Tiger Woods is at the center of two lawsuits filed by his former girlfriend of six years, Erica Herman. The first of the two claims was filed in October 2022, and seeks over $30 million in damages for, among other reasons, being locked out of a seaside mansion that the couple lived in together. In the second complaint, just filed this week, Herman is asking a court to invalidate a non-disclosure agreement that she allegedly signed with Woods in 2017. Notably, on the civil cover sheet to the October complaint, Herman responded “no” to the question of whether the case involves allegations of sexual abuse, but “yes” to the same question in this week’s filing. Changing the Locks On October 26, 2022, Erica Herman filed a lawsuit not against Tiger Woods, but against the “Jupiter Island Irrevocable Homestead Trust,” which is a trust that holds the title on the home in question. In the complaint, she seeks $30 million in damages for what she says is the reasonable rental value for the remaining 5 years on their “oral tenancy agreement.” Herman alleges that “by trickery,” she was convinced to pack a suitcase for a “short vacation” and, when she arrived at the airport, she was told that she had been locked out of the home and could not go back. She was also allegedly confronted by one of Tiger’s lawyers at the airport, who offered to pay for a hotel room and other expenses for a short period of time. Finally, she claims that $40,000 of her own cash and personal belongings were removed from the home and that “scurrilous” and defamatory allegations were made about how she obtained the money. All these allegations, Herman says, are in an effort to “interfere with [her] advantageous contractual and business relationships” and are in violation of both the oral tenancy agreement – for which she performed “valuable services of an extensive and extraordinary nature” – and Florida’s Residential Landlord Tenant Act. In its motion to dismiss the complaint, Tiger’s trust essentially argues that Herman was not a “tenant” as required for relief under the Act, but simply a disgruntled former lover who was kicked out of Tiger’s home. Additionally, they respond that any breach of the alleged oral contract – if one exists – would be barred by Florida’s Statute of Frauds. Notably, Herman also failed to sue a proper party, since a trust is not a “juristic person” that is capable of suing or being sued (she likely meant to sue the trustee of the trust). Herman’s claims of a breach of the oral tenancy agreement are – at best – a long shot. Notwithstanding the fact that she will need to convince a judge that she and Tiger entered into an obscure 11-year oral tenancy agreement, she also fails to elaborate on the “extensive and extraordinary services” she provided in consideration of the oral agreement. If those justifications are not enough to grant the motion to dismiss, her claims are likely time-barred under Florida’s Statute of Frauds. Ultimately, this complaint has little chance at success. Non-Disclosure Agreement In a separate complaint filed in the same court in Martin County, Florida, Herman is asking a court to invalidate an NDA that she allegedly signed on August 9, 2017, when she and Tiger first started dating. Notably, this is not the first time a former lover of Tiger Woods was allegedly asked to sign an NDA. Rachel Uchitel, Tiger’s former girlfriend, also revealed that she signed a 30-page NDA in 2009 in exchange for a total of $8 million ($5 million upfront and $1 million annually for 3 years). For her part, Herman claims that the NDA she signed is not judicially enforceable under the federal Speak Out Act. The Speak Out Act, which was signed into law by President Biden in December 2022, prevents the enforcement of non-disclosure and non-disparagement agreements in instances of sexual assault and harassment. Importantly, she did not specifically accuse Woods of harassment or assault in the complaint. Instead, she claims that she is unsure whether she may disclose facts giving rise to the “various legal claims she believes she has” because of the aggressive use of the NDA against her. Woods’ attorneys are seeking to enforce the NDA dispute through arbitration, citing a provision in the contract itself that states that any disputes should be overseen by an independent arbiter, rather than the courts. Although they have certainly caused headlines, what actually comes of these complaints remains to be seen. In the meantime, a court will have to decide whether Herman was simply a “guest” in Tiger’s home rather than a tenant, and whether the 5-year-old NDA is enforceable. John Nucci is the Chief Golf Correspondent for Conduct Detrimental and a Corporate Associate Attorney in New York. He can be reached via Twitter at @JNucci23 or by email at [email protected].

Today, March 7, 2023, a former University of Tampa ("UT") Assistant Men's Lacrosse Coach Kevin Derr ("Mr. Derr") filed a complaint against UT which has rippling effects throughout UT's athletic department. Factual Allegations: Before Mr. Whipple's Resignation: Mr. Derr worked as an Assistant Men's Lacrosse Coach from September 15, 2018, until his termination on September 23, 2021. Per his complaint, Mr. Derr had learned of and objected to Mr. Whipple's "violent, inappropriate, and unlawful behavior" with the lacrosse players. This includes the allegation that Mr. Whipple had pushed and physically confronted a UT student-athlete, violently pushed another student-athlete, showed a student-athlete nude pictures of his wife, and stored and watched pornographic material on his work computer. Additionally, Derr alleges that eight (8) student-athletes objected to Mr. Whipple's behavior with no action taken from UT following these objections. After Mr. Whipple's resignation [1], Mr. Derr allegedly heard him tell UT Athletic Director, Larry Marfise ("Mr. Marfise") that "if I'm gone, [Mr. Derr] better be gone as well" and Mr. Marfise agreed. Thereafter, Mr. Derr alleges that Mr. Marfise repeatedly asked him about his intentions to work After Mr. Whipple's Resignation: J.B. Clarke (hereinafter "Mr. Clarke") was hired as the new Head Coach of Tampa Lacrosse and both he and Mr. Marfise allegedly engaged in retaliation and harassment of Mr. Derr and any student-athletes voicing objections. This includes Mr. Clarke allegedly stating that a black student-athlete "will never play for [UT]" and "the reason Black players are so prevalent in the NFL, it's because we (white people) cross-bred them to be farmers." Per the complaint, the toxic environment at UT had become so severe that Mr. Derr emailed UT upper management detailing the situation and the effects it has had on his diabetes and anxiety disorder disabilities. Mr. Derr says he experienced blood sugar spikes, migraines, and heightened blood pressure so severe he was instructed to go home and recover. After his return, Mr. Marfise confronted Mr. Derr about his objection and attempted to drag him to his office which resulted in Mr. Marfise revealing he had already covered up unlawful and unethical activity at UT. Mr. Derr subsequently went to Human Resources to describe what had happened and request a leave of absence to treat his disabilities. The following day, Mr. Derr’s email access was shut down and he was fired a day later. Mr. Derr’s Causes of Action: Counts 1 & 2: Discrimination Under the ADA and Florida Civil Rights Act (hereinafter "FCRA") Based on Disability ADA Title I: Employment: "Prohibits covered employers from discriminating against people with disabilities in all employment-related activities, including hiring, pay, benefits, firing, and promotions. Covered employers include private businesses, educational institutions, employment agencies, labor organizations, and state and local government entities with 15 or more employees." FRCA §760.01(2): "The general purposes of the Florida Civil Rights Act of 1992 are to secure for all individuals within the state freedom from discrimination because of race, color, religion, sex, pregnancy, national origin, age, handicap..." Mr. Derr alleges that the discrimination he was subjected to was based on disabilities or "perceived disabilities" and that the conduct of UT and its agents caused lost wages, future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and more. Counts 3 & 4: Retaliation Based on Disability Under the ADA and FRCA 42 U.S.C. §12203(a): "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." FRCA §760.10(1)(a): "It is an unlawful employment practice for an employer to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap..." Mr. Derr's pleads that his objections to the athletic department and HR are protected activities under the Florida Civil Rights Act and such objections and his termination are causally related. Additionally, Mr. Derr states he was terminated as a direct result of disability discrimination. Count 5 & 6: Interference and Retaliation Under The Family and Medical Leave Act (hereinafter "FMLA") FMLA §105 and §825.220: "An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. An employer is prohibited from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise any FMLA right." Mr. Derr pleads that he was protected by the FMLA and UT retaliated against Mr. Derr for using or attempting to use his FMLA-protected leave. Additionally, he says UT interfered by failing to advise him of his rights under the FMLA. Count 7: Unlawful Retaliation Under Florida's Private Whistleblower Act Florida Private Whistleblower Act §448.102(3): "An employer may not take any retaliatory personnel action against an employee because the employee has objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation." Mr. Derr alleges that because he objected to the violation of a law, rule, or regulation during his time at UT, he was terminated. Demand: Mr. Derr demands a trial by jury. Final Thoughts: This information is based on Mr. Derr's complaint. If the pled facts are true, it will be tough for UT to defend the actions of their former and current head lacrosse coach as well as the actions of the athletic director. This would cause a significant shockwave throughout the university's athletic program and may call for a thorough investigation and overhaul of staff. For now, we have to wait to see if this case survives any motion for summary judgment and dismissal to reach discovery. Footnotes: [1] Mr. Whipple's resignation is not confirmed to have been as a result of these allegations. It was last reported on January 22, 2022, that Mr. Whipple accepted a job to become the Boys Lacrosse Head Coach at Tampa Catholic High School.

Last week, Tennessee suspended its head baseball coach, Tony Vitello, for the Volunteers' weekend series against Dayton. While the announcement didn’t come with a whole lot of additional details, anyone who followed college baseball could’ve easily ascertained the reasoning why. At the time of Vitello’s suspension, star transfer Maui Ahuna had yet to be cleared by the NCAA to play for the Volunteers after transferring from Kansas. Tennessee cited NCAA bylaw for preventing any further details from being released, but one could easily presume that a potential tampering violation was cause for the suspension. The transfer portal has been a hotly debated topic in college athletics over the past few years, especially in conjunction with the advent of NIL. Personally, I am a proponent of it and believe athletes should be able to move to another school while maintaining their eligibility. Technically, schools and coaches aren’t allowed to contact or recruit athletes until they are officially in the portal. However, it would be naïve to think that everyone is abiding by those rules. Quite frankly, it’s certainly possible that if a school or coach waits that long, it might be too late to have a real chance at landing certain transfers. Simply put, the portal lends itself to tampering. While many coaches across multiple sports are believed to be participating, Vitello is the first to serve any sort of suspension for it in recent times. At the conclusion of the football season, Washington State football coach Jake Dickert sounded off about the tampering epidemic, saying “There’s more tampering going on than you could ever imagine. We’ve had guys contact our players’ parents. We had a coach from another school contact one of our players and offer them NIL. A coach! So there are more things going on behind the scenes that you can’t even imagine. You can’t even imagine the things that are happening right now to try and pry our players away from this place. And it’s stunning, it’s amazing, it’s the new thing that I guess comes with this portal transformation. But it’s not right. And who’s going to regulate it? Who’s regulating this stuff?’ Well, the answer to who’s regulating tampering is supposed to be the NCAA. However, proof of tampering can be difficult to undercover as many conversations occur through back channels, and high school coaches, boosters, friends, or other intermediaries aren’t directly involved with programs. Nonetheless, the NCAA and coaches themselves have a choice. Do they want to take an aggressive stand against tampering? Or do they want to turn a blind eye and let the status quo stand? While NIL and transfer portal tampering are two issues in and of themselves, they are often intertwined in actuality. In the act of tampering, a school can offer NIL money to a potential recruit playing at another program. I bring this up because it appears like the NCAA is showing signs of cracking down on NIL for the first time since its inception in the summer of 2021. Over the past few months, the NCAA has begun the process of bulking up its NIL enforcement staff. In addition, they passed a new “NIL presumption bylaw” that shifted the burden of proof from the NCAA’s enforcement staff (which previously had to prove a violation occurred) to the member school accused of rule-breaking (which will now have to prove that no violation occurred). Just last week, they handed down its first official NIL punishment on the University of Miami women’s basketball program. Although minor in impact, the penalties show that the NCAA is showing signs of at least some regulation to the current landscape. Whether or not they will be successful in doing so is certainly up for debate and litigation possibilities from accused schools/boosters are definitely in play. With the sudden appetite to regulate NIL, will the NCAA take the same approach when it comes to transfer portal tampering? You could go around the country and ask hundreds of coaches their opinions and the large majority would hope that they do. Sure, there might be some coaches at high-profile programs who’ve benefitted from it so far, but quotes like Jake Dickert’s are not uncommon across several sports these days. But how could the NCAA make a stand against tampering? Again, as I mentioned before, it won’t be easy at all. In nearly every instance of tampering, there won’t be tangible proof for schools to take to the NCAA headquarters in Indianapolis. Could the NCAA use its “presumption” approach where it forces rumored violators to definitively prove there was no wrongdoing? Sure, but that sounds like a complicated mess to sort through. To truly attack the issue at hand, I think the coaches need to take the lead. If coaches are truly upset about tampering, then the onus might be on them to not only refrain from doing so but more importantly, report to the NCAA when others do. The NCAA has a memo on tampering that stresses that "in order to evaluate and determine if tampering occurred, reporting is key." So instead of lamenting the concept of tampering, coaches should go straight to the NCAA when they have sufficient evidence, like how UTSA football coach Jeff Traylor threatened in this tweet. Yes, the coaching community is oftentimes a tight-knit group that probably doesn’t want to directly call out their peers. However, if they truly want to address this issue, it’s on them to report violations. The NCAA is the easy punching bag for administrators, coaches, and fans to place the blame on. But when it comes to tampering, I believe they need help from their coaches. Tony Vitello is the first coach to serve any sort of suspension for a potential tampering violation in the Transfer Portal/NIL. It will be interesting to see if his case is an outlier or the first of many as the college athletics landscape continues to evolve. Brendan can be found on Twitter @_bbell5

59.6 years. That’s the life expectancy of an NFL player – compared to the average American lifespan of 77.3 years. Research has shown repetitive head trauma is a strong cause for the near two decades of life taken away from NFL players. Popularized by the film Concussion, the correlation of football and the degenerative brain disease of CTE (chronic traumatic encephalopathy) causing conditions such as Alzheimer’s and dementia certainly make a strong catalyst for this shocking statistic. A recent study found more than 91.7% of former players lived with CTE. Other studies have found the rate of disease to be over 99%. As current technology only permits CTE diagnosis post-mortem, many athletes today are likely living through and suffering from symptoms such as memory loss, confusion, and depression. The NFL is aware of its onus and has already paid north of $1 Billion in settlements. From a financial standpoint, the NFL may look at the CTE epidemic as a cost of doing business, simply writing the settlement funds off as an expense on their balance sheet. While the league has taken steps to improve its concussion protocol, the concern of treatment for concussed athletes – highlighted by Tua Tagovailoa’s injuries this past season – is cause for an ever-growing conversation surrounding the handling of NFL player injuries and their seemingly miraculous recovery times. Most likely due to being the most prevalent professional football organization worldwide, the NFL is at the forefront of the CTE blame and culpability. However, it is unfair to villainize the NFL solely, as professional football athletes playing at the highest level have likely been rattling their skulls since their youth and Pop Warner days. However, with the expansion of NIL rights and the growing controversy of the “amateurism” label in the NCAA, we may see legal action from athletes seeking pecuniary damages from their collegiate football playing days as well. So, what’s the fix? The NFL seems to think an upgrade in helmet safety will make the game less harmful. As cute as that idea is, (see the guardian caps during the beginning of the 2022-2023 preseason), even bubble wrapping helmets à la Jason Kelce will have minimal consequence. The actual concussive impact occurs from the brain hitting the interior of the skull – not from the skull hitting objects like other skulls or turf. While helmets may lessen the impact of the collision itself, the smashing of the brain with the inner skull is still consistent. The truth of the matter is, to alleviate CTE pervasiveness in football requires a change in the rules. A change in the way the game is played. And although making football a more passive game is a move that will be met with vehement dissatisfaction by fans and the media, it may be the only way to ensure football athletes don’t live the tail-end of their lives in a constant state of mental torture the way Junior Seau, Aaron Hernandez, Mike Webster, and countless others have had to. Aaron Polonsky is a 2L at the William S. Boyd School of Law at UNLV and is actively seeking a sports law internship this upcoming 2023 summer. https://www.linkedin.com/in/aaron-polonsky/ References 1.https://www.science.org/content/article/former-football-pros-die-faster-rate-baseball-veterans-and-reasons-are-surprising#:~:text=The%20517%20former%20NFL%20players,the%20517%20NFL%20players%20surveyed. 2.(https://www.nflconcussionsettlement.com). 3.https://www.cognitivefxusa.com/blog/football-concussion-prevention-and-recovery#:~:text=In%20football%2C%20helmet%2Dto%2D,is%20what%20causes%20a%20concussion. 4.https://www.bumc.bu.edu/busm/2023/02/06/researchers-find-cte-in-345-of-376-former-nfl-players-studied/#:~:text=School%20of%20Medicine-,Researchers%20Find%20CTE%20in%20345%20of%20376%20Former%20NFL%20Players,players%20studied%20(91.7%20percent). 5.https://www.nytimes.com/interactive/2017/07/25/sports/football/nfl-cte.html 6.https://www.nbcsports.com/washington/commanders/what-nfl-guardian-cap-and-how-does-it-work

Despite the widespread adoption of name, image, and likeness (“NIL”) and the multitude of activations being enjoyed by college athletes and brands around the country, young golfers have been largely left behind. Although the NCAA has lifted most restrictions for college golfers, they must still comply with United States Golf Association (“USGA”) rules to ensure they maintain their amateur status. For golfers with dreams of making a professional tour, it is critical that these rules are followed. For its part, the USGA has made an effort to update its rules to allow college golfers to take advantage of the new NIL landscape. In October 2021, the USGA and the Royal & Ancient Golf Club of St. Andrews published modernized Rules of Amateur Status. Under the new rules, amateur golfers can receive money from social media sponsorships, personal appearances, and autograph signings. The new rules also increase the cash prize that an amateur can receive for playing in traditional stroke-play events from $750 to $1,000, although they can receive more for skills competitions like long drive contests. There are three avenues of compensation that the USGA expressly forbids. Golfers may not (i) play as a professional; (ii) accept employment as a club pro; or (iii) accept payment for giving instruction, with limited exceptions for coaching at educational institutions. The third restriction – accepting payment for instruction – is a major handicap for college golfers. In an attempt to soften that blow, the USGA stated that amateurs will be allowed to receive compensation for providing instruction on social media provided that the instruction is “one-way”, meaning simply posting videos demonstrating how to perform a certain golf shot. Reading between the lines, this statement is simply reiterating that golfers may not get paid for instruction using “two-way communication” to a specific individual or group. In other words, amateur golfers cannot give lessons. In no other sport would instruction be more profitable and important for athletes than golf. It also happens to be the only one where instruction is not permitted. Athletes in all other sports, including football and basketball, are permitted to give private or group instruction in exchange for payment. However, the majority of NIL money for those athletes, whether it be big money or small money, comes from endorsement deals. In fact, according to Opendorse data, both golf accounts for just 0.7% of NIL compensation. This makes sense because although you might occasionally play pickup basketball or flag football for the exercise, you are probably not going to shell out hundreds of dollars to learn how to shoot a free throw anytime soon. In contrast, there are millions of people who play golf every week and spend thousands per year trying to improve. They get fitted for clubs, take lessons, and watch hours of YouTube videos about how to fix their slice only to forget it all the minute they step on the first tee box. This activity has skyrocketed since COVID when golf courses were one of the only recreational activities available to people for several months. The USGA rules and restrictions are clearly designed to avoid a situation where an amateur is essentially acting as a professional by playing as a pro, accepting prize money, or being employed as a club pro. However, the USGA does not have to take an all-or-nothing approach with its rules. Permitting college golfers to get paid for instruction through private lessons to a group of kids or to a group of adults while home on a summer break will not blur the lines between amateur and professional golf. In a perfect world, the USGA would lift this restriction entirely. However, rather than a blanket ban, the USGA should at least allow amateurs to offer instruction for a limited number of events or set a maximum dollar amount (a high one) that a college golfer can earn from instruction per year. They could also include a notice requirement to regulate and ensure compliance with these maximums. The USGA, however, is not the only barrier for college golfers. Although most student-athletes can profit off NIL, there is still a restriction on international students with F-1 visas. This restriction also disproportionately affects college golfers, as a massive 32% of Division I Women's golfers and 19% of Division I Men's golfers are international students. Given the unique ability of college golfers to earn money from instruction when compared to their counterparts in other sports, the USGA should be flexible in allowing them to do so. Travel to and from amateur tournaments is a major expense that often falls on parents trying to help their kid achieve their dream of playing professional golf. Earning money from an instructional camp or two over the summer or in the offseason would go a long way to help, and there are already real-life examples of this. For instance, Transcend Capital Advisors, a New Jersey-based wealth management advisor, signed an NIL deal with Caleb Surratt, a college golfer at the University of Tennessee. After Surratt finished runner-up at the U.S. Junior Amateur, he sent a thank you note to Transcend which stated that “the fact that I can just go out and play and not worry about the money has freed me up to play my best golf.” With nearly one-third of college golfers ineligible for NIL due to their visa status and the remaining barred by USGA rules, college golfers are at a significant disadvantage compared to other student-athletes. If, as their website says, one of the USGA’s primary goals is to “strengthen the game’s foundation”, the best way to do so is to equip young golfers with the tools and opportunities necessary to focus on their careers. John Nucci is a Corporate Associate Attorney and Chief Golf Law Correspondent for Conduct Detrimental. He can be reached via email at [email protected] or on Twitter @JNucci23.

This week, PGA Tour Commissioner Jay Monahan announced that, beginning in 2024, there will be eight designated events with fields between 70 to 80 players and no cuts. The schedule was approved by the PGA Tour’s Policy Board and is being implemented in an effort to “transform and set the future direction” of the PGA Tour. The announcement did not come without criticism from those within the golf ecosystem, as the parallels to LIV Golf’s much-maligned format are obvious. However, the smaller field, no-cut events serve two purposes for the PGA Tour: first, they guarantee sponsors that the game’s top stars will be there for all four days; second, they guarantee paydays for those same stars. The announcement comes on the heels of the PGA Tour’s introduction of “designated events” to its schedule, which thus far have been wildly successful. In February, Scottie Scheffler took down the Waste Management Phoenix Open at TPC Scottsdale. The raucous final round took place just down the street from State Farm Stadium, where the Chiefs and Eagles would kick off Super Bowl LVII just 30 minutes after Scheffler won the tournament. The win allowed Scheffler to reclaim the world number one ranking, jumping Rory McIlroy en route to defending his 2022 victory at the same event. Also finishing inside the Top 10 at the WMPO included Jon Rahm, Justin Thomas, Jason Day, Sam Burns, Sungjae Im, Jordan Spieth, Tyrell Hatton, Xander Schauffele, and Rickie Fowler. That leaderboard, combined with the Super Bowl kicking off down the road, drew significant buzz and eyeballs for the PGA Tour. Just one week later, Jon Rahm battled hometown hero Max Homa to win the Genesis Invitational at Riviera Country Club. Rahm’s win allowed him to leapfrog Scottie Scheffler as world number one, who enjoyed the honor for just six days. The tournament came loaded with storylines, as Tiger Woods made the cut in his 2023 season debut, and Max Homa – a Cal golf alum and Southern California native – was in the mix all week. Homa choked up as he spoke to media following the tournament, highlighting just how important legacy and winning tournaments are for many players on Tour. In addition to Max Homa, other young stars like Collin Morikawa, Will Zalatoris, Sahith Theegala, and Patrick Cantlay all finished inside the top 10. This week’s Arnold Palmer Invitational was the third designated event on the PGA Tour schedule. Handwritten letters from Arnold Palmer to PGA Tour members lined the hallways of the clubhouse at Bay Hill, as the Sunday leaderboard was once again loaded with the game’s top stars. With just a few holes to play, Rory McIlroy, Scottie Scheffler, Jordan Spieth, Viktor Hovland, and Patrick Cantlay were all within just a couple of shots of one another. However, it was Kurt Kitayama, currently ranked number 46 in the Official World Golf Ranking, who took down the $3.6 million prize at the Arnold Palmer Invitational. Kitayama (also called “Quadzilla” and the “Quadfather” due to the size of his thighs) highlights the opposite end of the spectrum from Rahm and Scheffler. Prior to earning his PGA Tour card, Kitayama played on the Asian Tour, Web.com Tour, PGA Tour Canada, PGA Tour China, and the Asian Development Tour. After finally earning his PGA Tour Card, he went out and stared down the game’s biggest stars en route to his first career PGA Tour victory. The designated events have become must-watch television for the PGA Tour, who could not have asked for a better start to its 2023 season. They feature high-powered young stars and legendary veterans, yet are still accessible to players like Kitayama, who can go out and win on any given week. Ultimately, leaderboards and finishes like we’ve seen at the Waste Management, Genesis, and Arnold Palmer will certainly help “transform and set the future direction” of the PGA Tour. John Nucci is the Chief Golf Correspondent for Conduct Detrimental and a Corporate Associate Attorney. He can be reached via Twitter at @JNucci23 or by email at [email protected].

Two significant developments took place in the PGA Tour-LIV legal battle over the last week. First, US District Court Magistrate Judge Susan van Keulen denied LIV’s motions to quash the PGA Tour’s subpoena requests for Saudi Arabia’s Public Investment Fund (PIF) and its governor, Yasir Othman Al-Rumayyan. The PGA Tour had sought to subpoena the two parties since August 2022. Second, the PGA Tour’s motion for leave to amend its counterclaim to add the PIF and Al-Rumayyan, as defendants was granted. LIV relied heavily on the Foreign Sovereign Immunities Act (FSIA), which generally makes foreign governments and officials immune from lawsuits in US courts under certain circumstances, to fight against the subpoena requests. One major limitation of the protections of FSIA is the “commercial activity” exception, which can subject foreign governments and leaders to lawsuits if they actively engage in certain commercial activity in the US. For those lucky enough to have sat through a 1L Civil Procedure class in law school, it is akin to an International Shoe “minimum contacts” test. To that end, LIV argued that PIF and Al-Rumayyan are merely investors in LIV Golf and are not engaged in the type of commercial activity necessary to circumvent FSIA protection. Conversely, the PGA Tour argued that the PIF and Al-Rumayyan were essentially in complete control of LIV such that they approve all contracts, manage the day-to-day operations, and wield significant power. Judge van Keulen sided with the PGA Tour, writing that “it is plain that PIF is not a mere investor in LIV; it is the moving force behind the founding, funding, oversight, and operation of LIV.” She added that PIF’s action are “indisputably the type of actions by which a party engages in trade and traffic or commerce.” In addition to arguing FSIA immunity, LIV resisted the subpoena requests on the grounds that subjecting PIF to discovery in this case could have far-reaching implications, since PIF is an investor in many other companies in the US and they could be subject to discovery every time one of those companies is embroiled in litigation. Although it is true that PIF is an investor in many other US companies, they are a 93% investor in LIV and have funded the league to the tune of approximately $2 billion to date. In addition to being a 93% owner, the PGA Tour argued that PIF officials are actively involved in all decisions of LIV Golf from top to bottom. Such active involvement and ownership move the FSIA needle beyond mere passive investment into clear commercial activity. Under the order, which was originally filed under seal on February 9, PIF must submit to 25 separate categories of document discovery. Additionally, Al-Rumayyan and other PIF officials will be deposed either in New York City or Saudi Arabia. The discovery categories are largely related to the creation of the new league and the recruitment of players. The PGA Tour has long argued that LIV not only actively induced PGA Tour members to break their contracts, but also weaponized those members by incentivizing them to recruit others to do the same. The production of documents and information under those circumstances, Judge van Keulen wrote, “do not involve matters of national security or other information the disclosure of which would adversely affect Saudi Arabia.” PIF and Al-Rumayyan have long resisted efforts to be subject to the discovery process in US courts. As Jodi Balsam, a Sports Law Professor at Brooklyn Law School, pointed out on the Golf Channel, Saudi Arabia is a “far more secretive and closed society that does not litigate with the permissiveness and open discovery” that the United States has. In addition to cultural objections, discovery may further implicate PIF and Al-Rumayyan in the PGA Tour’s claims of tortious interference if there are communications showing LIV incentivized its players to recruit PGA members to break their contracts. PIF and Al-Rumayyan will petition district court judge Beth Freeman, who is overseeing the case, to review the order. However, Judge Freeman is unlikely to overturn van Keulen’s detailed and well-reasoned 58-page decision. Assuming that Judge Freeman keeps the ruling intact, LIV may also file an interlocutory appeal to the 9th Circuit Court of Appeals, which is also unlikely to provide PIF with the relief it seeks. Once their appeals are exhausted, PIF and Al-Rumayyan will have to either comply with the subpoena requests or ignore them. The denial of LIV’s motion to quash the subpoena requests was not the only bad news for LIV this week. Late Tuesday night, the court granted the PGA Tour’s motion for leave to amend its counterclaim to add the PIF and Al-Rumayyan as defendants in the case. In doing so, Judge Freeman also decided to unseal and make public certain LIV documents and materials she used to justify her decision, further forcing transparency on a historically opaque regime. Notably, PIF and Al-Rumayyan have already refused to comply with a subpoena to testify in a fraud trial against Tesla in the same court in California. If they further refuse to submit to the jurisdiction of the US courts – whose protections they are simultaneously seeking with their antitrust case – the consequences can range from negative inferences being drawn by the court to outright dismissal of their claims with prejudice. Notwithstanding those consequences, these recent decisions bring the possibility of a settlement into play, since PIF would likely rather drop the case than subject its executives to depositions and open up their books. The terms of a potential settlement are unclear, but would spare the parties, their employees, and their business partners from a long, drawn-out, and costly discovery process and trial. John Nucci is the Chief Golf Correspondent for Conduct Detrimental and a Corporate Associate Attorney at Woods Oviatt Gilman LLP in Rochester, NY. He can be reached via Twitter at @JNucci23 or by email at [email protected].

ESPN senior writer Don Van Natta Jr. reports Washington Commanders owner Dan Snyder took out a $55 million loan, indicated by a footnote in an April 2020 financial report. The note showed the three minority owners did not know Snyder took out the $55 million credit line, and he took it out without their approval. The Washington Commanders are owned by Dan Snyder and Pro-Football, Incorporation. One owner’s actions must be approved by either a majority vote, or by the Board of Directors’ approval. Incorporation partners are not liable for another partner’s actions, compared to a partnership, in which they are liable. Here, the minority owners are not liable for Snyder’s loan if he and the Washington Commanders committed the alleged financial misconduct. Federal prosecutors are investigating Snyder potentially committing financial misconduct. Multiple sources with firsthand knowledge of the inquiry reported these allegations. Documents related to the team’s finances show Snyder’s action of taking out the loan without the minority partners’ consent and Washington’s board of directors’ approval violated the shareholders agreement. The documents also show Bank of America officials asked team executives repeatedly for proof that the board had approved the loan. But the team executives never turned over a copy of the board approval before the loan closed, and one team lawyer later acknowledged in a letter that the board approval doesn't exist. Snyder’s actions are potentially criminal. A source reported the partners alleged to the NFL arbitrator that their partner had possibly committed bank fraud. Snyder’s fraud is a jail time type of fraud. A criminal inquiry is being led by a team of FBI and IRS agents. A federal grand jury has issued subpoenas for a cache of documents related to the team's finances, including the loan. Prosecutors acquired the partners' NFL arbitration petition and other supporting materials, including emails and letters between team executives and bank lawyers, documents show. The minority partners pressed the NFL arbitrator to seek proof Snyder legally obtained the loan, and the NFL moved to shut down arbitration proceedings. The partners agreed to mediation, led by NFL Commissioner Roger Goodell. The mediation resulted in the partners selling their shares, and it silenced their complaints against Snyder, the sources said. The NFL never conducted the partners' requested investigation of the loan, and the league levied no sanctions against Snyder related to the allegations of financial misconduct. The minority partners believe Goodell and NFL general counsel Jeffrey Pash sided with Snyder over them. They believe the NFL owes them as much of a fair shake as it owes Snyder. And the league had no interest in finding out what happened. They buried it and didn't investigate it and covered it up. The minority partners listed their allegations, and it included misuse of team funds to staff his yachts and private jets to the abuse of corporate bylaws. The documents show that minority partners Robert Rothman, Dwight Schar and Frederick W. Smith protested the loan after they discovered it in a financial report's fine print. They then started looking closely into the team's finances and found Snyder was using the team as his "personal piggy bank," including charging the team $4.5 million to put its logo on his private jet, they alleged in the arbitration petition filed with the NFL. The partners’ dispute was fought in sealed motions filed in a federal lawsuit in Maryland before landing in confidential proceedings led by an NFL arbitrator and, eventually, the closed-door mediation overseen by Goodell and NFL lawyers. The partners asked Goodell to suspend or remove Snyder as the owner. They stated: "Snyder's wrongful conduct, self-dealing, mismanagement and brazen disregard of his duties also manifest more generally his lack of fitness to continue serving as the principal stockholder and CEO" of the Washington NFL franchise, the partners wrote in the NFL arbitration petition. "His conduct has harmed not only Claimants and [the team], but also the Washington ... franchise as a whole (and thus both Washington ... fans and supporters, and the NFL itself)." During the two-day mediation, the partners' lawyers were primed to demand that the NFL investigate the secret credit line, according to a source with firsthand knowledge. Despite lawyers raising the issue several times, Goodell and Pash said they would not consider it. The source said Goodell told the partners they had only one option: Reach an agreement to sell their shares to Snyder. A source said: "Goodell and Pash were not interested in talking about those allegations or any allegations between the parties.” “The partners were furious that Goodell and Pash had blocked their request that the arbitrator seek bank records from Bank of America.” Within a month of the session, they struck a deal: Snyder agreed to buy out his three partners' 40% share for a total of $875 million. But Snyder was cash poor. He needed the NFL's permission to finance the buyout. By a 32-0 vote on March 31, 2021, NFL owners granted Snyder a new debt-limit waiver. And Snyder borrowed an additional $450 million from Bank of America. Snyder is moving forward with his plans to sell the Commanders, accepting sealed bids from several interested groups. Managing the sale on Snyder's behalf: Bank of America. 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.

In January of 2020, the tragic helicopter crash that took the lives of Kobe Bryant, his daughter Gianna, and seven others shook the world. This incident caused grief for their families, loved ones, and millions of fans worldwide. Flash forward three years and Kobe Bryant's widow, Vanessa Bryant, and Los Angeles County have settled their legal dispute for $28.85 million over pictures that deputies exchanged following the 2020 helicopter disaster. The $28.85 million settlement between Vanessa and LA County includes $15 million already awarded by a jury in August after a trial in federal court. Chris Chester, whose wife and daughter perished in the collision, also received a $19.95 million payout. This case arose after Los Angeles County sheriff's and fire department employees shared the gruesome images of the crash site. The photos were distributed and, in one case, even shown by a local bartender at a bar where one of the deputies was drinking. In August, Vanessa Bryant testified that the release of the photos added to her grief a month after the horrific accident. She reported having panic attacks at the thought of the pictures circulating. Vanessa Bryant considers the settlement a massive victory after years of litigation. It serves as a warning to other law enforcement authorities that it is unacceptable to act similarly. In a statement, Vanessa Bryant's lawyer, Luis Li, expressed his hope that their win will deter future instances of this happening. This deal is a significant blow to Los Angeles County. When you factor in two $1.25 million settlements for the other families involved, the incident now costs LA County over $50 million. The damages awarded might influence future decisions about how the county manages sensitive data and evidence. The settlement "resolves all outstanding issues related to pending legal claims in state court, future claims by the Bryant children, and other costs, with each party responsible for its respective attorney's fees." This quote is from Mira Hashmall, LA County's primary for this case. In conclusion, this settlement represents a significant victory for Vanessa Bryant and the families involved. This case clearly states that the unauthorized release of sensitive information and evidence will no longer be tolerated. It may change how the county manages such details moving forward. The three-year legal dispute will finally come to an end when the court approves the deal. 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.latimes.com/california/story/2023-02-28/county-to-pay-more-than-28-million-to-kobe-bryant-widow-vanessa https://sports.yahoo.com/vanessa-bryant-settles-remaining-claims-over-kobe-crash-site-photos-for-289-million-014324309.html?guccounter=1&guce_referrer=aHR0cHM6Ly9uZXdzLmdvb2dsZS5jb20v&guce_referrer_sig=AQAAAD_0xCc3kShgKyc9Wun7uMY9SHSGrysR0mVu4oavnlEv1P0mgqiK4uy53x9FruwTdvW8-5ej183EgFiDecjQI57Pstft-Zx08P7l9wxdEcYFHGy6dZrySo8YjC_BHDXuTQl3-0ZRx6Rbn7IMpZ2ywICe-UwLiLZhQnV9_nHZUAYB https://www.espn.com/nba/story/_/id/35756719/vanessa-bryant-settles-crash-photos-suit-2885-million

On Wednesday night, Alabama star freshman Brandon Miller scored a career-high 41 points, leading the No. 2 Crimson Tide to a 78-76 win over South Carolina in an overtime thriller. This impressive performance came just a day after Tuscaloosa police testified that Miller had brought a now-former teammate the handgun used to kill a woman in January. Miller performed for his team despite the criticism and chants from the opposing student section. Before the game, Alabama announced that Miller would play, calling him "an active member of our team." The school stated that they were cooperating with law authorities in investigating the shooting and reported that Miller was only a cooperative witness and not a suspect based on the information they had received. On January 15, an early morning shooting claimed the life of 23-year-old Jamea Jonae Harris near the University of Alabama campus. Following Harris's death, the Crimson Tide men's basketball team dismissed Darius Miles, who, along with Michael Lynn Davis, is accused of capital murder. Tuscaloosa Detective Branden Culpepper testified in court on Tuesday that Miller brought Miles' gun to him the night of the incident after Miles requested it via text message. On Tuesday, the Chief Deputy District Attorney for Tuscaloosa, Paula Whitley, told AL.com that "there's nothing we could prosecute [Miller] with," even though Miller was not charged with any crimes. According to Greg Byrne, the director of athletics at Alabama, the choice to let Miller play was decided after consultation with the school's administration, including Dr. Stuart R. Bell, Nate Oats, the coach of the Crimson Tide, the university's legal counsel, and others. According to him, the school discovered certain "new information" in the previous 48 hours due to the hearing on Tuesday and the events that followed, which impacted their choice to let Miller play. In reaction to inaccurate reporting, Jim Standridge, one of the lawyers for Miller, issued a statement on Wednesday that reiterated some of those issues and provided more information on Brandon's behalf. Miller never noticed Miles' weapon, which Standridge claims was "concealed behind some garments in the back seat" of Miller's automobile. Miller, he said, never handled the pistol or took part in its transfer to Davis, the suspected shooter. Recently, two events involving murder accusations have rocked the Alabama basketball program. Devonta Pollard, a former basketball player for Alabama, was given a 25-year prison term in December for his involvement in a kidnapping and assault case that culminated in the death of a 6-year-old boy. The most recent incident involving Miles and Davis has further increased the program's scrutiny. 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.espn.com/mens-college-basketball/story/_/id/35713382/alabama-says-brandon-miller-play-south-carolina https://www.tuscaloosanews.com/story/sports/college/basketball/2023/02/22/brandon-miller-attorney-alabama-basketball-star-fatal-shooting/69933614007/

Last week, California Assemblymember Matt Haney filed a Bill (AB 1136) to create a pension fund in California for mixed martial artists. The Bill would make California the first state to create a fund for mixed martial arts (MMA) fighters. As independent contractors, MMA fighters often receive low wages. Plus, the fighters do not receive retirement nor disability benefits, forcing fighters to pay out-of-pocket for injuries from a sport that causes athletes to retire early and frequently causes long-term injuries, including traumatic brain injuries. The new California Bill would set up a pension fund for MMA fighters that have participated in a certain number of matches in California during their careers. The money contributed to the fund would come from a portion of each ticket sold to a fight in California or via donation. In 1982, California led the way in providing retirement protections for some fighters by creating the Professional Boxer’s Pension Fund. The boxer’s fund is valued at over $5 million for retired boxers meeting certain qualifications. Now, California is again leading the way for mixed martial artists. 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.

Last week, Corbin Burnes lost his salary arbitration case to the Milwaukee Brewers. When speaking to reporters, the 2021 NL Cy Young Award winner voiced his frustrations, stating “Obviously, it's tough to hear. It's tough to take. They're trying to do what they can to win a hearing,'' and "There's no denying that the relationship is definitely hurt from what [transpired] over the last couple weeks. There's really no way of getting around that." Every offseason, we normally hear at least one episode of a player sounding off like this following a salary arbitration hearing. Whether the player and his representation emerged victorious in the case or not, quotes about “hard feelings” or a “strained relationship” usually surface in the headlines. It’s totally understandable, I mean how would you feel if your employer highlighted your flaws in route to claiming that you aren’t worth what you’re asking for? Despite all the consternation around salary arbitration, however, it's likely not going anywhere anytime soon. Why is that? For the players, it’s a necessary evil to maximize their earnings. Prior to 1974, the professional baseball labor market was characterized by the so-called “reserve clause,” which tied a player’s services to his current team indefinitely, thereby transferring monopsony power to baseball team owners. The reserve clause was a constant source of friction between players and team owners throughout its history. In essence, if a player wanted a raise, his only option was to ask the team owner to voluntarily give him one. That changed in 1974 when the MLBPA got its first big victory: salary arbitration. While free agency (which came along in 1976) understandably gets most of the attention in today’s game, salary arbitration is as if not more important for the rank-and-file player. In short, it allows players with more than three (more than 2 in special cases) and less than six years of MLB service time to negotiate their salaries with their teams for the upcoming year. If the players and their representation cannot agree or “settle” on a number with the team, it goes to a hearing where impartial arbitrators decide between the player’s filing number and the team’s filing number. Inevitably, this puts MLB front offices in a tough spot. Yes, they want to reduce their payrolls as much as possible. But do they want to strain relationships with their players in the process in the process? Absolutely not. As a result, some teams do everything they can to settle and avoid hearings. The Texas Rangers, for example, have not gone to a hearing since 2000. However, other teams don’t share that approach. A collection of executives and front offices take the “file and trial” strategy where they treat the arbitration figure exchange date as a hard deadline; if the club and player are unable to avoid arbitration prior to exchanging salary figures, the understanding is that the will club no longer negotiate one-year deals with that player and head to hearing. Oftentimes, these negotiations are over six-figure amounts. While $700,000 or $950,000 is a lot of money to you and me, in the grand scheme of Major League Baseball, it’s not like teams will go under financially if they have to shell out a few more dollars than they originally wanted to. So why do some teams insist on going to arbitration hearings? It’s all about precedent and avoiding subtle increases that future arbitration-eligible players will be compared to. Arbitration at its core is all about comparison. It’s not intended to give a player a fair salary or what he’d be worth on the open market. That’s what free agency is for. Arbitration salaries are determined by looking back at what players who have accrued a similar amount of service time made in arbitration in recent years. For example, in his hearing, Corbin Burnes’ camp wasn’t arguing that he should make what Justin Verlander, Max Scherzer, or Jacob deGrom will in 2023. Instead, they looked at what the best pitchers with four years of service time made in arbitration and argued why Burnes was worth X amount more than them. By offering Burnes what he wanted ($10.75 million), the Brewers would’ve laid the groundwork for future players of Burnes' caliber and service time to cash in more than they otherwise would. Since any outlier of a contract can serve as a precedent in the future, clubs and the league as a while) pay very close attention to arbitration salaries. Yes, the $750,000 the Brewers saved on Burnes might not seem like a big deal in a vacuum, but the cumulative effect over time can lead to teams shelling out more and more each year. Because of all the animosity and ill-will arbitration can create, there has been a push by MLB to get rid of the process entirely. According to Ken Rosenthal of the Athletic, in the last round of bargaining, MLB proposed replacing salary arbitration with a formulaic approach. The players vehemently rejected it, which goes back to my original point: salary arbitration is a necessary evil. I bet all players would agree that it sucks to hear their teams downplay their abilities to pay them less. At the same time, I bet all players would agree that the pros of arbitration outweigh the cons. It’s crazy to think about in the current landscape, but just 50 years ago, players had zero control over their salaries. Free agency is the goldmine that every player aspires for, but arbitration gives players with less than six years of service time at least some leverage at the negotiating table. One potential solution could be to take the individual teams out of the process, thereby eliminating the player vs. team element in arbitration. For example, instead of the player negotiating with his team, he could just negotiate with MLB’s lawyers, who would work on behalf of the clubs. In that case, you would hear Corbin Burnes direct his ire to the commissioner’s office, not the team he’ll suit up for in 2023. But that solution doesn’t come without its problems and probably won’t come to fruition anytime soon. If arbitration is here to stay (which I think it is), don’t expect players to keep their frustrations to themselves, and don’t expect teams to “cave in” at the negotiating table. As someone who loves baseball, is a finance major and is headed to law school, I’m fascinated by salary arbitration. In saying that, I completely understand all the negative side effects that come with it. However, I, along with many on the player’s side believe this: salary arbitration is a necessary evil in Major League Baseball. Brendan can be found on Twitter @_bbell5