Well, he’s back. Tom has always had a flare for the drama, and this week’s announcement was nothing short of shocking. Brady has decided to return for his 23rd NFL season to play for the Tampa Bay Buccaneers after announcing his retirement from the league only a month ago. This news comes too little too late for the memorabilia collector who dropped $518,628 this past weekend to purchase the football that Brady threw 55-yards to Mike Evans during the fourth quarter of Tampa Bay’s NFC Divisional Round loss to the Rams. At the time of the auction, this football was quite valuable as it was the last football Brady threw in an NFL game before retiring. All parties assumed as much. However, 24 hours later, Brady announced that his time on the field was not over, and that he will be returning as to the Buccaneers for the 2022 season. This news leaves the question: Does this fan have any remedies now that the ball’s value has tanked, or can they get out of buying the ball all together? The collector’s first argument might be one of mutual mistake. In contract law, a contract can be voided or rescinded if it was made upon a mutual mistake. In order to invoke the defense of mutual mistake, the collector would have to show that (1) there was a mistake; (2) that the mistake was material, meaning it was a substantial characteristic of the subject of the contract; and (3) both parties had the same mistaken belief. In this case, the collector would argue that the substantive characteristic of the football would be that it was, at the time of purchase, considered to be the last football thrown by one of the greatest quarterbacks of all time. Both parties believed this characteristic to be true, and it was definitely the defining characteristic that drove the price up to over half a million dollars. However, at the time of the auction, this material detail was not a mistake. So, the question is, can a material mistake arise after a contract for sale is made? In my opinion, the answer is yes as long as it is within a reasonable amount of time. Based on the auction company Lelands’ Bidding Terms and Conditions, the auction likely went past 10:00pm on March 12. After the winning bid is made and the purchaser is notified, they have 14 days to complete payment. Further, it says that it generally takes about seven days for payment to clear, and then the memorabilia is sent to the purchaser. Brady came out of retirement about 24 hours after the collector purchased the football, rendering it not the football thrown for Brady’s last touchdown ever. The purchaser probably had not yet submitted payment or their payment might not have been processed and the football certainly had not shipped. If Brady had decided five years from now that he wanted to come back to the NFL, then that reasonable amount of time would have passed. However, I think 24 hours after the sale is a reasonable time for the material mistake to take effect. Therefore, based on the facts, the purchaser has a strong argument to void the contract based on mutual mistake. This isn’t the first time we have seen the value of sports memorabilia change drastically after unexpected news dropped. In August of 2007, Barry Bonds hit his 756th career homerun to surpass Hank Aaron and become the MLB’s career home run champion. There had been talk for years regarding his supposed steroid use, but Bonds consistently denied the allegations. In September of 2007, fashion designer, Marc Ecko revealed himself to be the winning bidder at the auction paying a total of $752,467 for Bonds’ 756th homerun ball. Ecko later branded the baseball with an asterisk and in November of 2007 Barry Bonds was indicted by a federal grand jury for perjury. There was a lot of controversy surrounding Ecko marking the ball to discredit Bonds’ record due to the use of PEDs and the stamp quickly decreased the value of the ball. Further, OJ Simpson’s Heisman trophy was auctioned off to help pay for his legal proceedings after he was accused of murdering his ex-wife, Nicole Brown and her friend, Ron Goldman. Tom Kriessman paid $255,000 in 1999 for Simpson’s trophy, which could’ve been worth well over $300,000 (the last six Heisman trophies sold at auction fetched an average of $340,000 with the highest amount paid for a Heisman trophy being $504,000 for Ricky Williams’ in 2019). It seems clear that the alleged homicide decreased the value of Simpson’s Heisman trophy. The indictment of Barry Bonds and OJ Simpson’s murder charges tanked the value of the memorabilia due to the negative connotations surrounding them, conversely it is interesting to see the value of a milestone sink. Undoubtedly the majority of football fans are excited for the return of the GOAT and we will all be savoring each touchdown pass completed by Brady, with the exception of the unlucky collector who purchased the ball 24 hours too soon. Holly Summers is a 1L at New York Law School. You can find her on Twitter at @ProsecutieRests.

The fallout from the 2017 Astros cheating scandal is threatening to add another name to its list, as on Monday U.S. Court of Appeals Judge Debra Ann Livingston advocated the release of the infamous letter written by MLB Commissioner Rob Manfred to Yankees GM Brian Cashman in 2017. This letter will bring about the demise of the New York Yankee organization and the end of baseball as we know it! Not really. This letter was already ruled to be unsealed by a federal judge in 2020, and Judge Livingston came to her decision Monday “because MLB disclosed a substantial portion of the substance of the letter in its press release about the investigation…” in 2020[1]. Clearly, this recent decision was made because the contents of the letter were already public knowledge, and keeping them confidential didn’t matter anymore when considering the “cheating” events occurred during an unspecified earlier season, and that the Yankees were already punished for those actions in 2017[2]. What heinous crimes did the Yankees commit you may ask? They improperly used a dugout phone to relay signs “at some point in a prior season”[3]. Yawn. Yankee haters and Astro fans alike are chomping at the bit to see the contents of the letter, and surely hope it will reveal a massive cheating scheme as serious as the Astros 2017 scandal. The Yankees’ brass, understandably so, were against the publication of the letter, as in December of 2020 Yankee President Randy Levine argued to keep its content secret, citing “serious privacy issues”[4]. The position of the Yankee management on this issue is not surprising, as they want to protect themselves and the prestigious reputation of their organization from unfounded slander. Regardless of the contents of the letter, those who dislike the Yankees will use it as a way to criticize the organization and extrapolate any actual minor improper practices into some multi-season cheating scandal that incriminates every player and every member of management. I’m exaggerating, but my point sticks. What seems to be lost on people here, is that the judicial rulings which ordered the unsealing of this letter cited the already public knowledge of the Yankees dugout phone use, and how they were fined an undisclosed amount (along with the Boston Red Sox). This letter really has nothing of value in it, other than what baseball fans already knew about in 2017. From the perspective of the Yankee organization, the publication of this letter only seeks to hurt them, not for what it could contain, but for what the media and the public will make of it and how they will use it as a way to criticize the team and legitimize any accusation of cheating for the foreseeable future. The entire mystery around this letter stems from a 2017 lawsuit filed (and subsequently dismissed) by daily fantasy players of DraftKings, seeking damages as a result of the Astros scandal, and also accusing Rob Manfred of hiding the full scope of the Yankees “cheating” in the confidential letter[5]. Nevertheless, the unsealing of this letter should prove interesting, and should hopefully put to bed further accusations of cheating by fans against the Yankees. Greg Moretto is a Pre-Law Student at Boston College ‘23. He is a member of the BC Sports Business Society E-Board. He can be found on Twitter @grejmoretto. [1] https://www.cbssports.com/mlb/news/mlbs-top-50-prospects-2022-ranking-adley-rutschman-bobby-witt-jr-and-the-rest-of-baseballs-young-talent/ [2] https://www.cnbc.com/2017/09/15/mlb-fines-red-sox-and-yankees-for-use-of-apple-watch-and-phones.html [3] CNBC [4] https://www.espn.com/mlb/story/_/id/33564909/mlb-letter-new-york-yankees-sign-stealing-allegations-made-public-appeal [5] https://www.chron.com/sports/astros/article/What-is-Yankees-Letter-unsealed-cheating-baseball-17018684.php

Adidas announced that it will be launching a name, image, and likeness (NIL) network that will be open to every eligible student-athlete at an Adidas-sponsored Division I school, a first for a major sports brand. The new NIL network will have the ability to reach over 50,000 student-athletes across 23 college sports at 109 Adidas-affiliated schools. The eligible student-athletes at Adidas-sponsored schools will have the opportunity to be paid affiliate brand ambassadors through the NIL network. “The adidas NIL network embodies our belief that sport has the power to change lives by upskilling athletes and giving them the ability to begin to experience an entrepreneurial path that will carry them beyond their college years,” said Jim Murphy, Adidas NCAA Program Lead, in a statement. The new initiative is part of Adidas’s “Impossible Is Nothing” campaign, which is designed to promote the brand’s goal of creating a more equitable and inclusive future in sports. The NIL network will launch in four phases over the next 12 months, beginning with Historically Black Colleges and Universities (HBCUs) and Power-5 conference partners in Fall 2022, and then expanding across all other partnering schools by April 2023. The announcement of the NIL network is also tied to the 50th anniversary of Title IX, a federal civil rights law that prohibits sex-based discrimination in schools or education programs. Men’s and women’s basketball players from Adidas-sponsored schools will be wearing shirts in this year’s March Madness tournaments, starting with the Sweet 16 round, that will read “More Is Possible” and have language from Title IX on the back of the shirts to honor the 50th anniversary of Title IX. Adidas did not disclose the amount of compensation for the student-athletes who will participate in the NIL network. According to CNBC, the participating student-athletes will be paid a percentage of sales they generate on the Adidas website or app, as well as the ability to be paid per social media post. The new program will enable a diverse pool of student-athletes at Adidas-sponsored schools to profit off their NIL, thus putting pressure on Adidas competitors to offer similar NIL deals. According to a recent white paper from Front Office Sports and Opendorse, brands are expected to spend more than $600 million on NIL deals in the first year since the NCAA has permitted college athletes to profit off their NIL. This Adidas-led NIL initiative will put pressure on its top competitors, like Nike and Under Armour, as well as other major brands that sponsor college sports, like Coca-Cola, Pepsi, and Allstate, to offer similar NIL deals. The Adidas-sponsored NIL network likely opens the floodgates for big brand NIL wars with each brand jockeying for position in the rapidly growing NIL space. Ryan Whelpley is an Associate at Morse in Waltham, Massachusetts, where he is a member of the firm’s Corporate Practice Group and focuses on venture capital financings, M&A transactions, and general corporate work for startup and emerging growth companies. He is a graduate of Albany Law School (2019) and Union College (2016). At Union, Ryan was a member and three-year captain of the Men’s Basketball Team. You can connect with him via LinkedIn.

On March 14, 2022, Senator Bernie Sanders introduced the “Save American Baseball Act” to remove the Major League Baseball’s antitrust exemption, which was originally established in 1922 when the United States Supreme Court ruled that antitrust laws did not apply to the MLB in Federal Baseball Club of Baltimore v. National League. The MLB’s Antitrust Exemption In Federal Baseball Club, Justice Holmes wrote: The business is giving exhibitions of baseball, which are purely state affairs. It is true that, in order to attain for these exhibitions the great popularity they have achieved, competitions must be arranged between clubs from different cities and states . . . [however] the transport is mere incident . . . personal effort not related to production is not a subject of commerce. The MLB’s antitrust exemption has been upheld by the Supreme Court twice since 1922, in 1953 in Toolson v. New York Yankees and in 1972 in Flood v. Kuhn. Congress did slightly narrow the exemption when, in 1998, Congress passed the Curt Flood Act, which stipulated that baseball’s antitrust exemption did not apply to player employment issues and was a major win for the players. Since Justice Holmes’s opinion in 1922, baseball has ballooned into a billion-dollar industry that includes ample commercial activities crossing state lines, far-surpassing Justice Holmes’s expectations. MLB’s antitrust exemption allows the League and its owners to fix minor league wages, deny opportunities for teams to move markets, and protects intellectual property rights. A New Future In December 2020, the MLB eliminated 42 minor league teams to reduce the number of affiliates to 120 teams. The elimination spurred renewed calls to eliminate MLB’s antitrust exemption. Other leagues do not have a broad exemption. Instead, the NBA, NFL, and NHL are limited to a narrow exemption for certain broadcasting contracts. As it relates to minor league baseball, removal of the exemption would eliminate wage fixing for minor league players, which has come under scrutiny due to Judge Joseph C. Spero recently ruling that minor league baseball players are year-round employees, and the MLB and minor league teams are joint employers of minor leaguers for the purposes of the Fair Labor Standards Act. In addition, removing the exemption could allow minor league teams impacted by the elimination of affiliates to pursue antitrust claims. One of MLB’s biggest benefits from the exemption is that the league can prevent franchises from moving to cities that would compete with other MLB clubs. Thus, by removing the exemption, we could see some teams seeking to move, and the league would be susceptible to antitrust challenges were the league to try to prevent a club from moving cities/markets. Overall, there are many benefits to removing the exemption, including putting the MLB on par with other professional leagues, eliminating wage fixing for minor league players, and allowing teams to move markets. While there is support for eliminating the broad exemption, it remains to be seen whether the removal can gather enough support in Congress to be signed into law. 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.

One of the most important days in Major League Baseball’s salary arbitration calendar is the exchange date. This is when Club and Player Representatives come together to negotiate whether they can come to an agreement on a salary arbitration player’s salary for the upcoming season. If no settlement is reached, the two sides must officially file their salary request, without concrete knowledge of what the other side is filing (although, in theory, because the two sides have been negotiating to reach an agreement, each side should have some insight into how the other views that Player’s worth). Normally this process would happen in the middle of offseason, with most of these deals hidden in the spotlight of splashy free agent deals or landscape-altering trades. Such was not the case in 2022. Although some star players settled (Trea Turner, who broke the $20M threshold discussed in my previous article, Juan Soto, Vladimir Guerrero Jr.) or signed extensions (Matt Chapman, Byron Buxton), after the whirlwind of negotiations drew to a close, and all the dust had settled, a staggering 31 players did not come to an agreement with their clubs. So, in 31 different cases, each side submitted filing numbers.[1] Check out below to see what your team has in store! Total Filings: - 5 Players Filing (1): NL East: Atlanta Braves - 3 Players Filing (2): NL East: Miami Marlins AL West: Seattle Mariners - 2 Players Filing (5): AL East: Baltimore Orioles AL Central (2): Kansas City Royals, Minnesota Twins NL Central (2): Pittsburgh Pirates, St. Louis Cardinals - 1 Player Filing (10): NL Central (3): Chicago Cubs, Cincinnati Reds, Milwaukee Brewers AL Central (2): Chicago White Sox, Detroit Tigers NL West: Colorado Rockies NL East (3): New York Mets, Philadelphia Phillies, Washington Nationals AL East: New York Yankees - 0 Players Filing (12): NL West (4): Arizona Diamondbacks, Los Angeles Dodgers, San Diego Padres, San Francisco Giants AL East (3): Boston Red Sox, Tampa Bay Rays, Toronto Blue Jays AL Central: Cleveland Guardians AL West (4): Houston Astros, Los Angeles Angels, Oakland Athletics, Texas Rangers [1] Huge credit to Baseball Writers Jon Heyman (@JonHeyman on Twitter), Robert Murray (@ByRobertMuray), Mark Feinsand (@Feinsand), Joel Sherman (@Joelsherman1) and Bob Nightengale (@BNightengale) for their reporting on each of these deals. Without each of these writers, none of this data could have been compiled and assembled. Filings By Team: Filings By Difference: Dean Rosenberg is a 2L student at Benjamin N. Cardozo School of Law in New York City. He can be found on LinkedIn at https://www.linkedin.com/in/dean-rosenberg-4a1507a1/ and on Twitter @deanrosen7. For all of Dean’s Conduct Detrimental Articles, click here.

Almost one year ago, Kobe Bryant’s contract with Nike expired after 18 years together. Unfortunately, Nike and Vanessa Bryant could not come to an agreement. According to a source, “Bryant and the estate had grown frustrated with Nike limiting the availability of Kobe products during his retirement and after his January 2020 death in a helicopter crash. There was also frustration with Nike when they presented an extension offer that was not in line with expectations of an ongoing "lifetime" structure like contracts held by both Michael Jordan and LeBron James. Luckily for basketball and sneaker fans, Bryant and Nike are back together. Vanessa Bryant made the announcement via her Instagram page, stating that the two sides had come to an agreement on a deal that will allow Kobe-branded Nike products to be produced again along with Gigi Bryant-branded Nike products as well. Also, Nike will donate 100 percent of the net proceeds of the sales of Gianna's shoes to the Mamba and Mambacita Sports Foundation. When people ask why it took both sides so long to come to an agreement, part of the reason could have been intellectual property. “A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. A registered trademark is how customers recognize you in the marketplace and distinguish you from your competitors.” The good or service could be put into a selection of 45 different classes such as food services, computer and scientific devices, and education and technology services. The owner of that goods or services can stop others from using a similar logo or design for that specific class once it is registered by the United States Patent and Trademark Office (USPTO). Once a trademark registration is granted by the USPTO, if it is still in use after the first five to six years then the registration can be renewed. After that the filing needs to be renewed every ten years. However, if you shut down your business or stop offering your goods or services before then, the trademark will be considered abandoned from a legal perspective as it is no longer in use. Another party can have your registration canceled on the grounds that you were no longer using it. After the passing of Kobe and Gigi the Bryant estate filed numerous trademarks such as, “Mamba Forever, Mambacita, Mamba Sports Academy, and Baby Mambas. It is more than likely that Nike and the Bryant estate paused negotiations for a year to let all the new trademarks be filed. From there they could easily negotiate and plan what new products to produce. Some of the trademarks such as “In Memory of Kobe Bryant,” “Mamba Mambacita Sports Foundation,” and “Mambacita” were filed only a few weeks prior to the new Nike deal. This is not a coincidence and truly shows how important trademarks are in any sports deal. Luckily for fans on May 1st, 2022, Nike is releasing the first new shoe from the partnership. That date would have been Gigi Bryant’s 16th birthday. Fortunately, the deal was done in time to commemorate Kobe and Gigi, and gives fans another chance to own shoes that they have loved for years. Chris D'Avanzo is a 2L at Hofstra Law School and can be found on Twitter @_chrisdavanzo.

This year’s Mexican Open was marred by controversy when tennis world No. 3 Alexander Zverev was disqualified from the tournament after he repeatedly slammed his racket at the umpire stand and shouted expletives at the umpire. Although Zverev was disqualified from the tournament and fined, many players and commentators viewed the discipline as too weak and raised the question of whether a double standard exists. The Incident Following a questionable line call, Zverev cursed at the chair umpire Alessandro Germani. After losing the match a few moments later, an enraged Zverev took four aggressive swings at the umpire’s chair with his racket. The first three blows landed close to Germani, who was visibly frightened by the attack. After a short break, Zverev cursed at Germani again and then took a fourth and final swing at the chair for good measure. Zverev was disqualified from the event, fined $40,000 for unsportsmanlike conduct and physical and verbal abuse, and docked of all rankings points and prize money earned at the Open. Given the egregiousness of the conduct, the Association of Tennis Professionals (“ATP”) investigated the incident, tacked on an additional $25,000 fine, and issued an eight-week suspension. The suspension, however, does not get triggered unless Zverev commits the same code violations within the next year. Serena Williams Claims Double Standard Some of tennis’ most recognized active and retired players view the ATP’s response as weak and nothing more than a slap on the wrist. Eurosport’s Mats Wilander, a former No.1 player, was critical of the ATP’s decision and believes Zverev should be banned from big events and undergo a rehab process.[1] Serena Williams, a 23-time Grand Slam Champion, was also critical, but highlighted an additional concern about gender bias, or discrimination. Williams claimed there is a double standard in tennis stating: “I would probably be in jail if I did that – like, literally, no joke.” Williams was backed by former 18-time Grand Slam champion Chris Evert who like, Wilander, commented that Zverev’s punishment was too lenient. Evert also agreed with William’s comments regarding different standards: “I wouldn’t go as far as saying she would go to jail, but I think she has a point and I think that definitely her consequences would have been far stricter than Zverev’s.”[2] This is not the first time Williams has claimed a double standard in professional tennis. Her infamous outburst in the 2018 U.S. Open may have cost her the U.S. Open Championship title and initiated discussion on sexual bias. Trailing 4-3 in the second set, Williams called chair umpire Carlos Ramos a thief after she received two code of conduct penalties earlier in the match for improper coaching and smashing a tennis racket. Upon being called a thief, Ramos issued a third code of conduct penalty to Williams, which resulted in a game being awarded to her opponent Naomi Osaka. Osaka went on to win the match, her first Grand Slam win of her career. It was a historic win, making Osaka the first Japanese tennis player to win a grand slam event. Sadly, her win was overshadowed by Williams’ outburst, Ramos’ issuance of a game penalty, and the controversy that followed. Alleged Bias and Discrimination Complaint For several weeks thereafter, the controversy continued to make headlines as Williams maintained a discrimination complaint: she was the victim of sexual bias. Williams’ pleas to the tournament referees summed up her position best: “There are a lot of men out here that have said a lot of things and because they are a man it doesn’t matter. This is unbelievable. . .” Williams claims of bias may be valid. Earlier in the 2018 U.S. Open, female professional Aliza Cornet received a warning when she removed her shirt and exposed her sports bra on the court. Cornet had accidentally put her shirt on backward, quickly removed it, and then turned it around during a change-over. The U.S. Open immediately received backlash for imposing a double standard as men were permitted to remove their shirts without receiving any warnings. During the 2018 Laver Cup – a Europe-versus-the World event – Team World captain John McEnroe and player Nick Kyrgios launched a tirade of insults against the chair umpire over a call. At one point, McEnroe told the umpire he was “delusional” while Kyrgios told the umpire that he’s “so irrelevant in this whole team thing, but you still manage to screw it up.” Kyrgios received a mere warning.[3] Double Standards Transcend Sports Sports is a microcosm of life, and Williams’ claim of double standards in tennis is part of a larger conversation about bias, inequality and discrimination taking place within and outside of sports. In recent weeks the United States Women’s National Team (“USWNT”) settled their class action equal pay lawsuit against the U.S. Soccer Federation for a total of $24 million. The USWNT’s long legal battle drew attention and awareness about gender pay equity in sports and the workplace. Coach Brian Flores’ class action race discrimination lawsuit against the NFL alleges racial discrimination in hiring practices (including failure to follow the Rooney Rule), but also alleges that Black coaches are held to a double standard when it comes to retention.[4] The lawsuit has generated national conversation about racial equality in professional football and in society at large. Debates over Zverev’s punishment, Williams’ code violations and Flores’ claims are interesting and raise an important lesson to organizations within and outside of sports: While having rules are important, it is critical to enforce them fairly, and with good judgment. Fans cry “fix” when they feel their team is being penalized unfairly. Players and employees share the same outrage when they feel they are being treated unfairly, especially as to discipline. Organizations that do not enforce rules consistently and equitably, therefore, will likely be on the receiving end of a discrimination complaint. Ken Winkler is a shareholder at Berman Fink Van Horn in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via LinkedIn and Twitter @kwinklerbfvlaw. —- [1] https://www.eurosport.com/tennis/not-great-for-tennis-alexander-zverev-punishment-for-umpire-chair-attack-not-enough-mats-wilander_sto8825376/story.shtml [2] https://www.theguardian.com/sport/2022/mar/05/serena-williams-alexander-zverev-tennis-double-standard [3] McEnroe and Kyrgios’ epic ‘blow up’ at umpire in tandem rant [4]https://www.nytimes.com/interactive/2022/02/02/us/brian-flores-nfl-lawsuit.html

After years of complaints about the National Collegiate Athletic Association’s (NCAA) handling of infractions, Senators Marsha Blackburn of Tennessee and Cory Booker of New Jersey will introduce the NCAA Accountability Act of 2021, which, if passed, will dramatically alter the infractions process. The bill is similar to the NCAA Accountability Act of 2021, introduced by Representative David Kustoff in November 2021. Issues with the NCAA Infraction Process The bill appears to be taking direct aim at the timing of the infractions process by setting deadlines and shortening the statute of limitations. According to the Division I’s Committee on Infractions 2021 Annual Report, when the enforcement staff receives information regarding a potential violation, the enforcement staff spends an average of 12-20 months investigating the information before issuing a notice of allegations. After receiving the notice of allegations, if an institution cannot reach a negotiated resolution, the cases are placed on one of three tracks: The Summary Disposition Track: the parties agree to the facts and draft a report and a Committee on Infractions Panel issues a decision; The Hearing Track: the allegations are challenged and each side presents to a Committee on Infractions Panel, which issues a decision; or The Independent Accountability Resolution Process (IARP): used in complex cases. For the Summary Disposition Track and Hearing Track, parties may appeal a decision rendered by the panel. Parties cannot appeal a decision made via the IARP. If a party chooses the Summary Disposition Track or Hearing Track, it can take an average of 4 months for a decision to be rendered. Then, it can take another 4 months for an appeal. Thus, for a violation, it could take over two years from the date information is received by the enforcement staff to reach a final resolution. Potential violations that go through the IARP process take even longer. In the case of North Carolina State University, the enforcement staff received information regarding a potential violation in 2018. Notably, the information revolved around a violation in 2015. A final decision was rendered on December 20, 2021, over two years after the enforcement staff first received the information and well after the players and coaches involved in the violation had left the university. In Blackburn’s home state of Tennessee, the University of Memphis’s case is being resolved through the IARP process. The NCAA enforcement staff began investigating the case in May 2019. Nearly three years later, the independent review panel has yet to issue a final decision. Proposed Changes to the Infraction Process The NCAA Accountability Act of 2021 alters the timelines. First, the bill shortens the investigation stage to 8 months after the enforcement staff receives information. Further, the NCAA would not be able to investigate possible violations that occurred more than 2 years before the date the enforcement staff sends a notice of inquiry to the institution, which would have barred much of the conduct in the NC State infractions case. Second, a panel must hold a hearing no later than one year after an institution is provided with the notice of allegations, and at the hearing, a party cannot offer information from confidential sources into evidence. Lastly, if a party disputes the decision made by the hearing panel, the party may appeal to arbitration conducted by a separate 3-person panel. By setting deadlines, if the bill were to pass, the average infractions process time should decrease. The new bill comes at a time when the NCAA is transitioning to a new model. Under the new Constitution, each division has the power to make its own rules and regulations. Further, the overhaul of name, image, and likeness (NIL) rules has altered what constitutes an NCAA infraction. With the new transition, it appears that Congress is now stepping in alter the NCAA model. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

Idaho is the latest state to permit NIL for high school athletes. The Idaho High School Activities Association (IHSAA) has released its rule changes for 2022‑2023. Among those changes, is a rule change to Rule 8-4-1, "Amateur Status." The rule change, as copied below, provides that high school athletes will not be restricted from participating in a commercial endorsement (i.e., NIL deal) provided there is no school team, school, league, district or IHSAA affiliation. This rule change now permits Idaho high school athletes to profit off their NIL without losing their amateur status. Interestingly, the rule change does not initially appear to include typical restrictions implemented by other state high school athletic associations that have adopted NIL policies, such as restrictions on use of school marks and prohibitions of endorsements in vice categories (e.g., tobacco, drugs, alcohol, gambling, firearms, etc.) but this could change in the future. Idaho joins a growing list of states that permit high school athletes to profit off their NIL. That list now includes the following states: Alaska, California, Colorado, Connecticut, Idaho, Kansas, Louisiana, Minnesota, Nebraska, North Dakota, New Jersey, New York, and Utah. Other high school state athletic associations are evaluating or in the process of adopting rule changes or policies to permit high school athletes to profit off their NIL, such as the Pennsylvania Interscholastic Athletic Association which recently approved on first reading a NIL policy. The full set of the IHSAA rule changes for 2022-2023 are available here. Ryan Whelpley is an Associate at Morse in Waltham, Massachusetts, where he is a member of the firm’s Corporate practice group and focuses on venture capital financings, M&A transactions, and general corporate work for start-up and emerging growth companies. He is a graduate of Albany Law School (2019) and Union College (2016). At Union, Ryan was a member and three-year captain of the Men’s Basketball Team. You can connect with him via Twitter (@Whelpley_Law) and LinkedIn.

It’s March so all eyes are on college basketball. This year, the men’s and women’s tournaments present a unique opportunity for brands looking to strike while the iron is hot and capitalize off college basketball being at the center of the sports universe. NIL is still functioning as the wild west, with little guidance given to universities, athletes, and companies on how to best facilitate these transactions. The NCAA has refused to take an institutional stance to embrace NIL and instead has turned a blind eye refusing to acknowledge that athletes can now profit off their publicity. But despite his, some athletes have cashed in on the first ever March Madness in the new NIL world. Let’s look at the biggest winners: Doug Edert How could we start anywhere else? The star of the men’s tournament, Doug Edert, came off the bench for the Cinderella St. Peter’s team during their run to the Elite 8. Edert was a 3-point sniper for the Peacocks, often pulling up from well beyond the line and showing fiery emotion during upsets. But what made him a nationwide sensation went beyond just his play on the court – it was the mustache. According to teammates, the origin story behind the ‘stache dates back to midseason when St. Peter’s was forced to enter Covid-19 quarantine protocols. Like many others who were bored during the pandemic, Edert felt this was a great time to experiment with his facial hair. And much to the chagrin of his girlfriend, the mustache stuck.[1] I’m skeptical if this guy has what it takes to steal America’s heart. But March Madness Edert, with the mustache, was capable of fame and (NIL) fortune: After the first weekend of the tournament with two upsets over Kentucky and Murray St., Edert entered into an NIL deal with Buffalo Wild Wings. In the blink of an eye, Edert went from unknown hooper in New Jersey to the face of the #OvertimeWingtime campaign: Edert also offered the opportunity for fans to sport “Dougie Buckets” merchandise through Barstool Sports: Edert will forever be remembered for this NCAA tournament run. Thanks to NIL, he was able to monetize it. Edert has set the gold standard for players taking advantage of these few weeks in March. Drew Timme We’ll stick with the facial hair theme. Drew Timme has been one of the top players in college basketball since he began at Gonzaga in 2019. Gonzaga had a disappointing exit to the tournament in the Sweet 16, but not before Timme could capitalize on his fame. Timme signed an NIL deal with Dollar Shave Club, becoming a spokesperson for the brand while sporting a notable mustache of his own. Timme epitomizes the benefits NIL can provide. A star in the college ranks, Timme doesn’t project to have an NBA career. Crazier things have happened, but it’s likely Timme’s spotlight will never shine brighter than during his time at Gonzaga. So why shouldn’t he be able to profit while wearing a Gonzaga uniform? NIL critics predicted that all of the money would be funneled to men’s college basketball and football stars and create a large inequity for college athletes. These same critics downplayed the benefits of NIL: If these football and basketball stars are bound to sign professional contracts in the coming years, why is it monumental if they make money a few years earlier while in college? Drew Timme is a perfect example of how NIL has allowed someone to profit off their brand when their future earning potential is unknown. Timme very well may go on to have a prolific pro career filled with earnings and partnership deals, but in the meantime NIL provides certainty of profit today. Paolo Banchero and Chet Holmgren Unlike Timme, Paolo Banchero and Chet Holmgren are set to sign multi-million dollar NBA contracts in just a few short months. Banchero and Holmgren are both projected to be top three picks in the upcoming NBA draft this June. Banchero has led Duke to the Final Fourt while Holmgren stood alongside Timme in Gonzaga’s frontcourt all year leading them to a #1 seed. Banchero and Holmgren both signed NIL deals before the tournament with Yahoo Sports to represent their Tourney Pick’Em contest.[2] Many NIL policies and legislation prohibit athletes from entering into deals that promote gambling, but the Yahoo Tourney Pick’Em is free to enter so the athletes remain in compliance. In this promo, Banchero and Holmgren are wearing blank jerseys instead of their usual Duke and Gonzaga threads. Another common restriction on NIL deals by school policies and state legislation is the prohibition of using school branding in partnerships.[3] You can see from the above posts that Timme and Edert weren’t sporting team logos in their sponsored instagram posts either. Just another example of how current policies and laws are making this difficult for athletes every step of the way. NIL is constantly framed as a mechanism to benefit players. But NIL isn’t a form of charity, sponsorship deals work both ways. Yahoo Sports recognized the value in having two of the biggest stars in college basketball promote their contest. The players get compensated, but the companies benefit from the publicity and recognition the players provide. When the masses start viewing NIL deals like other partnership deals in which both parties benefit, restrictive policies may start to disappear. Cameron Brink Quietly, women’s college basketball players have made more money from NIL deals than men’s players.Many women college basketball players moonlight as social media stars off the court. Cameron Brink of reigning champion Stanford has partnered with Great Clips to promote the hair salon franchise: Brink has also partnered with a clothing brand that showcases her hometown of Portland, Oregon:[4] Other NIL deals on the women’s side have been even more creative. The chicken wing restaurant Wingstop partnered with 11 different women who play the “wing” position on the basketball court. Wingstop’s Chief Growth Officer, Marisa Carona, said “We're excited to support women's athletics and continue our engagement in other ways within the space”. March Madness NIL deals aren’t just reserved for stars. The bedding company, Sheets & Giggles, reached deals with five men and five women who are the “most rested” players in the tournament. Some of the benchwarmers who cashed in on their inactive status included Brock Janek of Tennessee, Russell Stong of UCLA, Becca Ripley of UCF, Conor Serven of Illinois and Justin Taphorn of Wisconsin. The first March Madness in the post-Alston NIL reality has signaled there is a market for both large-scale and smaller NIL deals in both men’s and women’s basketball. In the years to come, expect to see more deals facilitated as education surrounding NIL increases and unnecessary restrictions go by the wayside. Matt Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and instagram @MattNettiMN and find him on Linkedin at https://www.linkedin.com/in/matthew-netti-ba5787a3/. You can find all his work at www.mattnetti.com [1] NCAA, The Story Behind Doug Edert’s Mustache (last visited Mar. 29, 2022) https://www.ncaa.com/video/basketball-men/2022-03-27/story-behind-doug-ederts-mustache. [2] Kelly Kohen, March Madness 2022: Women's and men's Sweet Sixteen players are heavily involved in NIL deals, ESPN (last visited Mar. 29, 2022) https://www.espn.com/womens-college-basketball/story/_/id/33589255/women-men-sweet-sixteen-players-heavily-involved-nil-deals. [3] Tamera H. Bennet, Can A Student Athlete Use The University Logo, Colors, or Trademark?, Bennett Law Office (last visited Mar. 20, 2022) https://www.tbennettlaw.com/createprotect/2021/10/28/nil-can-a-student-athlete-use-the-schools-colors-logo-mascot-jersey-endorsemen t#:~:text=Potential%20sponsors%20and%20endorsers%20have,School%20and%20team%20colors. [4] Dean Golembeski, College Basketball Players Cash In With March Madness NIL Deals, Best Colleges (last visited Mar. 29, 2022) https://www.bestcolleges.com/news/analysis/2022/03/21/ncaa-march-madness-college-basketball-nil-deals/.

The National Women’s Soccer League (“NWSL”) hosted an extended preseason tournament, The Challenger Cup, over the last two weeks, leading to the start of what should be an exciting season for the league. Unfortunately, instead of coming out of preseason play energized for a competitive season, many teams are finding themselves down a few key players due to preventable preseason injuries. Within the first two match days, Tiera Davidson of the Chicago Red Stars and Lynn Williams of the Kansas City Current both suffered injuries, with Davidson’s severe enough to need ACL reparation surgery. The renowned Brazilian player, Marta Vieira da Silva, will be out for “a while” after suffering a knee injury during the Challenger Cup. Many other players have had to limit their minutes due to preseason injuries, including many United States Women’s National Team (“USWNT”) players such as Becky Sauerbrunn, Sam Mewis, Alex Morgan, and Megan Rapinoe. When interviewed about the vast number of injuries experienced by many star athletes in the NWSL, the USWNT coach, Vlatko Andonovski, commented that there seemed to be a lack of connection between the injuries, stating that they trained in different environments and with different setups that led to different injuries. But perhaps Andonovski is, albeit unintentionally, pointing out the exact issue that is leading to the astounding number of injured players in women soccer today – a lack of consistency in training and playing environments within the NWSL. Players of the NWSL are expected to train on grass fields then play on turf fields, at various times of the day in various weathers, under different protections of various medical care. No wonder Ashlyn Harris tweeted at Washington Spirit, stating, “Get us a professional field and then we can talk. Until then take your amateur shit back to your high school field.” One method that the NWSL players could utilize is modifying their collective bargaining agreement (“CBA”) to require a consistent style of medical treatment, a consistent field material, and a consistent time range to ensure that conditions are not what is leading to the consistent, and frankly, dangerous injuries taking place within the NWSL. For instance, within the CBA of the National Football League (“NFL”), the league is required to guarantee funding for search on training methods, equipment, field surfaces, and medical care. Further, the NFL and their respective players’ association, under the guidance of the CBA, set up committees to design safety standards for equipment and field safety. Other methods to improve player safety from injury were the extension of training camp acclamation periods, strengthened standards for team medical and training staffs, enhanced protocol for concussion responses, and additional joint research funding. All of these changes to the 2020 CBA came after the NFL already had in place procedures to ensure safety, such as a requirement for a level playing field that is checked for bad spots 72 hours before the start of the match. Many of the benefits afforded to the NFL players comes from negotiated terms within the CBA. While the NWSL’s Player Association has had much on their plate, from addressing the senseless abuse by many male coaches in the league to negotiating a livable wage to be guaranteed to each player, it may be time to focus in on an issue that is causing reckless injuries to many well-regarded athletes of the league: providing a safer and more consistent playing environment for each player. Ashlyn can be found on Twitter @Ashlyn_Stone2.

The NCAA’s infractions process has long been criticized for lengthy investigations, selective enforcement, and arbitrary and disproportionate punishments. Two U.S. Senators, Marsha Blackburn (R., Tenn.) and Cory Booker (D., N.J.), introduced a legislative bill to significantly change the NCAA’s infractions process. The NCAA Accountability Act of 2021, proposed by Senators Marsha Blackburn (R., Tenn.) and Cory Booker (D., N.J.), is a 10-page bill that, if passed, would streamline the NCAA’s infractions process by establishing deadlines for completing inquiries and investigations, shortening the statute of limitations for investigating infractions, and creating a new appeals procedure. Key highlights from the bipartisan bill include: Establishing a deadline for the NCAA to provide a notice of allegations within eight months after the school is notified it is under investigation. Shortening the statute of limitations to investigate NCAA infractions from four years to two years. Mandating the NCAA to hold a hearing on the infractions case not earlier than 60 days after a notice of the allegations are received or later than a year after the notice is provided. Prohibiting the submission of information from “confidential sources” as evidence for a case. Allowing a school to request a three-person panel of arbitrators to review and adjust any disputed punishments. Requiring the NCAA to submit an annual report to the U.S. attorney general and each state’s attorney general, summarizing its enforcement proceedings, investigations, and issuance of punishments. Empowering the U.S. attorney general and the Department of Justice to establish procedures for filing complaints against the NCAA and to conduct hearings and procedures for the NCAA’s violations of the Act. Authorizing the Department of Justice to remove any member of the NCAA’s Board of Governors and to order the NCAA to pay a civil penalty of up to $15 million for violations of the Act. The NCAA Accountability Act of 2021 is the most recent legislation proposed by lawmakers to address the problems with the NCAA’s infractions process. The bill is similar to the NCAA Accountability Act of 2021, which was introduced in November 2021 by members of the U.S. House of Representatives. In the past two years, more than half a dozen bills to reform college sports have been proposed in Congress. Ryan Whelpley is an Associate at Morse in Waltham, Massachusetts, where he is a member of the firm’s Corporate Practice Group and focuses on venture capital financings, M&A transactions, and general corporate work for startup and emerging growth companies. He is a graduate of Albany Law School (2019) and Union College (2016). At Union, Ryan was a member and three-year captain of the Men’s Basketball Team. You can connect with him via LinkedIn.