Despite the widespread adoption of name, image, and likeness (“NIL”) and the multitude of activations being enjoyed by college athletes and brands around the country, young golfers have been largely left behind. Although the NCAA has lifted most restrictions for college golfers, they must still comply with United States Golf Association (“USGA”) rules to ensure they maintain their amateur status. For golfers with dreams of making a professional tour, it is critical that these rules are followed. For its part, the USGA has made an effort to update its rules to allow college golfers to take advantage of the new NIL landscape. In October 2021, the USGA and the Royal & Ancient Golf Club of St. Andrews published modernized Rules of Amateur Status. Under the new rules, amateur golfers can receive money from social media sponsorships, personal appearances, and autograph signings. The new rules also increase the cash prize that an amateur can receive for playing in traditional stroke-play events from $750 to $1,000, although they can receive more for skills competitions like long drive contests. There are three avenues of compensation that the USGA expressly forbids. Golfers may not (i) play as a professional; (ii) accept employment as a club pro; or (iii) accept payment for giving instruction, with limited exceptions for coaching at educational institutions. The third restriction – accepting payment for instruction – is a major handicap for college golfers. In an attempt to soften that blow, the USGA stated that amateurs will be allowed to receive compensation for providing instruction on social media provided that the instruction is “one-way”, meaning simply posting videos demonstrating how to perform a certain golf shot. Reading between the lines, this statement is simply reiterating that golfers may not get paid for instruction using “two-way communication” to a specific individual or group. In other words, amateur golfers cannot give lessons. In no other sport would instruction be more profitable and important for athletes than golf. It also happens to be the only one where instruction is not permitted. Athletes in all other sports, including football and basketball, are permitted to give private or group instruction in exchange for payment. However, the majority of NIL money for those athletes, whether it be big money or small money, comes from endorsement deals. In fact, according to Opendorse data, both golf accounts for just 0.7% of NIL compensation. This makes sense because although you might occasionally play pickup basketball or flag football for the exercise, you are probably not going to shell out hundreds of dollars to learn how to shoot a free throw anytime soon. In contrast, there are millions of people who play golf every week and spend thousands per year trying to improve. They get fitted for clubs, take lessons, and watch hours of YouTube videos about how to fix their slice only to forget it all the minute they step on the first tee box. This activity has skyrocketed since COVID when golf courses were one of the only recreational activities available to people for several months. The USGA rules and restrictions are clearly designed to avoid a situation where an amateur is essentially acting as a professional by playing as a pro, accepting prize money, or being employed as a club pro. However, the USGA does not have to take an all-or-nothing approach with its rules. Permitting college golfers to get paid for instruction through private lessons to a group of kids or to a group of adults while home on a summer break will not blur the lines between amateur and professional golf. In a perfect world, the USGA would lift this restriction entirely. However, rather than a blanket ban, the USGA should at least allow amateurs to offer instruction for a limited number of events or set a maximum dollar amount (a high one) that a college golfer can earn from instruction per year. They could also include a notice requirement to regulate and ensure compliance with these maximums. The USGA, however, is not the only barrier for college golfers. Although most student-athletes can profit off NIL, there is still a restriction on international students with F-1 visas. This restriction also disproportionately affects college golfers, as a massive 32% of Division I Women's golfers and 19% of Division I Men's golfers are international students. Given the unique ability of college golfers to earn money from instruction when compared to their counterparts in other sports, the USGA should be flexible in allowing them to do so. Travel to and from amateur tournaments is a major expense that often falls on parents trying to help their kid achieve their dream of playing professional golf. Earning money from an instructional camp or two over the summer or in the offseason would go a long way to help, and there are already real-life examples of this. For instance, Transcend Capital Advisors, a New Jersey-based wealth management advisor, signed an NIL deal with Caleb Surratt, a college golfer at the University of Tennessee. After Surratt finished runner-up at the U.S. Junior Amateur, he sent a thank you note to Transcend which stated that “the fact that I can just go out and play and not worry about the money has freed me up to play my best golf.” With nearly one-third of college golfers ineligible for NIL due to their visa status and the remaining barred by USGA rules, college golfers are at a significant disadvantage compared to other student-athletes. If, as their website says, one of the USGA’s primary goals is to “strengthen the game’s foundation”, the best way to do so is to equip young golfers with the tools and opportunities necessary to focus on their careers. John Nucci is a Corporate Associate Attorney and Chief Golf Law Correspondent for Conduct Detrimental. He can be reached via email at [email protected] or on Twitter @JNucci23.

This week, PGA Tour Commissioner Jay Monahan announced that, beginning in 2024, there will be eight designated events with fields between 70 to 80 players and no cuts. The schedule was approved by the PGA Tour’s Policy Board and is being implemented in an effort to “transform and set the future direction” of the PGA Tour. The announcement did not come without criticism from those within the golf ecosystem, as the parallels to LIV Golf’s much-maligned format are obvious. However, the smaller field, no-cut events serve two purposes for the PGA Tour: first, they guarantee sponsors that the game’s top stars will be there for all four days; second, they guarantee paydays for those same stars. The announcement comes on the heels of the PGA Tour’s introduction of “designated events” to its schedule, which thus far have been wildly successful. In February, Scottie Scheffler took down the Waste Management Phoenix Open at TPC Scottsdale. The raucous final round took place just down the street from State Farm Stadium, where the Chiefs and Eagles would kick off Super Bowl LVII just 30 minutes after Scheffler won the tournament. The win allowed Scheffler to reclaim the world number one ranking, jumping Rory McIlroy en route to defending his 2022 victory at the same event. Also finishing inside the Top 10 at the WMPO included Jon Rahm, Justin Thomas, Jason Day, Sam Burns, Sungjae Im, Jordan Spieth, Tyrell Hatton, Xander Schauffele, and Rickie Fowler. That leaderboard, combined with the Super Bowl kicking off down the road, drew significant buzz and eyeballs for the PGA Tour. Just one week later, Jon Rahm battled hometown hero Max Homa to win the Genesis Invitational at Riviera Country Club. Rahm’s win allowed him to leapfrog Scottie Scheffler as world number one, who enjoyed the honor for just six days. The tournament came loaded with storylines, as Tiger Woods made the cut in his 2023 season debut, and Max Homa – a Cal golf alum and Southern California native – was in the mix all week. Homa choked up as he spoke to media following the tournament, highlighting just how important legacy and winning tournaments are for many players on Tour. In addition to Max Homa, other young stars like Collin Morikawa, Will Zalatoris, Sahith Theegala, and Patrick Cantlay all finished inside the top 10. This week’s Arnold Palmer Invitational was the third designated event on the PGA Tour schedule. Handwritten letters from Arnold Palmer to PGA Tour members lined the hallways of the clubhouse at Bay Hill, as the Sunday leaderboard was once again loaded with the game’s top stars. With just a few holes to play, Rory McIlroy, Scottie Scheffler, Jordan Spieth, Viktor Hovland, and Patrick Cantlay were all within just a couple of shots of one another. However, it was Kurt Kitayama, currently ranked number 46 in the Official World Golf Ranking, who took down the $3.6 million prize at the Arnold Palmer Invitational. Kitayama (also called “Quadzilla” and the “Quadfather” due to the size of his thighs) highlights the opposite end of the spectrum from Rahm and Scheffler. Prior to earning his PGA Tour card, Kitayama played on the Asian Tour, Web.com Tour, PGA Tour Canada, PGA Tour China, and the Asian Development Tour. After finally earning his PGA Tour Card, he went out and stared down the game’s biggest stars en route to his first career PGA Tour victory. The designated events have become must-watch television for the PGA Tour, who could not have asked for a better start to its 2023 season. They feature high-powered young stars and legendary veterans, yet are still accessible to players like Kitayama, who can go out and win on any given week. Ultimately, leaderboards and finishes like we’ve seen at the Waste Management, Genesis, and Arnold Palmer will certainly help “transform and set the future direction” of the PGA Tour. John Nucci is the Chief Golf Correspondent for Conduct Detrimental and a Corporate Associate Attorney. He can be reached via Twitter at @JNucci23 or by email at [email protected].

Two significant developments took place in the PGA Tour-LIV legal battle over the last week. First, US District Court Magistrate Judge Susan van Keulen denied LIV’s motions to quash the PGA Tour’s subpoena requests for Saudi Arabia’s Public Investment Fund (PIF) and its governor, Yasir Othman Al-Rumayyan. The PGA Tour had sought to subpoena the two parties since August 2022. Second, the PGA Tour’s motion for leave to amend its counterclaim to add the PIF and Al-Rumayyan, as defendants was granted. LIV relied heavily on the Foreign Sovereign Immunities Act (FSIA), which generally makes foreign governments and officials immune from lawsuits in US courts under certain circumstances, to fight against the subpoena requests. One major limitation of the protections of FSIA is the “commercial activity” exception, which can subject foreign governments and leaders to lawsuits if they actively engage in certain commercial activity in the US. For those lucky enough to have sat through a 1L Civil Procedure class in law school, it is akin to an International Shoe “minimum contacts” test. To that end, LIV argued that PIF and Al-Rumayyan are merely investors in LIV Golf and are not engaged in the type of commercial activity necessary to circumvent FSIA protection. Conversely, the PGA Tour argued that the PIF and Al-Rumayyan were essentially in complete control of LIV such that they approve all contracts, manage the day-to-day operations, and wield significant power. Judge van Keulen sided with the PGA Tour, writing that “it is plain that PIF is not a mere investor in LIV; it is the moving force behind the founding, funding, oversight, and operation of LIV.” She added that PIF’s action are “indisputably the type of actions by which a party engages in trade and traffic or commerce.” In addition to arguing FSIA immunity, LIV resisted the subpoena requests on the grounds that subjecting PIF to discovery in this case could have far-reaching implications, since PIF is an investor in many other companies in the US and they could be subject to discovery every time one of those companies is embroiled in litigation. Although it is true that PIF is an investor in many other US companies, they are a 93% investor in LIV and have funded the league to the tune of approximately $2 billion to date. In addition to being a 93% owner, the PGA Tour argued that PIF officials are actively involved in all decisions of LIV Golf from top to bottom. Such active involvement and ownership move the FSIA needle beyond mere passive investment into clear commercial activity. Under the order, which was originally filed under seal on February 9, PIF must submit to 25 separate categories of document discovery. Additionally, Al-Rumayyan and other PIF officials will be deposed either in New York City or Saudi Arabia. The discovery categories are largely related to the creation of the new league and the recruitment of players. The PGA Tour has long argued that LIV not only actively induced PGA Tour members to break their contracts, but also weaponized those members by incentivizing them to recruit others to do the same. The production of documents and information under those circumstances, Judge van Keulen wrote, “do not involve matters of national security or other information the disclosure of which would adversely affect Saudi Arabia.” PIF and Al-Rumayyan have long resisted efforts to be subject to the discovery process in US courts. As Jodi Balsam, a Sports Law Professor at Brooklyn Law School, pointed out on the Golf Channel, Saudi Arabia is a “far more secretive and closed society that does not litigate with the permissiveness and open discovery” that the United States has. In addition to cultural objections, discovery may further implicate PIF and Al-Rumayyan in the PGA Tour’s claims of tortious interference if there are communications showing LIV incentivized its players to recruit PGA members to break their contracts. PIF and Al-Rumayyan will petition district court judge Beth Freeman, who is overseeing the case, to review the order. However, Judge Freeman is unlikely to overturn van Keulen’s detailed and well-reasoned 58-page decision. Assuming that Judge Freeman keeps the ruling intact, LIV may also file an interlocutory appeal to the 9th Circuit Court of Appeals, which is also unlikely to provide PIF with the relief it seeks. Once their appeals are exhausted, PIF and Al-Rumayyan will have to either comply with the subpoena requests or ignore them. The denial of LIV’s motion to quash the subpoena requests was not the only bad news for LIV this week. Late Tuesday night, the court granted the PGA Tour’s motion for leave to amend its counterclaim to add the PIF and Al-Rumayyan as defendants in the case. In doing so, Judge Freeman also decided to unseal and make public certain LIV documents and materials she used to justify her decision, further forcing transparency on a historically opaque regime. Notably, PIF and Al-Rumayyan have already refused to comply with a subpoena to testify in a fraud trial against Tesla in the same court in California. If they further refuse to submit to the jurisdiction of the US courts – whose protections they are simultaneously seeking with their antitrust case – the consequences can range from negative inferences being drawn by the court to outright dismissal of their claims with prejudice. Notwithstanding those consequences, these recent decisions bring the possibility of a settlement into play, since PIF would likely rather drop the case than subject its executives to depositions and open up their books. The terms of a potential settlement are unclear, but would spare the parties, their employees, and their business partners from a long, drawn-out, and costly discovery process and trial. John Nucci is the Chief Golf Correspondent for Conduct Detrimental and a Corporate Associate Attorney at Woods Oviatt Gilman LLP in Rochester, NY. He can be reached via Twitter at @JNucci23 or by email at [email protected].

ESPN senior writer Don Van Natta Jr. reports Washington Commanders owner Dan Snyder took out a $55 million loan, indicated by a footnote in an April 2020 financial report. The note showed the three minority owners did not know Snyder took out the $55 million credit line, and he took it out without their approval. The Washington Commanders are owned by Dan Snyder and Pro-Football, Incorporation. One owner’s actions must be approved by either a majority vote, or by the Board of Directors’ approval. Incorporation partners are not liable for another partner’s actions, compared to a partnership, in which they are liable. Here, the minority owners are not liable for Snyder’s loan if he and the Washington Commanders committed the alleged financial misconduct. Federal prosecutors are investigating Snyder potentially committing financial misconduct. Multiple sources with firsthand knowledge of the inquiry reported these allegations. Documents related to the team’s finances show Snyder’s action of taking out the loan without the minority partners’ consent and Washington’s board of directors’ approval violated the shareholders agreement. The documents also show Bank of America officials asked team executives repeatedly for proof that the board had approved the loan. But the team executives never turned over a copy of the board approval before the loan closed, and one team lawyer later acknowledged in a letter that the board approval doesn't exist. Snyder’s actions are potentially criminal. A source reported the partners alleged to the NFL arbitrator that their partner had possibly committed bank fraud. Snyder’s fraud is a jail time type of fraud. A criminal inquiry is being led by a team of FBI and IRS agents. A federal grand jury has issued subpoenas for a cache of documents related to the team's finances, including the loan. Prosecutors acquired the partners' NFL arbitration petition and other supporting materials, including emails and letters between team executives and bank lawyers, documents show. The minority partners pressed the NFL arbitrator to seek proof Snyder legally obtained the loan, and the NFL moved to shut down arbitration proceedings. The partners agreed to mediation, led by NFL Commissioner Roger Goodell. The mediation resulted in the partners selling their shares, and it silenced their complaints against Snyder, the sources said. The NFL never conducted the partners' requested investigation of the loan, and the league levied no sanctions against Snyder related to the allegations of financial misconduct. The minority partners believe Goodell and NFL general counsel Jeffrey Pash sided with Snyder over them. They believe the NFL owes them as much of a fair shake as it owes Snyder. And the league had no interest in finding out what happened. They buried it and didn't investigate it and covered it up. The minority partners listed their allegations, and it included misuse of team funds to staff his yachts and private jets to the abuse of corporate bylaws. The documents show that minority partners Robert Rothman, Dwight Schar and Frederick W. Smith protested the loan after they discovered it in a financial report's fine print. They then started looking closely into the team's finances and found Snyder was using the team as his "personal piggy bank," including charging the team $4.5 million to put its logo on his private jet, they alleged in the arbitration petition filed with the NFL. The partners’ dispute was fought in sealed motions filed in a federal lawsuit in Maryland before landing in confidential proceedings led by an NFL arbitrator and, eventually, the closed-door mediation overseen by Goodell and NFL lawyers. The partners asked Goodell to suspend or remove Snyder as the owner. They stated: "Snyder's wrongful conduct, self-dealing, mismanagement and brazen disregard of his duties also manifest more generally his lack of fitness to continue serving as the principal stockholder and CEO" of the Washington NFL franchise, the partners wrote in the NFL arbitration petition. "His conduct has harmed not only Claimants and [the team], but also the Washington ... franchise as a whole (and thus both Washington ... fans and supporters, and the NFL itself)." During the two-day mediation, the partners' lawyers were primed to demand that the NFL investigate the secret credit line, according to a source with firsthand knowledge. Despite lawyers raising the issue several times, Goodell and Pash said they would not consider it. The source said Goodell told the partners they had only one option: Reach an agreement to sell their shares to Snyder. A source said: "Goodell and Pash were not interested in talking about those allegations or any allegations between the parties.” “The partners were furious that Goodell and Pash had blocked their request that the arbitrator seek bank records from Bank of America.” Within a month of the session, they struck a deal: Snyder agreed to buy out his three partners' 40% share for a total of $875 million. But Snyder was cash poor. He needed the NFL's permission to finance the buyout. By a 32-0 vote on March 31, 2021, NFL owners granted Snyder a new debt-limit waiver. And Snyder borrowed an additional $450 million from Bank of America. Snyder is moving forward with his plans to sell the Commanders, accepting sealed bids from several interested groups. Managing the sale on Snyder's behalf: Bank of America. Alex Patterson is a Thomas M. Cooley Law School graduate and works for the City of Springfield’s Corporate Counsel as a paralegal. He played football for seventeen years as an offensive and defensive lineman. He graduated from Lindenwood University- Belleville in 2018 with a Bachelor’s in Sports Management. He can be followed on Twitter @alpatt71.

In January of 2020, the tragic helicopter crash that took the lives of Kobe Bryant, his daughter Gianna, and seven others shook the world. This incident caused grief for their families, loved ones, and millions of fans worldwide. Flash forward three years and Kobe Bryant's widow, Vanessa Bryant, and Los Angeles County have settled their legal dispute for $28.85 million over pictures that deputies exchanged following the 2020 helicopter disaster. The $28.85 million settlement between Vanessa and LA County includes $15 million already awarded by a jury in August after a trial in federal court. Chris Chester, whose wife and daughter perished in the collision, also received a $19.95 million payout. This case arose after Los Angeles County sheriff's and fire department employees shared the gruesome images of the crash site. The photos were distributed and, in one case, even shown by a local bartender at a bar where one of the deputies was drinking. In August, Vanessa Bryant testified that the release of the photos added to her grief a month after the horrific accident. She reported having panic attacks at the thought of the pictures circulating. Vanessa Bryant considers the settlement a massive victory after years of litigation. It serves as a warning to other law enforcement authorities that it is unacceptable to act similarly. In a statement, Vanessa Bryant's lawyer, Luis Li, expressed his hope that their win will deter future instances of this happening. This deal is a significant blow to Los Angeles County. When you factor in two $1.25 million settlements for the other families involved, the incident now costs LA County over $50 million. The damages awarded might influence future decisions about how the county manages sensitive data and evidence. The settlement "resolves all outstanding issues related to pending legal claims in state court, future claims by the Bryant children, and other costs, with each party responsible for its respective attorney's fees." This quote is from Mira Hashmall, LA County's primary for this case. In conclusion, this settlement represents a significant victory for Vanessa Bryant and the families involved. This case clearly states that the unauthorized release of sensitive information and evidence will no longer be tolerated. It may change how the county manages such details moving forward. The three-year legal dispute will finally come to an end when the court approves the deal. AJ Calabro is a former student-athlete at Syracuse University and a current law student at Roger Williams University. He can be reached by email at [email protected] or on Twitter @AJ_Calabro. Sources: https://www.latimes.com/california/story/2023-02-28/county-to-pay-more-than-28-million-to-kobe-bryant-widow-vanessa https://sports.yahoo.com/vanessa-bryant-settles-remaining-claims-over-kobe-crash-site-photos-for-289-million-014324309.html?guccounter=1&guce_referrer=aHR0cHM6Ly9uZXdzLmdvb2dsZS5jb20v&guce_referrer_sig=AQAAAD_0xCc3kShgKyc9Wun7uMY9SHSGrysR0mVu4oavnlEv1P0mgqiK4uy53x9FruwTdvW8-5ej183EgFiDecjQI57Pstft-Zx08P7l9wxdEcYFHGy6dZrySo8YjC_BHDXuTQl3-0ZRx6Rbn7IMpZ2ywICe-UwLiLZhQnV9_nHZUAYB https://www.espn.com/nba/story/_/id/35756719/vanessa-bryant-settles-crash-photos-suit-2885-million

On Wednesday night, Alabama star freshman Brandon Miller scored a career-high 41 points, leading the No. 2 Crimson Tide to a 78-76 win over South Carolina in an overtime thriller. This impressive performance came just a day after Tuscaloosa police testified that Miller had brought a now-former teammate the handgun used to kill a woman in January. Miller performed for his team despite the criticism and chants from the opposing student section. Before the game, Alabama announced that Miller would play, calling him "an active member of our team." The school stated that they were cooperating with law authorities in investigating the shooting and reported that Miller was only a cooperative witness and not a suspect based on the information they had received. On January 15, an early morning shooting claimed the life of 23-year-old Jamea Jonae Harris near the University of Alabama campus. Following Harris's death, the Crimson Tide men's basketball team dismissed Darius Miles, who, along with Michael Lynn Davis, is accused of capital murder. Tuscaloosa Detective Branden Culpepper testified in court on Tuesday that Miller brought Miles' gun to him the night of the incident after Miles requested it via text message. On Tuesday, the Chief Deputy District Attorney for Tuscaloosa, Paula Whitley, told AL.com that "there's nothing we could prosecute [Miller] with," even though Miller was not charged with any crimes. According to Greg Byrne, the director of athletics at Alabama, the choice to let Miller play was decided after consultation with the school's administration, including Dr. Stuart R. Bell, Nate Oats, the coach of the Crimson Tide, the university's legal counsel, and others. According to him, the school discovered certain "new information" in the previous 48 hours due to the hearing on Tuesday and the events that followed, which impacted their choice to let Miller play. In reaction to inaccurate reporting, Jim Standridge, one of the lawyers for Miller, issued a statement on Wednesday that reiterated some of those issues and provided more information on Brandon's behalf. Miller never noticed Miles' weapon, which Standridge claims was "concealed behind some garments in the back seat" of Miller's automobile. Miller, he said, never handled the pistol or took part in its transfer to Davis, the suspected shooter. Recently, two events involving murder accusations have rocked the Alabama basketball program. Devonta Pollard, a former basketball player for Alabama, was given a 25-year prison term in December for his involvement in a kidnapping and assault case that culminated in the death of a 6-year-old boy. The most recent incident involving Miles and Davis has further increased the program's scrutiny. AJ Calabro is a former student-athlete at Syracuse University and a current law student at Roger Williams University. He can be reached by email at [email protected] or on Twitter @AJ_Calabro Sources: https://www.espn.com/mens-college-basketball/story/_/id/35713382/alabama-says-brandon-miller-play-south-carolina https://www.tuscaloosanews.com/story/sports/college/basketball/2023/02/22/brandon-miller-attorney-alabama-basketball-star-fatal-shooting/69933614007/

Last week, California Assemblymember Matt Haney filed a Bill (AB 1136) to create a pension fund in California for mixed martial artists. The Bill would make California the first state to create a fund for mixed martial arts (MMA) fighters. As independent contractors, MMA fighters often receive low wages. Plus, the fighters do not receive retirement nor disability benefits, forcing fighters to pay out-of-pocket for injuries from a sport that causes athletes to retire early and frequently causes long-term injuries, including traumatic brain injuries. The new California Bill would set up a pension fund for MMA fighters that have participated in a certain number of matches in California during their careers. The money contributed to the fund would come from a portion of each ticket sold to a fight in California or via donation. In 1982, California led the way in providing retirement protections for some fighters by creating the Professional Boxer’s Pension Fund. The boxer’s fund is valued at over $5 million for retired boxers meeting certain qualifications. Now, California is again leading the way for mixed martial artists. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

Last week, Corbin Burnes lost his salary arbitration case to the Milwaukee Brewers. When speaking to reporters, the 2021 NL Cy Young Award winner voiced his frustrations, stating “Obviously, it's tough to hear. It's tough to take. They're trying to do what they can to win a hearing,'' and "There's no denying that the relationship is definitely hurt from what [transpired] over the last couple weeks. There's really no way of getting around that." Every offseason, we normally hear at least one episode of a player sounding off like this following a salary arbitration hearing. Whether the player and his representation emerged victorious in the case or not, quotes about “hard feelings” or a “strained relationship” usually surface in the headlines. It’s totally understandable, I mean how would you feel if your employer highlighted your flaws in route to claiming that you aren’t worth what you’re asking for? Despite all the consternation around salary arbitration, however, it's likely not going anywhere anytime soon. Why is that? For the players, it’s a necessary evil to maximize their earnings. Prior to 1974, the professional baseball labor market was characterized by the so-called “reserve clause,” which tied a player’s services to his current team indefinitely, thereby transferring monopsony power to baseball team owners. The reserve clause was a constant source of friction between players and team owners throughout its history. In essence, if a player wanted a raise, his only option was to ask the team owner to voluntarily give him one. That changed in 1974 when the MLBPA got its first big victory: salary arbitration. While free agency (which came along in 1976) understandably gets most of the attention in today’s game, salary arbitration is as if not more important for the rank-and-file player. In short, it allows players with more than three (more than 2 in special cases) and less than six years of MLB service time to negotiate their salaries with their teams for the upcoming year. If the players and their representation cannot agree or “settle” on a number with the team, it goes to a hearing where impartial arbitrators decide between the player’s filing number and the team’s filing number. Inevitably, this puts MLB front offices in a tough spot. Yes, they want to reduce their payrolls as much as possible. But do they want to strain relationships with their players in the process in the process? Absolutely not. As a result, some teams do everything they can to settle and avoid hearings. The Texas Rangers, for example, have not gone to a hearing since 2000. However, other teams don’t share that approach. A collection of executives and front offices take the “file and trial” strategy where they treat the arbitration figure exchange date as a hard deadline; if the club and player are unable to avoid arbitration prior to exchanging salary figures, the understanding is that the will club no longer negotiate one-year deals with that player and head to hearing. Oftentimes, these negotiations are over six-figure amounts. While $700,000 or $950,000 is a lot of money to you and me, in the grand scheme of Major League Baseball, it’s not like teams will go under financially if they have to shell out a few more dollars than they originally wanted to. So why do some teams insist on going to arbitration hearings? It’s all about precedent and avoiding subtle increases that future arbitration-eligible players will be compared to. Arbitration at its core is all about comparison. It’s not intended to give a player a fair salary or what he’d be worth on the open market. That’s what free agency is for. Arbitration salaries are determined by looking back at what players who have accrued a similar amount of service time made in arbitration in recent years. For example, in his hearing, Corbin Burnes’ camp wasn’t arguing that he should make what Justin Verlander, Max Scherzer, or Jacob deGrom will in 2023. Instead, they looked at what the best pitchers with four years of service time made in arbitration and argued why Burnes was worth X amount more than them. By offering Burnes what he wanted ($10.75 million), the Brewers would’ve laid the groundwork for future players of Burnes' caliber and service time to cash in more than they otherwise would. Since any outlier of a contract can serve as a precedent in the future, clubs and the league as a while) pay very close attention to arbitration salaries. Yes, the $750,000 the Brewers saved on Burnes might not seem like a big deal in a vacuum, but the cumulative effect over time can lead to teams shelling out more and more each year. Because of all the animosity and ill-will arbitration can create, there has been a push by MLB to get rid of the process entirely. According to Ken Rosenthal of the Athletic, in the last round of bargaining, MLB proposed replacing salary arbitration with a formulaic approach. The players vehemently rejected it, which goes back to my original point: salary arbitration is a necessary evil. I bet all players would agree that it sucks to hear their teams downplay their abilities to pay them less. At the same time, I bet all players would agree that the pros of arbitration outweigh the cons. It’s crazy to think about in the current landscape, but just 50 years ago, players had zero control over their salaries. Free agency is the goldmine that every player aspires for, but arbitration gives players with less than six years of service time at least some leverage at the negotiating table. One potential solution could be to take the individual teams out of the process, thereby eliminating the player vs. team element in arbitration. For example, instead of the player negotiating with his team, he could just negotiate with MLB’s lawyers, who would work on behalf of the clubs. In that case, you would hear Corbin Burnes direct his ire to the commissioner’s office, not the team he’ll suit up for in 2023. But that solution doesn’t come without its problems and probably won’t come to fruition anytime soon. If arbitration is here to stay (which I think it is), don’t expect players to keep their frustrations to themselves, and don’t expect teams to “cave in” at the negotiating table. As someone who loves baseball, is a finance major and is headed to law school, I’m fascinated by salary arbitration. In saying that, I completely understand all the negative side effects that come with it. However, I, along with many on the player’s side believe this: salary arbitration is a necessary evil in Major League Baseball. Brendan can be found on Twitter @_bbell5

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

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

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

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