In today’s college sports landscape, it seems as though nearly every athlete and every company is involved in some sort of Name, Image, Likeness deal. However, a recent deal shows perhaps there are industries yet to be tapped into. Last week, CBS Sports reported that University of Southern California has struck a sponsorship deal with highly regarded cannabis company “Cookies.” This move comes on the heels of the NCAA removing cannabis from its banned substance list as well as the FDA looking to move Marijuana from Schedule I to Schedule III (Schedule III substances are those with moderate to low potential for physical and psychological dependence). In its press release, Vice President and General Manager of USC Sports Properties, Drew DeHart, said the following: "With the decision to open this category, it was our goal to find the right partner for USC Athletics, and we did just that with Cookies. Cookies is the global leader in CBD but also an innovative brand deep in life-style culture and wellness," DeHart said. "We are excited for the Trojans to be a leader in collegiate athletics on and off the field, and today's announcement continues to showcase just that." While it sounds as though this partnership is focusing on the CBD capabilities on the company, it raises questions in other states considering the potential of future sponsorship deals pertaining to CBD. On its face, it seems as though it would be cut and dry, as cannabis has been removed from the Banned Substance list. With this, should we expect a proliferation of CBD NIL deals in the near future? Well, it might not be that simple. CBD NIL deals nationwide could create a slippery slope for the still unsettled landscape that was created by the advent and inconsistent regulations around the NIL of student-athletes. Some states, such as Pennsylvania, have a “vice-clause” in their legislation regarding the ability of student athletes to be compensated for the use of their NIL. Such clauses may prohibit gambling, alcoholic beverage, and other lifestyle/wellness companies (including CBD) from entering into deals with student-athletes. However, with NIL regulations being left to the states, there is not a comprehensive or even consistent regulatory landscape. While states such as Pennsylvania have vice clauses, other states do not. For example, N’Kosi Perry, a former Florida Atlantic University Quarterback, signed a deal with an alcohol company in 2021. In addition, it’s important to keep in mind that while some states may not have specific vice clauses, each academic institution may have their own policy surrounding the types of companies student-athletes can contract with for NIL purposes. With the NCAA and Federal Government taking the steps it has, it remains to be seen if states will begin making tweaks now or wait for Federal action. Making adjustments now would require states to re-visit their NIL laws. While not impossible, this would be a tall task. As of the writing of this article, the Cookies sponsorship deal is only between USC and the wellness company. Moreover, there doesn’t appear to be a sponsorship or NIL deal between a wellness company such as Cookies and a student-athlete at the moment. However, such a deal may not be so far off. It’ll be interesting to watch how this deal creates a precedent for other institutions and to see who might emerge as a trailblazer by inking a deal between such a company and a student-athlete in relation to their NIL. Stephon Burton is a second-year associate working at Motion Law Immigration in Washington, DC. He additionally is a Volunteer with the DC Bar Non-Profit and Small Business clinic. He can be reached via Twitter/X @StephonBurton3 and Linkedin .

(Image via Ken Blaze/Imagn Images) It was reported that Cleveland Browns QB Deshaun Watson has once again been sued for sexual assault and battery . As most of you can remember, Deshaun Watson was suspended 11 games during the 2022 season for sexual misconduct. This was a negotiated suspension that allowed for Deshaun Watson to essentially grandfather in the suspension without it having the ability to void his guarantees on his new $231 million contract. That is because the CBA allows teams to void remaining guarantees on a contract for a suspension for a violation of the personal conduct policy (which the NFL found Watson did). However, those lawsuits were based on sexual misconduct (exposing oneself or making inappropriate sexual remarks). These allegations are far more serious. “Watson grabbed Jane Doe’s legs and positioned her so that she was laying down. Watson then partially disrobed Jane Doe and penetrated her [v*****] without consent, implicit or explicit. Jane Doe felt paralyzed, unsure if she should risk her safety by trying to stop Watson or endure his assault. Watson roughly sexually assaulted Jane Doe for several minutes in a [sexual position] before grabbing her and flipping her over. Watson continued to assault Doe aggressively from behind. Jane Doe finally gathered the courage and strength to escape Watson.” ** Words bracketed in quote to mask graphic sexual content **   As one can see, these allegations are far more aggravating than the previous lawsuits. This begs the question: Did the National Football League, the Cleveland Browns, and/or the Houston Texans know about these allegations in 2022, when the trade sending Watson to Cleveland was consummated, as well as the subsequent suspension? This is important because the anticipated suspension was specifically considered in the 2022 contract, meaning that the personal conduct suspension would NOT void the guarantees in his contract as one usually would. However, since the suspension, Deshaun Watson has played a grand total of 13 games in three seasons. Of course, he was suspended for 11 games in 2022 and then missed another 11 games in 2023. However, his completion percentage is down from 70.2% in 2020 (when he was with the Texans). He had a completion percentage of 58.2% in 2022 and 61.4% in 2023. Those are hardly par for the player with the largest full guarantee in the history of football.   Winston Churchill once said, “Never let a good crisis go to waste.” With Watson the subject of another sexual assault lawsuit (this one alleging forcible rape), are the Browns going to use this as an opportunity to suspend Watson and use that suspension as a preface to void the remaining guarantees on his contract? Yes, they would be in salary cap hell for the next several years (restructuring his contract was a massive mistake in my opinion). The simple answer is: It depends. If they were aware of these allegations, the contract provision which specifically excludes voiding the guarantees would still control and Watson would remain under contract for 2+ more seasons. If not, the Browns could feasibly suspend Watson for Conduct Detrimental to the Club if these allegations were not known when they signed him. That suspension for Conduct Detrimental would allow for the Browns to void all remaining guarantees. The NFL could place Deshaun Watson on the Commissioner’s Exempt List but remember that allows for full pay and there is no guarantee the league would do anything to help them. Remember the Browns broke all understood norms by fully guaranteeing Watson’s entire contract. That decision reverberated throughout the entire league and forced many influential owners to have conversations with their star QBs about why they were not also going to get a fully guaranteed contract. With how poorly Watson has played since the trade, the Browns need to ask themselves if they are going to let a good crisis go to waste? If not, there will undoubtedly be lawyers.     Matthew F. Tympanick is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense, Personal Injury, and Sports Law. He is a soon-to-be National Football League Certified Contract Advisor.  He is a frequent legal analyst on Court TV, Live Now on Fox, and Law & Crime Trial Network. He was recently a featured contributor on 48 Hours on CBS. He has also appeared on television, radio, and podcasts discussing various criminal law issues. He is a graduate of the University of Massachusetts, where he served as a Public Interest Fellow and as a Staff Editor on the UMass Law Review. Attorney Tympanick was previously a felony prosecutor in Sarasota and Manatee Counties in Florida. In over seven years as an attorney, Attorney Tympanick has tried over forty cases and handled thousands more. You can follow him on Twitter, Instagram, and Facebook @TympanickLaw. Arrested or Injured? Don’t Panic..Call Tympanick 1(888)NOPANIC. www.tympanicklaw.com .

On August 27, 2024, the NFL made a significant move by allowing private equity firms to invest in its teams. This decision marked a shift in the league’s traditionally conservative approach to ownership. While other major U.S. sports leagues have been more open to private equity involvement, the NFL's decision introduces new dynamics in team financing, ownership structure, and league governance. Here’s a breakdown of the key points of the NFL’s decision and how it compares to the other major leagues: Key Points of the NFL’s Decision Ownership Rules Relaxed : The NFL had long maintained strict ownership rules, favoring individual or family owners with deep pockets. By allowing private equity firms to acquire minority stakes, the league is easing the financial burden on traditional owners who may need capital due to the exponentially growing valuations of their teams, but do not wish to relinquish full control. Minority Stake Limitations : While private equity can now buy into NFL teams, there are still limitations. They can own up to 10% of a single team, and this 10% can be split among multiple funds. However, each fund must own at least 3% of the team, allowing them to invest in multiple teams at once – up to six teams. This preserves the NFL’s historical preference for stable, long-term ownership. Investor Qualifications : The NFL is instituting strict guidelines for private equity firms to ensure financial stability and long-term commitment. The current list of league approved funds are: Arctos Partners, LP; Ares Management Corporation; Sixth Street; and a consortium group including Blackstone, Carlyle, CVC, Dynasty Equity and Ludis. Sovereign wealth funds and pension funds are not permitted. The funds that invest will be required to hold their investment for a minimum of six years. Revenue Sharing and Team Valuations : With private equity involvement, there is potential for increased team valuations, especially for franchises that need capital to upgrade facilities, marketing, or operations. However, the NFL’s strong revenue-sharing model will likely remain in place, ensuring competitive balance across the league. Long-Term Impact on Governance : The introduction of private equity may influence the league’s decision-making processes over time. With investors looking for returns, there could be pressure on the league to pursue more aggressive growth strategies, including expanding international markets, increasing media rights deals, and monetizing digital assets, but for now with the league only allowing such a passive investment these changes will likely not be seen in the near future. Comparisons with Other Major Sports Leagues NBA : The NBA was one of the first major sports leagues to embrace private equity investment. Since 2020, the NBA has allowed private equity firms to own up to 20% of a team, with a cap on total private equity ownership at 30%. This has resulted in increased liquidity for owners and higher team valuations. The NBA has been more flexible in its approach, with some teams welcoming multiple private equity investors, allowing for more diversified ownership structures. MLB : Major League Baseball has also opened its doors to private equity in recent years. Like the NBA, MLB allows minority stakes to be sold to private equity, but with tighter restrictions. MLB’s approach is more conservative, focusing on maintaining control within traditional ownership groups. This has helped stabilize teams financially but limits the influence of private equity on day-to-day operations. MLB permits teams to sell up to 30% to funds, and the maximum equity a fund can have in a single team is 15%.   NHL : The NHL began permitting private equity firms to buy minority stakes in teams starting in 2021. The NHL’s ownership model is similar to MLB’s, with a focus on ensuring that private equity investors do not gain significant control over team operations. The NHL permits teams to sell up to 30% to funds, and the maximum equity a fund can have in a single team is 20%. The NHL has used private equity as a way to provide financial relief to struggling franchises, allowing them to remain competitive without forcing ownership changes. MLS : Major League Soccer has been equally as flexible as both the NBA and NHL when it comes to private equity involvement. MLS franchises have allowed private equity firms to take additional stakes in teams, often providing essential capital for stadium development and expansion efforts. The league’s newer structure and focus on growth have made it a more attractive option for private equity investors compared to the more established leagues. Distinctions in Private Equity Involvement Across Leagues Control and Governance : The NFL’s decision to limit private equity ownership to minority stakes is the strictest of the major sports leagues to ensure control is carefully guarded by traditional owners. In contrast, the NBA, MLB, NHL and MLS have been more open to shared control, with multiple private equity investors holding stakes in several teams and allowing these investors to own a greater percentage of those teams. Financial Impact : Private equity’s influence on team valuations has been most pronounced in the NBA, where the league’s global popularity and lucrative media deals have made teams attractive investment vehicles. The NFL, with its established media dominance and high franchise values, may see similar effects but at a slower pace due to its more restrictive ownership rules. Operational Influence : While private equity in the NBA and MLS often has a more hands-on role in driving growth strategies, the NFL’s approach is likely to keep operational influence limited. The NFL’s governance structure prioritizes long-term stability over short-term financial gains, which could curb some of the aggressive growth strategies typically favored by private equity. Conclusion The NFL’s decision to allow private equity investment marks a significant shift in the league’s approach to ownership and financing. While the move brings the NFL in line with other major U.S. sports leagues, the restrictions on ownership stakes and control will ensure that the league maintains its focus on stability and competitive balance. As private equity firms begin to invest in NFL teams, the long-term impact on team valuations, operations, and league governance will be closely watched, with lessons likely to be drawn from the experiences of the NBA, MLB, NHL, and MLS, which all allow for more private equity involvement than the NFL. Michael Perlo is an Associate Attorney at Woods Oviatt Gilman LLP and writes and speaks frequently about the legal issues related to sports. He can be reached on LinkedIn at https://www.linkedin.com/in/michael-perlo/

As summer comes to a close, partnership deals are booming. From sneakers to chocolate, every industry is hoping to get a piece of the profit. For the sake of us consumers, let’s hope Angel Reese’s collection is a bit more affordable than Ruth’s jersey.   USA football makes Oakley its official eyewear sponsor in advance of the 2028 Olympics. USA Football Aflac partners with the University of Colorado Buffaloes football team to provide custom headsets for the upcoming season. The coaching staff’s headsets will be designed to match the players’ uniforms each week. CU Hershey’s Reese’s partners with Angel Reese to create a Reese’s Pieces logowear collection. Logowear will feature the new “Reese’s Angel” logo. Yahoo Sports Babe Ruth’s “called shot” jersey sold for $24.12M. This sale sets the auction record for most expensive sports collectible ever sold, topping a Mickey Mantle Topps card which sold for $12.6M in 2022. ESPN Duke forward Cooper Flagg signs endorsement deal with New Balance. ESPN projects Flagg will be the first pick in the 2025 NBA draft. ESPN Kelce brothers sign a $100M+ deal with Amazon for their New Heights podcast. WSJ Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

As much of the world enjoys end-of-summer traveling, Delta is hard at work solidifying its partnership with the WNBA, and Pitbull is ready to get back to school. Non-alcoholic beverages continue to have their moment, and KD just can’t get enough of Paris after coming home with the Gold for Team USA. Pitbull purchases naming rights to Florida International University’s football stadium for the next 5 years. Pitbull will pay FIU $1.2 million per year, and has the option to renew for an additional 5 years. As part of the agreement, Pitbull will create an anthem for the school, make 12 social media posts per year and appear at one athletics funding event per year. In return, Pitbull will get to use the stadium 10 times per year, and his vodka company (Voli 305 vodka) will be the preferred brand of the stadium. ESPN Arsenal FC names Athletic Brewing as its official non-alcoholic beer partner. CNBC Kevin Durant becomes minority owner of Paris Saint-Germain soccer club. Durant invested through his company, Boardroom Sports Holding, LLC, via Arctos Partners. Yahoo Sports Richard Sherman and Sheldon Day’s Players Company partners with Mogul Club, a real estate investment firm designed to help accredited investors interested in investing in single-family rental properties. Sherman and Day formed Players Company to help educate and support professional athletes and other accredited investors with their investments. Forbes WNBA names Delta Air Lines as its official airline partner. WNBA Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

While House v. NCAA has dominated most of the headlines lately, it is far from the only active lawsuit against the NCAA in this  litigious environment in college athletics. Ever since the Supreme Court’s ruling in the Alston case and Justice Brett Kavanaugh’s scathing concurrence to go with it, the NCAA has been in an extremely vulnerable position.  This week, another lawsuit has been filed against the NCAA, this time by a former college baseball player. Riley Cornelio, a former TCU pitcher, is suing the NCAA and power conferences, "accusing the leagues of wage fixing through scholarship limits." The federal antitrust case was filed in Colorado this week and "seeks class-action status for college baseball and hockey players." The timing of this suit is noteworthy because it appears like scholarship limits in college baseball and other college sports might no longer exist in a couple of years.  The NCAA, ACC, Big Ten, Big 12, Pac-12 and SEC already have an agreement in place to settle recent antitrust litigation, including House , where scholarship limits would be replaced by roster caps. The settlement, which still needs to be approved by a judge, also includes a plan to allow schools to implement a revenue-sharing system with athletes and increase the number of scholarship schools would be permitted — though not required — to hand out in most Division I sports.  The scholarship limit for baseball has been 11.7 per program. With most college baseball programs carrying 35-40 man rosters, nearly all players have been on partial scholarships. Under the new proposed system, baseball rosters will be capped at 34 players and schools can choose to fund them all with full scholarships. While it’s uncertain the exact number of scholarships certain programs will fund moving forward, it’s reasonable to assume power programs will far exceed the previous 11.7 limit.  However, just because the scholarship limitation may be going away, the settlement is still not final by any means. Moreover, the plaintiffs are seeking retroactive relief. “Even if the rule is finally repealed, there will still be a need to make whole the athletes who suffered,” the lawsuit says.  The suit also alleges that “Defendant and its members operate as a cartel, and the capping of scholarship money at artificially low levels in these sports results in wage fixing amongst horizontal competitors in a market for services,” the complaint says. “The anticompetitive effects are as clear as with any other wage fix, and it is an unlawful restraint under Section 1 of the Sherman Act.” The suit was filed by the same attorneys who are leading the Fontenot case against the NCAA. In that case, a former football player at the University of Colorado filed a lawsuit last November, claiming NCAA rules have illegally prevented college athletes from earning their fair share of the millions of dollars in revenue schools bring in. The plaintiffs' attorneys in House  requested that Fontenot  be joined with another lawsuit that is part of the settlement, but a Colorado judge denied the request. It seems like change and litigation are the only constants you can count on right now in college athletics. The advent of NIL, conference realignment, and sweeping litigation have dominated the landscape in recent years and does not appear to be slowing down. Clemson and Florida State have active cases against ACC that will likely end with the two institutions in new conferences. College athletes will likely gain employee status in the near horizon. But when and how these changes will come about is up in the air as we sit here today. Outcomes of court cases like House will undoubtedly shape the future of college athletics. With every lawsuit that is brought, the NCAA becomes weaker and weaker. In this era, nearly every decision being made is guided by the potential of a future lawsuit. Therefore, it’s important to monitor each case that comes in, including this scholarship case brought by Riley Cornelio. Brendan Bell is a 2L at SMU Dedman School of Law and is the Southwest Regional Rep on Conduct Detrimental's Law School Student Board. He can be followed on Twitter (X) @_bbell5

As July comes to a close, so does a few highly anticipated deals. However, not without drama, as the battle between the NBA and TNT continues at full force.   NBA Board of Governors approves media rights agreements. NYT NBA rejects TNT’s rival bid, stating the proposal did not match the terms of Amazon Prime Video’s offer. Warner Bros. Discovery, TNT’s parent company, is now suing the NBA for its “unjustified rejection” of Warner Bros.’ matching offer. Front Office Sports / NYT Willow Bay and Bob Igor secure controlling stake in Angel City FC. Bay and Igor will invest an additional $50M in the club. The franchise is valued at $250M. ESPN   Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

Every four years, the world comes together to watch the best athletes compete for a shot at glory. Not only is the United States Olympic and Paralympic Committee ("USOPC") the organization to send Team USA to the Olympic Games, but the USOPC also monitors the use of their intellectual property rights. The USOPC, in a lawsuit filed in the United States District Court for the Court of Colorado on July 19, alleges that YouTube star Logan Paul and his beverage company, Prime Hydration, have infringed on the USOPC’s trademarks and symbols associated with the 2024 Olympic Games with their recent promotion with Team USA/NBA superstar Kevin Durant.   The USOPC has held trademarks relating to the Olympic Games for over a century. Some phrases that they have trademarked include, among others, Olympic, Olympian, Team USA, and Go for the Gold. The complaint alleges that Prime Hydration has allegedly repeatedly used these “Olympic-related terminology and trademarks” with phrases on the bottles that include “Kevin Durant Olympic Prime Drink!” and “Celebrate Greatness with the Kevin Durant Prime Drink”. [1]     The complaint further states that every Olympic Games, the USOPC engages in a “robust licensing program” in which sponsors and other partners are allowed to use trademarks owned by the USOPC. Currently, Coca-Cola is the only beverage company with an exclusive license to use the USOPC’s trademarks. The complaint elaborates that “because consumers have been exposed to sponsored uses in so many industries, they are likely to believe that any use of Olympic trademarks to promote the sale of goods are under license.”   On July 10, the USOPC wrote a cease-and-desist letter and contacted the beverage company to stop using their trademarks. The USOPC alleges that Prime Hydration's use of the Olympic mark has been “willful, deliberate, and in bad faith, with malicious intent to trade on the goodwill associated with the USOPC’s marks.” Prime Hydration continued to show the infringing bottle until July 19.   Trademark law in the United States is governed by the Lanham Act. The goal of trademark law is to protect consumers and to ensure that they are not misled or confused as to the source of goods. To determine trademark infringement, the court will look to whether there is a likelihood of confusion among a reasonably prudent purchaser of the products at issue. Some of the factors that courts weigh when determining whether a likelihood of confusion exists include the following: [2] The strength of the Plaintiff’s mark Relatedness of the goods and services Similarity of the marks Evidence of actual confusion Marketing channels used Likely degree of purchaser care Defendant’s intent in selecting the mark Likelihood of expansion of the product lines   As the USOPC vigorously protects its intellectual property to prevent any unauthorized exploitation that could potentially dilute the value of its marks or cause consumer confusion, it appears to have a strong case for infringement. The lawsuit seeks millions of dollars in damages, and the damage request includes receiving all the profits made from the infringing beverage and compensation for the harm caused by violating the USOPC’s sponsorship agreements.   As we continue to enjoy the excitement and unity of the Olympic Games, this case underscores the importance of protecting the integrity of the USOPC’s trademarks. The Olympic Games are so widely recognizable, and the Games do not only embody athletic excellence but also the symbols associated with them. Proper adherence to trademark laws ensures that the integrity of the Games is preserved and that all related branding is used with the necessary permissions, safeguarding the Olympic spirit for years to come. Shelby Stevens is a rising 3L at Gonzaga University School of Law. She is also the Northwest regional representative of the Conduct Detrimental Law Student Board. She can be found on LinkedIn at Shelby Stevens . Sources: [1]   https://www.usatoday.com/story/news/nation/2024/07/22/logan-paul-prime-energy-drink-olympic-lawsuit/74502244007/ . [2]   Interpace Corp. v. Lapp, Inc. , 721 F.2d 460 (3d Cir. 1983) .

In June, the United States Supreme Court declined to hear a challenge to the Seminole Tribe’s agreement granting the exclusive right to sports betting within the state of Florida under their Hub-and-Spoke model, part of the compact agreement between the Tribe and the state. The only true online sports betting application or site that is legal within the state is the Seminole’s Hard Rock Bet.   The Hub-and-Spoke model means that online bets placed by individuals across the state of Florida, not physically made on tribal lands, are still considered to be made within reservation territory because the servers receiving the bets are on Seminole land. Physical casinos within Florida sued in federal district court to find that the Hub-and-Spoke model violated the Indian Gaming Regulatory Act ("IGRA"). While the district court found that this model violated the IGRA, the D.C. Circuit Court of Appeals, on appeal, came to the opposite conclusion, finding that this model did not violate the IGRA. And as a result of the Supreme Court’s inaction, the D.C. Circuit's decision on this issue became final.   With the Supreme Court’s decision not to decide the matter, Florida bettors can place online sports bets anywhere within the geographical bounds of the state. This is massive news for the Seminole Tribe, as there is much greater potential capital than the alternative where bettors would have to be physically on tribal lands to place such a bet. By 2030, the prediction is that the monopoly could generate $4.4 billion for the Seminole Tribe.   Daniel Wallach, a Florida sports betting legal expert who filed an amicus brief asking for Supreme Court review, looked toward the future potential for other Native American groups around the country to try to replicate what transpired in Florida for their own benefit. Wallach states, “Tribes in other states stand to benefit from this decision because now they have a clear roadmap that has cleared judicial review.”   This blueprint compact agreement is only one of the reasons for a rise in tribal groups expanding into the sports betting market, according to Kathryn Rand from the University of North Dakota Institute for the Study of Tribal Gaming Law and Policy. Rand indicates that COVID-related casino closures and an increasingly diverse market of competitors in online sports betting have alerted tribal leadership across the country to the lucrative expansion possibility. With tribal lands often in rural areas of states, she finds that models like the Hub-and-Spoke can “ope[n] up a market previously unavailable to tribal casinos” with activity from consumers across the state.   Kansas is a favorite to be the next state to adopt an approach like that seen in Florida. Due to a compact between the state and the Prairie Band Potawatomi Nation, sports betting is legal within Kansas. Nick Covek and Zack Flagel, Associates in the Sports and Entertainment Group at Foley & Lardner LLP, explain that Kansas and other states, such as Wisconsin, Washington, and North Dakota, “may be inclined to amend their tribal compacts and state laws to embrace the Hub-and-Spoke model. Doing so would expand the geographic scope of sports betting from just tribal lands to the entire state geographic boundary.”   Brendan McLaughlin, rising 2L at St. John’s University School of Law. He can be found on LinkedIn at Brendan McLaughlin . Sources: https://apnews.com/article/florida-sports-gambling-seminole-tribe-b5d18262d8d25e38fde260fc013a9f33 https://www.forbes.com/betting/legal/is-online-sports-betting-legal-in-florida/#:~:text=Sports%20betting%20is%20legal%20in,betting%20began%20in%20December%202023 .   https://www.sportsbusinessjournal.com/Articles/2024/05/28/oped-28-covek-flagel https://www.vixio.com/insights/gc-tribal-casinos-find-more-pros-cons-sports-betting

Justice Kavanugh’s concurrence in Alston v. NCAA arguably summarizes the rationale in creating the NIL market: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.” 594 U.S. 69, 112 (2021). Kavanaugh’s strong language represents prevailing sentiments toward the NCAA’s decades-long commercial appropriation. Facially, it echoes the boiling frustration of thousands of athletes whose NILs the NCAA appropriated since the Board of Regents decision. See Board of Regents v. NCAA, 468 U.S. 85 (1984). A recondite sentiment reaps from irritated sports-law scholars, including 21st century Supreme Court Justices, who acknowledge that the NCAA’s arrogant and passive attitude toward the serious allegations in the landmark O’Bannon and Alston decisions that ultimately created the current NIL Wild West and subsequent flood of litigation currently drowning the NCAA. See O’Bannon v. NCAA , 802 F.3d 1049 (9th Cir. 2015). An examination of the NIL Trilogy – Board of Regents, O’Bannon, and Alston – shows how the NCAA’s reliance upon favorable dicta potentially played a significant role in ushering in this chaotic era of collegiate sports.   The courts’ decisions in the NIL Trilogy are based upon the Rule of Reason. Once plaintiffs established antitrust standing – proving they suffered the type of injury antitrust laws are intended to prevent and such injury flows from unlawful NCAA conduct – courts moved to the first prong of Rule of Reason analysis, examining whether the plaintiffs identified the rules’ anticompetitive effects. Then, the NCAA was charged with identifying a procompetitive purpose for its challenged rules. Regardless of whether the NCAA truly met its burden, the courts continued to the third Rule of Reason prong, which required plaintiffs to identify substantially less restrictive alternative means of achieving the challenged rule’s procompetitive purpose. Courts found the plaintiffs met satisfied this high standard in O’Bannon and Alston.   Initially, the NCAA enjoyed essentially antitrust exemption, based almost solely on language in Board of Regents . The issue centered on the NCAA’s rules for televising college football games. See Board of Regents , 104 S. Ct. at 2955-2957. These rules would ordinarily be per se unlawful: rules setting a minimum price TV networks must pay NCAA member schools constitutes a price fixing agreement, and rules artificially capping the number of televised game licenses for sale constitutes an output-restricting agreement. Id., at 2962. After analyzing the facts under the Rule of Reason, the Supreme Court affirmed the Tenth Circuit’s finding that the NCAA’s conduct violated the Sherman Act because its actions constituted an unlawful horizontal restraint of trade. Id. at 2959. However, because college sports could not exist without certain horizontal agreements (such as standardizing the size of the field, the number of players on the team, and the extent that physical violence was encouraged or prohibited), NCAA rules should not be held per se unlawful even when they appear to be pure “restraints on the ability of member institutions to compete in terms of price and output.” Id. at 2960-61. Thus, the challenged rules were not per se unlawful because the NCAA fostered competition in other sports – just not for televised football. Id. , at 2961. Notably, NIL implications are found in the Court’s concluding remarks, which emphasized the NCAA’s “critical role” in maintaining a “revered tradition of amateurism in college sports” by using its ample latitude to preserve the student-athlete’s role in higher education, adding richness and diversity to intercollegiate athletics and thus, is “entirely consistent with the Sherman Act.” Id. , at 2970.   Twenty years later, the Court’s concluding remarks in Board of Regents served as one of the NCAA’s cornerstone arguments against subjection to antitrust law. See O’Bannon , 802 F.3d at 1061. The plaintiffs – a class of all former and current D1 men’s basketball and football student athletes whose NILs were potentially included in EA NCAA video games – alleged that the NCAA's amateurism rules, insofar as they prevented compensation for use of the athletes’ NILs, illegally restrained trade under the Sherman Act. Id. at 1055. The NCAA argued Board of Regents’ s holding makes its amateurism rules presumptively valid – thus, any antitrust challenge fails as a matter of law. Id. , at 1061. However, the Nineth Circuit interpreted Board of Regents to mean that challenged NCAA rules must be examined under the Rule of Reason, and the Court’s encomium to amateurism was dicta. Id. , at 1063. Thus, the NCAA is not above antitrust law, and courts must not shy away from requiring the NCAA to play by the Sherman Act's rules. Id. at 1079. Despite the Nineth Circuit’s rejection of the NCAA’s Board of Regents argument in O’Bannon , the hauntingly familiar antitrust-exemption assertion reared its head once again in the 2021 Alston decision. There, a class of current and former D1 FBS football and men’s and women’s D1 basketball players alleged the NCAA’s rules restricted the compensation they may receive in exchange for their athletic services, thereby violating § 1 of the Sherman Act. See Alston , 141 S. Ct. at 2151. SCOTUS quickly reminded the NCAA that its dicta did not suggest that courts must reject all challenges to the NCAA’s compensation rules. Id. at 2157. Further, the existence of antitrust violations depends on careful analysis of market realities, which significantly evolved since 1984. Id. , at 2158. The NCAA dramatically increased the amounts and kinds of benefits schools may provide to student athletes, such as increasing the size of permissible benefits incidental to athletics participation. Id. The Court directly addressed Board of Regents ’s key issue by noting the one-billion-dollar difference between what CBS paid for broadcasting March Madness in 1984 ($16 million) versus what it paid in 2016 ($1.1 billion). Id. Thus, given the sensitivity of antitrust analysis to market realities – and the drastic changes in this market since Board of Regents – SCOTUS thought it particularly unwise to treat an aside in Board of Regents as more than that. Id. at 2158.   In rejecting the Board of Regents argument, SCOTUS touched upon a potential explanation as to why the NCAA twice relied upon a sinking ship. One is stare decisis – a favorable SCOTUS decision would render the Nineth Circuit’s admonishment of the Board of Regents argument mute. The explanation addressed in Alston , however, mentions SCOTUS precedent at the heart of many failed attempts for an antitrust exemption: Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs – a 1922 SCOTUS decision regarded as an unrealistic, inconsistent aberration. 259 U.S. 200 (1922); see Alston , 141 S. Ct. at 2159. Like the NCAA, the National League never disputed it operated as a monopoly. It argued that an activity does not turn interstate "merely because people came from another State to do it," and supported its contention by noting Congress did not regulate baseball players’ interstate movement. Fed. Baseball, 42 S. Ct. at 206. Noting this was a case of first impression, SCOTUS found that baseball exhibitions did not implicate the Sherman Act because they did not involve interstate trade or commerce – even though teams regularly crossed state lines (as they do today) to make money and enhance their commercial success. See id. at 465; Alston , 141 S. Ct. at 2159. This extreme judicial deference has since proved elusive for every other league. See Radovich v. National Football League , 77 S. Ct. 390 (1957) (holding that the NFL was not exempt from antitrust law); United States v. International Boxing Club of New York, Inc. 75 S. Ct. 259 (holding that boxing was not exempt from antitrust law). I theorize the NCAA continued to push the Board of Regents argument in hopes that SCOTUS would succumb to its precedent as it arguably did in the wake of Fed. Baseball , despite a litany of precedent holding the contrary. See Toolson v. New York Yankees , 346 U.S. 356 (1953) (determining Congress’s failure to pass legislation subjecting baseball to antitrust law created the exemption, despite no evidence of Congress’s authority to do so); Flood v. Kuhn, 407 U.S. 258 (1972) (determining stare decisis and Congress’s failure to reverse the antitrust exemption required the Court to uphold the reserve clause).   It is worth noting that the Baseball Trilogy touches upon a possible route for the NCAA to obtain its elusive antitrust exemption. This May, Congressmen Russell Fry (R-S.C.) and Barry Moore (R-Ala.) introduced a bill proposing a national liability shield protecting schools, student athletes, and conferences as they navigate the NIL Wild West. Arguably, without such a shield, anyone and everyone whose NIL the NCAA commercially appropriated may seek compensation. Jesse Taylor – a former University of Alabama at Birmingham drum major– requested a copy of EA’s NCAA 25 via X with a photo of his own NIL in NCAA 07. While damming the flood of litigation O’Bannon and Alston produced may determine the NCAA’s chance of survival, American jurisprudence places the NCAA in the same category as thousands of other miffed defendants subjected to what they purport constitutes inequitable judicial decision-making. In short, the NCAA is not above the law.    Keeton Cross is a third-year law student at Cumberland School of Law. She can be found on X @keeton_cross and on LinkedIn (Keeton Cross).

The United States Olympic and Paralympics Committee (USOPC) is suing Logan Paul and KSI’s energy drink company, Prime Hydration, accusing them of trademark infringement. According to the federal lawsuit filed in the District of Colorado, the allegation stems from Prime Hydration unlawfully using trademarked phrases such as, OLYMPIC,” “OLYMPIAN,” “TEAM USA,” and “GOING FOR GOLD” on its product packaging and advertisements. Prime Hydration had a collaboration with NBA star Kevin Durant where they printed “Team USA Kevin Durant Drink,” “Kevin Durant Olympic Prime Drink,” “Olympic Prime Drink,” “Olympic achievements,” and “Durant’s Olympic Legacy.” The USOPC takes trademark infringement very seriously. The committee is responsible for supporting Team USA athletes, meaning athletes are helped financially until they make it to the Olympic or Paralympic Games. The USOPC licenses their trademarks to certain brands, so that they can make money for their athletes. The money from the brands is relied upon heavily to fund Team USA athletes because it does not receive much financial assistance from the federal government. If the USOPC does not protect their trademarks, then brands will feel they do not have to go through the rigorous approval process to be a licensed partner. Thus, without the sponsors, the USOPC will lose lots of money. The USOPC allows official partners and licensees to use USOPC trademarks in recognition of their support for the athletes. These brands must meet strict guidelines. According to the guidelines once approved a brand can use USOPC’s marks for all non-commercial purposes such as;   1.     Business cards 2.     Advertising 3.     Website 4.     Signage for events, clubs, and other preapproved locations When a brand uses a mark the brand must; 1.     Clearly establish that the brand is the official governing body associate with the USOPC 2.     Show the brand is the official partner of the USOPC 3.     Communicate that the brand is a pipeline for future Olympians and Paralympians Unfortunately, Prime Hydration is not an official Olympic and Paralympic sponsor, supplier, or licensee. This means that Prime Hydration should not be allowed to use any of the USOPC’s trademarks. According to the lawsuit, the USOPC feels that the unlicensed use of these trademarks might mislead the public and enable a seller to profit from associating its brand with the Olympics despite no official connection. Prime Hydration has smartly removed the product and advertisement relating to this promotion. Here is the perfect example that no matter how popular the brand is, if they are not a licensing partner then the company cannot use the marks in any way. Recently, all major sports leagues have taken trademark infringement on their licensing marks very seriously because of the money at stake. For example, according to the Broadcast Law Blog, the NFL receives hundreds of millions of dollars from licensing the use of the “Super Bowl” trademark and logo. Even if the brand is small or someone takes out a small ad in their local newspaper, they could still be sued for trademark infringement. The NFL once sent a cease-and-desist letter to a church because they used the term “Super Bowl” to describe a viewing party where they charged people $3 to view. It might seem ridiculous, but leagues cannot afford to lose their brand deals and in essence lose huge amounts of money. Therefore, trademark protection is vital and every company should be aware of the risk of trademark infringement. USPOC guidelines: https://www.usopc.org/commercial-and-brand-usage-guidelines Chris D'Avanzo can be found on Twitter @_chrisdavanzo.

When you think of all the great NFL quarterbacks who have donned the number eight, two of the first names that come to mind are three-time Super Bowl champion Troy Aikman and two-time MVP Lamar Jackson. While the two QBs dominated in different ways, Aikman being a precise pocket passer and Jackson being a dynamic dual-threat, the two are linked by the number on their jerseys. Obviously, Aikman and Jackson never competed against each other on the gridiron. However, a battle appears to be brewing between the two off the field. According to federal records that were reviewed by ESPN’s Michael Rothstein, Jackson recently filed a complaint with the U.S. Patent and Trademark Office challenging Aikman’s use of the number eight. Jackson has filed two appeals against a company by the name of FL101, which lists Aikman as one of the directors.    The appeals claim Jackson "has expended considerable time, effort, and expense in promoting, advertising, and popularizing the number eight in connection with his personality and fame" and "is well-known by this number due to his notoriety and fame, along with his promotion of this number in his trademarks and in media coverage."    Jackson filed a complaint on July 9 seeking to prevent Aikman from using “EIGHT” on apparel and bags, arguing that it is “likely to cause confusion, or cause mistake, or to deceive” consumers as to whether they are buying products in support of Jackson or Aikman. Jackson has applied for several trademarks with phrases related to his jersey number, including “Era 8” and “You 8 yet?” Jackson’s attorney says those trademarks were registered before Aikman’s filings related to “EIGHT.” The two-time MVP and Heisman trophy winner’s legal team believes the products being sold by Aikman are “highly similar in sound, appearance, connotation, and commercial impression” to Jackson’s branding   A company affiliated with Aikman has applied for a total of nine trademark applications for the use of “EIGHT” on a variety of consumer products. Aikman has a beer brand, EIGHT Elite Light Lager, that was honored as the No. 1 new independent beer brand in 2022 and he has been very active in promoting it in recent years.   It might seem odd that a number can be trademarked. No one, of course, can in effect “own” a number. But trademark law permits registration when a number distinguishes a particular product or service. For example, Nike has trademarked the number “23” for hats, T-shirts, sweatshirts, shirts and other clothing in recognition of its relationship to Michael Jordan.    It is not uncommon for athletes to cast a wide net when applying for trademarks, and Jackson has been no exception to that throughout his career. One of the better follows on social media when it comes to intellectual property issues in sports is Josh Gerben, the founder of Gerben IP. In a recent post on X , he detailed that he figures that “the likely outcome is that Jackson and Aikman will find a way to coexist in the marketplace.” Aikman’s company has until Aug. 18 to respond to Jackson’s complaint. Interestingly, the Ravens are scheduled to play on ESPN’s Monday Night Football with Aikman on the call October 21 and November 25 this upcoming season. It’s likely this issue will be put to bed long before then, but it will be fascinating to see if Aikman works in a humorous jab to Jackson during the broadcasts. He already made light of the situation in a recent post on X. Brendan Bell is a rising 2L at SMU Dedman School of Law and is the Southwest Regional Rep on Conduct Detrimental's Law School Student Board. He can be followed on Twitter (X) @_bbell5