Amidst Russia’s invasion of Ukraine, Ukrainian athletes are urging the International Olympic Committee (IOC) to sanction the Olympic committees for Russia and Belarus. Would the IOC sanction the respective country committees for breach of the Olympic Truce? What is the Olympic Truce? The Olympic Truce dates back to the ninth century when the kings of the Greek city-states Elis, Pisa, and Sparta agreed to allow safe participation in the Olympic Games for individuals from their respective city-states. Now, the Olympic Truce continues to provide for safe passage for individuals and aims “to harness the power of sport to promote peace, dialogue and reconciliation more broadly.” Since 1993, one year before each Olympic Games, the United Nations (UN) General Assembly has adopted a resolution supporting the Olympic Truce. Each resolution is entitled “[b]uilding a peaceful and better world through sport and the Olympic ideal.” UN Member States show their support by co-sponsoring the bill. 173 of the 193 member states co-sponsored the resolution for the 2022 Beijing Olympics, including Russia. The Olympic Truce is in effect beginning seven days before the start of the Olympic Games and ends seven days after the conclusion of the Paralympic Games, which concludes on March 13. What Will the IOC Do? Because Russia, with support from Belarus, has invaded Ukraine, the countries have broken the Olympic Truce. Notably, this is not the first time Russia has broken the Olympic Truce. Russia also broke the truce in 2008 and 2014, when Russia invaded South Ossetia and Crimea, respectively. However, Russia maintains that they did not break the truce because they were domestic disputes, which is the same position Russia will likely maintain again. Due to the IOC’s insistence on political neutrality, the IOC likely will not sanction the committees from Russia and Belarus. Despite strongly condemning their actions, even going so far as urging sports bodies to cancel or move events planned for Russia and Belarus and to stop using their flags and anthems, the IOC has not sanctioned other countries, including Russia, for prior breaches of the Olympic Truce during prior Olympic and Paralympic Games and likely will not begin now. However, the IOC could continue the sanctions against Russia for figure skater Kamila Valieva’s positive test for a banned substance. What Are Others Doing? Even without sanctions from the IOC, the sports world is speaking out against Russia’s actions: Formula One announced it is canceling the September Russian Grand Prix UEFA announced that the upcoming Champions League Final will not be held in St. Petersburg The International Ski Federation announced that the Federation will not hold any upcoming events in Russia FIFA announced that Russia cannot use their flag and anthem for World Cup qualifying events FIFA declined to go as far as expelling Russia from the World Cup, even though it would not be the first time a country was banned from international competition, as Yugoslavia was banned in 1992 due to the Balkan Wars. In addition, teams throughout the world are refusing to participate in competitions against Russia. More withdrawals from teams and sanctions from sports bodies are likely to continue well into the future. Meanwhile, the world will wait and see if the IOC will sanction the Olympic Committees from Russia and Belarus for violating the Olympic Truce. 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.

Chelsea FC’s multi-billionaire Russian owner Roman Abramovich has come under fire over the last week due to his ties to President Vladimir Putin, with calls to sell and even seize assets of the team coming from members of UK Parliament[1]. Abramovich issued a statement on Saturday, saying that he intends to hand over the “stewardship and care” of the club to its charitable foundation, The Chelsea Foundation[2]. However, his announcement came under immense scrutiny from the sports world, citing the ambiguity of the terms “stewardship and care” as a point of concern. Sky Sports pundits and soccer legends Jamie Carragher and Gary Neville were quick to call out whether handing over “stewardship” was equivalent to ownership and oversight of the club’s day-to-day activities[3]. On Tuesday morning, the charity’s board of trustees were reportedly uncertain of the legality of running the club, as well as expressing an unwillingness to accept the responsibility. The UK’s governing body on charity law, The Charity Commission, requested “information” on the transferring of care of the team on Tuesday morning[4]. The commission is set to investigate whether such a transfer of power is legal, as well as analyze the board’s liabilities if permitted to take control. Other than perhaps the Donald Sterling saga of 2014 that saw the forced-sale of the Los Angeles Clippers to Steve Ballmer, the compulsory sale of a sports franchise is not something that has occurred in recent memory. The situation will be an interesting one to watch, as if the UK government is to get involved in legally forcing Abramovich to sell or relinquish ownership, that could set a precedent for potentially ousting other owners with questionable political ties, such as Newcastle United’s ownership group funded by the Saudi government’s sovereign wealth fund[5]. The status of Chelsea’s future has become even more muddied, as Sports Illustrated reported Tuesday night that Abramovich was preparing to listen to offers to sell the team this week for the first time nearly 20 years[6]. It certainly appears that Abramovich is trying to get ahead of any potential sanctions that could be imposed on him or the club, as handing over care of the club also seems to be a way to deflect from his shady ties with the Russian president. All of this comes at a less than ideal time for the players and manager, as Chelsea currently sits third place in the Premier League, and are seeking to repeat as winners of the UEFA Champions League with their Round of 16 second-leg match set for March 16th. Manager Thomas Tuchel lashed out at reporters Tuesday after repeatedly being asked about his bosses’ ties to Putin, saying that he “is not a politician” and pleaded to journalists to “stop asking me these questions”[7]. Clearly, Abramovich’s political connections are now impacting his players and club, and with the sanctions against Russian oligarchs by the UK looming, the future of Chelsea is uncertain. A government action to seize club assets would be disastrous for the team, as clubs like Chelsea spend millions of dollars each summer on some of the world’s top talent, and being restricted from doing that could massively set the club back on the field, not just on the profit margins. [1] https://www.mirror.co.uk/sport/football/news/roman-abramovich-london-property-mp-26359451 [2] https://www.chelseafc.com/en/news/2022/02/26/statement-from-club-owner-roman-abramovich [3] https://www.cnbc.com/2022/03/01/chelsea-foundation-report-serious-incident-to-charity-commission.html [4] https://www.bbc.com/sport/football/60571382 [5] https://www.bbc.com/news/world-middle-east-58930311 [6] https://www.si.com/fannation/soccer/futbol/news/chelsea-fc-for-sale-roman-abramovich-set-to-receive-offers. [7] https://www.espn.com/soccer/chelsea-engchelsea/story/4606292/chelseas-tuchel-bristles-over-russia-ukraine-war-questions-you-have-to-stop

For all of the intrigue of (alleged) six-figure tanking bonuses, and clumsily-arranged meet-cutes on James Bond villain mega-yachts, Flores et al. v. The National Football League, et al., (S.D.N.Y.) is, at heart, an employment discrimination suit. The Complaint sets forth the kind of employment discrimination claims that the Southern District of New York sees every day – granted, few complaints that SDNY feature screenshots of a 69 year old man with nine Super Bowl rings panic-texting like a teenager who sent a message about the girl he likes to his crush instead of his friend. In essence, the Complaint alleges that the NFL discriminates against African Americans by denying them head coaching (and other senior coaching) positions, that the Miami Dolphins illegally fired Flores because of his race, and that the New York Giants and Denver Broncos illegally failed to hire him on account of his race. The claims are made under Section 1981 of the Civil Rights Act (which outlaws intentional discrimination based upon an employee’s race, as well as retaliation in connection with same) along with similar New York and New Jersey statutory employment discrimination claims. Once Flores has filed similar complaints with the U.S. Equal Employment Opportunity Commission and the New York City Commission on Human Rights (if he has not already) he will likely amend his Complaint to include claims arising from Title VII of Civil Rights Act claims. Title VII cases rise or fall on the McDonnell Douglas burden-shifting analysis (so-named for McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under that analysis, Flores will have to make a prima facie showing that: (i) he is a member of a protected class; (ii) he was qualified for the position; (iii) he suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. If Flores is able to meet all four prongs, the burden shifts to the defendants to set forth legitimate, non-discriminatory reasons to support the employment decision. Should they do so, the burden shifts back to Flores to show that the reasons given by the defendants were merely pretexts for discrimination. There should be little doubt that Flores meets the first three prongs. As an African American he is a member of a protected class; he is remarkably well qualified, as even his harshest critic would be hard-pressed to deny his exceptional over-achievements as head coach of a moribund Dolphins team; and he was unquestionably fired by the Dolphins/passed over by the Giants and Broncos. The case against the teams, therefore, will likely turn on the fourth question – which ultimately comes down to: was Flores fired/passed over because of race, or for some other, legitimate reason? Ironically, Flores’ complaint appears to dare the Dolphins, at least, to move for pre-discovery dismissal. He (with much publicity) provides them with at least two non-discriminatory reasons for his termination: (i) his refusal to breach tampering rules by meeting with Tom Brady an unnamed quarterback for a strawberry and tomato-free lunch; and (ii) his refusal to participate in the Dolphins’ taking scheme. In other circumstances “the employee refused to comport with our business model, undermined our efforts to secure a highly-coveted recruit, and destroyed our long-term business strategy” would seem like a solid non-discriminatory reason for termination. But Flores appears to be gambling – not unreasonably - that the Dolphins are unlikely to have an interest in giving credence to the allegations, it being the first rule of tanking that you don’t ever admit you’re tanking. Sensational as they may be, this is not to minimize the allegations made against the NFL. The claims regarding the failings of the Rooney Rule, the insider-trading and king-making that (allegedly) allows a small handful of (old, white) men to control who gets to head coach in the NFL, and the astonishing (if well known) contrast between the use that the NFL has for the bodies of young black men (70% of players) versus the interest it has in awarding them positions of power and authority (0 owners, 1 head coach at the time of filing) are not mere window-dressing. The scope of Title VII includes a prohibition on disparate impact discrimination: even if Flores is unable to show intentional discrimination, he may have a case if the defendants’ practices have a discriminatory outcome – such as disproportionately excluding African Americans from head coaching positions. A pre-trial conference is currently scheduled for March 18, 2022, though that may be adjourned as the defendants have until April 11, 2022 to respond to the Complaint. Charles “Ben” Bergin is an associate at Kaufman Dolowich Voluck. His practice focuses on labor and employment law, business litigation, immigration law and general liability defense. He has a background in entertainment law, sports law, insurance litigation and coverage. He was named a 2020 and 2021 New York Metro “Rising Star” in the field of “Business Litigation”.

Yesterday kicked off Women’s History Month and the first story I read was Sports Illustrated’s cover article, How Airplanes Became the WNBA’s Biggest Scandal. As I began to further research the WNBA’s travel guidelines outlined in their collective bargaining agreement, I couldn’t help but be surprised that female professional athletes were traveling via premium economy to games across the country whereas their male counterparts in the NBA often take to social media to display their team’s private planes. There is a rising mantra coined by Kelsey Trainor to “Invest in Women. Pay women. Hire Women.” There is no better time than the present to invest in women’s sports; however, there is a rising tension between WNBA team owners attempting to invest in women, and what the players association and the league have already determined to be the rules of the game. A collective bargaining agreement (CBA) is a labor contract between a union representing employees and the employer. It sets the terms and conditions of employment such as wages and employee benefits. The history of collective bargaining negotiations in professional sports mirrors American employment law in that it revolves around both parties battling for leverage at the bargaining table. Amidst the current battle between Major League Baseball and the MLB Players Association arguing over their new collective bargaining agreement, New York Liberty team owners are facing a $500,000 fine for violating the terms of the WNBPA Collective Bargaining Agreement. Formal negotiations for the 2020 WNBPA Collective Bargaining Agreement began in March 2019 and culminated in January 2020. Among the noteworthy elements of the new CBA, that will run until 2027, alongside increases to the maximum player salary and better treatment overall, were the updated provisions for the quality of travel for the League and its players. The WNBPA CBA states that “all air travel provided by the Team (including but not limited to, travel between games) will be, if available on the Team-chosen flights at the time of booking, premium economy (or similar enhanced coach fare).” In clear violation of this provision, New York Liberty owners Joe and Clara Wu Tsai, provided charter flights for their team during the second half of the WNBA season and during a Labor Day weekend trip to Napa. The use of chartered flights clearly provided Liberty with a competitive advantage among the other eleven WNBA teams who are not afforded the same luxury travel. The use of these chartered flights by New York Liberty led to a league-record fine of $500,000 to the team. As reported by Sports Illustrated, in September 2021, the WNBA Board of Governors considered an unofficial proposal from Liberty to make charter flights the default travel option throughout the League, but this proposal lacked majority support. The New York Liberty chartered flights for every road game during the second half of their season. WNBA front office members, upon learning about Liberty’s travel history, reported Liberty’s use of charted flights to the League. Liberty then received inquiries and demands to cease and desist the unauthorized charter flights from the league’s general counsel, Alan Dershowitz. In response to Dershowitz, Liberty alternate governor Oliver Weisberg wrote a letter defending Liberty’s travel decisions stating “We cannot begin to talk about gender equity until we solve some pressing issues that have put extra burdens on the health and well-being of WNBA players. In the spirit of improving working conditions for our female athletes, we are of the strong belief that WNBA teams should be permitted to arrange travel that is consistent with the fact that they are professional athletes.” The WNBA is only in its 25th season, a very young professional league compared to the National Basketball Association celebrating its 75th season, and the National Football League which has survived 101 years. In order to understand how decisions are made within the WNBA, it is important to understand the ownership structure, 50% of the WNBA is owned by the NBA’s 30 teams, while the other 50% ownership is divided among the 12 WNBA teams. Early last month, it was reported that the WNBA had secured $75 million in funding, valuing the league and its 12 teams at $1 Billion. Viewership of the WNBA has never been higher. The 2021 WNBA Finals on ESPN, between the Chicago Sky and the Phoenix Mercury averaged 548,000 viewers across the four games, which was a 23% increase from the 2020 Finals. WNBA regular season viewership is also up 49% compared to 2020. The WNBA is currently facing an incredible surge in viewership and interest. According to its own evaluation, the league has plenty of funding to provide better accommodations for their players. Hannah Valente is a 2L at Elon University School of Law and host of Podcast “Bars to the Bar” from Hoboken, New Jersey. Hannah graduated from Providence College where she was a four-year manager for the Men’s Basketball Team. She can be found on Twitter @hannahjane503. She is a newly registered NBA Agent.

Joe Tsai is the co-founder of the e-commerce juggernaut Alibaba and has a reported net worth approaching $9 billion. As sports-obsessed billionaires often do, Tsai decided to claim ownership over a professional sports franchise. In 2019 he purchased the Brooklyn Nets and their home stadium, the Barclays Center, for reportedly $3.3 billion. The move sent shockwaves throughout the NBA. In what was considered an afterthought, Tsai also purchased the WNBA franchise New York Liberty, who also play their home games at Barclays. Tsai’s purchase of the Liberty was overshadowed because it came in conjunction with spending big on Brooklyn’s NBA team. As a league, the WNBA is often ridiculed for its moderate growth and questionable profitability. Occasionally, that criticism comes from within league circles. After Tsai purchased the Liberty from New York Knicks owner James Dolan, Dolan himself may have been behind media leaks that the Liberty hadn’t turned a profit in years.[1] Purchasing a WNBA team in 2019 was considered by many to be a billionaire’s passion project. But Tsai refused to see it that way. According to Sports Illustrated, Tsai saw growth potential in the league. As women’s sports in the country continues to rise, Tsai viewed the WNBA as no different. He was eager to bring his innovation, and more importantly his deep pockets, to women’s basketball. Conventional wisdom says that the WNBA would be on the edge of their seat waiting for someone like Tsai to take them to the next level. However, ownership around the league was hesitant and didn’t necessarily share his optimism.[2] The WNBA has been around for 25 years. Originally starting in 1997 with 8 teams, the league has grown to 12 franchises in the nation’s largest markets such as Los Angeles, New York, Atlanta, Chicago, and Dallas. The league has featured digital growth through social media and broadcasting games through the subscription platform Tidal. But throughout the quarter-century of its existence, profit ceiling for a women’s basketball league has been questioned. Historically, ticket sales have remained stagnant, and the COVID-19 pandemic didn’t help the cause. Many of the league’s 12 owners are satisfied with their initial investment and conservative growth of the league. When someone like Tsai enters the ring and seeks to kick things into high gear, he begins to turn some heads. You don’t have to have a degree in Economics to realize that spending more money on the league requires the league to make more, a risk that several owners are unwilling to take. One of the first issues Tsai noticed with the league involved travel. WNBA teams fly commercial to games and experience airline-induced headaches just like you and me. In 2018, numerous flight delays actually caused a game to be forfeited when the Las Vegas Aces couldn’t get to Washington to play the Mystics.[3] Tsai felt the WNBA was above forcing players to hang out in airport terminals and dodge people waiting in line at an Auntie Anne’s to board their flights for games. In September 2021, Tsai reportedly made a proposal to the league (which the league has denied took place) that would allow all WNBA teams to fly private to games. And for the owners worried about penny-pinching, the proposal included the first three years of flights comped. A no brainer decision for a league looking to take the next step and treat their players like professionals. But the WNBA Board of Governors shot down the proposal for fear the players would get used to private planes and it wouldn’t be sustainable – too risky. The WNBA’s conservative decision on travel didn’t stop Tsai from treating his own players like their NBA equivalent. Tsai charted flights for the New York Liberty for the second half of the season, and even included a Labor Day weekend trip to Napa Valley for the team to bond over expensive bottles of wine. These decisions by Tsai expressed his loyalty and appreciation to the Liberty players and didn’t go unnoticed. His gracious gestures even got his wife, Wu Tsai, featured on viral Tik Toks posted by members of the Liberty on their Napa Valley trip. “Can your owners do this?” The league eventually caught wind of the Liberty’s private flights and expensive escapades and put their foot down. In what was originally floated as a $1 million fine, Tsai and the Liberty were eventually docked $500,000 for violating the league’s collective bargaining agreement and providing unfair advantages to players.[4] The WNBA feared that with the lifestyle Tsai was providing, every player would want to play for the Liberty. To combat their popularity, the league sent the Liberty back through airport security. The WNBA’s collective bargaining agreement can be found here: https://wnbpa.com/wp-content/uploads/2017/07/WNBA-CBA-2014-2021Final.pdf Deep within the 300-page pdf documenting how the league functions, you will stumble across Article IX Section 4 Player Related Expenses – Air Travel: Under the current CBA, players aren’t even afforded the luxury of extra leg room in first class. The decision by the league to fine Tsai symbolizes the current clash in the WNBA. Tsai believes the league is ready to explode, capitalizing off digital engagement and their partnership with the NBA. He’s willing to make that bet in the form of private planes and trips to Napa Valley. While others would like to remain in the traditional conservative pattern the league has operated in for years, not spending too much but not making too much either. The New York Liberty seem to be operating in a different league all-together than the 11 other franchises. Will the rest of the WNBA catch up, or keep pulling them back? 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] Associated Press, Nets minority owner Joe Tsai buys WNBA’s Liberty (last visited Mar. 3, 2022) https://www.espn.com/wnba/story/_/id/25832607/brooklyn-nets-minority-owner-joseph-tsai-buys-wnba-new-york-liberty?device=featurephone. [2] Howard Megdal, How Airplanes Became the WNBA’s Biggest Scandal, Sports Illustrated (last visited Mar. 3, 2022) https://www.si.com/wnba/2022/03/01/charter-flights-violation-new-york-liberty-joe-tsai-daily-cover. [3] Salt Lake Tribune, Travel woes force cancellation of WNBA game between Aces and Mystics, (last visited Mar. 3, 2022) https://www.sltrib.com/sports/2018/08/04/travel-woes-force/comments/. [4] Alexa Philippou, Source: New York Liberty fined $500,000 for chartering flights, other violations, ESPN (last visited Mar. 3, 2022) https://www.espn.com/wnba/story/_/id/33401872/new-york-liberty-fined-500000-chartering-flights-other-violations.

Yesterday, legendary New Orleans Saints' coach Sean Payton and his wife, Skylene Montgomery, were sued in the United States District Court for the Northern District of Florida. The plaintiffs, Hanford Farrell III and Brett Finkelstein, allege Payton and Montgomery agreed to sell them their Alys Beach, FL property for $7,200,000 in June of 2021. Payton had received the property, on which he built a three-story, 3200 square foot vacation home, earlier in 2013 as part of a divorce settlement. The closing date for the sale of the property was set to be August 13, 2021. According to the complaint, however, Payton changed his mind and refused to proceed with the closing. On August 4, 2021, Payton sent plaintiffs a notice purporting to terminate the contract. Plaintiffs say Payton reasoned that he was unable to complete a 1031 exchange with a property he planned to buy in Idaho, and thus was no longer looking to sell his Florida home. The plaintiffs are not satisfied with that reasoning. They say the parties' purchase and sale agreement contained no contingency on completing the Idaho deal. Plaintiffs filed a demand for arbitration against Payton, as required by the purchase and sale agreement. A final hearing was scheduled for February 28, 2022; however, on January 12, 2022, Defendant Payton’s counsel moved to continue the Final Hearing on the grounds that he was having an elective medical procedure that would require physical therapy. Thus, on January 15, 2022, the arbitrator stayed the case until at least March 31, 2022. Shortly thereafter, on January 25, 2022, Sean Payton announced his retirement as the head coach of the Saints. Plaintiffs claim that this was all orchestrated to change the status quo of the Florida property to a homestead. To qualify for homestead exemption, homeowners must occupy their property as their permanent residence. Plaintiffs claim such change in the status of the property from non-homestead to homestead would impact and create a significant obstacle to their ability to obtain specific performance of the sale agreement with Payton. Did Sean Payton retire as head coach of the New Orleans Saints in order to keep his property?? In the complaint, plaintiffs say, "upon information and belief, Defendants Payton and Montgomery have actively taken steps to establish the Property as their new homestead by, inter alia, moving in, directing their mail to, and other setting up a permanent residence at the Property, with the intent to hinder, delay and avoid Plaintiffs’ legal rights and interests therein." Payton's primary residence was previously located in New Orleans, Louisiana, where he coached the Saints. In order the achieve the homestead status, Payton would need to show occupation of the Florida property as his permanent residence. Thus, coaching the Saints wouldn't be feasible. Would Payton really step away from a city and team that he inspired and loved for 15 years just for a house? Plaintiffs seek declaratory relief for specific performance of the sale of the property and injunctive relief to thwart defendants from changing the status quo of the property or re-deeding the property into their names. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is the President of Hofstra’s Sports and Entertainment Law Society. Additionally, he is a Law Clerk at Geragos & Geragos. He can be found on Twitter @Jason_Morrin.

On March 3, Los Angeles Dodgers pitcher Trevor Bauer announced on Twitter that he filed a defamation lawsuit in federal court against the sports news website Deadspin. In his legal complaint, Bauer alleges that Deadspin published an article covering his sexual assault allegation and that the article included false statements that were defamatory in nature. In May of 2021, a woman accused Bauer of sexually assaulting her after the two met up several times a month before. In response to these accusations, the Dodgers Pitcher was placed on administrative leave in July of 2021. Bauer later agreed to extend his administrative leave through the remainder of the season. Around this time, Major League Baseball initiated an investigation into this matter, which is currently ongoing. Later last summer, his accuser filed a temporary ex parte restraining order, which she requested to be made permanent. This order was denied by a Los Angeles County Superior Court Judge and the ex parte restraining order was dissolved. As for the criminal investigation into the alleged unlawful conduct, prosecutors last month decided not to bring charges against Bauer for this incident. Bauer claims that Deadspin published an article on July 6, 2021, titled “Trevor Bauer should never pitch again” and in this article claimed that his accuser suffered a fractured skull by the pitcher. He alleges that this article is part of a malicious campaign against him by Deadspin. For a plaintiff to prove defamation, they must show the defendant made a false statement, that the statement was published to a third party, the defendant exhibits fault, and the plaintiff suffered some harm. Bauer and his attorney are likely to succeed on proving that Deadspin made a false statement, that the statement was published to a third party, and that he suffered some harm from the publication. If his legal complaint is accurate, the complainant’s medical records do not show that she suffered a skull fracture and that there was no initial CT scan that showed a skull fracture. Thus, Deadspin’s statement that she suffered a skull fracture was a false statement. This statement was published in an article on Deadspin’s website and links to the article were shared on Twitter and Facebook. Bauer claims that the publication of these statements has caused harm to his reputation, anguish, humiliation, embarrassment, and financial loss. As for the fault element of defamation, a public official, such as Bauer, must prove the defendant had actual malice in publishing a defamatory statement. Actual malice may be proven by showing the defendant published the statement when they knew it was false or the defendant acted with reckless disregard for the statement’s truth or falsity. Courts generally examine defamatory statements in light of the entire publication and not just the alleged defamatory statement. Bauer’s attorney might have a difficult time proving that Deadspin published the July 6 article knowing the statement about the skull fracture was false. At that time, it might not have been readily apparent that his accuser did not suffer from a skull fracture because of Bauer’s conduct. His complaint argues that since other sports news sites, such as ESPN and The Athletic, issued corrections explaining they mistakenly reported there was a skull fracture before July 6, that Deadspin must have known that the statements were false. Bauer also alleges that there was actual malice because this article was one of numerous articles that constitute a malicious campaign against him. However, proving actual malice does not require the defendant to have acted intentionally, they must have acted with knowledge that the statements were false or with reckless disregard for their truth. Deadspin might raise the defense of retraction, which shields a defendant who made a defamatory statement from being liable so long as they issue a retraction of the allegedly defamatory statement. According to a USA Today article, Deadspin issued a statement explaining that a CT scan found no skull fracture. If Bauer can somehow overcome this defense and prove Deadspin initially knew the statement about a skull fracture was false, he is likely to win in court. Andrew Wise is a third-year law student at the George Washington University Law School in Washington, D.C. He is passionate about baseball, especially minor league baseball, and college football. You can follow Andrew on Twitter and/or on LinkedIn. Image via The New York Times (Katelyn Mulcahy/Getty Images)

As the weeks turn and we head towards another self-imposed deadline by the MLB to strike a deal prior to cancelling more of the MLB season, I think many are hopeful (at least some headlines are) that, in some sort of short term, the MLB lockout will end. It’s natural to feel this way, human beings for the most part are optimists. It’s easy to hope that the two sides will eventually feel the pressure to start the season, check their egos at the door, and slap the table on a common-sense deal that pays both sides and allows us to get back to our hot dogs, apple pie, Budweiser and Saturday matinees that we love as Americans. I think the more we read the tea leaves, however, the more we see that may be misguided. Based on how determined both sides appear to get what they want, this labor negotiation may have us headed towards a large portion of the season, or longer, without baseball being played. By all accounts, both sides of this negotiation have seen this stalemate coming for the past couple years. The MLB owners admitted (according to media reports) that they are fully prepared to miss at least the first month of games. Assuming they aren’t showing all their cards, it probably means that they are fully prepared to miss significantly more of the season, possibly the entire season. From a business perspective, that’s certainly understandable. The owners would have been smart enough to insulate themselves, to some extent, from a protracted labor battle completely crippling their businesses and killing their negotiating power. Licensing deals, gambling promotions, restaurant investments: all of these would have likely been structured to provide some soft padding in the even the players decided to hold out for a larger portion of the pie. Further, I think part of the reason we haven’t seen the owners move substantially off their current negotiating positions, despite public pressure, is that they don’t feel they have to. The MLB owners surely know by now that they have been vilified by the national media for their reluctance to negotiate. But the dirty little secret here may be that they don’t really have to care. They know that the second they strike a deal, fans will begrudgingly return, sportsbooks will line up at their doors for partnership deals, and TV broadcast rights will continue to exponentially grow. So, while most of the public believes that they are under extreme pressure to play baseball, I don’t think they actually feel that. This may be partially because they pay Rob Manfred to be their meat shield and field the tough questions they don’t want to answer, but it’s also part of the reason that we have gotten to this point. There’s at least a significant portion of the ownership that does not have the romantic attachment to the sport that fans do. They see dollars and cents, and they are determined to squeeze every last cent out of the players in this negotiation. Simultaneously, I think the players are more determined, united, and prepared than ever before to turn this into a protracted legal battle. I think that the overwhelming public support for their positions will embolden them to continue the fight to get what they want, even if it takes most of the season, or beyond, to do it. Rob Dibble indicated, and based on the solidarity of the players I would say his instincts are accurate (along with the fact that they have the excess funds to pay for stadium workers’ salaries), that the MLBPA has a sizeable amount of money prepared to float the salaries of the less financially secure members for an extended period of time. They know the owners have carefully crafted their businesses to shield a significant portion of the revenue generated by their play from ever being part of these negotiations, and are determined to change the slice of the pie they receive and the way that teams operate with regards to competitiveness. I think for the players, however, the rift with the owners cuts a little deeper to them as people, as Rob Dibble articulated. Players want to be viewed as partners in this business, being that they are the product, not just the people that make the product. I personally don’t believe that the owners will ever accept that, and that mistrust is the real issue at the heart of this negotiation, beyond all the dollars and cents. That’s not exactly revolutionary to say, as it’s the case with every sports labor negotiation, but here it seems that divide is as great as it’s ever been. Unfortunately, I think that will ultimately make each side more determined to get what they want, and that will drag this battle out well beyond the dog days of summer when we should be lining up who’s contending for a World Series title. 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 Image via The New York Times

There is an old adage that, every time you go to a ballgame, you have the chance to see something that you’ve never seen before. For sports and historical observers alike, something is happening in London that nobody has ever seen before. Yesterday, the UK government announced sweeping sanctions against several Russian oligarchs, as part of “efforts to isolate [Vladimir] Putin and those around him.” One of those sanctioned was Roman Abramovich, longtime Putin associate, one of the richest people in the world, and—at least for now—the owner of Chelsea Football Club, currently one of the best soccer teams in the world. The unprecedented government sanctions freeze Abramovich’s assets and prevent him from entering the UK. Abramovich likely saw the writing on the wall, announcing last week that he was putting Chelsea up for sale and placing the club under the “stewardship” of Chelsea’s charitable foundation. Since taking control of Chelsea almost 20 years ago, Abramovich’s spending turned the club from Premier League also-rans to a global powerhouse—the Blues are defending champions of Europe and perennial title contenders in England. Now, if the club is sold, it looks like that money will go somewhere else. According to Nadine Dorries, UK Secretary of State for Digital, Culture, Media, and Sport: “If the club is sold, Abramovich will not benefit.” Yesterday's sanctions effectively put Chelsea under government control. The club is now being run pursuant to a special license, with strict limits on spending. Chelsea is allowed to pay players and staff and play matches; at the time of writing, the men’s team are taking on Norwich in the Premier League, while the women’s team faces West Ham in the Women’s Super League. Season ticket holders and those who purchased single-game tickets before yesterday are allowed to attend games. But the club is not allowed to sell new tickets or merchandise. As of this morning, Chelsea’s shirt sponsor, telecommunications company Three, suspended its deal with the club, citing the government sanctions. Other sponsors presumably will follow suit. The government’s action raises a host of other practical, legal, and contractual issues to monitor. For instance, Chelsea is prohibited from signing new players, extending the contracts of current ones, or transferring players under contract to other teams. The transfer market value of Chelsea’s global superstars could be skewed should the club get into (deeper) financial trouble). CFC is allowed to fulfill contractual obligations by paying the players, but there will soon be much less money coming in. As it stands, Chelsea is only allowed to spend a fraction of what it would likely take to travel to and host upcoming Champions League and Premier League matches. The decision will also likely involve a trickle-down effect for those who rely on club-related income, like vendors and other business partners. A quick sale would seem to benefit all parties, which gives rise to interesting deal-making dynamics: does the situation lead to a quick below-market sale, given the club’s possible lack of leverage; or does it spark a bidding war for the chance to take control of one of world football’s premier institutions. Time will tell, but expect sports owners and wealthy concerns from all over the world to kick the tires on a potential deal. One thing is certain: Chelsea Football Club is entering a new era. Blues fans, who have asked to be involved in any sale of the club, will be hoping the club remains Champions League regulars, rather than the mid-table side of the 1990s and early-2000s. The UK government and neutral observers alike will be hoping for a quick resolution to Abramovich’s mercurial tenure in the Premier League. Ben Shrader is a partner at Hart McLaughlin & Eldridge in Chicago, where he serves as Chair of the Chicago Bar Association Sports Law Committee. You can reach Ben at [email protected], connect with him on LinkedIn, or find him on Twitter @BenShrader.

Prior to Thursday night’s game between the Brooklyn Nets and Philadelphia 76ers, reports surfaced that former Sixer Ben Simmons is expected to file a grievance against the organization. Simmons and his representatives are seeking to utilize his return as a member of the Brooklyn Nets to support his claim. Specifically, in his grievance, Simmons will argue that the negative publicity and targeting from fans and the organization furthered his mental health issues. Simmons’s Stint with the Sixers The Sixers selected Simmons with the number one pick in the 2016 NBA Draft after Simmons averaged 19.2 points, 11.8 rebounds, and 4.8 assists per game at Louisiana State University. Unfortunately for Simmons and the Sixers, Simmons was injured prior to the 2016-2017 season, forcing him to sit out the year. Simmons bounced back in the 2017-2018 season and won the Rookie of the Year Award. For the following three seasons, Simmons was named an All-Star. After the Sixers were bounced from the playoffs last season, fans and coaches questioned whether Simmons could lead them to the Sixers’ ultimate goal of an NBA Championship. The negative publicity and decreasing faith in Simmons’s abilities led to Simmons demanding a trade from the Sixers. With the Sixers unable to find a trade partner, Simmons sat out most of the season citing mental health issues. Due to Simmons sitting out until he was traded on February 10, 2022, Simmons accumulated around $20 million in fines from the Sixers. Even though the Sixers traded Simmons, he has yet to suit up for the Nets, and reports are that he will not take the floor on Thursday versus the Sixers. Issues Surrounding Simmons’s Grievance The Sixers have never questioned the legitimacy of Simmons’s mental health claims. The issue is that Simmons refused to visit the team doctors regarding his mental health. Reports have stated that Simmons visited professionals through the National Basketball Players Association (NBPA). However, the Sixers have not received any information regarding his mental health nor a plan to get Simmons back on the court. The Collective Bargaining Agreement between the league and the NBPA requires each player and team to sign the uniform player contract attached as Exhibit A to the CBA. Section 5(c) of the contract states: For any violation of Team rules, any breach of any provision of this Contract, or for any conduct impairing the faithful and thorough discharge of the duties incumbent upon the Player, the Team may reasonably impose fines and/or suspensions on the Player in accordance with the terms of the CBA. Therefore, if Simmons were to breach his contract with the Sixers, the team may reasonably impose fines. Section 7 covers the Physical Condition of the player, including the following provisions under subsections e and h: (e) Should the Player suffer an injury, illness, or medical condition, he will submit himself to a medical examination, appropriate medical treatment by a physician designated by the Team, and such rehabilitation activities as such physician may specify. (h) A player who consults or is treated by a physician (including a psychiatrist) . . . shall give notice of such consultation or treatment to the Team and shall provide the Team with all information it may request concerning any condition that in the judgment of the Team’s physician may affect the Player’s ability to play skilled basketball. Due to Simmons failing to see a team-designated physician and failing to provide the team with information from any visitations to outside physicians, the Sixers take the position that Simmons breached the contract, and the Sixers may impose fines. In this case, the Sixers fined Simmons $360,000 for each missed game. Without knowing the exact basis of Simmons’s claim, there could be another issue with the timing of Simmons’s grievance. Per Article XXXI, Section 2(a), Simmons must initiate a grievance within thirty (30) days from the date of the occurrence upon which the grievance is based. If the basis of the grievance is the Sixers fining Simmons for sitting out, the Sixers could argue that Simmons’s claims are time-barred due to the initial occurrence being at the beginning of the season. For Simmons and his representatives, there could be value in taking a shot and trying to claw back some of the money. Even so, due to the contract between Simmons and the Sixers, it appears that Simmons has an uphill battle ahead. Originally Published on offthecourtdocket.com 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.

I was quite wrong, almost comically wrong as the players and owners got a deal done the day after this piece was posted. Based on the reported agreement, this appears to be close to the middle ground of the initial starting points of the owners and players ($230 million, escalating to $244 million CBT; $700k, escalating to $780k minimum salary; and a $50 million pre-arbitration bonus pool). What the terms indicate, at least after an initial glance, is that the owners appeared to be much more motivated to make a deal happen than I assumed. Throughout the negotiation, it seemed the owners, through their arbitrary deadlines and lowball offers, were negotiating with the ultimate goal of creating an impasse, which would give them the ability to re-instate the pre-lockout terms and force the pressure back on the players to continue the work stoppage. That assumption now seems misguided, and may indicate that the owners had much more to lose, and much less financially security, than I originally anticipated. All in all, this deal feels like progress for the players, as they gained plenty of concessions that will discourage teams from manipulating player service time and discourage outright abysmal tanking. For the fans, it means we’ll get the full 162 game season (despite the MLB initially implying otherwise), along with our hot dogs and Budweisers, and for that I’ll happily accept that I was completely incorrect. My original piece follows. Dig In: We Could be Headed for a Long Labor Fight Between MLB’s Owners and Players By Michael DiLiello 3/9/22 As the weeks turn and we head towards another self-imposed deadline by the MLB to strike a deal prior to cancelling more of the MLB season, I think many are hopeful (at least some headlines are) that, in some sort of short term, the MLB lockout will end. It’s natural to feel this way, human beings for the most part are optimists. It’s easy to hope that the two sides will eventually feel the pressure to start the season, check their egos at the door, and slap the table on a common-sense deal that pays both sides and allows us to get back to our hot dogs, apple pie, Budweiser and Saturday matinees that we love as Americans. I think the more we read the tea leaves, however, the more we see that may be misguided. Based on how determined both sides appear to get what they want, this labor negotiation may have us headed towards a large portion of the season, or longer, without baseball being played. By all accounts, both sides of this negotiation have seen this stalemate coming for the past couple years. The MLB owners admitted (according to media reports) that they are fully prepared to miss at least the first month of games. Assuming they aren’t showing all their cards, it probably means that they are fully prepared to miss significantly more of the season, possibly the entire season. From a business perspective, that’s certainly understandable. The owners would have been smart enough to insulate themselves, to some extent, from a protracted labor battle completely crippling their businesses and killing their negotiating power. Licensing deals, gambling promotions, restaurant investments: all of these would have likely been structured to provide some soft padding in the even the players decided to hold out for a larger portion of the pie. Further, I think part of the reason we haven’t seen the owners move substantially off their current negotiating positions, despite public pressure, is that they don’t feel they have to. The MLB owners surely know by now that they have been vilified by the national media for their reluctance to negotiate. But the dirty little secret here may be that they don’t really have to care. They know that the second they strike a deal, fans will begrudgingly return, sportsbooks will line up at their doors for partnership deals, and TV broadcast rights will continue to exponentially grow. So, while most of the public believes that they are under extreme pressure to play baseball, I don’t think they actually feel that. This may be partially because they pay Rob Manfred to be their meat shield and field the tough questions they don’t want to answer, but it’s also part of the reason that we have gotten to this point. There’s at least a significant portion of the ownership that does not have the romantic attachment to the sport that fans do. They see dollars and cents, and they are determined to squeeze every last cent out of the players in this negotiation. Simultaneously, I think the players are more determined, united, and prepared than ever before to turn this into a protracted legal battle. I think that the overwhelming public support for their positions will embolden them to continue the fight to get what they want, even if it takes most of the season, or beyond, to do it. Rob Dibble indicated, and based on the solidarity of the players I would say his instincts are accurate (along with the fact that they have the excess funds to pay for stadium workers’ salaries), that the MLBPA has a sizeable amount of money prepared to float the salaries of the less financially secure members for an extended period of time. They know the owners have carefully crafted their businesses to shield a significant portion of the revenue generated by their play from ever being part of these negotiations, and are determined to change the slice of the pie they receive and the way that teams operate with regards to competitiveness. I think for the players, however, the rift with the owners cuts a little deeper to them as people, as Rob Dibble articulated. Players want to be viewed as partners in this business, being that they are the product, not just the people that make the product. I personally don’t believe that the owners will ever accept that, and that mistrust is the real issue at the heart of this negotiation, beyond all the dollars and cents. That’s not exactly revolutionary to say, as it’s the case with every sports labor negotiation, but here it seems that divide is as great as it’s ever been. Unfortunately, I think that will ultimately make each side more determined to get what they want, and that will drag this battle out well beyond the dog days of summer when we should be lining up who’s contending for a World Series title. 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 Image via The New York Times

This year’s Men’s and Women’s Division I Basketball Tournaments, also known as “March Madness,” marks the first time in tournament history that college athletes will be able to cash in on name, image and likeness (NIL) deals since NCAA rule changes and state laws went into effect that allow college athletes to monetize their NIL. Drew Timme, the Gonzaga University basketball star who broke the internet with his signature handlebar mustache in last year’s March Madness tournament, has signed a NIL deal with Dollar Shave Club. Dollar Shave Club is calling Timme the first and only “Chin-fluencer,” a reference to the smooth chin he had because of the handlebar mustache. The sponsorship with Timme is part of the brand’s “Noticeably Smooth” marketing campaign, which will also include a television commercial that will broadcast nationally during the March Madness games. The campaign also includes a chance to win tickets to this year’s Men’s Final Four for participants who share a photo entry (a “chin-try”) on Instagram or Twitter of their smooth chins, tagging the brand and using the hashtag #chintry. Timme’s NIL deal with Dollar Shave Club represents a new era of athlete marketability during March Madness. Other brands and college basketball players have also entered into NIL deals prior to the start of March Madness. Yahoo Sports recently announced that it signed Timme’s Gonzaga teammate Chet Holmgren and Duke University’s Paolo Banchero, both predicted to be top picks in this year’s NBA draft, to NIL deals to supports its Yahoo Sports Tourney Pick’em bracket game for March Madness. Outback Steakhouse launched a campaign with both men’s and women’s college basketball players, where the restaurant chain is promoting their favorite menu items. Candy Digital is rolling out its “Candy Sweet Futures Basketball” NFT collection from March 7 – 21 for eight college basketball players just in time for March Madness. The NCAA brought in $1.15 billion of revenue for 2021, most of which was generated by the Men’s Division I Basketball Tournament. The NCAA’s rules, however, prohibit college athletes from receiving any payments, directly or indirectly, from the March Madness revenue for their athletic participation. The new NIL rules, however, now give college basketball players, like Timme, an opportunity to have a piece of the March Madness pie by allowing them to profit from NIL deals during March Madness. This is March, let the NIL madness begin. 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.