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

Major League Baseball’s 2023 salary arbitration season was yet again another successful season for the clubs. There were 33 players and teams who filed numbers. Ultimately, 14 players settled, while 19 players went to hearings against their clubs, where the Clubs held a substantive advantage. Both the Cardinals (Ryan Helsley and Genesis Cabrera) and the Mariners (Diego Castillo and Teoscar Hernandez) went 2-0 against their players, while the Miami Marlins (Luis Arraez and Jesus Luzardo) were the only players to sweep their club. The Rays were the club with the most hearings with four, finishing with a 2-2 record. NINETEEN HEARINGS: 13 CLUB WINS - 6 PLAYER WINS NINE MULTI-YEAR EXTENSIONS: 1. Yandy Diaz - Tampa Bay Rays - 3 years, $24M - AAV of $8M 2. Jeffrey Springs - Tampa Bay Rays - 4 years, $31M - AAV of $7.75M 3. Peter Fairbanks - Tampa Bay Rays - 3 Years, $12M - AAV of $4M 4. Dylan Moore - Seattle Mariners - 3 years, $8.875M - AAV of $2.96M 5. Cristian Javier - Houston Astros - 5 Years, $64M - AAV of $12.8M 6. Seranthony Dominguez - Philadelphia Phillies - 2 Years, $7.25M - AAV of $3.625M 7. Tony Gonsolin - Los Angeles Dodgers - 2 Years, $6.65M - AAV of $3.325M 8. Jeff McNeil - New York Mets - 4 Years, $50M - AAV of $12.5M 9. Bo Bichette - Toronto Blue Jays - 3 Years, $33.6M - AAV of $11.2M FIVE 1-YEAR SETTLEMENTS: 1. Jon Berti - Miami Marlins - 1 Year, $2.125M - Club Option at $3.5M in 2024 2. Jose Alvarado - Philadelphia Phillies - 1 Year, $3.45M 3. Austin Voth - Baltimore Orioles - 1 Year, $1.85M - Club Option at $2.45M in 2024 4. Gleyber Torres - New York Yankees - 1 Year, $9.975M 5. Victor Robles - Washington Nationals - 1 Year, $2.325M - Club Option at $3.3M in 2024 Conclusion Overall, the Clubs were victorious in this year’s slate of arbitration cases, more than doubling the wins of the players. This could lead to internal discussions on altering the process, especially since the elimination of it was discussed during the most recent CBA negotiations. The process consistently hinders relationships between players and their clubs, so if the clubs continue to win the majority, the salary arbitration process could cease to exist in the near future. Michael Perlo is a law student at the University of Buffalo School of Law, Class of 2023. He can be found on Twitter @michael_perlo.

In a recent decision by the Philadelphia County Court of Common Pleas, former Philadelphia Eagles captain Chris Maragos was awarded $43.5 million on the back of a medical malpractice suit against two orthopedic surgeons.[1] Maragos tore his posterior cruciate ligament (hereinafter “PCL”) in his right knee during a game on October 12, 2017, and underwent an advanced rehab program despite still showing a partial tear in his knee in 2018.[2] This ultimately led to the “premature end” of his career in the National Football League (hereinafter “NFL”) and the lawsuit in the present day.[3] This ruling is a significant shift for NFL teams and their medical staff as the focus must now become a player’s ability to get back on the field as soon as possible as well as the player’s long-term health. The criticism and frustration of the NFL’s medical staff is not just felt by former players as New Orleans Saints’ receiver Michael Thomas expressed his thoughts in a now-deleted tweet commenting on the suit “right decision, the nfl medical sucks, cheap and uneducated their job barely requires any education or curriculum…well at least and some places I know.”[4] NFL physicians must undergo four years of undergraduate study, four years of medical school, four to five years of residency, and one year of fellowship training, and most physicians will have experience with a sports team at the collegiate or high school level before transitioning to the NFL.[5] Additionally, each physician on the team must be board-certified in their field of medical expertise led by a Head Team Physician who must have three years of affiliation with an NFL team’s medical staff and attended training camps, scouting combines, and at least sixteen games.[6] This is not to say that Thomas’ frustrations are not valid, but they are potentially misplaced. NFL physicians are qualified and educated, but the pressure from the organization may shift the medical team’s perspective to the player’s immediate availability rather than their long-term health.[7] This has been, unfortunately, at the forefront of the NFL as we saw with Tua Tagovailoa as he suffered three concussions during the 2022-2023 season.[8] Tagovailoa suffered a head injury in weeks four and five and another one again in week sixteen on Christmas Day which he is still in concussion protocol for.[9] This has led many to question his future in the league and even Dr. Bennet Omalu, the doctor who discovered chronic traumatic encephalopathy (hereinafter “CTE”), to advise Tua to stop playing immediately.[10] Tua’s parents have indicated he will play again in 2023, but that remains to be seen.[11] If Tua were to step away, it is plausible that he could file suit similar to Maragos’ suit against the physicians who cleared him to play during those weeks of back-to-back head injuries.[12] Whether Tagovailoa continues his career or not, Maragos’ win could shift the landscape of the medical focus in the NFL and open the opportunity for other former players to evaluate whether they received proper care and if not, open a similar suit against those who handled their medical issues. Evan Mattel is a 2L at Hofstra Law, Vice President of the Sports and Entertainment Law Society, and Representative for the New York State Bar Association's Entertainment and Sports Law Section. He is also the Editor-In-Chief for Conduct Detrimental. He can be found at @Evan_Mattel21 on Twitter or on Linkedin. Sources: [1] See Matias Grez, Former Philadelphia Eagles captain Chris Maragos awarded $43.5 million in medical malpractice case, CNN (Feb. 15, 2023) https://www.cnn.com/2023/02/15/sport/chris-maragos-wins-medical-malpractice-case-spt-intl/index.html. [2] See id. [3] See id. [4] Erin Walsh, Saints’ Michael Thomas Deletes Tweet Criticizing NFL Mediical Staff, Bleacher Report (Feb. 18, 2023) https://bleacherreport.com/articles/10066136-saints-michael-thomas-deletes-tweet-criticizing-nfl-medical-staff. [5] See NFLPA, Collective Bargaining Agreement 214 (2020). [6] See id. [7] See Arif Hasan, Damar Hamlin Injury Tested Our Commitment to What Matters. The NFL Failed, Pro Football Network (Jan. 3, 2023) https://www.profootballnetwork.com/damar-hamlin-injury-tested-our-commitment-to-what-matters-the-nfl-failed-opinion. [8] See Joe Rivera, Tua Tagovailoa injury history: A complete timeline of injuries for Dolphins QB, The Sporting News (Jan. 15, 2023) https://www.sportingnews.com/us/nfl/news/tua-tagovailoa-injury-history/. [9] Michael Baca, Dolphins QB Tua Tagovailoa remains in concussion protocol, won’t participate in Pro Bowl Games, NFL (Jan. 27, 2023) https://www.nfl.com/news/dolphins-qb-tua-tagovailoa-remains-in-concussion-protocol-won-t-participate-in-p. [10] See Edward Sutelan, Tua Tagovailoa injury update: Parents say Dolphins QB will be back in 2023, The Sporting News (Jan 28, 2023) https://www.sportingnews.com/us/nfl/news/tua-tagovailoa-injury-update-parents-dolphins-qb-2023/. [11] See id. [12] See Rivera supra note 8.

Hall of Fame basketball star Paul Pierce agreed to a $1.4 million settlement with the Securities and Exchange Commission (SEC) after the SEC charged Paul Pierce for touting EthereumMax tokens without disclosing the payment he received for promoting the tokens, a violation of federal securities laws’ anti-touting provision, and making false/misleading statements. Pierce becomes the latest celebrity to be charged by the SEC. In 2021, Pierce promoted EthereumMax on Twitter, including providing a screenshot of his account, which did not accurately reveal his EthereumMax holdings. Another tweet linked directly to EthereumMax and gave instructions for individuals to purchase the tokens. Pierce never revealed that EthereumMax was paying him $244,000 to promote the tokens. Thus, the SEC charged Pierce with violating anti-touting laws and making false/misleading statements about his holdings. Pierce’s settlement includes a $1,115,000 penalty and an additional $240,000 in disgorgement and interest. Additionally, Pierce will not promote crypto assets for three years. Pierce is not the first celebrity to be targeted by the SEC after promoting a crypto asset. In 2022, Kim Kardashian settled with the SEC for $1.26 million after the SEC charged Kardashian for similar actions when Kardashian promoted EthereumMax without disclosing the payment she received for the promotion. Additionally, a class action lawsuit is pending in the Southern District of Florida against multiple FTX entities and celebrities, including Tom Brady, Stephen Curry, and Naomi Osaka, relating to FTX’s bankruptcy and the celebrities’ endorsements of FTX. The SEC has not taken any action against the celebrities involved in the lawsuit. While crypto assets have left the limelight, Pierce’s settlement serves as a warning to celebrities and athletes endorsing securities—be sure to disclose how much you are getting paid for your promotion. 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.

Republished with permission. The article, “That Seems Presumptuous: NCAA’s Bylaw Changes Evidentiary Standard for NIL Infractions,” was originally published on February 9, 2023 by Bradley Arant Boult Cummings LLP on the bradley.com. Copyright 2023. By: Grant Williamson and Jonathan Wohlwend Just under two years after the Supreme Court’s landmark decision in National Collegiate Athletic Association v. Shawne Alston, et al., which opened the door for college athletes to be compensated for the use of their name, image, and likeness (NIL), the National Collegiate Athletic Association (NCAA) made its most significant move toward regulating possible abuses of NIL in college sports. Through an amendment (adopted October 2022, but effective January 1, 2023) to the bylaws concerning the NCAA’s infractions program, the NCAA adopted a new presumption, as well as a new evidentiary standard, for NIL cases subject to NCAA regulation: 19.7 Standards of Review and Resolution Methods (Level I/II Cases). 19.7.3 Violations Presumed in Select Cases. In cases involving name, image and likeness offers, agreements and/or activities in which related communications and conduct are subject to NCAA regulation, the infractions process (including interpretive requests) shall presume a violation occurred if circumstantial information suggests that one or more parties engaged in impermissible conduct. The enforcement staff may make a formal allegation based on the presumption. The hearing panel shall conclude a violation occurred unless the institution or involved individual clearly demonstrates with credible and sufficient information that all communications and conduct surrounding the name, image and likeness activity complied with NCAA legislation. Under the amended language, NIL cases would, based on circumstantial evidence, be subject to a presumption that a violation has occurred. It would then be incumbent on the NCAA member institution to show that the alleged violation has not occurred. Whereas the NCAA need only present circumstantial evidence in order to gain the presumption of a violation, the member institution would be required to “clearly demonstrate[] with credible and sufficient information” that all activities surrounding the alleged violation were compliant with the NCAA’s rules and regulations. Previously, and for all other Level I/II cases going forward, allegations of NIL violations were only concluded to be violations where, per Section 19.7.2 of the bylaws, the allegation was “supported by credible and sufficient information[.]” In football terms, the adoption of Section 19.7.3 makes circumstantial evidence of an NIL infraction the “ruling on the field” and puts the onus on the member institution to “go to the booth” and prove that there was not a violation. The amendment signals a concerted effort and commitment by the NCAA to regulate NIL post-Alston in the wake of patchwork state legislation, failed attempts at crafting federal legislation, and calls from conference commissioners to rein in what some viewed as widespread abuse of NIL as disguised pay-for-play. NCAA Vice President of Enforcement Jon Duncan has openly expressed his opinion that past investigations into potential NIL violations have failed not because there were not violations but because of lack of witness cooperation and documentary evidence: [In the past], we’d hold our nose and move on because without documentary information and evidence to confront witnesses with, they tend to lie to you. So we were stuck with cases that smelled to high heaven but could not substantiate them under the procedures that we had. “If it looks like a duck and quacks like a duck, it’s a duck,” at least according to Duncan when it comes to potential NIL violations. Now, Duncan and the NCAA have a powerful enforcement tool. They can rely on less direct, and less substantiated, information to allege that a violation has occurred and are no longer at the mercy of uncooperative witnesses (the NCAA has nothing analogous to subpoena power making it difficult to have witnesses cooperate, even when those witnesses were the same people to bring the potential violation to light). Putting the burden on member institutions to show that a violation has not occurred is also likely to encourage more frequent and open communication between member institutions and the NCAA, which forces schools to more sufficiently document and report on the NIL activities of their students, and to discourage member institutions from working with NIL collectives, despite the numerous states that have amended NIL legislation to promote that relationship. While the amendment does not create new violations, it was crafted after review of a report prepared by the Division I Board’s NIL subcommittee that specifically set forth activities that would create the presumption of a violation: An institutional staff member directly or indirectly contacts a prospect who is not in the NCAA Transfer Portal to discuss NIL opportunities. A representative of the institution’s athletics interests (e.g., individual booster or collective) contacts a prospect or their family about potential NIL opportunities prior to the prospect signing with the institution. An institutional staff member in any way offers, communicates and/or guarantees an NIL opportunity to a prospect, their family, or representatives during their recruitment. A representative of the institution’s athletics interests announces and/or enters (whether verbally or in writing) into an NIL agreement with a prospect prior to their enrollment at the institution. An NIL agreement requires a prospect to be in the locale of the institution prior to enrollment in order to fulfill the terms of the agreement (e.g., local appearances). A collective and/or its representatives engage in recruiting activities and/or the promotion of specific prospects prior to their commitment to the institution. An institutional staff member, booster or other institutional representative solicits, facilitates and/or provides additional NIL opportunities in order to secure a student-athlete's continued enrollment at the institution. It is likely that the NCAA’s initial investigations will target these exact types of activities. Of particular concern is the notion that a school could be hit with an allegation of, accompanied with the newfound presumption, a violation because of the actions of a booster outside of the institution’s control. NCAA member institutions, sports agents, collectives, boosters, and anyone else working in the realm of NIL for college athletes would be well-served by increasing documentation efforts surrounding any communications and contracts entered into concerning NIL deals.

As long as media rights revenue continues to be the driving force behind the business of college athletics, conference realignment is never going away. Sure, many of the big-time brands across the country might be settled comfortably for the foreseeable future. But schools are always looking to move up the food chain into a bigger conference with bigger media deals. With that being said, the past week featured a couple of significant developments on the realignment front. One was about a move we’ve already known about for a while and the other pertained to a potential expansion candidate for a power conference. First, let’s hit what we already know. In the summer of 2021, it was announced that Texas and Oklahoma would be leaving the Big 12 for the SEC no later than the summer of 2025 (when the Big 12 media at the time deal expired). In the ensuing 18 months, there was optimism that the two schools could negotiate an exit deal to join the SEC a year early in 2024. That seemed to make sense, given 2024 will be the first edition of the expanded 12-team College Football Playoff and the first year of USC and UCLA in the Big Ten. However, just because something “seems right” or “feels right” doesn’t mean it can easily happen, especially when television networks, media contracts, and grant of rights are involved. As recently as last week, cold water was thrown on the possibility of Texas and Oklahoma joining the SEC before the conclusion of the expiration of the Big 12’s current media deal with Fox and ESPN. Reports suggested that Fox was demanding a return to make its future programming whole, including a top-tier selection of games years into the future given the attractive inventory of Texas and OU leaving its airwaves early. With hindsight being 20/20, it appeared like those rumors of negotiations being “stalled” were just action items to push the agreement over the finish line because it was recently announced that Texas and Oklahoma will in fact be joining the SEC in 2024. According to Ross Dellenger of Sports Illustrated, as part of the agreement, the two school’s annual distributions from the Big 12 will be deducted and “be distributed to the eight Big 12 legacy universities to offset an expected decrease in their 2024 conference revenue.” In addition, while “details of any Fox and ESPN agreement were unclear, Fox is expected to receive additional inventory or compensation for the loss of the two schools in ’24.” In fact, Dellenger later clarifies that “in the end, the deal did include a previously scheduled non-conference match-up swap between Michigan and Texas. Texas will now play at Michigan in 2024 (which presumably will air on Fox) and UM will play at Texas in 2027. They were originally scheduled the opposite. Many lawyers were involved, but give credit to the two schools, Fox, ESPN, the Big 12, and the SEC for finding compromise amid the complexity. It’s best for all the involved parties to move on and begin planning for the future. The SEC’s focus will be onboarding the two schools and adjusting their scheduling model. The Big 12 will be welcoming in their new members (BYU, Cincinnati, Houston, UCF) and potentially exploring future expansion. More on that in a moment. The other significant development this week was that George Kliavkoff, the commissioner of the Pac-12, visited SMU in Dallas. Compared to the other power conferences, the Pac-12’s future is the most uncertain. With a new media deal yet to be announced and the two Los Angeles schools departing in 2024, what the Pac-12 looks like in five years is up in the air. I wrote back in October that “The expectation of many is that the Pac-12 will stay intact, but until a media rights deal with a strong grant of rights is signed, nothing is 100% certain” as it pertained to the threat of Big 12 poaching the “four corners” schools (Arizona, Arizona State, Colorado, and Utah) along with Oregon and Washington being potential Big Ten candidates down the road. Four months later, nothing has changed on that front which has raised the level of urgency out west. So what does Kliavkoff’s visit to SMU mean? Well, it’s a pretty strong indication that the Pac-12 feels like they need to expand to garner a more lucrative media deal. In addition to San Diego State (another rumored expansion target), which would get the Pac-12’s footprint back into Southern California, the potential addition of SMU would break into the Dallas-Fort Worth market. In addition to all the eyeballs and television sets in the DFW metroplex, SMU brings strong academics and a wealthy alumni base that’s shown a willingness to invest in facilities and NIL initiatives. Yes, the football program hasn’t been quite the same since it unjustifiably received the “Death Penalty” in the 80s, but coaches like June Jones, Chad Morris, Sonny Dykes, and now Rhett Lashlee have rebuilt SMU into a strong Group of 5 programs in the country over the past fifteen years. Although the Mustangs would likely jump at the chance to join the Pac-12, it’s no secret they’d prefer the Big 12. The geography makes sense and the opportunity to compete against former Southwest Conference foes like TCU, Baylor, Texas Tech, and Houston would draw bigger crowds for a program that struggles to fill its stadium on a weekly basis. However, the Big 12 has thrown the cold shoulder at the Mustangs ever since its founding in the 1990s. All of this is connected though, because according to Dellenger’s SI article, after negotiating OU & Texas’ exit, the Big 12 and commissioner Brett Yormark are expected to ‘aggressively pursue’ further expansion. Expansion is the third of three goals that Yormark set for his first year in office: 1 TV deal; 2 OU/Texas exit; 3 Further expansion.” He’s accomplished the first two. Now it’s onto the third. Does the Pac-12’s lack of a new deal to this open the door for Yormark to convince Arizona, Arizona State, Colorado, and Utah to jump to his league that already has a solid media deal? Does he go big and talk to Oregon or Washington? Did negotiating the Texas/OU early exit help in those pursuits? That’s yet to be seen. Conference realignment is inherently a topic that generates no shortage of rumors and speculation. At the end of the day, there are very few people that know what’s going on at any given point. Instead of scrolling through Twitter or message boards, I would encourage everyone to follow great writers such as Jon Wilner, John Canzano, Ross Dellenger, Dennis Dodd, and The Athletic college football staff. The future of the Pac-12 hinges on their ability to ink a strong media deal in the immediate future. Let’s see if George Kliavkoff and the company can do it. Brendan can be found on Twitter @_bbell5

It was clear that many new and exciting opportunities would arise when college athletes were permitted to start profiting off of their name, image, and likeness. Athletes began by partnering with national and local businesses, while learning to build a personal brand that could flourish after their college days were over. NIL has now grown into a national phenomenon where athletes are making deals with many different brands, for many different reasons, and collectives are popping up all over the country. Interesting deals such as Decoldest Crawford’s deal with SOS Heating and Cooling[1], Doug Edert’s deal with Buffalo Wild Wings[2], and Ga’Quincy ‘Kool-Aid’ McKinstry’s deal with Kool-Aid[3] took the NIL world by storm. As a result, athletes have seen a marked increase in individual wealth. This includes some athletes who have reported NIL valuations of $1 million or more. Former Texas running back Bijan Robinson, who is projected to go in the first round of the 2023 NFL Draft, has an estimated On3 NIL valuation of $1.8 million[4] However, it is clear that not only first-round draft prospects are making money through NIL deals. Many athletes around the country are benefitting, and it's clear that there is a need for financial literacy as a result. This begs the question, what resources do athletes have at their disposal to ensure they are financially informed? Cavinder Twins Haley and Hanna Cavinder, who are both basketball players at the University of Miami, have a combined $1.6 million On3 NIL valuation. [5] Their NIL portfolio includes deals with the WWE, which has launched an NIL program, along with Champs Sports and Boost Mobile, among others. [6] Their NIL value has led to a clear need for their financial training and literacy, to ensure that the Cavinder twins safely protect their assets and can continue to grow their already valuable brand. What is even more impressive, is that the Cavinder twins have found a way to improve their financial literacy, and ensure their financials are in safe hands, all while securing another NIL deal. The twins announced on January 27th, via their shared Tik Tok profile, that they have partnered with TurboTax.[7] This partnership will allow the twins to meet with a TurboTax representative so they can watch as the representative does their taxes live. The link to the video is below. Summary As a result of the ever-growing world of NIL, athletes have individual wealth that was previously uncommon to any college athlete. This wealth could open up possibilities for the prototype of athlete turned content creator, which adds an immediate need and responsibility of financial literacy. Many athletes would be smart to follow the path of the Cavinder twins, and get experts on board to promote and ensure their financial safety. In addition, there are programs around the country that are offering financial literacy services to athletes. This trend will continue as the world of NIL grows, and athletes would be best served by taking advantage of it. Sources: [1]Decoldest Crawford’s air conditioning commercial is the best use of NIL yet - SBNation.com [2]St. Peter's guard Doug Edert gets Buffalo Wild Wings NIL deal (nypost.com) [3]Alabama DB Ga'Quincy 'Kool-Aid' McKinstry lands the perfect NIL partnership with Kool-Aid brand - CBSSports.com [4]Bijan Robinson - NIL Profile (on3.com) [5]Haley, Hanna Cavinder start 'Twin Talk' podcast with NIL focus - On3 [6]Cavinder twins, now millionaires, have message for haters (nypost.com) [7]Twins taking on tax season with @TurboTax 🤝 Check out TurboTax Live F... | TikTok

The University of Texas and the University of Oklahoma are changing courses. After reports surfaced that the universities were likely to stay in the Big 12 Conference until the expiration of the conference’s media rights agreement in 2025, the schools, Big 12 Conference, and media networks have reached an agreement for the institutions to join the Southeastern Conference (SEC) in 2024. To exit early, Texas and Oklahoma will each pay the conference $50 million in exit fees. In addition, Michigan (rather than Texas) will now host the Michigan versus Texas football game scheduled for next season, which allows Fox Sports to broadcast the game. The average payout for SEC schools this season was nearly $50 million and may be greater than $100 million per year by the end of the decade. When it comes to conference realignment, every exit comes at a cost. With one year remaining before the teams would inevitably exit, the networks owning the rights for each conference worked through a deal that focused on a game swap to offset the cost of Fox Sports losing the rights to broadcast Texas and Oklahoma games. Conference realignment is not over. The SEC and Big Ten Conference will likely continue the push to expand. However, the cost for an Atlantic Coast Conference school to exit will be much more, considering the current grant of rights agreement binds the schools beyond 2030. With the exit of Texas and Oklahoma, the Big 12 has shifted its focus to adding more teams. Hanging in the background is the Pac-12 Conference, which is trying to find a partner for a new media rights deal. As conferences produce greater revenues, realignment will continue to churn. 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.

Just over four months ago, I published an article on Conduct Detrimental about the pending cases against popular sports trading card companies Panini and Topps. Since then, many people wrote to me asking for an update and whether there has been any conclusion. I plan to provide that update here. For a summary of the initial filings made in early 2022; see my previous article here. In March of 2022, Panini and Topps faced legal complaints relating to consumer fraud. The allegations were similar in that Plaintiff accused both companies of deceiving consumers by using false, unlawful, and deceptive representations to affect the consumer’s purchasing decisions. One clarification I would like to add is that these cases are not surrounding the frustrations consumers face when it comes to redeeming their Redemption Cards. That is a separate (and albeit important) issue altogether. These cases center around the companies' choice of how they avoid running afoul of state lottery laws. States define lotteries as paying money for the chance to win a certain item. Trading card packs fit into this category as consumers pay the price of the trading card pack to win one of the rare cards that could potentially be inside. To avoid violating lottery laws, the companies include No Purchase Necessary (NPN) instructions on the trading card packs. For example, on a pack of Panini Flux 2020-2021 Inaugural Edition, it reads: NO PURCHASE NECESSARY: Open only to U.S./Canadian (except Quebec) residents. For chance to obtain any of the cards listed above, at the same odds, hand print your name and complete address on a 3 x 5 card and mail in a #10 envelope to: Panini America Inc., NPN, 2020-21 Panini Flux Basketball, 5325 FAA Blvd., Suite 100, Irving, TX 75061-3601. While companies provide NPN instructions, the Plaintiff side argues that the way in which the company displays them forces consumers to purchase the product before they can enter the contest. Many of those who collect cards have realized the main problem. Usually, the packs are in a sealed box which would have to be purchased before the consumer can view them. So what has happened since the Plaintiff filed these cases in March of 2022? In the Panini case filed in the United States District Court for the District of Columbia, the case was dismissed due to the court’s lack of subject matter jurisdiction. Subject matter jurisdiction is spelled out in Article III of the Constitution and is a bar used to determine whether or not a certain court should rule on a case. A court that lacks subject matter jurisdiction will dismiss the case immediately. It is on the burden of the Plaintiff to establish that they have the standing necessary to establish subject matter jurisdiction. In this case, the court set the standard for establishing standing as “plaintiff must allege sufficient facts to show the following: (1) an injury in fact that is concrete and particularized, (2) an injury that is actual or imminent, not conjectural or hypothetical, (3) a causal connection between the injury and the conduct complained of and a likelihood that a court ruling in plaintiffs' favor would remedy their injury" In the end, the court found that there was no injury in fact. While the Plaintiffs alleged injury through overpayment or a procedural violation, the court found those injuries unpersuasive. They noted that she continually bought boxes over a long period of time and should have been aware of the NPN instructions. The court also stated that she purchased the box for the value of the cards, not the chance to enter the NPN contest. Therefore the case has been dismissed with prejudice as the court found that any amendment to the complaint would be futile. The court dismissing the claim with prejudice means that they will be unable to refile the case in D.C. district court. In the Topps case filed in the United States District Court for the Southern District of New York, This case dove into the merits of the arguments focusing on violations of New York's General Business Law (GBL), breach of express and implied warranties under the Magnuson Moss Warranty Act (MMWA), negligent misrepresentation, fraud, and unjust enrichment. The Defendant, in this case, filed an answer which argued that, “the GBL claims lack a New York nexus, that the breach of warranty claims were not preceded by pre-suit notice, that the MMWA claim falls with the state law breach of warranty claims, that the fraud claim fails to plead the requisite intent, and that the unjust enrichment claim is duplicative.” The court found the Defendant’s arguments persuasive and dismissed the case. Just as the D.C. case against Panini, this case was also dismissed with prejudice. It seems that, for the moment at least, both Panini and Topps escaped these lawsuits prior to trial based on different arguments. Both of these cases were dismissed based on the position of the plaintiff and not based on the merits of the actual claims. It will be interesting to see if another Plaintiff files a lawsuit against the card manufacturers for this issue or others surrounding the trading card space. 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/.

In the summer of 2019, Kyrie Irving opted out of the final year of his deal with the Boston Celtics to join the Brooklyn Nets. Irving left behind a $21.3 million extension in exchange for a fully guaranteed 4-year, $136.5 million deal to play alongside Kevin Durant. With an average annual base salary just north of $34 million, it appeared to be a lucrative deal for the eight-time all-star. In the three and a half years spent with the Brooklyn Nets, Irving earned $29 million more than he did in his eight full seasons with the Cleveland Cavaliers and Boston Celtics. However, because of the COVID-19 Pandemic and a few minor injuries, Irving was only able to suit up in 143 games for the Nets. To put this in perspective, Irving played 381 games for the Cavaliers and 127 for the Celtics. Irving’s decision to forgo the vaccine came at a pretty hefty cost - $15,356,296 to be exact (the total amount of fines given by the Brooklyn Nets and NBA front office for violations of the NBA’s COVID safety and guidelines protocols). Even after the COVID-19 restrictions were lifted and fans were free to attend games, Irving was restricted from playing in home games because the city of New York had imposed a vaccine mandate for all indoor activities. Irving could conceivably play basketball at Rucker Park but not the Barclays Center. And unfortunately for Irving, it would not be until the 2022-2023 season before he began seeing a steady pattern of playing games. All-in-all a $136,490,600 contract with $15,356,296 in fines must mean that Irving brought home an estimated total of $121,134,304 and a per-game average of $761,500 during his time in Brooklyn, right? Wrong. Once Uncle Sam and the state of New York were paid their fair share, Irving brought home closer to $500,000 per game. Considering that the average NBA player makes about $91,500 per game, Irving still made 446% more than his peers. However, Irving’s talent for the game of basketball is far from average. On February 4, 2023, Irving and his camp requested a trade from the Brooklyn Nets. This came after a tumultuous off-season in which Irving reaffirmed his commitment to the organization by signing a 1-year extension to his existing deal. Throughout the season, Irving’s camp was unable to reach a long-term extension with the Nets. And while there is speculation as to why the two parties were unable to amicably reach a deal, the key takeaway is that the two were never going to reach a long-term deal. The Phoenix Suns, Los Angeles Clippers, and Los Angeles Lakers all seemed like potential landing spots for the multi-talented point guard. Most media personalities and sports talk shows became enamored with the idea that Irving would team up with his former teammate LeBron James. The idea that Irving and James could reunite on the day James was projected to become the league’s number-one all-time leading scorer would have made for a good story. While most sports talk shows and NBA insiders speculated about the pair reuniting, Mark Cuban had other plans. The shark investor, billionaire, and outspoken owner of the Dallas Mavericks did what he does best – took a risk. Since Cuban’s time with the Dallas Mavericks, he has been unorthodox and willing to take risks. Cuban went after stars like LeBron James, Kevin Durant, Dwyane Wade, Carmelo Anthony, Dwight Howard, and Deron Williams over the past decade, but unfortunately, players would rather opt for places like Los Angeles, Miami, and New York/Brooklyn. This time, Cuban was going to take matters into his own hands. One day later, on February 5, 2023, Dallas sent Spencer Dinwiddie, Dorian Finney-Smith, a 2027 second-round pick, 2029 first-round unprotected pick, and a 2029 second-round pick for Markieff Morris and Kyrie Irving. This was not a sign-trade deal. Cuban sent Brooklyn two of his best five players, who were still under contract for at least two more years for essentially the remainder of the 2022-2023 season. If the Dallas Mavericks are unable to reach the Championship and raise the Larry O’Brien Trophy, people will likely ridicule the trade. Regardless, the trade with the Nets gave the Mavericks Irving’s Bird Rights. Bird Rights – famously named after Larry Bird and the “early bird gets the worm” analogy – gives an organization the financial advantage to one of its players over other potential suitors. In layman’s terms, Dallas can offer considerably more money to Irving than any other team this offseason as he approaches free agency. By owning the contract and playing rights to Irving, they can either: let Irving walk; offer him a 2-year, $86.24 million extension; or sign him to a 5-year, $272.92 million max contract. The best any other team can offer Irving is a 4-year, $210.11 million contract. And with states like California (Lakers and Clippers) and Arizona (Suns) listed as potential suitors, it could be in Irving’s financial interest to stay put in Texas. As a tax income free-state, Texas gives Irving an additional break he did not have in New York. In Texas, Irving will still owe federal income taxes, but he will not owe additional taxes to the state of Texas or the city of Dallas. When it is all said and done, Irving could very well earn more in five seasons with the Mavericks than his total career earnings. It is yet to be determined whether or not Cuban’s gamble will pay off. Irving is still set to receive the remainder of his $136.5 million deal from the Mavericks' front office. With $13 million still to be paid out, and in a tax income free-state like Texas, 4-5 months spent in Dallas, Texas might be enough to convince the superstar to stay put. Caleb Ortega is a 1L at South Texas College of Law. He served in the United States Marine Corps and is an active member of his school’s Sports & Entertainment Law Society. He can be reached on Twitter and LinkedIn.