Navigating NIL Demands and Revenue Sharing in College Athletics Athletic programs across the country are grappling with growing NIL-related demands and the looming implementation of the revenue sharing model expected to take effect next year following final approval of the House settlement.  Concerns of big donor burnout have pushed programs to solicit donations directly from fans and experiment with innovative solutions to fund NIL, such as Tennessee’s “ talent fee ” applied to season tickets and South Carolina’s subscription-based membership  for exclusive access to Gamecock content.   Universities are already adjusting budgets in anticipation of the new revenue-sharing landscape.  One option for savings could come through reducing the amount of funds allocated to a school’s coaching staff—particularly the compensation to its head football coach.  In recent years, coaching compensation has ballooned, with some athletic departments dedicating nearly 20%  of their annual revenue to coaching salaries and benefits.    Last season, former Michigan head coach Jim Harbaugh boldly advocated  for reduced coaching salaries so players could receive a greater share of the revenue.  That sentiment came to fruition last week when Oklahoma State restructured  the contract of long-time football coach Mike Gundy to redistribute the savings to players as revenue sharing.  In a similar vein, Virginia Tech athletic director Whit Babcock recently signaled  a shift in focus, prioritizing resources for athletes over inflated coaching pay.   The Cost of Retaining and Replacing Head Coaches   Increased NIL-related expenses could also increase the tolerance for underperforming head coaches.  While retaining an elite head coach certainly consumes a significant portion of an athletic department’s budget, firing one without cause can be financially crippling.  Historically, frustrated programs have paid exorbitant buyouts  to terminate contracts prematurely when a coach failed to meet the expectations of the program or its fanbase.  The cost of such buyouts—which do not even include the expense of hiring a new head coach—can quickly drain an athletic department’s resources.   As of the end of the 2024 regular season, schools had paid over $36 million in buyout fees to fire 15 head coaches.  But buyouts for high-profile coaches on the hot seat at premier programs, such as Ryan Day at Ohio State ( $37 million ) or Mike Norvell at FSU ( $63 million ), climb into the tens of millions.  Staring down the financial demands necessary to build and retain a competitive roster in the NIL-era, athletic departments and their donors will likely be less willing to absorb these hefty buyouts.   Mitigation Clauses in Coaching Contracts   For programs that elect to terminate a head coach despite the financial burden of doing so, including a robust mitigation clause in coaching contracts can be an important and effective way to limit excess liability.   Under basic principles of contract law, a non-breaching party has a “duty to mitigate” damages, meaning the non-breaching party must make reasonable efforts to minimize the losses suffered from a breach.  Put more simply, a terminated coach must make reasonable efforts to try to find a comparable job, and the payments from that job will reduce the amount the coach’s former program owes.  Despite this general rule, ambiguity surrounding mitigation requirements can lead to disputes.  Universities can protect themselves from unnecessary disputes by including a comprehensive mitigation clause in coaching contracts that defines the respective parties’ obligations and ensures enforceability.    A well-crafted mitigation clause should include, at a minimum, the following key elements:   Clear obligation to mitigate : explicitly state that the non-breaching party has an obligation to reduce his damages, and that the right to receive any liquidated damages under the contract is contingent on his fulfilling that obligation.   Reasonableness standard : state that the actions taken to mitigate should be reasonable, preventing either party from being required to take excessive or impractical steps.   Definition of “comparable employment” : specify what constitutes comparable employment and provide examples of acceptable mitigation actions.   Notification requirement : require the non-breaching party to promptly notify the breaching party upon acceptance of new employment, including compensation details.   Offset provision : clarify that the breaching party’s obligations will be reduced by any compensation the non-breaching party receives from a future employer as a result of his mitigation efforts.   Even the most carefully drafted mitigation clause can be difficult to enforce in practice.  As a result, programs may alternatively consider negotiating a reduced amount of liquidated damages to be paid to the coach in the event of termination without cause, in exchange for waiving the obligation to mitigate damages.  Regardless of the chosen approach, it is crucial for schools to take proactive steps to safeguard their financial interests.   As athletic programs navigate the financial pressures of the NIL-era, strategic approaches to budgeting and contract management, including detailed mitigation clauses or negotiated reductions of liquidated damages, will play a pivotal role in safeguarding their financial health.   Alec McNiff, an attorney licensed to practice in California, is an Associate at a global law firm.  He earned his J.D. from University of Michigan Law School and holds a business degree from University of Southern California.  (Twitter: @Alec_McNiff)

Attention New Yorkers - it's time to hang up those American football jerseys for the season (sorry Jets and Giants fans, you know it's true) and break out the football kits. The first ever soccer-specific stadium in NYC is being built in Willets Point, Queens. And NYCFC isn't the only team using the off-season to pursue new stadium sponsors - the Astros replace long-time sponsor Minute Maid. Houston Astros sign 15-year exclusive stadium naming rights deal with Daikin. Coca-Cola's Minute Maid was the prior sponsor. Financial terms have not been disclosed. Sportico Michael Jordan to become Courtside Ventures' newest investor. Sportico Philadelphia Flyers sign Chevrolet as helmet sponsor. Chevy will also receive signage inside the Wells Fargo Center, and a car display on the concourse outside the arena. NHL NYCFC signs stadium naming rights deal with Etihad Airways. Etihad Park will be NYC's first ever soccer-specific stadium. NYCFC currently plays its home games at Yankee Stadium. The stadium will be entirely privately financed, and will be fully electric. NYCFC Giannis Antetokounmpo launches VC fund Build Your Legacy Ventures. The fund will focus on sports, entertainment and technology, and has already invested in women's 3-on-3 basketball league Unrivaled. ESPN Formula 1 to add General Motors / Cadillac team in 2026. F1 Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

Among the many questions regarding what the world will look like under a second Trump presidency, the simplest one to answer is whether the sports world will be impacted (spoiler alert: it will be). There is no doubt that after four years of little interconnectedness between the sports world and the Biden administration (aside from the usual championship team’s visit), the next Trump administration presents an opportunity to mix sports and politics again, for better or worse.   During the first Trump administration the sports world was vocal about his administration, but otherwise untouched by the White House. We saw teams decline invitations to visit the White House (the 2016 UNC Men’s basketball team for example), while many others were not invited entirely (the 2017 Minnesota Lynx, 2017 and 2018 Golden State Warriors). Athletes were more vocal about their political beliefs, leading to a viral Fox News host’s rejection of LeBron James, suggesting he “shut up and dribble.” Like many workplaces with their employees, certain teams embraced their athletes speaking out, while others tried to persuade their athletes to focus on the game and leave politics aside.   We can expect more of the same for the next four years as athletes continue to use social media as their soap box to sound off against a political figure they may disagree with and his policies. We can also expect supporters of Trump in sports to become more vocal following an election in which he not only won the electoral college, but also the popular vote for the first time in his three campaigns. Broncos strong safety T.J. Ward tweeted in support of Trump immediately after Fox News announced Trump was projected to win the election. Harrison Butker was also supportive of Trump during his campaign and Bryson DeChambeau and Dana White appeared with Trump onstage at his rallies.   However, a second Trump administration is also likely to have a more direct impact on the sports world. Rory McIlroy, announced he thought Trump had the ability to help finalize a deal between LIV Golf and the PGA that has been pending since mid-2023. Trump himself has stated that he was interested in seeing one tour with all the top players and has close connections with both the PGA and LIV Golf.   The NCAA will likely be the biggest sports winner of Trump’s second term and Republican’s control of the Senate. The NCAA has been trying for years to get Congress to pass a law that will prevent student-athletes from being deemed employees as well as giving the NCAA antitrust exemption . Ted Cruz, one of the NCAA’s biggest supporters in D.C., will likely head the Senate Commerce Committee next year. He has said college sports are a major priority for him.   Yet to be seen is how Trump’s deportation initiatives will impact other nation’s participation in the upcoming 2026 World Cup, where the United States will host alongside Mexico and Canada. Will we see Mexico or other Latin-American countries protest? Will they refuse to play entirely?   Lastly, a major topic of the race for the White House was Trans-rights. The next four years will be dominated by a Republican Executive branch, Legislative branch, and a Conservative majority in the Supreme Court. Will we see more laws focused on gender-identity and sports? Will the courts be packed with fights over incoming legislation in states that mirror Florida’s Transgender Athlete Bill?   One thing is clear. If you believe the next four years will be a turning point for many parts of our society, you can certainly include sports in the conversation.   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 is thinking about the intersection of sports and law and when the Knicks or Rangers will finally win a championship.

Everybody clear your Intuit Dome-style sneaker shelves - sneaker deals are on the rise, from the pros to college athletes.  School is officially back in session and NIL deals are booming, and MLB players aren't the only ones getting a helmet make-over this fall - the New York Islanders land a new helmet sponsor while concurrently upgrading their arena technology.  Fanatics partners with lululemon to create licensed NHL logowear. Sportico University of Miami QB Cam Ward signs NIL deal with ADIDAS. The deal is said to cover both footwear and apparel. Bleacher Report Angel Reese extends her partnership with Reebok. The extension includes a signature shoe, targeted for release in 2026. Sports Illustrated The New York Islanders and UBS Arena name Viam the "official AI technology partner" of the team and arena. Viam also became the Islanders' hemet sponsor as part of the deal. Sportico Rutgers basketball guard Dylan Harper signs NIL deal with Red Bull. 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 .

After the Supreme Court loosened the NCAA’s restrictions on student-athlete compensation, [1] college boosters created a billion-dollar industry centered around compensating student-athletes for the use of their name, image, and likeness (“NIL”) in endorsements and advertisements. [2]  Boosters accomplished this feat using “NIL collectives”—“entities affiliated with, yet independent from, a college or university” who ostensibly seek to “support NIL opportunities for student athletes.” [3]  In essence, NIL collectives accumulate “donations [that they then] distribute to college athletes” [4] through “upfront amounts, monthly payments, and other incentives” in exchange for the athlete’s name, image, and likeness. [5]  Since 2021, NIL collectives have secured “upwards of millions of dollars” for some athletes through these NIL agreements. [6]  Key to this swift success is that “many [NIL collectives] apply for, and easily receive, [501(c)(3)] tax-exempt status from the IRS” in order “[t]o encourage donations to collectives.” [7]   How NIL Collectives Justify and Use 501(c)(3) Status   NIL collectives justify their 501(c)(3) tax-exempt status on the basis that they are charitably driven. Specifically, tax-exempt NIL collectives insist that they compensate athletes only so that the athletes’ NILs can be used for charitable purposes. [8]  For example, athletes might autograph merchandise or appear in promotional content for charities with which the NIL collective partnered. [9]  In this sense, tax-exempt NIL collectives maintain that they primarily support charities, not the student-athlete or the NIL collective’s own financial gain. [10]  Although NIL collectives use their charitable status to attract large contributions from wealthy donors, who in turn can take a charitable tax deduction on such contributions, tax-exempt NIL collectives insist that they “promote philanthropy.” [11] That these large, tax deducted contributions from donors all, or substantially all, get paid to athletes—after the NIL collective takes a cut [12] —is beside the point to these booster-led organizations. But in reality, “collectives are simply collecting the funds and passing them through to the student-athletes.” [13] The supposed charitable purpose claimed by the NIL collective is secondary to “getting actual funds into the hands of student-athletes who compete[,] [which is] the ultimate goal.” [14] Thus, NIL collectives have to reckon with the question, “What is charitable about paying college players?” [15] Framed in this manner, it becomes clear that “the collective model is a roundabout way for schools and their boosters to get money into athletes’ hands without handing the cash directly to them.” [16]  Far from fulfilling a non-exempt purpose, NIL collectives “are all money laundering” and acting as “legal buffer[s]” against the NCAA and IRS. [17] As one commentator bluntly surmised, “[Collectives] ae using [non-profit status] to get tax writeoffs to pay student-athletes. Unless you are OK with money laundering, you can’t pay athletes $20–30,000 a year through a non-profit.” [18]   Response from the IRS   The IRS agrees. In a memo from the Deputy Associate Chief Counsel, the IRS took the position that many supposedly tax-exempt NIL collectives are “operating for a substantial nonexempt purpose—serving the private interests of student-athletes.” [19] The memo emphasizes that a valid non-profit organization “engages primarily in activities that further an exempt purpose” and in “public rather than private interests.” [20] Noting that the student-athlete’s private compensation “is not a byproduct but is rather a fundamental part of a nonprofit NIL collective’s activities,” the memo declares that “helping student-athletes monetize their NIL is a substantial nonexempt purpose of many nonprofit NIL collectives.” [21] The IRS has echoed such conclusions in several subsequent private letter rulings that have denied 501(c)(3) status to NIL collectives. [22] Some tax-exempt NIL collectives have shut down since the memo’s release and the IRS’s sporadic denial of 501(c)(3) applications, even as others still purport to operate as non-profits. [23] The result is a “complicated, often murky” [24] legal landscape that has left the NIL industry in a no-man’s land. [25]  Clearly, binding law is needed to prevent continued abuse of tax-exempt status while providing unambiguous tax structuring guidance for NIL collectives.   A Path Forward In 2022, Senators John Thune and Ben Cardin introduced the bipartisan Athlete Opportunity and Taxpayer Integrity Act, which would bar 501(c)(3) tax exemptions for NIL collectives nationwide. [26] Passing this law would expedite the process of bringing outstanding nonprofit NIL collectives to heel in light of the NCAA’s hesitation to clarify its guidelines. The bill eschews the IRS’s tedious case-by-case testing of each NIL collective and strips tax-exempt status from organizations that primarily exist to shunt money to college athletes—as all NIL collectives do. As summarized by Senator Thune, “[t]his common-sense legislation would prohibit these entities from inappropriately using NIL agreements to reduce their own tax obligations.” [27] The NIL industry has emerged as a highly lucrative and unregulated enterprise. NIL collectives have successfully gamed the NCAA’s and IRS’s insufficient guidelines to undeservedly claim non-profit status for the purpose of paying college athletes with tax-free dollars. To prevent continued abuse and provide legal clarity for this burgeoning industry going forward, Congress should pass the Athlete Opportunity and Taxpayer Integrity Act and deny tax-exempt status to all NIL collectives.     Michael Wahl is a third-year honors student at Regent University School of Law. He is a Senior Editor of the Regent University Law Review and an Executive Board member of the Alternative Dispute Resolution Board. You can find him on LinkedIn here .             References: [1]   See NCAA v. Alston, 594 U.S. 69 (2021). [2]  Cheyanne Mumphrey et al., Money in NCAA Sports Has Changed Life For a Few. For Many Athletes, College Degree Remains the Prize , Assoc. Press (Nov. 8, 2024), https://apnews.com/article/ncaa-sports-nil-athlete-pay-882646e1cfab9b093e1f2f1ab6f15d7f . [3]  Tim Shaw, The Long Read: Tax Implications of College Collectives, NIL Deals , Thomas Reuters (Oct. 6, 2022),   https://tax.thomsonreuters.com/news/the-long-read-tax-implications-of-college-collectives-nil-deals/ . [4]  Ross Dellenger, IRS Says Donations Made to Nonprofit NIL Collectives Are Not Tax Exempt , Sports Illustrated (June 9, 2023), https://www.si.com/college/2023/06/10/irs-name-image-likeness-collectives-not-tax-exempt . [5]  Shaw, supra note 3. [6]   Id . [7]   Id .; see I.R.C. § 501(c)(3). [8]  James Beavers, Most NIL Collectives Do Not Further a Sec. 501(c)(3) Exempt Purpose , Tax Adviser (Sep. 1, 2023), https://www.thetaxadviser.com/issues/2023/sep/most-nil-collectives-do-not-further-a-sec-501c3-exempt-purpose.html . [9]  Thalia Beaty, Unintended Consequences: How NIL in College Sports Has Raised Questions About Nonprofits , Assoc. Press (July 29, 2022), https://www.ap.org/news-highlights/spotlights/2024/unintended-consequences-how-nil-in-college-sports-has-raised-questions-about-nonprofits/ .   [10]   See id . [11]   Id .; see I.R.C. § 170. [12]  Beaty, supra  note 9. [13]  Shaw, supra note 3. [14]   Id . [15]  Beaty,  supra note   9. [16]  Ross Dellenger, Inside the NIL Battle That is Splintering the SEC: ‘We’re All Money Laundering’ , Sports Illustrated (May 30, 2023), https://www.si.com/college/2023/05/30/sec-meetings-nil-athlete-employment-collectives-hot-topics . [17]   Id . [18]   Id . [19]  Memorandum from Lynne A. Camillo, Deputy Assoc. Chief Couns., to Stephen A. Martin & Lynn Brinkley, Whether Operation of an NIL Collective Furthers an Exempt Purpose Under Section 501(c)(3) (May 23, 2023). [20]   Id . [21]   Id . [22]   See John McKinley, NIL Organization Denied Tax-Exempt Status , J. Accountancy (Nov. 1, 2024), https://www.journalofaccountancy.com/issues/2024/nov/nil-organization-denied-tax-exempt-status.html (citing PLR 202428008). [23]  Beaty, supra  note 9. [24]   Id . [25]  Dellenger, supra note 11. [26]  S.4969, 117th Cong. (2022). [27]  Shaw, supra  note 3.

With the House settlement being granted preliminary approval [i] earlier this month, many have begun to speculate about what name, image, and likeness (or NIL) rights will look like in practice for college athletes across the country. [ii] With the proposed settlement poised to shape the future of NIL in college athletics, it still faces several hurdles before becoming official, including a deadline for athletes to object or opt-out in January 2025 and a fairness hearing to be held by Judge Wilken in April 2025. [iii] In the meantime, some unlikely candidates have highlighted areas of concern within the NIL space that could potentially undermine the system as a whole: an NBA superstar and a two-star recruit who became an overnight sensation. While the players’ backgrounds could not be more different, their stories expose a common truth: an NIL system that does not offer athletes significant safeguards and protections is one that fails to adequately empower players.   Just last week, San Antonio Spurs star Victor Wembanyama sued a man in Texas for the unapproved use of his NIL to sell a wide variety of goods. [iv] According to the complaint, the defendant filed trademark applications for “El Wemby” and “Wemby’s World” in August of 2023. The defendant also registered a website in the name of the French talent, which sells items involving Wembanyama’s name, image, and likeness. Wembanyama requested a jury trial and monetary damages that reflect the harm to his NIL as part of his complaint.   These issues are not unique to the NBA, either. Fresh off a stunning upset of Alabama, Vanderbilt quarterback Diego Pavia, a former two-star recruit and juco transfer, took to X to tell potential partners to “hit [his] [a]gent” for NIL inquiries, ending his message with his now-famous line, “Vandy we turnt.” [v] Then, after a company named BreakingT quoted his tweet to promote their shirts, which bear Pavia’s image and viral quote, Pavia responded in a now-deleted tweet that dissuaded fans from ordering merchandise from BreakingT, claiming they did not have a deal in place. The company replied, stating that their shirts were approved and licensed by both Pavia and Vanderbilt via OneTeam Partners. OneTeam offers partner schools (and their players) the ability to enter into “Group Licensing Agreements,” which allow OneTeam to grant other entities and persons the ability to use a player’s NIL, negotiating “directly with brands on behalf of athletes to optimize collective value.” [vi] According to sources close to the situation, Pavia had signed such a deal. [vii] But Pavia is far from alone - OneTeam’s site boasts over 11,000 athlete opt-ins as part of their initiative with EA College Football, which offered players $600 and a copy of the game to sign their NIL rights over to EA Sports. [viii]   Assume for a second that (as in Wembanyama’s suit) Pavia was correct and BreakingT was improperly using his NIL to promote their products. As will likely be shown in the case of the Spurs superstar (should it proceed to trial), the calculation of damages to a celebrity’s NIL primarily involves questions as to the fair market value of their NIL, treating the parties as if they were in a hypothetical negotiation. [ix] However, a jury may also look at similar transactions involving the person in question in order to determine the fair market value of their NIL. [x] This may not be a problem for Wembanyama, who has been viewed as a superstar since entering the NBA and has signed sponsorships accordingly, with his reported total income sitting at over $901 million across 72 deals. [xi] But how will it impact lesser-known athletes, especially those who, like Pavia, signed group licensing agreements? It is easy to see how juries could be swayed by smaller group licensing deals (like the $600 EA Sports agreement) in determining the fair market value of a given athlete’s NIL, ultimately leaving players with a smaller amount of recoverable damages if they were to bring a claim of illegal NIL use against a company. This could pose a huge problem for group licensing agreement athletes, as their smaller NIL deals now could serve to dilute the fair market value of damages claims down the line when they have a viral moment that accelerates their fame.   So how do players, particularly college athletes, protect themselves in this unmarked landscape? First and foremost, athletes should meet with an attorney before signing any agreement, particularly a group licensing agreement. Consulting with someone who has contractual expertise will aid players in understanding the rights they are signing away and the potential outcomes of a given agreement. While some schools check in with their athletes before a given NIL product goes live, [xii] players at other programs may not be so lucky. A lack of clarity around the extent of a player’s NIL licensing leads to situations like Pavia’s, where athletes are unaware that their rights are in use on an item and act to impede its sale, undermining the NIL system entirely. Second, prominent players should seek to negotiate group licensing agreements or avoid them entirely, as opposed to signing them under the assumption that they are fair deals. While group licensing may advantage players who lack name recognition (as they offer a flat rate to all members of a given partner institution), more famous players can spurn these deals in favor of pricier agreements, as was seen when Arch Manning was paid nearly $60,000 to appear in EA’s “College Football 25.” [xiii] Wembanyama’s case offers further insight into the advantages of athletes holding out for larger NIL deals, as his luxurious sponsorships will help to buoy the Frenchman’s damages claim. Thus, it appears that adequate representation and fierce negotiation will be required for players to successfully traverse the current NIL space. It will be fascinating to see whether a finalized House settlement (or future NIL litigation) chooses to address issues with group licensing agreements or if they continue to leave them up to players to navigate.   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 .   [i] House v. NCAA , "Revised Order Granting Plaintiffs' Motion for Preliminary Settlement Approval as Modified" (Oct. 7, 2024) . [ii] Justin Williams, "House v. NCAA Settlement Granted Preliminary Approval, Bringing New Financial Model Closer" The Athletic (Oct. 7, 2024) .  [iii] Michael McCann, "NCAA House Settlement Preliminarily Approved" Sportico (Oct. 7, 2024) .  [iv] Michael McCann, "Wembanyama Sues Texas Man for Illegally Profiting From His NIL" Sportico (Oct. 16, 2024) .  [v] X , Diego Pavia . [vi] "College Group Licensing Program" OneTeam Partners . [vii] Margaret Fleming, "Vanderbilt QB Disputes Licensed NIL Apparel: ‘This Is Not Me’" Front Office Sports (Oct. 15, 2024) . [viii]   Levi Strange, "OneTeam x EA College Football" OneTeam Partners (May 8, 2024) . [ix] On Davis v. The Gap, Inc. , 246 F.3d 152, 167 (2d Cir. 2001). [x] Safka Holdings, LLC v. iPlay, Inc. , 42 F. Supp. 3d 488, 493 (S.D.N.Y 2013). [xi] Tom Subak-Sharpe, "The Commercial Potential of Victor Wembanyama" SportCal (Sept. 5, 2023) . [xii] X , Ben Chase . [xiii] James Parks "How Much Arch Manning Was Paid to Promote College Football 25, Per Report" SI (Jul. 10, 2024) .

If you're anything like me, sports logos are burned into your brain. You see certain colors, a design, or even a single letter, and you immediately know the team. That’s how powerful sports branding can be. But have you ever wondered if those logos are actually famous outside the sports world? I thought certain sports teams and logos were common knowledge until University of Miami v. Caneup LLP. The University of Miami (Miami) has a trademark registration for their orange and green “U” symbol and the word “Canes.” Caneup, a Florida based company started in 2014 and applied to register the mark in 2021.  Miami sued for trademark infringement because they felt that CaneUp was trying to confuse people into thinking their products were associated with the school. (McCann, 2024). Miami also said, Caneup’s CEO admitted in “prior communications” that he had spent “years” working on the Caneup design with the university in mind, a point the school says shows an intentional attempt to infringe. (McCann, 2024). Due to the similarity with the phrase “Canes” and Caneup, the court stated, Caneup appearing on products “is likely to cause consumer confusion” given that the word “Canes” and “Caneup” are “predominantly made up of the word ‘Cane’ which to sports fans at least is heavily and instantly associated with the university. (McCann,2024). Caneup was held liable for trademark infringement. What’s really interesting, though, is that Miami also argued their logo was being diluted.  The court found Caneup was NOT liable for the dilution claim. Turns out, just because team’s logo is famous for sports fans, doesn’t mean it’s "famous enough" in the eyes of the law. Let’s dive in and figure out what exactly trademark dilution is, how to know if you are famous enough, and why Miami lost the trademark dilution part of the case. WHAT IS TRADEMARK DILUTION ANYWAY? A trademark is a word, symbol, or design that identifies and distinguishes the source of goods or services from others. It helps protect brand names and logos used in commerce from being copied or misused. This way consumers are not confused between products or services. Typically, courts will look at whether there is a “likelihood of confusion” between your trademark and the other mark. That is, whether the consumer would likely be confused as to who is the source of the goods or services. Trademark dilution is not just confusion; it’s about protecting the most famous brands’ distinctiveness. The brands do not want a lesser brand tarnishing their trademark. Think of it like this, trademark dilution is when a famous mark, like Barbie, loses its distinctiveness because other brands start to use a similar name, even if no one is confused about who’s who. If another brand starts to use the name Barbie for computers, toys and computers are so unrelated that consumers are unlikely to believe Barbie computers come from the toy brand. The Barbie mark would then become less special, less unique, and less recognizable over time. Trademark dilution protects marks that are so well-known, highly reputable, or famous that jurisdictions have decided they deserve protection whether their unauthorized use is likely to cause consumer confusion. There are two types of trademark dilution: Blurring : This happens when the distinctiveness of a famous mark is impaired by association with another similar mark or trade name. Imagine if a small company started using a swoosh-like logo. Even if you know it's not Nike, it still takes away from the swoosh’s uniqueness. See 15 U.S.C. § 1125(c)(2)(B). Tarnishment : This occurs when the reputation of a famous mark is harmed through association with another similar mark or trade name. For example, if a company were to use a famous logo in a negative or inappropriate context, it could tarnish the original brand’s image. See 15 U.S.C. § 1125(c)(2)(C). WHY NO DILUTION FOR MIAMI? Take the University of Texas’ longhorn logo, for example. It’s just as iconic or possibly more iconic than Miami’s logo in college football. In a 2008 case, a federal judge in Texas ruled the logo had niche fame but not wide recognition by the American consuming public. Texas football is practically a religion in some parts of the county and commonly plays on national television. Still, it still was not enough recognition. Judge Marty Fulgueira Elfenbein, who presided over the case here, followed the same route as the University of Texas’ case. Judge Elfenbein made it clear that for a mark to claim dilution protection, it needs to be famous among the general public, not just within a niche community like sports. She felt Miami’s "U" was not similar to brands like Kodak and Buick where they are recognizable even to people who could care less about photography or cars. (McCann, 2024). And while Miami’s logo is beloved by college football fans, it doesn’t have that same level of universal fame.   HOW TO TRULY KNOW WHAT “FAME” IS? So why didn’t Miami’s logo qualify as “famous enough” for dilution? The answer lies in trademark law itself. According to the Federal Trademark Dilution Act (FTDA) dilution only applies to marks that are truly famous across the general population. To establish a claim of dilution, the mark must have become famous before use of the allegedly diluting mark or trade name began. The law, as explained in Section 1125(c) of the FTDA, sets a high bar for what counts as a famous mark. To be eligible for dilution protection, a mark must be widely recognized by the general public. Factors for determining whether a mark possesses the necessary degree of recognition include: 1.     The duration, extent, and geographic reach of advertising and publicity of the mark 2.     The amount, volume, and geographic extent of sales of goods or services offered under the mark and 3.     Extent of actual recognition of the mark. See 15 U.S.C. § 1125(c)(2)(A). All the factors are based on judicial discretion. There is no exact number a brand needs to reach that will automatically give them the ultimate fame title. Courts must gather and weigh all relevant evidence. The findings will vary case to case. There are key findings that can be shown in each factor that could help their case. For the first factor, it would be helpful for brands to show the times where they had nationwide advertising in magazines, billboards, television, etc. The longer and more extensive the advertising efforts, the more likely the mark will be deemed famous. If a brand can establish that it publicized its mark through press releases, conferences, and sponsorships that could help as well. The second factor is most likely the best to visually see how famous they are. Numbers never lie and to see the sales and volume of downloads of an app or visitors to a website could be eye opening. As one district court has explained, “courts generally have limited famous marks to those that receive multimillion-dollar advertising budgets, generate hundreds of millions of dollars in sales annually, and are almost universally recognized by the general public.” (Jacobs-Meadway, 2019). The numbers pertaining to a brand are not everything when it comes to fame, but it can bolster their cause. The court wants to know how widely known the brand is to the general public. This is done in two ways; (1) third party publicity and (2) consumer surveys. Third party publicity is unsolicited and extensive media attention such as associations of a mark with celebrities, industry specific awards, television shows referencing the brand. The court looks at three potential issues with fame consumer surveys. (1) Survey universe (who constitutes the general consuming public?) (2) Level of recognition (what percentage of recognition is necessary for a mark to be widely recognized?) (3) Timing of survey (during what time period must fame be measured?). (Jacobs-Meadway, 2019). Consumer surveys are not required but based on the numbers can help or even hurt the evidence for fame. Miami’s logo didn’t qualify as "famous enough" for dilution purposes because the Federal Trademark Dilution Act (FTDA), reserves this protection for marks that are widely recognized by the general public, not just a niche audience like sports fans. To establish a dilution claim, the mark must have achieved fame before the use of the allegedly infringing mark, and courts must consider several factors. There’s no magic number that guarantees a mark is famous, instead courts must weigh all the evidence, making it challenging to predict whether a brand is truly famous enough for dilution protection. WHAT UNIVERSITIES CAN LEARN FROM THIS? At the end of the day, the University of Miami v. Caneup case shows us that fame in sports doesn’t always translate to real fame. As much as we love our teams, and as instantly recognizable as their logos may seem on game day, they might not be famous enough to win a trademark dilution case. It’s a reminder that the sports world is tiny compared to the world where goliath companies have branded themselves. When it comes to trademark dilution it’s not just about being known in your community; it’s about being famous everywhere. Cited Jacobs-Meadway, R. (2019, August 26). Proving Fame for Trademark Dilution Claims . Retrieved from Lexis Nexis : https://www.lexisnexis.com/community/insights/legal/practical-guidance-journal/b/pa/posts/proving-fame-for-trademark-dilution-claims?srsltid=AfmBOopIcrkuvv_DtUsWMW4aBePLBX4L_4zJUtX6fNV6xPaYB5UzfrFT McCann, M. (2024, October 20). HOW FAMOUS IS MIAMI’S CANE AND U? JUDGE SAYS NOT NATIONALLY SO . Retrieved from Sportico : https://www.sportico.com/law/analysis/2024/miami-sacks-caneup-1234801775/   Chris D'Avanzo can be followed on (X) @chrisdavanzo

In the five days between the NLCS and World Series, it would have been fair to assume that MLB superstar Shohei Ohtani would finally be out of the spotlight for a few days amidst his historic first season with the Dodgers. However, that couldn’t be further from the truth as Ohtani shattered yet another record this past Tuesday. The baseball from Ohtani’s 50th home run (which made him the first MLB player ever with 50 stolen bases and 50 home runs in the same season) was sold by Goldin Auctions for $4.392 million, breaking the previous record price for any sports ball sold at auction. [i] Founder Ken Goldin noted that the auction house “received bids from around the world, a testament to the significance of this iconic collectible and Ohtani's impact on sports.” [ii] Before Ohtani, the previous top sale was Mark McGwire’s 70th home run ball from 1998 (which also broke an MLB record for most home runs in a season), purchased by Todd McFarlane for $3 million in 1999. [iii] Perhaps even more notably, the profits from this historic auction cannot be given to their rightful seller, as the true owner of the 50/50 ball is yet to be determined.   Indeed, a Florida judge is now trying to decide the proper owner of Ohtani’s 50/50 baseball. After Ohtani hit his record-setting home run, eighteen-year-old Max Matus filed a lawsuit against Christian Zacek (who left the stadium with the ball), claiming that Matus was first to “firmly and completely grab the ball . . . while it was on the ground, successfully obtaining possession of the 50/50 ball.” [iv] Matus further alleged that Zacek (who was identified as Chris Belanski in initial filings) “trapped [Matus’] arm in between his legs and wrangled the 50/50 Ball out of [Matus’] left hand. . . . wrongfully and forcefully obtain[ing] control of the ball.” While a third fan, Joseph Davidov, also filed a suit claiming ownership, video evidence shows him congratulating Zacek once he had possession of the ball. [v] As it is unlikely that a court will look kindly upon such clear evidence of non-possession, it does not appear that Davidov has a strong claim in this case, meaning the judge will ultimately be deciding whether Matus or Zacek owns the ball.    But if ownership of the baseball was challenged, how could it be auctioned? The early stages of litigation over the 50/50 ball highlighted the complications that can arise when an item that is subject to an ongoing ownership dispute is slated to be sold. Zacek initially secured a deal with Goldin Auctions to sell the memorabilia, but Matus asked the court for a temporary injunction in his lawsuit, claiming that he wanted to keep the ball as a keepsake and would suffer irreparable harm if the item were to be sold (as it is a unique and one-of-a-kind piece of history). [vi] The court declined to grant the temporary injunction but set an October 10th date for an evidentiary hearing and ordered that the ball could not be sold before that day. [vii] Then, on October 7th, the parties told the court that they had an agreement in place to allow the auction of the baseball to occur prior to the conclusion of litigation, resulting in the cancellation of the evidentiary hearing. [viii] Goldin Auctions released a statement that the parties "have agreed to convey any and all of their ownership interests in the 50/50 ball to the winner of the auction, giving the winner full assurance that they will receive free and clear title to the 50/50 ball." [ix]   So, who will ultimately collect this record-setting sale price for Ohtani’s historic ball? While the case is still ongoing, prior litigation in this area may be insightful. In Popov v. Hayashi , a famed property law case surrounding the ownership of Barry Bonds’ record-setting 73rd home run in a single season, the court found that initial possession of an item (or otherwise completing a significant portion of the steps to obtain possession of an item) will give a party a legitimate claim of pre-possessory interest in the item, even if it is later torn away in a scrum due to the unlawful conduct of another person. [x] The court in Popov ultimately decided that both parties had an equal interest in the baseball, dictating a 50/50 revenue split of the proceeds from the ball’s sale. Applying these arguments to the Ohtani case, Matus will likely say that Zacek wrongfully interfered with him by wrestling the ball away. Matus may also argue that Zacek wrongfully converted the Ohtani ball into his own property and that Zacek will be unjustly enriched if he is found to be entitled to the auction proceeds. These premises are supported by law, as stadium rules (in this case, Miami’s LoanDepot Park) apply, and Florida tort law recognizes claims of wrongful interference with personal property.   On the other side, Zacek will likely argue that Matus never had full possession of the ball or, in the alternative, that Zacek was the party who had continuous possession of the item. This argument is mainly rooted in logic, as someone who touches a ball hit into the stands (a common occurrence at baseball games) is not automatically entitled to ownership. In Ohtani’s home country of Japan, another one of his home run balls (albeit one of less historical significance) was even passed around the entire stadium from fan to fan. [xi] Zacek could also attempt to argue that a decision in favor of Matus would mean that the court is disrupting the norm of balls hit into the stands at games, where the fan who comes up with the ball is commonly the owner. However, other fans often give baseballs to young children sitting nearby, potentially disputing this notion. [xii] Further, while the Popov court noted the uncertainty of defining clear possession in a scrum, this case may be different, as there is clear video evidence of the fight over Ohtani’s home run ball (unlike the scramble in Popov ). [xiii] Despite potential arguments by Zacek to the contrary, actual dispossession should be considered as distinct from a common scrum. If prior case law is to dictate the outcome of the dispute here, the ball may be the only thing that is 50/50 – not the auction revenue split between the plaintiffs. Under Popov standards, it seems that Matus is the rightful owner of the ball and should recover the auction proceeds. However, the court may also decide in line with the Popov outcome and direct the parties to split the profits. In either event, given his attempt to stop the auction in favor of retaining ownership of the ball, it is unclear if Matus will be fully satisfied with this outcome, even with the hefty award.   Fans may also wonder why these parties didn’t try to return the ball to Ohtani, as has been done with other record-breaking baseballs (like the baseballs used for the 3000th hits of both Derek Jeter and Alex Rodriguez). [xiv] In those instances, MLB teams have been quick to make deals with fans to return historical balls to the player associated with a given achievement, but the Dodgers were unsuccessful in doing the same here. According to one report, the Dodgers offered Zacek $300,000 for the ball while he was still in the stadium, a price that he declined. [xv] In essence, this was Zacek exercising his finder’s rights, as Popov viewed baseballs as being owned by the MLB prior to the time that they were hit but intentionally abandoned property once batted into the stands, making the new possessor of the ball its rightful owner. [xvi] While initial reports speculated that the ball would lose its value once Zacek left the stadium, as he could have switched the ball out for a fake, the MLB placed special markings on baseballs pitched to Ohtani once he hit his 49th home run, removing any doubt over the true identity of the historic ball. [xvii] Since Zacek declined the team’s offer for the ball, the Dodgers (and Ohtani by extension) had no claim over this piece of history, which was easily authenticated and ultimately sold at auction. Additionally, Matus’ potential claim on the baseball (discussed above) would have potentially invalidated any deal brokered between Zacek and the Dodgers, as Matus never had the chance to consent to such an offer.   While the lost profits from the record-breaking sale (or the sentimental value of the baseball) may potentially not mean much to a $700 million superstar, [xviii] fans (and the parties) will eagerly await the outcome of this case to see who collects the profits from Ohtani’s historic baseball. In the meantime, the Japanese slugger will look to lead the Dodgers to their second World Series title in four seasons as his team faces off against the Yankees in Ohtani’s first Fall Classic. But if Ohtani is to continue his season of big moments (and bigger home runs), this may not be the last time we see his name in headlines involving auctions and property litigation.   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 . [i] Dan Hajducky, "Dodgers Star Shohei Ohtani's 50/50 Ball Fetches $4.39M at Auction" ESPN (Oct. 23, 2024) .   [ii] Id . [iii] Id . [iv] Associated Press, "Ohtani's Historic 50-50 Ball Sells at Auction for Nearly $4.4M Amid Ongoing Dispute Over Ownership" US News (Oct. 23, 2024) .   [v] Chuck Schilken, "Who Does Shohei Ohtani’s 50th Home Run Ball Belong to? Another Fan Files a Lawsuit Over It" LA Times (Sept. 30, 2024) ;  Dan Hajducky, "Who Owns Ohtani 50/50 Home Run Ball? Legal Experts Weigh In" ESPN (Oct. 3, 2024) .   [vi] Associated Press, "Online Bidding for Ohtani's Historic 50-50 Ball Up to $1.8M as Litigation for Proceeds Continues" The Score (Oct. 18, 2024) ; Dan Hajducky, "Judge Denies Attempt to Halt Auction of Ohtani 50/50 Ball" ESPN (Sept. 26, 2024) .   [vii] Id . [viii] Dan Hajducky, "Auction of Shohei Ohtani 50/50 Ball to Proceed Amid Legal Dispute" ESPN (Oct. 7, 2024) .   [ix] Id. [x] Popov v. Hayashi , 2002 Cal. Super. LEXIS 5206 (Ca. Sup. Ct. 2002). [xi] Michael Clair, "Japanese Fans -- Politely! -- Pass Around Ohtani HR Ball" MLB.com (Mar. 12, 2023) . [xii] "Phillies Fan Catches Foul Ball, Gives it to Young Fan" MLB.com (Oct. 24, 2024) .   [xiii] Popov , 2002 Cal. Super. LEXIS 5206 at *5–8; ABC News, "Fans Scramble to Grab Shohei Ohtani's History-Making 50th Home-Run Ball" YouTube (Sept. 20, 2024) . [xiv] Grace Raynor, "Fan Presents 3,000th Hit Ball to A-Rod" MLB.com (Jul. 3, 2015) ; John Goff, "Jeter Fan Spurns $250K Collectible, Gives Back Milestone Ball" Investment News (May 31, 2011) . [xv] Andy Slater, X (Sept. 20, 2024) . [xvi] Popov , 2002 Cal. Super. LEXIS 5206 at *8. [xvii] Darren Rovell, "As Buyer of Ohtani's 50th HR Ball Waits to Come Forward, Value Plummets by Hour" Cllct (Oct. 24, 2024) . [xviii] Travis Schlepp, "Shohei Ohtani Signs Historic $700M Deal with the Dodgers" KTLA (Dec. 9, 2023) .

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 .

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).

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)

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