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.

Sports law is an ever-evolving and expanding subset of the law, and as the recent NCAA v. Alston ruling, NIL, and Super League controversy have shown, there are far more legal roles in sports than the typical pro agent. From arbitration and player unions to compliance and contracts, a law degree can open the door to a wide range of opportunities at both the collegiate and professional level of athletics. Many law schools around the country recognize the potential of sports law and offer some opportunities in the field, while some boast full-fledged sports law programs and concentrations. However, unlike business law and health law, U.S. News & World doesn’t offer lists detailing sports law programs; this makes the law school search difficult for a prospective 1L with aspirations for a career in sports. Enter the Sports Law Program Spotlight! In this series, we highlight a law school that offers strong opportunities in the field of sports law. These opportunities include, but are not limited to: a sports-centric curriculum; sports law certifications; unique legal internship opportunities within the sports market; and sports law journals. The focus of this month’s Sports Law Program Spotlight is… Villanova University Charles Widger School of Law (VLS) Known nationally for their reputation on the hardcourt, Villanova’s Jeffrey Moorad Center for the Study of Sports Law has brought the University a championship pedigree in the courtroom. Created in 2012 with a $5 million leadership gift from Jeffrey S. Moorad (VLS ’81), the Center is one of only a few dedicated to the study of sports law, presenting a wealth of academic and practical opportunities to its students. Whether you’re interested in collegiate or pro athletics, you’d be hard-pressed to find a better city to study in than Philadelphia: Temple University, Drexel University, and University of Pennsylvania are only a short drive away, and the Phillies, Eagles, Flyers, Union and 76ers represent each of the big five professional sports leagues. VLS has an exclusive externship program with the Villanova Athletics Compliance Department. However, VLS students don’t confine themselves to Philly’s city limits. Nearby New York, Boston, Baltimore, and D.C. feature massive sports markets which prospective sports lawyers may explore. Many Villanova Law grads certainly have: Sean Sansivieri ‘08 is VP of Business and Legal Affairs for NFL Players, Inc., and Eric Galko ‘17 is director of the East-West Shrine Bowl while also running Optimum Scouting and Optimum Sports. Additionally, through their work with Villanova Athletics, VLS students are regularly selected to the NCAA Postgraduate Internship Program in Indianapolis, IN. VLS hosts the Jeffrey S. Moorad Sports Law Journal Symposium, which is covered annually by national media outlets like ESPN and the New York Times. Some notable panelists from past years include Jeffrey Kessler (attorney for the USWNT and Alston), Darren Rovell (Action Network), and Erika Nardini (Barstool Sports). On top of the Symposium, VLS hosts myriad competitions for students to flex their legal muscles. Villanova Law and the UCLA Anderson School of Management co-host the annual Moorad Gameday Case Competition. “It is the only sports case competition of its kind in the nation,” says Villanova SLS President Austin Meo, “bringing together JD and MBA students to both present and negotiate solutions to cutting edge topics in sports law and business.” For any gamers out there, VLS has something that should definitely pique your interest: beginning in 2021, the school will host the Villanova Law Esports Negotiation Competition– the first competition of its kind! VLS doesn’t just host competitions; much like their basketball team, they win competitions, too! Villanova dominates Tulane’s Pro Football Negotiation Competition, winning it four of seven years and finishing 3rd in 2021. Austin Meo '22 and Ryan Murphy '22 became the first 1L-only team to ever win the event back in 2020; talk about young talent! Villanova has also finished as semi-finalists (out of 40 teams) in each of the past two Tulane International Baseball Arbitration Competitions. At the 2021 Tulane Pro Basketball Negotiation Competition, Villanova's two teams finished 1st and 4th, a year after finishing 2nd and 5th in 2020. These are tournament accolades even Jay Wright has to admire. So there you have it: Villanova’s Jeffrey Moorad Center is a cut above the rest in the sports law field. Situated in an incredible sports market, featuring robust professional opportunities, offering a strong curriculum, and hosting innovative competitions, VLS students graduate with a wealth of knowledge and a prestigious degree that carries immense weight in the sports law world. If you have any interest in the field, I implore you to consider Villanova Law. (Special thanks to VSLS President Austin Meo, whom I had the pleasure of interviewing for this article)

If you’ve seen the 2015 movie Concussion starring Will Smith then you’re well-aware of the NFL’s (mis)handling of brain injuries involving former players. For years the NFL attempted to cover-up and deny the severity of brain trauma caused by the sport. Finally in 2011, after several high-profile suicides and a swarm of personal injury claims filed by former NFL players, the league could no longer bury their head in the sand to the trauma-induced reality. The league entered into to a compensation settlement agreement with former players to pay athletes who suffered from brain injuries due to the violent nature of the sport. Under the settlement agreement, a former player who has a “qualifying diagnosis” is eligible for a payout. The qualifying diagnoses were listed as Dementia, Alzheimer’s, Parkinson’s, ALS, and CTE. Notably, the NFL laid out a set of procedures that a retiree had to complete that would “allow” them to qualify for compensation after being diagnosed by an NFL-approved physician.[1] So if we revisit that depressing 2015 Will Smith movie – an overly optimistic viewer could tell themselves that after years of suffering and being lied to, NFL players were finally getting a sense of justice. Their pain and suffering would be recognized by the NFL and they were set to receive compensation. This story had a semblance of a satisfying ending, albeit taking a demoralizing route to get there. Since the settlement agreement was reached in 2011, nearly a billion dollars has been paid out to NFL retirees for neurocognitive problems linked to NFL concussions. But as it turns out, the latest NFL settlement could make for a compelling sequel to Concussion. In a story predicated on the NFL being forced to “tell the truth”, it seems that the NFL’s enforcement of their settlement agreement has been filled with race-norming tactics that led to former Black athletes receiving less compensation than their White counterparts. When confronted with the issue, much to the surprise of no one, the league lied and denied these practices were occurring.[2] Najeh Davenport and Kevin Henry, two Black NFL retirees, brought a civil lawsuit against the league in which they alleged race-norming tactics were being used when evaluating retired players for Dementia. This binary scoring system in Dementia testing ­– one for Black people, one for everyone else – was developed in the 1990s as a crude and controversial way for neurologists to factor in a patient's socioeconomic background. However, experts claim it was never meant to be used to determine payouts in a court settlement. The complaint, which can be found here, states “The NFL’s actions were designed to, and did, make it far more difficult for Black retirees to receive benefits for the brain injuries which are a routine result of playing pro football.”[3] In simplest terms, for a retiree to qualify for compensation under the settlement agreement they must be evaluated by a physician. These physicians were commonly provided by the NFL. Physicians must then diagnose the retiree with one of the specified brain traumas that demonstrate they are suffering from enough debilitating brain damage to qualify for compensation. These procedures were put into place to gatekeep who receives compensation under the settlement agreement and to set standards for the NFL to recognize that a player was experiencing enough harm. To properly evaluate the level of brain trauma a retiree had suffered, the physician would have to estimate the cognitive ability the athlete had before playing football. Throughout the settlement process physicians were automatically assuming (through a statistical manipulation called “race-norming”) that Black players started with worse cognitive functioning than White players. Therefore, it was more difficult for Black players to prove that football had worsened their cognitive functions. When you are starting from a lower point, it’s easier for a physician (and the NFL) to claim that football didn’t have a significant impact on your brain capabilities. As a result, Black retirees wouldn’t qualify for compensation under the settlement agreement. When the lawsuit by Davenport and Henry was filed, NFL spokesperson Brian McCarthy categorized the allegations as “entirely misguided”. The allegations can be summarized to this: The NFL, through a settlement process that was put into place after years of denial surrounding head trauma, was now implementing race-norming tactics to manipulate compensation to Black NFL retirees suffering from head trauma. This story is dark even for the NFL. Davenport and Henry both suffered a handful of diagnosed concussions throughout their NFL careers. They both currently suffer from symptoms of brain trauma that includes persistent headaches, memory loss, and depression. Even though both NFL retirees struggle performing basic every-day life activities, both were denied compensation under the settlement agreement. In Davenport’s case, he was initially granted qualification by a physician due to the level of cognitive function his brain test showed. However, the NFL appealed and recalculated Davenport’s scores using racial norms. Subsequently, he was denied compensation. In a decision that was likely celebrated in NFL headquarters, Senior U.S. District Judge Anita B. Brody dismissed Davenport and Henry’s dispute against the NFL and ordered the two sides to mediation.[4] The battle between Black retirees and the NFL would no longer play out in public through court. After months of closed-door negotiations between the NFL and attorneys representing Black retirees, last week the two sides submitted a proposal to the court in which the NFL agreed to end race-based adjustments in Dementia testing. Interestingly, the settlement agreement will also include that the NFL admits to no wrongdoing.[5] But if you read between the lines, this settlement agreement all but confirms that the NFL was using race-norming tactics to test for Dementia for years. The deal between the two sides reads, "No race norms or race demographic estimates -- whether Black or white -- shall be used in the settlement program going forward". Black retirees will now be given the opportunity to have their tests rescored or, in some cases, seek a new round of cognitive testing. But the current deal still allows the NFL to the shield themselves from opening up their books and providing demographics of who’s applied and who’s been paid under the settlement agreement.[6] While this is a win for Black retirees, the NFL will breathe a sigh of relief by sweeping this under the rug as quickly as possible. The NFL has consistently failed to tell the truth. This proposed deal is no different. 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 and find him on Linkedin at https://www.linkedin.com/in/matthew-netti-ba5787a3/. [1] BBC News, NFL to end race-based testing in dementia claims (last visited Oct. 22, 2021) https://www.bbc.com/news/world-us-canada-58993679. [2] MaryClaire Dale, Lawyers: NFL Concussion Awards Discriminate Against Blacks, AP (last visited Oct. 22, 2021). [3] Complaint Henry v. NFL, 2:20-cv-04165 (E.D. Pa. 2020). [4] Timothy Rapp, Judge Dismisses Lawsuit Challenging “Race-Norming” in NFL Dementia Tests, Bleacher Report, (Mar. 8, 2021). [5] BBC News, NFL to end race-based testing in dementia claims (last visited Oct. 22, 2021) https://www.bbc.com/news/world-us-canada-58993679. [6] Id.

As reported by Mark Berman of Fox 26 Houston, subpoenas were being sent out by Johna Stallings, Human Trafficking Section Chief for the Harris County District Attorney’s Office. That is a story that has already been told. However, the question remains, what does that mean for Deshaun Watson, the Houston Texans, the Miami Dolphins, Carolina Panthers, the always seemingly present mystery team, and the NFL itself? Two months later and we haven’t heard anything. With the NFL Trade Deadline looming on November 2, the Houston Texans reportedly could trade Deshaun Watson any day. However, I am writing to say that decision for any team acquiring Mr. Watson would be very, very unwise. This isn’t like the Trevor Bauer case. Deshaun Watson is in way worse shape. I can tell you seeing the words Human Trafficking Unit on subpoenas is something Mr. Watson should take very, very serious. The Human Trafficking Unit likely oversees a broad range of sex crimes including Prostitution, Sexual Assault, and obviously Human Trafficking itself. My first thought was solicitation of prostitution. In numerous Complaints, Mr. Watson allegedly solicited his massage therapists to perform various sexual acts on him. Recently, solicitation of prostitution was made a felony in the State of Texas. The legislative intent was likely to deter potential johns if it were from soliciting prostitutes. That is because a vast majority of them are being trafficked. That doesn’t necessarily mean that they were kidnapped out of a Paris penthouse and put up for sale at an international auction on a yacht. Some owe debts to drug dealers and if the drug dealer forces them to engage in sexual relations to pay off said debts, that drug dealer is engaged in human trafficking. Mr. Watson’s alleged solicitation crimes took place before the law was enacted on September 1, 2021, so it is highly unlikely a grand jury would be convened to indict Mr. Watson for a crime that wasn’t even a felony when he allegedly committed them. As stated in previous articles, I was a felony prosecutor during my three years in Sarasota and Manatee County, Florida. If a Division Chief (such as Ms. Stallings) was ever personally responsible for a case, the case was big. It was almost always a case where the office was seeking life in prison or seeking the death penalty. If Ms. Stallings is the one sending out the subpoenas, there is high probability that she will be the one who will presenting the case to the grand jury. If she presents the case to the grand jury and a true bill is returned, she herself would likely be primarily responsible for prosecuting the case. That thinking being is that she herself knows all the intimate details about the cases and she has already established relationships with the alleged victims and law enforcement. However, the District Attorney herself could simply want her best sex crimes prosecutor for a high-profile case. I believe the thinking to be the former. My second thought for a potential charge was sexual assault and that is still very possible. That is because during my review of the twenty-four lawsuits against Mr. Watson, I found three separate lawsuits where the alleged Plaintiffs claim that Mr. Watson forced his penis into their mouths. Under Texas Law which governs Sexual Assault 22.011(a)(1)(B) which states, “A person commits an offense if the person intentionally or knowingly causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent.” That language is exactly what Mr. Watson is to have allegedly done to at least three separate women. That charge is a 2nd degree felony and punishable by no less than two years in prison and not more than twenty. That means if he is convicted, he must serve two years in prison. It is what is often called a minimum mandatory. That is the most likely charge based upon the information available. I recently listened to a podcast and Ms. Stallings talked at length about how she routinely seeks the maximum sentence if the case goes to trial. Thus, if Mr. Watson goes to trial on Sexual Assault case and loses, Ms. Stallings would very likely recommend that Mr. Watson serve twenty years in prison. Would that sentence be imposed? It would depend on the aggravating circumstances of the crimes and any potential mitigation. Sexual Assault is the most likely crime to be charged. However, don’t be surprised if Mr. Watson is charged by a grand jury with a way worse offense, trafficking in persons. Under Texas Law 20A(4), “Traffic” means to transport, entice, recruit, harbor, provide, or otherwise obtain another person by any means. As seen in various Complaints, Mr. Watson solicited these massage therapists on social media. These alleged massage therapists believed that they were invited to Mr. Watson’s residence to perform professional massages. It was until after they began that they realized Mr. Watson allegedly had other deviant plans. According to Texas Penal Code, human trafficking is when a person knowingly participates: Through force, fraud, or coercion, causes the trafficked person to engage in prohibited conduct, including prostitution, promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution. Thus, an argument can absolutely be made that Mr. Watson enticed those women to come to his house under false pretenses to perform professional massages when he really wanted them to perform sexual acts. He forced them to perform them and then paid after for their compelled services. If I am an executive with any NFL looking to acquire Deshaun Watson, I am not touching him even if the price is a Conditional 7th Round Pick in 2024. Mr. Watson is more likely to be in a prison cell in the State of Texas than be playing in Super Bowl LVIII in Glendale, Arizona. That is because when a high-ranking prosecutor convenes a grand jury with countless alleged victims all saying very similar facts, it almost never swings the way of the Defendant.

Content warning: This story contains details about alleged sexual assault. In 2010, the Chicago Blackhawks won their first Stanley Cup in 49 years. The front office and the coaching staff were lauded, alongside the players. But according to a report released Tuesday, that same front office and coaching staff knew about an alleged sexual assault of a player by a coach. Instead of investigating, they chose to focus instead on the playoffs: “At a minimum, the senior leaders, including then-President John McDonough, were informed of alleged sexual harassment of a player by a coach, including efforts by the coach to engage in unwelcome sexual activity with that player. Several witnesses recalled or later told others about a discussion that ensued during the meeting [held after the decisive Western Conference Finals game] regarding whether the time was right to address the allegations against [the coach] in light of the need to protect team chemistry and avoid bad publicity during the ongoing playoffs. What is clear is that, after being informed of [the coach’s] alleged sexual harassment and misconduct with a player, no action was taken for three weeks. … We found no evidence that any action was taken to address the issue until after the playoffs ended.” The report follows a months-long investigation by independent counsel from Jenner & Block, prompted by the filing of two civil lawsuits against the Blackhawks, alleging sexual harassment and assault by former video coach Brett Aldrich, including a former player referred to as John Doe. Its based in part on 139 interviews of current and former Blackhawks executives, coaches, players, and staff, including Doe and Aldrich, and it details a stunning and disappointing lack of action by Blackhawks management regarding the alleged incident. Almost immediately after the report was released Tuesday afternoon, the dominos started to fall: the Blackhawks were fined $2 Million by the NHL for inadequate procedures and insufficient handling of the matter; President of Hockey Operations and General Manager Stan Bowman resigned; former head coach Joel Quenneville (now coach of the Florida Panthers) and former Assistant GM Kevin Cheveldayoff (now GM of the Winnipeg Jets) are also implicated in the report and have to be feeling uneasy about their future job prospects. The report’s findings and conclusions could have ramifications on the two pending civil lawsuits as well. The allegations themselves are shocking: Doe alleges, that while he was a 20-year-old member of the “Black Aces,” a group of minor leaguers that practiced and traveled with the club during the 2010 playoffs, Aldrich not only sexually assaulted him, but threatened him: “John Doe stated that Aldrich threatened John Doe by telling John Doe he needed to act like he enjoyed the sexual encounter or John Doe would never play in the NHL “or walk” again, forcibly performed oral sex on John Doe, masturbated on John Doe’s back, and then threatened John Doe again before John Doe was able to escape Aldrich’s apartment.” The report goes on to lay out how Doe reported the incident to team management, which not only failed to properly investigate the matter, but chose not to deal with it until conclusion of the playoff run. Aldrich was allowed to remain with the team, not only coaching, but interacting with players and staff including Black Aces players and Doe. After further being allowed to celebrate the Cup victory—even getting the privilege of a customary day with the Cup trophy, on which his name is engraved—Aldrich was allowed to quietly leave the team, and no investigation was ever conducted. “As a result, the Blackhawks’ own sexual harassment policy—which required investigation of all reports of sexual harassment to be conducted “promptly and thoroughly”—was violated.” In May of this year, Doe filed a civil lawsuit against the Blackhawks in Cook County, Illinois, which was followed by a similar suit on behalf of a high school player in Michigan, also alleging sexual assault by Aldrich. The Blackhawks have moved to dismiss the Doe case, arguing that the 2-year statute of limitations ran long ago regarding the 2010 incident. Doe argues that, due to repressed memories of the events, the statute did not begin to run until 2019, when Doe learned about the subsequent alleged sexual assault allegations in Michigan, at which point Doe “reflected on his own victimization and how it had affected his life.” Illinois generally utilizes the “discovery rule,” regarding when a claim accrues. When a plaintiff “discovers” their injury—which triggers the statute of limitations clock—is typically a question of fact, precluding dismissal at the pleading stage. The “repressed memory” argument is a somewhat novel one, particularly for an adult; but it has been successful in other cases, especially at the pleading stage. The timing of the Jenner & Block report, issued while the lawsuits are still in the pleading stage, clearly changes the case dynamics. Typically, a defendant would want to avoid discovery in this type of case at (almost) all costs, to avoid the potential public relations damage; here that damage is already done. The Blackhawks’ litigation defense team has now gotten a preview of what evidence would come out during discovery, much of it damning; interestingly, the report notes that the Blackhawks’ defense team was present for certain witness interviews. Further, the report noted that the Blackhawks violated their own internal policies in handling the incident, including their failure to promptly and properly investigate. In Illinois, a defendant’s violation of its own policies generally is not negligence per se and it does not create a heightened legal duty; however, violations can be evidence of negligence or wrongdoing, and practically, it doesn’t look good when companies violate their own policies. Of course, if the case is dismissed at the pleading stage, it’s a moot point for the lawsuit. Cook County is typically seen as a relatively liberal jurisdiction in allowing personal injury cases to go forward at this stage of litigation. For what it’s worth, after the report was released, Blackhawks CEO Danny Wirtz said “It is clear that in 2010, the executives of this organization put team performance above all else. John Doe deserved better from the Blackhawks. And while we believe we have a strong legal defense, I have instructed our lawyers to see if we can reach a fair resolution consistent with the totality of the circumstances.” Ben Shrader is a partner at Hart McLaughlin & Eldridge in Chicago, where he serves as Chair of the Chicago Bar Association Sports Law Committee and litigates regularly in Cook County courts. You can reach Ben at [email protected] or find him on Twitter @BenShrader.