Image from Slap the Sign (slapthesign.com), a Fansided Website Texas and Oklahoma are bolting for the greener pastures that is the SEC. Obviously, this realignment will have a massive effect on the college landscape, for both major and minor sports alike. However, a curious thought came up as I pictured Texas and Oklahoma leaving a collapsing Big 12 conference. Where do other national brands go? And who on Earth is going to compete with the SEC, especially in football? In addition to snagging Texas and Oklahoma from the Big 12 (albeit for hefty buyout fees for each program), Ohio State, Clemson, and Michigan are other massive programs rumored to be in the running to assimilate into the SEC. While pundits and journalists have been reporting that these schools are being courted, the sports media sphere has been surprisingly silent on the position that this puts Notre Dame in. Do they make the jump and go to the ACC including football? Do they try to break off and join the SEC and follow the other football powerhouse, Clemson? Do they remain independent? We know the details surrounding Oklahoma and Texas leaving the Big 12, what that move will cost each program, and the massive potential for gain that each program has by joining the SEC. However, what would Notre Dame stand to lose by pulling out of their NBC contract? Would it be beneficial to make the jump and finally join a football conference? As it stands, Notre Dame’s contract with NBC was renewed in 2016 and terminates in 2025, worth roughly around $15 million annually for football. The current contracts terms were not announced, but NBC has at least retained these television rights to Notre Dame football since 1991. The confidentiality of the contractual terms lends some uncertainty to this proposition, for example, the buyout provision to end the agreement early could be so high that it doesn’t make fiscal sense for Notre Dame to join a football conference and forego its remaining independence. Regardless, that’s an incredibly fruitful agreement for both one of the main broadcast companies in media, and a team who (like it or not) is still viewed by some as college football royalty. Pulling out of the contract would also have ramifications in the scholastic realm for Notre Dame too. The University uses revenue from the contract to fund various scholarships and fellowships, both for undergraduate and graduate schooling. While Texas has its own TV network, the Longhorn Network, both that network and the SEC network are both owned and operated by ESPN, so this presents a slightly different situation for Notre Dame should they try to jump to a conference, while still maintaining the NBC contract. However, squaring the NBC agreement with the ACC Network agreement would prove quite challenging. Notre Dame does stand to make a substantial amount of money from joining a conference though. For example, in 2019, ACC schools reportedly received an average of $29.5 million based on the total revenue; however, Notre Dame reportedly received only $7.9 million of the $465 million in revenue that the ACC made. To note, that number was seemingly the lowest revenue number of the Power 5 conferences. Ultimately, it seems like it will come down to how much the “independent” title is worth to Notre Dame football, and the university. Everyone has a price in theory, right? It will be interesting to see what Notre Dame’s is, when they are inevitably faced with a decision on which conference to align with for football. Another exciting wrinkle in this situation is today’s development that the Big 12 has sent a cease-and-desist letter to ESPN, which consists of demanding ESPN end “all actions that may harm the conference and its members and that it not communicate with the Big 12 Conference’s existing members . . .”. Since Notre Dame is independent, it would seem to be likely for pushback to come from NBC itself, but it still nevertheless creates an interesting scenario should Notre Dame start to look for a conference home for its football program before the contract runs out. Daniel A. Goldstein is a practicing attorney at Carnes Warwick PLLC in Raleigh, North Carolina. He is a graduate of Campbell University's School of Law, and obtained his undergraduate degree from the University of North Carolina, at Chapel Hill. He has written on sports law-related issues for the North Carolina Bar Association's Intellectual Property blog. You can follow him on Twitter @dgunc3 and on Instagram @dangoldstein3.

Late Wednesday afternoon, Big 12 Commissioner Bob Bowlsby sent a cease-and-desist letter to ESPN president Burke Magnus demanding that ESPN cease and desist from “all actions that may harm the [Big 12] and its members.” The letter further demanded that ESPN not communicate with the Big 12’s existing member schools or any other NCAA Conference regarding the Big 12’s members, conference realignment, or the potential financial implications and incentives of conference realignment. But what did ESPN—which has a broadcast deal with the Big 12 and the other Power Five conferences and owns or airs the vast majority of college bowl games—do to “harm” the Big 12? Bowlsby’s stated reasoning for sending the cease-and-desist letter was twofold. First, Busby believes ESPN has been working with at least one other conference to induce current Big 12 schools not named the University of Texas or Oklahoma University to join another conference. Second, Bowlsby accused ESPN of violating its television rights agreement with the Big 12 by taking actions which impair the Big 12’s rights under the agreement. The letter marks a significant escalation in the already ugly (but nevertheless intriguing) battle that began with Texas and OU admitting their intentions to leave the Big 12 for the SEC. Bowlsby followed up the cease-and-desist letter—first published by Ross Dellenger of Sports Illustrated on Twitter (@RossDellenger)—by stating that he has documented evidence that ESPN tried to encourage another conference to add Big 12 members in an effort to destabilize the Big 12 so Texas and OU could avoid paying exit fees required by the Big 12’s grant of rights agreement. If true, Bowlsby’s legal theory is that ESPN’s attempted inducement of a Big 12 school to join another conference (possibly the American Athletic Conference, as reported by multiplesources) could constitute tortious interference with an existing contract. State laws differ, but generally speaking to establish a claim for tortious interference with an existing contract, the Big 12 must show: (1) the existence of a contract subject to interference; (2) ESPN willfully and intentionally committed an act of interference with the contract; (3) the act of interference proximately caused the Big 12 damage; and (4) the Big 12 suffered actual damages. There is no question that contracts between the Big 12 and its member schools exist, and any defection by a Big 12 school to another conference would certainly result in damages to the Big 12; those elements are easy to prove. What would be difficult for the Big 12 to demonstrate is that ESPN intentionally committed an act that interferes with the contracts between the Big 12 and its member schools. Generally speaking, the Big 12 would have to produce evidence that ESPN intended to cause or induce a member school to breach its contract(s) with the Big 12, or that ESPN tried to prevent the member school from performing its obligations under the contract(s). As the cease-and-desist letter is worded, whether the Big 12 could prove such an intentional act of interference seems unlikely. Specifically, Bowlsby states that he is “aware that ESPN has also been actively engaged in discussions with at least one other conference regarding that conference inducing additional Members of the Big 12 Conference to leave the Big 12 Conference.” If the assertion is that ESPN is talking to the AAC about the benefits of poaching Big 12 schools, I’m not sure that constitutes an intentional act to interfere by ESPN, since ESPN is not actually speaking directly with the member schools about breaching their contract(s) with the Big 12. However, Bowlsby has said that he has evidence, so it is possible more proof will be forthcoming. That said, if what Bowslby says in the letter is true, it’s more likely the Big 12 would have a viable breach of contract action against ESPN. Indeed, talking with and potentially incentivizing another conference to induce Big 12 member schools to leave would certainly seem to constitute actions prohibited by the television rights agreement with ESPN, specifically: “actions likely to impair, or [that are] inconsistent with, the rights of the [Big 12] has acquired under [the television rights agreement with ESPN].” Ultimately, it seems more likely that the cease-and-desist letter and Bowlsby’s subsequent comments are an effort to put ESPN, the SEC, Texas, and OU on notice that the Big 12 believes there is more to the story than just the company narrative about how Texas and OU began their journey to SEC membership. Bowlsby and the Big 12 appear ready to argue that the effort to get Texas and OU to the SEC and avoid exit fees dates back months, that it wasn’t just a simple case of Texas and OU approaching the SEC about joining, and that it involved intentional actions by ESPN and the SEC. So, if there were any questions about whether the Big 12 was going to slip quietly into the annals of college sports history without an ugly (but still intriguing) legal fight, let those questions be put to rest. They appear ready to fight, and they’re bringing ESPN with them into the CONFERENCE REALIGNMENT WARS! John R. Sigety (https://www.krcl.com/attorney/john-r-sigety/) is an attorney at Kane Russell Coleman Logan PC in Dallas, Texas. He is a graduate of Tulane University Law School, where he obtained his law degree and a sports law certificate. He has written extensively on sports law issues. You can follow him on Twitter @JohnRSigety

Image from Sneaker Bar Detroit Kyrie Irving was recently seen on Instagram airing his displeasure with Nike for attempting to release a design of his signature shoe (Kyrie 8), calling them “Trash” and apologizing to fans and sneakerheads alike in advance of the drop. He also stated that he had no part in the design or the marketing of the sneakers and Nike does in fact plan to release them without his approval and “regardless of what [he] says.” This is unlike Nike, who generally respects its signature athletes to a high degree. According to “Hoops Hype” a basketball fan forum, signature deals are given to elite players and in these types of deals, a brand will give the athlete a sneaker to create and ultimately release (think of any Lebron or Kobe shoe for reference). Compensation aside, one big part of a signature deal is the balance of creative control between the brand and the athlete. Certainly, Nike granted Kyrie some degree of creative control, whether it be an approval process, or even coming up with the designs himself. This can be seen with all of his other models. The real question of that dispute is whether Nike retains the final say. Legally speaking, there is more than likely a clause in the contract about promoting and otherwise not disparaging products of the collaboration between the athlete and the brand. As noted in another article, “Bryson DeChambeau: How Not To Treat A Sponsor,” “It’s not very often that professional athletes get into feuds with their sponsors, but when they do, the remarks made by the athlete could have significant ramifications including termination of the sponsorship. Almost every athlete endorsement agreement has legal language covering this exact type of scenario. Brands want to protect themselves from paying an athlete a good amount of money to endorse their brand and then have the athlete turn around and disparage the brand.” Certainly, Nike won’t get a kick out of Kyrie’s actions and if they really felt strongly enough about the action, could potentially pursue a breach of contract action. A breach of contract occurs when a party (or both) fails to fulfill its contractual obligations. Breaches can take two forms: 1) material, in which a party fails to fulfill an obligation as it pertains to a major part of the contract; or 2) immaterial, in which a party fails to fulfill an obligation as it pertains to a minor part of the contract. It is worth noting that the aggrieved party in a material breach might not have to fulfill its contractual obligations, while the inverse is true in the case of an immaterial breach. As the contract could very well contain a non-disparagement clause preventing Kyrie from speaking ill about any of the potential products or face a voided contract, Nike could potentially withhold payment or void the deal altogether, ending it right then and there. Without knowing the intricacies of the contract, it is difficult to speculate on just what sort of breach this is, but regardless, Nike, having been very lawsuit friendly as of late, might test the waters and see if it could bring a suit, and honestly, I wouldn’t be surprised. While this is not related to any court proceeding, if what Kyrie says is true, it sounds like Nike is operating in bad faith. Giving an athlete a signature shoe, and not only refusing to change the design when he voices his opinion, but to proceed with plans to release the shoe is most definitely not a good look. As this just happened early in the day on July 28th, this is still ongoing. Hopefully, they get this worked out and Kyrie can avoid an unnecessary lawsuit, because really, who wants to go to court because they didn’t like the design of their signature shoe?

John Roaux, AP Images The NCAA has been a lightning rod of criticism over the years, and it wasn’t until the legislative and judicial walls came closing in that they recognized name, image, and likeness rights on July 1. While states began enacting their own NIL legislation, Alston dampened amateurism as an ironclad defense to antitrust scrutiny. Perhaps the public’s appetite for NCAA reform has been satisfied—but it shouldn’t be. Following a series of football-related deaths, two White House conferences were ordered by President Theodore Roosevelt to ultimately create the NCAA in 1906. The NCAA’s establishment centered around protecting student-athletes from catastrophic injuries, an alarming irony in how the NCAA projects itself today. Before a 2015 rule change, Power 5 programs could cancel year-to-year scholarships for injury or poor performance. Non-Power 5 programs are still able to do this today, strikingly. Eligibility requirements demand that student-athletes prove they have $75,000 in healthcare coverage of their own, failing to trigger the NCAA’s catastrophic injury insurance until this amount in expenses is met (Wood, 2013, p. 561). Admittedly, most programs assist athletes with medical expenses in some way. This article, nevertheless, is tasked with dissecting the standard of care—if any—that the NCAA maintains for its student-athletes. A 30-page filing in response to a wrongful death lawsuit in 2013 revealed again that the NCAA adamantly asserts it has “no legal duty to protect college athletes.” Instead, the NCAA bestows this responsibility on its member institutions. We must ask ourselves, considering where the NCAA does choose to enforce rules, what exactly are the NCAA’s priorities? It seems as if the NCAA takes an á la carte approach to safeguarding the rights of athletes, leaving the difficult parts up to the discretion of the schools. A 2008 NCPA request to all D1 institutions sought disclosure of “key medical policies that can affect…student athletes.” Unsurprisingly, 90% of these programs declined to share any medical information whatsoever. With little to no transparency as to what medical policies each institution has in place, it is even more concerning that only 60 percent of all NCAA revenue is shared with conferences and institutions. In 2010, Power 5 and “Group of Five” conferences brought home over 61% of NCAA revenue that was distributed where the remaining 21 conferences received 38.4% (Lawrence, 2013, p. 29). An overwhelming number of smaller programs are under-resourced as a result, leaving student-athletes within this category disadvantaged when it comes to footing medical expenses. Athletic departments, for the most part, aren’t exactly financial powerhouses—only 25 of 65 D1 athletic departments profited in 2019. With these numbers in mind, schools can legally default to student-athletes’ private healthcare plans when athletic-related injuries arise. It is hard to imagine that the current structure of paying athletically related medical expenses is pro-competitive in nature, an exemption from antitrust laws. The Court felt differently in Alston under a “rule of reason” standard, and it is my hope that the same fervor behind NIL is given to healthcare considerations in collegiate sports. References Wood, K. (2013). NCAA student-athlete health care: Antitrust concerns regarding the Insurance Coverage Certification Requirement. Indiana Health Law Review, 10, 561-627. Lawrence, H. (2013). The impact of intercollegiate athletics financial inequalities. Journal of Intercollegiate Sport, 6, 25-43.

Image from Sky Sports Yesterday, a WWE stockholder filed a derivative lawsuit on behalf of the WWE and its shareholders against CEO Vince McMahon and former Co-VPs George Barrios and Michelle Wilson. Barrios and Wilson were terminated from employment with the WWE in January 2020. The plaintiff alleges that the defendants breached their fiduciary duty to the company and its stockholders by misappropriating information, specifically related to the WWE’s contract with Orbit Showtime Network (“OSN”), a Middle Eastern broadcast provider. The complaint asserts that WWE’s relationship with OSN had become “increasingly shaky,” ultimately resulting in OSN canceling its contract with the WWE. In late 2018, OSN had approached the WWE regarding the early termination of the parties’ agreements and on or about December 18, 2018, OSN and WWE entered into a settlement agreement terminating their relationship as of March 31, 2019. However, as the plaintiff alleges, prior to the time that those relevant material facts were properly publicly disclosed, WWE corporate insiders acted to sell over $280 million of WWE common stock based upon their “superior knowledge of those material, non-public facts.” These facts were also the subject of a Securities Class Action, which was filed in federal court in NY. There, after denying the WWE's motion to dismiss on August 6, 2020, the judge later approved a settlement of the claims for $39 million. Here, the plaintiff had demanded that the company take action against the defendants to recover from misleading statements and profits obtained while trading off of misappropriated information. Such profit refers to trading activity from McMahon and his counterparts in 2019: 3/27/19: McMahon sells $261M worth of $WWE at $81/share 3/31/19: OSN and WWE relationship terminates Trading activity provided by OpenInsider The plaintiff brought this derivative lawsuit on behalf of the WWE after its board of directors ignored his 10/1/20 demand. A derivative lawsuit is one brought by a shareholder(s) of a company, on behalf of the company, when the company has refused to bring suit itself. Companies make decisions through their officers and directors. Therefore, when an officer or director has committed a wrongdoing that directly hurts the company and its shareholders as a result, shareholders have the right to “demand” that the company bring suit. As this lawsuit directly names McMahon, it could have significant ramifications for the future of the WWE.

This past Friday, Paul Dolan, the owner and chairman of the Cleveland Indians Baseball Company, LLC, called a news conference to make the official announcement that they are changing the name to the Cleveland Guardians. Shortly after this announcement, many realized - for the first time - that another sports team in Cleveland, Ohio had been using the "Guardians" name. This was a men’s roller derby team that looks like they have been using this name since 2011, and rightfully owned and used the social media accounts and url associated with the name for some time. The roller derby team made their presence known with posts to ClevelandGuardians.com and their social media after the baseball team made their announcement. So it seems that Goliath thought that David would just fade into the background. Not the case. Sports Lawyer, Dan Lust, pointed this out and was right on point that acquiring the website and social media accounts from the roller derby team alone could cost a lot. In addition to likely having to make an agreement with the Cleveland roller derby team about the website and social media accounts, Dolan and Cleveland’s baseball team would also seemingly have to make an agreement to obtain the trademark rights to even use the name. That could be a lot more challenging, not to mention costly, based on what appears to be going on here. According to the United States Patent and Trademark Office, as of Tuesday, July 27th, there were two "live" trademark applications for the mark CLEVELAND GUARDIANS, covering three separate classes. The three classes are for: 1) Athletic apparel, shirts, pants, jackets, footwear, hats, athletic uniforms; 2) Entertainment in the nature of baseball games; and 3) Licensing of intellectual property rights. Diving deeper into the trademark system you see that the trademark application for athletic apparel (Serial Number 90383728) was Published for Opposition by the USPTO on July 13, 2021, and then Abandoned by the applicant eight days later on July 21, 2021. If the petition for express abandonment was in time to avoid publication - and the USPTO recognizes this - then the trademark application that was very close to being approved and registered will be denied. The second trademark application for the rights to the CLEVELAND GUARDIANS name in entertainment and licensing of intellectual property rights would be, in my opinion, the real money maker here. Looking into this trademark application further, it looks like the baseball team has been battling for this trademark since as early as April 13, 2021, by opposing the trademark application with the Trademark Trial and Appeal Board (TTAB). The Cleveland baseball team filed its Notice of Opposition to trademark application (Serial Number 90052176 ) on April 13, 2021, alleging that the trademark application should be invalidated because they had priority in the mark and for likelihood of confusion; because they did not have a bona fide intent to use the mark and only intended to reserve rights in the baseball team's mark; and for applying to register the trademark with a false suggestion of a connection with person, living or dead, intrusions, beliefs, or national symbols, or brings them into contempt or disrepute, amongst other common law claims. The main point of their Opposition is that the baseball team has been using CLEVELAND marks since long before July 14, 2020. In that regard, the constructive first use date provided in the trademark application, and because of this long and extensive use of the word CLEVELAND in baseball by the previous team names (CLEVELAND INDIANS, CLEVELAND NAPS, CLEVELAND BLUES and CLEVELAND BRONCHOS), the baseball team argues that the CLEVELAND GUARDIANS application should be denied for the applicant. Even assuming that this application was made by someone not directly associated with the roller derby team - or even if the application was withdrawn - it's not clear that this resolves all outstanding issues. For example, if the "live" trademark applications were filed by a "squatter" and not someone associated with the roller derby team, the issue of website and social media control would be an entirely separate battle. That might actually be what's occurring here: one battle against a squatter, and another against the roller derby team. Case in point, there was activity by the roller derby Guardians on ClevelandGuardians.com and Cleveland Guardians social media on July 24th and 25th -- after the baseball announcement occurred! So the baseball team is just going to allow some other entity to control and indefinitely use these moving forward? Doubtful. This recent flurry of activity seems to indicate that - even if the trademarks are resolved - that the website and social media accounts remain at issue. In other words, the roller derby team still could be in line for a big pay day. That said, knowing all of the above... why would Cleveland’s baseball team make the decision to choose a name that another Cleveland sports team already had been using for years ? More importantly, if the battle is not truly over, wouldn’t making an official announcement hurt your negotiation position to purchase all of the trademarks, website, and corresponding social media accounts? Of course, all of this could have been avoided if they simply picked another name. Usually, these situations arise when a brand or team fails to do any due diligence whatsoever before going public. However, that is not the case here. An article titled, The inside story of how Cleveland Indians became Cleveland Guardians, by Terry Pluto, stated that the name change had been in the works since 2020 and that the Indians were serious about the Guardians name roughly eight to twelve weeks ago. The USPTO records show it was as early as April that they challenged the trademark. According to the same article, the team conducted its due diligence of the Guardians name and found that “the only significant pro team called “The Guardians” is the New York Guardians of the XFL.” They even reached out and worked out an agreement with Marvel comics to clear use of the name. Brian Barren, the President of Business for the baseball team stated, "You’re not going to find a name that someone’s not using today…You’ve got to work through agreements with others…Those agreements are like toll booths, and they were fewer on the road to the Guardians than many other names under consideration.” Interestingly, he even stated that trademark concerns were a big factor in why they did not have fan voting as an option for the new name. So the decision to go directly after the roller derby team for the "Guardians" name was seemingly done on purpose, knowing full well that they would have to make agreements and spend time and money to battle to use the name. Naturally, the baseball team comes with far more resources at their disposal but that, alone, does not and can not guarantee a victory. At the kickoff baseball Guardians press conference, Dolan noted that, getting "final clearance on the name" was the last piece before the announcement. If you ask me... however... it does NOT look like final clearance should have been given at this stage. The premature showing of their cards likely costs them far more money than they had hoped. The question now becomes how much more money does it cost and whether the stench of the name change wears off in time for opening day. Zak Kurtz is the Founder and Principal Attorney at Sneaker Law Firm, a boutique business and intellectual property law firm that works with businesses and brands in sports, entertainment. fashion and technology industries. He can be reached at [email protected].

The rocky relationship between reigning NFL MVP/former Super Bowl champion Aaron Rodgers and the Green Bay Packers has led to a compromise from both parties. According to ESPN’s Adam Schefter, the two sides have negotiated terms that are close to ensuring Rodgers will report to training camp on time and play out the season in Green Bay. The agreement in principle is expected to include a laundry list of conditions to satisfy Rodgers, per Schefter: The 2023 year in Rodgers' contract -- the last one in his current deal -- would be voided, with no tags allowed in the future. The Packers would agree to review Rodgers' situation at the end of this season. Rodgers' contract would be adjusted with no loss of income to give the Packers more cap room now. Mechanisms will be put in place to address Rodgers' issues with the team. Once finalized, the Packers’ agreement to review the situation after the season sets Rodgers up to control his own destiny going forward and determine where the future Hall of Fame quarterback would like to finish his career. Both sides hope to finalize the agreement by the start of training camp, setting the stage for Rodgers’ franchise leading 17th season in Green Bay. Just this weekend, Rodgers and teammate Davante Adams simultaneously posted the same photo of another star duo – Michael Jordan and Scottie Pippen. Social media quickly went into a frenzy, wondering if the post indicated it would be the ‘Last Dance’ for the star duo in Green Bay. Following the news of this compromise, it seems the Bulls breakup is exactly what Rodgers and Adams were referencing. Rodgers’ likely departure from the Packers is sure to send shockwaves throughout the league next offseason as it is not very common in the NFL for a difference-making quarterback to become available. The list of suitors will surely be lengthy, with teams like the Las Vegas Raiders, San Francisco 49ers, New York Giants, New Orleans Saints, New England Patriots, Philadelphia Eagles, Denver Broncos, and Pittsburgh Steelers all potentially getting involved. With fellow star quarterbacks Russell Wilson and Deshaun Watson, legal case pending, also expected to be on the move over the next twelve months, the coming year could be quarterback roulette across the NFL. Rodgers’ reworked deal reaffirms the power of the star athlete today. In many ways, this type of amended agreement is unprecedented in the NFL. Green Bay is essentially voiding the final two years of Rodgers’ contract as an olive branch to ensure Rodgers reports to training camp for one final run with the franchise, with the Packers recognizing the value of an MVP caliber quarterback leading the way for their team. Like Jordan, Pippen, and the rest of the 1998 Chicago Bulls, Rodgers, Adams, and the Green Bay Packers will hope for one last hoorah and a season that culminates with another championship. By: Billy Reinhardt @BillyReinhardt Hofstra Law 2L, Fordham University Alum, Brooklyn Nets Reporter for NetsDaily