The dance team at the Louisiana State University, known as the Tiger Girls, was founded in 1999. Each year in addition to performing at school and athletic events, the dance team attends the Universal Dance Association (UDA) College Nationals in Orlando, FL. The LSU Tiger Girls is recognized as a top collegiate dance team and have won National Championships in 1999 and 2010, and in 2013, they also won World Championships. However, last year the Louisiana State University did not allow the Tiger Girls to compete at UDA College Nationals. The University blamed it on a variety of reasons including funding, COVID-19, and a lack of resources, specifically a staff shortage in the training room. The LSU Tiger Girls were however, still expected to perform at all school and athletic events and were allowed to host practices. Additionally, they were required to follow the same COVID-19 protocols and testing as every other athletic team on campus. Despite the various excuses of the University, every other “athletic” team on campus was allowed to attend their National Championships. The LSU Tiger Girls were not being prioritized because the “athletic” teams and sports that drove in revenue were; the University and NCAA do not identify the dance team as either. While the LSU Tiger Girls are not recognized as an “athletic” team, they are required to follow all student athlete guidelines, including maintaining a minimum GPA and attending over ten hours of practices and rehearsals per week. Last year was the first time in 22 years that the dance team did not compete at UDA College Nationals. After a year off, when this year rolled around, the LSU Tiger Girls were eager to attend and trained harder than ever for their comeback. The LSU Tiger Girls attended UDA College Nationals and won first place in the D1A Hip Hop division. They brought home the title for the first time in 12 years. Since then, their performance has gone viral and even become a Tik Tok trend. However, it is not simply for winning a championship that they have gained recognition, but for the actual message that these dancers delivered. The team’s inspiration for this routine was the struggles they faced last season. The LSU Tiger Girls performed to “Like A Boy” by Ciara and dedicated it to all female athletes. The routine was choreographed by Carson Rowe and Sammy McFadden of Tribe 99 and their vision was to create a routine that also spoke to the need for the recognition of dance as a collegiate sport. In an Instagram post on the team page, the LSU Tiger Girls stated “Today, we represented ourselves, our school, and every woman before us who has helped pave our path for success. We are BURSTING with gratitude & love from all of the support we have received this weekend.” The LSU Tiger Girls’ vital message has rapidly spread throughout the nation, adding to the numerous existing Title IX and Equal Pay suits in the sports world. This story shines a bright light on the continuing inequalities faced by all female athletes. The full routine can be viewed at the link below: https://www.instagram.com/p/CY0de5dMZzx/ Link to LSU Tiger Girls website: https://lsusports.net/spiritsquads/tigergirls/ Nicole L. Gentilella is a 3L at Maurice A. Deane School of Law at Hofstra University, where she is VP of Sports of the Sports & Entertainment Law Society. She obtained her undergraduate degree from Northeastern University, where she was a collegiate dance team member. She is currently Director of Cheerleading and Dance for Narrow Pathway Management. She can be contacted via email at [email protected], on twitter @NLGent and LinkedIn at https://www.linkedin.com/in/ngentilella/

For the last six years, the United States Womens Soccer Team’s members and the parent company of the team, U.S. Soccer, have been in ongoing litigation regarding the equal pay and treatment of the women soccer players in comparison to their male counterparts. The dispute focused around unfair working conditions, the lack of equal pay in bonuses and salaries, and unfair treatment by coaches and medical staff. The dispute began in 2016, when five key players of the USWNT, Solo, Sauerbrunn, Morgan, Rapinoe, and Lloyd, filed a wage discrimination claim with the Equal Employment Opportunity Commission (EEOC). Within the complain, the players cited financial reports from U.S. Soccer that proved that the organization’s main source of income was through the USWNT. U.S. soccer responded calling their math “inaccurate, misleading, or both,” and cited various figures suggesting that the USMNT brought in more revenue and viewership. Following U.S. Soccer’s clear stance against working with the USWNT’s players, the players took matters into their own hands and unionized as the USWNTPA. Within the union, the players received education on important labor laws, and further elected a counsel and appointed negotiation teams in order to best take on this issue of equal pay head on. Because of their united front, the players were able to sign a 2017 contract that increased their control over marketing and licensing rights and improved match salaries. Still so, the equal pay issue was largely sidestepped in this contract. After little progress on the equal pay frontier, the USWNT’s members pressed the issue further by withdrawing their claim with the EEOC, and instead directly suing U.S. Soccer for gender discrimination, stating that the discrimination affects how they are paid, where and when they play, how they train, the medical treatment and coaching they receive, and the travel provided for the matches. Throughout the proceedings, it was clear how divided U.S. Soccer and the USWNT were. Both parties filed numerous summary judgements, with the players focusing on a set salary request, and the federation focusing on the inequalities between men and women players. Notably, the former U.S. Soccer president, Carlos Cordeiro, stated that “indisputable science” proved that the women’s national team players were inferior to the men’s national team players. Such comments lead to an abandonment of settlement negotiations. In April 2020, the lawsuit was ruled in a way that looked grim for the players. Judge Gary Klausner of the United States District Court for the Central District of California stated that the women’s team had earned more cumulative and on average per-game than their male counterparts. Ironically enough, this was due to the USWNT’s extreme success over the last decade, and the USMNT’s failures to qualify for the World Cup. Still so, post-defeat, the USWNT appealed, and U.S. Soccer suggested their desire to find common ground in the future. Common ground was initially pursued in November of 2021, when U.S. Soccer and the players agreed to resolve claims surrounding unequal working conditions. Such unequal working conditions, such as staffing, travel, hotel accommodations, and venue choices, were all committed to being addressed by U.S. Soccer, with a goal of equality in mind. The goal for a more stable relationship was best achieved by the recent agreement between the players and U.S. Soccer, one that cost $24 million in compensation for the athletes. The agreement largely included back pay for numerous players who were included once the plaintiffs were granted class-action status. Further, the agreement granted millions of dollars in seed money for a fund that gives players post-career plans and the ability to grow women’s soccer in the United States. Most notably, U.S. Soccer includes a pledge to equalize pay, appearances fees, and match bonuses between men and women players. This mindset of equality is one that is celebrated by the players who worked endlessly in the fight for equality in women’s sports. The USWNT’s agreement is up, so we will have to wait and see what further agreements the USWNT, and U.S. Soccer come to, but in the meantime, we can celebrate a massive win for women’s rights advocates and soccer fans alike. Ashlyn can be found on Twitter @Ashlyn_Stone2.

In the past year, former female employees within the newly named Washington Commanders Organization have begun to publicly come forward with allegations of workplace misconduct and sexual harassment against team owner Dan Snyder and other team executives. This revelation is not unique. As reported by ESPN’s Don Van Natta Jr. on February 16th, 2022, the Dallas Cowboys paid a confidentially settlement of $2.4 million after four members of the iconic Dallas Cowboys Cheerleading squad accused former team executive, Richard Dalrymple, of voyeurism in their locker room as they were undressing at a 2015 event at AT&T stadium.[1] Dalrymple was a longtime senior vice president for public relations and communications with a long personal history in the Cowboys organization and with owner Jerry Jones. As reported by ESPN, Dalrymple was allegedly seen by Jones as a “member of his extended family”.[2] In addition, Dalrymple also served as Jones’ confidant for 32 years.[3] Dalrymple conveniently announced his retirement on February 2, 2022, just days after ESPN contacted the attorneys involved in this settlement. The alleged incident, as reported by EPSN, occurred on Wednesday September 5, 2015, during the Cowboys annual Kickoff Luncheon, held at AT&T Stadium. After the four Dallas Cowboys cheerleaders performed, they returned to their locker room, and as they were undressing, heard the locked back door open. One of the cheerleaders then noticed a man’s hand and a cellphone pointed in their direction appearing to be filming the four women.[4] According to ESPN, the cheerleaders were completely naked at this time, and one of the veteran cheerleaders immediately recognized the man to be Dalrymple. The cheerleaders then proceeded to report this incident to the security guard outside of their locker room who wanted to initially call the police. In Texas, it is a misdemeanor to secretly observe someone without their consent, and a felony to take a photo or a video of “an intimate area of another person” without their consent.[5] The police, however, were never called. The Dallas cheerleader’s director, after hearing about the incident, told the four women to report it to the Cowboy’s Human Resources department and the department took the statements of the four cheerleaders, the security guard, and two other employees who were potentially witnesses.[6] Cowboys General Counsel, Jason Cohen, then confiscated Dalrymple’s work-issued iPhone to search for the alleged photos or videos. Dalrymple, admitted to Cohen that he used his security code to enter the Cheerleader’s locker room, but denied using his phone to take pictures of the four women. Eight days following the incident, team officials finally met with the four cheerleaders in person. The four women were told by team officials that Dalrymple had admitted to entering their locker room, but the cheerleaders were told he did not expect to find the women present in their locker room. The cheerleaders further inquired if Dalrymple also had a personal phone in addition to a work phone, in which the team officials responded that Dalrymple had previously assured the team he did not. As reported in ESPN, Cohen told the cheerleaders that Dalrymple “understands he was this close to being fired and still will be fired if anything even remotely like this comes to light.”[7] The issue herein lies in the fact that Dalrymple was “this close” to being fired, but in reality was never disciplined for his alleged actions, he kept his job, and he kept the power. The cheerleaders and their lawyers were never told whether footage from the hundreds of security cameras all over AT&T were looked at to confirm this incident. The Dallas Cowboys team officials failed to properly investigate the alleged allegations by not providing the women the security camera footage that would confirm or deny the exact timing of the allegations. The team officials did not investigate the very legitimate possibility that Dalrymple could have been using another iPhone, but instead choose to believe Dalrymple. One of the Dallas Cowboys cheerleaders stated, “it was a ‘he said, she said’ and the team chose to believe Dalrymple’s side of things” as concluded by EPSN. This narrative is comparable to the numerous former Washington Commanders female employees who came forward with sexual harassment allegations against owner Dan Snyder and other team executives. Former Washington cheerleader Tiffany Scourby stated, “I know people will say it’s he said she said… She said it because it happened” according to The Washingtonian.[8] It is, unfortunately, not uncommon for professional sports organizations to protect their long-time employees and especially senior executives. However, according to ESPN, this story is slightly different given that there are also allegations that Dalrymple had also taken inappropriate photos of Charlotte Jones Anderson, Cowboys Executive Vice President, and Jerry Jones’s daughter, on a livestream in the Cowboys’ draft “war room” on April 30, 2015.[9] As reported by EPSN, lifelong Cowboys fan Randy Horton took to Facebook writing that while watching a video stream of the Cowboy’s “war room”, he could clearly see Dalrymple taking “upskirt photos” of Charlotte Jones Anderson.[10] The Cowboys were made aware of the “upskirt” allegation in May of 2015, four months prior to the cheerleader’s locker room allegation. However, a source told EPSN that Cowboys’ HR officials found no wrongdoing by Dalrymple in the video.[11] The cheerleader’s lawyer again brought this video to the Cowboys’ attention on September 30, 2015, in a letter written to the Cowboy’s lawyers. The Cowboys issued a disciplinary letter to Dalrymple on October 19, 2015, and only then revoked his access to the cheerleader’s locker room. In May of 2016, a settlement and nondisclosure agreement bound the four women and team executives to secrecy, and, in addition, barred the four women from discussing any details of the Charlotte Jones Anderson “war room” incident.[12] This settlement remained confidential until ESPN received a tip, six months ago, from a former Cowboys executive about the alleged allegations against Dalrymple. As reported by ESPN, the NFL determined that it will not be opening a separate investigation into the events surrounding the $2.4 million confidential settlement with the four cheerleaders and the cheerleaders’ allegations are “considered a club matter” according to NFL spokesman Brain McCarthy.[13] These allegations come during a tumultuous time for the National Football League, and perhaps it’s time that the League does open a separate investigation that is not conducted by the club under allegations. Last October, the leak of the racist and misogynistic emails sent by former Las Vegas Raider coach Jon Gruden to former Commanders President Bruce Allen, gained the attention of Congress who then demanded the NFL release the 650,000 emails gathered by the NFL who were then investigating the alleged wrongdoing.[14] Among the disturbing exchanges between Allen and Gruden, the email chain also included photos of topless Raiderettes, Vegas’s team cheerleaders.[15] The Washington Post also reported that Washington Commanders longtime owner Dan Snyder had attempted to thwart the investigation.[16]The Washington Post also reported in August of 2020 information received by a former Washington Football Executive, that employees were instructed to create a “behind the scenes video” for owner Daniel Snyder featuring clips of partially nude cheerleaders pulled from a 2008 swimsuit calendar shoot.[17] There appears to be several striking similarities between the toxic workplace culture at the Washington Commanders, and the Dallas Cowboys Cheerleaders voyeurism settlement. The first is the repugnant response by the team’s officials to turn legitimate allegations of misconduct into a “he said, she said” situation which pins “low-ranking” female employees against “high-ranking” male executives. This type of behavior continues the antiquated portrayal of football as a misogynic “boys’ club” where cheerleaders are only present for male pleasure. Former Washington Commanders Cheerleader, Chasity Evans, told NBC Sports Washington that the women original didn’t come forward sooner regarding the 2008 video allegedly made for Snyder because “I don’t think they viewed us as people. They viewed us as replaceable objects” and idea of being seen as “replaceable” has silenced female employees within the National Football League to keep workplace misconduct quiet.[18] There is further investigation needed for mistreatment allegations of how the team officials handled the cheerleader’s original report by the National Football League. To protect and safeguard another incident from occurring, all teams must make a continual effort to protect their female employees by reviewing club policies, making sure their human resources department is accessible, and given all allegations swift and thorough hearings by an independent third party. As described by former Washington cheerleader and Director of Marketing, Melanie Coburn on NPR, “the culture and environment in those offices was deplorable, like a frat party run by a millionaire who knew no boundaries.” [19] A similar toxic culture seemingly existed at the Dallas Cowboys where a top executive was protected. With these allegations coming to light, is it imperative now more than ever that team owners and officials take responsibility and tangible action toward treating female employees as equal. [1] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [2] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [3] https://www.sportingnews.com/us/nfl/news/cowboys-voyeurism-settlement-explained-cheerleaders-paid-allegations-richard-dalrymple/myicruytd7ogcn8crtwqdzf0 [4] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [5] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [6] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [7] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [8] https://www.washingtonian.com/2020/09/02/dan-snyder-espn-is-about-to-run-interviews-with-four-women-who-say-they-were-harassed/ [9] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [10] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [11] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [12] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [13] https://www.espn.com/nfl/story/_/id/33322431/nfl-says-investigate-settlement-dallas-cowboys-cheerleaders-voyeurism-claim [14] https://www.espn.com/nfl/story/_/id/33231841/dallas-cowboys-paid-24-million-settle-cheerleaders-voyeurism-allegations [15] https://www.insidehook.com/daily_brief/sports/jon-gruden-emails-provecheerleaders-unsafe-nfl [16] https://www.espn.com/nfl/story/_/id/33322431/nfl-says-investigate-settlement-dallas-cowboys-cheerleaders-voyeurism-claim [17] https://www.espn.com/nfl/story/_/id/29746029/former-washington-employee-says-lewd-video-cheerleaders-made-owner-daniel-snyder [18] https://www.nbcsports.com/washington/football-team/post-report-further-details-alleged-mistreatment-washington-football [19] https://www.npr.org/2022/02/03/1077636343/nfl-washington-football-team-workplace-sexual-harrassment-capitol-hill

When it comes to competitions among sports-minded law students, the Tulane International Baseball Arbitration Competition is widely renowned as the most famous. For the past 15 years, law students from across the country have participated in simulated salary arbitration competitions modeled closely on the procedures used in Major League Baseball. The competition’s main goal is to provide the participating law students with the opportunity to sharpen their oral and written advocacy skills within the specialized context of an MLB salary arbitration proceeding. While competition is fierce with the many smart law students going head-to-head, one school has separated themselves from the pack in recent years. Fordham University School of Law’s team is in the midst of a semi-dynasty, winning three of the past four competitions, 2019, 2020, and – most recently – in 2022. What’s fueled Fordham’s success, you might ask? Well, you’re in luck. Dan Lust and I had the privilege of speaking with two members of the Fordham team to learn how they’ve accomplished so much over the last several years. Here’s what Sydney Glazer (2L) and Tori Klevan (1L) had to say. The most interesting thing about Fordham’s success at the Tulane International Baseball Arbitration Competition is that they go about it in a unique way compared to their competitors. Instead of having experienced 2L and 3L students participate in the competition, Fordham leans on their 1Ls. This is almost unheard of at other sports law societies noting that some schools flatly refuse to let 1Ls compete. Maybe they should reconsider their position in light of Fordham’s success. At Fordham each fall, interested 1L students tryout for the competition team soon after arriving at their Manhattan, NY campus. From there, the selected individuals begin preparing for the competition, which takes place early in the spring semester. While many law schools have faculty advisors with experience in the sports law world, Fordham’s team is 100% student run. Therefore, the experienced 2L and 3L students serve as coaches to ensure that the competing 1Ls are set up for success come competition time. There are no faculty members involved in the competition process as it is entirely student run. Again, this is atypical of sports law societies – but hey, whatever works rights! As the results show, Fordham’s process has netted amazing results as they are currently the gold standard when it comes to winning the most prestigious sports law competition going. It will be interesting to see if they can keep it up in the coming years with such a unique model. This is a truly unprecedented run. “If a school wins three of the past four championships in any sport, they are considered a dynasty,” explains former Fordham Sports Law President Dan Lust. “That’s exactly what we have with Fordham and their incredible success at the Tulane Baseball competition. We are looking at the first-ever dynasty in the history of sports law competitions.” In addition to the success of Fordham law in sports competitions, the law school itself is one of the best in the nation. Ranked in the top 40 among all law schools nationwide by US News & World Report, the Manhattan is a great place to land for any prospective law student with an interest in sports. In addition to their competition team, the Fordham Sports Law Forum also puts on a Sports Law Symposium each spring, where big names in sports law come to speak along with a sports law blog. Students can get involved in three different areas: the competition team, the symposium team, and the blog team. All of these three segmented groups come together to form a great sports law experience for Fordham law students. If you want to be a part of a highly successful sports law organization and win some of the biggest competitions in the country, Fordham law might be the best place for you. Located in the heart of Manhattan, the opportunities are endless in the sports law field. At Conduct Detrimental, we already knew that Fordham produces great sports lawyers because Dan Lust is a proud alum. But getting firsthand insight from Sydney and Tori shines an even brighter light on Fordham sports law.

On Tuesday, February 22, 2022, Marshall University filed a lawsuit against Conference USA in Cabell County Circuit Court in the hopes of leaving the conference early. The lawsuit comes in response to the conference’s demand for arbitration filed on February 15. How We Got Here On November 3, 2021, in response to a new round of conference realignment, Marshall University announced its intention to join the Sun Belt Conference no later than July 1, 2023. On February 11, Marshall announced that the university would be joining the Sun Belt effective July 1, 2022. In response, the conference filed a demand for arbitration arguing that, pursuant to conference § 3.06, Marshall could not withdraw without giving the conference 14 months written notice, among other arguments. In turn, Marshall’s lawsuit argues that the bylaw provision requiring arbitration should not apply to Marshall because it violates the Eleventh Amendment and the West Virginia Constitution, because the arbitration provision was not included in the bylaws when Marshall signed its New Member Agreement in October 2003, and because the arbitration provision does not apply to “withdrawing members.” Potential Precedent This is not the first time a state university in West Virginia has been in this position. In 2011, West Virginia University (WVU) sought to leave the Big East Conference and join the Big 12 Conference. Therefore, WVU filed a lawsuit in West Virginia state courts. WVU’s lawsuit contained similar issues, including WVU not complying with the notice requirements for withdrawal. In turn, the Big East filed its own lawsuit in Rhode Island. When WVU made a motion to stay or dismiss the lawsuit in Rhode Island due to WVU’s lawsuit in West Virginia, the court denied WVU’s motion. Ultimately, WVU and the Big East conference settled for an unreported amount, and WVU joined the Big 12 in time for the fall season. Validity of Marshall’s Arguments Marshall’s lawsuit is slightly different in that a West Virginia court will now be interpreting the university’s sovereign immunity claim. In the Big East’s case against WVU, the Rhode Island court found strong support in Nevada v. Hall, specifically states: “no sovereign may be sued in its own courts without its consent, but it affords no support for a claim of immunity in another sovereign’s courts.” 440 U.S. 410, 416 (1979). With that support, among other reasoning, the court found that the Big East’s case could move forward in Rhode Island. Now, the state court in West Virginia could rule differently. Marshall’s second argument appears to be grasping at straws. Marshall entered into an agreement with Conference USA to which Marshall agreed to the following: “The terms and conditions of Marshall’s participation in the Conference as a member shall be governed by the Conference Bylaws, as such Bylaws may be amended from time to time. As a condition of becoming and remaining a Conference Member, Marshall agrees fully and completely to abide by and comply with all provisions and conditions of the Bylaws, as such Bylaws may be amended from time to time.” (Emphasis added). Even though the arbitration provision was not included in the original bylaws, the New Member Agreement Marshall signed recognized that the bylaws may be amended, and Marshall agreed to be bound by the bylaws, as amended. Similarly, Marshall’s claim that it was unaware of the revision to the bylaws seems unavailing. According to § 5.01, as a member of the conference, the President of the university is a member of the board of directors, and the university covenants that the president has “full authority to speak and act for [Marshall] on all matters involving or affecting the Conference.” Thus, the conference should be able to prove that Marshall knew or should’ve known of the amendment to the bylaws and the inclusion of the arbitration provision via meeting minutes. Third, Marshall attempts to creatively argue that the arbitration provision does not apply to it because it is a “withdrawing member” and § 14.01 only applies to disputes between “members, former members, suspended members, or expelled members.” While § 3.06 does refer to “withdrawing members,” the argument is likely to fail because of Marshall’s failure to comply with the notice requirements for withdrawal, and thus, Marshall remains a member. Even so, Marshall remains a member until they have withdrawn. Taking West Virginia University’s example, Marshall University’s lawsuit is an attempt to resolve this issue in its home state. Either way, this lawsuit is likely to end in a similar fashion as WVU’s lawsuit against the Big East. Most likely, Marshall’s lawsuit will settle, and Marshall will join the Sun Belt Conference in time for football in the fall. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com.

The United States Women’s National Soccer Team’s (USWNT) ongoing litigation over pay equity and unfair working conditions against the United States Soccer Federation (USSF) has been dominating headlines since the initial filing of the suit in March of 2019. On Tuesday, the USSF and the USWNT Players Association released a joint statement announcing settlement of the equal pay dispute. US Soccer has agreed to a $24 million back payment, with current and former players involved in the case receiving $22 million and an additional $2 million allocated to benefit USWNT players in their post career goals and other charitable efforts related to the advancement of girl’s and women’s soccer. The sum is set to be paid over four years with the players to propose how the $22 million will be distributed among themselves and subject to final court approval. The tenuous relationship between the women’s senior team and the Federation started long before the 2019 lawsuit. Allegations of inequality and gender discrimination date back to the 1990s when stars like Mia Hamm and Julie Foudy boycotted training camp prior to the 1996 Atlanta Olympics citing low pay and poor working conditions. In 2016, Alex Morgan, Carli Lloyd, Megan Rapinoe, Becky Sauerbrunn and Hope Solo filed a wage discrimination complaint with the Equal Employment Opportunity Commission alleging the USSF of paying the men’s senior team nearly four times more than the women’s team. The five athletes originally sought $66 million in damages under the Equal Pay Act. The settlement is contingent upon the negotiation of a new collective bargaining agreement (CBA) between the parties before the current agreement’s March 31st expiration date. Upon ratification and court approval, the litigation will be resolved. The Federation has promised the agreement will provide equal pay for the men’s and women’s teams for all competitions, including friendlies, tournament appearances and World Cups. USSF president and former USWNT player Cindy Parlow Cone says the Federation is committed to moving towards one contract structure for both the men’s and women’s teams. However, the USWNT and USMNT have separate unions, and as such, are under no legal obligation to bargain jointly or agree to identical terms. Additionally, there is great discrepancy between the men’s and women’s prior CBAs, with the men’s team operating under a pay-to-play structure and the women’s union negotiating for greater base salaries and additional benefits. While this is touted as a moment to celebrate, described by USWNT Forward Alex Morgan as a “monumental step forward in feeling valued, feeling respected” and Cone as a “great transition moment,” there are still key issues to consider moving forward. UCLA law professor Steven Bank describes the settlement as a “nondeal deal” due its contingency on CBA approval that is reliant on several moving parts aligning prior to the March 31st deadline. He also expressed concern towards how this future CBA will define “equal pay” and emphasized that the key issue will be the FIFA World Cup prize money. Notably, the USSF still faces an individual equal pay suit filed against it in California by former USWNT goalkeeper Hope Solo. Solo blasted the announced settlement, calling it “heartbreaking and infuriating” because the contingency clause is centered around a CBA that “doesn’t exist yet and is not guaranteed.” Regardless, the parties say they are now committed to moving forward. In an interview at halftime of the Thursday night SheBelieves Cup finale between the USWNT and Iceland, Cone said that the focus is now on repairing the damaged relationship between USWNT players and the Federation so they can concentrate on working together to advance women’s soccer. She said that they are dedicated to growing the game commercially while encouraging FIFA to equalize World Cup prize money. With the USSF’s March 5th Presidential election quickly approaching and Cone’s looming re-election bid, the settlement agreement gives her and the Federation some much needed breathing room and time to refocus on the upcoming World Cup and Olympic qualifiers. References: https://www.ussoccer.com/stories/2022/02/us-soccer-uswnt-players-reach-agreement-to-resolve-longstanding-equal-pay-dispute https://www.si.com/soccer/2016/03/31/uswnt-eeoc-wage-discrimination-equal-pay https://www.goodmorningamerica.com/culture/story/us-soccer-federation-pay-22m-uswnt-players-gender-83036251 https://twitter.com/ProfBank https://www.law360.com/appellate/articles/1467356 https://www.instagram.com/p/CaU-bdMJNLA/?utm_source=ig_embed&ig_rid=8ee3bc07-c0c3-482a-b766-b02da5ba273d Julie Chambers is a 2L at New England Law, where she is President of the Entertainment and Sports Law Organization. She can be reached at LinkedIn at https://www.linkedin.com/in/julie-chambers-38a3401b8/.

Yesterday, February 24, 2022, the Haas Formula One racing team announced that they would be running an all-white livery, stripping the previously present blue and red stripe from the car. Haas has also announced that the most prominent sponsor, Uralkali (Russian-based potash fertilizer producer and exporter), will be removed from the car. Haas also seems to be scrubbing any equipment, buildings, or trailers of the Uralkali name as well. These actions come as the world watches what many feared as Russia’s armed forces began their invasion of neighboring Ukraine. As this invasion began on Thursday morning, much of the world voiced a response and Haas was no different. Haas stated the team “will present its VF-22 in a plain white livery, minus Uralkali branding, for the third and final day of track running at Circuit de Barcelona ­– Catalunya on Friday 25 February.” The team went on to state that testing would resume as normal which means that Russian-born driver Nikita Mazepin will continue testing in the morning with his teammate Mick Schumacher taking over for the afternoon stint. However, they made no further comments and have pulled team principal Guenther Steiner out of Thursday press conferences. While these actions by the Haas team are seen by many to be taking the moral high ground, the contractual relationship between the Haas team and its Uralkali sponsor may be tested. As one of the most prominent sponsors on the team, Uralkali has undoubtedly spent millions of dollars to ensure their name is used all over the team merchandise and car. In a sport where money drives the ultimate success of the team, sponsors fight to have their logo displayed for the international world to see. During these talks between teams and sponsors, everything is negotiated including the color, size, and location of the logo. The most important of these being the location of the logo as certain parts of the car are more easily visible during live television broadcasts. The most popular being the direct side of the car or the back side of the rear wing. Given the nature of most sponsorship contracts, it is easy to assume that this contract included a morals clause. This clause could ensure that the Haas team can strip a sponsor of their right to be shown on its car for any morally reprehensible reasons. Many would agree that the recent actions seen in Ukraine amount to that level. However, Uralkali may have an argument that its company was not responsible for the actions of Russia’s armed forces. Another issue arises when one looks at how much Uralkali provides to the team financially. With this break-up, the Haas team could be facing hardships financially. This could be remedied if Haas included a clause stating that if Haas was to cut off Uralkali due to a morals issue, it is to keep the financial proceeds from the company. This decision by Haas may also have possible future ramifications for Formula One as their driver Nikita Mazepin is the son of one of the directors of Uralkali, Dmitry Mazepin. The signing of Nikita to the F1 grid started with bad optics as many voiced that the only reason he was being signed was the money his father was bringing to the Haas team. While Haas has made no further comments, one can wonder what dominos will fall next as we enter the pre-season of Formula One. Justin Mader is a 3L at the University of New Hampshire School of Law where he serves as Lead Articles Editor for IDEA: The Law Review of the Franklin Pierce Center for Intellectual Property. He can be reached on Twitter: @jmader19 and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.

Formula 1 released a statement during its final day of testing at Circuit de Barcelona regarding the running of the 2022 Russian Grand Prix. Formula 1 stated, “We are watching the developments in Ukraine with sadness and shock and hope for a swift and peaceful resolution to the present situation. On Thursday evening Formula 1, the FIA, and the teams discussed the position of our sport, and the conclusion is, including the view of all relevant stakeholders, that it is impossible to hold the Russian Grand Prix in the current circumstances.” Formula 1 also stated their position that the races are meant to unite people and bring nations together. This statement was supported by multiple Formula 1 drivers including Aston Martin driver and four-time world champion Sebastian Vettel who stated he would boycott the Sochi race if it was to go ahead. Formula 1 seems to be following the lead of many other major sporting events. The International Tennis Federation released a statement that its Ukraine event this April is postponed, and its Russian events are cancelled indefinitely. UEFA announced that its Champions League final at the end of May would be moved from St. Petersburg to Paris. In response to Formula 1’s statement, the official Russian Grand Prix promoter ANO "ROSGONKI" released its own statement to address fan concerns. The statement reads as follows. “According to the official statement released by FORMULA 1 on 25/02/2022, due to the current political situation in the world, the FIA has decided to suspend preparations for the Formula 1 World Championship round in Russia previously scheduled to be held in Sochi in September 2022 because it is impossible to hold it in the current circumstances.” Rosgonki continued, “The agreement between the official Russian Grand Prix promoter ANO ‘ROSGONKI’ and FORMULA 1 is suspended due to force majeure events.” This statement by the Russian promoter indicates the contractual reasons allowing for Formula 1 to cancel the Russian Grand Prix without a breach of contract claim being brought by Rosgonki. So that begs the question, what is a force majeure clause? A force majeure clause is a provision in a contract that allows for the allocation of risk of certain events that are out of the control of the parties. Courts have articulated these acts to include acts of God, hurricanes, earthquakes and other natural disasters, epidemics, quarantines, terrorism, government acts, embargos, labor strikes and lock-outs, as well as other extreme events beyond the control of the parties. This clause acts to limit the duties of the parties when these majeure events prevent the party from performing the contract. Majeure events excuses one or both parties from performing their obligations under the contract. This decision by Formula 1 to cite this provision in their contract with Rosgonki is a good lesson in contract law and proper drafting. Formula 1 seems to have properly relied on this clause citing Russia’s recent invasion of Ukraine on the morning of Thursday February 24, 2022. Rosgonki concluded its statement by ensuring fans that the purchased tickets to the 2022 Russian Grand Prix are not cancelled. Rosgonki stated their opinion that there is a continuing possibility that the race will still take place as previously scheduled. This statement is little comfort to those who have purchased seats for the Russian Grand Prix. In the end, both statements by Formula 1 and Rosgonki leave the possibility of the race being restored and ran at the original place and time. Discussions will continue over the coming weeks as world conflicts affect professional sports events set to be hosted in Russia and Ukraine. Justin Mader is a 3L at the University of New Hampshire School of Law where he serves as Lead Articles Editor for IDEA: The Law Review of the Franklin Pierce Center for Intellectual Property. He can be reached on Twitter: @jmader19 and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.

According to ESPN’s Jeff Passan, the MLBPA recently proposed drastic changes to the structure of the first 18 picks of the MLB draft in the latest round of CBA negotiations. Those 18 picks are the ones awarded to teams that missed the playoffs during the previous year (in a 12-team playoff, which the MLBPA is also proposing). In addition to a proposed lottery system similar to the NBA, the MLBPA proposed penalties on teams that repetitively miss the playoffs and find themselves near the top of the draft, in an effort to discourage teams from continuously fielding non-competitive rosters. It’s a unique proposal that I cannot remember seeing in recent CBA conflicts in major professional sports, but more importantly, it indicates just how committed the MLBPA is to ensuring that all players have the opportunity to play for a competitive franchise. As I alluded to in my previous article on Stephen Ross, there are multiple MLB franchises that field non-competitive teams with low salary totals year after year in order to keep their balance sheets in the positive without feigning any interest in winning. As I noted, this situation is most prevalent for small-market teams, where low attendance totals and the difficulty of successfully tanking your way into success makes it more financially prudent for some teams to continually underperform as long as they make enough revenue to stay in the black. This, inherently, adversely effects the players of those franchises, both professionally and personally. Not only are these players now perceived as underperformers, but the lack of investment in their performance means they will naturally not reach their full potential, which may cost them millions of dollars in the long run. Further, these are professional athletes who become extremely unsatisfied when those around them (particularly the ones writing their checks) don’t share the same competitive drive that they do. Players who possess the talent and work ethic to make it to the professional level are constantly seeking an edge on their competitors and dream of not only making money but winning championships and reaching the pinnacle of their sport. They want to play in a league where every franchise is interested in doing just that, and not satisfied with mediocrity as long as the money keeps coming in. This most recent round of negotiations amplifies what we’ve seen in previous proposals by the MLBPA with regards to salary floors, arbitration, service time manipulation, and revenue sharing. The MLBPA, as a clear expression of frustration coming from their constituents that play for these teams, are fed up with trotting themselves out onto the field for owners who have no intention of ever competing for a championship. The popular understanding of this lockout, when viewed from a fan’s perspective, is that it’s a “millionaires vs. billionaires” fight over money. I think this proves it’s not that simple. Of course players want the ability to hit the open market earlier and make more money, thus the emphasis on arbitration and service time in these negotiations. I believe, however, that the drastic changes to the draft process that the MLBPA has proposed shows just how aggravated the players are by the lack of competitive incentive created by the current system and shows how determined they may be to fix it. The interesting question becomes how united are the owners when it comes to this issue? The players know, having either played for one of these franchises or played with players who have, that they don’t want to find themselves in an organization that has no competitive instinct. Moreover, they see this lockout as the opportunity to finally take a stand on the issue. The owners? Some may side with their fellow owners on the draft, and spin this as actually harming the competitive balance of the league by reducing the opportunities for bad teams to become good teams. Others, however, may already believe that their bottom-dwelling brethren are bad for the business of the league, and may at least be warm to conceding some of these ideas to the players in return for other concessions in the negotiating process. 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

This past week, NYC Mayor Eric Adams made headlines in Brooklyn when he was questioned by the press about whether he plans to phase out COVID vaccine mandates for indoor spaces. Mayor Adams responded to the press by saying, “Yes and I can’t wait to get it done.” Mayor Adams also said that he foresees a “real transformation in the next few weeks.” And now just a few hours ago, Mayor Adams has said “So long as our indicators show a low level of risk and we see no surprises this week, on Monday, March 7 we will also remove the vaccination requirements Key2NYC – meaning indoor dining, fitness, and entertainment venues.” With the number of new COVID cases consistently decreasing over the past few weeks, other cities like Boston and Philadelphia phasing out restrictions, and Mayor Adam’s, “can’t wait” attitude and new promise, phasing out the COVID vaccine mandates for indoor spaces seems to be coming to fruition sooner rather than later. Now, what does this mean exactly in the world of basketball? Well, if you are a New York Knicks fan it means absolutely nothing. You were happy to see RJ Barrett scored a career-high 46 points at home on Friday against the Miami Heat in a 15-point loss. While so-called “perennial superstar” Julius Randle shot 2-15 from the field and finished with 11 points and 4 turnovers. But even with RJ Barrett playing some of the best basketball of his career, you know the only hope for the Knicks for the foreseeable future is to acquire a star like Donovan Mitchell. However, if you’re a Brooklyn Nets fan, Mayor Eric Adams could be changing this season’s outcome. Before the season started, Kyrie Irving made it clear that he was not going to get the COVID vaccine and because of the NYC COVID vaccine mandates this means he was not going to be allowed to play in home games at both the Barclays Center and Madison Square Garden. However, Irving was allowed to travel and play road games with the team even while being unvaccinated. Nets fans and the team believed this was going to be the case for the entire season and there were no real signs of change until this past week. Today’s messages from Mayor Adams are major news if you are a Brooklyn Nets fan. This could mean getting your superstar point guard Kyrie Irving back and playing in the Barclays Center. This could mean winning the Eastern Conference for the first time since they were the New Jersey Nets back in 2002-2003. This could even mean winning the NBA finals for the first time in franchise history. https://champsorchumps.us/team/nba/brooklyn-nets Even though, Kyrie Irving has already been playing roads games this season for the Brooklyn Nets they currently stand as the 8th Seed in the East. However, with Mayor Adams declaring to phase out of the COVID vaccine mandate for indoor spaces as soon as next week this could mean Kyrie Irving is back playing in Barclay when the Knicks cross the bridge on March 13th. Or even by March 31st in a rematch of this past weekend’s shocking Nets win verse the Bucks in which Irving scored a season-high of 38 points. Do you think it’s a coincidence that the first game Irving played since Mayor Adams first mentioned a plan to phase out COVID vaccine mandates for indoor spaces Irving had his season-high in points? I’m sure Kyrie Irving, Kevin Durant, Ben Simmons, and Mayor Adams have that March 31st date against the Bucks circled on their calendar. Kyrie Irving was quick to thank NBA commissioner Adam Silver in his post-game presser after the 126-123 Nets win over the Bucks by saying, “My respect level for him went to a whole new level…. he took one for the team.” This was in reference to commissioner Silver saying that he does not understand the New York mandate and how away players who are unvaccinated are allowed to play in the Barclays Center or Madison Square Garden, but unvaccinated home players can’t play. But in the end, why does getting Kyrie Irving back to play in home games matter? https://firstsportz.com/nba-my-respect-level-for-adam-silver-is-at-a-whole-new-level-kyrie-irving-praises-nba-commissioners-praise-for-standing-up-to-the-new-york-covid-19-vaccine-mandate/ Well, Kyrie Irving while playing for the Brooklyn Nets has a record of 29-10 at home. This is compared to his 20-30 record with the Nets while playing on the road. Of course, NBA players and teams typically have a better record and statistics at home than while on the road. But Kyrie Irving is pretty consistent statically both at home and on the road averaging nearly identical splits with the Nets. https://www.statmuse.com/nba/ask/kyrie-irving-home-brooklyn-nets-record https://www.statmuse.com/nba/ask/kyrie-irving-away-record-with-brooklyn-nets And even more impressively, Kyrie Irving has a perfect home playoff record with the Brooklyn Nets of 5-0. This is compared to his 1-3 road playoff record with the Nets. Again, you must be thinking doesn’t every NBA player have a better playoff record at home than on the road? While that is true, Kyrie Irving’s 27-6 record or .818% home playoff winning percentage is tied for the best home playoff winning percentage among all current NBA players with at least 33 playoffs games played. That’s right Lebron James, Giannis Antetokounmpo, Steph Curry, and even his teammate Kevin Durant have a worse winning percentage at home in the playoffs than Kyrie Irving. https://www.statmuse.com/nba/ask/kyrie-irving-career-away-playoff-recordhttps://www.statmuse.com/nba/ask/kyrie-irving-career-home-playoff-record https://www.statmuse.com/nba/ask/current-nba-players-with-best-home-playoff-record-in-over-30-games Irving throughout his NBA playoff career averages 6 more points per game at home compared to when he is on the road. And during his 9 career Nets playoffs games he has averaged 3 more assists per game and shoots 10% better from the field on fewer attempts while playing at the Barclays Center. https://www.statmuse.com/nba/ask/kyrie-irving-home-playoff-record-with-the-nets https://www.statmuse.com/nba/ask/kyrie-irving-road-record-with-brooklyn-nets-in-playoffs While all of Irving’s other home and road splits are relatively similar it just shows that Kyrie Irving is among the NBA’s best players when it comes to winning at home in the playoffs. And you can’t forget how clutch Irving is on the road as well. Knowing that the Nets will be getting Kevin Durant back from his knee injury in about a week. And you don’t need to show any stats to prove how good Durant has played these past 2 seasons with the Nets. Knowing that Ben Simmons, the runner up for 2020-21 Defensive Player of the Year and back-to-back All-NBA 1st Team Defense (2019, 2020) is returning to the 20th best defensive rated team. And now knowing that Kyrie Irving could return to playing home games as soon as a couple of weeks according to Mayor Adams. The Nets should go from looking at the playoffs as the 8th seed and facing either the Heat, Bucks, 76ers or Bulls in the first round to perennial title favorites again. https://www.inquirer.com/sixers/rudy-gobert-nba-defensive-player-of-the-year-ben-simmons-20210609.html https://www.nba.com/news/history-all-defensive-team https://www.nba.com/stats/teams/defense/?sort=DEF_RATING&dir=-1 After beating the Milwaukee Bucks on the road without Kevin Durant and Ben Simmons, the Nets stand as the 3rd favorite to win the NBA Finals at +475. The only teams according to Draftkings.com that have a better chance at winning the Finals are the Warriors at +450 and the Suns at +380. Now when news breaks that Kyrie Irving will be available for home games, the Nets may become the odds-on favorite to win the title. Before the season started when the Nets big 3 (Kevin Durant, Kyrie Irving, and James Harden) were healthy they were the NBA title favorites at +210. Of course, the Nets team looks significantly different now than it did in the preseason, and they are 8th in the Eastern Conference. But you could only expect the Nets to go back to title favorites when it is declared Irving can play in Barclays again. Especially because this is going to be around the same time Kevin Durant and Ben Simmons make their return to the court. On fanduel.com it looks like you can still get the Nets at +600 to win the NBA Finals. Shockingly the Nets are still the favorite to win the Eastern Conference without Kyrie Irving playing home games. The Nets according to Draftkings.com stand at +245 to win the East with the Bucks at +330 and 76ers at +370 right behind them. With their current position in the standings the Nets would likely have to face the Heat in the 1st round, Bucks in the 2nd round, and finally the 76ers in the Eastern Conference Finals. Which would be an extremely difficult route to the Finals. However, with Irving, Durant, and Simmons all back and playing at Barclays within the month, the Nets could move their way up the Eastern Conference to get at least home court advantage in the 1st round. If the Nets are at +245 to win the Eastern Conference now, they might even come down to +170 when Mayor Adams changes the COVID mandate for indoor spaces. While on fanduel.com it looks like the Nets are still at +290 to win the East which is slightly better odds than on Draftkings.com. It’s tough to say those are the best bets to take advantage of because the Nets are already the favorites in the East and 3rd favorite to win the NBA Finals, but knowing what we know now the odds may only get steeper. So, if you like the Nets or want to make a smart bet based on Mayor Adams phasing out the COVID vaccine mandate restriction for indoor spaces now is the time to bet on the Nets before what now seems like the inevitable decision that Kyrie Irving can play at the Barclay Center. And now that Mayor Adams decided to break this news even sooner than we believed, the best bet available might be the Nets to win their division at +1600 according to Draftkings.com. The Nets are currently 5.5 games back of 1st place in the division with 21 games remaining and 12 of those games are at the Barclays Center. The 3 teams ahead of the Nets are the 76ers, Celtics, and Raptors. The 76ers have 22 games left and the 10th hardest strength of schedule in the NBA remaining. The Celtics have only 19 games left but they have the 6th hardest strength of schedule remaining. The Brooklyn Nets have the 19th hardest strength of schedule remaining and just came off a massive road win against the Milwaukee Bucks. And unlike the other teams who are fully healthy for the first time all year, the Nets might have a full starting lineup within the next week or two. The next 2 games for the Nets will be against the Raptors attempting to overtake them in the division just this week. Even though there might not be enough games remaining for the Brooklyn Nets to take the division from the 76ers and Celtics, if Kyrie Irving is back and playing in the Barclays Center with Kevin Durant and Ben Simmons sooner rather than later who knows? These Mayor Adams comments made on Twitter today, however, do not mean that Kyrie Irving will immediately become eligible to play in the Barclay Center after March 7th, but it’s a major step in the right direction. And as Mayor Adams just recently said on CNBC as of today, “Listen, I want Kyrie on the court. I would do anything to get that ring.” Do you think Kyrie will be back playing in Barclays soon? Maxwell Popkin was born and raised in Boca Raton, Florida. He went to the University of Florida and graduated in 2016 with a Degree in Bachelor of Science in Business Administration-Management. He's currently a 2L at New York Law School and is involved in the Sports Law Society Club and had the pleasure of taking Dan Lust's Sports Law Class last semester. He can be reached on LinkedIn at https://www.linkedin.com/in/maxwell-popkin/.

“NOT SO FAST, MY FRIEND.” -Lee Corso In a recent article, Brendan Bell highlighted Fordham’s recent success in the Tulane International Baseball Arbitration Competition, winning three of the past four competitions. Former Fordham Sports Law President and Conduct Detrimental’s very own Dan Lust crowned his alma mater “the first-ever dynasty in the history of sports law competitions.” It didn’t take long for this statement to attract backlash from Villanova Law students and alumni who felt slighted by Mr. Lust’s words. Ignoring the bias of the former Fordham Sports Law Society President’s statement, a simple look at our Villanova Sports Law Spotlight justifies the Villanova students’ objection to Fordham’s title as the first sports law competition dynasty: Villanova dominates Tulane’s Pro Football Negotiation Competition, winning it four of seven years and finishing 3rd in 2021. Austin Meo '22 and Ryan Murphy '22 became the first 1L-only team to ever win the event back in 2020. It would seem Villanova’s Pro Football Negotiation Team holds this distinction, with their dynasty dating back to 2017. However, allow me to elaborate on just how impressive Villanova’s Pro Football Negotiation squad has been. The team took home the championship in 2017, 2019, 2020, and 2022. Villanova finished in 2018 and 2021 as finalists and semifinalists, respectively, but what really stands out is the 2020 competition: Villanova entered two teams into the competition. “Both teams made it to the Top 8 and they pinned us against each other in the quarterfinal,” noted Villanova Sports Law alum Arun Thottakara. “They had to, though, because if they put us on opposite sides of the bracket we both would have made it to the final.” If we isolate this debate between Villanova’s Pro Football Negotiation Team and Fordham’s Pro Baseball Arbitration Team, Villanova edges out Fordham as the premiere sports law competition dynasty. However, if we expand our view to each school’s full sports law competition resumé, the gap grows substantially wider. The Pro Football Negotiation Team’s success is emblematic of Villanova’s dominance across various sports law contests. In the Tulane Pro Basketball Negotiation Competition, Villanova entered two teams in both 2020 and 2021. In 2020, one team finished as finalists and the other finished in fifth place; and in 2021, one squad took home the championship and the other finished in fourth place. In the Tulane International Baseball Arbitration Competition, Villanova made it to the semifinals in 2020 and 2021 as well as the quarterfinals in 2022. Fordham may hold bragging rights for the baseball competition, but the most dominant school for sports law contests and the home of the first sports law competition dynasty resides in Pennsylvania, not New York. You can be sure Mr. Lust will not forget that anytime soon. Special thanks to Austin Meo (Villanova '22) and Arun Thottakara (Villanova '21) for their help in gathering information for this article.

The newest craze (potentially for the next couple of decades) is the surge of non-fungible tokens or more well-known as NFTs. They have been around since 2014, but it took almost a decade for people to understand and accept these new products. In the virtual reality space called the “Metaverse,” people can purchase NFTs and interact with other users about them. With the current rise of interest of NFTs, the metaverse companies are just figuring out products that they can send out to consumers. Just like anything else when there is a boom, there are opportunistic people out there trying to take advantage to make some money. In the beginning of the new metaverse era trademark and copyright infringement has been difficult for large companies to handle. There is no concrete case law and many lawyers have called the NFT landscape the “wild west.” (Heitner, 2022). As a result, NFTs are created and sold without the permission of companies. Many companies and professional teams such as Walmart, Brooklyn Nets, Puma, and New Balance have filed or added to their already-existing trademarks regarding the Metaverse. (Heitner, 2022). Identical to many companies trying to fight against infringement, Nike is suing StockX over NFTs. The lawsuit was filed on Thursday in U.S. District Court for the Southern District of New York and are seeking monetary damages as well as injunctive relief to stop StockX from creating NFTs with Nike’s logo. StockX is a resale marketplace that is valued at $3.8 billion. A majority of the shoes and products in their resale market are Nike, and StockX has created an insanely successful business from reselling Nike products having 76,537 of their items listed on their site. (Heitner, 2022). StockX wants to continue to expand their portfolio of products by selling NFTs of various Nike shoes, but they might have done so too soon. Relatedly, in October, Nike filed a trademark application related to the Metaverse. The application was filed, “for use in connection with downloadable virtual goods, namely computer programs featuring footwear,’ (digital sneaker NFTs) and ‘retail store services featuring virtual goods, namely footwear’ (digital sneaker NFT trading platform).” (TFL, 2022). Nike has not yet launched NFTs, but is planning to release “a number of virtual products” this month with digital art studio. Nike claims that StockX has sold 558 individual Nike-branded Vault NFTs. (TFL, 2022). They do not want any brand confusion by having consumers mixed up with the NFTs that StockX has created thinking that it is Nike’s. Nike believes that they have created other types of virtual products that could count as common law trademark rights. The claim states, “in October 2019, through its SNKRS mobile application, partnered with 2K Sports, makers of the NBA 2K basketball video game franchise, to offer ‘Gamer Exclusives,’ limited edition digital and physical Nike sneakers that NBA 2K20 players can unlock through gameplay.” Nike v StockX, 283 F. Supp. 22 (S.D.N.Y., 2022). Also, Nike created a virtual space, Nike Virtual Studios, where fans and sneakerheads can connect, create, share experiences, and compete in different games on Roblox. Nike and other companies having existing rights to any virtual goods and services would be huge for all sides. Companies would not have to rush to file new applications, a precedent could potentially be set for courts to easily follow, and the United States Patent and Trademark Office would not have as many applications during a time where they are already backed up for months. However, StockX filed a trademark for its digital goods on January 5th, 2022, then launched their first NFT project later that month. StockX’s NFTs give consumers a traceable digital receipt where they have the exact number that the NFT is as well as specific StockX releases, promotions, and events. StockX’s intermediary business model of authenticating physical sneakers, apparel, and other accessories, may make an exception to the clear view of trademark infringement by selling goods with another company’s logo. This distinctive aspect of their services could possibly give StockX the weight that they need to have their trademark application pass. Since they already resell Nike products it may be possible that courts can see them doing the same with NFTs in the future. StockX’s brand is based on sneakerheads having a chance to collect a certain type of sneaker after they are released. These kinds of NFTs could be viewed as a great way for fans to collect their favorite shoes in a different way. StockX selling their NFTs for a higher price is on brand for them because of their normal business practice of reselling most of their shoes for a lot more than retail value. In a way, they are truly trying to continue their business practices in the metaverse that have made them successful thus far. If Nike wins the lawsuit, they can use this act to make StockX take down their NFTs. The problem of companies using copyrighted material will only increase in the future and could be a way to monitor the metaverse. This case is of the upmost importance for future metaverse trademark and copyright infringement. The case could establish precedent or create first come first serve trademark reign in the Metaverse. Citations Heitner, D. (2022, February 4). Nike Attacks StockX In An NFT Lawsuit For Trademark Infringement And Dilution. Retrieved from Above the Law: https://abovethelaw.com/2022/02/nike-attacks-stockx-in-an-nft-lawsuit-for-trademark-infringement-and-dilution/ TFL. (2022, February 3). Nike Names StockX in New Lawsuit Over Unauthorized Sneaker NFTs. Retrieved from The Fashion Law: https://www.thefashionlaw.com/nike-names-stockx-in-lawsuit-over-sale-of-unauthorized-sneaker-centric-nfts/