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- Sports Industry Contract Updates for mid-October
Between NFL starting at 9:30am and an unforgettable MLB playoffs, who has the time to keep up with all the deals flying around the sports industry? As Tom Brady takes a monumental step towards Las Vegas, becoming only the third former NFL player to be an NFL team owner, James Dolan decides Vegas isn't enough and expands his empire to Abu Dhabi. And while Ohtani and Soto are gearing up for a bi-coastal World Series, NBA stars Brunson and Haliburton are gearing up for the start of the NBA season - with new shoes and energy drinks. Tyrese Haliburton signs a multi-year shoe deal with Puma. The deal will allegedly make Haliburton the face of the brand. Bleacher Report The NBA and apparel brand Rhone enter a multi-year international marketing partnership. The partnership intends to promote physical and mental well-being. Kevin Love, long-time champion of prioritizing mental health, will serve as brand ambassador. NBA Tom Brady becomes minority owner of the Las Vegas Raiders. CNN Sphere to open second location in Abu Dhabi. The Department of Culture and Tourism - Abu Dhabi (DCT Abu Dhabi) will reportedly pay Sphere Entertainment a franchise initiation fee for the right to use the Sphere's proprietary designs and IP. DCT Abu Dhabi will then pay an annual fee for ongoing use of Sphere Entertainment's IP and technology. Sportico Relatedly, Experience Abu Dhabi will become a global marketing partner of the Knicks beginning in the 2024-2025 season. Knicks jerseys will feature Experience Abu Dhabi patches. James Dolan owns both Sphere Entertainment and the Knicks, making this a monumental season for his relationship with Abu Dhabi. NBA FIFA names Lenovo its official technology partner ahead of the 2026 Men's World Cup and 2027 Women's World Cup. Sports Pro Media Genius Sports and LA Rams partner to provide fans in SoFi Stadium real-time data. Genius will provide Next Gen Stats throughout games, such as player locations and time for the quarterback to throw. Genius Sports Jalen Brunson signs endorsement deal with BodyArmor. Gatorade competitor BodyArmor now partners with two star professional basketball players in the NYC area - Jalen Brunson of the New York Knicks and Sabrina Ionescu of the New York Liberty. Sportico Harris Blitzer Sports & Entertainment and Campbell Soup Company sign multi-year marketing partnership. Campbell's will accordingly be an official partner of the Philadelphia 76ers (NBA), the Washington Commanders (NFL), the New Jersey Devils (NHL), the Prudential Center and Joe Gibbs Racing (NASCAR). Financial terms were not disclosed. Campbell's Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .
- Imposing Liability for Harm Caused by AI in Light of the Falsified Swift/Kelce Breakup Contract & Eagles Harris Endorsement
AI – defined as technology that enables computers and machines to simulate human learning, comprehension, problem solving, decision making, creativity, and autonomy – is becoming increasingly integrated into our everyday lives. [1] In early September, Apple unveiled its first iPhone featuring AI technology. Google offers to answer questions in quick summaries with Generative AI. Even LEXIS gives users the option to use AI to answer legal questions and summarize case law. AI’s usefulness stems from its ability to learn from its mistakes – the more it's used, the more advanced it becomes. This self-improving capability makes AI one of the most advantageous and simultaneously dangerous technological innovations in popular use today. For example, a subsect of AI called “deep fakes” can create images, audio, and video hoaxes so convincing, the untrained eye cannot tell what’s real from what’s fake. [2] On the September 5th episode of Conduct Detrimental , Dan and Mike touched on two recent instances of deep fake technology affecting the sports world. A picture posted on Reddit on September 3rd claims to show a prepared press statement dated for the end of the month announcing that Travis Kelce and Taylor Swift broke up. [3] The statement appeared to be printed on Kelce’s PR company’s letterhead, making it appear all the more authentic. Since then, internet sleuths discovered a podcast where the PR agency’s founder, Jack Ketsian, talked about often using “showmances” (i.e. fake relationships) to promote a new album, movie, or show. Around the same time, a cartoon image of Kamala Harris wearing an Eagles helmet appeared on Philadelphia bus stops. The ad declared Harris as the “official candidate of the Philadelphia Eagles” and included a URL to the Eagles’ actual voting website. [4] Swift and Kelce deny any impending breakup, and the Eagles stated on X that the ads were counterfeit. Currently, there is no defined vehicle to impose liability on those who use AI to spread false information. Litigators at the forefront of developing AI liability face unique Constitutional and Supreme Court limitations concerning freedom of speech. The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. [5] Case law determining protected versus unprotected speech under the First Amendment airs on the side of protecting speech, save a select few categories. See e.g. Brandenburg v. Ohio , 89 S. Ct. 1827 (1969) (speech specifically intended to produce imminent lawless action and is likely to do so is not protected by the First Amendment); Cohen v. California , 91 S. Ct. 1780 (1971) (profane, offensive language is nonetheless First Amendment speech and may not be suppressed under the guise of regulating the “manner” of speech); Reno v. ACLU , 117 S. Ct. 2329 (1997) (striking down a Congressional statute aimed to protect minors from inappropriate Internet material because it effectively suppressed a large amount of speech adults have a right to receive). Additionally, decisions such as Times v. Sullivan, Falwell v. Hustler Magazine, and Curtis Pub Co. v. Butts set extraordinarily high thresholds to impose liability against another person’s speech. [6] Thus far, privacy torts show the most potential to evolve to incorporate AI. For example, scholars speculate that fabricated material designed to look factual will meet all the criteria for a defamation claim, and that the resulting harm will range from reputational harm, shame, mortification, and emotional harm. [7] For example, the Fourth Circuit considered defamation in the context of misleading video editing. See Va. Citizens Def. League v. Couric, 910 F.3d 780 (4th Cir. 2018) (while Katie Couric’s documentary was edited to imply that she stumped defense league members with her gun-law policy question, this did not lower the plaintiffs lowly enough within the community to arise to defamation). However, any defamation claims filed by Kelce, Swift, or Harris must meet the Constitutional defamation standard, which requires proof of “actual malice” – i.e., the defendant knew the statement was false or acted in reckless disregard of the truth of the matter asserted. [8] Additionally, false light, may serve as a potential vehicle. A false light claim is actionable when one person publicizes something about another that portrays him in a false light and would be highly offensive to a reasonable person in the plaintiff’s position. See Rest. 2d § 652E. The Restatements note there is no requirement that the published material be defamatory – but the statement must be made with actual malice. While neither the breakup contract nor the Eagles ad harmed Swift’s Kelce’s, or the Eagles’ respective reputations per se, one could argue the posts were made with a reckless disregard for the truth. A Florida district court recognized theories of Intentional Infliction of Emotional Distress, Invasion of Privacy through Appropriation, and Unjust Enrichment in a case against Shaquille O’Neal for a photo he posted to his Instagram and Twitter accounts. [9] Jahmel Binion suffers from ectodermal dysplasia, a condition which produced abnormalities in the hair, nails, sweat glands, and teeth. [10] O’Neal photoshopped Binion's photograph by adding a side-by-side shot of O'Neal himself, contorting his facial features and "attempting to make a similar face” with the caption: "SMILE PEOPLE." [11] The court took special notice of the fact that O’Neal is no ordinary man, but “an NBA megastar with 8.6 million Twitter followers…His tweets generate substantial interest in certain quarters. The tweet at issue in this lawsuit, for example, received at least 17,703 ‘likes’ and generated 735 comments.” [12] While the court’s considerations here was less focused on the photoshop aspect of the lawsuit, and more on Shaq’s influence and the effect his post had on Binion, the case provides a potential roadmap for subsequent litigation. So, what are Swift, Kelce, and Harris to do? So far, the only legal “action” taken was Kelce’s PR firm’s statement that it engaged its legal team to initiate proceedings against what- or whomever posted the false image (on its own letterhead). Most Swifties dismissed the breakup contract as fake – especially after Swift’s appearance at the Chiefs’ first home game. However, tabloids have fueled the rumor mill by noting Swift’s absence from the last couple Chiefs games around the same time the alleged breakup was to occur. [13] Similarly, @winstontseng on Instagram admitted to being the artist behind the false Eagles/Harris ads, but denies knowing how they ended up on bus stops. [14] Although neither have pursued legal action at this point, these events pose as examples of the potential harm that will come from AI and deep-fake technology if left without judicial and/or legislative restraint. To quote Dan’s closing remarks on this segment on the September 5th episode: “this is like the shallow end of the fake ads, fake stories.” Keeton Cross is a 3L at Cumberland School of Law in Birmingham, Alabama. She can be found on X at @keeton-cross and on LinkedIn (Keeton Cross). [1] Cole Stryker, Eda Kavlakoglu, “What is AI?” available at https://www.ibm.com/topics/artificial-intelligence (Last Updated August 2024) [2] Ivy Wigmore, deepfake AI (deep fake) TechTarget, available at https://www.techtarget.com/whatis/definition/deepfake (Last Updated March 2023). [3] https://www.tmz.com/2024/09/04/taylor-swift-travis-kelce-breakup-plan-false/ [4] https://www.cbsnews.com/philadelphia/news/philadelphia-eagles-kamala-harris-endorsement-art/ [5] Virginia v. Black , 123 S. Ct. 1536, 1547 (2003) [6] Henderson, NOTE: Applying Tort Law to Fabricated Digital Content, 18 Utah L. Rev. 1145, 1152 (2018 ); see N.Y. Times Co. v. Sullivan , 84 S. Ct. 710 (1964) (establishing “actual malice” as a requirement to defamation); Hustler Magazine v. Falwell , 108 S. Ct. 876 (1988) (public officials must prove the publication contains a statement made with actual malice to recover for intentional infliction of emotional distress); Curtis Pub. Co. v. Butts , 87 S. Ct. 1975 (1967) (public figures may recover for defamation only when the publication was highly unreasonable and makes substantial danger to their reputation apparent). [7] See Henderson, supra [8] Sullivan, 84 S. Ct. at 725. [9] Binion v. O'Neal , No. 15-60869-CIV, 2016 U.S. Dist. LEXIS 2906, at *20 (S.D. Fla. Jan. 11, 2016) [10] Id. at *4. [11] Id. [12] Id. [13] Joseph McBride, “Taylor Swift noticeably absent from Travis Kelce game after 'contract split date,' available at https://www.mirror.co.uk/sport/other-sports/american-sports/taylor-swift-travis-kelce-contract-33780711 (Last Updated Sep. 29, 2024). [14] Emily Rose Grassi, “Artist behind fake ads claiming the Eagles endorse Kamala Harris comes forward,” available at https://www.nbcphiladelphia.com/news/local/philadelphia-eagles-kamala-harris-fake-ads/3969447/ (Last updated September 13, 2024).
- Breakdown of the House v. NCAA Settlement as Judge Grants Preliminary Approval
On October 7, Judge Claudia Wilken granted preliminary approval to the proposed $2.7 billion settlement in House v. NCAA. This is not Judge Wilken’s first foray with landmark sports law decisions – she famously sided with the plaintiffs in O’Bannon v. NCAA, holding that the NCAA’s rules prohibiting athletes from being paid for use of their NIL was an unreasonable restraint on trade in violation of antitrust laws. If finalized, this settlement will not only allow student-athletes to receive backpay for NIL compensation, but it would also allow a revenue-sharing system where colleges could pay their athletes directly. Preliminary approval of the settlement agreement simply means that Judge Wilken will likely be able to approve the settlement in accordance with Fed. R. Civ. P. 23, meaning the class action settlement is fair, reasonable, and adequate subject to further consideration at a Fairness Hearing in April. There, Judge Wilken will also determine (1) whether to enter final judgment; (2) whether the proposed distribution plan should be approved; (3) the amount of fees and expenses that should be awarded to Class Council; (4) the amount of service awards that should be provided to the class representatives. Until then, all class members are temporarily barred and enjoined from instituting or continuing prosecution subsequent to the July 26, 2024, version of the Settlement Agreement. The order addresses two groups of classes. The “Settlement Classes” addresses the revenue-sharing aspect of House , and thus generally applies to all classes identified in the order as well as subsequent classes of athletes. The other, “Damages Settlement Classes,” addresses the backpay aspect of House , limiting potential class members to 2016. While student-athletes can object to the Settlement Classes, they can only completely opt out of the Damages Settlement Class. The Settlement Classes This class comprises of all student-athletes who have, are, or will compete on a D1 athletic team at any time between June 15, 2020, until the end of the Injunctive Relief Settlement Term, defined as ten academic years following the final approval of the settlement. Thus, if Judge Wilken approves the settlement at the Fairness Hearing in April 2025, the class will continue until 2035. The Court designated Grant House, DeWayne Carter, Nya Harrison, Sedona Prince, and Nicholas Solomon as the class representatives, but noted that at least one college athlete would be named a class representative for each year of the Settlement Term. Any member of the Settlement Classes may object to any aspect of the Settlement by sending a letter containing certain information like the objections themselves and whether the objector or his/her lawyer wishes to speak at the Fairness Hearing. Judge Wilken decides whether the objection will be heard during the Fairness Hearing. The Damages Classes The Court certified two classes with the same requirements, but addressed to different sets of potential class members: the “Settlement Football and Men’s Basketball Class” and “Settlement Women’s Basketball Class” includes all student-athletes who (1) have or will receive full grant in aid (GIA) scholarships; (2) have, are, or will compete on a FBS football team or D1 men’s or women’s basketball team; (3) at one of the Power Five Conferences; (4) who have or will be declared initially eligible for D1 competition between June 15, 2016, until September 15, 2024. The Court named Tymir Oliver and DeWayne Carter as the class representatives in the former settlement class, and Sedona Prince in the latter. Finally, the Court created a “catch all” class excluding the members of the football and basketball classes mentioned above. The “Settlement Additional Sports Class” includes all D1 student-athletes who (1) did, have, or will compete on a D1 athletic time; (2) who have or will be declared initially ineligible for competition; (3) at any time between June 15, 2016, until September 5, 2024. Grant House, Nya Harrison, and Nicholas Solomon are the designated class representatives. Note that the Additional Sports Class imposes the same requirements as the Football and Basketball classes, but the latter classes impose the additional grant in aid requirement. Student-athletes have the option to opt out of the Damages Settlement Class by sending a letter to the Settlement Administrator explicitly stating, “I want to opt out from the damages classes in In re: College Athlete NIL Litigation, Case No. 4:20-cv-03919” by January 31, 2025. “Opting out” means that (1) the person has no rights under the Amended Settlement Agreement; (2) he/she cannot receive any settlement funds; (3) he/she shall not be bound by the final judgment. Administrative Logistics NCAA member schools must provide reasonably ascertainable information regarding the name and last-known contact information of the D1 student-athletes who meet the class criteria to the Settlement Administrator. Judge Wilkin appointed Verita Global, LLC, a firm specializing in legal settlements and claim administration. The Settlement Administrator must fulfill certain notice requirements by the notice date, October 18. First, create a public, case-specific website that will make several court documents available, including the Amended Settlement Agreement, Preliminary Approval Order, Long Form Notice, Claim Form, the reports from Plaintiffs’ economic expert Dr. Daniel Rascher, and information on how to submit claims and receive payment. The second and third responsibilities involve actively notifying the potential class members via email and postcard. The remaining steps and responsibilities are organized by due date in a chart provided in the opinion. The notice campaign and claims period begin on October 18. An allocation estimate will be available December 17 – this is also when all motions for attorneys’ fees are due. On January 31, all exclusions and objections are due and the claim period closes. The motion for final approval and response to objections is due by March 3, giving Judge Wilken sufficient time to make a decision before the Final Approval Hearing on April 7. Any member of the Settlement Classes may attend the Fairness Hearing but can only speak if the Court allows it by approving the request stated in the Settlement Classes objection. Read the Order Granting Plaintiffs’ Motion for Preliminary Settlement Approval in full here . Keeton Cross is a 3L at Cumberland School of Law. She can be found on LinkedIn and on X (keeton_cross)
- Amid Ongoing Bankruptcy Reorganization, Diamond Sports Group Cuts More MLB Teams
One of the biggest legal developments in sports media over the last year or so has been the bankruptcy proceedings involving Diamond Sports Group (Diamond), the parent company of Bally Sports. In March of 2023, Diamond filed for Chapter 11 bankruptcy protection after it took on significant debt after its purchase of various sports networks from Sinclair in 2019. Other factors including the loss of revenues from the COVID-19 pandemic, exponential uptick of “cord-cutters,” and rising interest rates have only exacerbated the company’s financial challenges in recent years. Chapter 11 bankruptcy, also known as a reorganization bankruptcy, is a court-supervised process that allows a company to restructure its finances and operations while remaining in business. As part of Diamond’s reorganization, the company has parted ways with several teams it previously maintained under its broadcasting portfolio. Entering the 2023 season, Bally Sports carried the broadcasts for 14 of the 30 MLB clubs in addition to many NBA and NHL franchises. During that season, Diamond l ost a bankruptcy court case against MLB in which it argued that the rights fees it owed clubs should’ve been reduced due to changes in market dynamics in the era of cord-cutting and the decline of cable television. It had already missed payments to certain teams earlier that season, so the company was quickly put in a position to decide whether to keep or cut their existing contracts. The first two teams Diamond cut in 2023 were the San Diego Padres and the Arizona Diamondbacks. As we’ve come to learn however, those two were just the first of many that will no longer have their games on Bally Sports moving forward. Last week, Diamond essentially announced that it plans to drop 11 of the 12 rem aining MLB contracts in its portfolio barring renegotiation of the deals on more favorable terms. Diamond’s lawyer said during a federal bankruptcy hearing that the company plans to assume “a single telecast rights agreement, that of the Atlanta Braves. All of the other teams, all of Major League Baseball’s other agreements, will be rejected under the plan.” However, this does not necessarily mean that Diamond will only carry one team (The Braves) for the 2025 season. Diamond’s message to the league is that it wants to renegotiate with a collection of clubs. What the new terms and rights fees may look like is certainly up in the air and a lot will need to be determined before Opening Day next March. With that being said, we do know who will broadcast games for three of Diamond's former teams in 2025. In the past few days, MLB announced it will produce and distribute local games for the Cleveland Guardians, Milwaukee Brewers and Minnesota Twins for next season. Those three will join the Colorado Rockies, and the aforementioned Diamondbacks and Padres as teams under MLB's umbrella. The Rockies were previously affiliated with Warner Bros. Discovery, who shut down or sold their regional sports networks at the end of 2023. Th e Texas Rangers w ill also break away from Diamond as they are considering other local media options for the 2025 season. In the Dallas-Fort Worth market, the Dallas Stars and Dallas Mavericks have also ended their relationship with Diamond and subsequently formed their own broadcasts ahead of the 2024-2025 season. The Guardians, Twins, Brewers and Rangers were all on expiring deals with Diamond. Seven other teams – the Tampa Bay Rays , Detroit Tigers , Los Angeles Angels , Cincinnati Reds , Miami Marlins , St. Louis Cardinals and Kansas City Royals -- are still in limbo as we sit here today. As the offseason unfolds, it will be interesting to see how each of these teams handles their uncertain broadcast situations. More broadly, the decline of RSNs like Bally Sports comes with both benefits and drawbacks for MLB and its respective clubs. On the positive side, Rob Manfred is moving closer to accomplishing one of his biggest priorites: expanding the reach and access of the sport to fans across the world. MLB, which launched a local-media division when Diamond first went into bankruptcy, will attempt to negotiate cable and satellite distribution agreements and make local streaming available through MLB.tv. Joining MLB and thus not being tied to the territorial rights associated with distributors will eliminate blackouts. MLB projects that games for the Guardians and Twins -- teams that, unlike the Brewers, did not have a local direct-to-consumer streaming option -- will see increases of 235% and 307%, respectively, in reach. The data resulting from MLB’s acquisition of the Padres and Diamondbacks rights has already been fruitful on that front. MLB has reported that since taking over San Diego’s broadcasts, an additional 2 million people have access to Padres games. An according to an MLB press release, the availability of D-Backs games jumped from 930,000 households to 5.6 million households in the team’s home broadcast territory. Seeing more of this across the league is a great development. While this expanded reach is a big positive for the league and its teams, there is a trade off. The rights fee regional sports networks have paid to their respective teams over the years is a major source of revenue that if lost, could have a significant effect on the bottom lines for MLB franchises. Yes, MLB does have a lucrative national TV deal and small market clubs do benefit from revenue sharing, but the decline of RSNs must at least pose some cause for concern moving forward. Last offseason, we saw certain clubs shy away from spending big in free agency amid the TV uncertainty. As we move into the offseason this winter, it will be interesting to see if this latest development with Bally Sports has a major impact. This will certainly not be the last story pertaining to MLB or local broadcasts in the other major professional sports. With the exception of big market clubs like the Yankees, Mets, Red Sox, Cubs, Dodgers, and Giants, who either own or receive massive payments from their respective regional sports networks, the overall decline of RSNs is something every club is monitoring. Ideally, MLB would love to take control of all its teams' broadcast rights and offer in-market streaming to all fans. But that’s a lot easier said than done and there are certaintly still barriers standing in the way of Manfred and the league office. However, as Diamond Sports continues to reorganize amid its state of bankruptcy, some of those barriers appear to be falling. Brendan Bell is a 2L at SMU Dedman School of Law and is the Southwest Regional Rep on Conduct Detrimental's Law School Student Board. He can be followed on Twitter (X) @_bbell5
- A New York Knicks Trade Masterclass? Ramifications of the NBA’s Latest CBA
Last week, the first blockbuster trade of the 2024-2025 NBA season went down, headlined by the New York Knicks acquiring Karl Anthony Towns (KAT) from the Minnesota Timberwolves in exchange for Julius Randle and Donte DiVincenzo. While fans from both sides will debate who won the trade, the key to understanding this deal goes beyond just the big names involved. This trade was largely driven by the financial restrictions and penalties imposed by the league's latest collective bargaining agreement (CBA). The CBA went into effect on July 1, 2023, but some of the restrictions only became consequential this off-season, effectively forcing this move by the T-Wolves. In the process, the Knicks discovered a loophole in the CBA that allowed them to acquire their newest star while evading some of these restrictions. Don’t worry, I am here to break down these provisions and complexities in the CBA that allowed this trade. First, here is a full breakdown of the trade: Knicks receive: ● Karl-Anthony Towns (via Timberwolves) ● Draft rights to James Nnaji (via Hornets) Timberwolves receive: ● Julius Randle (via Knicks) ● Donte DiVincenzo (via Knicks) ● Keita Bates-Diop (via Knicks) ● Future first-round pick (from Knicks via Pistons) Hornets receive: ● Charlie Brown (via Knicks) ● DaQuan Jeffries (via Knicks) ● Duane Washington Jr. (via Knicks) ● 2 future second-round picks (via Knicks) ● 2025 second-round pick (via Timberwolves) ● Cash considerations Looking at this trade breakdown, you might wonder how the Knicks managed to exchange six players for just two. While this would be impossible in NBA 2K due to its outdated franchise mode, the Knicks cleverly navigated the CBA rules to make it work. First, a very, very basic rundown of how the salary cap works in the NBA. The NBA has what is called a “soft” salary cap, meaning teams can spend above the salary cap limit with the exceptions available. For example, a common exception called “Bird Rights,” allows teams to go above the salary cap to re-sign players that have been on their team. However, if a team’s use of exceptions exceeds the next threshold called the Luxury Tax, then the team will be fined based on how much over the Luxury Tax they are. This is where the new CBA comes in because now there are two additional thresholds past the Luxury Tax, which are the First Apron, and a newly added Second Apron. These aprons were created to harshen penalties on teams willing to millions in Luxury Tax fees for having a huge team salary, cough Clippers cough. For those interested, the “Operation of Apron Levels” can be found in Article VII, Section 2(e), on page 186 of the NBA’s CBA . Below are the salary thresholds, and some of the restrictions imposed by the aprons. 2024-2025 Salary Thresholds ● Salary Cap: $140,600,000 ● Luxury Tax: $170,814,000 ● First Apron: $178,132,000 ● Second Apron: $188,931,000 Restrictions of the First Apron Restrictions of the Second Apron Not allowed to take back more money in a trade All First Apron restrictions Cannot acquire players via sign-and-trade No aggregating contracts in trades No trade exceptions No trading cash Limited sign-and-trade rules 2032 1st round pick is frozen (can’t be traded) if you finish above the second apron If a team performs a transaction that encompasses one of the above restrictions, they trigger a Hard Cap for whichever apron that restriction corresponds with. A Hard Cap means that there is now a set salary limit that team cannot go over. Any team can trigger a Hard Cap, not just teams that are above the First or Second Apron. For example, the Dallas Mavericks are below the First Apron threshold. When Dallas acquired Klay Thompson via a sign-and-trade with Golden State, they triggered a Hard Cap of the First Apron. This means next season under no circumstances; Dallas’s salary can exceed the First Apron of $178,132,000. The Knicks were above the First Apron, meaning they had the First Apron restrictions for transactions. They could not bring in a salary bigger than what they were sending out. KAT is set to make $49.2 million next season, meaning the Knicks had to trade away $49.2 million worth of contracts. Randle, DiVincenzo, and Bates-Diop made up about $43 million. The Knicks had to find a way to trade away an additional $6 million without losing another contributing player. So, the Knicks had to get creative by signing the cheapest players they could to make up the $6 million to include in the trade, called a sign-and-trade. It seems easy, except NBA trade rules do not allow a team to aggregate minimum contracts to make trades go through (CBA Section 8 (d)(ii)). This is where the Knicks performed a masterclass of close technical reading. They said we will not sign Jefferies, Washington, and OKC legend Charlie Brown to minimum deals then, we will sign them to minimum deals plus $1. One extra dollar per player allowed the Knicks to aggregate these three contracts to make up the remaining $6 million and prevent triggering a First Apron Hard Cap, which would have destroyed this trade because the Knicks would have been already over that First Apron Hard Cap. It is important to note all three players played for the Knicks last season, giving the Knicks rights to sign and trade them. These three players were sent to the Hornets who had extra salary cap room. The Hornets, in a rebuilding stage, happily accepted three draft picks and cash to facilitate this trade. The Hornets will waive all three players, use the cash to cover their salaries for this season, and still have cash left over. Lastly, turning to why the T-Wolves likely felt they needed to make this trade. With KAT on their roster, they were the second most expensive team in the league behind the Phoenix Suns. Brian Windhorst reported that the Timberwolves were facing "losing more than $100 million this season because of a whopper of a luxury-tax bill coming due with new contracts." In the short term, the Wolves will save about $6 million this season. But the big win is their long-term flexibility. KAT still had four years left on his deal, meaning Minnesota's salary situation would only get more restrictive with Anthony Edwards, Rudy Gobert, and Jaden McDaniels taking up $109 million of cap space alone. Next season both Randle and Gobert have one-year player options, which assuming they take the player option, sets the Wolves to clear cap space in the 2026-2027 off-season to continue building around Anthony Edwards. Depending on the outcome of this season, fans will likely conclude whether this trade was good or bad for each team. Some already concluded that a T-Wolves team that made the conference finals last season took a step back. There are many ways to gauge the success or failure of a trade, however, the long-term implications of this trade may require a little more patience to fairly judge. Regardless, this trade acts as a case study of how the new CBA will start to shape the NBA landscape in their quest for league parity. Andrew Gagnon is a 3L at the University of Kansas School of Law where he is a representative in the Student Bar Association and President of the Sports Law Society. He can be found on Twitter @A_Gagnon34 and LinkedIn as Andrew Gagnon.
- Calls for Congress to Tighten NIL Legislation
NIL: A Trend of Exploitation For decades, a fierce debate between the NCAA and its athletes raged. While the NCAA and its member schools generated millions of dollars from the faces of their athletes, these athletes went home from every game empty-handed. Despite being recognized for their on-field accomplishments, they were never rewarded. Although collegiate athletes protested relentlessly for the right to profit from their name, image, and likeness, their requests were denied time and time again. When Name, Image, and Likeness (NIL) legislation was passed in 2021, athletes were finally given the right to monetize their personal brand. However, despite the potential to generate equity and create lucrative opportunities, athletes are still vulnerable to exploitation from the NCAA, businesses, boosters, and scammers. A solution may lie within Congress’ power. Recent Controversies & Potential Solutions Without clear federal guidelines, the potential for exploitation remains high. After numerous instances of athletes being failed by current NIL policy, NCAA president Charlie Baker expressed his desire for a solution: “We’re continuing to advocate for Congress to create national NIL guidelines that will protect student athletes from exploitation, including the use of standard contracts.” The following examples highlight the unpredictability of current NIL policy and how it could have been prevented with federal guidelines. ● Savannah Schoenherr - University of Florida (2023): Savannah Schoenherr is offered $1,500 to model for a New York clothing brand. After arrangements are made, Schoenherr receives a $3,000 check and tries to deposit it. Before she gets around to paying the $1,500 for a “facility fee,” the check bounces and Schoenerr realizes she was almost scammed. Exploitation often occurs without consumer protection measures. Congress could mandate that the NCAA provides resources, such as legal counsel or some form of standardized review process for athletes negotiating NIL contracts, which would ensure that athletes are signing legitimate NIL deals. While some universities have internal policies or resources that provide advisors for these deals, it varies significantly depending on the school. ● Jaden Rashada - University of Georgia Football (2024): Jaden Rashada files lawsuit against multiple members of the Florida athletic department. During the recruitment process, a Florida booster group offers a $13.85 million NIL package to secure Rashada. Rashada signs his letter of intent, but shortly before payment is due, the booster group rescinds the contract. ● Matthew Sluka - University of Nevada, Las Vegas (2024): Matthew Sluka announces his decision to sit out the remainder of the season after the team failed to fulfill NIL promises. “I committed to UNLV based on certain representations that were made to me, which were not upheld after I enrolled. Despite discussions, it became clear that these commitments would not be fulfilled in the future.” A template contract created by the NCAA includes provisions that Charlie Baker believes should be included in a fair contract. The template contains required elements, such as a description of work or services that the athlete should perform for compensation, the amount of compensation, and the contract duration. This template could be used as a basis for standardized contracts, which Congress could mandate. Athletes are susceptible to exploitation because of the current ambiguity of NIL laws, but by requiring contracts to clearly define the terms of the agreement, Congress would prevent unfulfilled NIL promises. Once the athlete signs the contract and commits to a school, they should be unable to rescind it. Overall, the implementation of federal NIL legislation is likely to prevent much of the exploitation that still takes place in collegiate athletics. Danica Zelvin is a high school senior interested in Name, Image, and Likeness contracts. She can be found on LinkedIn here . Sources: https://www.espn.com/college-football/story/_/id/41480474/ncaa-charlie-baker-urges-congress-act-amid-nil-dysfunction https://www.espn.com/college-sports/story/_/id/40206364/ncaa-power-conferences-agree-allowschools-pay-players https://news.bloomberglaw.com/antitrust/college-athletes-lured-by-nil-deals-exploited-by-fine-print?utm_source=Email_Share
- Sports Industry Contact Updates for the Beginning of October
Sweater weather is just around the corner and everybody seems to be getting their fall wardrobes ready. NBA jersey patch sponsorships are heating up and LVMH wants in on the lavish world of F1. The Miami Heat sign Robinhood as a jersey patch sponsor. The Heat's G-League affiliate team, the Sioux Falls Skyforce, will also feature the Robinhood patch on their jerseys. Klutch Sports facilitated the deal. NBA The Detroit Pistons sign Detroit-based StockX as jersey sponsor. NBA MSG and Verizon expand their partnership as Verizon is named the official mobile wireless partner across MSG's entire portfolio of companies. The expansion includes the creation of two Verizon-branded hospitality spaces at MSG. Verizon F1 and LVMH to enter 10-year partnership deal. CNBC Lewis Hamilton becomes the newest Dior Ambassador. This partnership emphasizes LVMH's (Dior's parent company) endeavor to associate with F1. Motorsport Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .
- The MLBPA Is Swinging at Betting Platforms' Use of Player NIL
Player props are bets that allow you to wager on an athlete’s individual performance. This means that even if your favorite player is on the worst team, they can still win you money. Online sportsbooks simply list the players' names and the props for most sports. However, the setup is a little different for the MLB, which shows an image of the players next to their names. The Major League Baseball Players Association (“MLBPA”) through its corporate entity, Major League Baseball Players Inc. (“MLBPI”), filed two separate lawsuits against the major sports betting platforms. The MLBPI filed suit in the U.S. District Court in Philadelphia against DraftKings and bet365, and a second suit against FanDuel and Underdog Fantasy in New York State Court. The lawsuits assert that the sports betting companies are misappropriating the names, images, and likenesses of hundreds of MLB players by using images of the players on their sportsbook platforms and social media pages. The MLBPI represents MLB players in collective bargaining with MLB and other matters affecting the players’ economic and privacy interests. They are the exclusive group licensing agent for all active MLB players, including the name, image, and likeness of players for commercial marketing or promotional activities when three or more MLB players are involved. Here, they seek to recover compensatory and punitive damages and to prevent the sportsbooks from any further misappropriation of the players’ publicity rights. The MLBPI states that nearly every active MLB player’s name and image is featured on the sportsbooks, without having been granted a license by the MLBPI. Images of the players can be found when selecting player prop bets such as “how many home runs a baseball player will hit in a season.” They believe that the uses of players’ names and images go beyond “information,” which would fall under First Amendment protection, but are instead “promotional” and are thus unprotected. Instead, this “promotional” usage of player images claimed to be “intended to capitalize on those players’ celebrity and/or notoriety and use it to promote and drive business…” The complaint compares the sportsbooks' representation of the MLB’s props pages to the NFL’s. Prop pages for NFL players only feature their names without images. Additionally, if a specific MLB team is selected in the DraftKings app, then there is an option to view the “roster,” which displays player cards with the images and information about the players. This “roster” tab is not even available for NFL teams. The complaint states that, since the legalization of sports betting in Las Vegas in 1949, betters have been able to identify perfectly the wagers they wanted to take based on names alone. In-person sports books simply listed the prop and the odds, without logos or images of players. The complaint said: Player images are not necessary for this business to function. The core information bettors require to make informed decisions—such as an athlete’s name, past and current performance, and relevant statistics—can be fully conveyed through data alone. In fact, most serious bettors focus only on data in determining what bets to place, including quantitative factors such as performance metrics, matchups, and injury status, among others. While this quote is relevant to the context of their argument, how dare they insult my 10-leg parlays based on pure intuition and gut instinct? Don’t they know the person who picks their March Madness bracket based on team colors and mascots always wins? As mentioned earlier, the First Amendment protects speech that is “informational,” such as news, facts, and statistics, and generally permits transformative applications of publicity rights, such as a parody. There is no clear answer as to whether the unlicensed use of players' names, images and stats would violate their right of publicity. The U.S. Court of Appeals for the Eighth Circuit in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media , held that MLB players did not have the right to demand licensing fees from an online fantasy baseball game because the First Amendment preempted Missouri’s right of publicity law. [1] They reasoned that the players' names and general information about them were already in the public domain. [2] They were persuaded by the arguments of a California case, Gionfriddo v. Major League Baseball , in which the court stated that “recitation and discussion of factual data concerning the athletic performance of [players on Major League Baseball's website] command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection." [3] In a similar vein, the Indiana Supreme Court in Daniels v. FanDuel, Inc. held that DraftKings and FanDuel did not violate the right of publicity of three former college football players whose names, pictures, and stats were used on a daily fantasy football game. [4] The court reasoned that the use falls within the meaning of "material that has newsworthy value," an exception under the state statute. There is contradictory precedent in the U.S. District Court for the Southern District of Florida, where the unlicensed use of players’ names and stats in fantasy sports did violate the athletes' right of publicity. In Gridiron.com v. National Football Players Association , the court ruled that a website operator cannot use players' names and images to sell football memorabilia and operate a fantasy sports game. [5] In 2018, sports betting outside of Vegas became legal with the Supreme Court’s decision in Murphy v. National Collegiate Athletic Association . Since then, thirty-eight states have legalized sports betting, generating billions of dollars in annual revenue. It’s no surprise that the MLB would want a share of the profits from an industry that their league significantly contributes to. It will be interesting to see how the sportsbooks justify their differing treatment of the MLB prop bet pages compared to the NFL’s. With legal precedent split on this issue, there’s a possibility that these cases could escalate to a First Amendment battle in the Supreme Court. For those wanting to track these cases, they are MLB Players Inc v. DraftKings Inc et al , U.S. District Court, Eastern District of Pennsylvania, No. 24-04884; and MLB Players Inc v. Underdog Sports Inc et al , New York State Supreme Court, New York County. Andrew Gagnon is a 3L at the University of Kansas School of Law where he is a representative in the Student Bar Association and President of the Sports Law Society. He can be found on Twitter @A_Gagnon34 and LinkedIn as Andrew Gagnon . Sources: [1] C.B.C. Distribution & Mktg. v. Major League Baseball Advanced, L.P. , 505 F.3d 818 (8th Cir. 2007). [2] Id . [3] Gionfriddo v. Major League Baseball , 94 Cal. App. 4th 400, 411, 114 Cal. Rptr. 2d 307 (2001). [4] Daniels v. FanDuel, Inc. , 109 N.E.3d 390 (Ind. 2018). [5] Gridiron.Com , Inc. v. NFL , 106 F. Supp. 2d 1309 (S.D. Fla. 2000).
- Talking Tua: How Tagovailoa’s Concussion Once Again Spotlights Insurance Policies in NFL Contracts
Last week, Miami Dolphins quarterback Tua Tagovailoa suffered another serious concussion, leading fans to speculate about whether the Dolphins star would ever return to the field. Tagovailoa’s injury also led many media outlets to report that the Dolphins may be able to recover a portion of Tagovailoa’s salary via an insurance policy if he is not medically cleared. To understand why this insurance policy has the potential to make or break the Dolphins future, one only needs to turn the clock back to last year, when 40-year-old Aaron Rodgers was carted off the field just moments into his Jets debut. The newly acquired star quarterback would not return to the field in 2023-24, but the cost to the Jets was deeper than that: Rodgers’ contract was uninsured. After acquiring Rodgers during the offseason, the Jets restructured his contract. Like Rodgers’ former team, the Green Bay Packers, the Jets wanted to ensure that their franchise centerpiece was satisfied financially, paying him $37M in guaranteed money for the 2023 season. However, unlike the Packers, the Jets did not purchase an insurance policy for the QB, with Sportico reporting that the team missed out on up to $22M by not purchasing one of several policy options. More importantly, the Jets missed out on serious salary cap relief. The NFL Collective Bargaining Agreement ("CBA") defines insurance proceeds as a “refund from the player” and labels them as a cap credit for the ensuing season, so long as they are written into the contract at the time it is signed—insurance purchased outside of the contract does not count towards cap relief. This CBA provision encourages teams to insure themselves against the loss of their most expensive players for a season or longer by allowing them to obtain additional cap space for the year after the injury. Further incentivizing teams is the fact that payments for insurance policy premiums are not counted against a team’s salary cap. It should also be noted that teams can add this insurance provision to a player contract and not obtain a policy or stop paying an existing policy, which would leave them without recourse in instances like Rodgers’ injury. Given these advantages, why don’t all teams insure their most expensive players? For many across the league, the CBA’s treatment of insurance policies (which has remained unchanged since 2006) is viewed as a loophole and a competitive advantage that organizations don’t want to broadcast. Though Rodgers' injury placed insurance into the spotlight, insurance policies in NFL player contracts have been a growing trend for years, with estimations that these policies have doubled in prevalence across the league over the last 5 years. While this popularity is a good thing for organizations marred by injury, it has come at a cost—premium prices for these policies have skyrocketed 30-40% in the last 5 years, leaving many teams and owners feeling like it may be too expensive to insure more than one player on their roster. These perspectives are underscored by an ESPN report of sources claiming that the NFL Management Council has discussed eliminating the cap relief benefit entirely. Despite rising costs and potential rule changes, at least half of the teams in the NFL have at least one insured contract on their roster. The most popular position with insurance is quarterback, and 13 of the 14 most expensive QB contracts are insured, including names like Joe Burrow, Dak Prescott, and Jordan Love (who has already been placed on the IR this season). In contrast, rookie QBs, bridge quarterbacks, and middle-of-the-market signal-callers typically go uninsured. A team’s stance on insurance policies largely depends on its salary cap situation and the owner’s willingness to spend. Other teams have fewer concerns, like the Philadelphia Eagles (at least 16 players insured this season) and the San Francisco 49ers (who have successfully made claims on insurance policies for Jimmy Garoppolo, Dee Ford, and George Kittle, and will likely make another claim on Christian McCaffrey). It seems that these teams have the philosophy of spreading their risk by insuring a wide variety of players and positions for different amounts. The difficulties these teams may face in offsetting the cost of insuring multiple players across a roster may not be as high as insurance-averse owners claim, either. NFL contract insurance policies typically vary based on a player’s position, medical history, and age, so some players and personnel groups may be easier for teams to insure than others. There is also flexibility in the policy’s deductibles and the number of games a player can miss before the policy kicks in, allowing teams to further tailor these policies to their respective needs. Finally, teams can also save money by bundling multiple policies, as the New York Giants did in signing Dexter Lawrence II, Brian Burns, and Andrew Thomas this offseason. This brings us to Tagovailoa, whose tragic concussion highlights that insurance policies are not always the safety net that they appear to be. Tagovailoa’s 2024 contract extension provides for $167M in injury guarantees (with no waivers or exclusions for concussions) and involves an insurance policy for up to $49.3M of the contract, much like that of other expensive signal-callers across the NFL. However, as mentioned above, insurance brokers still have the discretion to vary their policies based on a player’s injury history. An ESPN article published earlier this week included sources who believe that concussions would be excluded under Tagovailoa’s insurance policy due to the high level of pre-existing risk involved. The Dolphins QB suffered at least two high-profile concussions in 2022 (including a “fencing response” against the Cincinnati Bengals, which indicates an impact on the brain that is strong enough to cause a traumatic brain injury) and publicly stated that he had considered retirement at the time. If Tagovailoa is found to be medically ineligible to play football and concussions are exempt from his contract’s insurance policy, Miami will not be able to file a claim under the policy or receive salary cap relief, a massive blow to the Dolphins’ 2025 season on top of losing their franchise cornerstone. By contrast, these ESPN sources believe that a Rodgers insurance policy in 2023 likely would not have included exclusions for an Achilles injury, as the Jets QB had never suffered that kind of injury, though it seems unlikely that the Jets would be able to obtain that same policy now that the quarterback has indeed ruptured his Achilles. While Tagovailoa’s health should rightfully be the main concern, how the Dolphins’ insurance policy will be handled remains an important issue to monitor. Are concussions truly exempt under his contract’s insurance policy, capsizing the Dolphins 2025 salary cap space even if their QB never plays another down of football? Will other NFL teams view the Rodgers and Tagovailoa injuries as an impetus to include more team-friendly insurance policies with their player contracts? How does a team insure an injury-prone player, or one who just suffered a serious injury? Will the NFL Management Council do away with all of these questions by eliminating the cap relief benefit? As the situation unfolds, all eyes will be on the response of the Dolphins and the NFL. Oliver Canning is a 2L at the University of Miami School of Law. He can be followed on Twitter (X) @OCanning. Sources : https://bleacherreport.com/articles/10135895-tua-tagovailoas-dolphins-contract-has-493m-insurance-policy-amid-qbs-injury https://www.nbcsports.com/nfl/profootballtalk/rumor-mill/news/insurance-for-tua-tagovailoas-concussion-might-not-be-available-to-the-dolphins https://www.espn.com/nfl/story/_/id/40648415/miami-dolphins-qb-tua-tagovailoa-agrees-4-year-extension https://www.sportico.com/leagues/football/2023/jets-rodgers-insurance-injury-1234742031/ https://www.espn.com/nfl/story/_/id/41274295/nfl-insurance-policies-star-players-aaron-rodgers-tua-tagovailoa-jared-goff-joe-burrow-christian-mccaffrey
- Sports Industry Contract Updates for the Beginning of September
Gone are the days where stadiums are named after lawyers and uniforms are so pristine they can’t even be bothered to include players’ names.* As summer comes to a close, partnership deals ramp up. The surge in popularity of women’s sports expands the field for potential sponsorship opportunities, and the Golden State Valkyries and Washington Spirit have not hesitated to seize the opportunity. The Leafs remind us that business doesn’t always have to be so serious. Carolina Hurricanes and Lenovo sign a 10-year partnership deal. The Hurricanes' stadium will be renamed the Lenovo Center and Lenovo will be the official technology partner of the hurricanes. NHL MLB partners with workwear maker Strauss, making it the "Official Workwear Partner of MLB." The revenue from this multi-year partnership will be spread across all 30 MLB clubs. As part of the sponsorship deal, the Strauss name will appear on Minor League Baseball helmets, as well as on helmets during games played in Europe, beginning in the 2024 post-season. Forbes Bank of America becomes a "Champion Partner" of The Masters. The Augusta National Golf Club has not disclosed any financial details or the length of the partnership. Sports Business Journal The Golden State Valkyries sign JPMorgan Chase as their first jersey sponsor. The WNBA expansion team will enter the league in 2025 and its home arena will be the Chase Center, the current home of the Golden State Warriors. Sportico The NWSL's Washington Spirit partner with Fanatics Sportsbook, making Fanatics the Spirit's first official betting partner. This is Fanatics' first sponsorship of a professional women's sports team. Sportico The Toronto Maple Leafs make Oreo their official helmet sponsor. This partnership aligns well with the Leaf's sweater sponsor, the Dairy Farmers of Ontario. Hockey News *Of course with the notable exception of the preeminent AL East front-runner. Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .
- Oakley Takes Next Step in MSG Lawsuit
While the Knicks have been riding the high of the Leon Rose era and aspiring toward an NBA championship this year, their Owner, James Dolan, has been fighting a legal battle against one of their former stars. Many of you will remember the infamous incident between Dolan and former Knicks star Charles Oakley in 207. Oakley was forcible removed from a Knicks basketball game and subsequently sued MSG and Dolan for battery and assault. After a complicated few years of motions and remands, the suit has finally reached the discovery stage of litigation. Discovery entails both parties accumulating evidence and requesting evidence from the opposing side to help build their own respective cases. Of course, like many stages of the legal process, Oakley and MSG have reached an impasse on their discovery requests. Oakley has requested to depose (question) Dolan himself and requested production of Dolan’s emails with 20 MSG custodians over a four year period. MSG argued against this request stating it was unduly burdensome and countered by offering 5 individuals to produce relevant emails sent between February 8, 2017 and March 1, 2017. The individuals offered were (2) a security or operations person identified by Oakley; (3) Lawrence Burian (former EVP, General Counsel); (4) Marc Schoenfeld (former SVP and Associate General Counsel); and (5) James Dolan. Oakley and Dolan/MSG could not come to an agreement on this matter and as a result, requested the court make a determination on the scope of discovery. The ”scope of discovery” here is defined under Rule 26 of the Federal Rules of Civil Procedure, which states that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” See USCS Fed. R. Civ. P. 26. The court will consider “the parties relative access to relevant information…the importance of discovery in resolving the issues…[and] whether the burden or expense of the proposed discovery outweighs its likely benefit.” See Fed. R. Civ. P. 26(b)(1). Essentially, all evidence that could be relevant in the case should be produced in the discovery change unless the opposing side can show that it is overly difficult or expensive to obtain. If the requesting party proves its relevance, it falls to the opposition to refute its relevancy or prove its burden. See In re Subpoena to Loeb & Loeb LLP , 2019 WL 2428704, at *4 (S.D.N.Y., 2019). 1. Deposition of James Dolan Oakley seeks to question Dolan and MSG has refuted stating Dolan has no unique knowledge that other witnesses are incapable of conveying. However, Dolan was an eyewitness to the removal of Oakley, the force used to remove him, and will have personal observations made during removal. Further, Oakley has alleged that Dolan called over a security guard who he then signaled to remove Oakley with other security personnel. The court granted Oakley’s request to depose Dolan based on this information. 2. Documents from James Dolan Oakley seeks to obtain emails including 35 search terms over four years. MSG contends that this is an excessive search period which the court agrees. They stated that the emails during the four-year period are unlikely to be relevant to the isolated alleged assault/battery incident and that the discovery of such a long term would not be proportional to the needs of the case. They granted Oakley’s request for emails but only from February 8, 2017 to March 1, 2017 (the date of the incident and the three weeks following). 3. Documents from Fifteen Witnesses Finally, Oakley requests documentation from fifteen individuals who either gave statements about the incident, participated in the removal, or have claimed to have witnessed Oakley being abusive. The court has granted this request in full based on the need from Oakley’s side for this information and the extreme importance of eyewitness testimony in this case. These orders by the court will move the litigation between Oakley and Dolan/MSG along, but don’t expect a resolution anytime soon. There is still quite a bit of bad blood between the two sides as Oakley publicly stated in March that he is not ready to return to MSG until Dolan apologizes and MSG has stated they never invited him back. In any case, this has been a long battle between the two sides approaching eight years and it seems to have no resolution in sight. I’ll be watching this case (and the Knicks) very closely for more updates. Evan Mattel is a Junior Associate at the Law Office of Vincent Toomey. He has his J.D. from Hofstra Law and is the co-founder of the NIL Program there. He can be found on LinkedIn here: https://www.linkedin.com/in/evan-mattel-93a871182/ .
- Could Hit by Pitch Punishments be Coming for MLB Pitchers?
One of the biggest developments in baseball over the last 15-20 years is the increase in fastball velocity. Every year, MLB pitchers are throwing harder than they were before. According to Baseball America, the average four-seam fastball in 2007 was 91.9 mph. In 2023, the average four-seam fastball rose to 94.2 mph. Moreover, over the past 16 years, there has never been a season where the average fastball velocity has dipped from the previous year. While it's always fun to see a pitcher like Aroldis Chapman or Ben Joyce light up a radar gun, some negative externalities have seemingly come with the increases in velocity. The rise of pitcher injuries and decline of offense in the game have been well-documented in recent years. However, another problem that hasn't been talked about a lot is the safety of hitters facing said velocity. It's no secret that talent evaluators across all levels of baseball are emphasizing velocity more than ever. Pitchers who throw hard inherently generate more swing and miss than those who don't. In this analytical era, front offices and coaches love to minimize risk. While pitch to contact pitchers still can be tremendously effective in the game today, having more strikeout pitchers limits the chance seeing-eye-singles bleed through the infield or wind-aided homeruns blow over the fence in a critical spot in the game. This has created more of an incentive for pitchers to focus on adding velocity in lieu of improving control and command. While the elite pitchers in the game are able to locate with 95+ mph fastballs, the reality is that there aren't many pitchers like Gerrit Cole, Zack Wheeler, and Chris Sale around who are able to do both consistently. As velocities keep rising and command oriented pitchers decrease, batters are more vulnerable to serious injuries as a result from being hit by a pitch. According to Jayson Stark of The Athletic , hit by pitch rates have nearly doubled since the 1960s and have steadily increased each year since. In recent years, players like Giancarlo Stanton, James McCann, Willie Calhoun, and Taylor Ward have been hit in the face. Moreover, there have been a proliferation of serious hand and elbow injuries resulting from hit by pitches as well. Absent when umpires deem the action is intentional, pitchers currently face no consequences for hitting batters. However, as more injuries and/or scary episodes add up, discipline could be coming for pitchers. A day after he was hit in the back of the head by a 95 mph fastball, Whit Merrifield of the Atlanta Braves predicted the MLB Competition Committee he serves on will have a rule in place by next season with penalties for pitchers who hit batters with similar high-and-inside fastballs. “Yeah, we’ll have something in place by the time the season starts next year,” Merrifield said. “I’d be shocked if we didn’t.” Merrifield is among many players who want a rule punishing pitchers for plunking hitters with fastballs that break hands and wrists or hit players in the head or neck. He said the competition committee, consisted of MLB team officials, umpires, and players, were receptive to the idea. "Where the game's at right now, it's just ridiculous. I hate where the game's at right now with that," Merrifield said after the game. The way pitchers are throwing now, there's no regard for throwing up and in. The guys are throwing as hard as they can, they don't care where the ball goes. Other sports have enacted various punishments relating to dangerous conduct. The NFL has ejected, fined, and suspended players for helmet-to-helmet hits. College football employs the targeting rule where players are flagged and ejected. The NBA has levels of flagrant violations as does soccer. In fact, MLB is actually somewhat of an outlier right now when it comes to policing dangerous plays in the game. How exactly these punishments could come about is certainly up in the air. Questions around what qualifies as a "dangerous" hit by pitch will need to be ironed out. Is it a simple black-and-white rule where a pitcher is automatically ejected if they hit a batter in the head? What about when a pitcher breaks a batter's wrist? Will umpires have the discretion to determine which pitches constitute as an ejection? All of this will need to be parsed out before any discipline goes into effect. The MLBPA will be heavily involved to protect pitchers against any unreasonable fines or suspensions as well. Nonetheless, this will be an interesting development to follow in the coming months. Merrifield's prediction that a rule will be in place by Opening Day 2025 seems aggressive, but he has more inside information than the rest of us. Most importantly though, player safety concerns should rule the day in the end. Brendan Bell is a 2L at SMU Dedman School of Law and is the Southwest Regional Rep on Conduct Detrimental's Law School Student Board. He can be followed on Twitter (X) @_bbell5