The California Attorney General and New York Attorney General have launched a joint investigation into allegations of employment discrimination and a hostile work environment at the NFL. What Triggered the Investigation? The joint investigation stems from allegations made by former employees alleging gender discrimination and retaliation. A joint press release[i] summarized some of the key events that led to the investigation’s launch: February 2022: The New York Times reported[ii] on the more than 30 former female employees alleging gender discrimination and retaliation after they had filed complaints with the NFL’s human resources division. April 2022: New York Attorney General Letitia James led a coalition of six attorneys general in sending a letter[iii] to NFL Commissioner Roger Goodell. The letter requested the NFL to investigate allegations of workplace inequity. April 2023: A former director for NFL Enterprises LLC sued the organization for age and gender discrimination. The complaint alleged "pervasive sexism" in the workplace and a "boys' club" mentality among male peers, and attributed her 2022 layoff to retaliation for her complaints. What is the Scope of the Investigation? The joint investigation seeks information from the NFL regarding allegations of gender pay disparities, harassment, and gender and race discrimination. According to the joint press release, the Attorney Generals believe that the NFL has not taken sufficient effective steps to prevent discrimination, harassment and retaliation from occurring in the workplace. “No person should ever have to endure harassment, discrimination, or abuse in the workplace,” said Attorney General James. “No matter how powerful or influential, no institution is above the law, and we will ensure the NFL is held accountable.” “California will not tolerate any form of discrimination,” said California Attorney General Bonta. “We have serious concerns about the NFL’s role in creating an extremely hostile and detrimental work environment. No company is too big or popular to avoid being held responsible for their actions.” This investigation is the latest of a number of high-profile investigations involving the NFL and alleged discrimination. It will be interesting to see how this plays out and if the Commissioner is able to “defend the shield” and protect the NFL’s reputation. Ken Winkler is a shareholder at Berman Fink Van Horn P.C. in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via LinkedIn and Twitter @kwinklerbfvlaw. Sources: [i] Attorneys General James and Bonta Launch Investigation into National Football League’s Workplace Practices and Culture, Office of the N.Y. State Attorney General (May 4, 2023), https://ag.ny.gov/press-release/2023/attorneys-general-james-and-bonta-launch-investigation-national-football-leagues. [ii] Katherine Roseman & Ken Belson, Promised a New Culture, Women Say the N.F.L. Instead Pushed Them Aside, The New York Times (Feb. 8, 2022), https://www.nytimes.com/2022/02/08/sports/football/nfl-women-culture.html. [iii] Attorney General James Demands NFL Address Gender-Based Discrimination, Office of the N.Y. State Attorney General (Apr. 6, 2022), https://ag.ny.gov/press-release/2022/attorney-general-james-demands-nfl-address-gender-based-discrimination. Ken Winkler is a shareholder at Berman Fink Van Horn P.C. in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via LinkedIn and Twitter @kwinklerbfvlaw.

The University of Alabama baseball team was having its best season under sixth-year head coach Brad Bohannon. With a collection of experienced upperclassmen along with talented freshmen, the Crimson Tide began the season 14-0 and have continued to play solid baseball in the rugged Southeastern Conference. However, Brad Bohannan was just fired by the school. What led to the sudden exit? It’s a very interesting and complex situation. If you read the news about Bohannon’s firing over the next couple of days, you’ll come to learn that there was “suspicious wagering activity” surrounding Alabama’s games against top-ranked LSU last weekend, leading to Ohio, New Jersey, and Pennsylvania halting all bets on the team’s games. More on that in a bit as it appears to be the crux of the matter at least from the outside. However, there is another factor that might’ve led to Alabama’s decision to let Bohannon go. A couple of weeks ago, I wrote an article (recently published) detailing how Bohannon and other members of the Crimson Tide baseball staff were sued for alleged negligence, wantonness, and breach of agreement for the handling of an injury by a former player who is no longer a member of the program. You can read more about the lawsuit in the article, but it can’t be ignored when discussing Bohannon’s firing. As it pertains to the suspicious betting, things definitely get interesting. On Monday night, an ESPN report surfaced that the state of Ohio was halting bets on Alabama baseball games, citing “suspicious betting activity” surrounding the Tide’s games against LSU over the weekend. The bets apparently originated in Cincinnati at Great American Ballpark, which triggered U.S. Integrity, a Las Vegas-based independent monitor which monitors gambling data to detect abnormalities and misuse of insider information to send a warning to all its clients after Friday night’s game. The chairman of the Louisiana Gaming Control Board, Ronnie Johns, told NOLA.com that one of the bets was a parlay involving the Bama-LSU game, and another was a “large” straight-up bet on the game. As someone who follows college baseball closely, I was actually watching the Friday game live. To be completely honest, I didn’t notice anything unusual about the game itself. LSU’s starting pitcher was Paul Skenes, who projects to be the top pitcher selected in this year’s MLB Draft this summer. Throughout the season, he has consistently made opposing hitters look silly, so simply stating that Alabama hitters “weren’t trying” would be a gross misunderstanding. In addition, after falling behind early, the Crimson Tide rallied to nearly come back and win the game before losing 8-6. Not to speculate too much, but the issue may have popped up with Alabama changing their starting pitcher shortly before Friday night’s ballgame. Crimson Tide pitcher Luke Holman was originally the probable starter, but according to Alabama’s game recap story, reliever Hagan Banks was told “an hour before” the first pitch that he would be starting in Holman’s place. How that information may have reached some parties before others could be the cause. Multiple sources confirmed to ESPN’s David Purdum that “sportsbook surveillance video indicated” that whoever made the flagged bet in Ohio’s Great American Ballpark was in contact with Bohannon. The combination of the lawsuit and the betting probe apparently left Alabama no choice but to fire Bohannon. The school announced that athletic director Greg Byrne had "initiated the termination process" for Bohannon for "among other things, violating the standards, duties, and responsibilities expected of University employees.” While there’s still a lot more information that will likely surface about the betting situation and the lawsuit, all indications suggest that this is a for cause firing. Anyone who follows college sports knows that the Alabama athletic department has been under fire so far in 2023, and this only adds to their off-the-field/court issues. Where things go from here is anyone’s guess. Pitching coach Jason Jackson, who was also named by the ex-player in the lawsuit, has been named interim head coach for the time being. The Crimson Tide project to be an NCAA Tournament team with three regular season weekends remaining, but how the team handles this news will be interesting to watch. Nonetheless, it’s a tough situation for everyone involved. Brendan can be found on Twitter @_bbell55

In both professional and college sports, athletes are feeling more empowered than ever before. Whether it’s by demanding trades, entering the transfer portal, holding out of training camp, or leveraging NIL opportunities, it’s never been a better time for athletes to advocate for themselves both on and off the field. While this is generally a great thing for sports as a whole, it’s something front offices, administrators, and coaches need to be cognizant of. An example of why this is the case came from the great sport of college baseball in the last week. Current Alabama head coach Brad Bohannan (and two staffers) and former Radford head coach (current Charleston Southern assistant) Karl Kuhn were sued by former players for how they were handled by said coaches. Let’s dive into each case separately before tying them together at the end. Let’s start with Alabama. Head coach Brad Bohannan, pitching coach Jason Jackson, and athletic trainer Sean Stryker have been sued for alleged negligence, wantonness, and breach of agreement for the handling of an injury to former player Johnny Blake Bennett. The lawsuit alleged Bennett repeatedly told Bohannon, Jackson, and Stryker about issues with his arm in 2019 and that he was not provided with proper medical care. Bennett was later diagnosed with thoracic outlet syndrome and had surgery in March 2020. According to the lawsuit, Bohannon called months later while Bennett was rehabbing from the injury to tell him his scholarship was not going to be renewed for the following season. Bennett then transferred to Pensacola State College, a junior college program, where he eventually withdrew because of "intense, stressful fear of failure and anxiety each time he pitched," according to the lawsuit. Following that, he made his way back to Division 1 Baseball when he transferred to Jacksonville State but was dismissed without explanation from JSU two days after playing Alabama in May of 2022, per the lawsuit. The first complaint was filed on Sept. 19, 2022, and the defense filed a motion to dismiss on Dec. 19, 2022. An amended complaint was filed on March 10, 2023, and the new motion to dismiss was filed on March 31, 2023. Bohannan is in his sixth year at Alabama where he has done a solid job in getting the Crimson Tide program back to relevancy in the rugged Southeastern Conference. However, with only one NCAA Tournament appearance in his tenure, pressure is beginning to mount on Bohannan. From all accounts, the Alabama head coach is an excellent man who is revered in the coaching community. It’s unclear how this situation will be resolved or if it will impact Bohannan’s status in Tuscaloosa, but it’s never a good thing to be associated with these types of allegations. In moving to former Radford head coach Karl Kuhn, the situation is a little more complex and unfortunately appears to have affected more than one player. Attorneys for an anonymous former Radford University baseball player filed a federal lawsuit against Kuhn and the school’s current athletic director Robert Lineburg. Kuhn, who has since left Radford and is now an assistant at Charleston Southern University, is accused of costing the player a year of college eligibility by using him in a game late in the 2021 season “as retaliation for leading a group of players to complain about his season-long verbal abuse, indifference to players’ mental and physical health, and racial animus.” Before Kuhn inserted said player into the game in question, the player had not been used in any prior 2021 games, so being inserted in that game meant he was giving up that year of eligibility. Days after using the player in that game, Kuhn cut the player from the team and revoked his scholarship, according to the lawsuit. In addition to Kuhn, the lawsuit accuses Lineburg, who is still the athletic director at Radford, of “refusing to investigate Kuhn, refusing to act on Doe’s complaints, and allowing Doe’s complaints — purportedly made in confidence — to be leaked to Kuhn.” The player filing the lawsuit eventually transferred away from Radford to another college, according to the lawsuit, but lost about $100,000 because his new scholarship failed to match his old scholarship amount. In college baseball, each Division 1 program is only able to provide 11.7 scholarships to 27 players, so each school has different parameters on how much they can offer to their players. The player is seeking undisclosed compensatory damages for the lost year of eligibility and his diminished scholarship, as well as undisclosed punitive damages. In addition, according to the lawsuit, the player also wants Kuhn and Lineburg to cooperate with him in his appeal to the NCAA to grant him back that year of eligibility and for Kuhn and Lineburg to undergo First Amendment training. While both situations are unique and have different particulars and allegations, there is an overarching lesson to learn from both of them. Coaches and administrators can’t exploit players or treat them poorly like they may have been able to get away with in previous generations. First of all, let me state that this is a good thing for college sports and sports as a whole. While their ultimate job description is to win games, there are a large majority of coaches and administrators out there that go above and beyond to create great experiences for their players while on campus. But for those who don’t, legal ramifications could be in store as recent and future court decisions are lending more favorable outcomes for college athletes. This isn’t calling out Bohannan, Jackson, Stryker, and Kuhn as bad apples. For all we know, these allegations might not entail the whole truth and there could be another side to these stories. That will all play out as the legal process unfolds. However, one thing is true: the days of treating players poorly and getting away with it are long gone, as they should be. These are just two examples of a long line of recent lawsuits against schools, administrators, and coaches. Hopefully, we won’t see many more in the future. Brendan can be found on Twitter @_bbell5

There are two standards in the NBA it seems. One for players named Draymond Green, and one for players who are not named Draymond Green. And that is an issue. Dillon Brooks avoided suspension for a clear attempt to harm LeBron James. All the elements for a battery are present and on tape. He had the Mens Rea commit an act knowing that it could or would cause bodily harm when he struck LeBron James in the groin. This act occurred beyond the scope of consent that is given in a basketball game. No one consents to being intentionally hit in the groin during a game. Draymond Green was suspended for a clear attempt to harm Domantas Sabonis. All the elements of a battery are present and documented on tape. He had the Mens Rea commit an act knowing that it could or would cause bodily harm when he stomped on Sabonis in the chest. He, unlike Brooks, even has a possible defense. He also differs from Brooks when it comes to punishment, he was suspended. Green is a repeat offender, but Brooks is not an altar boy by any stretch of the imagination. It appears that the NBA has a standard for Green and a standard for everyone else. Does Green deserve it? That is for the individual to decide. However, if the league wants its' authority to be taken seriously, it needs to either do one of two things. One lay out what the standard is to be suspended for an intentional act. The other is to not do that, and not suspend players. The current system of arbitrary punishment harkens back to the days of Roger Goodell dispensing seemingly random punishment on players. The NBA and Adam Silver have become the story, and that is not a good thing. The playoffs are being overshadowed by the self-inflicted controversy that has befallen the league. Green is a circus, there is no argument against that. He sucker punched a teammate at the beginning of the season for example, but there must be consistency or at least clear guidelines. If they want to fix this, they must be clear and consistent with punishment. They must remove the Green standard. Wake Gardner is a 1L at the Brandeis School of Law at the University of Louisville. Someday he hopes to work for a sports team in Florida. He can be reached on Twitter @WakeGardner and by email at [email protected]. Sources: 1. Report: Dillon Brooks won't face a suspension for Game 4 (yahoo.com) 2. Golden State Warriors' Draymond Green suspended for stepping on Sacramento Kings' Domantas Sabonis | CNN 3. Leaked video of Draymond Green punch of Jordan Poole means incident not just going away (nbcsports.com)

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

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

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

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

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

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

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

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