Last Friday, United States District Judge Haywood Gilliam denied The Brandr Group, LLC’s (TBG) Motion for Temporary Restraining Order. The order serves as a major victory for EA Sports and paints a bleak path forward for TBG. TBG is a marketing and licensing agency that has entered into collaboration agreements with over 50 Division I schools, including the University of North Carolina at Chapel Hill, North Carolina State University, and The Ohio State University. According to TBG, as a part of the collaboration agreements, partner schools grant TBG the exclusive right to “develop, implement, and manage the Group Licensing Program” for the school’s athletes. As a part of the program, TBG contracts directly with the athletes, assigning TBG the right to use the athlete’s name, image, and likeness (NIL) in group licensing deals (deals involving three or more athletes). Rather than utilize TBG for licensing with its schools and athletes, EA Sports has partnered with OneTeam partners to facilitate licensing deals directly with athletes and universities. TBG’s temporary restraining order aims to halt EA Sports’ licensing activities. To grant a temporary restraining order, TBG was required to prove, among other elements, (1) irreparable harm and (2) a likelihood of success. As Judge Gilliam asserted in his order, TBG did neither. Judge Gilliam dispensed with TBG’s arguments regarding irreparable harm. As a basis for irreparable harm, TBG must prove that there is an immediate threatened injury. Judge Gilliam found that any injury lacked immediacy as EA Sports will not release the videogame until 2024. Similarly, Judge Gilliam found that any injury can be monetarily compensated. Thus, Judge Gilliam found that TBG cannot prove irreparable harm. Despite finding that TBG failed to prove irreparable harm, Judge Gilliam went on to forecast TBG’s likelihood of success. Specifically, Judge Gilliam pointed to the agreements themselves, which dictate TBG’s group licensing program as co-branding an athlete’s NIL with a university’s intellectual property. Here, Judge Gilliam could not foresee a likelihood of success for TBG because EA Sports is contracting with EA Sports and individual athletes separately. Thus, EA Sports is not obtaining co-branding licenses. Judge Gilliam’s ruling is a setback for TBG, painting a different picture than TBG’s Complaint. At the end of the day, EA Sports avoids pushing back the release date for the new video game. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

On the final day of June, the U.S. Court of Appeals for the D.C. Circuit released its opinion on the future of Florida sports betting. The opinion is a reversal of the Circuit Court which invalidated the compact between Florida and the Seminole Tribe (“Tribe”). To fully understand this case, it helps to understand some of the history surrounding the main crux of the case: the Indian Gaming Regulatory Act (“IGRA”). IGRA was enacted in 1988 and provided a statutory base for the regulation of tribal gaming. One of the main goals of IGRA was to “promote tribal economic development, tribal self-sufficiency, and strong tribal government”. IGRA also permits states and tribes to enter into contracts for Class III gaming. Class III gaming includes slot machines, house-banked table games like blackjack, and most importantly sports betting. This is where the issues surrounding Florida sports betting grew. Back in 2021, the state of Florida entered into a gaming compact with the Seminole Tribe giving them complete control over the sports betting regime within the state. The compact came into effect after the Secretary of the Interior failed to disapprove the compact within the 45-day deadline. This led casinos and other tribes within the state to bring a lawsuit against the Secretary claiming the allowance of the compact violated IGRA by permitting gaming outside of Indian lands. The appeals court saw this differently. The court stated that IGRA does not prohibit compacts covering areas outside Indian land. Thus, to be sure, an IGRA gaming compact can legally authorize a tribe to conduct gaming only on its own lands. But at the same time, IGRA does not prohibit a gaming compact—which is, at bottom, an agreement between a tribe and a state—from discussing other topics, including those governing activities “outside Indian lands[.]” This stance is different than others that have previously been set by other federal circuits. The opinion goes on to state that the District Court erred in its interpretation of the compact. The District Court erred by reading into the Compact a legal effect it does not (and cannot) have, namely, independently authorizing betting by patrons located outside of the Tribe’s lands. Rather, the Compact itself authorizes only the betting that occurs on the Tribe’s lands; in this respect it satisfied IGRA. Following the release of this opinion, the D.C. court must enter a final administrative mandate of the decision. Essentially this mandate will make the appellate court’s decision final. This will be entered unless the plaintiffs file a timely petition for an en banc hearing. The importance of this decision is emphasized when you look at the history of the Appeals Court for the D.C. Circuit and issuing en banc review. According to Conduct Detrimental’s own Daniel Wallach, the court only accepts about one out of every 500 petitions for en banc review. This means that any petition will be a long shot. Following any denial, the plaintiff may try to take it all the way to the Supreme Court which could delay the re-launch of Florida sports betting by years. Given the stance the D.C. court took in interpreting IGRA, circuits now differ in their opinions which could force the Supreme Court to resolve these differences. So what now? Well, it seems that Florida should be hopeful about sports betting but realistic about the timetable for the actual launch of mobile betting. I would think that, given the number of legal avenues the plaintiffs have for appeals following this decision, Florida will miss yet another year of possible NFL betting revenue. As the filings for review come in, we will be covering those here on Conduct Detrimental. Justin Mader is a licensed Illinois Attorney who focuses on sports and gaming law. He is a graduate of the University of New Hampshire Franklin Pierce School of Law where he earned a J.D. and a Sports and Entertainment Law Certificate. He serves as one of Conduct Detrimental's Producers and Editors. He can be reached via Twitter: @maderlaw.

The world of professional women’s hockey has been segmented since 2019. On one side, you had the Premier Hockey Federation (formerly NWHL), a professional league founded in 2015, providing an opportunity to play. On the other, you had the Professional Women's Hockey Players Association (PWHPA), formed in 2019 as players were dissatisfied with the operations of the NWHL. On June 30, 2023, it was announced that the PHF will cease all operations as it was purchased by the Mark Walter Group and Billie Jean King Enterprises. The Mark Walter Group has spent the past 14 months working with the PWHPA in a bid to launch its own league. With the purchase of the PHF the Mark Walter Group will be launching a professional women’s hockey league starting in January 2024. But what exactly does this unification mean? While it may not be the messy LIV Golf/PGA saga, this acquisition for unification may not be as clear-cut as it first appears. First, in December 2022, the PHF announced they were doubling the salary cap for the 2023-24 season going from $750,000 to $1.5 million. An amazing announcement that was met with praise, and a seeming step in the right direction. Under the new salary cap, many players signed new contracts this offseason, with some being worth as much as $150,000. Now with the purchase of the PHF, the players are released from these contracts and those deals will not be paid out in full. Instead, players will receive severance and a period of continued health benefits. The PHF severance program pays players 1/12th of their contracted 2023-2024 season salary or $5,000, whichever is greater. The biggest problem is, as everyone knows, that these types of sales do not happen overnight, and the first serious conversations about this purchase started 6 months ago. So, the PHF got to receive the praise of a large salary increase, while being at least aware that the league’s future was uncertain. Second, in the spring the PWHPA was certified as a union and is already in the late stages of CBA negotiations. In the coming days, the players of the PWHPA will be voting on whether to ratify the CBA, and the expectation is that it will be ratified. PHF players who just had their contracts voided will not be participating in the vote on the CBA. Ultimately, the new league will include players from the PHF, PWHPA, NCAA, and international players. Due to this, some players from the PHWPA and PHF will not be on rosters come January 2024. To paint a unification years in the making as merely bad or good is an incorrect notion. So, let’s make it clear that there is good in all this as well. The NHL commissioner has consistently withheld NHL support because he and team owners did not want to get involved in a dispute between “leagues.” But they were open to the possibility of support once there was one league formed. Now that it is the reality of women’s hockey, NHL commissioner Gary Bettman has confirmed they have initiated discussions with the group on ways to work together to grow the game. The PWHPA was born out of concern about pay, benefits, and league viability of the then NWHL. This is why the PWHPA has spent the past months working so hard to negotiate a CBA. The CBA they are voting to ratify includes salaries potentially in the range of $35,000 to $80,000, housing stipends, relocation fees, medical benefits, dental benefits, retirement plans, and maternity/parental leave. PHF players may not be voting on its ratification but would be a part of the union if they play in the new league. The CBA is largely expected to be ratified in the coming days, and, ideally, having a CBA in place protecting players means we will never have to see similar segmentation again. Even more importantly, if this happens it would be the first professional women’s sports league in the United States to have a CBA in place before the start of its first season. The WNBA saw its first CBA 2 years after its first season, and the NWSL did not see its first CBA until 10 years into the league’s existence. The CBA and implementation of a union will put the new league ahead of the PHF in creating a viable league infrastructure while fully treating the athletes as professionals. Ultimately, this unification and this new league is the culmination of four years of PWHPA players standing strong and holding out in their careers. It is also the culmination of four years of PHF players putting themselves and their bodies on the line and playing tremendous games to showcase how exciting women’s hockey games are. It is important to remember the sacrifices of both groups, because, without either group, this bright future for women’s hockey isn’t a reality. Emlyn Goodman is an NCAA compliance professional and women’s sports fan. She can be found on Twitter @emlyngoodman and on LinkedIn at https://www.linkedin.com/in/emlyn-goodman-j-d-b46113113/.

Sports card buying, selling, trading, and collecting is simply a pastime for most of those involved in “the Hobby.” But for a select few, it is big business. One of the biggest players in the space, both literally and figuratively, is former First-Team All-Conference offensive lineman and Super Bowl champion, Evan Mathis. Mathis spent over a decade in the National Football League during which time he beefed up his childhood sports card collection, centered around Bo Jackson and Frank Thomas, to include some of the most sought-after and expensive cards in the industry. Likely his crowning achievement in the Hobby came in 2020 when Mathis cosigned and sold his 1953 Topps Mickey Mantle card graded as a PSA Gem Mint 10—the highest grade possible from the most well-respected and valued grading company in the space—on a cite called Collectable. Collectable “connects [their] customers to opportunity”[1] by providing a platform for investors to purchase fractional shares of sports cards, memorabilia, and other historically significant collectibles. If this sounds like a slam-dunk security offering, that’s because it is, and Collectable agrees. The company routinely files offering circulars regarding each of its “Series” offerings with the Securities and Exchange Commission (SEC) that list valuations, number of fractional units or shares per piece, underwriting discounts, and proceeds for the issuer and seller/cosigner. Mathis’s Mantle card was one of only two that had achieved a perfect grade of 10 at the time of the sale and was valued at just over $2.3 million. The legal intrigue comes, over two years later, on April 27, 2023, when Mathis posts a viral TikTok video providing instructions and recommendations on vintage card “trimming” (a massive no-no in the Hobby). He even shows himself doctoring a 1965 Gary Bell baseball card. Vintage sports cards were traditionally hand-cut by someone somewhere in a Topps factory often creating uneven borders and frayed edges. As card centering and edge condition are two of the four major factors that grading companies use in making final grade decisions, card “trimmers” can ensure higher grades and greater returns upon resale should their alterations make it past the grading company’s watchful eye. The post threw the Hobby into a frenzy. Following the TikTok, Hobby pundits grabbed their microphones, and each took turns offering up disdain for the disgraceful actions of Mathis and others like him who condone such things. To his credit, Mathis did accept an offer to join the Ringer Podcast Network’s Sports Cards Nonsense show to defend his position. He waxed poetic about how if this is the evil Hobby-ists want to rage against in the world, then that is their prerogative, and that he saw no harm in trimming or otherwise doctoring vintage cards. A large part of the SEC’s mission is to protect the retail investor from fraudsters. The SEC promulgated Rule 10b-5 to combat the employment of manipulative and deceptive devices regarding the offering of securities. The Rule makes it unlawful to make “any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statement made, in the light of the circumstances under which they were made, not misleading”[2] (emphasis added). The “materiality” of such information is contingent on whether there is “substantial likelihood that the disclosure…would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of the information made available.”[3] Traditionally, the fact that a sports card has been trimmed or altered in some way is annotated on the grading company’s encased label. The grading companies do this to put potential buyers on notice that the value of a card is diminished, if not wiped out completely. If Mathis or Collectable had known that the Mantle card included in the fractional offering had been trimmed and failed to disclose that information, it would not be difficult to prove that the omission was material to the reasonable sports card investor and a violation of securities laws. However, Rule 10b-5 does require that the government prove scienter, or knowledge, of the infraction which would be an uphill battle for the prosecution at this point in the story. Since the trimming TikTok was released, both Mathis and Collectable have come out and stated that the Mantle card that was sold off in parts during the securities offering in 2020 was not altered in any way. Following an “investigation,” Collectable again emphasized that the Mantle card had already been graded and hermetically sealed when Mathis purchased it years prior, providing some credibility and legal protection for the platform. But the integrity and legality of fractional sales, specifically of vintage sports cards, will continue to be called into question. There is no apparent upside or financial benefit for Mathis following his decision to upset nearly the entire Hobby. My conclusion echoes the wise words of Alfred Pennyworth, “some men just want to watch the world burn.” [1] https://collectable.com/ [2] 17 CFR §240.10b-5 [3] TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 (1976) Nate Otto is a rising 3L at the University of Florida Levin College of Law and the Executive Articles Editor for the Florida Entertainment and Sports Law Review. Sadly, he is Twitter-less.

Everton is one of England’s oldest club teams and was founded in 1878. The Merseyside team built Goodison Park in 1888 and, at the time, it was the largest soccer stadium in England. Goodison Park is a historic soccer stadium and has been the location for more top-flight soccer games than any other stadium in the country. But now, the over 100 year-old stadium is finally being decommissioned, and a new stadium is being built. The new Everton Stadium is set to open for the 2024-2025 season. With the new stadium being built, the club may face many challenges to meet the requirements of a qualified Premier League stadium. All English top-flight teams must meet the criteria laid out in the annually released Premier League handbook, which lays out the standards each team must meet with respect to the team's roster, salary, jerseys, stadiums, and much more. As each new portion of Everton Stadium is built, they must have it approved by the Premier League Board prior to construction beginning. This article will discuss the recent renovations of the new stadium and how they meet Premier League Standards. Everton has made a website giving fans updates on the construction being done. On June 2, 2023, the team uploaded aerial drone footage of the stadium, as well as showing the progress of the dressing rooms and media interview booths. As per the 2022-23 Premier League Handbook, there must be dressing rooms for both teams and separate dressing rooms for the officiating crew. The dressing room must include showers, bathrooms, and changing facilities in a room larger than 30m². Each Stadium must also have a designated space for media personnel. As per the handbook, this space must be a working area for the use of accredited representatives of the media and Broadcasters, and this area must be located in the same stand as the Players’ dressing rooms. It must comprise a room of a minimum 50m² and must be supplied with 25 individual or linked workstations, each of which shall have its own desk, chair, electricity supply, and internet connectivity as set out in Rule K.45. These are just the specific guidelines for the two aspects of the stadium being mentioned in Everton's June 2nd update. Each portion of Everton Stadium must be approved by the League Board prior to construction, and the club, fortunately, appears to be meeting each requirement. Everton is taking the steps to retire one of the most historic soccer stadiums in England and is on pace to give their fans a brand new, updated stadium (meeting the requirements of the league) for the 2024-25 Premier League Season. Evan Lautato, Rising 2L at St. John’s University of Law School, 1L Representative for the Entertainment and Sports Law Society, www.linkedin.com/in/evan-lautato-a4bb14178 Citations: https://resources.premierleague.com/premierleague/document/2023/05/25/33ed7ee2-691b-4689-87a6-a895bf31581c/PL_Handbook_2022-23_DIGITAL_23.05.23.pdf https://www.evertonfc.com/stadium https://www.evertonstadium.com/ https://premierskillsenglish.britishcouncil.org/clubs/everton#:~:text=Everton%20Football%20Club%20was%20founded,brand%20new%20ground%20at%20Anfield.

While many Team USA fans will be pleased with their 2-0 CONCACAF Nations League victory over Canada on Father’s Day, the biggest story of the Nations League revolves around fan behavior in the semi-final rather than any performance on the pitch. During a month meant to celebrate the LGBTQ+ community and to emphasize inclusion and belonging, Team USA’s match against Team Mexico was stopped under the league anti-discrimination protocol after anti-gay slurs were chanted by Team Mexico fans at American keeper Matt Turner. Despite a warning to the fans prior to the resumption of play, the slurs continued until the match was ultimately abandoned early in extra time under league anti-discrimination protocol. These slurs are not a new phenomenon from Team Mexico fans and have been chanted for years while soccer officials have struggled with creating new ways to manage fan behavior. For many, enough is enough, and according to Cyd Zeigler of Outsports.com, US Soccer indicated that they would enact policy 521-2, which would prevent a team from competing in the United States if their fans chant discriminatory slurs. Despite announcing a hard-line stance prior to the match US Soccer has made no indication that any such ban may be forthcoming. The tension arises from the governing organizations' few options of enforcement that won’t interfere with the outcome of the underlying game. The ending of the game with 8 minutes remaining in stoppage time is the closest CONCACAF has come to any such impact. Nonetheless, with 8 minutes remaining and a three-goal deficit, few fans were left wondering what might have been if the remaining time had been played out. If leagues are unwilling to ban teams from competitions due to the behavior of the fans, the best solution may ultimately be the least attractive. Tickets to sporting events are revocable licenses and subsequently may be revoked when the spectator behaves in a manner that is unacceptable within the venue. CONCACAF should provide extra funding to venues to secure the hiring of additional security staff tasked specifically with the ejection of fans who chant slurs at games immediately. Should the slurs get out of control, a stoppage would be called that will allow staff sufficient time to eject the infringing fans serving as a message to other fans who may consider joining in. Finally, CONCACAF should further insist that host venues pledge a substantial bond prior to hosting an event that is forfeited if the venue is unable to curb the slurs from fans. If a match has to be terminated for failure to stop the slurs, the bond will be automatically forfeited by the host venue to fund additional security staff at future events. Empty words and policies have gone on too long without sufficient action or enforcement. If CONCACAF wants to take a serious step in stopping Team Mexico fans’ use of slurs, they need to put their money where their mouth is and implement a new policy. Chase Youngman is a graduate of Penn State Law where he was the president of the Penn State Law Sports Entertainment Law Society. You can also find him on Twitter as @c3youngman.

Earlier this week, Mid-Atlantic Sports Network (MASN), which is owned by the Baltimore Orioles and Washington Nationals, agreed to pay the Nationals nearly $100 million to resolve the fees the network owes the team from 2012-2016. One item remains, the network and team must resolve the fees owed from 2017-2021. When Major League Baseball, which owned the Montreal Expos, proposed moving the team to Washington in 2004, Orioles owner Peter Angelos raised concerns over sharing territory with the Nationals. Thus, Major League Baseball reached an agreement with the Orioles to form MASN, giving the Orioles an initial 90 percent stake in the network and the Nationals a 10 percent stake. After two years, the Nationals’ stake would increase by 1 percent each season until the Nationals’ stake reached 33 percent. Initially, the teams would be paid the same rights fees by MASN, which the parties could revisit every five years. In 2012, the first year the Nationals could renegotiate rights fees, the team argued that they were not paid fair market value from MASN for their rights. After failing to come to an agreement, the Nationals took the issue to arbitration. The first arbitration in front of Major League Baseball’s Revenue Sharing Definitions Committee (RSDC) failed due to a New York trial court vacating the award due to the RSDC’s failure to address evident partiality. At the time, the law firm representing the Nationals was currently or previously representing Major League Baseball and the teams employing the members of the RSDC. The Orioles requested that the RSDC preclude the firm from the proceedings, but the RSDC declined, and the proceeding continued. In 2019, a second RSDC panel awarded $105 million to the Nationals. MASN appealed the award to the New York appellate court, arguing that the panel was not impartial and that the dispute required a new forum. In April, a New York appellate court upheld the $105 million arbitration award, finding that by replacing the panel members, the first proceedings did not taint the second RSDC panel. To resolve the award, the network has agreed to pay nearly $100 million to the Nationals. Now, MASN and the team must determine the fees owed to the Nationals from 2017-2021. Once finished, the Lerner family may move forward with selling the team. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

Over the last several years, it’s undeniable that front offices across Major League Baseball have become more analytically driven. As a result, many that cover and follow the sport have wondered about scouts and their place in the modern game. While Moneyball and the success of organizations like the Houston Astros have certainly validated the concept of valuing analytics, the common sentiment you’ll hear is that a blend of the subjective evaluations and the objective data is the best approach to building a winning baseball team. However, that has not stopped every club from downsizing their “old school” scouting departments in favor of the “new school” analytics. In fact, a group of 17 former scouts filed a class action lawsuit against MLB this week alleging age discrimination, understandably upset about the ongoing trend. The lawsuit was filed in US District Court in Denver, asserting that “older scouts” have been “blacklisted” for re-employment in MLB and contending that the league used analytics as an “ongoing pretext for coordinated and systematic discrimination based on age.” It’s worth noting that the plaintiffs range from age 55 to 71, and most held scouting positions in the game for at least 30 years. Some important context to introduce is that many of these scouts were let go in 2020 amid COVID-19, when MLB and its clubs obviously lost significant revenues. The suit alleges that MLB used the pandemic as an opportunity to terminate an entire class of older employees more susceptible, on the basis of age, to the COVID-19 virus.” With the 2020 season wiping out all ticket revenue and significant television revenue, scouts may have been the first cuts in MLB front offices looking to reduce expenses. Rick Ingalls, a scout for nearly four decades, told the Los Angeles Times that “we believe the commissioner and the owners colluded to eliminate veteran personnel because of salaries.” The lead attorney representing the plaintiffs, Robert Goodman, also told the Los Angeles Times that the scouts gained their “inspiration” from MLB’s settlement with minor league players who sued over wage-law violations earlier this spring. The suit also contains other interesting allegations that MLB terminated the use of the “scouting wire” platform that allowed scouts to get hired and that clubs relied on a false stereotype that only younger scouts held a strong understanding of analytics. MLB quickly released a statement responding to the lawsuit, reading as follows: “We do not comment on pending litigation, however, we look forward to refuting these claims in court.” While they settled with the minor leaguers, that statement reads that the league might not take the same approach in this case. The class action complaint claims that “it is estimated that there are over 100 Older Scouts within all such classes” that could potentially join and that upwards of $100 million in damages is on the table. There has certainly been no shortage of legal news in baseball recently. The minor league wage violations and ensuing CBA, the potential challenge to baseball’s antitrust exemption, and the Diamond Sports bankruptcy saga are just a few examples of the intersection of baseball and the law. As always, stay tuned to both the Conduct Detrimental podcast and website for the latest coverage of all things sports law. Brendan Bell can be found on Twitter @_bbell5.

It was reported Tuesday evening that Dolphins’ star WR Tyreek Hill was under investigation for assault/battery in Miami for an alleged physical altercation that occurred at the Miami Beach Marina. Mr. Hill allegedly hit a marina employee during a “disagreement” that took place on Sunday, June 18th. According to Andy Slater, the allegations were that Hill slapped the employee on the back of the head but that the employee has declined to press charges at this time. Yesterday, June 21, 2023, Slater followed up this scoop with another that law enforcement sources told him that they were declining to press charges. Case closed, right? Wrong. According to Miami PD, “The investigation into the alleged battery by Tyreek Hill continues. Any reports saying it is over are not accurate.” So where is this case, currently? As far as I can tell, it is still under investigation. Additionally, @IanMargolWPLG included a redacted copy of the police report on Twitter. As reported in the police report, “The alleged victim observed two unknown females on one of the fishing charter boats without permission. He was told by the boat captain to advise the females to get off the boat. A verbal altercation broke out between the Kelly Fishing Fleet and the females on the boat and their male companions that turned physical when Tyreek Hill allegedly slapped the alleged victim on the back of the neck with an open hand.” It should also be noted that the subject (i.e. Hill) was being pushed away from the altercation. Law enforcement observed no visible injuries, but this alleged altercation was captured by video surveillance cameras. What does this all mean? I have previously stated on Twitter that likely nothing would ultimately come of this. By that I mean, Tyreek Hill isn’t likely going to be convicted of this alleged battery. That is because this alleged battery is non-domestic in nature. Though hitting a random stranger is legally a battery, law enforcement and State Attorney’s Offices often shy away from filing said cases. That is because with battery cases law enforcement is trying to prevent domestic battery (ones with romantic relationships: girlfriend/boyfriend, husband/wife, etc.) Additionally, it was also noted in the police report that no injuries were observed. Even with alleged video surveillance of this incident, with no injuries, what jury is going to care? In my experience as a former felony prosecutor, I would decline to file formal charges if I were the prosecutor. That is because it sounds like a tussle where nobody was injured. Additionally, it was noted in the police report that Tyreek Hill was touched first and as such would have the right to defend himself if he felt threatened. Could Hill be charged? It is possible, yes. They sound like they now have a cooperative victim and video surveillance of this incident. Could they charge Hill with trespass? Sure, if this alleged altercation occurred on this boat and Hill jumped onto the boat. Could they charge Hill with a lesser included offense of disorderly conduct? Yes, however, no matter the charge the analysis is the same. Why would any jury care? Would a jury care if he jumped onto the boat to defend the females he was with? No. I have tried 40+ jury and non-jury civil and criminal trials ranging from low-level crimes to 1st-degree felonies, and I can promise you this, juries cannot stand having their time wasted. This is what this case looks like. Unless egregious facts come to light that haven’t previously been reported, this case will unlikely end with a battery conviction for Tyreek Hill. Matthew F. Tympanick, Esq. is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense, Personal Injury Law, and Sports Law. Arrested or Injured? Don’t Panic…Call Tympanick! 1(888)NOPANIC. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and a Staff Editor on the UMass Law Review. He has appeared nationally on television, radio, and podcasts discussing criminal cases specifically sports criminal cases. He was previously a felony prosecutor where he prosecuted thousands of misdemeanor and felony criminal cases. He also has tried over 40 jury and non-jury cases. You can follow him on Twitter, Instagram, and Facebook @TympanickLaw.

One of the biggest topics of conversation stemming from last week’s MLB owner’s meetings in New York was the fate of baseball in Oakland. While Rob Manfred didn’t make any new friends in the East Bay with his comments about the A’s situation and commissioned Brewers owner Mark Attanasio as chair of the “Relocation Committee,” there was another interesting bit of news that surfaced out of the meetings. According to The Athletic, MLB and high-ranking team executives discussed the possibility of limiting how much clubs can spend on items not related to player salaries. This could include capping expenditures related to technology, player development, scouting, sports science, and health. While every professional sport features teams seeking ways to find competitive advantages and market inefficiencies, MLB’s current structure forces the issue even more. Unlike the other major American sports, baseball doesn’t have a salary cap. As a result, you see massive payroll discrepancies across the sport. This season, New York Mets are spending nearly $375 million on player salaries while the Pittsburgh Pirates, Baltimore Orioles, and Oakland Athletics are all running payrolls of less than $100 million. Whether or not it’s good or bad that the Mets are spending that much and the Pirates, Orioles, and A’s are spending that little is an entirely different discussion. But because small market teams can’t (or claim they can’t) keep up with the large market teams on player salaries, they do try to find edges in other ways, which brings us to the news about MLB potentially capping off-field expenditures. Over the last handful of years, the quantity of off-field personnel staffers MLB teams employ has grown dramatically. If you were to visit your favorite team’s website and clicked on the front office directory, you’d likely be surprised at how long you might be scrolling down the list. In addition to the staffing, teams are investing more and more into technology. Whether its hitting or pitching “labs,” sensors, machines, devices, etc, players have more tools at their disposal than ever before. Why is all of this a problem? Well, it’s a fair question. But you have to keep in mind that despite the lack of a salary cap and the disparity of market sizes across the league, MLB still desires competitive balance. While teams like the Rays or the Moneyball A’s might’ve been first on investing in these off-field expenditures, the realities of baseball being a “copycat” industry have led other teams to catch up. According to the Athletic report, “executives with smaller-market teams have long lamented the task of keeping up with the spending capabilities of larger market teams.” This obviously comes into play with player salaries, but the Major League Baseball Players Association has long held firm against a cap on player pay. Therefore, could owners of low payroll clubs be pushing this cap against off-field expenditures as another avenue to keep up? It’s certainly plausible. While curbing spending on technology capital might not pose any sort of legal risks for the league, some could come in if employees begin to lose jobs as a result of the hypothetical capping of spending. As mentioned before, teams are employing dozens of employees with titles like “Biomechanical Analyst” and “Data Engineer of Baseball Systems” just to name a few. If those jobs are cut, it could certainly be perceived as “colluding” in regard to hiring practices. With baseball’s antitrust exemption under fire as a result of cases involving MLB’s contraction of the minor league and recent legislation introduced by state senators, any further leveraging of the exemption might not be viewed positively in today’s environment. You can hear more about the fight to challenge baseball’s antitrust exemption in one of the latest Conduct Detrimental podcasts, where our own Dan Wallach and Justin Mader were joined by renowned sports antitrust lawyer Jim Quinn. While a cap on player pay might not be coming any time soon to Major League Baseball, it will be interesting to see if the league imposes restrictions on off-field expenditures. Moreover, if it indeed comes to pass, what will the ramifications be? How will large market owners react to caps on how much they can spend? Will it increase parity in the sport? Will the push to overturn baseball’s antitrust exemption only grow stronger? On the surface, I find it peculiar why MLB would go to these lengths, but I understand that the desire to reduce expenses and increase competitive balance are high priorities in the league office. Nonetheless, this is something to watch moving forward. Brendan Bell can be found on Twitter @_bbell5.

On Friday night, a report emerged that New England Patriots Starting CB Jack Jones was arrested on 5 separate charges including: 2 counts of possession of a concealed weapon in a secure area of an airport, 2 counts of possession of ammunition without a firearm identification card, 2 counts unlawful possession of a firearm, 2 counts carrying a loaded firearm, and 2 counts possession of a large capacity feeding device. These charges are troubling because at least two of the charges include a minimum mandatory sentence. First, the unlawful possession of a firearm triggers an eighteen month minimum mandatory sentence. Additionally, the possession of a large capacity feeding device (“magazine clip”) carries with it 2.5 years in prison to 10 years in prison minimum mandatory sentence (“min man”). Mass. Gen. Laws Ch. 269 § 10(m). A lot has been said about Jack Jones past transgressions, but we aren’t focused on that, we are focused on this case as hand. What do we know about the facts of the case? According to a tweet from Andrew Callahan, “TSA was alerted to a report of two loaded firearms at a security checkpoint. Upon arrival, a TSA Agent informed Trooper Hendry of the Massachusetts State Police that a black duffel bag containing two loaded firearms and two additional loaded magazines were placed into the X-ray machine. After attempting to speak to the suspect (Jack Jones), the Trooper opened the bag and observed an unlocked black Glock handgun box. There was a white tag attached to the black duffel bag with the words “UFC” and” Jack, Jones”. Inside the black duffel bag there were multiple pairs of socks and other articles of clothing that appeared to be men’s clothing.” I have said this previously, but I will say it again, “FACTS. WIN. CASES.” This is a well written police report (Some police reports are very lazy and sloppy and as a criminal defense attorney I have a field day with those). The facts that the prosecution will zero in on will be the bag had a tag with his name “Jack Jones” on it, and there appeared be “men’s clothing”. As this is Logan Airport, there is going to be surveillance video galore. My questions are, “Is there surveillance video of Jones dropping off that bag at checked baggage or in security? My guess is, yes. Were the guns on top of everything meaning the individual who zipped up the bag would have seen the guns? Was Jack Jones traveling with anyone else? The statement by his attorney Rosemary Scapicchio that her client “didn’t intend to bring the guns onto the airplane” tells me they likely aren’t going to argue the guns weren’t “his”. Intent likely is not going to be a strong defense in this case. Firearms cases are about possession. Did Jack Jones possess those items? There is types of possession: Actual possession and constructive possession. If the police run fingerprints on the guns and they match Jack Jones, they Commonwealth can argue actual possession. Additionally, at work, since it appears Jack Jones possessed the black duffel bag, the Commonwealth could also argue constructive possession (meaning he controlled the luggage that allegedly contained the guns). Where is the case going to go from here? First, as the feeding device is a felony, a grand jury in Suffolk County (Massachusetts) must return a true bill indictment (meaning sufficient evidence to charge Jack Jones). If a true bill is returned (it likely will be), the case will proceed towards trial. There will be a probable cause hearing on August 18, 2023, where the Judge will determine if the charges move forward. It is possible his attorney will attempt a suppression hearing that Trooper Hendry did not have reasonable suspicion to open the duffel bag. However, 4th amendment protections are minimal as the Defendant is in an airport. That is why all bags are put through an X-Ray machine. At this time, Jack Jones is looking at a minimum mandatory of 18 months in prison on the unlawful possession of a firearm and 2.5 years to 10 years in prison for the feeding device (gun magazine). The statement by the Suffolk County District Attorney’s Office that, “Jones is looking at up to 30 years in prison” is not a statement that screams imminent “slap on the wrist” plea deal. Could this case end in a plea? Absolutely. Anything is possible. However, there is relatively new District Attorney who might be looking to show that he is tough on crime and could make an example of Jack Jones’ case. As such, Jack Jones better strap in because the next several months are going to be tumultuous. This article is the first in a multi-part series. Matthew F. Tympanick, Esq. is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense, Personal Injury Law, and Sports Law. Arrested or Injured? Don’t Panic…Call Tympanick! 1(888)NOPANIC. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and a Staff Editor on the UMass Law Review. He has appeared nationally on television, radio, and podcasts discussing criminal cases specifically sports criminal cases. He was previously a felony prosecutor where he prosecuted thousands of misdemeanor and felony criminal cases. He also has tried over 40 jury and non-jury cases. You can follow him on Twitter, Instagram, and Facebook @TympanickLaw.

There is no doubt that the world of college athletics is shifting into an atmosphere that has yet to be seen. The amount of battles the NCAA is currently involved in goes to show a strong likelihood that substantial change is about to occur. Currently, the NCAA is lobbying lawmakers on Capitol Hill to pass federal legislation that would keep the amateur model intact by claiming college athletes are not employees, as well as give the NCAA an anti-trust exemption, and a uniform NIL law.[1] The NCAA is involved in a current NLRB complaint brought by the NLRB’s Los Angeles office against the NCAA, Pac-12 Conference, and USC for unfair labor practices, which a hearing will take place on Nov. 7 in Los Angeles. The NCAA has an antitrust suit pending against them in House v. NCAA, where athletes who were unable to benefit from NIL opportunities are seeking to be compensated for media rights revenue that was received by the NCAA due to those athletes’ participation. Lastly, and most relevant to this article, the NCAA is being sued by former Villanova football player Trey Johnson and other Division I athletes in Johnson v. NCAA, where the athletes are asking to be deemed employees under the Fair Labor Standards Act (FLSA), which would entitle them to minimum wage and overtime pay. The FLSA defines an employee as “any individual employed by an employer.” Which is clearly not very helpful when a court attempts to apply it, therefore, courts must come up with other methods to determine if an individual is an employee of an employer. The Johnson case has been sent to the Third Circuit of Appeals on interlocutory appeal, meaning on a sole issue the district court beneath them decided, and a party (the NCAA) wants to stop the case and appeal that sole issue before continuing. That “sole issue” is whether athletes are employees as a matter of law. If the Third Circuit finds for the athletes, then the NCAA can appeal that decision to the Supreme Court, or the case will be returned to the district court, for that court to continue the case and evaluate the merits of the claim (meaning, did the NCAA actually violate the FLSA). While the NCAA would likely appeal the interlocutory decision by the Third Circuit to the Supreme Court if the NCAA were to lose, it would be rare for the Supreme Court to hear the case before it was evaluated on its merits. However, the decision to make athletes employees as a matter of law would cause a circuit split (discussed later), which would give the Supreme Court more reason to accept the interlocutory appeal. The arguments appear to be broken up as follows. The athletes argue that they are “employees” under the FLSA because of the amount of control that the NCAA has over them. The NCAA argues the athletes are not employees because appellate courts before have set the precedent that athletes are not employees, the Department of Labor has stated athletes are not employees in their handbook, and it is not the NCAA that has significant control over individual athletes, but rather the individual universities. While both sides make strong arguments, personally I believe it is clear that the NCAA displays a significant amount of control over the athletes. The NCAA controls athletes on what time of year recruiting takes place, the concept that athletes cannot be paid for play, the total number of scholarships certain teams can give out, the number of years of eligibility athletes have, what types of behavior will make an athlete lose their eligibility, and the NCAA allows conferences to schedule games for athletes forcing them to travel thousands of miles during a week, forcing them to miss classes. There is a laundry list of other items that the NCAA has in place that demonstrates control over the athletes as well. However, the NCAA rebuts this argument with a strong one of its own. The Seventh Circuit of Appeals in Berger v. NCAA and the Ninth Circuit of Appeals in Dawson v. NCAA both set the precedent that student-athletes are not employees as a matter of law (this is why there is a circuit split). Meaning that in order to say an employer breached the FLSA, the plaintiff first must establish they have the potential to be an employee of the employer. The Seventh and Ninth Circuits found that athletes fail to establish even that potential and therefore, there is no point in litigating the case further. Those courts came to that decision because the NCAA and the concept of college athletics require a special set of circumstances in order to create a structure where student-athletes can play sports, the games can be televised to please millions of consumers, athletes can get an education in return for their play, and a system is created where the student can focus on education and athletics, rather than everything else that comes with a full-time job, such as taxes, lawsuits, bargaining, etc. The courts also gave credit to the Department of Labor which oversees enforcement of the FLSA, who in their handbook specifically stated the student-athletes are not employees. While both the NCAA and student-athlete plaintiffs present strong arguments for why athletes do or do not meet the definition of employee under the FLSA, a major reason why I believe the Third Circuit will find for the NCAA in dismissing the case is that if student-athletes become employees under the FLSA it does not cure the current problems in the world of college sports. Those problems consist of athletic departments at the D1 level, and the NCAA making much more profit from television deals and portions of those profits could and should be shared with the athletes generating that revenue. Health and safety of the athletes when it comes to injuries related to their sports, and especially the long-term injuries and expenses that come with them after they leave their university. Missing classes and not being able to take the classes they want (the NCAA has time and time again said the amateur model should stay because they are students first). NIL rules and regulations to protect athletes avoid schools in certain states from gaining an edge over other schools in different states and a method to enforce rules against violators, including third-party entities, such as collectives. Ensuring that Title IX requirements are continued to be met. This is not an exhaustive list of all the problems in college sports, but it touches on the major ones. I would say you could look at the recent article published by the chair of the Division I Student Athletic Advisory Committee, but if you listen to Amanda Christovich on Conduct Detrimental’s podcast released on June 14, 2023, we get the sense that the letter submitted does not resemble the true desires of NCAA athletes. While the Third Circuit is going to go into a deep analysis on which test should be used between the Berger, Dawson, Glatt (prior appellate decision that athlete plaintiffs want the court to use), or the Enterprise test (test that the district court used in this case), in the end the court is going to give some credit to the question, “will having the right to minimum wage and overtime cure the problem that is before them.” The simple answer to that is no. It can be argued that yes it can because this will be the first step and declaring them employees as a matter of law will lead to unionization, more beneficial laws for the athletes, and potential revenue sharing down the road. However, I do not believe the Third Circuit is going to view it in that manner and would attempt to solve the problem in more of a single swoop and would not make such a substantial decision in the hopes that it causes a domino effect. All this being said, this is just my opinion and a panel of three judges could interpret things very differently than a third-year law student. However, if the panel asked me, I would say rule in favor of the NCAA because that is what history, precedent, and the purpose of the FLSA are ordering you to do. There is no doubt that student-athletes should be entitled to much more than they are given, but this is not the path. There is a chance that the NLRB will deem athletes as employees under the NLRA, which will give them the right to unionize and collectively bargain for things like health and safety policies, proper enforcement and guidance of NIL regulations, revenue sharing, abiding Title IX regulations, and allowing STUDENT-athletes to take the courses they desire and allow them to attend that course, as well as other future rights that athletes come up with. That type of solution makes much more sense to me, rather than attempting to pay every athlete minimum wage and overtime. Logan Hughes is a third-year law student at Ohio Northern University. He can be found on Twitter @loganchughes23. [1] See, Eric Prisbell, “As college sports transform thanks to NIL, here is the state of play” (June 19, 2023), https://www.on3.com/nil/news/as-college-sports-transform-here-is-the-state-of-play-nil-title-ix-ncaa/.