Plaintiff Dr. Robert Corwin is an owner of Class A stock of Golden Nugget Online Gaming ($GNOG). Corwin brough this action in Delaware Court of Chancery pursuant to 8 Del. C. § 220 to compel inspection of books and records. Plaintiff seeks to investigate potential breaches of fiduciary duty by: (i) Tilman Fertitta, GNOG’s controlling stockholder, and (ii) the Company’s board of directors in connection with GNOG’s pending merger with DraftKings and certain related side deals between DraftKings and Fertitta-controlled entities. This lawsuit was filed on February 1, 2022. On August 9, 2021, it was announced that DraftKings agreed to buy Golden Nugget Online Gaming in an all-stock transaction valued at 1.56 billion dollars. Under the terms of the deal, Golden Nugget shareholders would receive 0.365 DraftKings shares per each GNOG share owned. Upon the announcement, Golden Nugget shares soared 29% premarket, while DraftKings was down 2.7%. Plaintiff Corwin alleges that Fertitta and his affiliated entities collectively controlled approximately 88% voting power of GNOG, and indicated that they alone would approve the Merger. Accordingly, GNOG’s minority stockholders would not be given an opportunity to vote on the DraftKings Merger. In connection with the execution of the Merger Agreement, Corwin alleges, DraftKings and a Fertitta-controlled entity, Fertitta Entertainment, Inc. (“FEI”) entered into a commercial agreement and other side agreements whereby DraftKings agreed to provide expanded market access, database access, and marketing integrations across FEI’s asset portfolio, including the Houston Rockets, Golden Nugget LLC, and Landry’s LLC. As a result of the merger, FEI agreed to designate DraftKings as the exclusive daily fantasy sports, sports betting, free-to-play and iGaming partner of the Houston Rockets, and to provide DraftKings with the right to open a sportsbook with “DraftKings” marks and logos at the Toyota Center in Houston, Texas. Corwin writes that as the owner of the Houston Rockets basketball team, Fertitta stands to be the largest beneficiary of this agreement. And, according to the complaint, since the announcement of the merger, Fertitta has boasted that the Commercial Agreement will drive revenue to his other (non-GNOG) businesses. Plaintiff claims, because of the side deals, the merger is procedurally and substantively unfair to minority stockholders. "The Merger provides numerous non-ratable benefits to Fertitta and FEI through, among other things, the Commercial Agreement, the License Agreement, and other related side agreements that are not going to be shared with GNOG’s minority stockholders." In addition to the foregoing, plaintiff raises additional issues with the merger. First, he claims that GNOG did not disclose all the provisions of its side agreements. Additionally, he claims that the consideration to be paid to GNOG's stockholders (in the form of receiving 0.365 DraftKings shares per each GNOG share owned) is unfair. On CNBC, Fertilla commented that DraftKings "underpaid" for GNOG and that he "woke up this morning struggling." DraftKings CEO Jason Robbins characterized the deal as "a steal." Finally, Dr. Corwin alleges that the process undertaken to approve the merger was unfair. He writes the following in the complaint to that end: "[t]he Merger was not conditioned on the approval of GNOG’s minority stockholders. The Board that approved the Merger and related side deals was conflicted, with at least four of the six-members having extensive personal and business ties with Fertitta. The Special Committee formed by the Board was formed too late to play a meaningful role in the process. The GNOG Board’s financial advisor, Jefferies LLC, was conflicted by its longstanding business ties to Fertilla, and Jefferies and Fertilla handled substantive negotiations over the Merger despite their obvious conflicts of interest." Plaintiff asks that the Court enter a summary order directing the company to produce for inspection all of the books and records that he has requested. As of January 6, 2022, GNOG responded to the plaintiff's demand, asserting inter alia, that it failed to state a proper purpose and was overly broad. Did Fertitta enter into the DraftKings merger to gain personal benefits for himself and his various companies? Follow along @ConDetrimental for updates as this case advances. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is the President of Hofstra’s Sports and Entertainment Law Society. Additionally, he is a Law Clerk at Geragos & Geragos. He can be found on Twitter @Jason_Morrin.

By Dan Lust & Tarun Sharma To get you caught up on the issues, we boiled down this lawsuit to two basic components – what’s happened so far and what’s happening next. What’s Happened So Far On Tuesday, former Miami Dolphins Head Coach Brian Flores filed a class action lawsuit against the NFL, and specifically the New York Giants, Miami Dolphins, and Denver Broncos, as well as the other 29 teams. Flores, a New Yorker who is the son of Honduran immigrants, alleges racial discrimination in hiring processes around the League. Flores most notably points to text messages between himself and New England Patriots Head Coach Bill Belichick. Belichick mistakenly texted Flores, his former Defensive Coordinator with the Patriots, when he meant to text Brian Daboll. Belichick congratulates Flores for securing the New York Giants’ Head Coaching position. However, Flores was not scheduled to interview with the Giants until later that week. Belichick then clarifies that he made a mistake and that he meant to text Daboll his congratulations. The timing of Belichick’s texts is important because it appears that the decision was already made as to who would be hired as the Giants’ next coach before Flores ever had a chance to interview for the role. That matters because the NFL has a hiring process known as the Rooney Rule. In 2003, the NFL implemented the Rooney Rule, which requires that NFL teams interview minority candidates for head coaching roles. Since then, the Rule has expanded to include assistant coaching and front office roles, as well. At the point that the Giants had interviewed Flores, the only minority candidate that they had interviewed was their own Defensive Coordinator. Flores is alleging that his experience with the Giants was a “sham interview” only conducted for the purpose of satisfying the Rooney Rule. Flores also alleges that this is not the first sham interview that he has been the victim of. In 2019, before accepting the Dolphins’ Head Coaching job, Flores was invited to interview with the Denver Broncos. Flores alleges in the complaint that then-GM (and NFL HOF QB) John Elway, President/CEO Joe Ellis, and other members of the Broncos’ party showed up an hour late to the interview. Flores states that the Broncos’ contingent looked hungover, and that the substance of the interview reflected that he was never a serious candidate for the job. Shortly thereafter, Vic Fangio was hired as Denver’s Head Coach. The complaint, filed by Flores on the same day that he interviewed with the New Orleans Saints for their Head Coaching vacancy, proceeds to outline the NFL’s failures when it comes to racial equality. He notably includes last year’s Jon Gruden email saga, the revelation that the NFL’s Concussion Settlement used race-norms (the idea that black players had lower baseline aptitude than white players) in determining whether former players would be compensated for cognitive impairment, and the paltry number of black coaches compared to the number of black players, as examples of the NFL’s ongoing issues with race. Possibly the most stunning of the allegations that Flores makes in the complaint relate to the behavior of Dolphins’ owner Stephen Ross. Flores alleges that Ross asked Flores to “tank” the 2019 season, and offered him $100,000 for every game that he lost. Following the 2019 season, Flores alleges that Ross began to pressure him into recruiting a prominent quarterback in violation of the League’s tampering rules. When Flores refused, he was treated with disdain as someone who was difficult to work with. There has been plenty of speculation as to who this prominent QB is, but signs point to this being either Tom Brady, who played in New England while Flores was with the organization, or Deshaun Watson, who Flores is reportedly close to. In response, the NFL stated that it is “deeply committed to ensuring equitable employment practices” and “we will defend against these claims, which are without merit.” The latter is a canned line that is somewhat typical of any party that is being sued. Basically, you have to say that to have a chance to win. The Broncos issued a statement disputing Flores’ recollection of the 2019 interview, stating that the allegations are “blatantly false.” The Dolphins, battling on two fronts, released a statement saying they “vehemently deny any allegations of racial discrimination” and “the implication that we acted in a manner inconsistent with the integrity of the game is incorrect.” What’s Next First things first, Flores alleges that there are as many as 40 possible litigants that can join his class, which he defines as “All Black Head Coach, Offensive and Defensive Coordinators and Quarterbacks Coaches, as well as General Managers, and Black candidates for those positions during the applicable statute of limitations period.” It will be up to a Federal District Court Judge in the Southern District of New York to certify this class. For this reason, there is language in the complaint that argues it is impractical and inefficient to join all of these parties to the lawsuit. Flores is seeking increased objectivity for hiring/firing decisions, creation of a training program for black coaches, incentives for hiring and retaining black coaches and front office personnel, and more transparency in the hiring process. Second, the NFL will almost certainly seek to dismiss the suit, but our own Dan Wallach believes that this complaint has satisfied the requirements to survive such a motion. Stay tuned to Conduct Detrimental to see whether this case makes it to discovery, a point at which juicy evidence could come to light and turn the entire League on its head. This article was cross-published in Joe Pompliano's Huddle Up Newsletter. Dan Lust (@SportsLawLust) is a Sports Law attorney at Geragos & Geragos and Co-Host of the Conduct Detrimental Podcast. Tarun Sharma (@TKSharmaLaw) is a Third-Year Law Student at Minnesota Law and he is a frequent guest on the podcast in addition to publishing Conduct Detrimental’s weekly “Sports Law Review” Newsletter which you can subscribe to through our website.

Among the claims in Brian Flores’ bombshell lawsuit filed yesterday was a startling revelation that he was allegedly enticed (with $100,000 per loss) to lose games by Dolphins’ Owner Stephen Ross. I won’t address the validity of Brain Flores’ claims of racial bias in the NFL’s hiring process here (Not to minimize them, I just do not believe I am the person at Conduct Detrimental to provide the proper legal analysis of those claims. Dan Lust, Dan Wallach, and Mike Lawson addressed those claims on yesterday’s Conduct Detrimental Podcast). This bribery accusation, if true, could be fatal to Stephen Ross’ NFL Ownership, and could have major ramifications for the NFL and its owners. But I believe this accusation should go beyond that and prompt a re-examination on what the responsibilities of ownership of a professional sports enterprise should be. Tanking in the NFL, or professional sports in general, is not a new concept. We have seen plenty of teams employ tanking strategies to secure high draft picks over the past two decades across American sports. As this strategy has evolved, we’ve also seen teams operate without ever fulfilling that promise of future competitiveness, where it seems more and more like a ruse that is designed purely to keep the money faucet flowing for owners who don’t really have any interest in winning. I wouldn’t say this is necessarily the case with Ross (although the Dolphins’ resume since 2000 would beg to differ), but it is for plenty of franchises. It’s more common in smaller media markets, where profit margins are comparatively slim. The owners of those teams often prioritize meeting their earnings quotas over the performance of the team, which includes offloading any talented players with upcoming paydays to avoid expensive, top-of-the-market contracts. This situation is most visible in baseball, where the sheer number of players, number of games (and thus reduced profits per game), early separation of playoff contenders, unpredictability of scouting, and amount of luck required to tank successfully makes this business model more common. To some extent, the owners of these franchises, while they flounder hopelessly in mediocrity, are relying on being able to maintain the emotional attachment their fans have to the team to keep the money coming in. Their fanbases are sold the idea that they will one day compete so they will continue to spend money to support ownership groups who need those funds so they can continue to not care. It’s unfortunate, if due to genealogy, geography, or nostalgia borne of adolescence you are part of one of those fanbases, but there isn’t much you can do besides not buying tickets or t-shirts. In light of these claims against Stephen Ross, however, I believe it’s time to look at some sort of legally binding way to avoid this problem. What I’m suggesting is a fiduciary clause in the purchasing/franchising documents of a professional sports league that would require the owner of that franchise to act in the best interest of the team, the players, the fanbase, and the league by always attempting to field a competitive team. Professional leagues know that these under-performing franchises are bad for business, the NFL admitted as much on an Owners’ Call before this past season.[1] This fiduciary clause, the same type required by lawyers and financial advisors, would be enforceable through the same sort of arbitration process that eligible MLB players and teams go through to settle contractual disputes. After a prolonged period of failure (or exposure of the type of allegations made against Stephen Ross), these owners could be remanded to arbitration to present their case to an independent party, have that case argued against by the league, and ultimately have a target for competitiveness in the following season or seasons set by an independent arbitrator. If they fail to meet that target after the specified period, the franchise would be re-possessed and sold at public auction to the highest bidder, and the corresponding fanbase would be freed from the yoke of an ownership group more interested in profits than performance. The concept of competitive incentive already exists in major professional sports. European Soccer maintains this incentive through relegation, but there are ways to flirt with relegation while making enough money to balance the excel sheet. Especially in America, in the age of nationwide TV contracts and mega-sponsorship deals (not to mention the windfall of money coming from sports gambling) there is no longer an excuse for a franchise to be an abject failure over decades purely due to where they play, yet all of that money means there is less and less of an incentive to compete as long as the coffers stay full for owners who don’t share the same spirit of competition that the players and fans do. Of course, no existing league would even remotely entertain this. That would require the current owners to expose themselves to losing their money cows through what they would consider forces beyond their control, and rich people don’t stay rich doing that. But these mega-billionaires affect too many lives to not be forced (or at least prodded more than they are) to handle these businesses in a genuinely competitive manner. The tanking strategies of these teams affect the future earnings and health of their players and affect the businesses and lives of millions of people within their communities. A system like this would ensure that these owners steward their teams in a way that isn’t painting a hopeful façade on a failure and asking you to buy another jersey to put black ink on their balance sheet. Michael DiLiello is an Army Officer transitioning to the Sports Law field and will enroll as a 1L in the Fall of 2022. His opinions are purely his own and do not reflect the opinions of the United States Army, the Department of Defense, or any other external agency. Twitter: @Mike_DiLiello LinkedIn: http://linkedin.com/in/michael-diliello-1057b439 1Fischer, Ben. 2021. NFL sent pointed message to underperforming clubs. October 25. Accessed February 1, 2022. https://www.sportsbusinessjournal.com/Journal/Issues/2021/10/25/Upfront/NFL-tickets.aspx.

Major League Baseball Commissioner (MLB) Rob Manfred has been in the spotlight for the last few years, and often not for good reason. From the criticism over not punishing players in the 2017 Houston Astros cheating scandal, to the league’s botched management of the COVID-19 Pandemic in 2020, to the ongoing dispute over a new Collective Bargaining Agreement (CBA), Manfred has had a difficult time to say the least. Through it all, one thing has been evident about Manfred’s approach to crises within the league: he is in no way supportive of the very players who keep the league going. In fact, in some instances, he has gone so far as to blame the players for his own failures. Let’s start first with the pandemic-shortened 2020 season that didn’t begin until late-July. While commissioner Adam Silver of the National Basketball Association (NBA) was busy developing an exemplary pandemic-response model that included a player “bubble” and contact-tracing, Rob Manfred was wasting time arguing with and blaming the player’s association.[1] Two comments stand out. First, after guaranteeing players and baseball fans that a 2020 season would be played, Manfred seemed to renege on his promise and actually threatened MLBPA executive director Tony Clark that he would cancel the season entirely.[2] While Manfred could have spent his weeks producing a comprehensive program to maximize player safety for whatever portion of the season was to be played, he instead chose to entangle himself in a labor dispute well ahead of the current collective bargaining negotiations. Needless to say, it was not a good look for the commissioner. Manfred’s blunders didn’t end there. After imposing a 60-game season that began in July 2020, the Miami Marlins and St. Louis Cardinals quickly faced outbreaks within their respective organizations. While Manfred is certainly not to be blamed for all issues that arose during the pandemic, his approach to the outbreak, like the labor dispute, was troubling yet again. Instead of looking at his own shortcomings in establishing COVID protocols, Manfred placed the blame on the players for being irresponsible.[3] Now, Manfred deserves some credit for taking responsibility for allowing the spring-2020 labor dispute going public.[4] Unfortunately, it doesn’t look like he has learned from past mistakes. Fast forward to the MLB lockout threatening to delay the start of the 2022 season. While several elements of the CBA are in dispute, chief among them is free agency. Currently, it takes players three years of service time to reach arbitration eligibility and another three to reach free agency.[5] Look at a young player like Vladimir Guerrero Jr. who entered the league at 20 years old and hit 48 home runs and 111 RBI’s in his third year.[6] Under the current terms, even if he continues that level of production, he won’t be eligible to receive a massive contract in free agency for three more years. To address this unfairness, the player’s union is asking for the creation of a $100 million pool of money to compensate players who have not reached arbitration eligibility and for an increase in minimum salaries.[7] Yet, after nearly two months since the MLB entered a lockout, the league has shown little if any interest in working with the player’s union to make compensation more reasonable for the players. While the player’s union has made some adjustments to its positions, that clearly cannot be said for the league. Perhaps we shouldn’t be surprised given commissioner Manfred’s history of going against the players. After all the flak he received for the Astros scandal and disparaging of the players and MLBPA during the pandemic, one would think that he would have been more willing to work with the union to address player concerns. I guess that was too optimistic. Hopefully, pitchers and catchers will report for spring training this February, but right now, it's looking bleak. While we can all rejoice in knowing that games will likely be played in a couple months, the commissioner’s problems will press on. Beyond the lockout, the MLB is now the subject of two additional lawsuits. One, is to end its antitrust exemption. The other, is a class-action lawsuit on behalf of Minor League players to address the fact that they have been severely underpaid for far too long.[8] This time, let’s hope that Rob Manfred finally gets things right. A.J. Lise is a 2L at New York Law School. He is a member of his school’s Dispute Resolution Team and has been a personal injury paralegal since 2018. He can be reached at [email protected] and @aj_lise on Twitter. [1] Ogbunu, C. Brandon. 2020. How the NBA Conquered COVID-19. October 8. Accessed February 1, 2022. https://theundefeated.com/features/how-the-nba-conquered-covid-19/. [2] Miller, Randy. 2020. Union chief Tony Clark trashes Rob Manfred for backtracking on threats to order MLB season / ‘Players are disgusted’. June 15. Accessed February 1, 2022. https://www.nj.com/yankees/2020/06/union-chief-tony-chief-trashes-commissioner-rob-manfred-for-backtracking-on-threats-to-order-mlb-season-players-are-disgusted.html. [3] Keyser, Hannah. 2020. What MLB should have learned from America’s botched pandemic response but didn’t. August 3. Accessed February 1, 2022. https://www.yahoo.com/now/what-mlb-should-have-learned-from-americas-botched-pandemic-response-but-didnt-143059720.html [4] Gregory, Sean. 2020. 'I Blame Myself.' MLB Commissioner Rob Manfred on Baseball's Labor Dispute, Planning for a Postseason Bubble. August 21. Accessed February 1, 2022. https://time.com/5882380/rob-manfred-mlb-bubble-covid/. [5] Perry, Dayn. 2021. MLB vs. players union: What is MLBPA fighting for with lockout likely after CBA expires? November 23. Accessed February 1, 2022. https://www.cbssports.com/mlb/news/mlb-vs-players-union-what-is-mlbpa-fighting-for-with-lockout-likely-after-cba-expires/. [6] https://www.baseball-reference.com/players/g/guerrvl02.shtml [7] Nightengale, Bob. 2022. MLB lockout updates: Spring training likely to be delayed as Tuesday negotiations go nowhere. February 1. Accessed February 1, 2022. https://www.usatoday.com/story/sports/mlb/columnist/bob-nightengale/2022/02/01/mlb-lockout-news-spring-training-2022-likely-delayed/9303711002/. [8] Acquavella, Katherine. 2020. Supreme Court clears the way for class action lawsuit from minor league players being paid below minimum wage. October 5. Accessed February 1, 2022. https://www.cbssports.com/mlb/news/supreme-court-clears-way-for-class-action-lawsuit-from-minor-league-players-being-paid-below-minimum-wage/.

BY: Stowell Simonton In Grutter v. Bollinger, the Supreme Court held that colleges and universities are allowed to use race as a factor in its admissions decision. Grutter was decided in 2003 and upheld in 2016. However, the makeup of the justices has changed significantly since then. Justice Anthony Kennedy wrote the majority opinion retired in 2018, and Justice Ruth Bader Ginsburg who joined in the majority passed away in 2020. Now, with the additions of Justice Neil Gorsuch, Brett Kavanaugh and Amy Coney Barret, the Supreme Court has a 6-3 conservative majority. The Supreme court has decided to revisit the legality of allowing race to be a factor in the admission process. The court will hear a pair of cases involving the admissions process used at Harvard College and the University of North Carolina. As of now, it is unclear when the court will hear oral arguments. In the matter involving Harvard College, a group of students argued that the Harvard College admission process violates the Title VI of the Civil Rights Act of 1964 by penalizing applicants who identify as Asian-American. The students content that Harvard purposely discriminated against Asian- Americans by providing the applicants with lower admission score ratings and intentionally limiting the number of Asian-American it admits. In the case brought against the University of North Carolina, Students for Fair admissions argued that public university provides racial preferences to Black, Latinx, and Native Americans, but not to Asian or white applicants. The case was brough in 2014 and alleged the admission process was in violation of the 14th amendment and federal law. Although these cases involve the college/university admissions process, the Supreme Court decisions could open the door to challenging “The Rooney Rule.” The Rooney rule, named after former Pittsburgh Steeler owner Dan Rooney, is a National Football League (“NFL”) policy that establishes NFL must interview ethnic-minority candidates for head coaching and senior executive football operation positions. The rule has been in effect since 2003. Detractors of the Rooney Rule will likely argue the NFL policy violates Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits discrimination based on certain specified characteristics: race, color, national origin, sex, and religion. Advocates of the policy will argue the rule is not in violation of Title VII because it promotes fair opportunity but does not lead to an employment decision based on race. Because the Supreme Court now has conservative majority, legal challenges are being revisited regarding abortions, the second amendment, and now race as a factor in the college admission process. Following this trend, it is likely other groups will challenge the constitutionality of rules promoting racial diversity in the hiring process as well. Stowell (“Stowe”) Simonton is a Business Law and Employment Law attorney located in Massachusetts. Stowe graduated from Union College in 2017 and Suffolk University Law School in 2021. LinkedIn: Stowell Simonton, Esq. | LinkedIn Twitter: stowe (@StoweSimonton) / Twitter

BY: MICHAEL PERLO Instead of countering the Major League Baseball Players Association’s (MLBPA) latest offer, Major League Baseball (MLB) has requested a federal mediator to assist in its ongoing collective bargaining negotiation. Being someone who is a firm believer in alternative dispute resolution (ADR), I would like to shed light on the positive impact mediation could have for MLB and the MLBPA in coming to an agreement on a new collective bargaining agreement (CBA). Before the two sides can move forward with a third-party neutral, the MLBPA will have to agree to this. Ultimately if this is the path they choose, here are some aspects of mediation that baseball fans may want to be made aware of when following the rest of the negotiation: Mediation is a private process where a neutral third-party, called a mediator, helps the parties discuss and try to resolve the dispute. The only people who can resolve the dispute are the parties themselves, not the mediator. The mediator does not have the power to make a decision for the parties, but will help steer the conversation in a mutually beneficial direction. The mediation process is completely voluntary, and parties are not required to come to an agreement. Parties are given the opportunity to describe issues, discuss their interests, understandings, and feelings; provide each other with information and explore ideas for resolution of the dispute. The idea is to keep the parties communicating and allow them to better understand their interests. There is a major difference between positions and interests. Currently the MLB and MLBPA are stuck on their positions which is why they are yet to come close to an agreement. A key part of mediation is to get both parties to disclose their underlying interests, which may not have come to light in earlier negotiations. The most common way for parties in a negotiation to reach an impasse is for the parties to be stuck in their positions. Positions are what a party says they want. They are typically surface statements indicating where a party stands, and rarely provide insight into underlying motivations, values or incentives. On the other hand, interests are why a party wants what they want. They are the underlying reasons, values or motivations, and explain why a party takes a certain position. Sometimes a parties position conflicts with their underlying interests. In the case of MLB and the MLBPA, their current positions are getting in the way of their underlying interests of starting the season on-time and generating revenue for a 162 game season. The job of the mediator is less to convince than it is to find solutions that address both parties’ interests. This is why mediation is looked at as an assisted negotiation. There are a number of different ways a mediation can take place. Most mediations start with the parties in a joint session. In the case of the MLB and MLBPA who have many people on each side of the table, it is likely that Commissioner Rob Manfred accompanied by a team of lawyers will sit across from President of the MLBPA, Tony Clark, and his team of lawyers, both aided by a third-party neutral to help facilitate the conversation. The mediator will then describe the process and establish ground rules and an agenda for the mediation. Sometimes mediators will conduct the entire process in a joint session, but if the conversation comes to a halt, the mediators might break and meet with each party individually in what is called a caucus. A caucus is where the mediator will shuttle back and forth between the parties to gauge where they are at in terms of the flow of the conversation, and whatever else they need assistance in discussing. It is more likely than not given the history of the MLB and MLBPA that the process will not be entirely handled in a joint session. The two sides took 43 days to have their first meeting since the start of the lockout on December 1st, and have made little headway since that meeting. As the season gets closer, it is inevitable spring training will be delayed and America’s pastime may not get underway on-time. Mediation might be the key to getting the two sides unstuck from their positions and discussing their underlying interests in greater detail. Mediation is an entirely private process, but if the two sides come to an agreement, much of what was discussed will be laid out in the next CBA. With spring training in jeopardy, the parties know they need to move quickly to start the season on-time, and mediation may be their saving grace that allows just that. Michael Perlo is a law student at the University of Buffalo School of Law, Class of 2023. He can be found on Twitter @michael_perlo.

San Diego, California is taking a page from St. Louis, Missouri’s playbook. In a report from “Conduct Detrimental” co-host Dan Wallach and St. Louis NBC affiliate, KSDK, they filed suit against the NFL for relocating the Chargers from San Diego to Los Angeles after the plaintiffs recently gained access to the Spanos’ family handling of the Chargers. They claim they are a third-party beneficiary, like St. Louis claimed, and the NFL Relocation Policy was not followed correctly by the NFL. They allege they were fraudulently misrepresented, the NFL was unjustly enriched, San Diego was a third-party beneficiary from the relocation, and the Spanos family delayed the discovery process by concealing documents regarding the Chargers’ relocation and the Spanos’ ownership of the Chargers. The Spanos family owns the Chargers, and they are in their own litigation mess. San Diego is claiming they negotiated in good faith, and they formed a committee that proposed plans to Dean Spanos for a new stadium in 2003, but they claim Mr. Spanos made his mind up to relocate the Chargers to Los Angeles as early as 2006. An interesting nugget is once the Chargers relocated from San Diego to Los Angeles, a clause stated the city could not bring suit against the NFL for any matter involving the Chargers and their relocation. An obstacle is the statute of limitations, as more than four years has passed for their lawsuit. St. Louis settled with the NFL for $790 million in November. San Diego is hoping to follow St. Louis’ blueprint to either receive a monetary settlement to pay the outstanding bonds taxpayers must pay from Qualcomm Stadium’s construction, and they believe the NFL relocated the Chargers without giving San Diego a fighting chance to prove they had the best intentions to keep the Chargers. The Chargers played their inaugural season in Los Angeles, but they relocated to San Diego. They became a fixture in San Diego until 2017, when they officially relocated to Los Angeles, ironically in Carson at a 35,000 seat soccer stadium. Carson was a plan where the Chargers and Raiders would relocate there when those owner meetings went on in Houston on January 12th, 2016. These meetings decided the Chargers’ Raiders’ and Rams’ fates regarding their relocation proposals. The owners voted 30-2 in favor of Enos Stanley Kroenke’s Inglewood Project. The two “no” voters were Michael Bidwill and Jerry Richardson, owners of the Cardinals and Panthers respectively. The Carson project had a 4-1 NFL Relocation Committee advantage prior to the Houston meetings, the lone “no” vote was Clark Hunt, who owns the Kansas City Chiefs. Hunt believed in stability, but relocating the Rams from Missouri to California is not stability. Back to the main story, the Chargers and the Spanos family were given the first choice of whether to relocate with the Rams to Inglewood in 2017, and Dean Spanos accepted the choice. Dean Spanos did not have to construct the stadium or pour any money into the stadium, now known as SOFI Stadium. The Chargers pay Kroenke and the Rams $1 to lease as the stadium’s tenants. They have their own locker room within the stadium, as do the Rams. The Chargers are the major victors because for a dollar, they reap in the profits from SOFI Stadium with the Rams, their only major monetary payment was the $500 million relocation fee, split among the other 31 NFL owners. The plaintiffs argue San Diego appointed a committee, similar to St. Louis’ task force, to develop new stadium ideas for the aging Qualcomm Stadium. Their argument lacks the background behind their claims that the NFL acted fraudulently towards San Diego. The NFL did not make it open and obvious they misrepresented San Diego like they did towards St. Louis. They gave Spanos first opportunity to relocate with the Rams because Spanos is well-liked among the other thirty-one owners. The city did not present a viable stadium plan as St. Louis did with National Car Rental Field. There is no history showing Spanos had the intent to relocate, where Kroenke had the intent as early as 2003, when he was on the NFL’s Los Angeles committee when he was a minority owner of the St. Louis Rams. San Diego has an uphill battle in front of them, but if they follow the route St. Louis took in their suit against the NFL, six years from now, they may receive a nine figure settlement. 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.

BY: Rachel Emendorfer This week Minnesota Law Alum, Suzanne Spellacy, spoke with Minnesota Law Sports Law Association. Spellacy has had an illustrious career following graduation, working for the commercial law firm Winthrop & Weinstine for eight years before leaving the Twin Cities to work for Taylor Corporation in Mankato, Minnesota. Spellacy worked on a wide range of legal issues for Taylor and worked her way up to general counsel. She then became general counsel at Jack Link’s Protein Snacks in Minneapolis. In the summer of 2021, Spellacy became general counsel for the Minnesota Timberwolves and Lynx organization. Spellacy spoke about various types of legal practice her role entails and what a usual workday for her looks like (the best workdays are the ones ending in a Timberwolves win). Her advice to students was to keep an open mind about the path you take working for legal counsel in a sports organization. She encouraged students to focus on types of law most needed within sports organizations: Employment law, Contract law, Litigation and Dispute Resolution, etc. Her other piece of advice was to investigate legal positions for entities owned by sports organizations: restaurants, stadiums, and media entities. Carter Allen (1L) said this of Spellacy’s talk, “Ms. Spellacy gave us some great insight into her day-to-day responsibilities and some of the primary issues at the forefront of sports law today. Her main piece of advice for all of us: Focus less on breaking into sports specifically, and more on becoming the best, most well-rounded attorneys we can be.” Overall, it was a great experience for the Minnesota Sports Law Association, and we are very thankful to Ms. Spellacy for volunteering her time with us. Rachel Emendorfer is a 1L at the University of Minnesota Law School. Prior to law school, she attended the University of Wisconsin-Platteville, where she captained the Pioneer women’s basketball team. She can be found on twitter (@_rachel_15) and on LinkedIn under her name. Suzanne Spellacy, Minnesota Law ‘92

It is 2022 and the NFL has turned a blind eye to the Rooney Rule, having not made any amendments to it. There are fantastic assistant coaches that are not Caucasian, such as Kansas City Chiefs’ offensive coordinator Eric Bieniemy. He has not received, to my knowledge, an interview request for an open head coaching vacancy. It is time the NFL, their owners, and possibly, the NFLPA, look over the Rooney Rule and amend it. NFL.com’s staff released a story about Dan Rooney’s son and current Steelers owner Art Rooney II. He addressed the NFL’s Diversity policies and their general state of affairs: "Over the past several years, our Diversity Committee has recommended, and Ownership has adopted, a number of enhancements to the Rooney Rule as well as new policies and fair consideration for coaching and front office positions." "The details of these enhancements and new policies have previously been made available. He is saying the Rooney Rule has adopted new policies and enhancements to the Rooney Rule, and all thirty-two NFL clubs know about them. The clubs are choosing not to either follow them correctly, or know they are there and not care about them. NFL teams are too worried about their reputation, and they are passing on quality minority coaches that could succeed as head coaches, such as Eric Bieniemy and if in the right situation, Tampa Bay’s coordinators, former Jacksonville Jaguars and Pittsburgh Steelers quarterback Byron Leftwich and former New York Jets head coach Todd Bowles, respectively. If the NFL does not get their ducks in a row, they could be facing a massive class-action (multiple plaintiffs) lawsuit, headlined by former Miami Dolphins head coach Brian Flores. NFL Commissioner Roger Goodell and the thirty-two owners need to find a way to institute the Rooney Rule on a stricter basis to prevent the sham interviews mentioned in my Brian Flores Lawsuit article. The NFL seems stuck in its own way, and they need to figure out why clubs aren’t hiring minority coaches and front office personnel at the level Dan Rooney envisioned them to be hired. Alex Patterson is a 3L at Thomas M. Cooley Law School in Lansing, Michigan. He played football for seventeen years as an offensive and defensive lineman. He graduated from Lindenwood University-Belleville in 2018 with a Bachelor's in Sports Management. He can be followed on Twitter @alpatt71.

In July of 2021, Overtime Elite announced that it signed Francis “LeBron” Lopez, a 6-foot-5 shooting guard from the Philippines, to play in its inaugural season. “We’re delighted to have Lebron join the OTE family as we expand our international reach, bringing in top talent from across the globe,” said Brandon Williams, OTE EVP, head of basketball operations. “Francis is a young man who has impressed us with both the combination of pure passion for the game and self-improvement, physical athleticism, work ethic, as well as many leadership intangibles. He’s the kind of player we want and expect to thrive at OTE.” Lopez is represented by SDS Sports Agency. SDS is a full-service management agency for athletes, based in Charlotte, North Carolina, who filed a Form-129 Petition for a Nonimmigrant Worker, to classify Lopez as an O1A internationally recognized athlete. In its complaint, SDS claims that multiple government parties, including Alejandro Mayorkas, Secretary of the Department of Homeland Security, and Ur Mendoza Jaddou, Director of U.S. Citizenship and Immigration Services, improperly denied the I-29. With that, SDS now seeks judicial review of that denial via this lawsuit. This complaint for injunctive and declaratory relief was filed in the United States District Court for the Western District of North Carolina. Pursuant to the Immigration and Nationality Act, a United States employer may sponsor a qualified foreign national who, inter alia, has “extraordinary ability in the sciences, arts, education, business or athletics.” The Code of Federal Regulations has defined “extraordinary ability” as a “level of expertise indicating that the person is one of the small percentage who have arisen to the very top of their field of endeavor.” In addition to establishing “extraordinary ability” as defined above, a petitioner must also demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise. In its complaint, SDS writes the following in attempting to establish the "extraordinary ability" in athletics requirement: "Mr. Lopez, at only 18 years old, has already achieved more in his chosen profession than most people do in a lifetime. Just a month after Mr. Lopez’s 18th birthday, he had the distinguished honor of becoming one of the youngest players to ever play for the Philippines Men’s Senior Team in an official International Basketball Federation (“FIBA”) tournament, which is known as the highest level of international basketball competition outside of the Olympics." "Prior to competing in FIBA, he was named among the 2020 SLAM Philippines Rising Stars, which is a list of top high school basketball players in the country. In addition to the two honors, Mr. Lopez has received the following, non-exhaustive list of individual awards: 2020 NCAA Mythical 5, 2019 Batang Gilas U16 4-Star Prospect, 2018 BBI UI7 Mythical 5, and the 2018 MILCU U17 Most Valuable Player. Mr. Lopez’s exceptional achievements are why Overtime Elite Pro League (“OTE”) offered Mr. Lopez a professional contract." Lopez is a highly intriguing prospect and I hope to see SDS succeed in this action. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is the President of Hofstra’s Sports and Entertainment Law Society. Additionally, he is a Law Clerk at Geragos & Geragos. He can be found on Twitter @Jason_Morrin.

Last Tuesday, attorneys for former Miami Dolphins Head Coach Brian Flores filed a class-action lawsuit in federal court broadly alleging racism by the NFL and team owners in the hiring process for coaching and front office positions. Some of Flores’ claims certainly have merit. After all, the league has a pretty troubling history with racism. The emails from former Raiders coach Jon Gruden to former Washington Commander’s GM Bruce Allen is just one example noted in the Class Action Complaint.[1] The Rooney Rule, initially intended to improve racial disparities in leadership positions, has not lived up to its expectations. That is evident because Mike Tomlin of the Steelers is currently the only black head coach in the NFL and only a few more are general managers. Assuming that Flores’ complaint makes it to discovery (barring the success of a possible motion to dismiss), the evidence unveiled against the NFL and team owners may be devastating. In the meantime, the New York Football Giants have been the subject of much discussion after being specifically named in the lawsuit this week. While Brian Flores has several legitimate reasons for suing the NFL, claiming that the Giants ownership and front office discriminated against him in the hiring process is absurd. Under owners John Mara and Steve Tisch, the New York Giants have long been one of the most highly regarded organizations in the NFL despite a lack of success in recent years. Within the last couple of weeks, they hired Joe Schoen and Brian Daboll from the Buffalo Bills to be their General Manager and Head Coach respectively. However, the process by which the Giants hired Daboll was called into question by Flores who revealed text messages between himself and Bill Belichick pertaining to the Giants head coaching job. Belichick, thinking he was texting Daboll, mistakenly congratulated Flores for being hired by Big Blue three days before Flores interviewed with the team. Even if litigation proceeds in this case, we may never know where Belichick got advanced information, but it is understandable why Flores may have thought the Giants were just interviewing him to fulfill the Rooney Rule. However, if we actually look at the totality of the circumstances surrounding the Giants search for a GM and head coach, it is obvious that the organization conducted a thorough and fair interview process. In terms of the GM position, four of the Giants' nine candidates were black.[2] While all were eminently qualified, they likely went with Joe Schoen because of his involvement in the Bills' flourishing offense with Josh Allen under center. As for the head coach, three of the six candidates Schoen interviewed (including Flores) were black.[3] In both instances, the Giants more than satisfied the Rooney Rule. Why then did the Giants go with Daboll over Flores? Given the state of the organization, it was not because of any unfair discrimination. Rather, it was because the team needed a coach who had demonstrated the ability to develop an offense and a Quarterback. After three years of failing to develop Daniel Jones and the offensive players around him, Brian Daboll was that guy. There’s no question that Brian Flores has proven himself to be a successful head coach. He certainly deserves a head coaching job in the NFL this year, as does a proven offensive coordinator like Eric Bieniemy in Kansas City. But, Flores was not the right person for the Giants this time around. I hope that Flores’ concerns with racial discrimination in the NFL are addressed promptly. It takes a lot of guts to do what he did especially considering the position he is in. However, there should be no quarrel with the way the New York Football Giants conducted their hiring process. It was thorough and fair. End of story. A.J. Lise is a 2L at New York Law School. He is a member of his school’s Dispute Resolution Team and has been a personal injury paralegal since 2018. He can be reached at [email protected] and @aj_lise on Twitter. [1] https://int.nyt.com/data/documenttools/brian-flores-nfl-lawsuit/44f04359fa5bb496/full.pdf [2] Lewis, Hayden. 2022. Overview of the New York Giants’ 9 general manager candidates. January 15. Accessed February 4, 2022. https://empiresportsmedia.com/new-york-giants/overview-of-new-york-giants-9-general-manager-candidates/. [3] Brown, Larry. 2022. Timeline of New York Giants head coach interviews and Rooney Rule Requirement. February 1. Accessed February 4, 2022. https://larrybrownsports.com/football/timeline-new-york-giants-head-coach-interviews-rooney-rule-requirement/591390.

On January 31, 2022, The National Women’s Soccer League (NWSL) Player Association and the NWSL’s league representatives ratified the first Collective Bargaining Agreement in the NWSL’s history. The NWSL’s president, Tori Huster, commented on the CBA, stating, “Our mission in this historic CBA was to put this same philosophy at the center of NWSL’s future. With the amount of care and attention that we have given this process since Fall 2020, we are proud that players can confidently enter the tenth season of the NWSL in a better position than ever before.” The Player’s Association was also excited for the potential of the CBA to protect players beyond just the scope of the individual team’s rules and guidelines. Some terms of the CBA are outlined below. The NWSL’s CBA provided that all teams must provide the services of, at minimum, a team physician, massage therapist, sports psychologist, sports scientist, and team clinician to provide mental health services. Player safety was a focus of the CBA, with the focus on improved workers’ compensation for the women athletes. Further, the CBA added layers of protection such as six months of paid mental health leave. To support the women athletes in an amplified manner, the CBA stipulated for eight weeks paid parental leave, private nursing facilities for parents, and professional minimum staffing standards for healthcare professionals. Finally, the league agreed to protect players by ensuring a fix season with start and end windows, with a built-in guaranteed forty-two days of vacation, and a seven-day summer break during the season. Further, the CBA took a massive step regarding pay for the women athletes. The CBA requires compensation of a minimum salary of $35,000, with four percent yearly increases. This salary is a 160 percent increase from the previous minimum salary within the league. The CBA also includes a step ladder increase in 2022, with a purpose to protect players above the minimum in 2021 401k plan with matching contributions from the NWSL commencing in 2023. Beginning in 2023, there will be minimum standards for housing stipends. The NWSL also states that there will be improved group licenses provisions, with commitment by the league for $255,000-$300,000 per year for group licensing rights. This CBA took much negotiation by the NWSL’s Player Association, with more than thirty players involved in the negotiating process. The NWSL’s Player Association released a statement regarding the CBA, stating they are “grateful to our brothers and sisters in the labor movement who paved the way for us to get here, and to our fans and partners for their unwavering support. We want to especially thank our legal team of Deb Willig, Jessica Caggiano, and Larry Goodman of Willig, Williams & Davidson. There is no one else we would have wanted to spend more than 400 hours on a Zoom with. To the players who came before us: We stand on your shoulders. We hope we made you proud.” Since the NWSL just began pre-season, time will tell to see how effectively the CBA serves the players. In the meantime, NWSL supporters everywhere are proud to see the steps taken by the NWSL’s Players Association to amplify the rights of our professional soccer players. Ashlyn can be found on Twitter @Ashlyn_Stone2.