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.

Bally Sports is about to be part of a rather significant bankruptcy proceeding. Rather significant because (1) Bally Sports is the largest owner of local sports channels,[1] (2) approximately $8.6 billion in debt will be restructured by Ball Sports,[2] known also by its legal name, Diamond Sports Group which is owned by Sinclair Broadcast Group Inc., and (3) the Braves, in addition to other professional sports organizations, might not get paid for their television contract with Bally Sports as a result of the bankruptcy. To further drive home the significance, David Hebert, a senior telecom analyst at CreditSights, an award-winning global credit market research firm, called Bally Sports’ restructuring through bankruptcy a “potential rewrite of the entire regional sports business.”[3] For those familiar with Bally Sports’ current financial woes, the question of bankruptcy is not if Bally Sports will declare bankruptcy but rather when Bally Sports declare bankruptcy. What exactly is the benefit of bankruptcy for Bally Sports? While bankruptcy is often a dirty word to laymen, for businesses, bankruptcy can be a useful tool. With cable television subscribers declining as more and more people cut the cord, Bally Sports has taken a financial hit over the last few years, including a reported $1.2 billion quarterly loss in November 2022,[4] that was only exacerbated by the COVID-19 pandemic disrupting or outright canceling sports seasons. Going the route of bankruptcy would allow Bally Sports to have certain of its outstanding debts forgiven and allow it to re-emerge (hopefully) as a more financially solvent business. Per Investopedia, a Chapter 11 Bankruptcy is common for businesses for a few basic reasons: Businesses often file for Chapter 11 bankruptcy, the goal of which is to reorganize, remain in business, and once again become profitable. Filing Chapter 11 bankruptcy allows a company to create plans for profitability, cut costs, and find new ways to increase revenue. Their preferred stockholders, if any, may still receive payments, though common stockholders will not. Put in a much too simple way, bankruptcy gives a business a second chance. Bally Sports is hoping that bankruptcy will allow it to shed debts and liabilities that would otherwise kill its business because of defaults in payments to its creditors. One of those debts could be its payments to the Atlanta Braves as part of their television contract. To add another wrinkle to the situation, Major League Baseball’s Chief Revenue Officer, Noah Garden, told Front Office Sports that, although the league’s “strong preference would be for the [regional sports networks] to be able to fulfill the agreements they signed with the clubs[,]” Major League Baseball has been planning for a scenario where Bally Sports halts payments or cancels contracts altogether.[5] But an end to its television contract with Bally Sports before its natural expiration in 2027 would not necessarily be a bad thing for the Braves (unless, of course, Bally Sports does not terminate the contract but stops paying under it). By reclaiming their media rights, the organization could seek to find a more favorable media deal since, perhaps more so than any other sport, money makes a big difference in baseball. (It isn’t the end all be all, or the Yankees would win every year, but it definitely helps to be able to pay to retain top talent). The Braves had previously restructured their contract with Bally Sports to increase their payment in 2023 from $80 million to $100 million, but the deal was always one that was widely considered unfavorable for the Braves and that had other issues outside of dollars and cents.[6] With a World Series win in 2021, a passionate, regional fanbase in the southeast, and exciting young players like Ronald Acuña Jr., Spencer Strider, Ozzie Albies, Austin Riley, and Michael Harris II, the Braves would likely be able to go out on the open market and find an even more financially beneficial television contract. Will Bally Sports give the Braves that opportunity? Probably not. But the bankruptcy gives the organization even more bargaining power with Bally Sports going forward. Grant Williamson is a graduate of the University of Tennessee College of Law - J.D., Class of 2019. He can be found on Twitter @GrantWilli33 Sources: [1] Bally Sports Network Owner Headed Toward Bankruptcy as Cable Declines - Bloomberg [2] Id. [3] Id. [4] What could a Bally Sports bankruptcy mean for RSNs’ team deals? - The Athletic [5] MLB Could Take Back Bally Sports’ Local TV Rights (frontofficesports.com) [6] Braves’ local TV revenue will rise sharply in 2023 and beyond (ajc.com)

After a tumultuous stint in Brooklyn, Kyrie Irving was traded to the Dallas Mavericks. The trade occurred after the controversial superstar guard, Irving requested a trade from the Brooklyn Nets. The news is nothing surprising to the Nets. After a failed attempt at assembling a "Big 3" involving stars Kevin Durant, James Harden, and Irving, Irving was the last member of the trio to request a trade from the Nets. Out of a possible 113 games, Durant, Harden, and Irving only played 16 games together, before Harden requested to be traded to the Philadelphia 76ers. A few months later, Durant stated that he wanted to be traded as well, although he ended up staying with Brooklyn. Neither Durant nor Harden were fined by the NBA for their trade requests, but the NBA has not been so consistent in these situations. The question is if the NBA will penalize Irving for his request per the NBA's Collective Bargaining Agreement ("CBA") or do nothing as was the case with his former teammates. The NBA's CBA, as is the case with the other professional sports league CBAs, sets out the governing principles of the league which are not in its constitutions or by-laws. Article XXX, Section 4 of the NBA’s CBA, discusses the "Best Efforts of Players Association." It states in part, "The Players Association will use its best efforts: (e) to prevent each player from making any demand upon the NBA or any of its Teams…" If a player violates this clause, the league may take action against the player. Though throughout the many times that players have requested trades since the current CBA went into effect in 2017, there has not been a steadfast rule that the NBA has enforced. Two of the biggest names of those who have requested trades include Harden and Durant. First, in 2020, reports were out that Harden wanted to be traded from the Rockets. He was only fined $50,000 at the time for violating Covid-19 protocols, but not concerning his trade request. A couple of years later, in February 2022, Harden made headlines again when he requested a trade from the Nets to the Philadelphia 76ers. A few months later, in June 2022, Durant also requested a trade from the Nets. Once more, there was no fine. Furthermore, in 2018, former Cavaliers guard JR Smith was asked by a reporter if he wanted to be traded and he answered in the affirmative. After an NBA review, Smith was not fined. However, the NBA has taken action against some other players. In 2017, while Eric Bledsoe was playing for the Phoenix Suns, he tweeted "I don't want to be here." He was fined $10,000. Most notably, all-star power forward, Anthony Davis was fined $50,000 after his agent told the media that Davis requested a trade from the New Orleans Pelicans and would not sign a contract extension. The following year, Dwayne Dedmon, after signing a three-year contract with Sacramento Kings requested a trade after being demoted from the starting rotation. The NBA also fined the Kings’ center $50,000, calling the comments "detrimental to the NBA and its teams." Although not explicitly set out in the CBA, the difference between the players who have been fined and those who have not seems to be based on the public nature of the requests. However, it appears that players who want out of their current situations have found a loophole to avoid being fined. All they need to do is, tell an inside source to leak the requests. For example, when Harden requested a trade from the Nets to the 76ers, he resisted making a public comment to avoid public backlash, but since someone else leaked the news, the liability was removed from him. For the most protection, the source of the trade request has to be somewhat attenuated. In Anthony Davis’ case, his agent Rich Paul made public comments, not him. Even though the applicable section of the CBA is titled “Best Efforts of the Players Association”, which would make it seems that only if Davis had made the comments would there have been repercussions. However, as NBA agents are certified by the unions only after an agent passes the union's exam, they are considered an extension of the Players Association. It does not appear that Irving will be fined for his trade request unless he personally, or his agent had publicly stated that he wanted to be traded. However, even if one of them did, it is possible the NBA still would not do anything, as was the case when Durant's agent, Rich Kleiman was the one to tell ESPN about his trade request and there were no consequences. Elliot Schwartz is a 3L at Benjamin N. Cardozo School of Law. While at Yeshiva University, he was a player and manager of the nationally-ranked Roller Hockey team. He can be reached on Twitter and LinkedIn.

Today Elon Musk CEO and majority owner of Twitter announced that his website would begin sharing revenue with content creators on ads placed in their tweet’s reply threads. Twitter’s policy change is one of many shifts in the industry including Alphabet Inc’s Youtube announcement that advertising on Youtube shorts would also generate royalties for influencers. As content creators are increasingly able to monetize their creations, the impact on college athletics could become profound. After NIL was formally approved in 2021 the majority sentiment was that while a few extremely popular athletes might be seen in nationwide advertising campaigns, the largest effect would be seen from local car dealership partnerships or enthusiastic alumni meet and greets. To an extent, this has been true as Bryce Young, Hanna Cavinder, and Bo Nix have featured in major national advertising campaigns while local advertisers have supported schools both through NIL collectives and small-scale advertising. However, the most potent tool that college athletes have capitalized upon has occurred by leveraging their social media influence. Olivia Dunne (3.2 Million Instagram followers), Travis Hunter (135 thousand Youtube subscribers), and Paige Bueckers (1 million Instagram followers) are just a few of the many college athletes turned content creators who have, to this point, have largely profited from advertising in their content itself. While college recruiting has quickly been muddied with accusations that athletes now select their school by following the highest bidding NIL collective, athletes may quickly realize that they may be better off going where they can best develop their personal brand. The motivation for building a personal brand rather than partnering with an NIL collective might become more pressing as NIL collectives quickly realize that they don’t have the financial firepower necessary to secure the greatest players. The best example of this came from Gainesville when news of Jaden Rashada’s alleged $13 million NIL collective deal shook the college recruiting world when the quarterback recruit originally committed to the University of Florida. TV talking heads quickly began debating if $13 million would become the new floor for securing top-tier talent at priority positions. The problem, however, was that the NIL collective was unable to come up with the money promised, and once Rashada was made aware, he requested a release from his letter of intent and selected Arizona State. Meanwhile, coaches like Colorado’s Deion Sanders have downplayed NIL potential while encouraging athletes to create Youtube channels and build their personal brands. With athletes unable to rely on school-centric NIL deals, and new revenue-earning opportunities quickly becoming available on social media, top college athletes should instead consider what University will be able to best promote their personal brand on a national stage. Unlike NIL funding which can be quickly pulled and disappears as soon as an athlete leaves campus, social media influence can allow athletes to generate revenue consistently. Moving forward, expect Universities to place an emphasis on how they can generate attention and spotlight for their athletes. Facilities and NIL deals are now the status quo. The future recruiting edge in college recruiting will belong to the schools that have the best graphic designers, social media managers, and content creators that athletes can benefit from. Chase Youngman is a third-year law student at Penn State Law where he was the president of the Penn State Law Sports Entertainment Law Society. You can also find him on Twitter as @c3youngman