In October of last year, Judge Claudia Wilken of the Northern District of California granted preliminary approval of a settlement in House v. N.C.A.A .  While much has been covered about the sum of the settlement (roughly $2.8 billion) and how revenue sharing will work between the N.C.A.A. and college athletes, there are still ongoing discussions about the details of the settlement. One detail in particular will be the challenges presented to international athletes.   The Settlement   A quick refresher on the major points of the preliminary settlement:   · The settlement would establish $2.78 billion in retroactive payments for former college- athletes going back to 2016. These payments will not come from the school’s directly, but as part of the settlement process. · Collegiate athletic departments can opt into revenue sharing directly with past and present athletes beginning at over $20 million per school. · The N.C.A.A. and power conferences will be allowed to form a “designated enforcement agency” focused on eliminating booster led NIL collectives “pay-for-play” payments.   International Athletes   As noted by Amanda Christovich in Front Office Sports, if college-athletes on student visas accept House v. N.C.A.A. payments, they could be in violation of U.S. immigration laws.   In 2018, there were about 25,000  student-athletes from outside of the United States, with that number likely having grown since . Most students on visas are considered “F class.” They can be paid for work, but there are restrictions. For example, the work must be limited to a certain number of hours, be somehow connected to their study, and income must be considered passive income .   The House settlement would have schools hand out payments to the entire athletic department, making it difficult for international athletes  to avoid or reject them. These payments could then violate the worker regulations attached to student visas, risking the student-athletes visa entirely.   Schools involved may also become unintended victims to consequences caused by the settlement agreement. It is illegal to pay workers who are unauthorized to work in the United States under U.S. Immigration and Customs laws. Any payment by a school to an international athlete could violate these laws and hypothetically create a confrontation between I.C.E. and the school.     Possible Routes   While a clear-cut answer has yet to come to light, there are a few options for this sticky situation:   ·   International student-athletes on visas could attempt to refuse payments. · They can attempt work-arounds similar to former Kentucky Basketball player Oscar Tshiebwe, who participated in NIL payments while in the Bahamas and off U.S. soil . ·  They can try to attain a different type of visa, with less strict regulations around payments. · The school can establish a trust that doles out payments at an amount more in accord with visa regulations.   Schools and international athletes will also likely be awaiting guidance from the Department of Homeland Security or Congress, who can release guidelines on payments relating to student visas or create a law addressing the issue, respectively. Of course, a final approved settlement can also address this issue.   Still, without intervention or guidance on the issue, the House  settlement may ironically be setting up more legal challenges if international athletes begin losing their visa status because of these payments.   Michael Moore is a graduate of New York Law School and former member of the school’s Sports Law Society. When he’s not working at the New York Law Department he’s thinking about the intersection of sports and law and when the Knicks or Rangers will finally win a championship.

Happy March Madness! As spring officially begins, warm weather sports are eager to be the main attraction, with many partnership deals being announced. And ski season comes to a close with some exciting news leaving all skiers and après-skiers excited for next winter. Alex Cooper's Unwell Hydration brand to be official partner of the NWSL. NWSL Delta becomes official airline partner of the PGA. Delta Churchill Downs extends partnership with Ford through 2029. Ford will remain as the exclusive automotive partner of the Kentucky Derby. Thoroughbred Daily News J.Crew signs multi-year partnership with U.S. Ski & Snowboard to create an après-ski lifestyle apparel brand. The partnership is set to last for three years. U.S. Ski & Snowboard Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

The trial for Lucas Paqueta began last week, in what’s set to be one of the longest court proceedings in the English Football Association’s (FA) history. The West Ham midfielder has been charged with breaching betting rules and has been under investigation since last summer. The charges are related to four separate Premier League games when Paqueta is alleged to have been “booked deliberately for the improper purpose of affecting the betting market.” The investigation started after an unusually large number of bets were placed on Paqueta receiving yellow cards in different West Ham matches last year. The bets were reported to the International Betting Integrity Association, who alerted FIFA and the FA.   “It's alleged that he [Paqueta] directly sought to influence the progress, conduct, or any other aspect of, or occurrence in these matches by intentionally seeking to receive a card from the referee for the improper purpose of affecting the betting market in order for one or more persons to profit from betting,” the FA said in a statement. Though Paqueta is not accused of placing any bets, friends and family allegedly placed approximately 60 bets in relatively small amounts. Paqueta has also been charged with “two breaches of FA Rule F3 in respect of alleged failures to comply pursuant to FA Rule F2,” which relates to providing information and documents during an official inquiry.   Paqueta has denied any wrongdoing and previously stated: “I am extremely surprised and upset that the FA has decided to charge me. . . I deny the charges in their entirety and will fight with every breath to clear my name.” His defense team is arguing that Paqueta has “a poor disciplinary record that gamblers were aware of and that is why bets were placed on him to receive yellow cards,” and that he had asked not to play in one of the games in which the alleged deliberate booking occurred, “so there could not have been an organised conspiracy to be booked.” The FA, however, argues that the betting patterns and ways in which Paqueta received the bookings indicates deliberate misconduct.   Though there are few precedents for in-match game manipulation, the FA has sanctioned other players for betting on the outcome of games. Former Brentford striker Ivan Toney served an eight-month ban for betting violations, some of which involved his own team, though not in any matches in which he played. Newcastle midfielder Sandro Tonali was handed a suspended two-month ban after admitting to violations of FA betting rules, after previously serving a 10-month ban from the Italian Football Federation for breaching rules on betting on matches in Italy. If it’s determined that Paqueta committed the alleged offenses, he faces the possibility of a lifetime ban.   Cassandra Devaney is a graduate of the University of Connecticut School of Law.   Sources:   https://www.skysports.com/football/news/11685/13141950/lucas-paqueta-west-ham-midfielder-charged-by-fa-for-alleged-breaches-of-betting-rules   https://www.brazilreports.com/brazilian-soccer-star-lucas-paqueta-on-trial-in-england-over-betting-scandal/6910/

As Opening Day of the 2025 season is upon us, one of the longest running legal disputes between Major League Baseball owners appears to finally be over. MLB recently announced that the Baltimore Orioles and Washington Nationals have settled their media-rights disputes, ending a 20-year battle that has been in court for a decade and ultimately reaches back to 2005. As part of the settlement, the Nationals will remain on the Orioles-owned regional sports network MASN (Mid-Atlantic Sports Network) through the conclusion of the 2025 season but will then receive full control over their TV rights. According to a news release from MLB, the Nationals will be “free to explore alternatives for their television rights for the 2026 season and beyond.” This is significant news because it will mark the first time since the Nationals arrived in Washington D.C. that the team will be able to control where and how their games will be broadcasted. MASN was created in 2005 as a compromise to then-Orioles owner Peter Angelos, who forfeited territorial rights to the D.C. area in exchange for control of the Nationals' TV rights. To “protect the Orioles from any adverse effects caused by the relocation,” as MLB once described it, Nats games were broadcasted by the Orioles-owned TV network. Almost immediately after the arrangement was in place, disputes between the clubs over rights fee payments began. After more than a decade of litigation, this saga took another twist in January when an MLB committee announced the Orioles would pay the Nationals $320 million for rights between 2022 and 2026. While the terms were not disclosed, it would appear the final year of that agreement has been terminated given the most recent announcement. “As part of the settlement, all disputes related to past media rights between the Nationals, Orioles, and MASN have been resolved, and all litigation will be dismissed,” MLB said in its news release. Both Baltimore and Washington are run by different individuals than they were when the dispute started. David Rubenstein bought the team from the Angelos family last year. Ted Lerner, Mark Lerner’s father, died in 2023. The league itself owned the Nats when they moved from Montreal, selling to the Lerners in 2006. “We are excited to have this longstanding issue resolved and look forward to the season ahead,” David Rubenstein said in a statement. The Nationals declined to comment. While this is significant development in and of itself, it also has massive ramifications for the future of the Nationals franchise. In recent years, the Lerner Family has contemplated selling the franchise. However, Mark Lerner said his family decided against selling around this time last year. Whether or not the MASN dispute had anything to do with that decision is unknown, but if the family goes down that road again, the team’s “freedom” from the MASN relationship should help. That being said, like many teams across the league, the Nats’ TV rights are not worth as much as they were in the past. By settling now, the teams and the league essentially avoid further fighting in public over just how much the worth of those rights have fallen. It's no secret that TV rights are a particularly sensitive topic for baseball owners. The worth of most clubs’ rights has dipped in recent years amid the cord-cutting trend and decline of RSNs. While certain clubs like the Dodgers that own their own RSN have been somewhat immune from this dip, most clubs are coping with significant declines in TV revenues. One of Rob Manfred’s biggest priorities is to bundle all of the teams’ rights together and sell them to a streaming platform. While this will certainly be easier said than done, Manfred believes teams will be able to recoup some of their TV losses over the long haul if the league can reach new deals with streaming companies in coming years. Moving forward, it now bears close watching whether the Nationals will now align with the Ted Leonsis controlled Monumental Sports Network. Leonsis Monumental Sports Network broadcasts games for the Washington Capitals, Washington Wizards, and Washington Mystics. Leonsis is close to Mark Lerner, and Lerner is part of the ownership group at Monumental Sports & Entertainment. Leonsis, meanwhile, has expressed interest acquiring both baseball rights for his RSN, and potentially the Nationals franchise if the Lerner family goes back down the path of selling the team in the coming years. From an on-field perspective, the Nationals are trying to emerge from a long rebuild following their World Series title in 2019. Due to the COVID impacted season in 2020, the team was unable to enjoy the financial windfall that comes in the aftermath of winning the World Series. In addition, the team has been hamstrung by Stephen Strasburg’s $245 million contract and the key departures of Juan Soto, Trea Turner, and Max Scherzer. While the Nationals young talent appears promising, having the financial flexibility to spend on impactful free agents will certainly be important if the team wants to compete in the difficult National League East. The control over their TV rights along with a potential sale could help in that regard. Brendan Bell is a 2L at SMU Dedman School of Law. He can be followed on Twitter (X) @_bbell5

With three months remaining before the 2025 NHL playoffs, the Utah Hockey Club finds itself in an uphill battle for postseason positioning.  The club’s inaugural season has energized fans across Salt Lake City and beyond, despite beginning the season with an arena in need of renovations and a placeholder name.  However, the club was dealt a significant blow thanks to a recent decision by the United States Patent and Trademark Office (USPTO), that denied fans what would have undoubtedly been one of professional sports’ coolest and most unique club names: the “Utah Yetis.” On January 9, 2025, the USPTO rejected the Utah Hockey Club’s trademark application for “Utah Yetis,” citing a likelihood of confusion” with existing trademarks owned by YETI Holdings, Inc., the popular cooler and outdoor gear company.  The decision undoubtably dashed the dreams of club management, who had already begun imagining the merchandise opportunities and logo that would accompany the mythical mountain-dwelling namesake.  Much of the NHL fanbase widely expected the name to be chosen, with even the club’s forward and captain, Clayton Keller, saying “it sounds like it’s going to be the Yeti.” At the heart of this rejection lies the USPTO’s concern that consumers might confuse Utah Yetis hockey merchandise with products from YETI Holdings.  Part of the Lanham Act, 15 U.S.C. §1052(d), prohibits the registration of a trademark if it so resembles a mark already registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States, that it is likely to cause confusion, mistake, or deception among consumers regarding the source of goods or services.  This provision is commonly referred to as a “likelihood of confusion” refusal.  In trademark law, the core concern is whether a proposed mark could potentially confuse consumers.  While Yeti Coolers is primarily known for its premium insulated drinkware and coolers, the company has expanded into apparel and accessories, holding numerous trademarks covering these categories in both standard and stylized formats.  The USPTO’s decision reflects an understanding that consumers encountering “Yeti” branded clothing might reasonably be confused about whether such items originated from the cooler company or the hockey club.  Despite representing different industries at a surface level – professional sports versus outdoor equipment – the overlap in merchandise categories created the legal conflict that led to the rejection. Furthermore, when evaluating the “Utah Yetis” application, the USPTO determined that the geographical descriptor “Utah” functioned as a generic element, making “YETIS” the dominant component of the proposed mark.  When evaluating trademarks the USPTO assesses whether a term is generic based on how it is perceived by the relevant public.  For geographic terms, this means that they are generally seen as describing where something is rather than what it is or who makes it.  In this case, the term “Utah” functions primarily to indicate that the team is based in the state of Utah, rather than providing distinctiveness that would differentiate it from other “Yeti” trademarks.  The USPTO explicitly noted in their ruling that even the singular form “Utah Yeti” would not resolve the conflict, as the “singular or plural form of a registered mark is essentially identical in sound, appearance, meaning, and commercial impression, and thus the marks are confusingly similar.” Following the USPTO’s refusal, the Utah Hockey Club attempted to negotiate a coexistence agreement with Yeti Coolers, which would have potentially allowed both entities to use their respective marks within defined parameters.  However, these negotiations proved unsuccessful.  Mike Maughan, an executive with the club’s parent organization, Smith Entertainment Group, acknowledged the strength of Yeti Coolers’ trademark position, stating, “They have a unique and strong trademark on anything published or used with Yeti.”  The rejection does not necessarily represent a final determination, as the USPTO issued what was described as a “nonfinal office action.”  The club had three months from the January 9 refusal date to present additional evidence and arguments or request an extension to keep the application alive.  However, it appears the organization has decided to move forward with alternative naming options.  On January 29, the club announced that the fans attending their following four home games in late January and early February could vote for a permanent identity.  The final three options voted on included the existing Utah Hockey Club, Utah Mammoth, and Utah Outlaws.  For now, fans will likely have to wait for the postseason to find out what was ultimately chosen for the club currently in branding limbo.  Bureaucratic red tape struck again and took away what would have been one of the most unique club names in professional sports.   Calvin Holle is a 2L at the University of Missouri-Kansas City School of Law.  He can be found on LinkedIn ( https://www.linkedin.com/in/calvinkyleholle/ ).   Sources ·      https://www.espn.com/nhl/story/_/id/43537901/trademark-office-rejects-utah-yetis-team-name ·      https://sports.yahoo.com/utah-hockey-club-scraps-permanent-yeti-nickname-due-to-copyright-dispute-with-cooler-company-233559308.html ·      https://sports.yahoo.com/utah-hockey-clubs-effort-to-make-yeti-permanent-team-name-denied-by-us-trademark-office-021340945.html ·      https://www.law.cornell.edu/uscode/text/15/1052 ·      https://www.jdsupra.com/legalnews/utah-yetis-the-road-to-naming-a-new-nhl-7346610/ ·      https://apnews.com/article/utah-hockey-club-trademark-yeti-69fa64ec98b5d00f1c11d38405b352a5 ·      https://www.ksl.com/article/51234156/utah-hockey-club-facing-trademark-hurdles-in-finding-permanent-name ·      https://bleacherreport.com/articles/10152152-utah-hockey-club-has-yetis-all-nhl-nickname-finalists-rejected-by-trademark-office ·      https://spyglass.org/utah-yeti/

Earlier this year, Nike filed a lawsuit against popular L.A. based sneaker customizer Dominic Ciambrone —better known as The Shoe Surgeon—alleging trademark infringement, counterfeiting, and unauthorized customization. Now, The Shoe Surgeon is fighting back with a 100-page response, asserting fourteen affirmative defenses and multiple counterclaims against Nike—including defamation and unjust enrichment.   After Nike's initial complaint was filed, The Shoe Surgeon released a statement on social media stating “It’s a dream to collaborate with legendary brands. Especially with the brand who’s messages for us to believe in something.” The Surgeon then expressed his confusion that “Nike has chosen litigation over a discussion.”   Nike responded with a statement of their own: “Our goal is to make sure consumers are not misled and have access to authentic NIKE, Inc. products that are authorized and created according to our high standards with the performance benefits they expect. It is unfortunate that after many attempts to resolve this matter privately, we’ve had to take legal action against the Shoe Surgeon for counterfeiting, mass customization and trademark infringement. In order to safeguard our brand and IP, and aligned with Nike’s commitment to protect the consumer from counterfeit Nike product, we are left with no choice but to seek a legal solution to address how the Shoe Surgeon is constructing counterfeit “Nike” footwear from scratch and selling it as officially branded product.”   In his response, The Shoe Surgeon argues that his use of Nike shoes for customization qualifies as non-commercial use and therefore serves as a defense against infringement. He states that his work is artistic, offering a service for individuals seeking customized shoes for their own personal use and enjoyment. However, this defense appears weak, as The Shoe Surgeon's entire business model seems inherently commercial—selling customized sneakers.   The Surgeon’s stronger defense lies in fair use and the first sale doctrine, which limits a trademark owner’s control over a product after its initial sale. In May 2022, the Ninth Circuit further clarified the first sale doctrine in Bluetooth SIG Inc. v. FCA US LLC , holding that the first sale doctrine defense applies in instances in which a trademarked product or a component is incorporated into a new end product so long as the seller adequately discloses to the public how the trademark product was used or modified in the new product. The court determined that the ultimate resolution of a case invoking the first sale doctrine defense will depend on an analysis of whether a purchasing consumer would likely be confused about the source(s) of the product.   The other defenses The Shoe Surgeon asserts are as follows: ●      Unjust Enrichment ●      Implied License ●      Trade Dress Invalidity – Functionality ●      Estoppel and Laches ●      Statute of Limitations ●      Failure to Mitigate ●      Consent/Acquiescence/Waiver ●      Good Faith (asserted twice) ●      Lack of Personal Jurisdiction ●      Improper Venue/Inconvenient Forum In his countersuit, The Shoe Surgeon accuses Nike of defamation, claiming that Nike knowingly made false statements that damaged his reputation and business. The key statement at issue is Nike’s claim that:   “The Shoe Surgeon is constructing counterfeit Nike footwear from scratch and selling it as officially branded product. Further, The Shoe Surgeon is teaching others to create counterfeit Nike sneakers.”   The Shoe Surgeon argues this statement is false and misleading, as he never creates Nike shoes “from scratch.” Instead, he claims that all of his work begins with authentic Nike shoes, which he then customizes into art—not a counterfeit Nike product.   Supporting his claim, The Shoe Surgeon points to a 2022 letter from Nike, which outlined how deconstructing and reconstructing a Nike shoe could be considered counterfeiting under Nike’s policies. However, he argues that the letter never accused him of making fake Nike products from scratch. His counterclaim asserts that Nike’s statement was not only false but also made with malice, intending to harm his business and relationships within the sneaker industry.   Beyond reputational damage, The Shoe Surgeon alleges that Nike’s statements caused financial harm by deterring potential business partners. He claims he had multiple near-final deals with partners who backed out after hearing Nike’s allegations, costing him significant revenue and opportunities.   The second counterclaim, unjust enrichment, centers on Nike allegedly profiting from The Shoe Surgeon’s work without properly compensating him. The Shoe Surgeon claims that Nike engaged him for multiple projects, including a Travis Scott collaboration and a custom LeBron James sneaker project, while failing to properly compensate him. He alleges that Nike strung him along with promises of future deals and payments that never materialized.   A key part of The Shoe Surgeon’s argument is that Nike has benefited from his expertise for years—even hiring him to teach customization classes. He points to a 2017 masterclass for Nike’s Jordan Brand division staff, where he led a workshop on customizing Jordan 13 sneakers, which he claims is no different than the classes he offers to the general public. According to The Shoe Surgeon, Nike took what they learned from him and later built their own competing customization programs, such as Nike By You.   The Shoe Surgeon further argues that Nike’s position on customization has been inconsistent. He highlights the fact that Nike allowed him to create high-profile custom sneakers in the past but is now trying to crack down on customization under the guise of brand protection, but only after leveraging his creativity and expertise for their own gain.   Nike, however, is pushing back. On January 23, 2025, Nike moved to dismiss the defamation claim, arguing that its statements are protected under absolute privilege because they are a fair and accurate summary of its legal complaint. Nike asserts that its use of terms like counterfeit and from scratch is directly tied to its legal argument and, therefore, cannot be considered defamatory.   The broader implications of this case remain uncertain. Nike maintains that it supports customization within its parameters, but not unauthorized mass customization. Meanwhile, The Shoe Surgeon’s countersuit raises significant legal questions about customization rights, fair use, and the first sale doctrine. Depending on the outcome, sneaker customizers may need to navigate stricter legal boundaries—or risk litigation. Andrew Gagnon is a rising 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.

It’s no secret that March is the most lucrative time of the year for the NCAA, which reported just over $1.38 billion in earnings for the 2024 fiscal year. The majority of that income can be traced back to two contracts— one with CBS and Turner to broadcast the men’s side of March Madness ( valuing the tournament at just over $1.1 billion annually) and one with ESPN that covers nearly every other major college championship tournament, including women’s March Madness ( valued at nearly $65 million annually). The landscape of college athletics, including the prominence of conference realignment and the transfer portal, has shaped both the men’s and women’s brackets and has ensured that more eyes than ever will be watching college basketball’s brightest stars take the court this spring. Demand is showing no signs of stopping, either, with advertising spaces for the tournament(s) nearly selling out. But this year’s NCAA Tournament will be notable for reasons beyond buzzer-beaters and Cinderella stories—it marks the death of amateurism as we know it.   Indeed, soon after the final buzzer sounds, the confetti settles, and “One Shining Moment” plays throughout the arena, all eyes will turn to Judge Claudia Wilken in the Northern District of California. On April 7, Wilken is expected to grant approval of the landmark settlement in the House v. NCAA antitrust case. The agreement (which was granted preliminary approval on October 7, 2024) promises to pay $2.576 billion in backpay damages to former college athletes who allege that their name, image, and likeness (NIL) was unfairly exploited as part of the NCAA’s multibillion-dollar business model. If Judge Wilken approves the settlement, NCAA institutions will also be able to “opt in” and begin paying their student athletes up to 22% of the average power conference athletic revenue—nearly $21 million per year—via revenue sharing, while an NCAA enforcement and oversight body will be able to review all NIL deals above $600. While some may view this as the final nail in the coffin of nonprofessional sports, the truth is that their grave has been under construction for some time, with everything from employment claims, NIL monetization, and ballooning recruitment benefits contributing to slowly weaken amateurism’s collegiate foundation.   Despite the recent withdrawal of employment status complaints by USC and Dartmouth athletes—echoing Northwestern’s failed NLRB bid in 2015—the rationale for labeling players as “student-athletes” instead of employees is eroding fast. Take Oregon, for example. After transferring into the Big Ten, its men’s basketball team  totaled  over 26,700 air miles this season (in other words, more than the distance around planet Earth)—the longest road trip in college sports history. Players crisscrossed the country for over 59 hours of flight time aboard Oregon’s 68-seat charter plane and took advantage of full schedules of remote classes to avoid on-campus obligations. While this may simply be the new reality of Power Four conferences that seemingly stretch from coast to coast, it hardly mirrors the athletes of old. Gone are the days of players who were unable to receive non-scholarship compensation of any sort, with mandatory on-campus attendance for classes and restrictions on snacks being athletes’ main concerns—now, players are more concerned with performance-diminishing  jet lag and securing their next sponsorship deal. Meanwhile, the four-factor test in Johnson v. NCAA remains a potentially viable benchmark to answer questions about student-athlete employment status, signaling that players pursuing labor law protections may still have reasonable claims.                                                   This new frontier isn’t just reshaping college athletes, either—Mater Dei High School basketball just  signed  a multimillion media and NIL deal with Playfly Sports, continuing to pave the way for high school athletes to sign massive sponsorship deals as well. Further, the proposed settlement of the  Tennessee vs. NCAA  case (started during the infamous recruitment process of  Nico Iamaleava ) has resulted in the NCAA  ceasing  to enforce NIL restrictions during recruitment—extending the practice that allowed Bryce  Underwood  and AJ  Dybantsa  to sign record-setting multi-million dollar contracts reported at $12 million and $7 million apiece to play their respective sports. It seems clear that the new NIL landscape will allow both high school and college stars alike to earn millions based on the value of their likeness while leaving their NCAA eligibility untarnished.     The effects of this new system can already be seen on both the men’s and women’s sides of the tournament. While there was no correlation between overall seed and basketball spending for the men’s teams, all of the schools seeded eighth or higher in this year’s tournament spent at least $8 million on basketball (with Saint Mary’s the lone exception at $6 million). Duke, the nation’s best men’s team for much of the season, spent nearly $22 million. On the women’s side, the link between dollars and dominance was far more defined: seven of the ten biggest spenders earned a top four seed in this year’s tournament. In addition, all teams seeded seventh or higher spent at least $5 million on women’s basketball (South Carolina led the way by spending $11 million). Furthermore, programs like Arizona and Arizona State have retained consulting services from major agencies like William Morris Endeavor, reflecting a growing trend of universities seeking professional guidance as they approach this new pay-to-win era.    While this year’s March Madness champions have yet to be crowned, one only needs to turn back the clock to this year’s College Football Playoff to see the power of financial muscle on team performance in this NIL space. Ohio State, allegedly wielding a $22 million NIL budget for their football roster (as part of their athletics spending that recently topped the nation at $274.9 million), rode their investment to a National Championship victory this January. Similarly, a number one seed has won eleven of the last twelve NCAA women’s basketball tournaments. In today’s NIL landscape, money talks—and both schools and fans alike now have unprecedented opportunities to invest in players, and by extension, their team’s success.   With NIL valuations skyrocketing, legal standards in constant evolution, and institutional spending at levels we’ve never seen, the NCAA Tournament of old appears to be a relic of the past. As revenue sharing becomes the new norm and recruiting transforms into high-stakes bidding wars, the romanticized ideal of the unpaid student athlete who plays exclusively for school pride and the dream of a professional career feels increasingly nonexistent. March Madness will continue to captivate, but the era of pure amateurism is over. The future of the Big Dance is here—and it is unmistakably pay-to-play.   Oliver Canning is a 2L at the University of Miami School of Law. He can be followed on Twitter (X) @OCanning and found on LinkedIn .

The NFL season may be over, but Formula 1 is gearing up for its season (which opens the weekend of March 14th) - the motorsport welcomes a brand new brand name partner for its Monaco grand prix. And the NWSL ramps up its sponsorship deals as it also prepares to kick off its season the weekend of March 14th. Tom Brady buys 50% stake in CardVault. The Boston-based sports card and collectables company will now be called "CardVault by Tom Brady". The Athletic The official time partner of Formula 1, TAG Heuer, becomes the first ever title partner of the Monaco Grand Prix. Formula 1 Gotham FC partners with Dove to support girls in sports and promote ways for young female athletes to stay in sports. The Dove logo will be featured on the back of the Gotham FC kits. Gotham FC The NWSL partners with Overtime to produce Gen-Z focused content. NWSL The Portland Thorns sign a partnership deal with Ring. The Ring logo will be featured on the front of the Portland kits. This deal is reportedly the highest valued jersey deal in NWSL history. Sportico Lewis Hamilton signs with lululemon as brand ambassador. Hamilton will work with lululemon's innovation, design and development teams to assist with future product development. Sports Illustrated Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

Introduction The Third Circuit’s departure under Johnson’s economic realities test provides a more workable standard than Glatt’s test for determining a student-athlete’s status under the FLSA but is not the best way to determine whether athletes should be considered employees under the FLSA. While the Third Circuit's rationale for the economic realities factor test for student-athlete employment is a positive step towards judging if an athlete is an employee and therefore qualified for protection under the FLSA, it falls a step short by not distinguishing between athletes in revenue-generating, and non-revenue-generating sports. Background College athletics have existed since the 1850's, following the path of the country, starting on the East Coast, and eventually traversing the nation spanning from sea to shining sea. As collegiate sports began to increase in popularity, President Theodore Roosevelt called a meeting in 1906, leading to the creation of the NCAA, and enacting rules forbidding college athletes from receiving payment or financial consideration.1 This choice requiring college athletes to maintain their amateur status began a century of tension, with the NCAA remaining steadfast in requiring athletes to play as amateurs, and athletes continually pushing for compensation for their performance. There have been numerous scandals around paying athletes, including SMU football’s “Death Penalty” punishment, and Johnny Manziel’s ability to capitalize on his Name, Image, and Likeness. Other athletes fought in the courtroom, seeking compensatory rights for college athletes through the judicial system. O’Bannon v. NCAA from the Ninth Circuit held that the NCAA was not immune to antitrust scrutiny, a win for some in the athlete community, but a ruling that stopped short of granting athletes’ access to profiting from their Name, Image, and Likeness or other forms of compensation.2  Alston v. NCAA  would change that. Alston allowed athletes to be compensated for their Name, Image, and Likeness; a watershed moment in college athletes' rights as a legal path to compensation now existed.3 Following Alston , the Third Circuit Court of Appeals in Johnson v. NCAA , sought to determine if college athletes as amateurs, were precluded from bringing claims under the Fair Labor Standards Act (FLSA).4 The court found that they were not. The athletes brought their case under claims they were not paid minimum wage under the FLSA. The District Court applied Glatt’s economic factors test, but the Appeals Court was unsatisfied with this test and instead remanded the case with instructions to retry it under its new economic realities test “grounded in common law principles.”5 Johnson  Test The Third Circuit developed their economic factors from dissatisfaction with the Glatt test comparing athletes to unpaid interns.6 Unpaid interns are assumed to benefit from internships as they enter “the relationship with the expectation of receiving educational or vocational benefits that are not necessarily expected with all forms of employment”7  Johnson  held the test was incomplete when factoring in the “benefits” cited by the athletes which are more like those in a work environment. Instead of Glatt’s test, Johnson developed the economic realities factor test to determine if a student-athlete qualified for coverage under the FLSA. The four factors to consider are whether the athletes perform services for another party, whether the athlete’s services are necessarily and primarily for the other party’s benefit, whether the athletes are under the other party’s control or right of control, and whether the athletes perform their services in return for express or implied compensation or similar benefits.1 Analysis While the Third Circuit’s rationale for the development of the economic realities factor test was correct in ruling that collegiate student-athletes were protected by the FLSA, it fell one step short by not sub-dividing the group into athletes who participate in revenue-generating sports and athletes who do not participate in revenue-generating sports. This paper defines revenue-generating sports as football and men’s and women’s basketball. Some schools may have other sports which generate revenue, but those sports do not produce revenue with the same consistency a football or basketball program may. The revenue-generating sports are typically the sports that bring in the money for the athletic departments to operate the rest of the teams. In 2022, the average Division 1 football program brought in almost $32 million, and the average men’s basketball team brought in around $8 million.8 These revenue-generating athletes have a different set of opportunities than their non-revenue-generating colleagues, and because of that, separating them into two groups is the more appropriate legal framework. In general, collegiate student-athletes will meet at least two, often three of the Third Circuit’s economic realities factor test. Where cases will turn is on the facts. It can often be shown the athletes’ services are necessarily and primarily for the other party’s benefit. The categorization of athletes into revenue-generating and non-revenue-generating sports is important because of the final factor, where most cases will be decided, whether the athletes perform their services in return for express or implied compensation or similar benefits. While NIL compensation is permitted for athletes of all sports, most funds flow to athletes in revenue-generating sports as schools look to maximize their profiles, businesses hope to expand their brands, or athletes aim to maximize their value. There are certainly exceptions (the top NIL earner, Livvy Dunne, an LSU gymnast, participates in a traditional non-revenue-generating sport), but, in the first year of NIL, 95.7% of NIL funds were distributed to revenue-generating sports.9 This is understandable as research has found a correlation between athletic success and increased interest in a school, aka, the "Flutie Effect".10 By having such stratification in the groups, splitting the athletes into separate piles is necessary because their experiences around compensation likely will be so different. While a revenue-generating athlete might have the opportunity to engage with a collective or different entity around significant money tied to the athlete’s NIL rights, athletes in non-revenue-generating sports are much less likely to be afforded these opportunities, and typically the opportunities they do receive come in at significantly lower dollar amounts. The non-revenue-generating athletes will argue Johnson’s test in the acquisition of similar benefits or implied compensation, unlike the revenue-generating athletes who will have a greater likelihood of being able to bring evidence forward of express compensation. Revenue-generating athletes have access to fans on a much wider scale through television broadcasts and the media opportunities their sport provides them than non-revenue-generating athletes do. The television deals signed by football conferences or by the NCAA for their March Madness tournaments for basketball teams lead to most of the funding classifying these sports as revenue- generating. Conversely, non-revenue-generating sports are often held on regional sports networks, streaming services, or are only available behind a paywall, a barrier that limits the access these athletes could reach as their popularity is already starting with a severe disadvantage when compared to those athletes with nationally televised games. This is not to say a non-revenue-generating athlete cannot overcome this challenge, there are examples of those who have become wildly profitable by capitalizing on social media popularity, but even then, their athletic abilities are still only available to fans who put in the extra work to find these athletes and sports in the tucked away places, instead of the more prominently displayed platforms that the revenue-generating athletes often enjoy. On top of these classification challenges, courts also must consider policy concerns with applying the Johnson  test, including the optics of schools buying their players through bidding wars. Another question involves monitoring where this funding comes from. Private equity brings challenges and questions about the strings attached to the terms of the funding as returns on investments must be met.11 Other schools could opt for the “collective” approach, turning to donor networks to put funds into their players' pockets, but that blurs the lines between money from the outside and money being paid directly by the school to players, more like a pay-to-play model.12 Still others have taken on direct involvement adding a player tax to their tickets so fans can help offset the cost of acquiring top talent.13  Another concern is a sovereign fund looking to continue a sportswashing campaign by turning their attention to an American sports landscape with command over large swaths of the American public.14 These sovereign funds have deep enough pockets to bankroll any deal needed, but their ulterior motives will remain under scrutiny. Regardless of where funding comes from, other questions remain around the allocation of funds. If the football team brings in 95% of the revenue, should they get 95% of the funds, or should there be a more even distribution amongst the teams? Title IX and similar legislation will influence these decisions, as collectives push to fairly compensate players without causing more problems. In any instance where outside funding flows into a school, there will be a distinct advantage for revenue-generating athletes in receiving the funds, creating a need for splitting the group in two for proper analysis. Finally, especially in revenue-generating sports where budgets are typically significantly larger, this influx of money could impact the competitive landscape. There is a possibility of bigger, richer schools stashing players to keep their rosters deeper to the detriment of schools with smaller budgets, impacting the parity of college sports. Some courts believe that NIL will have the opposite effect, by allowing players to profit off their abilities, they will go where they can play and seen, grow their brand, and financially benefit.15 Ideally, this is correct, philosophically this is likely correct, but when a bigger school, with deeper pockets or more financial backing targets the same player as their rival, competitive nature could take over. There is a real possibility these funds could be used to pay players to remain on teams they would not otherwise stay with because of the financial resources available, constricting the competitive parity in college athletics instead of dispersing the talent to more schools. Professional sports teams engage in bidding wars to drive the price up on their rival or trade for a player to keep that player from joining another team, thereby strengthening their team, while also weakening another team. Is it unreasonable to think the same would not occur in college sports? These bidding wars are hypothetical, and could happen in any sport, but have a higher likelihood of occurring in sports with more money and funding, the revenue-generating sports, than in non-revenue-generating sports. Conclusion The Johnson ruling was an important piece in the discussion around student-athletes as employees under the FLSA, but without splitting athletes into the subcategories of revenue-generating sports versus non-revenue-generating sports, the economic factors test will cause further confusion and prove to be unworkable as the divide between groups continues to widen in college sports. 1  NCAA v. Alston , 594 U.S. 69, 76 (2021). 2  O'Bannon v. NCAA , 802 F.3d 1049 (9th Cir. 2015). 3  NCAA v. Alston , 594 U.S. 69, 107 (2021). 4  Johnson v. NCAA , 108 F.4th 163, 167 (3d Cir. 2024). 5  Id . at 167. 6  Id.  at 179, (quoting Glatt v. Fox Searchlight Pictures, Inc. , 811 F.3d 528, 535 (2d Cir. 2015)). 7  Glatt v. Fox Searchlight Pictures, Inc. , 811 F.3d 528, 535-536 (2d Cir. 2015). 8 George Malone, Which College Sports Make the Most Money? ,   Yahoo!Finance (March 21, 2022) https://finance.yahoo.com/news/college-sports-most-money-130012417.html . 9 Margaret Fleming, As NIL Turns Three, Collectives and Football Still Control the Industry , Front Office Sports (July 1, 2024, 5:31 PM), https://frontofficesports.com/as-nil-turns-three-collectives-and-football-still-control-the- industry/ . 10  Johnson 108 F.4th at 169 (speaking about Professor Doug Chung’s research and findings that athletic programs are “higher education’s primary form of mass media advertising.”) 11 Eben Novy-Williams, Daniel Libit, FSU’s ‘Project Osceola’ Private Equity Push Began in 2022: Docs , Sportico (January 30, 2024, 5:13 PM), https://www.sportico.com/leagues/college-sports/2024/fsu-project-osceola-private- equity-jp-morgan-1234764861/ . 12 Pete Nakos, What are NIL Collectives and how do they operate? , On3 (July 6, 2022), https://www.on3.com/nil/news/what-are-nil-collectives-and-how-do-they-operate/ . 13 Chris Low, Tennessee increases ticket prices by 10% to help pay athletes , ESPN (September 17, 2024, 2:56 PM), https://www.espn.com/college-football/story/_/id/41302985/tennessee-ups-season-ticket-prices-10-help-pay- athletes . 14 Jeff Hauser, Jason Jones, Former Colorado coach says he sought NIL funding from Saudi Arabia’s PIF in unprecedented move , Sports Illustrated (August 26, 2024), https://www.si.com/college/colorado/football/colorado- sought-nil-funding-from-saudi-arabia-pif-in-unpreceded-move . 15  Ohio v. NCAA , 706 F. Supp. 3d 583, 594 (2023).

In Johnson v. NCAA , the Third Circuit allowed student-athletes to bring claims for relief under the Fair Labor Standards Act (FLSA), creating a baseline test for employee status in college athletics. [i] The Johnson court rejected the lower court’s use of the Glatt test [ii] (used for employment questions involving unpaid internships), [iii]   recognizing that student-athletes are sui generis and requiring a new employment test. [iv] The resulting “economic realities” test involves four factors: (1) whether athletes perform services for another party; (2) whether these services primarily benefit that party; (3) whether the athletes are under the party's control; and (4) whether they receive compensation or benefits. [v] However, the Third Circuit did not decide if student-athletes are employees, [vi] so the Johnson court’s test has not been used in practice, the test unused and its future uncertain. Despite concerns, the Johnson test’s rationale suggests it may become a mainstay in student-athlete employment cases. I.              RATIONALE OF THE THIRD CIRCUIT’S “ECONOMIC REALITIES” TEST The first factor examines the services student-athletes provide to their respective schools, [vii] acknowledging that players engage in rigorous, [viii] often violent [ix] activities that generate significant university revenue. Student-athletes have highlighted this connection as suggesting a service relationship, [x] as reinforced by the Johnson Court’s finding that athletics are distinct from education and can even negatively impact one’s learning. [xi] The second factor of the Johnson test assesses whether student-athlete services primarily benefit of their schools. [xii] College sports programs receive substantial revenue through media rights deals, ticket sales, and booster gifts. [xiii] While schools have cited educational and developmental benefits, [xiv] this factor hints that academic compensation is not enough to overcome the massive monetary benefit that schools enjoy (and pre- House, did not have to share) [xv] because of their student-athletes’ work.          The test’s third factor asks whether student-athletes have autonomy at their schools or if they are under university control as players. [xvi] The third factor of Johnson looks at how universities dictate student-athlete training schedules, [xvii] team-mandated events, [xviii] and personal conduct expectations, [xix] which resemble employer-employee relationships and regulations. [xx]          The final Johnson factor asks whether schools compensate their athletes. [xxi] Benefits may come in non-traditional senses, like academic scholarships, [xxii] or more common forms (i.e., cash payments). [xxiii] Universities have pointed to scholarships and stipends as forms of player compensation, [xxiv] but this factor seems to take a wider view, asking whether these benefits can be compared to typical modes of employment compensation. II.            PRACTICAL CONSIDERATIONS OF THE “ECONOMIC REALITIES” TEST The most important practical consideration in adopting the Johnson “economic realities” test is creating uniformity across jurisdictions. Designating the Johnson test as uniform across the country would standardize how courts analyze student-athlete employment claims, an important notion in a time where courts in several states face student-athlete employment questions [xxv] (and others previously decided against FLSA employment status). [xxvi] While inconsistent results on similar employment questions from state-to-state would undermine student-athlete employment claims overall, having a nationwide standard like the “economic realities” test would help to reduce uncertainty and promote consistent legal outcomes from jurisdiction to jurisdiction, a massive benefit during a time when state Name, Image, and Likeness (NIL) laws have created uncertainty in other areas of college athletics. [xxvii] Another important consideration of the Johnson test is that it balances university interests (i.e., maintaining amateurism) [xxviii] and athlete rights (i.e., the right to fair compensation for the services they render to schools). [xxix] As discussed supra , the Johnson court did not make a finding of employment status for the student-athletes in the case. [xxx] This finding (or lack thereof) seems to imply that athletes could still be found to be non-employees under the “economic realities” test, allowing for a case-by-case analysis as opposed to broadly classifying athletes as either employees or non-employees. This premise is underscored by Judge Porter’s concurrence in Johnson , where he suggested that high revenue-generating athletes like college basketball and football players would likely be viewed as employees, but others would not, showing that the “economic realities” test may not be applicable to all student-athletes but can be applied in narrow circumstances. [xxxi] Finally, the “economic realities” applies broadly across all NCAA sports. The Johnson test’s framework does not favor a particular sport or classification of athlete, instead focusing on objective standards that compare a student-athlete’s relationship with their school to that of an employer and employee. [xxxii] The “economic realities” test appears ripe to be used on a wide variety of college sports, as the test’s factors recognize the diverse nature of college athletics (including the variance among schools’ structure and economic considerations, issues that have been brought to light as schools prepare for a potential House settlement) [xxxiii] and do not favor any one class of athletes above others. This was especially relevant in the case of Johnson , where most of the plaintiffs did not play high-revenue sports and attended small, northeast Division 1 schools. [xxxiv] III.          IS THE JOHNSON TEST THE BEST APPROACH? While the “economic realities” test is advantageous due to its flexibility, sensitivity to context, and focus on real-world outcomes, it has faced concerns for being subjective, complex, and administratively difficult to implement, leaving the applicability of the test in question. However, the benefits of the Johnson test far outweigh its drawbacks, making the “economic realities” test the best available approach to answering questions of student-athlete employment. The Johnson test should be adopted due to its ability to adapt to a variety of different facts and contexts, as well as its focus on practical decisions. This “economic realities” test is highly flexible, given its lack of favoritism towards a particular sport, discussed supra . The ability to use this test in different types of employment cases is essential, given the wide variety of sports and schools across the NCAA. [xxxv] Further, nationwide application of the Johnson test would help to reduce concerns over a lack of jurisdictional reach (i.e., how a court in the Eastern District of Pennsylvania, like Johnson , would be able to control the employment status of a student athlete in California). [xxxvi] Lastly, because this test focuses on the economic relationship between the parties [xxxvii] (as opposed to traditional definitions of ‘student-athlete’ titles), the test seems to match the FLSA’s purpose of protecting workers that depend economically on their employers, [xxxviii] making it a strong fit to be the benchmark test in college athletics employment cases. However, the “economic realities” test (like any other test) is not without its pitfalls. Analysis of the Johnson test’s factors involves subjective judgment, which may lead to inconsistent outcomes if the factors are weighed differently from court to court. [xxxix] In addition, recognizing student-athletes as employees (even in small numbers) would cause significant changes to the college athletics landscape, serving as a strong challenge to the NCAA’s beloved amateurism model. [xl] Student-athlete employment recognition could also lead to player strikes (or lockouts), [xli] a reduced number of college sports being offered, [xlii] or increased pressures to further commercialize the industry. [xliii] Further, the test seems to lack clarity as to how international players (who largely play under F-1 academic visas) [xliv] would be treated if granted employee status (potentially requiring an employment visa with different restrictions and considerations). [xlv] Lastly, to recognize players as employees would place a significant administrative burden on universities in reclassifying their athletes. Schools would now be faced with concerns over labor laws, taxation, and benefits for a large new subset of employees, which could pose challenges for smaller institutions that typically generate less revenue. [xlvi] These concerns will lead opponents (mainly universities and the NCAA itself) to argue that Johnson is a low bar for determining employment, asking courts to ignore this test in answering student-athlete employment questions. Despite these concerns and potential challenges to the “economic realities” test (including those from Congress), [xlvii] it remains the best approach for both sides in facing future student-athlete employment questions. While Johnson does not offer lofty standards for determining employment, this should not be viewed as a negative: more employee findings will enable the potential for collective bargaining (including potential no-strike and no-lockout clauses, which are used in many collective bargaining agreements, or CBAs), [xlviii] allowing schools and athletes to be clear on their rights and privileges and helping to quell the unrest fueled by the NCAA’s near-constant litigation over player rights since 2021. [xlix] If a school and its unionized players agree to a CBA, future student-athlete claims against their university (or the NCAA) would also be governed by the non-statutory labor exemption (NSLE), [l] thus preventing the types of antitrust claims the NCAA faced in House , [li] O’Bannon , [lii] and Alston , [liii] among others — an especially important notion in light of Justice Kavanaugh’s Alston concurrence, which foreshadowed a willingness for additional college athletics compensation changes in the future. [liv] Even without union status, players who are found to be employees will have their claims governed under labor and employment law (as opposed to antitrust law), [lv] allowing the NCAA and its member institutions to narrow their litigation focus. In addition, while considerations for international players are important, they were not addressed in House , [lvi] so it appears that international student-athletes will need additional litigation/legislation to address their specific needs. However, a lack of international student-athlete protection should not bar a much larger class of athletes from employment status findings by preventing the Johnson test from becoming a nationwide standard. Finally, while potential school administrative challenges in reclassifying student-athletes may be relevant, these same universities eagerly announced new plans and proposals following the news of a potential House settlement, [lvii] so it appears that many institutions are willing and able to handle massive structural changes — so long as they stand to benefit from them. [lviii] The mere fact that employment status will grant additional rights to student-athletes should not allow schools to avoid change in one area only to promote it in another. Johnson should be the mainstay test in determining future questions of student-athlete employment, helping to provide clarity and equitable outcomes for both players and their universities amidst a shifting landscape. [i] Johnson v. NCAA , 108 F.4th 163 (3d Cir. 2023). [ii] Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2016). [iii] Johnson , 108 F.4th at 179–181. [iv] Id. at 177. [v] Id; Conduct Detrimental, 2024 Sports Law Writing Competition , LinkedIn (Oct. 1, 2024), https://www.linkedin.com/posts/conduct-detrimental_its-that-time-of-year-following-the-activity-7246894524596203524-UBYz/?utm_source=share&utm_medium=member_ios. [vi] Johnson , 108 F.4th at 180. [vii] Id . [viii] Furman Football Player Bryce Stanfield Dies 2 Days After Collapsing During Workout , AP (Feb. 9, 2024, 5:50 PM), https://apnews.com/article/furman-626a0edbac66c2d99a5252e177cac1d9 ; Sara Ruberg, Tufts Lacrosse Players Recovering After Navy SEAL-Led Workout Draws Inquiry , New York Times (Sept. 26, 2024), https://www.nytimes.com/2024/09/26/us/tufts-university-lacrosse-team-hospitalized.html . [ix] Declan Gallagher, College Football Star Showing "Remarkable Strength" After Paralyzing Injury , Men's Journal (Aug. 27, 2024, 2:58 PM), https://www.mensjournal.com/news/college-football-jason-pugal-paralyzing-injury ; Jason Hahn , Eric LeGrand, Who Was Paralyzed in a College Football Game 10 Years Ago, Continues to Inspire , People (May 21, 2021, 3:42 PM), https://people.com/sports/eric-legrand-football-paralyzed-coffee-shop/ . [x] Parker Purifoy, NLRB Targets College Athletes’ Busy Schedules in NCAA Trial , Bloomberg Law (Dec. 19, 2023, 2:43 PM), https://news.bloomberglaw.com/daily-labor-report/nlrb-opening-testimony-details-school-ncaa-control-over-players . [xi] Johnson , 108 F.4th at 180. [xii] Id . [xiii] Grant Hughes, College Athletics' 25 Powerhouses Who Produce the Most Revenue Entering 2024 , 247Sports (Jun. 28, 2024, 12:30 AM), https://247sports.com/longformarticle/college-athletics-25-powerhouses-who-produce-the-most-revenue-entering-2024-233312519/ . [xiv] Johnson , 108 F.4th at 169–171, 193. [xv] Jonathan D. Wohlwend, Taking It to the House: Preliminary Approval of Settlement in House v. NCAA Could Bring Significant Changes to College Sports , National Law Review (Oct. 15, 2024), https://natlawreview.com/article/taking-it-house-preliminary-approval-settlement-house-v-ncaa-could-bring . [xvi] Johnson , 108 F.4th at 180. [xvii] Parker Purifoy, NLRB Targets College Athletes’ Busy Schedules in NCAA Trial , Bloomberg Law (Dec. 19, 2023, 2:43 PM), https://news.bloomberglaw.com/daily-labor-report/nlrb-opening-testimony-details-school-ncaa-control-over-players . [xviii] Michelle Brutlag Hosick, All DI Sports Allowed to Hold Team Meetings, Other Nonphysical Activities , NCAA (Apr. 16, 2020, 12:52 PM), https://www.ncaa.org/news/2020/4/16/all-di-sports-allowed-to-hold-team-meetings-other-nonphysical-activities.aspx. [xix] Student Athlete Conduct Expectations , Drexel University (Jul. 24, 2023), https://drexeldragons.com/sports/2023/7/24/student-athlete-conduct-and-expectations . [xx] Amanda Christovich, Hearings Have Concluded in the Pivotal USC Athlete Employment Case. What’s Next? , Front Office Sports (Apr. 19, 2024, 4:10 PM), https://frontofficesports.com/hearings-have-concluded-in-the-pivotal-usc-athlete-employment-case-whats-next/ . [xxi] Johnson , 108 F.4th at 180. [xxii] Kaitlin Broadway, New NCAA Scholarship and Roster Limits for the 2025-26 School Year , NCSA Sports (last visited Nov. 7, 2024), https://www.ncsasports.org/blog/ncaa-scholarship-roster-limits-2024 . [xxiii] Sara Coello, What is NIL in College Sports? How Do Athlete Deals Work? , ESPN (Sept. 26, 2024, 2:16 PM), https://www.espn.com/college-sports/story/_/id/41040485/what-nil-college-sports-how-do-athlete-deals-work ; Top 5 "Pay to Play" Scandals Rocking College Football , The Week (Jan. 8, 2015), https://theweek.com/articles/488252/5-pay-play-scandals-rocking-college-football . [xxiv] Johnson , 108 F.4th at 174. [xxv] Trs. of Dartmouth Coll. & Serv. Emps. Int'l Union, Local 560, N.L.R.B. No. 01-RC-325633, at 18, 2024 NLRB Reg. Dir. Dec. LEXIS 17 (Feb. 5, 2024); Steve Berkowitz, NCAA, Pac-12, USC Trial Begins With NLRB Over Athletes' Employment Status , USA Today (Nov. 8, 2023 2:43 PM), https://www.usatoday.com/story/sports/college/2023/11/07/ncaa-pac-12-usc-student-athlete-misclassification-trial/71483085007/ . [xxvi] Berger v. NCAA , 843 F.3d 285 (7th Cir. 2016); Dawson v. NCAA , 932 F.3d 905 (9th Cir. 2019). [xxvii] NIL Legislation Tracker , Saul Ewing (last visited Nov. 7, 2024), https://www.saul.com/nil-legislation-tracker#:~:text=Student%2Dathletes'%20remedies%20vary%20under,reasonable%20attorneys'%20fees%20and%20costs. [xxviii] Johnson , 108 F.4th at 171–75. [xxix] Id. at 172–174. [xxx] Id. at 180. [xxxi] Id. at 184–85. [xxxii] Id. at 177–180. [xxxiii] Ross Dellenger, Historic House-NCAA Settlement Leaving Hundreds of Olympic Sport Athletes in Peril , Yahoo Sports (Oct. 25, 2024), https://sports.yahoo.com/historic-house-ncaa-settlement-leaving-hundreds-of-olympic-sport-athletes-in-peril-125238713.html . [xxxiv] Johnson , 108 F.4th at 185. [xxxv] Overview , NCAA (last visited Nov. 7, 2024), https://www.ncaa.org/sports/2021/2/16/overview.aspx (highlighting 1,100 member schools and 24 offered sports). [xxxvi] Johnson , 108 F.4th at 183–85. [xxxvii] Id. at 180. [xxxviii] Wages and the Fair Labor Standards Act , Department of Labor (last visited Nov. 7, 2024), https://www.dol.gov/agencies/whd/flsa#:~:text=The%20Fair%20Labor%20Standards%20Act%20(FLSA)%20establishes%20minimum%20wage%2C,%2C%20State%2C%20and%20local%20governments. [xxxix] Johnson , 108 F.4th at 183–84. [xl] Id. at 181–82. [xli] Michael McCann, College Athlete Union Push Arrives as Schools Face Budget Clouds , Sportico (Feb. 26, 2024, 5:55 AM), https://www.sportico.com/law/analysis/2024/college-athletes-employees-challenges-1234768155/ . [xlii] Ross Dellenger, Historic House-NCAA Settlement Leaving Hundreds of Olympic Sport Athletes in Peril , Yahoo Sports (Oct. 25, 2024), https://sports.yahoo.com/historic-house-ncaa-settlement-leaving-hundreds-of-olympic-sport-athletes-in-peril-125238713.html . [xliii] Eben Novy-Williams, RedBird, FSU Trustee Launch College Sports Investment Fund , Sportico (May 22, 2024, 7:00 AM), https://www.sportico.com/business/finance/2024/collegiate-athletic-solutions-redbird-weatherford-college-sports-fund-1234779859/. [xliv] Bryan Dearinger, Name, Image, and Likeness: International Student-Athletes , University of Oregon (last visited Nov. 7, 2024), https://generalcounsel.uoregon.edu/name-image-and-likeness-international-student-athletes#:~:text=Of%20the%20three%20visa%20categories,and%20deserves%20a%20brief%20background. [xlv] Employment-Based Immigrant Visas , U.S. Dept. of State, (last visited Nov. 7, 2024), https://travel.state.gov/content/travel/en/us-visas/immigrate/employment-based-immigrant-visas.html . [xlvi] Dr. Kevin Blue, Limit Spending to Save College Sports , Athletic Director U (last visited Nov. 7, 2024), https://athleticdirectoru.com/articles/limit-spending-to-save-college-sports/#:~:text=At%20the%20Power%20Five%20level,will%20create%20a%20way%20forward. [xlvii] Michael McCann, Congress to Consider Bill Declaring College Athletes Are Not Employees , Sportico (Jun. 12, 2024, 2:38 PM), https://www.sportico.com/law/analysis/2024/ncaa-antitrust-settlement-congress-athletes-employee-debate-1234783946/ ; Ross Dellenger, Why This Could Be the Most Consequential Election in College Sports History , Yahoo Sports (Nov. 4, 2024, 2:57 PM), https://sports.yahoo.com/why-this-could-be-the-most-consequential-election-in-college-sports-history-194605687.html. [xlviii] No Strikes or Lockouts Clauses , Bloomberg Law (last visited Nov. 7, 2024), https://www.bloomberglaw.com/external/document/XDV72MBG000000/labor-relations-overview-no-strikes-or-lockouts-clauses. [xlix] Jake Goidell, The NCAA Antitrust Lawsuits Will Not Pay Off for College Athletes Without a Permanent Players Association , ProMarket (Jul. 17, 2024), https://www.promarket.org/2024/07/17/the-ncaa-antitrust-lawsuits-will-not-pay-off-for-college-athletes-without-a-permanent-players-association/ . [l] Chris Yates, Nonstatutory Labor Antitrust Exemption Risk in Sports Unions , Law360 (Dec. 5, 2022, 4:07 PM), https://www.lw.com/admin/upload/SiteAttachments/Nonstatutory-Labor-Antitrust-Exemption-Risk-In-Sports-Unions.pdf. [li] House v. NCAA , 545 F. Supp. 3d 804 (N.D. Cal. 2021). [lii] O'Bannon v. NCAA , 802 F.3d 1049 (9th Cir. 2018). [liii] NCAA v. Alston , 594 U.S. 69 (2021). [liv] Id. at 107–112. [lv] Matthew Dimick, Conflict of Laws? Tensions Between Antitrust and Labor Law , University of Chicago Law Review (Mar. 4, 2024), https://lawreview.uchicago.edu/sites/default/files/2023-03/04_SYMP_DIMICK.pdf . [lvi] House , 545 F. Supp. 3d 804. [lvii] Caleb Spinner, Incoming AD Ross Bjork Commits Ohio State to NCAA Revenue-Sharing Program , SI (Jun. 20, 2024), https://www.si.com/college/ohiostate/news/incoming-ad-ross-bjork-commits-ohio-state-to-ncaa-revenue-sharing-program-01j0pdq07r90#:~:text=The%20more%20money%20a%20sport,be%20available%20for%20its%20players.&text=Ohio%20State%20will%20be%20permitted,its%20over%201%2C000%20varsity%20athletes ; Mike McDaniel, Power Conferences Set Initial Revenue Sharing Cap Number for College Sports in 2025 , SI (Nov. 1, 2024), https://www.si.com/college/power-conferences-set-initial-revenue-sharing-cap-number-for-college-sports-2025#:~:text=Revenue%20sharing%20across%20college%20sports,from%20Ross%20Dellenger%20of%20Yahoo . [lviii] Chris Kudialis, NIL athletes are thriving. But how do colleges and universities benefit? , Volt (Sept. 18, 2024), https://voltedu.com/marketing-branding/nil-athletes-are-thriving-but-how-do-colleges-and-universities-benefit/#:~:text=%E2%80%9CSo%20more%20schools%20are%20avoiding,higher%20than%20as%20a%20pro ; Troy Brock, College Football Fans Largely Footing the Bill for Colleges and NIL , SI (Nov. 5, 2024), https://www.si.com/fannation/name-image-likeness/nil-news/college-football-fans-largely-footing-the-bill-for-colleges-and-nil.

Jannik Sinner, the currently ranked No. 1 player in the world, has accepted to serve an immediate   three-month suspension  for two positive drugs tests last year.   The suspension will span from February 9 – May 4.  Significantly, Sinner will be able to participate in the next Grand Slam event, the French Open at Roland Garros, which begins on May 19. Sinner will not be able to train until 13 April and will miss the upcoming tournaments at the Miami Open, Indian Wells, Monte Carlo Masters and the Madrid Open. According to the International Tennis Integrity Agency (ITIA),  Sinner tested positive for the prohibited substance clostebol twice in March 2024.  Specifically, Sinner provided an in-competition sample at the ATP Masters 1000 event in Indian Wells, California, USA, on March 10, 2024, which had the presence of low levels of clostebol. A second sample provided eight days later, also tested positive for clostebol at low levels.   Sinner has maintained that the positive tests resulted from a massage  from a trainer who used a substance to treat a cut on his finger.  The ITIA accepted this explanation and found that the violation was not intentional.  The World Anti-Doping Agency (WADA), nonetheless, appealed the ruling before the Court of Arbitration for Sport (CAS) and sought a suspension between one and two years. In a published statement , WADA accepted  Sinner’s explanation and that he did not intend to cheat: “WADA accepts that Mr. Sinner did not intend to cheat, and that his exposure to clostebol did not provide any performance-enhancing benefit and took place without his knowledge as the result of negligence of members of his entourage. However, under the Code and by virtue of CAS precedent, an athlete bears responsibility for the entourage’s negligence. Based on the unique set of facts of this case, a three-month suspension is deemed to be an appropriate outcome.” In light of the agreement reached with Sinner, WADA has formally withdrawn its CAS appeal. Following the announcement of the resolution, The Professional Tennis Players Association (PTPA) strongly criticized  the current anti-doping system, namely, taking issues with the lack of consistency in how cases are handled and the “lack of commitment from the ATP, WTA, Grand Slams, ITIA, and WADA to reform and create a fair and transparent system going forward.”   The Sinner case highlights the impact of actual or perceived bias regarding rules  and may be the trigger for change in professional tennis and its governing bodies and organizations.  Ken Winkler is a shareholder at Berman Fink Van Horn in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA, and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via email at [email protected] .

Lawsuits around Title IX and the evolving Name, Image, and Likeness (NIL) era are not new. However, the combination of these two issues is uncharted territory. With the surge in women’s sports, with the aid of the intense March Madness match ups, the WNBA, and the new Unrivaled league, discussions surrounding the equal opportunities for women’s sports have become more prominent. Currently, the University of Oregon is at the center facing the first known lawsuit that regards Title IX and NIL.   Title IX: A Step Forward   Enacted in 1972, Title IX is a federal law that bans sex discrimination in any educational institution that receives federal funding. This law prohibits sex discrimination in education resulting in institutions providing equal opportunities and treatment for both female and male student-athletes.   While Title IX was a monumental step toward gender equality in education and sports, its application has been uneven, especially when it comes to providing equitable opportunities in athletic programs.   As the NIL landscape grows, gender equity in sports is facing different challenges. With NIL allowing student-athletes to profit from their name, image, and likeness, athletes now have opportunities that have never existed. Though this is monumental, this shift has also exposed the gaps in how male and female athletes are supported, especially when it comes to funding and the support for women to take advantage of these opportunities.   Schroeder v. University of Oregon   Schroeder v. University of Oregon  is believed to be the first lawsuit  that specifically addresses gender inequalities with NIL opportunities for student athletes. On December 1, 2023, 32 female athletes from the beach volleyball team and women’s rowing club files a class action lawsuit alleging that the University of Oregon provided too few scholarships, poor quality gear, and improper facilities. Specifically , beach volleyball members recall instances where the removal of drug paraphernalia and feces from the sand was required before practice. This lawsuit highlights the disparities in funding between men’s and women’s sports. The complaint alleges the spending disparities between the men’s and women’s programs. It is claimed that the university allocated only 15% of its recruiting budget and 25%  of its athletic spending to women, despite female athletes constituting nearly half of the university’s varsity sports roster. A Milestone Scholarship In 2024, the very first scholarship  in beach volleyball history was received by Gwen Fife. This milestone marks progress toward gender equality in sports at the University of Oregon, but it also raises and important questions: Why did it take until 2024 for the first scholarship to be received by a beach volleyball player? While the university celebrates the achievement, it shines a spotlight on the ongoing challenges female athletes face, particularly in sports that have historically received less attention and investment. This delayed recognition brings up important issues about resource allocation and the historical underfunding of women’s sports programs. This achievement is a step towards the right direction. However, this is a reminder that progress in women’s sports is overdue and littered with boundaries and obstacles. Latest Case Updates The University of Oregon recently filed a motion for a protective order to stay discovery, requesting a delay until the court rules on its pending motions to dismiss parts of the case. The university contends that the plaintiffs failed to demonstrate mistreatment based on sex and challenged the statute of limitations, proposing that it should be one year instead of two or six. If the court agrees, the university claims that all of the women’s rowing club plaintiffs' claims should be dismissed. However, U.S. District  Court Judge Michael McShane denied the motion, stating that there was no valid reason to delay discovery and expressing doubt that the plaintiffs would be unable to state a valid claim for relief. This ruling allows the case to move forward. Setting a Precedent for the Future This legal battle could set a precedent for other lawsuits combining Title IX and NIL issues, potentially reshaping the way universities handle gender equity in athletics. As more female athletes capitalize on NIL opportunities, this case could prompt universities to reevaluate their policies and practices in supporting their athletes in navigating this new era. By exposing the disparities in NIL opportunities, this case allows for the publicity and recognition of these issues, pushing the much-needed change. Not only could this case reshape how universities manage NIL, but it could also influence future NCAA rules and regulations. The Hope for Women’s Sports As this lawsuit progresses, there is hope that this will cause a ripple effect of change for women’s sports. Universities must reevaluate how they allocate resources, supports women’s athletics, and sure the compliance of Title IX in this new NIL era. With this case being the first of its kind, there is hope that this will create the landscape to improving equality with women’s sports and aid the in this long-fought battle. The fight for equal treatment in college athletics is far from over. The  Schroeder v. University of Oregon  case is just the beginning of a larger movement that will determine the future of women’s sports in the NIL era. Katherine Vescio is a 1L at University of Gonzaga School of Law. She can be found on LinkedIn .