving’s salary into two categories: · Home games – Irving is ineligible by N.Y.C. mandate so he will not be paid · Away games – Irving is eligible but the Nets have refused his services The NBA has not required their players/employees to be vaccinated after it received major pushback from the Players Union. Since then, the league has pushed pro-vaccine information and relied on local mandates to persuade players who remain on the vaccine-shaped fence. The NBA has nothing to do with local mandates being placed on players, and that’s why the league and the Players Union agreed that players who fail to comply with local requirements will not be paid for games missed. However, by law Irving can still play in road games and it was Brooklyn’s decision to turn him away. If the Nets decided to withhold his entire salary signaling an act of war with Irving, it would almost certainly be challenged by the Players Union. Whether you think it’s realistic to have a player only join the team while residing in hotel rooms or not ­– Irving would still be offering his services to the Nets who are refusing to acctept. Irving hasn’t officially been suspended by the league or his team for violation of contract. If his entire pay was withheld, the Players Union would undoubtedly file a grievance under Article XXXI of the NBA Collective Bargaining Agreement. This battle would be turned over to a neutral third-party arbitrator who would sort out what the Nets owe their point guard. It’s a fascinating debate if it were to ever happen. Irving is offering his services but only at half the rate. The Brooklyn Nets have zero control over the New York City mandate and can argue that keeping a player onboard for only half the games isn’t sustainable. Therefore, under the Nets line of reasoning, by choosing to only play in half the games Irving is cratering his overall value to the franchise. All of this is just a hypothetical thought exercise, for now. Brooklyn Nets GM Sean Marks made it clear he won’t be ruffling any feathers and the team will pay Irving half his salary in addition to welcoming him back with open arms if/when he joins full-time.[3] However, in a league that often transforms into a reality television show designed for sports fans, nothing is off the table. We’ll just have to wait and see how this NBA season progresses, with or without Kyrie Irving. Matthew Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and instagram @MattNettiMN. [1] Ben Rohrbach, Failure to get vaccinated could cost Nets star Kyrie Irving more than $381K per home game, Yahoo Sports, (last visited Oct. 13, 2021) https://sports.yahoo.com/failure-to-get-vaccinated-could-cost-nets-star-kyrie-irving-more-than-381000-per-home-game-144044969.html. [2] Brian Lewis, Nets owner Joe Tsai’s message to Kyrie Irving amid vaccine drama, NY Post (last visited Oct. 13, 2021) https://nypost.com/2021/09/30/nets-owner-joe-tsais-kyrie-irving-hope-amid-vaccine-drama/. [3] Tim Bontemps, Brooklyn Nets say Kyrie Irving won't play, practice until eligible under local COVID-19 vaccination mandate, ESPN (last visited Oct. 13, 2021) https://www.espn.com/nba/story/_/id/32387481/brooklyn-nets-say-kyrie-irving-play-practice-eligible-local-covid-19-vaccination-mandate.

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.