The Ivy League is being accused of engaging in antitrust in order to eliminate competition within intra-conference athletic recruitment. A recent class action lawsuit has been filed by a current Brown University Basketball player, as well as Brown Basketball alumni. The plaintiffs allege that Brown University, Columbia University, Cornell University, Dartmouth College, Harvard University, the University of Pennsylvania, Princeton University, and Yale University have broken federal antitrust laws in order to cheat student-athletes out of scholarship money and decrease the schools’ total scholarship payments. In reality, this is not collusion or market manipulation. The Ivy League doesn’t have a monopoly on NCAA athletics. These athletes were not forced to go to the Ivy League. These students agreed, with full knowledge, that they would be paying for their education when they committed to Ivy League schools for sports. While the plaintiffs’ argument sounds juicy at first, when you think about it, it isn’t. While it is true Ivy League policy banning athletic scholarships does eliminate scholarship competition within Ivy League recruitment, these athletes had plenty of other choices. The Ivy League hardly has a monopoly over NCAA Division I sports. While it differs by sport, most major NCAA Division I sports have dozens of conferences for the athletes to choose from. These athletes were free to attend any other D1 school in any other D1 conference. In fact, many of these athletes were likely recruited by such other schools, yet they chose to attend these Ivy League schools to enhance their own individual pedigrees. Sources: https://www.highereddive.com/news/ivy-league-sued-ban-athletics-scholarships/644517/ https://www.wsj.com/articles/ivy-leagues-agreement-to-ban-athletic-scholarships-is-illegal-lawsui t-says-e1e7c29c https://ago.mo.gov/civil-division/consumer/antitrust-laws/what-are-the-antitrust-laws#:~:text=The %20Sherman%20Act%2C%20enacted%20by,bid%20rigging%20and%20tying%20agreements.

The world is moving at a ridiculously fast pace right now. Collegiate athletes are finally able to get compensated for their name, image, and likeness (NIL), shifting the definition of what is once met to be a student-athlete. NIL money has officially changed the game. We have already seen collegiate athletes almost make what would have seemed like crazy decisions just 5 years ago as a result of NIL money. CJ Stroud, Ohio State’s quarterback in 2022, is currently a consensus top 5 pick in the NFL draft, with rumors he may even be drafted first overall after the recent Chicago Bears and Carolina Panthers trade. However, he waited until the final day to declare for the NFL draft. This decision was a result of the possibility that booster-funded NIL collectives could offer a contract for Stroud to remain at Ohio State rather than declaring for the draft. These lucrative deals do not just come from NIL collectives but also from any company willing to pay the price. Companies like Beats by Dre and Fanatics have made deals with University of Southern California quarterback Caleb Williams leading to his net worth being estimated at 2.4 million dollars before he has even taken an NFL snap. For so long, social media influencers who were also collegiate athletes were not able to profit from this online success until after they graduated. Some, like former University of Central Florida kicker Donald De La Haye, even decided to forfeit their scholarships to instead profit from their social media. His channel, “Deestroying”, has since eclipsed 5 million subscribers, and it is safe to say De La Haye has profited immensely from this decision. Today, the combination of social media influencing and NIL deals has created a new age wild west. Olivia “Livvy” Dunne is a gymnast at Louisiana State University (LSU) who has become a social media sensation with over 7 million followers on TikTok. With the ability to profit off her NIL, she has been able to make brand deals while still remaining affiliated as a student-athlete with her school, unlike De La Haye before this NIL legislation. However, Dunne has recently faced backlash for a recent partnership with the company Caktus AI. Caktus AI is an educational artificial intelligence tool whose target demographic are students looking for help with school by receiving essays generated by the AI system. Students are able to refine this search in detail, leading to a very real possibility of the system being used for academic dishonesty. Following Dunne posting a TikTok about the company, LSU published a statement stating that, “using AI to produce work that a student then represents as one's own could result in a charge of academic misconduct, as outlined in the Code of Student Conduct.” While Dunne and Caktus AI were not specifically mentioned, it seems clear who the statement was aimed towards. Athletes are required to disclose contracts to a designated official at their school to ensure there are no conflicts with any contracts the school has with other companies or organizations. Time will only tell if schools will attempt to limit posts like Dunne’s that may go against certain values they have. Dustin Pokorny is a 1L student and representative of the Sports Law Society at the University of Southern California Gould School of Law in Los Angeles. He can be found on LinkedIn at https://www.linkedin.com/in/dustin-pokorny-301459172/.

Two student-athletes have filed suit against the Ivy League and its member universities, claiming they have engaged in price-fixing by not offering athletic scholarships or compensation while conducting business as for-profit organizations. Two basketball players from Brown university have filed a lawsuit in the Connecticut District Court challenging a 69-year-old joint ivy league agreement that forbids member schools from providing athletic scholarships or paying athletes for their performance. According to the lawsuit asking for class-action status, the agreement has direct anti-competitive implications, increasing the net price of education that Ivy League players pay and suppressing reimbursement for the athletic competition they provide to the schools. Tamenang Choh and Grace Kirk, the plaintiffs, assert that they were offered full-tuition athletic scholarships from at least one other division 1 school. However, Brown University only provided need-based financial aid, which did not fully help with the enrollment cost or strain of athletic performance. For more than 10,000 present and past Ivy League athletes dating back to 2019, the complaint asks for damages and the termination of the no-scholarship agreement between the league. The limitation on athletic scholarships has been around since its establishment in 1954, with a slight revision in 2017. Eight Ivy League institutions are defendants in the lawsuit: Harvard, Yale, Brown, Princeton, Dartmouth, Cornell, Columbia, and Penn. There is policy support by Robin Harris, executive director of the Ivy League, who claims that the true league's athletic programs exist on the fundamental idea that student-athletes should be representative of the larger student body, including having access to the need-based financial aid. Each Ivy League student-athlete embarks on a journey that balances top-tier academic education with the chance to play Division 1 athletics, ultimately paving the way for lifelong success. Attorneys for the Brown athletes, however, emphasize that other prestigious academic institutions, like Stanford and Duke, provide athletic scholarships, uphold high academic standards, and compete for exceptional athletes without predetermined price caps. The lawsuit also claims that Ivy League universities significantly influence a small group of individuals who are elite students and athletes. The league artificially reduces the market for those kids by refusing to award athletic scholarships. Among Division 1 athletic leagues, the Ivy League is unique in not providing athletic scholarships although the league has competed with more prominent schools for some solid recruits. With notable alums including Ryan Fitzpatrick and Jeremy Lin, Ivy League schools have found success beyond their collegiate playing years. The Ivy League's stance has its critics who claim that the elite applicants may decide to attend other institutions that give scholarships, decreasing the athletic competition. Others contend that the league's academic requirements and the availability of need-based financial aid adequately compensate the athletes. The League's policy was contested in court in 2008 by former Dartmouth football player Miles Richardson. Richardson similarly claimed that the Ivy League and its member institutions had conspired to restrict financial aid and scholarships in violation of antitrust laws. A federal judge dismissed the complaint after finding that the Ivy League's policy did not violate antitrust laws. How the current legal dispute will turn out is still up in the air. To increase the chances of success, the plaintiffs are asking for the Ivy League acts to be, per se, illegal. However, they have defended this stance in the past, and its member institutions may contend that their academic standards justify it. With Princeton's current run in the NCAA tournament, this lawsuit could gain some traction in the public eye. AJ Calabro is a former student-athlete at Syracuse University and a current law student at Roger Williams University. He can be reached by email at [email protected] or on Twitter @AJ_Calabro Sources: https://www.ctinsider.com/news/article/ivy-league-lawsuit-among-changes-in-college-sports-17853463.php?src=ctiartribbon https://www.espn.com/college-sports/story/_/id/35812605/athletes-sue-ivy-league-no-scholarship-policy https://apnews.com/article/ivy-league-lawsuit-athletes-brown-scholarship-771b34fa36ea06f6109435102d939299

In the latter part of the 20th century, St. John’s was one of the proudest and most successful college basketball programs in the country. Under coach Lou Carnesecca, the Red Storm won over 72% of their games, was a 1 seed three times, and reached the Final Four. However, since the turn of the century, things have gone downhill for the program. Remarkably, St. John’s hasn’t won a game in the NCAA Tournament in over 20 years now. Who receives the blame when programs fail to meet their historical expectations? Most of the time, it falls on the coaches. After the Red Storm slumped in Big East play for yet another season, the school fired fourth-year head coach Mark Anderson. Many in college basketball expected the move given the program’s struggles. However, an interesting development about Anderson’s firing popped up this week: St. John’s fired Anderson for cause. According to the termination letter obtained by ESPN, St. John’s claimed there was "failure to create and support an environment that strongly encourages student-athletes who are in the men's basketball program to meet all university academic requirements," "failure to perform your duties and responsibilities in a manner that reflected positively on St. John's University ... in actions [that] brought serious discredit" to the school and "failure to appropriately supervise and communicate with your assistant coaches." If you’ve ever looked at a college coach’s contract, you’ll see that there are numerous responsibilities a coach has beyond just the Xs and Os. In addition to the most obvious task of winning games, there are clauses about team academic performance, media obligations, reflecting positively on the school, etc. Furthermore, there are clauses about how a coach could be terminated for cause if they run into legal issues, commit NCAA violations, and other off-the-field/court problems (i.e. Chris Beard at Texas). From what we know, Anderson isn’t in any legal trouble with the law or the NCAA, so this is all about his inability to perform his essential duties within the program. Clearly, St. John’s believes they have enough on him to fire him for cause. On the other hand, Anderson strongly disagrees. "I vehemently disagree with the university's decision to terminate my contract for cause," Anderson said in a statement to ESPN. "The for cause accusation is wholly without merit and I will be aggressively defending my contractual rights through an arbitration process." According to the contract, St. Johns would have been on the hook for an $11 million buyout if Anderson had not been fired for cause, so it’s unsurprising the coach isn’t going down without a fight. The backdrop behind all of this is that St. John’s is reportedly hiring legendary coach Rick Pitino to replace Anderson. By firing Anderson for cause, could St. John’s be saving money needed to hire Pitino? It’s definitely a conclusion one could draw from this situation. Most Big East schools are not hurting for cash as the conference has a solid TV deal with Fox. But it’s worth noting that St. John’s likely doesn’t have the same resources that the football-playing SEC, Big Ten, Big 12, and Pac-12 schools do. Firing a coach for cause is not a sure bet by any means. One of St. John’s Big East rivals, UConn, learned the hard way in the past couple of years when they attempted to fire Kevin Ollie. In fact, I wrote for Conduct Detrimental about how that situation served as a warning sign to schools looking to save some money when firing their coaches. We obviously don’t know all the facts in this case, so making any grandiose statements or conclusions at this point would be a little premature. But as I’ve said before and will say again when it comes to situations like these. If Mike Anderson had the Red Storm in the NCAA Tournament and competing for Big East titles, would they have fired him for cause? I find it doubtful. It will be interesting what happens in the arbitration process. So even as St. John’s hires Rick Pitino and embarks on a new (and hopefully more successful) era of Red Storm basketball, there will still be lingering questions regarding their previous head coach. Brendan can be found on Twitter @_bbell5

On Wednesday, March 22, 2023, the Texas State Affairs Committee held a public hearing on two separate pieces of legislation on sports betting. Representative Jeff Leach brought forth House Bill 1942 and House Joint Resolution 102. House Bill 1942 would authorize sports betting in Texas by providing an online-only format. Currently, as the bill stands there is no brick-and-mortar component to the legalization of sports betting. The bill includes a 10% tax on the adjusted gross gaming revenue. The bill also includes an initial application fee of $500 thousand. The skins associated with the legislation are tethered to “sports entities.” The sporting entities include Texas professional sports teams and the PGA which holds multiple tournaments within the state. The sports entities can then contract with a designee to receive a permit on behalf of the entity. This means each team will partner with a sportsbook to provide sports betting for their fans. House Joint Resolution seeks to amend Article III, Section 47 of the Texas state constitution. Rep. Leach believes this amendment is necessary to allow for the passage of sports betting in Texas. The language added would give the legislature the authority to regulate sports betting within the state. Given that this is a constitutional amendment, the people would vote to decide the fate of the amendment in a November vote. During the public hearing, individuals representing groups that were either for or against the bill were given a chance to speak on the bill. Below I will summarize the main arguments that were made by each side of the debate. FOR the Bill The main argument that was brought for by the proponents of the bill is an argument that I have heard before when sports betting is being debated. The crux of the argument is something along the lines of “Texans are already betting on sports but they are doing it through illegal means. Let’s bring that money into the legal and regulated space.” This argument is very similar to others made when states debate legalizing other vices: other forms of gambling or marijuana. Another argument for the bill focused on the revenue the state could generate from legalized sports betting. Connecting this argument to the previous one, Texas is currently receiving zero dollars in revenue because all the bets placed are through illegal means. A partner from Eilers & Krejcik Gaming, LLC brought forth some projections the state of Texas could see if it legalizes sports betting. The research shows that in five years the state would generate around $2.37 billion in gaming revenue. With that revenue, the state would be taking in around $180 million per year in taxes. A final argument for the bill that was brought up by multiple individuals is the need to provide safety for those looking to place wagers. Sportsbooks go through intense safety procedures to ensure that their product is as fair as can be for the customers. However, with illegal offshore betting marketplaces, there is no guarantee of the safety or reliability of a wager being placed. Since the bettor is doing something illegal, they will find it hard to fight any legal fights they may have with the offshore book. Those for the bill want to regulate sports betting to ensure the safety of the customers. AGAINST the Bill One of the main arguments brought forth against the bill is the danger sports betting could pose to kids. While the betting age of the bill is set at 21, these groups pointed to statistics that showed younger audiences getting in on the sports betting craze however they could. They also stated they believed the ads for sports betting were specifically targeting children. A rather important argument against the bill as it stood was made by a representative of the Kickapoo tribe. The tribe was left out of the bill and rather than opposing the bill outright, they want to amend the bill to include language that would allow them to have a slice of the pie. The wording is important as it has to conform with the Indian Gaming Regulatory Act (IGRA). The other arguments against the bill could be summarized as going against traditional family values. They point to gambling addiction and its crippling nature on individuals. They also pointed to the stat showing gambling addiction has the highest rate of suicide among all forms of addiction. Both bills were left pending in committee following the hearing. I will make sure to keep an eye on the progress of the bill as sports betting in Texas would be a major economic boost given the almost 30 million residents in the state of Texas. Justin Mader is a recent 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 can be reached via Twitter: @maderlawand LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.

A new bill filed in the Arkansas House of Representatives would amend the state’s name, image, and likeness (NIL) law to allow certain high school athletes to profit from their name, image, and likeness. Under the state’s current law, only athletes enrolled at a college or university can enter into NIL deals. If the new bill passes, high school athletes will be able to enter into NIL deals, provided the athlete has been admitted, signed a National Letter of Intent, or signed another agreement to enroll in an institution of higher education. To keep Arkansas institutions a step ahead of schools outside the state, legislators added a provision authorizing an institution’s athletic foundation to facilitate or create NIL deals for an athlete, including a high school athlete. Interestingly, there was a growing trend of southern states repealing NIL laws to keep in-state schools at the forefront of NIL, including Florida and Alabama. If the bill passes, Arkansas legislators are taking a different approach and will join over 20 states that allow high school athletes to enter into NIL deals. As the NCAA’s NIL policy continues to evolve, expect states to adjust to new ideas to keep their in-state universities ahead of the changes. 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.

Absent from the NCAA Tournament this year is a frequent participant, my alma mater, New Mexico State University. The Aggies are usually one of the top teams in the WAC, and last year took Arkansas down to the wire in the second round. What followed one of the best seasons in school history was one of the most shocking scandals that have not been talked about enough. New Mexico State had both a player kill a person in self-defense, and a sexual abuse scandal, in the same season. In March of 2022, head coach Chris Jans left the school for Mississippi State. Shortly after that NMSU hired little-known coach Greg Heiar, a coach with no Division 1 experience, to head the program. It has now become evident that Mr. Heiar was in way over his head. In October of 2022, Forward Mike Peake was involved in a brawl at a football game between NMSU and the University of New Mexico. Brandon Travis was involved in this altercation, and in November, he and two associates jumped Peake at the University of New Mexico dorms. Travis had a firearm and one of the other men had a bat when they attacked Mr. Peake. Peake responded to the attack by running on foot while being shot at, to which he returned fire, killing Travis. Peake was hit by one of the rounds that Travis fired, suffering a leg injury. Peake, after suffering his injury, was then taken back to the team hotel where he gave his gun to assistant coach Dominique Taylor. When the police sought to locate the gun and speak to NMSU players, Heiar had the team board their bus in an effort to return to Las Cruces. Eventually, the bus was stopped on the interstate and returned to Albuquerque. Peake’s gun was found inside Taylor’s hotel room wrapped in a towel. Peake will not be charged with murder because of the video footage that demonstrates a clear self-defense claim, additionally, the police have been referring to him as the “victim.” Somehow, this was not the worst scandal that rocked the program. In early February it is revealed that three players were involved in the hazing of one of their teammates. The names of those involved have not been released. However, the allegations in the police report are the following: Harassment, False Imprisonment, and Criminal Sexual Contact. Details about this situation are scarce currently, however, the situation is serious enough that Chancellor Dan Arvizu canceled the season on February 12th, and two days later, he fired Heiar. New Mexico State now stands at a crossroads, one of its own makings. Arvizu has said that there will be a season next year, but who would want to come into this situation? I cannot imagine a situation where the NCAA does not sanction the program. Further, they will need to hire a coach that can rebuild the school's credibility with both the community and the players. Wake Gardner is a 1L at the Brandeis School of Law at the University of Louisville. Someday he hopes to work for a sports team in Florida. He can be reached on Twitter @WakeGardner and by email at [email protected]. Sources: Body camera footage shows fight at UNM-NMSU football game 10 pm - YouTube Mike Peake shoots Brandon Travis in self defense, surveillance video - YouTube Full Video: Police interview New Mexico State University Coach Greg Heiar - YouTube New Mexico State fires men's basketball coach Greg Heiar (espn.com) NM State cancels rest of men's basketball season after hazing allegations are detailed (ktsm.com) NMSU hazing police report - Twitter Search / Twitter

The Texas Tech men’s basketball program has been through a whole lot over the past couple of years. After guiding the Red Raiders to unprecedented heights, Chris Beard left Lubbock to take the Texas job following the 2021 season. Instead of undergoing a national search to replace Beard, Tech AD Kirby Hocutt opted instead to promote assistant Mark Adams to the head coaching position. In the early going, it appeared as if Adams was the perfect choice for the job. During his time as an assistant, Adams was credited with helping the Red Raiders become one of the best defensive teams in all of college basketball, and that carried over in his first year as the head man. In route to a 27-10 record and an appearance in the Sweet 16, Texas Tech rated #1 in defensive efficiency at KenPom. Moreover, the Red Raiders swept Chris Beard’s Texas Longhorn team during the regular season, further elevating Adams’ approval rating in Lubbock. As a result, he received a contract extension through the 2027 season. Entering the 2022-2023 season, expectations were high for Adams’ team. The Red Raiders were ranked in the preseason for only the third time in program history and were among the favorites to compete for a Big 12 conference championship. However, things went south quickly as the Red Raiders lost their first eight games in conference play and failed to finish with a winning record for the first time since 2015. Despite Texas Tech’s struggles in year two, you didn’t see Adams’ name on “hot seat” lists or anything of that ilk. Being an alum and largely perceived as the “good guy” following Beard’s departure to rival Texas, it felt like Adams would at least get another season to right the ship in Lubbock. However, that notion quickly changed last week when reports surfaced that Adams made “racially insensitive comments” to a player in practice. Texas Tech initially suspended Adams ahead of their first game at the Big 12 tournament in Kansas City, but just days later, it was announced that Adams’ time as head coach in Lubbock was over. However, given that Adams had significant time left on his recently extended contract and nearly $7.5 million owed to him (if he was fired without cause), there was still a lot to sort through. In the end, Adams’ camp and Texas Tech reached a settlement. The university agreed to pay Adams $3.9 million of the $7.5 million originally owed, fewer taxes and withholdings, plus a $200,000 retention bonus in a legal. Tech agreed to pay the settlement within 30 days. In addition, the settlement included that Adams would receive any bonuses he earned this year, which could include ones for the team's academic performance. Overall, it feels like a fair separation agreement for a situation that didn’t look salvageable in Lubbock. Nonetheless, it goes to show how quickly things can change in college athletics after his tenure got off to such a good start. In today’s environment, coaches can’t get away with some of the things they may have been able to back in the day. Not that it was ever okay to utter racially insensitive or demeaning comments to players, but in today’s environment, these are the types of situations that cost coaches their jobs. Is holding coaches accountable in these matters a bad thing? Absolutely not. In the past few years, we’ve seen coaches across multiple sports like Gregg Marshall (Wichita State MBB), Todd Graham (Hawaii CFB), Nino Giarratano (San Francisco Baseball), and a handful of others get ousted for poor treatment of players. Hopefully, we don’t see more in the foreseeable future. Texas Tech is actively searching for its third coach in four seasons. For a school that competes in the best conference in college basketball, has passionate fans, and decent tradition, let’s hope the Red Raiders can find a coach that can stabilize a program that has experienced no shortage of turmoil over the past few years. Brendan can be found on Twitter @_bbell5

The Masters is around the corner, but the media is not buzzing about who is favored to win the tradition unlike any other. Rather, attention is focused on litigation off the course involving Tiger Woods and his ex-girlfriend, Erica Herman. Herman is seeking $30 million in damages against the Jupiter Island Irrevocable Homestead Trust stemming from her eviction from Woods’ home. Herman claims the eviction was a breach of an 11-year “oral tenancy agreement.”[i] Woods denies that he negotiated an oral tenancy agreement with. Herman.[ii] In a lawsuit associated with the tenancy lawsuit, Herman is attempting to nullify a non-disclosure agreement (NDA) with Woods. Herman is relying on the recently enacted federal Speak Out Act (“Act”)[iii] to nullify the NDA. The Speak Out Act was signed into law by President Biden on December 7, 2022, to prohibit the silencing of victims of sexual harassment and sexual assault. Given the newness of the Act, there are misconceptions about what the Act actually prohibits. Here is a FAQ that explains what the Act covers and what it does not. Q: What Does the Speak Out Act Prohibit? The law renders unenforceable non-disclosure and non-disparagement clauses related to allegations of sexual assault and/or sexual harassment that are entered into “before the dispute arises.” The text of Speak Out Act is surprisingly limited. Specifically, the text of the Act states in relevant part: With respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which conduct is alleged to have violated Federal, Tribal, or State law. (emphasis added). This means that if an NDA or non-disparagement clause is so broad that it silences claims of sexual harassment or sexual assault before a claim of sexual harassment or sexual assault has been alleged, the clauses would be unenforceable. Q: What Claims are Not Prohibited by the Act? The phrase “before the dispute arises” has great significance. It appears that Congress did not intend to silence claims that have already been asserted and then subjected to a nondisclosure or non-disparagement clause. In other words, it does not preclude an employer or other party from enforcing an NDA or non-disparagement clause in a settlement agreement if allegations of sexual harassment or sexual assault were raised before the agreement was signed. In sum, timing is everything. Q: Why was the Act Passed? The Act contains Congress’s findings that nondisclosure and non-disparagement provisions in agreements between employers and current, former, and prospective employees, and independent contractors, and between providers of goods and services and consumers, can perpetuate illegal conduct by silencing those who are survivors of illegal sexual harassment and assault or illegal retaliation, or have knowledge of such conduct while shielding perpetrators and enabling them to continue their abuse. According to Congress, prohibiting nondisclosure and non-disparagement clauses under the Act will empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone. The Act complements the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which bars pre-dispute arbitration agreements and joint-action waivers covering sexual assault or sexual harassment disputes. Q: Does the Act Prohibit the Protection of Trade Secrets and Confidential Information? No. The Act provides that nothing in the Act prohibits an employer and an employee from protecting trade secrets or proprietary information. Q: Are the State Laws Similar to the Act? A number of states have passed laws addressing allegations of sexual assault and/or harassment. California, for example, has a much broader law[iv] that prohibits employers from using confidentiality provisions in agreements involving claims for sexual assault, sexual harassment, and sex discrimination as well as claims under the Fair Employment and Housing Act including race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, and veteran or military status. Take Aways The #metoo movement has led to the passing of several laws designed to protect victims of sexual harassment and assault and empower them to make public illegal conduct. The Speak Out Act continues this trend and nullifies non-disclosure and non-disparagement clauses that bar the disclosure of sexual assault and sexual harassment claims that have not yet arisen. It will be interesting to follow the drama of the Woods’ litigation and see if the Speak Out Act is found to be applicable to his NDA. The implications of the Speak Out Act, however, are much broader than the Woods’ litigation. Employers and those who wish to enforce NDA’s and non-disparagement clauses should review their existing agreements and make sure that they include appropriate carve-outs and comply with the Act. 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] Brendan Quinn, Tiger Woods Attorneys Say Golfer’s Ex, Seeking $30 Million in Lawsuit, Had No Tenancy Agreement, The Athletic (Mar. 10, 2023), https://theathletic.com/4296415/2023/03/10/tiger-woods-girlfriend-lawsuit-tenancy/; Alex Miceli, Tiger Wood’s Ex-Girlfriend, Erica Herman, Asks Court to Resolve Dispute Over NDA, Sports Illustrated (Mar. 8 2023 4:26 PM EST), https://www.si.com/golf/news/tiger-woods-girlfriend-erica-herman-asks-court-to-resolve-dispute-over-nda. [ii] For a solid summary of the lawsuit check out an article by John Nucci, Chief Golf Correspondent for Conduct Detrimental “Tiger Woods, NDA's and Lawsuits: A Legal Breakdown”[ii] and the Conduct Detrimental podcast episode[ii] discussing the same. [iii] Public Law No: 117-224 (12/07/2022) https://www.congress.gov/bill/117th-congress/senate-bill/4524/text. [iv] S. 331, 117th Cong. (2021) (approved by Governor Oct. 7, 2021, filed with Secretary of State Oct. 7, 2021) (accessible at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB331).

The Cincinnati Bengals have made headlines recently as they attempt to change the workers' compensation law in Ohio. The National Football League Players Association (NFLPA) has accused the Bengals of trying to strip athletes of their workers' compensation benefits. Workers' compensation provides benefits to employees who are injured while performing work duties. This coverage can include medical expenses, lost wages, and rehabilitation costs. In the case of professional athletes, workers' compensation can be especially important due to the physical nature of their work. According to a report by ESPN, the Bengals have proposed a change to the workers' compensation law in Ohio that would limit the number of benefits available to athletes. The proposal would make it more difficult for athletes to receive compensation for injuries sustained on the job, particularly those that are the result of repetitive stress or wear and tear. The changes in the workers' compensation law proposed by the Cincinnati Bengals would allow the team to provide less coverage for players without violating Article 41 Section 1 of the NFL Collective Bargaining Agreement (CBA). According to the CBA, teams are required to provide workers' compensation benefits to players, but the CBA continues “such benefits will be equivalent to those benefits paid under the compensation law of the state in which his Club is located.” Changing the state law allows the Bengals to change the burden the CBA places on the club without actually going to the negotiation table to alter the CBA. Changing the law rather than how the CBA applies to the current workers’ compensation law is an interesting strategy by the Bengal organization. The NFLPA has been quick to condemn the Bengals' proposal, arguing that it would unfairly target athletes and could potentially leave them without adequate support in the event of a serious injury. In a statement, the NFLPA accused the Bengals of "attempting to circumvent the law and strip workers of their rights." While it is true that some athletes have been accused of fraudulent workers' compensation claims in the past, it is unclear whether the Bengals' proposal is a necessary response to this issue. Critics of the proposal argue that it would make it more difficult for legitimate claims to be processed and would ultimately hurt athletes who rely on workers' compensation benefits. The controversy surrounding the Bengals' proposal has drawn attention to the broader issue of workers' compensation for professional athletes. Athletes in all sports are at risk of sustaining serious injuries on the job, and many rely on workers' compensation benefits to cover medical expenses and lost wages. However, the rules and regulations surrounding workers' compensation can vary from state to state, and athletes may not always be eligible for benefits. Some states have enacted laws specifically designed to make it more difficult for athletes to receive workers' compensation benefits, arguing that the physical risks associated with their job are well-known and therefore should not be covered by insurance. Critics of this approach argue that it places an unfair burden on athletes, who may not fully understand the risks associated with their job or may not have access to adequate medical care. Additionally, some have argued that workers' compensation benefits should be available to all employees, regardless of their occupation or level of risk. The controversy surrounding the Bengals' proposal also highlights the larger issue of athlete safety in professional sports. In recent years, there has been growing concern about the long-term health effects of playing professional sports, particularly in contact sports like football. A growing body of research suggests that repeated head injuries can have serious long-term effects on athletes, including chronic traumatic encephalopathy (CTE) and other neurological conditions. These injuries can have a significant impact on an athlete's quality of life and can lead to significant medical expenses. While many professional sports leagues have taken steps to address these concerns, including implementing new safety protocols and investing in research, the issue of athlete safety remains a contentious one. The controversy surrounding the Bengals' proposal highlights the tension between athlete safety and the financial interests of sports teams and leagues. The Bengals have denied commenting on any of these revelations made by the NFLPA. While some commentators have claimed this is simply people hating on the Bengals, the wording used by the NFLPA seems to point to certain knowledge the Player’s Association possesses. Justin Mader is a recent 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 can be reached via Twitter: @maderlaw and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.

North Carolina Representative Jason Saine has filed a bill (HB 347) authorizing sports wagering in North Carolina. Joining Representative Saine as primary sponsors are Representatives Bell, Hawkins, and Clemmons. The bipartisan bill has ample support from both parties, and after passing the North Carolina Senate but narrowly failing last session in the North Carolina House of Representatives by a vote of 49-52, members are hoping a version of this bill will make it through. The new bill appears to pick up where the bill left off last year, including a 14% privilege tax and a $1 million licensing fee for 10-12 mobile sportsbooks. Differences include adding college sports back into the bill and authorizing $300,000 plus a percentage of leftover proceeds to low-funded collegiate athletic departments. Last year, amendments to the sports wagering bills (SB 38 and SB 688) removed wagering on college sports, a big industry in a state that loves college sports, and another amendment apportioned a percentage of revenues to athletic departments at Historically Black Colleges and Universities (HBCUs). New additions include apportioning $1 million annually to the North Carolina Division of Parks and Recreation for grants to counties to purchase sports equipment, upgrade facilities, or other improvements. Further, $1 million annually will go to the North Carolina Outdoor Heritage Advisory Council for grants to assist local teams needing travel assistance and to attract sporting events. This bill will surely go through several changes as members of North Carolina’s General Assembly work through the new bill. After passing the House, the bill must go through the North Carolina Senate. Even so, this bill appears to have ample support from both sides of the aisle and should pass before the end of the next session. 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.

Below is a complete timeline and breakdown of events in the PGA Tour v. LIV Golf saga from pre-LIV to today. This page will be updated periodically as new developments arise. January 2021 – it’s rumored that a “Super Golf League” funded by Golf Saudi will form in 2022. Simultaneously, the PGA Tour launches its $40 million Player Impact Program (PIP), promising financial rewards to players for online engagement. May 2021 – there are reports that Dustin Johnson and Justin Rose receive offers of over $100 million to join the new league. Additionally, there are rumblings of Bryson DeChambeau, Patrick Reed, Ian Poulter, Louis Oosthuizen, and others with offers on the table. October 2021 – the new league featuring no cuts and limited fields officially launches as “LIV Golf” – with “LIV” representing its signature 54-hole event format. February 2022 – while playing at the Saudi International, Phil Mickelson bashes the PGA Tour by saying that their “obnoxious greed has opened the door for opportunities elsewhere.” He also gives an infamous interview to The Firepit Collective’s Alan Shipnuck, where he refers to the Saudis as “scary motherfu**ers” while simultaneously calling LIV a “once in a lifetime opportunity.” After significant backlash, Mickelson announces that he is taking time away from the game. It would later be revealed that he was suspended for recruiting players to join LIV. The same day, PGA Tour Commission Jay Monahan tells players that they will be banned from the PGA Tour if they join LIV. March-May 2022 – LIV’s signings include Dustin Johnson, Phil Mickelson, Louis Oosthuizen, Sergio Garcia, Lee Westwood, and Ian Poulter. Mickelson reportedly signed for around $200 million while DJ landed around $125 million. June 2022 – LIV’s inaugural event tees off at the Centurion Club in London. Within minutes, Jay Monahan issues a memo suspending 17 players for “turning their backs on the PGA Tour by willfully violating a regulation.” August 3, 2022 – Eleven players sue the PGA Tour for antitrust violations, claiming that the Tour is undertaking a “carefully orchestrated plan to defeat competition.” Three of the eleven players (Talor Gooch, Hudson Swafford, and Matt Jones), also ask the court for a temporary restraining order that will allow them to play in the upcoming FedEx Cup Playoffs. They had previously qualified for those tournaments but became ineligible after their suspensions. August 9, 2022 – Judge Beth Freeman denies the requests by Gooch, Swafford, and Jones to play in the FedEx Cup Playoffs. Her reasoning was, in part, that (1) the players could not prove that they were “injured” financially, which is a pre-requisite for a temporary restraining order; and (2) that the players were “well aware” of the consequences of leaving for LIV. She also pointed out that the players waited some time before filing their case just a week before the FedEx Cup Playoffs. The PGA Tour and Jay Monahan accused them of “fabricating an emergency.” Mid-August 2022: Tiger Woods reportedly turns down an $800 million offer to join LIV Golf. Elsewhere, Patrick Reed files a ~$1 billion lawsuit against Golf Channel analyst Brandel Chamblee. Jay Monahan also announces five lucrative changes to the PGA Tour to prevent more players from leaving. Those changes include travel stipends for missed cuts, designated/elevated events, and increased prize purses. Late August 2022 – LIV is added to the lawsuit as a plaintiff as most of the players drop out. Judge Freeman points to LIV’s success in signing players as proof that it has successfully entered the market for professional golf despite its claims that the PGA Tour is preventing them from doing so. September 2022 – the PGA Tour countersues LIV for tortious interference, claiming that LIV is paying players astronomical amounts of money to induce them to breach their contracts with the Tour. They also ask for documents and communications from the Saudi Public Investment Fund (PIF) and its governor, Yasir Al-Rumayyan. November 2022 – PIF and Al-Rumayyan ask a judge to quash the PGA Tour’ subpoena request. They argue, in part, that they are immune from lawsuits in US courts under the Foreign Sovereign Immunities Act. January 2023 – the PGA Tour moves to add PIF and Al-Rumayyan as defendants to the lawsuit. They argue that those parties essentially control the day-to-day operations of LIV, including the recruitment of players, approval of contracts, and more. PIF counters that it is not actually in control of LIV, but that it is merely an investor. February 2023 – PIF and Al-Rumayyan’s requests to be shielded from turning over documents and sitting for depositions are denied. Judge Susan Van Keulen says that their actions fall squarely within the “commercial activity” exception to the Foreign Sovereign Immunities Act. That exception says that while foreign governments and officials are generally immune from lawsuits in US courts, that immunity does not apply if they have purposely engaged in commercial activity in the US. Separately, the PGA Tour’s motion to add those parties as defendants to the case is granted. March 2023 – PIF files an amicus brief (an argument by a third party who is not one of the parties in the case) detailing why they should not be subject to discovery or added as defendants to the case. The PGA Tour replies by stating that PIF is willing to comply with discovery in US courts “when it benefits their interests.” The PGA Tour v. LIV Golf saga is ongoing, and we will provide new developments here as they arise. This thread is also available on Twitter. John Nucci is the Chief Golf Law Correspondent for Conduct Detrimental and an Attorney in New York. He can be reached via Twitter at @JNucci23 or by email at [email protected].