I have heard or read both MLS and USL officials claim that the leagues are not in competition with each other. Both leagues seem convinced of the upward trajectory of soccer in the United States and an apparently boundless population of new soccer fans. But is that true? This claim is particularly skeptical in light of the fact that MLS clubs are pulling their affiliates out of the USL and starting a separate league, MLS NEXT Pro. This article will explore the relationship between MLS and the USL and generally argue that reality is not quite what the two leagues claim it to be. As an initial matter, it is important to understand that soccer in the United States is organized unlike the other major professional sports leagues (NFL, MLB, NBA, and NHL). In 1978, Congress passed the Amateur Sports Act,[1] which granted what is today known at the United States Olympic and Paralympic Committee (USOPC) the authority to govern all Olympic-related athletic activity in the United States. As part of the statute, the USOPC is authorized to certify a national governing body (NGB) for each sport.[2] Pursuant to that authority, the USOPC has certified the United States Soccer Federation (USSF) as the NGB for soccer in the United States. While there are NGBs for football, baseball, basketball, and hockey in the United States, the professional leagues preceded those organizations and do not themselves derive their standing from those NGBs. In contrast, MLS and USL are formed pursuant to and governed by USSF Bylaws and Policies. Most significantly, USSF Policies dictate that there shall be three levels of men’s professional soccer (Divisions I, II, and III).[3] The Divisions are separated by different standards for cities of play, stadium sizes, financial viability, television broadcasts and more.[4] For example, a Division I league (such as MLS), requires at least fourteen teams and stadiums that hold at least 15,000 fans. Division II stadiums are only required to hold 5,000 people. While MLS is the only league ever certified as Division I, there has been a rotating cast of Division II and III leagues. Today, the USL Championship (USLC) is the sole Division II league while there are two Division III leagues: USL League 1 (USL1) and the National Independent Soccer Association (NISA) (which, to be honest, I’ve almost never heard anything about and seems precarious). Importantly, this current structure is the subject of ongoing litigation. The North American Soccer League (NASL), a Division II league from 2011 through 2017, has an ongoing lawsuit against USSF, MLS, and the USL, alleging that the three parties, in violation of antitrust law, illegally conspired to divide up the American soccer market. The NASL folded after it failed to obtain a preliminary injunction,[5] but the suit is ongoing (comments by MLS and USL that they are not competing would not seem helpful from an antitrust perspective). The NASL’s departure paved the way for the USLC to move from Division III to Division II and for the creation of USL1. With the NASL out of the picture, the American soccer market appeared to be stabilizing. In 2015, MLS folded its own Division III Reserve League and reached an agreement with the USL to coordinate on player development.[6] In the 2021 season, USLC had 32 clubs, 11 of which were owned, controlled, or otherwise affiliated with MLS clubs. USL1 had 12 clubs, five of which were affiliated with MLS clubs. Consequently, American soccer seemed to be morphing into a major/minor league structure similar to that which exists in baseball, hockey, and basketball (despite the USL’s strange position that it is not a “minor league”). Indeed, the USL seems to have had considerable success building smallish stadiums in small and mid-size cities as part of economic development plans, not unlike what has often happened in minor league baseball. I will pause here to note an important component of MLS clubs’ involvement in the USL. The MLS LLC agreement[7] contains a covenant not to compete, in which each MLS club agrees, among other things, not to “anywhere in North America, carry on, own, manage, join, operate or control, or participate in the ownership, management, operation or control of, or be connected as a director, officer, employee, partner, member, consultant or otherwise with, or permit its name to be used by or in connection with, any soccer-related business which, directly or indirectly, competes with or is otherwise similar to the business of [MLS].” As a result of this provision, MLS must approve each MLS club’s involvement in the USL. This provision could potentially be subject to antitrust attack, as rules prohibiting sports team owners from owning teams in other sports have previously been struck down.[8] Nevertheless, the rule stands. If it appears that American soccer has found a previously unattainable homeostasis, why is that being disturbed once again? The MLS and USL development partnership ended at some uncertain recent date (I would guess that the NASL case played a role in that). But then MLS announced that beginning in 2022, it is going to operate its own Division III league,[9] recently named MLS NEXT Pro. To populate the league, the clubs previously playing in either the USLC or USL1 and which were owned by or affiliated with an MLS club, will be leaving the USL immediately or in the near future.[10] The USL insists that it does not perceive the new MLS league as a problem but I see at least two major issues. First, the sudden departure of clubs from USL1 threatens the league’s licensing. The USSF’s standards require Division III leagues to have at least eight teams. Consequently, USL must – and seemingly is on track to – replace the departing MLS-affiliated clubs to maintain its sanctioned status. While this problem may be solved for now, Division III soccer clubs are not a stable (or profitable) business enterprise and there is sure to be turnover among the clubs in future years. Second, the USL and its clubs have now lost a significant part of its marketing cache by losing affiliation with MLS clubs. Part of the draw of seeing any minor league athlete is knowing that they are in the pipeline to one day reach the major leagues. And USL clubs undoubtedly sought to market their players as the future of MLS. This is largely no longer going to be the case. Young players will no longer use the USL as a stepping stone to MLS – instead, they will jump from their MLS Division III club to MLS. As a result, the USL begins to resemble independent minor league baseball. As most anyone knows, Minor League Baseball (MiLB) is a network of more than 100 teams competing at various levels of baseball below that of MLB. Most of these clubs are owned, controlled, or otherwise affiliated with MLB clubs. The MLB clubs provide economic support and marketing cache for the clubs to remain viable, while working to develop the MLB club’s next generation of players (the relationship between MLB and MiLB has been fraught in recent years but those issues are beyond this article). When affiliation agreements expire, the MiLB clubs scramble to find a new MLB partner. The failure to do so can be catastrophic to the club. To this point, some MiLB leagues – the independent leagues – have generally operated without any affiliation with MLB clubs. Not surprisingly, they have historically been far less stable, as both the leagues and the clubs in them come and go from time to time. Is that the future of the USL? Of note, I think there is another important fact cutting against the idea that there is enough soccer interest to go around for both MLS and the USL. None of these organizations is profitable. I went through the financial situation of MLS and its clubs in my article from last week, and suffice to say, there is no reason to believe that of the USL and its clubs is any better (in fact, it is almost certainly worse). Competition has proven fatal to numerous American soccer leagues and clubs in the past. I think the new MLS Division III league is a body blow to USL, whether it admits it or not. Time will tell whether it is a knockout. [1] 36 U.S.C. §§ 220501-220552. [2] 36 U.S.C. § 220521. [3] Policy 202-1, United States Soccer Federation, Inc., Policy Manual, available at https://www.ussoccer.com/governance/bylaws. [4] The 2014 USSF Professional Standards are available here: https://kennethrusso.com/ussf-professional-standards/. [5] See N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32 (2d Cir. 2018). [6] https://www.si.com/soccer/2015/05/26/mls-usl-partnership-player-development. [7] The 2012 version of the MLS LLC Agreement can be found at Nowak v. Major League Soccer, LLC, 14-cv-3503, Dkt. 23 (E.D. Pa. Apr. 23, 2015). [8] See North Am. Soccer League v. Nat’l Football League, 670 F.2d 1249 (2d Cir. 1982). [9] https://www.espn.com/soccer/major-league-soccer/story/4415507/major-league-soccer-to-launch-development-league-in-2022; MLS Next Pro: ‘We’re going to use this new league as a way to test concepts’ – The Athletic [10] https://theathletic.com/2136000/2020/10/13/mls-reserves-league-usl/

The last month in the world of college athletics has generated a lot of conversation. Every year around this time, coaches are hired and fired in what’s called the “coaching carousel.” However, this year’s cycle has been far more chaotic than one’s we’ve seen in recent years due to the movement from blue-blood program to blue-blood program and the significant amount of money being thrown around for some of these coaches. As a result of high-profile schools like USC and LSU firing their coaches so early in the season, several athletic directors and fans across the country feared their coach would leave their school for those jobs. While labeling a certain coaching job as a “top 5 job” is extremely subjective and varies by each individual coach, USC and LSU are widely considered to be among the best places to attract elite talent and compete for national championships on an annual basis. Therefore, we saw several coaches get massive contract extensions to levels that raised eyebrows from many in the industry. Despite only being in his second season at Michigan State and third overall as a head coach, Mel Tucker received a 10 year/$95 million contract extension to stay in East Lansing. James Franklin, whose Penn State Nittany Lions slumped down the stretch to a 7-5 record, netted a 10 year/$85 million extension for himself. Not to mention, Lincoln Riley and Brian Kelly, who got the USC and LSU jobs respectively, each inked deals at or near nine figures. Furthermore, Jimbo Fisher (Texas A&M), Lane Kiffin (Ole Miss), Mike Gundy (Oklahoma State), PJ Fleck (Minnesota), Dave Clawson (Wake Forest), Mark Stoops (Kentucky), Jonathan Smith (Oregon State), Jeff Hafley (Boston College), Jeff Traylor (UTSA), and Hugh Freeze (Liberty), have all signed contract extensions in the past three months as well due to the interest they’ve garnered from other schools. All this activity has generated a lot of attention on college athletics. So much so that Senator Richard Blumenthal from Connecticut said that the recent flurry of what he termed “outrageously astronomical” contracts for college football head coaches is getting the attention of Congress and could spark reform. Now, it’s worth mentioning that coaches deserve to be handsomely compensated. I happen to be a big proponent of coaches and love to follow them as they build each of their respective programs. From an X’s and O’s, recruiting, and relational perspective, the number of hours they put into their jobs cannot be understated. However, in this new era of college athletics with the advent of NIL, the Transfer Portal, and Alston, is solely investing heavily in a head coach’s salary enough to help maintain a sustainable program? I don’t think so. This week, the University of Texas announced an unprecedented NIL initiative where each offensive lineman at the University of Texas will receive $50,000 annually to promote selected charities through a newly created Horns With Heart non-profit entity. While Texas might’ve been the first school to publicly announce this type of NIL deal, they most certainly shouldn’t be the last. When it comes down to it, the teams that compete annually for national titles are the ones with the best players. You can have the best coaches, the coolest uniforms, the nicest facilities out there, but the lifeblood of college athletics is recruiting. Kirby Smart, the Head Coach of the CFP bound Georgia Bulldogs, put it bluntly with “There's no coach out there that can out-coach recruiting. I don't care who you are. The best coach to ever play the game better be a good recruiter because no coaching is going to out-coach players.” Therefore, whether everyone likes it or not, a big part of recruiting nowadays comes down to what a school can offer from an NIL standpoint. Now, a school cannot actually provide their student athletes NIL deals, but there are certainly things they can do to let all of their prospective recruits know they will be taken care of when they arrive on campus. Every school that competes at the highest level of college athletics have an abundance of well-connected donors and boosters who run successful companies. Since NIL was enacted on July 1st, we’ve seen no shortage of NIL deals for individual student athletes and a decent number of team-wide deals as well. But what’s going on at the University of Texas right now is something I think could be one of the biggest recruiting tools out there: Endowed NIL deals. Similar to how certain donors or corporations endow scholarships to college students at a university, the Horns with Heart non-profit entity is endowing NIL deals to the offensive lineman at Texas. Instead of donating money to either pay for a coach’s salary or to the athletic department in general, the army of boosters some of these big-time college athletic programs have could come together and create NIL endowments for players on their respective teams. This could be broken down by position group or other factors, but I think it could be the future of college athletics. It goes without saying that the top offensive lineman in high school right now took notice of the announcement of the $50,000 that could be coming their way if they went to Texas. Many around the country have asked how or if we can stop this trend of escalating coaching salaries and the arms race of facilities in college athletics. From a legal perspective, capping coaching salaries is probably not practical, but that doesn’t mean things cannot be done. From a booster’s perspective, taking the investment that has gone to paying for or buying out a coach’s contract and redistributing it into the hands of student athletes through endowed NIL deals like we’re seeing for the offensive lineman at the University of Texas could be an option where everyone wins. While they may not get the 1o year deals in nine figures, coaches will have an easier job recruiting to their schools with the NIL outlook they can point to (which in turn will likely lead to good results on the field). Student athletes, who are obviously prohibited from being paid directly by the schools, can earn money many people think they deserve for the revenue they generate. And although athletic departments might not like that their boosters aren’t investing directly in their hands, I think it’s clear that by getting the best student athletes to their campuses, they will benefit in the long run by winning games and competing for championships. Times are changing rapidly in college athletics. A decade ago, no one would’ve envisioned a non-profit entity offering $50,000 to a position group on a college football team. To succeed, people involved will need to adapt to the modern era or risk falling behind on the field, court, or pitch. To be clear, schools cannot contribute to these deals or explicitly guarantee recruits will get them, but they can certainly do their due diligence with their donors and boosters. Endowed NIL deals could be the best way to redistribute some of the money that many have described as being “carelessly thrown around” in terms of astronomical coaching contracts and luxurious facilities. It will be interesting to see how soon we’ll see more of these type of NIL deals in the future. Brendan Bell is currently a Junior at Auburn University majoring in Finance with aspirations to attend law school. He is passionate about the business of college athletics and would love to obtain a career in the industry some day. You can follow Brendan on Twitter @_bbell5

If a person doesn’t pay their taxes the IRS can place a lien and if it comes to it levy a person’s property and assets to pay the bill. In some cases, if a person fails to pay taxes for years, they could face jail time. But what happens when an NHL team doesn’t pay their property taxes and arena chargers? Does the team lose their home ice? Can they pay the amount due and stay? This is the current situation for the Arizona Coyotes for run the risk of being locked out of Gila River Arena, their home ice. Earlier this month, the Arizona Department of Revenue filed a tax lien notice against IceArizona Hockey LLC, which owns the Coyotes. The notice was for unpaid state and city taxes for more than $1.3 million.[1] There is no report about how long the club has not paid taxes and arena charges. Of the 1.3 million that is owed, $250,000 is owed to the city of Glendale and the remaining balance to the state of Arizona.[2]Glendale informed Coyotes that it plans to lock them out of Gila River Arena if the club does not pay its delinquent charges by December 20. This is more bad news for the Coyotes who has struggled this season with a 5-18-2 record and rumors of relocation because of lease agreement issues. The Coyotes released a statement about the ongoing situation "We have already launched an investigation to determine how this could have happened and the initial indications are that it appears to be the result of an unfortunate human error.''[3] While the unpaid taxes and bills may be the result of human error, that does not dismiss the fact that this happened in the first place. The Coyotes go on to say that the club is going to take steps to make sure that all bills are paid and that this doesn’t happen again. The NHL has not commented on the situation. The incident adds to the current arena saga that the Coyotes have been dealing with since August of this year. Glendale was opting out of its lease agreement with the team at the end of 2021-22 NHL season. Both sides have participated in ongoing negotiation about a potential extension, but nothing has been finalized.[4] Since 2016, the Coyotes having been leasing Gila River Arena on an annual basis after moving from the America West Arena in 2003.[5] There has also been rumors that the team could relocate to Houston, but they have been denied by the team. As a back up for the Glendale negotiations, the Coyotes proposed a $1.7 billion development in Tempe, a city east of Phoenix. The development would include a hockey arena, restaurants, shops and apartments.[6] The arena would primarily be funded by private investors but would seek city sales tax revenues to help pay for $200 million in additional costs, including infrastructure work. Tempe has not gotten back to the Coyotes yet about the possible city change.[7] The location change could benefit the club who has seen poor fan attendance and sales in recent years. The Coyotes are ranked 30 out 32 for average attendance at games this year at 12,205 fans per game. Additionally, Forbes valued the Coyotes as the least valuable NHL franchise at an estimated $400 million.[8] However, the location is the only factor to consider for poor sales, Covid led to a shortened season and less fans in attendance for the 2020-21 season. It may take teams years to make up the lost revenue due to the pandemic. In the coming months it will be interesting to see whether the Coyotes will stay in Glendale or relocate to Tempe. Jessica Shaw is the Secretary of the New York Law School Sports Law Society. She can be reached on Twitter @JessicaShaw22. [1] Shilton, Kristen. “Arizona Coyotes Face Dec. 20 Eviction from Gila River Arena over Unpaid Taxes, Fees; Club Cites 'Human Error'.” ESPN, Dec 9, 2021, https://www.espn.com/nhl/story/_/id/32825821/arizona-coyotes-face-dec-20-lockout-gila-river-arena-unpaid-taxes-fees-report-says. [2] Id. [3] Id. [4] Id. [5] Sportsnet Staff. “Coyotes Blame 'Human Error,' Vow to Pay All Bills to Avoid Arena Lockout.” Sportsnet.ca, Dec 9, 2021, https://www.sportsnet.ca/nhl/article/coyotes-blame-human-error-vow-pay-bills-avoid-arena-lockout/. [6] Id. [7] Id. [8] Id.

We are in the midst of a lockout in Major League Baseball. This is not the first employment dispute in the sport. This article addresses the history of labor unrest in baseball and how it impacts the parties involved. There have been eight strikes and lockouts in Major League Baseball history, and there are a few differences that separate the two. Generally speaking, during a strike, the workers tell management that they are not going to show up. In a lockout, the management tells the workers not to show up [1]. What is important to note about this specific lockout is the timing. If this lockout had occurred halfway through the season, the league is then open to a strike, since players are then playing while not receiving their base salaries. While players still receive bonuses and deferred salary payments, these numbers are minute as compared to the major base salaries that players are receiving nowadays. The timing of this lockout is, of course, hurting the players. Free agents are not able to even begin negotiating new contracts, and losing this precious time is very impactful, as injuries can happen at any time. Not to mention that doing any activity and getting a major injury all but ends hopes of being on a team or maximizing the chances of getting a major contract. Not to mention, if players are hurt or rehabbing injuries, a lockout prevents them from accessing the team facilities, which can be a major roadblock when trying to recover from injury. Recovery progress from major injuries can also be a mitigating factor in terms of negotiating contract extensions, so the closing of team facilities is even more damaging. Though one argument that can be made against the impact of the lockout on major free agents is that the best players will end up on teams anyway, the same cannot be said for the more mid-tier free agents. With the major players soaking up major contracts (for example Max Scherzer signing with the Mets for $130 million over three years [2]), little salary space is left for the mid-tier players, with the minimum salaries being more prevalent than ever. This can be seen in the salary reductions of mid-tier free agents thus far in free agency such as Mark Melancon (saves leader in 2021 could only manage a 1 year, $3 million deal [3]). This example is going to be a new trend, and it is only the beginning. It is unfair all around, with the owners locking the players out, and forcing them to try to give up even more of their share of the money baseball takes in, even though they control a small portion of the pie as it is. So, it is clear that the winners of this lockout are the owners, and the obvious losers are the players. The power balance is already tipped in favor of the owners anyway, and it will just keep going further depending on how long this lockout lasts. The only hope is that this ends before February, with Spring training checks being handed out at that time, but if we get to that point without a resolution, then it’s a whole different ballgame and a completely different conversation. For the sake of the fans and the players, let’s just hope it doesn’t get there. Jon Trusz is a Junior at the University of Connecticut studying Political Science and Communications, and can be reached on LinkedIn under his name, or by email at jonathan.trusz@uconn.edu.

Urban Meyer was fired by the Jacksonville Jaguars during the first year of a five-year contract worth up to $60 million. Let’s take a trip down memory lane to review how we got here. Immediately after taking the reins, Meyer hired assistant coach Chris Doyle, a former Iowa strength coach with a checkered past filled with racist allegations and documentation. After the decision was heavily scrutinized, Meyer backpedaled and reversed the hire. In October, Meyer broke the internet when pictures surfaced of him attending a bar and standing uncomfortably close to a woman that was clearly not his wife. The picture itself paints Meyer in a damning light. But as more news on the story broke, the optics became even worse. The Jaguars were fresh off a 24-21 week 4 loss in Cincinnati when Meyer made the puzzling decision to not fly back with the team to Jacksonville. The game took place on a Thursday and Meyer seemingly took this as an invitation to abandon his team and spend the long weekend in his old stomping grounds of southern Ohio (Meyer famously was the head coach of Ohio State from 2012-2018). As it turns out, the picture was taken at a bar that Meyer himself owned, Urbans Chop House, outside of Columbus, Ohio. To add insult to injury, the bar apparently has a picture of Meyer and his wife plastered on the wall for everyone to see. This embarrassing saga gained national attention and eventually resulted in Meyer publicly apologizing to his team and his wife Shelley for “a stupid mistake”. Reports immediately began to swirl that Meyer had lost respect within the locker room. Jaguars owner, and Meyer’s boss, Shad Khan proclaimed that Meyer needed to earn back the team’s “trust and respect”.[1] As the season continued, his status as Jaguars head coach and off the field role model only sunk deeper. Recent reports out of Jacksonville are that Meyer and his assistant coaches consistently disagreed on personnel decisions including who should be taking snaps at running back. Allegedly, these disagreements led Meyer to explode like a tyrant on his coaching staff: During a staff meeting, Meyer delivered a biting message that he’s a winner and his assistant coaches are losers, according to several people informed of the contents of the meeting, challenging each coach individually to explain when they’ve ever won and forcing them to defend their résumés.[2] Meyer later threatened the leaker of this tirade would be fired “within seconds”. We didn’t need any more evidence that Urban Meyer was a catastrophe as an NFL football coach. But when it rains it pours. What’s the weather like in Jacksonville this time of year? Ultimately kicking his own kicker (which reads like the plot of Seinfeld episode) was the final straw for Urban Meyer in Jacksonville.[3] Jacksonville decided to move on from the coach after a 2-11 record in year one. The hire was nothing short of a disaster since he signed his name on the dotted line. The writing was on the wall almost immediately that Meyer and the Jaguars were headed for a breakup that not even Taylor Swift could have imagined. Now Jacksonville’s focus must shift to moving on from the Urban Meyer era as smoothly and cost-effectively as possible. When the contract was signed, Jacksonville envisioned success that Meyer endured during his college stops at Florida and Ohio State. Meyer would lead Jacksonville to wins and in return Jacksonville would make Meyer a very rich (even richer) man. Meyer’s utter failure on the field and constant off field embarrassments complicated this contractual formula. The organization was not satisfied with Meyer’s performance, but they also didn’t want to kick him to the curb and be forced to pay $60 million on the way out. Meyer will no longer coach in Jacksonville, but the question remains how amicable this breakup will be. This could have gone down in three distinct ways: Urban Meyer resigned The Jacksonville Jaguars fired Urban Meyer The Jacksonville Jaguars fired Urban Meyer “for cause” Urban Meyer resigned This was the best-case scenario for Jacksonville, but as of now seems the most unlikely. With the reports that Jacksonville fired Meyer, it seems they decided to take matters into their own hands. If Meyer resigned, he would likely waive his right to “ongoing pay” or settle on a severance package that was much lower than the $60 million he’s owed under contract. Meyer may be in over his head, but he’s not stupid. He realizes the harsh reality of these massive coaching contracts is that even if a coach massively underperforms, they still hold bargaining power. He’s owed the money he signed for and he likely will try to fight tooth and nail to collect. Jacksonville had a few things going for them to counter this potential defiance by Meyer. First and foremost, Meyer had become a laughingstock on a national stage. The media completely turned on him and each day stories were published bashing Meyer for his ineptitude (like this one for example). The local media began to shine a spotlight at how unprepared he was: In an ideal scenario for the Jaguars, this pressure would have been too hot for Meyer to handle. With every negative media report that was published, this option became more and more likely. But also, the Jaguars had to balance that every waking moment Meyer was still employed, the disdain in the organization grew stronger. It turned into a game of chicken between Meyer and the Jaguars. Eventually, the organization blinked first and they couldn’t sit around and wait any longer for Meyer to fall on the sword. They decided to take action against the coach and move forward with his termination. The Jacksonville Jaguars fired Urban Meyer Based on the reporting so far, this option is the most likely for Jacksonville. This is the standard tool used when a coach underperforms expectations, and the franchise feels it’s best to move on. Typically, this happens after a coach has been awarded several years to implement philosophies but still shows no signs of improvement. Meyer only coached 13 games, but that was enough for the Jaguars to make the decision to move on. Under a standard termination, Meyer will still be owed a large chunk of the money as the Jaguars would be forced to buy him out. The Jacksonville Jaguars fired Urban Meyer “for cause” This final option is the most complicated and likely would involve a slew of attorneys on both sides but may save the Jaguars millions. When a coach is fired “for cause” they breach a material portion of their contract. This allows the team to rip up the deal and part ways being relieved of their obligations. In this case, Jacksonville would no longer be forced to pay Meyer. Coaching contracts in the NFL typically contain a “Good Moral Character” clause. Basically, this prevents a coach from acting in any way that brings disgrace or embarrassment to the team or the NFL. These clauses are vague and all-encompassing so it’s difficult to pinpoint the exact type of behavior that’s prohibited. But based on Meyer’s actions during his time with Jacksonville, the Jaguars have a good case. If the Jaguars terminated Meyer “for cause” back in October after the bar incident, they would have robbed Meyer the opportunity to continue making a case against his moral character with his repeated petulant behavior. The contract likely has a provision stating that the decision on if a coach’s behavior violates the “Good Moral Character” clause is determined by Roger Goodell.[4] The weight of Meyer’s pockets may rest in the commissioner’s office. We’ve already been spoiled on how this movie ends. Meyer and the Jaguars will go their separate ways and begin seeing other people. The suspense now surrounds how they’re going to get there. Matt 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] John Reid, Urban Meyer video at bar in Ohio goes viral. Here's the reaction on social media, The Florida Times Union (last visited Dec. 16, 2021) https://www.jacksonville.com/story/sports/nfl/2021/10/03/social-media-reacts-urban-meyer-bar-video/5979948001/. [2] Doug Farrar, Urban Meyer calls his assistants 'losers,' alienates players and coaches, TouchdownWire (last visited Dec. 16, 2021) https://touchdownwire.usatoday.com/2021/12/11/urban-meyer-calls-his-assistants-losers-alienates-players-and-coaches/. [3] Tyler Sullivan, Urban Meyer fired: Ex-Jaguars kicker Josh Lambo says he was kicked by former coach during warmups in preseason, CBS Sports (last visited Dec. 16, 2021) https://www.cbssports.com/nfl/news/ex-jaguars-kicker-josh-lambo-says-he-was-kicked-by-urban-meyer-during-warmups-in-preseason/. [4] Mike Florio, Could the Jaguars fire Urban Meyer “for cause”?, Pro Football Talk (last visited Dec. 16, 2021) https://profootballtalk.nbcsports.com/2021/10/06/could-the-jaguars-fire-urban-meyer-for-cause/.

As reported yesterday by KPRC2 Houston, law enforcement has sought and received a search warrant from a Judge for Houston Texans Quarterback Deshaun Watson’s social media accounts. The warrant allows law enforcement to send subpoenas to Instagram, CashApp etc. seeking Watson’s social media activity during a roughly one-year period. The warrant indicates that Houston police are requesting this information as a part of a criminal investigation into allegations of “indecent assault”. The individual who sought the warrant is an 18-year veteran of the Houston Police Department’s Adult Sex Crimes Unit. The following is my analysis of what that all means. The criminal investigation is nearly complete, and the convening of a grand jury is imminent If law enforcement has gotten to the stage where they are sending out search warrants, that tells me that law enforcement is comfortable with the alleged victims and ready to present them to a grand jury. Thus, if the prosecution and/or law enforcement did not believe the alleged victims, it doesn’t matter what Deshaun Watson said via social media. His defense attorneys would easily be able to explain anything away and the prosecution would be looking at a high-profile defeat as a jury would likely give him the benefit of the doubt. The story that will likely be told is one that Watson solicited these women via social media to perform massages at his house. Instagram will show the communications and CashApp will show exactly what Deshaun Watson paid for the alleged massages. With the social media accounts and victim cooperation, the prosecution can now tell the story. That story could potentially be that Watson lured these women to his residence under false pretenses and solicited them for sex and when some refused, he forced those women to perform oral sex on him. As we have seen in the lawsuits, three separate women alleged Watson forced their mouths onto his penis. That is textbook Sexual Assault under Texas Law. Allegations of indecent assault The 18-year veteran in the Adult Sex Crimes division who drafted the search warrant had to know that it would eventually leak to the media. An 18-year veteran sex crimes detective knows if the warrant stated Sexual Assault, this story would become national news if not worldwide news considering sexual assault is a serious forcible felony and it involves a Pro Bowl NFL Quarterback for the 4th largest city in the country. Law enforcement prefers to investigate when all eyes are not on them. Under Texas Law Sec. 22.012 (defining indecent assault) (a) A person commits an offense if, without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person, the person: 3) Exposes or attempts to expose another person’s genitals, pubic area, anus, buttocks or female areola. An offense under this section is a Class A misdemeanor punishable by up to a 1 year in jail. That definition absolutely fits the numerous accounts by various women that Watson allegedly exposed himself to them and sexually gratified himself in their presence. I believe indecent assault charges will be included but you don’t convene a grand jury for something that you can charge yourself via an information. You only convene a grand jury because felonies in the State of Texas require the prosecution to convene a grand jury. I expect the grand jury to be convened sometime in January or February at the latest. An indictment could very well come down during the week before the Super Bowl. We are in the Endgame now in the Deshaun Watson Criminal Investigation. Matthew F. Tympanick is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and as a Staff Editor on the UMass Law Review. He was previously a felony prosecutor in Sarasota, Florida. In over three years as a prosecutor, he prosecuted thousands of misdemeanor and felony criminal cases. You can follow him on Twitter @Tympanick20 and @TympanickLaw. Arrested or Injured? Don’t Panic…Call Tympanick. www.tympanicklaw.com

Mike Florio, writer for Pro Football Talk.com, reported Monday that “an expansion team was never on the table as a pre-trial settlement possibility.” The NFL had to suffer an enormous loss at trial, and they also had to lose to Stan Kroenke. When he says the NFL had to lose to Kroenke, he means the NFL had to lose on the indemnity issue, and all 32 owners paid their damages’ share, not Stan Kroenke paying on the owners’ behalf in this case. Florio further reports “Kroenke’s lawyers were ready to pay more than $790 million to end the case, and that the league’s lawyers intervened. The league drew a hard line at $790 million. They were not paying $800 million and above, and to their surprise, it got the deal done. The question for the attorneys after Stan Kroenke and the NFL offered $790 million was to take $276.5 million (35 percent of the settlement) plus costs now, or to keep fighting and pushing and chasing a pot that may be bigger, the same, or smaller. Florio, a former attorney, believes St. Louis could have received the billion dollars, but as reported by various media outlets, St. Louis, the Convention and Visitors Commission, and the Regional Stadium Authority did not want to risk losing at trial. They chose the safe route to the St. Louisans’ ire. Ben Frederickson and Joel Currier, sports and legal writer for the St. Louis Post-Dispatch respectively, covered this lawsuit from beginning to end. They are two among various St. Louis media members who let St. Louis and the national media know what is going on in the Gateway City. They stayed one step ahead to the point that Frederickson and Currier reported the settlement late last Tuesday night before any other media outlet caught wind that the settlement occurred the following morning. The NFL owners are a “mafia,” and they control what happens in the NFL, not Roger Goodell. Goodell makes decisions based on the owners and their best interests, which is what will make them the most money. “Karraker and Smallmon” from 101ESPN, reported that it sounds like Stan Kroenke is responsible for the entire $790 million settlement. St. Louisans can feel relieved this case is over, or frustrated that this did not go to trial. The realization for St. Louisans is this case received national coverage and the NFL’s “dirty laundry” got released to the public. Ben Frederickson reported on Tuesday night that Mayor Jones decided to settle because the lawsuit ran its course in her opinion. His article includes Mayor Jones’ decision to accept the settlement. She said: “Well, we [the St. Louis team] all know that when you take things to court, it can be a long process [.]” “We’ve already been in this process since 2017. I felt it was time to put it to rest.” Dan Lust, Dan Wallach, and guest Howard Balzer revealed Mayor Jones’ prior occupation was city treasurer. This quote and her background can mean several things, but the way I construe it is Mayor Jones settled because she had enough and the money was too good to pass up. She was the former treasurer, as “Conduct Detrimental,” along with Howard Balzer, revealed. This may answer some questions why St. Louis settled with the Rams and the NFL fifty days prior to trial. Dan Wallach, on an interview with Nestor on YouTube, stated the “attorney agreed to settle because their payment is “life-altering.” He told Nestor every equity partner received a “life-altering $10 million as payment for their work on the case. The attorneys worked on this case on a contingency basis. If they win, they get paid, but if they lost, they would not receive a payment. Dan’s fact is almost pro-“attorneys are glad they settled because they got paid” argument. In the same article, he reported County Executive Sam Page’s reasoning. His reasoning was “the experts that advised them, the county counselor’s office and their outside legal counsel advised them the settlement was a good settlement for St. Louis County and St. Louis City, and that they should accept it and move on.” Those who argue the lawyers were after the money may be right according to Page’s comments, but those who argue the plaintiffs made the decision on their own are right according to Mayor Jones’ comments. Either way one leans in this argument, this settlement is a win for St. Louis because the NFL and Kroenke paid them nearly $800 million. They exposed the NFL; they showed the league does anything to raise their revenues. They did the same when they moved the Rams to St. Louis in 1995; however, twenty-one years later, they did it behind-the-scenes with a “proper vote.” They knew Stan Kroenke was the only owner who had the pockets to move a team to the nation’s second largest market. Hopefully St. Louisans remember the good times and memories they had while the Rams were in town, and they showed their fandom because they wanted an expansion franchise. This is similar to someone willing to forgive their significant other after they cheated on their partner. They are not only willing to forgive the NFL, but they are willing to welcome them back with open arms. A franchise was not in the cards, but if they pushed for more, they may have received nothing. That is why they did not push for more. 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.

Michael Jordan and North Carolina. Patrick Ewing and Georgetown. Kareem Abdul-Jabbar (known as Lew Alcindor at the time) and UCLA. All Basketball Hall of Famers that are forever linked with leading their schools to NCAA titles. Today, those players all seem like distant memories and that era of college basketball is a relic of the past. It’s becoming ever more likely that the next crop of NBA superstars will never step foot on a college campus. Teenage basketball phenoms opting out of college and taking an alternate route isn’t a brand-new concept. In 1971, the Supreme Court ruled in Haywood v. National Basketball Association that the NBA’s requirement that a player wait four years after high school graduation, essentially forcing players to attend college before they enter the NBA, was a violation of the Sherman Antitrust Act.[1] Players were no longer required to attend four years of college before going pro. However, the decision to skip college entirely didn’t become popular until 1995 when the #1 high school basketball player in the country, Kevin Garnett, made the controversial decision to enter the NBA draft just months after attending senior prom. This led to an avalanche of players in the coming years jumping directly to the NBA including Kobe Bryant, Tracy McGrady, and LeBron James. The NBA halted this momentum in 2005 when they agreed with the NBA Player’s Union to place an age restriction to enter the league. In their newly constructed collective bargaining agreement, the NBA set the minimum age at 19 years old, or one year removed from high school. This gave rise to the “one and done” phenomenon in college basketball where a player stays on campus for his freshman season before bolting for the NBA draft. Still, this didn’t force every top prospect to play college basketball. Throughout the next decade there were examples of high schoolers who recognized their earnings potential and opted on playing professionally oversees instead of college for the mandatory one-year grace period. These examples were few and far between with varying degrees of success so many failed to recognize a major shift that was taking place in the youth to professional basketball pipeline. In recent years, more players have realized they no longer have to wait to shake the commissioner’s hand as they walk across the NBA draft stage to cash in on their talents. Players can start earning much earlier and without having to open a college textbook in the meantime, and others began to take notice. Several different outlets began attempting to provide a platform for these teenagers to showcase their talent and reap the benefits. LaMelo Ball, the younger brother of NBA player Lonzo and youngest son of outspoken father LaVar, made headlines when he began playing internationally at the age of 16. His professional career included stops in Lithuania and Australia before entering the NBA and winning rookie of the year in 2021. Many questioned his decision to play internationally at such a young age, but LaMelo never seemed to waver. On the flip side, his decision to play professionally led to confessions in radio interviews about driving a Lamborghini at age 17. The National Basketball League (NBL) in Australia became an advocate for American players like Ball seeking to skip their “one and done” year in college and begin playing professionally immediately. The U.S. took notice of the opportunity these players were being presented internationally and decided to pounce. In 2017, Darius Bazley was a McDonalds All American and committed to play college basketball at Syracuse. But Bazley had a change of plans, decommitting from Syracuse and taking his talents to the board room. The popular Boston-based shoe company, New Balance, offered Bazley a one-year internship that paid him $1 million as he prepared for the following year’s NBA draft. Bazley worked with New Balance’s marketing teams as he trained and was eventually drafted #23 overall by the Oklahoma City Thunder in 2019.[2] The NBA also decided to throw their hat in the ring. Although their 19-year-old age requirement still exists, the league still found a way to profit on the youth movement. The NBA developmental league (referred to as the G-League) historically was a place for players who failed to make NBA rosters to showcase their skills. The NBA recently developed the “professional path program” designed for recent high school graduates to enter the G-League for one year before the NBA draft. Players still can’t enter the NBA directly out of high school, but they can opt to play in the G-League for one year before making the leap.[3] The 2020 #1 player in the country, Jalen Green, signed a deal for $500,000 to play for the G-League Ignite, a team created solely for the purpose of developing teenagers. Greene, alongside his Ignite teammate Johnathan Kuminga who was also directly out of high school, were drafted #2 and #7 respectively in the 2021 NBA draft. The popular social media brand Overtime obtains 1.6 billion views on their various social media platforms every month. The brand recently created Overtime Elite; a basketball league designed for high schoolers with NBA aspirations. The league is backed by investors such as Jeff Bezos and Alexis Ohanian, and NBA players Trae Young, Kevin Durant, and Carmelo Anthony. Overtime Elite allows players to sign 6-figure deals as they leave traditional high school, skip college, and work on their game full-time as they prepare for the NBA. This year Overtime Elite provided an opportunity for 16-year-old Jalen Lewis to become the youngest professional basketball player in U.S. history.[4] With the digital meteoric rise of social media, youth basketball has developed into global entertainment. Players are becoming online celebrities before they obtain a driver’s license. Mikey Williams is 17 years old and the #11 ranked player in the 2023 class. But what’s even more impressive about Williams is that he currently has 3.4 million instagram followers. To place that in perspective, Jaylen Brown is an all-star for the Boston Celtics and one of the best basketball players on the planet. Brown has 1.9 million followers. Williams has a bigger social media presence than most players in the NBA. Thanks to the recent NIL rules, Williams recently became the first high school athlete to sign an endorsement deal with Puma.[5] High school and AAU games routinely moonlight as quasi-Hollywood gatherings featuring A-Listers such as Drake, Kanye West, and Michael B. Jordan sitting courtside. While Drake has rapped about the prominent Los Angeles high school Sierra Canyon in his latest album, Kanye West took it a step further. The 21-time Grammy award winning rapper opened Donda Acadmey, a high school in Simi Valley outside of Los Angeles. Within the first year, Donda Academy was able to lure several high-profile players from surrounding schools to join team Donda.[6] The NCAA observed this momentum and could no longer bury their heads in the sand. This year the NCAA adopted NIL rules that allow athletes to profit off their image by signing endorsement deals with third parties. Finally, college athletes will be eligible to receive a form of payment. But is it too late? International basketball, the G-League, and Overtime Elite are all proving that teenagers can get paid for playing basketball without sacrificing their chances of making it to the NBA. It remains unclear how many 16-year-olds would prefer to wear a Duke uniform over playing professionally in a league cosigned by their NBA idols or favorite rappers. The next NBA collective bargaining negotiations are set to take place in either 2023 or 2024, and the 19-year-old age limit may be on the chopping block. But regardless of what transpires during these negotiations, one thing is for certain – youth basketball is no longer just for amateurs. Matt 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] Haywood v. National Basketball Association, 401 U.S. 1204 (1971); William C. Rhoden, Early Entry? One and Done? Thank Spencer Haywood for the Privilege., New York Times (June 29, 2016) https://www.nytimes.com/2016/06/30/sports/basketball/spencer-haywood-rule-nba-draft-underclassmen.html. [2] Nick Crain, OKC Thunder’s Darius Bazley Opens Up About New Balance Internship And Path To NBA In New Documentary, Forbes (last visited Dec. 2, 2021) https://www.forbes.com/sites/nicholascrain/2020/11/16/okc-thunders-darius-bazley-opens-up-about-new-balance-internship-and-unprecedented-path-to-the-nba-in-upcoming-documentary/?sh=21ed749e2d65. [3] Jabari Young, A top high school basketball player could net up to $1 million by skipping college and playing for the NBA’s G League, CNBC (Apr. 17, 2020) https://www.cnbc.com/2020/04/17/nba-developmental-program-changing-recruitment-landscape.html. [4] Bruce Schoenfeld, The Teenagers Getting Six Figures to Leave Their High Schools for Basketball, NY Times (Nov. 30, 2021) https://www.nytimes.com/2021/11/30/magazine/overtime-elite-basketball-nba.html. [5] Nick DePaula, Mikey Williams, 17, signs historic footwear and apparel deal with Puma, ESPN (Oct. 29, 2021) https://www.espn.com/nba/story/_/id/32500553/mikey-williams-17-signs-historic-footwear-apparel-deal-puma. [6] Grant Rindner, Kanye West Welcomes Four Top Basketball Recruits to Donda Academy, GQ (Oct. 7, 2021) https://www.gq.com/story/kanye-west-donda-academy-top-basketball-recruits.

Have you ever looked at your local professional sports stadium and wondered how it came to be? It’s easy to overlook just how monumental a task it is for such a building to come into existence - a confluence of perfect conditions, plus hundreds of hours of due diligence, hard-nosed negotiations, countless contracts, and more goes on behind the scenes before such a dream can become a reality. Three key areas that should be explored are the financing of the stadium, the land use for building the stadium, and the naming rights. This first article in a three-part series will dive into the basics of financing. Figuring out how a stadium project will be funded is the lifeblood of the operation - without the necessary capital, the project doesn’t even get off the ground. The money has to come from somewhere, but where? When a new sports stadium or arena is desired, teams might discuss and negotiate with states and local governments to determine how they will be funded. No two situations are the same, and a variety of factors must be considered before outlining a financing plan. Thus, one way that a stadium may be paid for, at least in part, is by public financing. This occurs, in effect, when those local and state governments agree to pay for a substantial portion of the stadium’s costs. As the money that the government will use is public funds, this cost is in practice delegated to the local taxpayers, who will see their money essentially being put towards a stadium development project. This use of public funds to build a stadium has been occurring for decades, but there is controversy among many who believe that your average citizen should not be paying for something that a team owner could likely pay for themselves. To that end, the willingness of the public to pay for such a project depend on many factors, such as level of interest in the team, threat to relocate, the promise of a stadium bringing jobs and economic growth to the area, and more. One concern is that these public funds could hypothetically be used more beneficially elsewhere, such as for infrastructure, or education. Nevertheless, these stadium subsidies can come in many forms, including but not limited to tax-free municipal bonds, cash payments, long-term tax exemptions, infrastructure improvements, and operating cost subsidies. Again, the idea is that these stadiums are a public good - theoretically providing jobs and promoting economic growth and interest in the area. If such an agreement is approved, citizens may see higher taxes for a period of time too, such as the Community Investment Tax, a sales tax increase that helped pay for the Tampa Bay Buccaneers’ stadium. Some notable stadiums that were entirely publicly funded include Angel Stadium of Anaheim (home to MLB’s Los Angeles Angels), Arrowhead Stadium (home to the NFL’s Kansas City Chiefs), BB&T Center (home to the NHL’s Florida Panthers), Madison Square Garden (famously home to the NBA’s New York Knicks and the NHL’s New York Rangers), and Toyota Park (home to MLS’s Chicago Fire). Another key way that a stadium may be paid for is by private financing. This, in its most basic terms, is when a private entity - be it a singular person, corporation, or conglomerate - pays the costs of stadium development out of their own net worth. With the prices of stadiums skyrocketing in recent decades, and seemingly only going to continue rising, entirely private financing of stadiums is possibly going to become less common. However, there are still uber-rich owners who will cover the costs in their entirety. For example, Billionaire Rams owner Stan Kroenke footed the bill in its entirety for the Los Angeles Rams (and Chargers) new stadium in Inglewood, California - SoFi Stadium - which reportedly ended up costing the mogul over $10 billion. Perhaps more commonly, this is seen for international soccer stadiums around the world where a stadium (or its renovations) are often handled privately by the club. Take, for example, La Liga giants Real Madrid and FC Barcelona - both of whom paid hundreds of millions of dollars to upgrade their stadiums in the past decade, even taking on debt from banks or corporate lenders to ensure construction take place. Some other stadiums in the US that are completely privately funded include The Bell Centre (home of the NHL’s Montreal Canadiens), the Pepsi Center (home of the NHL’s Colorado Avalanche and NBA’s Denver Nuggets), and Allianz Field (home of MLS’s Minnesota United). Naming rights generally will be discussed in more detail later, but such naming rights deals can be crucial to securing funding at the inception of stadium development. As the name suggests, this typically occurs when a corporation enters into a contractual agreement with a sports team. In its most basic terms, this agreement would provide that the stadium be named after the corporation or however the corporation so directs upon completion. For example, if the Conduct Detrimental Sports Law Blog entered into such a contract with a new soccer stadium that was going to be built, Conduct Detrimental would pay a certain amount of money in exchange for the stadium being known as, perhaps, Conduct Detrimental Field. These corporate sponsorship contracts are tensely negotiated between team and company, with lawyers spending hours researching, communicating with the other party, trying to get the best deal possible, and eventually drafting the contract itself. These naming and sponsorship agreements can be very lucrative for teams building a stadium, but they must also be approached with caution - special attention should be given to licensing terms, exclusivity provisions, and how, for example, naming your new stadium Snapple Arena may violate a contract you already have with Arizona Iced Tea as the official iced tea of your team. Naming rights deals done at the inception of stadium funding can come in many shapes and sizes as well: about a third of the funding for the FedEx Forum (home to the NBA’s Memphis Grizzlies) came from a naming rights deal; but just under 2% of the funding for AT&T Stadium (home of the NFL’s Dallas Cowboys) came from naming rights. As noted, these agreements can contain various different types of provisions beyond mere funding and naming, but they can play a crucial role in the initial funding of a professional sports stadium. In the end, most stadiums are some combination of two or three of these sources - perhaps a 60% public, 30% private, 10% naming rights split, often adding up to over a billion dollars. However, one problem may arise in these combination-funding situations once renovations are approved, requested, or required years after the stadium opens. For example, Chase Field was completed in 1998, but nearly two decades later in 2017 the Arizona Diamondbacks were locked in a lawsuit with Maricopa County over who was responsible for paying for renovations. Legal action is a last resort, to be sure, but the stakes are very high when the threat of relocating a team is on the table. Ideally, these details would be contractually outlined at inception of the stadium’s development, but shortsighted parties eager to make a deal may not see issues coming down the pipeline. That is why stadium financing, no matter the distribution plan, requires careful drafting, hours of due diligence, exposure limitation, contingency plans, and prospective consideration. With the funding taken care of, the project may begin in earnest. Stay tuned for part two of this three-part series, where we’ll discuss the legal steps needed in order to actually build the stadium. Jason Re, George Washington University Law School 3L Twitter: https://twitter.com/JasonReLaw Email: jre22@law.gwu.edu LinkedIn: https://www.linkedin.com/in/jason-re/

On the most recent episode of Conduct Detrimental, we spoke with Jim Quinn who is one of the attorneys for the Plaintiffs in the recently filed case Staten Island Yankees v. MLB.[1] This case is another attack on the nearly 100-year-old antitrust exemption that Major League Baseball was given in Federal Baseball.[2] The complaint alleges that Major League Baseball orchestrated a horizontal agreement among its 30 MLB Clubs to eliminate their affiliation with – and thus to effectively destroy – 40 Minor League Baseball teams.[3] The Plaintiffs are four of the 40 teams that were stripped of their affiliations with their Major League parent Club: Staten Island Yankees, Tri-City Valley Cats, Salem-Keizer Volcanoes, and Norwich Sea Unicorns. Quinn stated on the podcast, “in order for our case to succeed successfully to a trial, we’re going to have to undo the baseball antitrust exemption.” He continued, “is this a slam dunk? I don’t believe it’s a slam dunk by any means. We understand this is an uphill battle, but as I think we said in the complaint, it really is time to put the exemption back into the dustbin of history where it belongs.” Quinn expressed his desire to expedite this case to the Supreme Court. He predicts the next step is for MLB to file a Motion to Dismiss in the Southern District of New York, which Quinn states they will grant because they cannot overrule the Supreme Court. This case will then elevate to the Second Circuit, and they will most likely follow precedent. Quinn emphasized the key issue at hand is: will the Supreme Court grant certiorari? I. Trilogy of Cases Let’s take a step back. Major League Baseball was granted an exemption from federal antitrust law, what is now referred to as “the baseball exemption.” The “trilogy of cases” involved are Federal Baseball, Toolson, and Flood.[4] Federal Baseball granted this exemption on the basis that “the business is giving exhibitions of baseball, which is purely state affairs,” and ruling “the business of baseball is not engaged in interstate commerce,” and further that “any interstate activities were merely incidental to the state exhibitions and thus would not be called trade or commerce in the commonly accepted use of those words.”[5] Major League Baseball was granted an exemption from federal antitrust law because it was not interstate commerce, as required by the Sherman Act.[6] Now that seems absurd, as baseball has 30 teams that span across 17 states, Washington D.C. and Canada. The complaint in Staten Island Yankees v. MLB stated that these 30 MLB Clubs had 160 affiliated MiLB teams, spanning across six MiLB leagues in the United States, Canada, and Mexico.[7] Looking back to Federal Baseball’s era, in 1922 there were 16 teams that spanned across seven states and Washington D.C. Yet, Federal Baseball still considered baseball an “exhibition” and crossing state lines was “merely incidental.” The next time SCOTUS would take up the issue was in Toolson where there was a one-paragraph per curiam opinion upholding Federal Baseball.[8] This is where we see congressional deference when the Court stated, “[w]e think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation.”[9] The next case was the attack of the reserve clause under Flood.[10] Curtis Flood was traded without previous knowledge or consent, and his request for free agency was denied by the Commissioner. As a result, Flood brought suit under the Sherman Antitrust Act. The Southern District of New York (which is the same venue Staten Island Yankees v. MLB has been brought) dismissed the federal antitrust claims pursuant to Federal Baseball.[11] The Second Circuit affirmed.[12] The Supreme Court granted certiorari and affirmed the dismissal of all claims.[13] However, SCOTUS held that “professional baseball is a business, and it is engaged in interstate commerce.”[14] Thus, Flood and its predecessors upheld the baseball exemption for two fundamental reasons: (1) loyalty to stare decisis[15] and fear of initiating a domino effect after upsetting the various interests relying on the exemption and (2) Congress's acquiescence in the holdings of Federal Baseball and Toolson.[16] Since the trilogy of cases, lower courts and circuit courts have relied on stare decisis and congressional deference to avoid overturning Federal Baseball and the Supreme Court has denied certiorari. The Curt Flood Act was Congress’s chance to take action, but they only carved out the reserve clause and left everything else within the exemption (including Minor League Baseball, which is at issue here). Flood was a catalyst for free agency, and is the reason players like Max Scherzer can sign a three-year $130 million contract. However, the failure to remove the whole exemption is why we are in the present situation and the reason Staten Island Yankees v. MLB was filed. II. Is the Supreme Court prepared to overturn Federal Baseball? If you are familiar with the above case precedent (among others in this sphere) then you are probably thinking this is another case that will get dismissed under stare decisis and denied certiorari by SCOTUS. However, this case’s complaint is using a recent SCOTUS ruling, Alston v. NCAA, as a backbone for their argument because it appears the bench is willing to reconsider the baseball exemption based on the analysis in Alston. The Court went out of its way to cite to Federal Baseball as an “aberration” and that the Court has failed to extend such exemptions to other sports leagues.[17] Alston showed the world that the current SCOTUS bench may be willing to grant certiorari and hear a challenge to the baseball exemption if the right case presented itself. On Conduct Detrimental, when discussing the Alston opinion and how the Supreme Court created the baseball exemption when it didn’t have the power to, Jim Quinn stated that “they [the Supreme Court] pointed to baseball as an example of something that was created but they now realize was essentially non-sensible.” Quinn reasoned, “when you look at the Gorsuch opinion and Kavanaugh’s concurrence, you can see there was a real interest here on the part of at least some members of the Supreme Court.” Quinn distinguished this case from the most recent failed attempts, Wyckoff[18] and Right Field Rooftops,[19] because this case has much broader implications than previous cases and the Court is more inviting of a challenge today than it was in 2018 based upon Alston. Quinn stated the Wyckoff case didn’t involve the baseball antitrust exemption per se because it was brought under the Donnelly Act. Rather, the issue was whether the Donnelly Act was so close to the antitrust exemption that the exemption preempted the Donnelly Act, and the courts ruled that it did, subsequently, the Supreme Court denied certiorari because it was too narrow of an issue. Quinn reasoned that the Supreme Court determined the Right Field Rooftops case was not the right case to take on this antitrust issue because the core issue was whether fans could sit on their rooftop and watch the Cubs games. Quinn stated “if you look at what happened in our case, where a group of wealthy people get together and decide that they’re going to eliminate the business of 40 less-wealthy people…that has an impact not only on the 40 minor league teams, but it has an impact on all of the towns throughout the United States. In many of these cities and villages and small towns, the only sport available is minor league baseball and MLB owners decided they were just going to eliminate that for 40 towns and villages all over the country. Seems to me it has much broader implications than whether or not you can sit on a roof and see into Wrigley Field, or whether or not a different statute applies under the antitrust laws.” a. Key Justices Chief Justice Roberts, Justice Thomas and Justice Alito have shown interest in similar cases, which may indicate what their analyses might be here, should they grant certiorari. For example, in Leegin, the Court reversed a 96-year-old ban on price floors, making it an automatic violation of antitrust to have resale price maintenance agreements.[20] Three of the five Justices who joined in the Leegin majority opinion still sit on the bench today, namely Chief Justice Roberts, Justice Thomas and Justice Alito. Whereas only one of the four Justices who joined in the dissent is still on the bench, Justice Breyer. In Leegin, the Court found that stare decisis was not as significant when reviewing the scope of the Sherman Act, while also finding that congressional deference has less force regarding the Sherman Act.[21] The Court went on to state that when there was a “widespread agreement” that the precedent set out is different than what the original court analyzed, the precedent may be deemed inappropriate.”[22] On the issue of stare decisis, Justices Roberts, Thomas, and Alito may have already shown their hand as well. In Kimble, based on stare decisis, the Supreme Court refused to overturn a 50-year-old precedent that a patent holder cannot charge royalties for the use of his invention after its patent term has expired.[23] In Kimble, the Court explained that to overrule a case, there needs to be a “special justification” that goes above and beyond the argument that the precedent was wrongfully decided, and without such a special justification the Court recommend the claim for congressional action.[24] Justices Roberts, Thomas, and Alito dissented in Kimble stating, “[s]tare decisis is important to the rule of law, but so are correct judicial decisions…Revisiting precedent is particularly appropriate where…a departure would not upset expectations, the precedent consists of a judge-made rule…and experience has pointed up the precedent’s shortcomings.”[25] Dicta in Alston, written by Justice Gorsuch in which it was a unanimous decision, clearly implies there is a “widespread agreement” that the precedent in Federal Baseball is different than what the original court analyzed. Therefore, considering the Justices’ actions in Leegin, Kimble, and now Alston this bench may be prepared to deem Federal Baseball’s precedent inappropriate. The last time a near 100-year antitrust exemption fell, Chief Justice Roberts, Justice Thomas, and Justice Alito joined in the opinion for Leegin. In Alston, Justice Gorsuch wrote powerful dicta taking issue with the baseball exemption, and Justice Kavanaugh wrote a dissent that, besides completely destroying the NCAA model, gave a traditional analysis of antitrust law which may give some insight into his analysis for Staten Island Yankees v. MLB and the baseball exemption. In the most recent episode of Conduct Detrimental, Quinn reminded listeners that Justice Sotomayor has some familiarity with baseball cases because when she was a District Court Judge in New York, she ruled in favor of MLB players to end the strike in 1995. Chief Justice Roberts, Justice Thomas, and Justice Alito have shown they are willing to put stare decisis aside when judicial precedents have been wrongfully created. These Justices, along with Justice Gorsuch and Justice Kavanaugh, may be the proper bench for the next case challenging Federal Baseball and the baseball exemption to be heard in the Supreme Court of the United States. Perhaps the time has finally come for the Supreme Court to step up to the plate. For more information on this topic, check out our most recent episode of Conduct Detrimental with Jim Quinn. Mike Lawson is an Associate for O'Connell and Aronowitz in Albany, NY. He is the Producer of the Conduct Detrimental Podcast and can be reached on Twitter @Mike_sonof_Law. [1] Staten Island Yankees et al. v. Major League Baseball, 1:21cv10876 (filed Dec. 20, 2021). [2] Fed. Baseball Club of Baltimore, Inc. v. Nat’l League of Prof’l Baseball Clubs, 259 U.S. 200 (1922). [3] Complaint at 1. [4] Fed. Baseball Club of Baltimore, Inc. v. Nat’l League of Prof’l Baseball Clubs, 259 U.S. 200 (1922); Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953); Flood v. Kuhn, 407 U.S. 258 (1972). [5] Fed. Baseball, 259 U.S. at 208-9. [6] The Sherman Antitrust Act, 15 U.S.C. § 1 (1890). [7] Complaint at 49. [8] Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953). [9] Id. at 356-57. [10] Flood v. Kuhn, 407 U.S. 258 (1972). [11] Flood v. Kuhn, 316 F.Supp. 271, 272 (S.D.N.Y. 1970). [12] Flood v. Kuhn, 443 F.2d 264, 267–68 (2d Cir. 1971). [13] Flood, 407 U.S. at 285. [14] Id. at 282. [15] Latin for “to stand by things decided.” [16] Flood, 407 U.S. at 282-83. [17] Alston v. NCAA, 141 S. Ct. 2141, 2159 (2021). [18] Wyckoff v. Office of the Com’r of Baseball, 138 S. Ct. 2621 (2018). [19] Right Field Rooftops v. Chicago Cubs Baseball Club, 138 S. Ct. 2621 (2018). [20] Leegin Creative Leather Products, Inc. v, PSKS, Inc., 551 U.S. 877 (2007). [21] Id. at 899. [22] Id. at 900. [23] Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015). [24] Id. at 2402. [25] Id. at 2415.

Have you ever looked at your local professional sports stadium and wondered how it came to be? It’s easy to overlook just how monumental a task it is for such a building to come into existence - a confluence of perfect conditions, plus hundreds of hours of due diligence, hard-nosed negotiations, countless contracts, and more goes on behind the scenes before such a dream can become a reality. Three key areas that should be explored are the financing of the stadium, the land use for building the stadium, and the naming rights. In this second article of a three-part series, we’ll dive into the basics of actually building a stadium. Putting hammer to nail notwithstanding, the name of the game when building a stadium, from a legal perspective, is “land.” Land, on which a stadium would be built, can make or break a stadium deal before it has had a chance to make it to paper. An initial key step in building a stadium is location and area assessment. Various considerations go into an assessment such as this - proximity to public transit stations, availability of parking, capacity for a stadium, infrastructure, visibility, just to name a few. Generally, the mission is to get an idea of the possibilities and constraints that a potential site maintains. This also includes environmental considerations, site topography, and neighboring community interests. Importantly, the zoning regulations must be checked to ensure that the area in question allows for stadium development. The second step is in-depth market analysis. This is a very fact intensive analysis that can cover any number of areas. Two good places to start would be supply and demand. Supply could refer to any competing venues, other entertainment in the area, the public interest in a new stadium, other sports teams in the area, and other market saturation factors. Demand would include things such as the potential size of the fanbase, the expected revenue from that fanbase, what people would be willing to pay to get into the stadium, and what that would say about the matchday atmosphere. Further, the political, social, economic, demographic, and technological aspects of a population might play a part in a decision to pursue a site, and public surveys can help aid in this process. Consider things such as capital growth or decay in the area, purchasing power of potential stadium visitors, government support for the sport infrastructure, and input from existing fan groups. Another crucial step is a comprehensive conceptualization, design, and feasibility plan for the stadium. This includes considerations both inside and outside of the stadium, with an eye on what will fit in the space, both physically, legally in terms of zoning and area restrictions, and in the context of the surrounding area. The stakeholders must settle on a vision for what they want the stadium to look like, and a design firm must be hired to create renderings that can be worked and re-worked until the parties think it’s just right. This goes far beyond the color and style of the exterior, and dives into topics such as general seating capacity, VIP box system, food vendor and bathroom layouts, jumbotrons and other screens, and more. How many floodlights will be needed, and from what angle? Will the stadium be a closed top, a retractable roof, or open air? What material is the playing surface - e.g. turf or grass? Where will the media stations be set up to get the best camera angles of the action while not restricting sightlines of attendees? These questions are just the start. Further, a possibility that may arise is the multi-use potential of the site. This includes both within the stadium (i.e., different sports being played in the same arena), but also other developments on the site outside the stadium, such as housing, retail, and entertainment projects all in one. Finally, the fourth step is legally securing the land necessary, on which the stadium will be built. At times, this may be a relatively straightforward transaction - one party has land for sale, the other has the funds to secure it. For example, to build what would eventually become SoFi Stadium, Stan Kroenke bought a 60 acre lot in Inglewood, California for a reported total of around $100 million. Other times, it’s not as simple. Take, for example, New York City Football Club’s goal of bringing a soccer-specific stadium to the Bronx. One hurdle standing in their way was acquiring a pocket of land within eyesight of Yankee Stadium, a plot of land which currently holds a parking garage. Ultimately, negotiations for the purchase of the land fell apart over concerns regarding the parking spots that the New York Yankees required, and were contractually promised. Disputes may arise over zoning, what the development is used for, logistical or infrastructure concerns, price negotiations, or any other hitch under the sun. Land, particularly in a major metropolitan area like New York, is a hot commodity, and not without its fair share of complications. Negotiation before a sale of property is natural, and a very fact intensive analysis with all interested parties is key, but in theory it is not a zero sum game, and these agreements can be fleshed out amicably. Interestingly, a handful of city governments across the country have used their Constitutional eminent domain powers to secure land for a stadium, including for projects in Brooklyn, Washington, DC, and Los Angeles. In these situations it is paramount that the rights of the private property owner are respected and upheld. The exercise of eminent domain to secure lands for a sports stadium is a controversial practice, and generally seen as a last resort when holdout landowners refuse to sell the land necessary for a stadium project to begin. While the government then must negotiate a fair market price for the land, the intangible value is often impossible to replace. Still, the practice persists, and is admittedly likely a pleasing option from a professional team’s point-of-view. With the (properly thoroughly researched) land secured, the design plans approved, the market factors weighed, and the paperwork complete, construction is set to begin. One of the major questions still remaining is… what (and how) does the stadium get named? Stay tuned for part three in this series, where naming rights will be looked at in further detail. Jason Re, George Washington University Law School 3L Twitter: https://twitter.com/JasonReLaw Email: jre22@law.gwu.edu LinkedIn: https://www.linkedin.com/in/jason-re/

The National Hockey League announced on Monday the league would pause on December 21st, after games were completed. They began the holiday break earlier, the original starting date was Friday, December 24th. This league-wide shutdown is due to the COVID cases surging at an alarming rate. The NHL shutdown includes international games being postponed, and the only games that were allowed to be played Monday and Tuesday were games between United States teams and games between Canadian teams. No U.S.-Canadian games were allowed due to the border crossing, and the strict travel restrictions imposed on entering and leaving each country. The Associated Press reported 15% of the 700+ players were in the virus protocol. Once a player enters the virus protocol, they are required to miss team activities for at least 10 days. However, the treat that has been exciting to see is the American Hockey League players playing in the NHL, and making an impression on the NHL clubs’ general managers. Teams had juggled lineups, such as an 11 forward and 7 defensemen lineup rather than the traditional 12 forward and 6 defensemen lineup. The Blues had to play a week’s worth of games shorthanded. They played with 17 players rather than the typical 18 players. In order to get that “emergency call-up,” the NHL requires the team play a game shorthanded. The NHL took the right step, though, by postponing this week’s slate of games after tonight, and the teams that were scheduled to play the games across the borders are supposed to be made up during the weeks that were included for the Olympic break, as reported by Andy Strickland of Bally Sports Midwest. Strickland’s report includes that the Blues will make up games against Ottawa and Toronto at Canadian Tire Centre and the Scotiabank Centre respectively, during the weeks that make up the Olympic break. All other teams will make up their respective games during those weeks. Will the players be allowed to participate in the Olympics? The Olympics are an honor to participate in; however, the players that participate in the Olympics are not compensated, and reported by various sources, should any player or employee catch Covid in China, they will quarantine in China, fly back to the U.S., and quarantine in the U.S. too. Since the NHL plan to play makeup games during that stretch, it may be impossible for the players and executives to fly over to China for the Olympics. According to Yahoo Sports and other outlets, there is only one player in the NHL that is unvaccinated, it is the Red Wings’ Tyler Bertuzzi. The NHL has made the right call to begin the holiday break early, but this means the season’s end will have teams playing games with very little rest in between games. The NHL may need to force the players from participating in the Olympics to fit all eighty-two regular season games for each club. 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.