In many ways, the world of sports serves as a microcosm of society at large. Through competition, we are able to witness the full range of human experiences – hardship, grief, loss, perseverance, joy, and victory. Many people feel almost spiritual connections to the teams and players that they root for: sports are not just a game; they are an important part of a person’s identity and a person’s life. Because of this deep-rooted connection to sports that many people have, the world of sports can be a useful tool for explaining and better understanding just exactly how humans tick. What matters to them, or what does not matter to them? What they value, or what they do not value. What they are willing to applaud, and what they are willing to boo. What their politics are, or what their politics are not. The sports world is rife with such examples. As of recent, the sports world has begun to confront the issue of transgender athletes. With society as a whole being confronted with, and oftentimes pushing hostilely back against transgender people, it is no wonder that this fight has seeped into the world of sports as well. Lia Thomas, a former member of the University of Pennsylvania’s swim team, became the figurehead of the over-sensationalizing of transgender athletes in women’s sports being peddled by conservative and right-wing media groups looking to actively attack not only the idea of transgender women competing in women’s collegiate athletics but also Thomas herself. The debate on transgender athletes has only been heightened in the last year or so, and most recently came before the Supreme Court of the United States in West Virginia, et al., v. B. P. K., by her next friend and Mother, Heather Jackson. The background to the case involves Becky Pepper-Jackson, a twelve-year-old transgender girl who was a member of the female track team at her school. When West Virginia passed House Bill 3293 in 2021 banning the participation in sports by transgender athletes, the American Civil Liberties Union (“ACLU”), the ACLU West Virginia, Lambda Legal, and Cooley LLP filed a lawsuit challenging the constitutionality of the law. House Bill 3293 was just one of the hundreds of anti-LGBTQ bills that were brought before state legislatures in 2021 – as society goes, so goes sports. Interestingly, despite the bill’s purported goal of providing better, more fair opportunities to female athletes, the bill was not backed by any mainstream sporting or health organizations.[1] On July 21, 2021, the United States District Court for the Southern District of West Virginia (the “District Court”) ruled that it was “clear” that Becky Pepper-Jackson was being excluded from school athletics on the basis of her sex, and granted a preliminary injunction allowing for her to try out to be a member of the track team “in the same way as her girl classmates” while the case proceeded.[2] The victory was short-lived, however, as the District Court granted summary judgment to the State of West Virginia on January 5, 2023, allowing House Bill 3293 to go into effect.[3] While the District Court Judge, Judge Joseph R. Goodwin, stated in his opinion that he had “no doubt that H.B. 3293 aimed to politicize participation in school athletics for transgender students,” he did not find that “a sufficient record of legislative animus” was shown and, therefore, considering the law under an intermediate scrutiny standard,[4] he found that the law was substantially related to an important government interest and therefore could not be struck down.[5] The U.S. Court of Appeals for the Fourth Circuit granted a stay motion on the District Court’s ruling pending appeal, which allowed for Becky Pepper-Jackson to join the track team (for the time being), and the State of West Virginia responded by filing application on March 13, 2023, with the Supreme Court of the United State (the “Supreme Court”) to vacate the stay motion and prevent Becky Pepper-Jackson from participating on the track team as the litigation continued. The Supreme Court rejected the State’s application during the shadow docket, which, unfortunately, means that no opinion was given as to the Supreme Court’s reasoning behind the rejection.[6] The rejection comes as a bit of a surprise given the Supreme Court’s conservative majority, so the lack of reasoning is disappointing, especially given the penchant for the Supreme Court’s supermajority to “aggressive[ly] use . . . the emergency docket to deal with controversial issues without full briefing and oral argument.”[7] Justice Alito and Justice Thomas did dissent, giving a brief view into how the Supreme Court may view similar cases in the future. In their dissent, Justices Alito and Thomas stated that the application “concern[ed] an important issue that this Court is likely to be required to address in the near future, namely, whether either Title IX of the Education Amendments of 1972, 86 Stat. 373, 20 U.S.C. § 1681 et seq., or the Fourteenth Amendment’s Equal Protection Clause prohibits a State from restricting participation in women’s or girls’ sports based on genes or physiological or anatomical characteristics.”[8] In a fair point, Justices Alito and Thomas stated that they did not believe that the application should have been denied given the lack of an adequate (in their opinion) explanation by the Fourth Circuit Court of Appeals, which as a general practice does not explain orders pending appeal. The dissent indicates, though, that Justices Alito and Thomas would have ruled in favor of the State of West Virginia, given that, if they agreed with the denial, the appropriate response would have been a concurrence specifying in more detail why the denial was granted and taking a stance against the Fourth Circuit Court of Appeals’ practice of not explaining orders pending appeal. On the other hand, Becky Pepper-Jackson’s attorneys argued that the State of West Virginia “should not be allowed to use the [Supreme Court’s] emergency docket to force the court” to give a “preview” of how it felt on the issue given that no appeals court had addressed the issue.[9] In either case, the case will continue before the Fourth Circuit Court of Appeals without intervention by the Supreme Court, which does not rule out a later trip to the Supreme Court for its ultimate resolution. It is telling that the words used by the attorneys for the State of West Virginia in its application to vacate the injunction concerning House Bill 3293 were in the same vein of fear-mongering rhetoric used by conservative talk media when discussing transgender athletes. The State’s attorneys set up the issue of transgender athletes as “biological males identifying as female” jumping from men’s athletics to female athletics to beat female athletes. What this language ignores is that, based on a study by the Centers for Disease Control and Prevention published in 2019, only roughly 1.8% of high school students identify as transgender,[10] and of that, 1.8% only 14% of transgender boys and 12% of transgender girls play sports, according to a report by the Human Rights Campaign.[11] In other words, only roughly 0.44% of high school athletes are transgender.[12] As a society, we tend to over-sensationalize things that are different than what we are accustomed to. In this case, the war on transgender athletes has been completely blown out of proportion to take away the basic dignities of a small portion of athletes, and, more broadly speaking, a small portion of people. Becky Pepper-Jackson’s own words are the best indicator of why it is so important for access to sports to be available to everyone: "I just want to run, I come from a family of runners. I know how hurtful a law like this is to all kids like me who just want to play sports with their classmates, and I’m doing this for them. Trans kids deserve better."[13] Grant Williamson is a graduate of the University of Tennessee College of Law - J.D., Class of 2019. He can be found on Twitter @GrantWilli33 Sources: [1] Civil Rights Advocates Bring Federal Court Challenge to West Virginia Law Banning Trans Students in School Sports | American Civil Liberties Union (aclu.org) [2] B.P.J. v. West Virginia State Board of Education - Order Granting Preliminary Injunction | American Civil Liberties Union (aclu.org) [3] B.P.J. v. West Virginia State Board of Education - Lambda Legal [4] Intermediate scrutiny is the standard of Constitutional review implemented by the court when a law is alleged to negatively effect certain protected classes. To pass intermediate scrutiny, the law must further an important government interest and do so in a way that is substantially related to that interest. See intermediate scrutiny | Wex | US Law | LII / Legal Information Institute (cornell.edu) [5] B.P.J. v. West Virginia State Board of Education | American Civil Liberties Union (aclu.org) [6] Supreme Court won't enforce West Virginia law banning trans athletes from girls' teams : NPR [7] Id. [8] B.P.J. v. West Virginia State Board of Education | American Civil Liberties Union (aclu.org) [9] Supreme Court won't enforce West Virginia law banning trans athletes from girls' teams : NPR [10] Transgender Identity and Experiences of Violence Victimization, Substance Use, Suicide Risk, and Sexual Risk Behaviors Among High School Students — 19 States and Large Urban School Districts, 2017 | MMWR (cdc.gov) [11] https://assets2.hrc.org/files/assets/resources/PlayToWin-FINAL.pdf [12] Young transgender athletes caught in middle of states' debates (espn.com) [13] Civil Rights Advocates Bring Federal Court Challenge to West Virginia Law Banning Trans Students in School Sports | American Civil Liberties Union (aclu.org)

Coaches leaving low and mid-major programs for bigger and “better” jobs is nothing new in college athletics. From Fielding Yost to John Wooden, to Mike Krzyzewski, to Nick Saban, history is filled with coaches climbing the proverbial ladder to lead programs that compete at the highest levels and offer the most resources. What hasn’t been as common, however, is mid-major head coaches leaving to become power conference assistant coaches. Whether it came down to status, prestige, pay, control, or other factors in the past, it was rare to see head coaches willingly leave to become an assistant. In fact, it was more common for the best assistant coaches at big schools to take mid-major head coaching positions. Bo Schembechler left his assistant post at Ohio State to become the head coach at Miami (Ohio). Mack Brown left his offensive coordinator position at LSU to take the Appalachian State head job. John Calipari left as a Pittsburgh assistant for UMass, just to name a few. Power conference schools have always had more money and more resources than low to mid-majors. There’s nothing surprising about that statement. Big Ten head coaches have always made more than MAC head coaches. SEC head coaches have always made more than Conference USA head coaches. What hasn’t always been the case is Big Ten or SEC assistant coaches with salaries that double or even triple those of MAC or Conference USA head coaches. However, in the current landscape of college athletics with lucrative media contracts, conference realignment, etc., the revenue gap is widening with each passing day. This has resulted in numerous head coaches at the Group of 5/non-power conference level to take a voluntary “demotion” in terms of rank. There are numerous examples of Groups of 5/non-power conference head coaches leaving to become high-major assistants over the past decade. The list is by no means exhaustive, but it shows the growing trend of this reality in the current landscape. In football, some instances include Dan Enos, Pete Lembo, and Sean Lewis. In basketball, Rodney Terry, Billy Donlon, and Austin Claunch. In baseball, we most recently saw TJ Bruce last off-season. In looking ahead to the future, I don’t expect this trend to slow down anytime soon. Furthermore, it was recently announced that Baker Dunleavy, the head coach at Quinnipiac University was leaving for Villanova to become the Wildcats “GM of Basketball.” In the role, he will oversee men's and women's NIL, transfer portal, fundraising, and athlete brand marketing. It’s especially worth noting because Dunleavy isn’t even taking an on-field/court role like the aforementioned coaches above have recently done. He’s working solely in the roster construction/NIL aspect of things. Could we see more sitting head coaches take these types of positions moving forward? I think it’s definitely possible. In addition to the financial component, it’s also worth noting that it’s becoming rarer for coaches without power conference experience to land power conference head coaching positions. In the last football hiring cycle, more sitting P5 coordinators landed P5 head jobs than sitting G5 head coaches did. Athletic directors at big-time programs have shown more of a proclivity to seek out those with extensive experience at big-time programs, not those who dominate the lower levels. For example, if Sean Lewis has Colorado’s offense humming over the next couple of years, he will likely be in a better spot to land a big-time head coaching job than he would’ve if he won 10 games in the MAC (which is incredibly difficult to do at Kent State to boot). In today’s landscape of college sports, this is something that coaches have to be looking at and considering in their career decisions. The opportunity to make more money and be in a more advantageous position to achieve their dreams of becoming national championship-level coaches might include a voluntary choice to step down in the ranks. Expect to see more of this in the “coaching carousel” moving forward. Brendan can be found on Twitter @_bbell5

In early March this year, Memphis Grizzlies star Ja Morant was accused of several violent incidents including punching a teenager (17). Morant claimed that he was acting in self-defense against the teen, and the boy acted aggressively by showing signs of wanting to cause an altercation. Morant told police officers that the teen threatened him by saying he was “gonna come back and light this place up like fireworks.” The teen told police officers that he considered Morant a mentor and had been to Morant’s house in the past to play pickup games. He alleged that Morant kept hitting him after he fell to the ground and continued being attacked by his friends. All witnesses that were interviewed support Morant’s version of the events and neither party has been interviewed on this matter. The teen’s mother filed the lawsuit last year; however, he filed it under his own name after he turned 18 last month. In recent court filings, Morant alleged that he is the victim of slander, battery, and assault by the teen. In filing the countersuit, Morant claimed that the teen could have ended his career by throwing a basketball at his face. Morant now faces the burden of proof against the teen in this countersuit, and with the Memphis Grizzlies being the number 2 seed in the western conference playoffs, there seems to be a lot of pressure on the young superstar. Sources: The Daily Memphian The Washington Post

Background Among the 4 major sports, the National Hockey League is arguably at the top of the list when it comes to entertaining trade deadlines. Star players are seemingly on the move every year, though they come at a price. The highest-paid player this season is the NHL’s best, Connor McDavid who, back in 2017 signed an 8-year $100 million dollar contract with an average annual value (AAV) of $12.5 million. With a tight cap, maintaining success while also paying a premium for players is a tough balance NHL team executives have to strike. The NHL’s Collective Bargaining Agreement (CBA) allows teams to obtain salary cap relief in a handful of ways. Whether it be through trade, buyout, or Long-Term Injured Reserve, the NHL’s Collective Bargaining Agreement gives teams a few choices. Teams with more cap room are thus willing to take on salary in exchange for some future value or consideration. This results in a handful of trades where teams act as third-party “brokers”, and take on a portion of a player’s salary, facilitating a trade between two other clubs. Additionally, injured players can be placed on the Long Term Injured Reserve list, giving their teams more cap room. We will look at the inner workings and application of the two primary ways teams can dance around the NHL’s hard cap ceiling. One is Salary Retention, and the other is Long-term Injured Reserve (LTIR). First, we will examine the concept of Salary Retention as it pertains to trades. Salary Retention Teams may retain up to 50 percent of a player’s salary in a trade. They may only do it three times during the regular season. In an article published by The Athletic, Michael Russo says the NHL is well aware of which teams have the most cap room. This makes them more willing to serve as third parties in trades. In years past, teams such as the San Jose Sharks, Columbus Blue Jackets, and Minnesota Wild have been involved in three-team trades in years past. They are subject to limitation, however, as a single club can only absorb up to 50% of a player’s salary, and teams can only retain the salaries of three players. While the NHL does have limitations in place, teams will stretch those limitations as much as they can in the name of saving a few dollars in the salary cap. This year, the Arizona Coyotes notably were involved in the New York Ranger’s acquisition of Forward Patrick Kane, whose acquisition was only made possible with the help of the Coyotes. In addition to Kane, the Coyotes used up their two remaining retention slots to pick up some future assets. Now we turn to Long-Term Injured Reserve, or LTIR for short. Even the most mathematically advanced individuals have trouble decoding the foreign language of the LTIR. Long-Term Injured Reserve (LTIR) LTIR has, since its introduction, been a vehicle for teams to exceed the NHL’s salary cap and acquire players with their newly accrued cap space. If a player’s injury keeps him out for longer than 10 games or 24 days in the NHL season, a team may place that player on their Long-Term Injury Reserve list, opening up cap room equal to the average annual salary of the injured player. CapFriendly emphasizes that the “vast majority of details are not specified in the CBA”. So how does it all work? With the help of CapFriendly, we know that the LTIR merely provides relief if the club's average payroll exceeds the upper salary cap limit (the Cap Ceiling). Three equations determine LTIR relief. The “Basic Equation” is used during the season and off-season. The second is used on the final day of the offseason. The third is used when a team already has a player on LTIR. For our purposes, we will look at the Basic Equation. But before we dive into the equations, it is important to know what numbers we should use in these calculations. Using the Basic Equation, we are able to determine the team’s Accruable Cap Space Limit, (ACSL). The ACSL essentially serves as the team's new “cap ceiling”, or “upper limit”. To determine the ACSL, CapFriendly provides an example using the 2017-18 Cap Ceiling. The ACSL is calculated by taking the current Salary Cap Upper limit (Example: $75 Million in 2017-18) subtracted from the team’s cap space. If a team has $100,000 dollars in cap space, the ACSL would thus be $74.9M ($75M - $0.1M). Once a team exceeds its ACSL, the relief pools come into effect. As mentioned, teams get relief equal to that of the injured player’s average annual salary (AAV) plus salary bonuses (games played, A and B bonuses). To determine how much a team can exceed the league's upper limit, the equation below gives us an idea: Exceed Value = ACSL + Salary Relief pool (*not including performance relief pool) - League upper limit *performance relief comes into effect if the player has performance bonuses in his contract However, the problem is not in the calculation of the $ amount of relief. It is a rule that when a player is fit to play, a team must activate them. In 2020-2021, Nikita Kucherov was placed on LTIR following surgery at the start of the season. The Tampa Bay Lightning scheduled Kucherov’s surgery with enough time for him to recover and be ready for the playoffs. This allowed the Lightning to acquire more players, eventually ending the season $17.3M over the 2021 upper limit of $81.5M. The key here is that there is no salary cap in the NHL Playoffs, allowing Kucherov to return, and allowing the Lightning to avoid a cap nightmare of sending players down to meet requirements. Did those in the Tampa Bay Lightning organization do anything wrong, or did they merely push a “loophole” to its absolute limit? Will other teams do the same with their injured stars? Thoughts With the NHL’s current CBA running through the 2025/26 season, it’s difficult to determine whether this is going to be a point of contention between the League and the Players Association. According to an article from Josh Erickson of ProHockeyRumors, any change would require going to the bargaining table as it would be a “material change” under the current CBA, so real discussion of any change will have to wait until the conclusion of the 2025/26 season. The two sides will undoubtedly have many discussions regarding the use of LTIR and salary retention in trades. Salary retention in trades has long been a staple of NHL transactions, so team owners may shy away from the idea of limiting the tools they have to circumvent the tight cap ceiling. On the surface, using the rules as they were intended shouldn’t draw any attention. It’s how teams take the rule beyond its apparent purpose. Team doctors now get pulled into the fray as their collective opinion could be the difference for a team trying to compete for the Stanley Cup. While we do not know specifics, is it possible that medical personnel, in conjunction with the Tampa Bay Lightning, kept Kucherov out long enough that they could find a way around the NHL’s tight cap? Similarly, will the Arizona Coyotes, who at this time are not considered a contender, continue to use the abundance of cap space they have to help facilitate high-salary trades? These are situations the NHL would like to avoid, begging the question of their importance come the expiration of the Collective Bargaining Agreement. The Tampa Bay Lightning’s use of the LTIR in previous seasons has caught the eye of beat writers and fans everywhere. The Arizona Coyotes continue to serve as a broker for other teams and have no plan to stop. I believe this will absolutely come up in some form during negotiations for future agreements. Sources: https://www.capfriendly.com/ltir-faq https://sites.psu.edu/meghoran/2022/03/29/ltir-loophole/ https://www.prohockeyrumors.com/2022/03/nhl-general-managers-could-discuss-closing-ltir-playoff-loophole.html https://theathletic.com/4260632/2023/02/28/nhl-trade-deadline-ltir-memo/

The Athletic’s Kalyn Kahler, Mike Sando, and Stewart Mandel report Arizona Cardinals owner Michael Bidwill demoted former Cardinals executive Terry McDonough in 2019 after McDonough objected to a burner hone scheme to allow then-general manager Steve Keim to communicate with the organization. The Cardinals suspended Keim for five weeks. The police arrested him for extreme driving under the influence, defined as driving when one’s blood alcohol content (BAC) is at least 0.15 percent. The Cardinals suspended Keim, fined him $200,000, and required him to undergo counseling and evaluation and to complete a DUI education course. McDonough alleges in his arbitration demand Bidwill demoted him from an executive position after he disagreed with the decision to communicate with Keim through a “burner phone” the Cardinals provided to him A “burner phone” is an inexpensive mobile phone designed for temporary, sometimes anonymous, use, after which it may be discarded according to TechTarget. McDonough alleges that he suffered from “illegal and retaliatory mistreatment and abuse” from Bidwill after McDonough voiced objection to the burner phone scheme, which violated rules set forth for Keim’s suspension. The Cardinals prohibited Keim from contacting the Cardinals and from the team’s facilities during his five-week suspension in 2018. McDonough seeks unspecified damages for breach of contract, retaliation against a whistleblower, intentional infliction of emotional distress and defamation. NFL Commissioner Roger Goodell will hear McDonough’s arbitration hearing against the Cardinals. The Cardinals issued a statement regarding McDonough’s demand for arbitration. It states: “We are reluctantly obliged to provide a public response along with broader context for some disappointing and irresponsible actions by Terry McDonough.” “[The c]laims he has made in an arbitration filing are wildly false, reckless, and an opportunistic ploy for financial gain.” Jim McCarthy, an external public relations adviser to the Cardinals acknowledged the burner phone plan, and he blamed a nameless team executive for “obtaining mobile phones for communicating during the suspension period.” He credits Michael Bidwill for stopping the burner phone scheme. The NFL received McDonough’s claim last Tuesday, and the demand will be handled under the league’s arbitration procedures. McDonough alleges that between July 18-20, 2018, the burner phones were distributed at Bidwill’s direction to top team executives and head coach Steve Wilks. McDonough and Wilks objected to the burner phones. McDonough claims that when he spoke to Bidwill about his and Wilks’ objection to the burner phone scheme, Bidwill screamed at him at a high volume and he accused McDonough of insubordination. Allegedly, Bidwill wrote McDonough up for unprofessional conduct in the workplace after this incident. McDonough, the organization’s vice president of player personnel, alleges Bidwill bullied, belittled, and criticized him. He alleges Bidwill demoted him to senior personnel executive, dropping his salary from $550,000 per year to $330,000 per year. He alleges this demotion occurred due to his objection against the burner phone scheme. In 2022, Bidwill demoted McDonough again, accompanied by another pay reduction. Keim resigned from his general manager position in January of 2023. Alex Patterson is a Thomas M. Cooley Law School graduate and works for the City of Springfield’s Corporate Counsel as a paralegal. He played football for seventeen years as an offensive and defensive lineman. He graduated from Lindenwood University- Belleville in 2018 with a Bachelor’s in Sports Management. He can be followed on Twitter @alpatt71.

The Detroit Tigers’ 2023 season is off to a rough start. To compound a losing record, the Tigers are being sued for discrimination by a longtime former Tigers clubhouse manager who claims he was fired based on his age and race in violation of state and federal employment laws.[i] Nature of Discrimination Claims John Nelson, a Black former Visiting Team Clubhouse Manager, initially sued the Tigers in November 2022, alleging age and race discrimination. Nelson, who began his employment with the Tigers as a bat boy in 1979, claims that he was abruptly terminated in October 2021 after 33 years of loyal service and replaced by a much younger White assistant. At the time of his termination, Nelson was 58 years old and the only clubhouse manager of color in all of major league baseball. Nelson recently amended his Complaint adding a claim of race discrimination under Title VII of the Civil Rights Act of 1964. Nelson’s Amended Complaint alleges violations of federal law under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and state law under Michigan’s Elliot-Larsen Civil Rights Act. Nelson is seeking equitable and monetary relief including, but not limited to, compensatory and punitive damages and reasonable attorneys’ fees and costs. Focus on Performance Evaluations According to the Amended Complaint, Nelson was blindsided by the termination and the reason given for his termination. Nelson was told that he was fired based on the 2017-2018 survey results completed by visiting ball clubs. The surveys noted deficiencies with the facilities and services provided by the Tigers. Nelson claims that the Tigers’ reliance on the 2017-2018 survey is pretextual and that he was really terminated based on his age and race. According to Nelson, he consistently received positive written performance evaluations. The only exceptions were for his 2017 and 2018 baseball seasons, which noted that improvement was needed in certain areas. However, Nelson claims that the evaluation also recognized that much of the criticism was beyond his control and based on substandard facilities the Tigers provided visiting teams compared to other ballparks. Moreover, Nelson alleges that comments throughout the evaluation noted that he had successfully addressed complaints from the surveys and recognized his excellent evaluations from prior years. No formal evaluation was given for the 2020-2021 seasons. Nelson alleges that he had no reason to believe that his job was in jeopardy. As further circumstantial evidence, the Amended Complaint references an alleged racial comment by a White coach to a Black bat boy in 2017, other allegations suggesting that the Tigers are racially biased, and claims that MLB is becoming increasingly closed to African American players. The heart of Nelson’s claim, however, appears to be the inconsistency between his performance evaluations and the reason given for his termination. Takeaway for Employers The burden-shifting framework for discrimination claims[ii] ultimately requires the plaintiff to prove that the employer's stated reason for termination was pretextual or false. As the Nelson v. Detroit Tigers lawsuit illustrates, performance evaluations are often key pieces of evidence in discrimination suits based on termination for poor performance. If Nelson is able to prove that his termination is at odds with his performance evaluations, he may be able to avoid summary judgment and have a jury decide his case. Fundamentals are important in baseball. They are also important in human resources. Here are some basic but essential tips about using performance evaluations and managing performance: #1 Avoid curveballs: Be honest. Do not overinflate an employee’s rating. Give concrete examples of performance problems including dates and detailed facts. #2 Access to front office: Clearly define expectations and explain the consequences if expectations are not met. Allow the employee to give feedback and offer tools to help the employee succeed. Keep your front office door open. #3. Actively coach: Communicate with employees about their performance throughout the year – not just at a formal evaluation or at the end of the fiscal year. The evaluation should not be the first time an employee receives a compliment or learns of a serious performance problem. #4. Enforce team rules: Follow-up with an employee after a performance evaluation if performance dips or does not improve. If necessary, place the employee on a performance improvement plan that clearly outlines goals, expectations, and consequences. Discipline employees for misconduct or violation of rules. #5 Log performance: Terminating employment creates a litigation risk. It is important to have documentation that supports the legitimacy of the decision, such as records of performance problems, counseling sessions, written warnings, and other efforts made to improve performance. After a counseling meeting, have the employee acknowledge in writing that the employee met to discuss performance, understands the performance problem, and knows what is expected going forward. Conclusion The Nelson v. Detroit Tigers lawsuit presents an important reminder of the importance of accurately documenting an employee's inadequate job performance. Indeed, an employer’s ability to prevail in a discrimination lawsuit largely depends on its ability to support its decision through documented performance deficiencies, such as performance evaluations. By following these tips, employers can go a long way to ensuring that performance evaluations are accurate and that they can defend employment decisions based on performance. Ken Winkler is a shareholder at Berman Fink Van Horn in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via LinkedIn and Twitter @kwinklerbfvlaw. Sources: [i] Nelson v. Detroit Tigers, Inc., Case No. 2:22-cv-12822 (E.D. Mich.); Tony Paul, Fired clubhouse manager sues Tigers, alleging racial discrimination, The Detroit News (Nov. 21, 2022, 4:22 PM), https://www.detroitnews.com/story/sports/mlb/tigers/2022/11/21/fired-clubhouse-manager-sues-tigers-alleging-racial-discrimination/69668393007/. [ii] McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The National Football League Players Association (NFLPA) made headlines on March 23rd when they sent out a memo to all 32 NFL teams warning them about a man by the name of Ken Francis. Teams were told that Francis was not an “NFLPA certified agent” and that he “may be contacting Clubs and attempting to persuade [them] to enter into negotiations with or concerning Lamar Jackson.” NFL Management Council Exchange Memorandum: MC23-48. Former NFL Most Valuable Player Lamar Jackson is one of the most prolific quarterbacks in the game today––his combination of speed, quickness, and arm strength at the quarterback position is rare. Although the mobile quarterback has become more relevant in today’s game, Jackson is still widely considered the best dual-threat quarterback in the NFL. Jackson had a knee sprain to his posterior cruciate ligament (PCL) that forced him to miss the last six games of the 2022-23 season––one of which being a wild card matchup with the Cincinnati Bengals. Without Jackson, the Ravens lost to the Bengals in dramatic fashion, but that was hardly the story following the game. Like most public figures and celebrities, professional athletes generally retain an agent to represent them in different endorsements, marketing opportunities, and other business ventures. However, one of the most critical responsibilities of an agent is team negotiations. This aspect of being an agent is so critical that many athletes will have two agents: one to handle off-the-field negotiations and another to handle their playing contract. The NFLPA has strict guidelines for how someone can become a certified agent. On the NFLPA’s website, they list six requirements: Non-refundable application fee of $2,500 Undergraduate and postgraduate degree (Masters or Law) from an accredited college/university or at least seven years of sufficient negotiation experience Authorization to perform a background investigation Mandatory attendance at a two (2) day virtual seminar plus an additional day for administration of the exam Successful completion of a multiple-choice, proctored examination Valid email address More details about each component can be found at: https://nflpa.com/agents/how-to-become-an-agent. However, this list doesn’t tell the full story. Hundreds of people are able to (1) pay the $2,500 dollars, (2) obtain an undergraduate and postgraduate degree, (3) pass a background check, (4) attend all seminars, (5) take the proctored exam, and (6) have a valid email address every year. But only an estimated 36% of test takers actually pass the exam to become an agent. The exam is an open-book, open-note exam covering the Collective Bargaining Agreement (CBA). Many attorneys liken studying for the exam to studying for the bar. In other words, no average Joe can just sit and pass the exam. SULC Sports Agent Bootcamp: https://youtu.be/qNhj4I9cXcs; https://youtu.be/G2kErcJpLq0. It doesn’t stop there. Even if someone is able to pass the exam, the biggest hurdle most agents face is getting clients. If a certified agent does not negotiate an NFL contract within three years of passing the exam, then they lose certification and have to start back to ground zero. In the meantime, each certified agent has to pay $1,400/year in liability insurance to maintain certification and an additional estimated $1,000/state for any state they choose to pursue or represent clients. For example, even if an agent has zero clients, they will still need to pay $2,400 to maintain certification and legally pursue clients in their state of domicile. Agents will oftentimes pay upfront costs for their clients as well: nutritionists, lodging, combine expenses, personal trainers, family travel, etc. By the time it is all said and done, it is not atypical for an agent to spend upwards of $30,000 before their client is even on a team. An agent generally doesn’t get paid until their player receives their first paycheck from their playing contract. The NFLPA allows an agent to receive up to 3% of an athlete’s contract. Each agent is able to negotiate on that number, but they cannot exceed 3%. Most agents keep their average number disclosed to maintain a competitive advantage. But it can be reasonably assumed that the more recognizable and reputable an agent is, the more they will charge. Just like any profession, there are good and bad agents. Some are more hands-on than others, and some are better at getting positive results than others. However, it is undeniable that several agents work hard to ensure their clients receive every penny possible. For many professional athletes, paying a 3% fee to have someone handle team negotiations while they focus on playing the game is more than worth it. However, there are a few athletes that prefer to forgo professional representation. The NFLPA allows for players to represent themselves if they choose to not hire a certified agent. Richard Sherman, Russell Okung, Edgerrin James, Bobby Wagner, and Deandre Hopkins are some of the top players who have chosen to represent themselves rather than hire an agent. Many of them have been very successful in doing so. However, the quarterback position brings with it more weight. Since the quarterback is generally the highest-paid player on a team, they have the most to gain and lose during contract negotiations. Jackson had been seeking a long-term extension for about two years now. The Ravens placed the non-exclusive franchise tag on Jackson in early March. This means that Jackson may negotiate with other teams and actually sign an offer sheet with them if: (1) they give up two future first-round picks and (2) the Ravens do not match. Jackson has publicly announced via Twitter that he demanded a trade from the Ravens back on March 2, however, this wasn’t made public until late March. This means that Jackson demanded a trade, and as a response, the Ravens placed the non-exclusive tag on Jackson. With the NFL Draft in a few weeks, Jackson is set to receive $32.416 million in 2023. Jackson could choose to go the Le’Veon Bell route and not play through the tag, but he would not get paid in the process. Whether or not Ken Francis was actually calling teams on Jackson’s behalf remains a question. Jackson denies the reports. However, what is not in question is that there is no one by the name of Ken Francis certified by the NFLPA to act on his behalf. Caleb Ortega is a 1L at South Texas College of Law. He served in the United States Marine Corps and is an active member of his school’s Sports & Entertainment Law Society. He can be reached on Twitter and LinkedIn.

The Major League Baseball Players Association (MLBPA) had long been regarded as the best player union in all of the major professional sports. Whether you want to talk about fully guaranteed contracts, the absence of a salary cap, or salary arbitration, the MLBPA does an exceptional job of protecting professional baseball players at the highest level. However, there are hundreds of minor leaguers in each of the 30 MLB organizations who haven’t received that same level of protection with a Collective Bargaining Agreement specifically designed for them. Any baseball fan knows full and well life in the minor leagues is not the most glamorous. Small towns, long bus rides, and less-than-stellar hotel rooms are all a part of the Minor League Baseball experience. With that being said, there is a fine line between creating acceptable working conditions and those that quite frankly suck, and there have certainly been examples of that line being crossed over the past few years. First (and most importantly), the pay in the low levels of the minor leagues has been less than minimum wage levels, especially considering it only covers the duration of the six-month season and not the entire calendar year. In addition to the pay, we’ve heard about meager living conditions, less than passable pre and postgame meals, and numerous other issues that make playing professional baseball a burden that many simply aren’t willing to take on in order to chase their dreams. What really stood out to me and others that followed the issue is why certain MLB teams wouldn’t invest in their future. Minor Leaguers after all are the next generation of talent that will find themselves playing in the big leagues in the future, so why would you not work to the best of your ability to maximize their development? Certainly, sleeping on a lawn chair, eating fast food every day, and working off-season jobs don’t lend to that at all. Well, it looks like MLB owners and the league finally recognized that it was time for this reality to change. Finally, after efforts from organizations like Advocates for Minor Leaguers, the MLBPA, and media backlash, MLB and MLBPA have an agreement on a collective bargaining agreement for minor league players. As part of the agreement, minor league players will receive a significant pay raise across the board as detailed in the table below In addition to pay, minor leaguers will see improvements in living conditions, a formal grievance procedure with access to neutral arbitrators, and only six years of team control instead of seven. According to The Athletic, the salary increases took effect as soon as the deal was ratified, and players are to receive retroactive pay for four weeks of this year’s spring training. These new initiatives are expected to cost MLB an additional $90 million in total. It’s worth noting that the only downside for minor leaguers is that there could be a reduction in the number of players in MLB organizations over time, but this was a no-brainer for MiLB players to accept given the benefits that will be available for those who are in fact able to remain on rosters. Whether it was the handling of the Astros sign stealing scandal, the return from COVID-19, or the lockout and CBA negotiations prior to last season, Rob Manfred and MLB have taken on considerable criticism from the media and fans over the past couple of years. But here recently, you have to give the commissioner’s office credit. No games were lost last year to the lockout, the new rules have brought a level of excitement the game desperately needed, and this historic CBA for minor leaguers are all great developments for the present and future of our national pastime. Hopefully, this agreement allows players who in the past may have given up on their dream due to the lack of pay or subpar living conditions to continue chasing the goal of becoming a big-league ballplayer. It’s a huge step forward for the game of baseball. Brendan can be found on Twitter @_bbell5

Good news, basketball fans. The NBA and the Players Association have agreed to terms on a new collective bargaining agreement, laying the groundwork for league operations for the next seven years. The agreement comes several months before the 2023/2024 season is set to start, eliminating the possibility of a lockout that last occurred in 2011. The NBA CBA is a lengthy document that takes a certain level of legal acumen mixed with basketball obsession to fully comprehend. It often takes front offices months to get fully up to speed on the rules in which their league operates. With that being said, let’s breakdown a few of the most notable provisions in the new CBA without making our heads spin: Revenue Sharing The NBA operates in a revenue-sharing system between the owners and the players, each taking nearly 50% of the basketball-related income.[1] When the leagues make more money, the players sign contracts worth higher figures — a rising tide lifts all ships. The 50/50 split didn’t change in the latest CBA; however, the players secured a big victory in increasing the overall basketball-related income pie. Historically, the NBA’s licensing revenue was excluded from basketball-related income with the money generated exclusively going to the owners. The players bargained to have that figure included, $160M for the 2023/2024 season, for which the players will be entitled to $80M. That money will attribute to higher salaries for players. Salary Cap Apron The NBA is a “soft” salary cap league, which allows teams to spend above the salary cap figure under special circumstances. Teams are penalized in various ways for spending over the cap, including having to pay a special tax for every dollar spent over a certain threshold. The NBA also implements a luxury tax line, which is set above the cap figure, and forces teams that cross it to reimburse the cheaper teams that spend below. But for rich teams looking to compete for a championship, these penalties can feel like a drop in the bucket. The 2022/2023 salary cap figure was $123M, with the Golden State Warriors spending nearly $200M and taking on a host of monetary penalties. The new CBA looks to address this spending disparity between the haves and the have-nots. Salary caps are set to promote competition between small market teams with modest evaluations and teams in booming territories such as Los Angles, New York City, and Silicon Valley, who have deep pockets to spend in pursuit of a championship. Up until the latest CBA, the disincentives for crossing certain salary cap thresholds were purely financial. As evidenced by the Warriors, certain teams are willing to swallow the extra financial burden if it means granting them a better roster to compete for a title. Under the new CBA, crossing certain spending thresholds will not only leave a hole in the owner’s wallet but will also hinder team building. Teams that cross an apron set around $17.5M above the luxury tax line will be restricted from utilizing two important roster-building tools: the buyout market and the mid-level exception. Without getting too deep into the NBA front office weeds, these tools are routinely used by GMs of teams over the cap to still add talent in the offseason and during the season. Crossing this apron also stifles a team’s trade abilities. A team above the apron is no longer allowed to send cash out in trades or bring in more salary via trade than they send out. The clearcut best strategy for roster management is no longer an owner writing a blank check. GMs will have to be strategic around crossing this salary cap apron at risk of limiting their roster management toolkit. This salary cap apron could be viewed as a further attempt by the league to even the playing field. However, critics will say that this suppresses team spending, something that should be encouraged for the benefit of the players. Let’s check in with Draymond Green to see what he thinks: Minimum Games Played Requirement for Awards If we picture the NBA as a giant ballroom, there happens to be a large elephant standing in the corner that nobody wants to make eye contact with. Over the past few seasons, local television ratings are down.[2] One of the explanations for the drop in ratings is “load management”, the phrase that was coined in the last decade to refer to the decision by a player and his team to sit out games for rest purposes unrelated to a specific injury. The rise in load management has caused star players wearing street clothes to become routine. The NBA attempted to address this issue by building an incentive into the new CBA for players to play in more games. To qualify for individual awards, including MVP, All-NBA, and All-Defense, players now must play in 65 of the 82 regular season games. These awards may seem superficial, but under separate provisions within the CBA, winning these awards qualifies players for certain max salary contracts they would otherwise be ineligible for. Through these mechanisms, the NBA is telling its players the simple but crucial message: if you want to earn the most money, you must play. Last year, four of the fifteen All-NBA spots were filled by players who suited up under the 65-game threshold. This year may be more, with stars such as Steph Curry, LeBron James, Kevin Durant, Kawhi Leonard, Paul George, Anthony Davis, Damian Lillard, Giannis Antetokounpo, Devin Booker, and Ja Morant all set to come in below 65 games played.[3] In-Season Tournament Another aspect of the new CBA that places an emphasis on regular season games is the in-season tournament. A lot of information is still yet to be made public on what exactly the tournament will look like, but this doesn’t come as much surprise as the NBA has been flirting with the idea of this tournament for years. The league has one major hurdle when it comes to an in-season tournament — getting everyone to care. Fans must be invested for this idea to work. Players must treat this seriously and have an enticing reward for pushing to win. Without the entire NBA ecosystem buying in, this midseason tournament becomes regular-season games packaged in a different format. Now, back to Draymond Green for his thoughts: The Draft – One and Done Stays In recent years, there has been a lot of smoke in NBA circles about reworking the rules governing the NBA draft, including axing the “one-and-done” rule. This rule was negotiated as part of the 2005 CBA, forcing high school players to enter college for one season before jumping to the professional ranks. Originally, the owners fought for the one-and-done rule due to the risks and unpredictability of players leaping from a high-school cafeteria straight into the NBA. Now, the tides have turned. Owners would likely be in favor of younger players coming into the league and choosing to utilize the NBA’s version of a minor league, the G-League, instead of going to college. Better talent in the G-League equals more interest and money in the NBA. During this round of negotiations, the Players Association was likely fighting to keep the one-and-done rule in place. There are around 400 roster spots in the NBA. The Players Association represents current and former NBA players, negotiating for their interests. If the draft were to be opened up to high schoolers, they would fill some of the 400 roster spots while earning some of the basketball related-income referenced above. Potential newcomers are a threat to the active player’s bargaining unit. The new CBA keeping the one-and-done rule in place is a win for the players. More to Come Labor negotiations are the ultimate give-and-take exercise, as evidenced by the provisions laid out above. Certain aspects can be considered a win for the players, others for the owners. The official CBA has not been made public yet, so we will have a fuller picture when that happens. But the timeliness of the agreement shows that the players and owners were both willing to swallow interests to avoid a potential lockout. And for that, basketball fans can breathe a sigh of relief. Matt Netti is a 2021 graduate of Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on Twitter and Instagram @MattNettiMN and find him on Linkedin at https://www.linkedin.com/in/matthew-netti/. You can find all his work at www.mattnetti.com [1] Larry Coon, NBA Salary Cap FAQ, Sports Business Classroom (last visited April 6, 2023) http://www.cbafaq.com/salarycap.htm#Q15. [2] John Ourand, Warriors run up the RSN Score, Sports Business Journal (last visited April 6, 2023) https://www.sportsbusinessjournal.com/Journal/Issues/2022/02/28/Upfront/Ratings-and-Research.aspx. [3] Sam Quinn, NBA CBA 101: Everything to know about new agreement, from salary cap to free agency and beyond, CBS Sports, (last visited April 6, 2023) https://www.cbssports.com/nba/news/nba-cba-101-everything-to-know-about-new-agreement-from-salary-cap-to-free-agency-and-beyond/.

On Tuesday, ESPN’s Adam Schefter broke the news that Arizona Cardinals owner, Michael Bidwill, has been accused of cheating, discrimination, and harassment by a former Cardinals executive, Terry McDonough. The allegations came from an arbitration claim filed by McDonough on Tuesday to NFL Commissioner, Roger Goodell. Shortly after, Cardinals’ external public relations adviser, Jim McCarthy, fervently denied the allegations and called them “widely false, reckless, and an opportunistic ploy for financial gain.” The allegations set forth by McDonough relate to the pressure he and then Cardinals’ head coach, Steve Wilks, were allegedly under to use burner phones to communicate with the former team General Manager, Steve Keim, who recently plead guilty to extreme DUI in Arizona, stemming from a 2018 arrest. Keim was subsequently suspended by the team, fined $200,000, and required to attend counseling. During Keim’s five-week suspension, the team and team executives were not supposed to have contact with Keim, yet Bidwill required Wilkes and McDonough to communicate with him through burner phones, to which both refused. Bidwill then publicly reprimanded and openly criticized McDonough and said he was going to write him up. It's important to note that Bidiwll demoted McDonough in 2019. McDonough is essentially claiming retaliation by Bidwill in his complaints, alleging that the demotion was due to his refusal to be a part of the scheme in handling Steve Keim’s suspension. Steve Wilks sued the NFL in 2022 in a class action racial discrimination suit. It will be interesting to see how Bidwill and the team respond in the coming days and whether there is any truth to the allegations and if so how much. Bidwill is not the only Arizona professional sports owner to come under fire, as former Phoenix Suns and Phoenix Mercury owner, Robert Sarver, recently sold both franchises, almost forcibly, amid allegations of sexism, racism, and creating a hostile working environment. These allegations also come at a time when Washington Commanders owner, Dan Snyder, is in the process of selling the team after years of allegations, Congressional hearings, and public pressure. Will the allegations against Bidwill be enough to also force him to sell? Duncan can be found on Twitter @dunkuno

Recently I have been reading A Whole Different Ball Game by Marvin Miller, the father of the Major League Baseball Players Association (“MLBPA”). This memoir is an eye-opening perspective of the MLBPA’s inception. In the chapter titled “Card Wars,” Miller dives into the battle over major leaguers’ name, image, and likeness (“NIL”) rights between the MLBPA and Topps—the latter had an outright monopoly on the right to sell players’ names and pictures either alone or with confectionary products (trading cards). Topps later lost their monopoly in Fleer Corp. v. Topps Chewing Gum, Inc.,[1] but the reason behind the feud with the MLBPA was the standard form contract players signed with Topps for the usage of their NIL. The contract precluded players from granting the right to sell their NIL to any other entity, which did not expire until after five years in the majors—meaning a player could be under a perpetual contract with Topps if they never attained five years of MLB service.[2] More importantly for the players association, the contract also provided grossly inadequate compensation for the right to sell a player’s NIL. For signing the contract, players were given $5 and another $125 a year for each year played at the major league level, and Topps paid no royalties and provided no other benefits, all despite Topps’ annual revenue being in the millions.[3] Why do I bring this up? As I read this chapter, I could not stop thinking about the similarities the MLBPA was facing here in its early days of representing MLB ballplayers to what college athletes have to be concerned about now signing NIL deals. The key issues for all student-athletes are (1) receiving appropriate compensation for their services and the right for a business to profit off their NIL, and (2) most importantly, ensuring whatever rights are granted are limited in time, in scope, and to the services bargained for. Appropriate Compensation Determining the proper value a student-athlete brings to the table for a company seeking to profit from using their NIL is an extremely important step to an NIL deal. There are many things that go into calculating a student-athlete’s value for a particular NIL deal, but the general idea this article focuses on is making sure the payment system provided in the contract corresponds to whatever projected revenue the business will receive using the student-athletes' NIL. When Marvin Miller renegotiated the Topps contract, the result was a double in the yearly pay and royalties of eight percent on sales up to $4 million and ten percent on sales above. As compared to the original deal, this pay scheme was much more consistent with the value Topps was getting from the players. Therefore, when best-representing student-athletes interests, it is wise to spot the payment provision and ensure a proper valuation method has been used in determining the payment scheme. An understanding of how much the business will profit from the deal is necessary for this to happen. Limited Grant of Rights The crucial aspect of every NIL deal is understanding what limitations are attached to the granting of NIL rights. Rights need to be limited in time—be it the duration of the season, all years of NCAA eligibility, or just for as long as the services require. The reason rights need to be limited in time is so that there exists no perpetual right of the business to use a student-athlete’s NIL. The usage rights should only last as long as the student-athlete is compensated for services because this shorter term provides the greatest opportunity for the student-athlete to renegotiate the terms of the deal. For example, if a student-athlete signs a deal before their season and continues to have a stellar performance, his NIL value has now risen due to his increased popularity within the sport. A good representative may use those factors to renegotiate a deal with the same company but worth more than the first. A limitation in scope builds off a limit to the term, because the royalties a student-athlete receives, however, need to last in perpetuity, otherwise, the business will eventually make 100 percent profits once services expire (this is why some state NIL laws prohibit deals lasting longer than eligibility). This limitation also matters because the ownership and use of any property that is produced as a result of the services provided by the business, i.e., photos or signed memorabilia, must be outlined in the contract. Lastly, the rights need to be limited to the services provided by the student-athlete as indicated in the contract. A student-athlete does not want to run into a situation where they sign a deal that gives a business the uncontrolled right to use their NIL for any other reason, which would essentially bar that student-athlete from selling their NIL to anyone else because the first business has full authority over their NIL. This is the problem the players ran into with Topps. Forward Thinking It is interesting to see that the struggles student-athletes deal with in the NIL space are vividly similar to those of the major league baseball players in the 1960s. The MLBPA-Topps controversy sheds light on the most important features of NIL deals for college athletes—adequate compensation and structured granting of NIL rights. The MLBPA countered Topps with a group licensing program that has since grown into a multi-million-dollar market for major league players and soon, potentially for minor leaguers. Thus, as a final note that I do not intend to discuss, it is worth thinking about how a group licensing program would change the NIL market. Ideally, though, there would have to be some sort of student-athletes union for this to be effective. Jared Yaggie is a 2L at the University of Cincinnati College of Law. You can connect with him via LinkedIn or on Twitter @JaredYaggie. Sources: [1] 501 F.Supp. 485 (E.D. Pa. 1980). [2] Id. at 490. [3] Id. at 492.

For many attorneys and law students aspiring to utilize their legal degrees to work in the sports industry, an in-house position with a professional organization is considered the peak of an arduous climb to the top of the sports law world. Oftentimes, legal positions in some of the mainstream sports in America, namely football, basketball, and baseball, are typically those that are sought after by the sports enthusiasts in the legal world. Nevertheless, due to the exponential growth of its popularity and the constant expansion of its professional leagues, the path toward in-house positions in American soccer has never appeared more open for those aspiring to work within the beautiful game. As an incoming law student who ultimately hopes to attain an in-house counsel position within professional soccer, I wanted to learn from those who are currently in positions toward which I and several others passionate about the intersection of soccer and the law aspire. Accordingly, I decided to start a process that I wanted to document by way of Conduct Detrimental to share with all who are interested – an interview with a member of the legal counsel at every MLS club. From these interviews, I hope to be able to provide insight into the nature of legal counsel positions in professional soccer. And at the end of this process, I hope that we will all be more knowledgeable on what it requires to successfully convert our greatest passions into a dream occupation. For this interview, I was fortunate to speak with Peter Tringali – Senior Legal Counsel for the New York Red Bulls, Red Bull Arena, and the New York Red Bulls Academy. A graduate of Binghamton University and Brooklyn Law School, Mr. Tringali worked in private practice in New York until joining the Red Bulls in April 2019. The conversation I had with Mr. Tringali was incredibly informative, and it was an absolute joy to learn from him. The conversation represents Peter’s individual views and opinions and do not purport to reflect the views or opinions of Red Bull or Major League Soccer. With that said, here is the interview with New York Red Bulls Senior Legal Counsel, Peter Tringali: 1. BG: Tell us a bit about your story – what led your interest in working in-house within soccer to develop and the career steps you took that eventually placed you in your current position. PT: I always liked the idea of working in-house, even before I knew what it actually meant. I thought it would be fun to work for a brand or team where I could support on a variety of matters while providing strategic and business advice (in addition to legal advice) in an environment that is conducive to maintaining sometimes elusive “quality of life”. I never had a specific passion for soccer (though now I do!), but always knew working in sports or entertainment was kind of the dream. In law school I got an internship working in-house for a company that runs military-style obstacles courses/mud runs. For my 2L summer, I was fortunate enough to get a summer associate position in big law and was extended an offer for after graduation. Given the job offer, and my significant student loan debt, I focused less on finding my “dream job” coming out of law school and focused on just getting the most out of the opportunities that I had been presented with – in order to set me up for long term success. It’s a long and winding road. For me, this meant taking on as many different opportunities as I could get my hand on… taking on pro bono matters, helping out different practice groups, etc. When I moved firms, I joined a “pure” transactional practice group so I could learn what it took to negotiate and draft complex contracts and to efficiently run deals. 2. BG: What does a typical workday look like for you as Senior Legal Counsel at the New York Red Bulls? Is your position more of a consultancy role, or do you primarily serve as the club’s representative in all pertinent legal matters? PT: The cliché answer to this question is also the accurate one: every day is different. We’re responsible for advising the front office, the sporting department and the arena co with legal, risk and strategic advice. A majority of our work is transactional – drafting and negotiating contracts, however we are also responsible for risk and liability issues and disputes. With respect to specific legal doctrine, there is certainly an emphasis on corporate law matters, intellectual property, labor and employment law, FIFA rules and regulations, and data privacy and security law issues. 3. BG: I noticed from your LinkedIn profile that you also serve as Senior Legal Counsel for Red Bull Arena and the Academy program for the Red Bulls. What are some of the differences that you’ve found – if any - between your role for each of these areas of the franchise? PT: The work I do for RBA focuses on negotiating arena license/rental agreements, contracting with our service providers and vendors, advising on capex improvements, general risk management advice, any personal injury or property damage claims that may arise, and advising on arena policies and rules. In addition to hosting all of our first team MLS matches, we have partnered with the local NWSL women’s team to stage their matches, we host third-party national team or club friendlies, a variety of other sporting events (rugby, lacrosse, football), and even concerts. We also license use of the facility to film, tv, and commercial productions. With respect to the Academy, we have six teams beginning with U12. In addition to providing legal support on any vendor/service provider relationships, we also are responsible for implementing policies and practices regarding the health and safety of our athlete participants and what can more broadly be thought of as “SafeSport” compliance. Finally, we also advise the academy on MLS and FIFA rules and regulatory matters. 4. BG: If you could list 3 of the most important skills necessary to work as in-house counsel for an MLS club and provide a brief explanation for their importance, which skills would you choose? PT: Ability to effectively negotiate and draft contracts is imperative! Contract work represents more than 50% of my overall workload. In addition to that, I would say communication skills/inter-personal skills are key. Both in order to learn and understand the business’s needs, concerns, and priorities, but also to be able to analyze complex legal issues and communicate the key points in a concise manner. In the law firm setting as a junior attorney, your clients are the partners you work for and you are primarily communicating with other attorneys. Conversely, in-house counsel is required to communicate issues primarily to non-attorneys (at least internally). Working in-house provides counsel the opportunity to build relationships with a wide array of stakeholders, including business clients, ownership, league representatives, counter-parties, and government officials. Building relationships with each of these individuals ensures productive ways of working, trust/accountability, and goodwill. 5. BG: As a law student, did you know that you wanted to work in the sports industry? If so, how did you prepare yourself to accomplish this goal whilst in school? If not, what led you to decide to work in sports and, more specifically, for an MLS club? PT: As mentioned above, I always had an eye on sports and entertainment, but at the point I took a financial restructuring job in big law, I kind of thought the ship had sailed. I had one sports related internship in law school, I was also able to get some tangentially related sports industry experience working as a paralegal before law school, and in each of my two law firm jobs. I think the best thing you can do to prepare yourself for an in-house generalist role is to focus on transactional skills and develop a well-rounded set of experiences. I feel very fortunate to have this position, but I put in a lot of hard work to set myself up to capitalize on my good fortune. Self-education is another critical step. Nobody can prevent you from becoming an expert at legal issues impacting the sports industry, or from reading league collective bargaining agreements or publicly filed court documents. If you want to be a sports lawyer, then be a sports lawyer. The job opportunity will follow. Read everything you can get your hands on related to the industry, network and create relationships, and be ready to pounce when the opportunity comes along! Finally, if you’re still in law school, do whatever you can to get an externship/internship in the industries you want to work. It’ll help you build relationships, learn about the industry, and helps give your resume legitimacy/authenticity. 6. BG: What is the one critical piece of advice that you could offer from your experience to law students aspiring to work in-house not only in soccer but in sports as a whole? Additionally, what is one piece of advice that you could offer about the industry to law students that you wish you were given when you were in law school? PT: Law students in particular are terrified of being pigeon-holed… It’s such an overblown concern! I interned for government agencies and in the judicial system, practiced bankruptcy/restructuring law for 3 years, and then as a banking and finance lawyer for 3 years before joining Red Bull New York. Focus on gaining a breadth of experience. Try new things. Be humble and curious and don’t pretend you know more than you do. There is pressure to impress, but no seasoned attorney expects a first-year associate to be an expert. Junior associates impress by asking good questions, being eager to learn, working hard, displaying sharp attention to detail and good interpersonal skills. Getting to the level where you can be a successful in-house attorney, especially in demanding areas like sports or entertainment, takes time! A special thank you to Peter Tringali for his contributions to this article. He can be found on LinkedIn at Peter Tringali. Bryce Goodwyn is a 1L at Regent University School of Law. He currently works as a Dean’s Fellow completing research and administrative work. He also formed part of the recently established National Sports Legal and Business Society as the East Region Chair. He can be found on Twitter @BryceGoodwyn and on LinkedIn as Bryce Goodwyn.