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

The Masters is around the corner, but the media is not buzzing about who is favored to win the tradition unlike any other. Rather, attention is focused on litigation off the course involving Tiger Woods and his ex-girlfriend, Erica Herman. Herman is seeking $30 million in damages against the Jupiter Island Irrevocable Homestead Trust stemming from her eviction from Woods’ home. Herman claims the eviction was a breach of an 11-year “oral tenancy agreement.”[i] Woods denies that he negotiated an oral tenancy agreement with. Herman.[ii] In a lawsuit associated with the tenancy lawsuit, Herman is attempting to nullify a non-disclosure agreement (NDA) with Woods. Herman is relying on the recently enacted federal Speak Out Act (“Act”)[iii] to nullify the NDA. The Speak Out Act was signed into law by President Biden on December 7, 2022, to prohibit the silencing of victims of sexual harassment and sexual assault. Given the newness of the Act, there are misconceptions about what the Act actually prohibits. Here is a FAQ that explains what the Act covers and what it does not. Q: What Does the Speak Out Act Prohibit? The law renders unenforceable non-disclosure and non-disparagement clauses related to allegations of sexual assault and/or sexual harassment that are entered into “before the dispute arises.” The text of Speak Out Act is surprisingly limited. Specifically, the text of the Act states in relevant part: With respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which conduct is alleged to have violated Federal, Tribal, or State law. (emphasis added). This means that if an NDA or non-disparagement clause is so broad that it silences claims of sexual harassment or sexual assault before a claim of sexual harassment or sexual assault has been alleged, the clauses would be unenforceable. Q: What Claims are Not Prohibited by the Act? The phrase “before the dispute arises” has great significance. It appears that Congress did not intend to silence claims that have already been asserted and then subjected to a nondisclosure or non-disparagement clause. In other words, it does not preclude an employer or other party from enforcing an NDA or non-disparagement clause in a settlement agreement if allegations of sexual harassment or sexual assault were raised before the agreement was signed. In sum, timing is everything. Q: Why was the Act Passed? The Act contains Congress’s findings that nondisclosure and non-disparagement provisions in agreements between employers and current, former, and prospective employees, and independent contractors, and between providers of goods and services and consumers, can perpetuate illegal conduct by silencing those who are survivors of illegal sexual harassment and assault or illegal retaliation, or have knowledge of such conduct while shielding perpetrators and enabling them to continue their abuse. According to Congress, prohibiting nondisclosure and non-disparagement clauses under the Act will empower survivors to come forward, hold perpetrators accountable for abuse, improve transparency around illegal conduct, enable the pursuit of justice, and make workplaces safer and more productive for everyone. The Act complements the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which bars pre-dispute arbitration agreements and joint-action waivers covering sexual assault or sexual harassment disputes. Q: Does the Act Prohibit the Protection of Trade Secrets and Confidential Information? No. The Act provides that nothing in the Act prohibits an employer and an employee from protecting trade secrets or proprietary information. Q: Are the State Laws Similar to the Act? A number of states have passed laws addressing allegations of sexual assault and/or harassment. California, for example, has a much broader law[iv] that prohibits employers from using confidentiality provisions in agreements involving claims for sexual assault, sexual harassment, and sex discrimination as well as claims under the Fair Employment and Housing Act including race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, familial status, sex, gender, gender identity, gender expression, age, sexual orientation, and veteran or military status. Take Aways The #metoo movement has led to the passing of several laws designed to protect victims of sexual harassment and assault and empower them to make public illegal conduct. The Speak Out Act continues this trend and nullifies non-disclosure and non-disparagement clauses that bar the disclosure of sexual assault and sexual harassment claims that have not yet arisen. It will be interesting to follow the drama of the Woods’ litigation and see if the Speak Out Act is found to be applicable to his NDA. The implications of the Speak Out Act, however, are much broader than the Woods’ litigation. Employers and those who wish to enforce NDA’s and non-disparagement clauses should review their existing agreements and make sure that they include appropriate carve-outs and comply with the Act. Ken Winkler is a shareholder at Berman Fink Van Horn in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via LinkedIn and Twitter @kwinklerbfvlaw. Sources: [i] Brendan Quinn, Tiger Woods Attorneys Say Golfer’s Ex, Seeking $30 Million in Lawsuit, Had No Tenancy Agreement, The Athletic (Mar. 10, 2023), https://theathletic.com/4296415/2023/03/10/tiger-woods-girlfriend-lawsuit-tenancy/; Alex Miceli, Tiger Wood’s Ex-Girlfriend, Erica Herman, Asks Court to Resolve Dispute Over NDA, Sports Illustrated (Mar. 8 2023 4:26 PM EST), https://www.si.com/golf/news/tiger-woods-girlfriend-erica-herman-asks-court-to-resolve-dispute-over-nda. [ii] For a solid summary of the lawsuit check out an article by John Nucci, Chief Golf Correspondent for Conduct Detrimental “Tiger Woods, NDA's and Lawsuits: A Legal Breakdown”[ii] and the Conduct Detrimental podcast episode[ii] discussing the same. [iii] Public Law No: 117-224 (12/07/2022) https://www.congress.gov/bill/117th-congress/senate-bill/4524/text. [iv] S. 331, 117th Cong. (2021) (approved by Governor Oct. 7, 2021, filed with Secretary of State Oct. 7, 2021) (accessible at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB331).

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

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

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

Last week, the Kingdom of Saudi Arabia (“KSA”) filed an amicus brief on behalf of its Public Investment Fund (“PIF”) in the LIV v. PGA Tour lawsuit. Among other arguments, the KSA asserted that Yasir Al-Rumayyan – the governor of the Saudi Public Investment Fund (“PIF”) – should not be subject to depositions since he is a “sitting minister of the Saudi government.” As The Guardian reported, this classification of Al-Rumayyan was met with anger by Premier League clubs, who had previously demanded an emergency meeting after PIF was given the green light to buy an 80% stake in Newcastle United in 2021. At the time, Premier League clubs insisted that they were given “legally binding assurances” that the Saudi state would not have control of the club. In the amicus brief, however, the Saudis expressly state that “PIF is a part of the government of Saudi Arabia.” This evening, the PGA Tour filed its reply to the Saudi’s amicus brief and mentioned these inconsistent classifications, rehashed their argument that the commercial activity exception to the Foreign Soverign Immunities Act applies to PIF, and cited a high-profile 2021 case involving a former Saudi official and a subsidiary of the Public Investment Fund on page 13 of their reply. The discovery in that case, the PGA Tour says, proves that PIF is both willing and able to disclose confidential information in US courts "when it benefits their interests." During the discovery process of that case, the PGA Tour points out that the Saudi Public Investment Fund, through its wholly owned subsidiary, turned over "due diligence and audit reports," as well as documents related to their internal deliberations. These are the same type of documents and information, the PGA Tour asserts, the Public Investment Fund now says they cannot turn over in the LIV litigation because it would violate Saudi law. In short, the PGA Tour is claiming that the Saudis are picking and choosing when to turn over information and comply with discovery obligations in US courts. When it "benefits their interests," they are allegedly willing and able to turn over information. When they are the subject of the PGA Tour’s tortious interference lawsuit, however, they are not. Although no decision has come down yet and it cannot be said with 100% certainty, Judge Beth Labson Freeman is widelyexpected to keep in place Judge Susan van Keulen’s ruling which originally ordered the Public Investment Fund and Al-Rumayyan to comply with discovery. Assuming she does, the lawyers will once again be busy, as the deadline to complete document discovery in the antitrust case is March 30. John Nucci is the Chief Golf Correspondent for Conduct Detrimental and a Corporate Associate Attorney in New York. He can be reached via Twitter at @JNucci23 or by email at [email protected].

About a month ago, the NCAA reiterated its focus on the standard of review and infractions process for NIL violations through a memo circulated to all Division I Member Schools (Conduct Detrimental’s Ryan Whepley broke it down here). We have since seen that process play out in the first high-profile recruiting violation of the NIL era. The January memo stemmed from the original clarifying guidance the NCAA published in October, which set forth updates to the NCAA’s Interim NIL Policy (Ryan Whepley broke that down here). Included in that guidance were updates to the services that schools could offer to support student-athletes in their NIL endeavors. Specifically, the NCAA stated that schools could not offer certain services to student-athletes “unless the same benefit[s] [are] generally available to the institution’s students.” Among the services listed are tax preparation and, most relevant to the audience of Conduct Detrimental, contract review services. While this shouldn’t be a problem for larger universities (most have general legal services offered for their students, presumably including contract review for any student attempting to monetize their original work) it may become an issue for smaller universities with tighter budgets. If schools can find a workaround to conform to NCAA rules, there have been some additional hurdles to generating participation in these types of pro bono services. It’s not a question of athlete desire. Nearly half of the student-athletes surveyed by the NCAA last year stated they wanted more information on financial literacy and over thirty percent wanted more resources on NIL opportunities. Amanda Cristovich, who writes for Front Office Sports and has appeared on the Conduct Detrimental podcast, has repeatedly called for schools to offer more services to athletes entering the NIL market. Most recently in her article on Stanford Basketball’s Haley Jones, Jones identified it as one of the biggest ways that schools can improve their student athletes’ NIL experience. Some schools (UNC, Campbell, and the New York Law School for example) have established NIL Pro Bono Clinics to work with athletes who are engaging in NIL contracts with mixed success. Despite the desire of athletes to be more informed on these topics, participation in these programs has not been widespread (For instance, ADU found that none of the student-athletes surveyed knew about free financial literacy video modules published by the NCAA). If there’s a clear need yet a lack of turnout the question becomes . . . why? I believe the fundamental problem is that the bedrock of the relationship between athletes and their institutions has been poisoned by years of conflicting priorities. Schools (principally through the NCAA) have worked for decades to avoid the possibility of athletes being compensated until the wave of state legislation and Alston v. NCAA broke the dam in 2021. So, after years of working to prevent direct athlete compensation, some schools are now turning around and offering to help athletes negotiate contracts that will provide them with that very same income. I ask you then: If you were fighting against a company that was attempting to deprive you of money you felt you earned, and you finally won, would you then quickly turn around and use the free services that the company was offering you? . . . Yea, me neither. On top of preventing athlete compensation, the recent history of schools putting the blame for infractions at the feet of the student-athlete doesn’t help. Prior to 2021, if you were a high-profile athlete who engaged in prohibited activity (think Reggie Bush), schools were much more likely to treat you like a pariah than a hero (James Wiseman at Memphis is another recent example). This wasn’t just a problem in revenue-generating sports but across the NCAA. Prior to the authorization of NIL, if you were a non-revenue athlete who received an impermissible benefit, your coach may have been much more likely to let you take the penalty than to attempt to accept responsibility for the program as a whole. So, are the athletes now to blame for not trusting the school to hold their best interest at heart when it’s time to be on the same team? Of course not. But there are distinct advantages to athlete participation in these programs. These programs provide both the athlete and the service provider (law students in NIL clinics) with a meaningful experience that makes them more educated market participants. Obviously, it’s at no cost to the athlete, but more importantly, the athlete won’t have to fear being taken advantage of by an unlicensed agent or other “NIL” professional who has an interest in the athlete outside of that athlete’s well-being. How do we change this dynamic? First, schools must obviously bear the brunt of creating awareness of these resources and not rely on the athlete to seek them out. Schools must also understand (and, by and large, do) that the “big fish” (their marquee athletes) are going to work with large agencies, and that’s ok. Those athletes have much more at stake than a sponsorship with a mom-and-pop shop and will seek management and representation companies with the proper resources to further their careers. Finally, the schools have to be prepared to both demonstrate and amplify success where these programs work and encourage the athletes that work with the school (and their coaches) to steer other athletes to these opportunities. Pro-bono programs offered by academic institutions have the potential to drastically increase the know-how and confidence of their athletes in navigating the NIL marketplace. It will just take a concerted effort to erode the remaining foundations of mistrust from the bygone era before NIL. Michael DiLiello is a 1L at the University of North Carolina School of Law, with a background in organizational management and leadership from a seven-and-a-half-year active-duty career with the United States Army. Twitter: @Mike_DiLiello LinkedIn: http://linkedin.com/in/michael-diliello-1057b439

United States District Court Judge Valerie E. Caproni ruled on Wednesday that multiple claims in Brian Flores’s racial discrimination suit can proceed in federal court. Specifically, Flores’s claims against the National Football League (NFL), Denver Broncos, and New York Giants avoid arbitration. In February, Flores sued the NFL and each of its teams for racial discrimination, alleging discrimination in Flores’s interviews with the Denver Broncos and New York Giants and further alleging discriminatory conduct from the Miami Dolphins and New England Patriots during his tenure as head coach of the Dolphins and defensive coordinator of the Patriots. Since then, other coaches, including Steve Wilks and Ray Horton, have joined the suit, with Steve Wilks adding a claim against the Arizona Cardinals and Ray Horton adding a claim against the Tennessee Titans. Steve Wilks previously served as head coach of the Cardinals, and Ray Horton served as an assistant coach for multiple teams. In June, the NFL motioned the court to move the case to arbitration pursuant to the league’s rules and employment contracts. In the end, Judge Caproni moved certain claims to arbitration, including Flores’s claims against the Dolphins and Patriots, Wilks’s claim against the Cardinals, and Horton’s claim against the Titans. Judge Caproni found that the employment agreement between the parties necessitated arbitration. However, claims against the NFL, Broncos, and Giants can stay in federal court. Judge Caproni declined to move the claims against the NFL to arbitration because the NFL was not a party to Flores’s employment contracts. The Judge in the Gruden case had similar reasoning for denying arbitration. As to the other claims, Flores did not have agreements with the teams. In two cases (Gruden and Flores), we have seen a court refuse to compel arbitration on claims against the NFL because the NFL is not a party to employment agreements with teams. Expect the NFL to fix this issue in future agreements. Until the league fixes the agreements, plaintiffs may continue to avoid arbitration. 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.

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

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

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

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