Name, image, and likeness (NIL) is now permitted for high school athletes in Pennsylvania. The Pennsylvania Interscholastic Athletic Association (PIAA) Board of Directors on Wednesday, December 7, 2022, approved on its third and final reading a new policy to allow high school athletes to profit off their NIL while maintaining their high school athletics eligibility. The NIL policy was originally passed on the first reading with the PIAA Board of Directors in July and then passed a second reading in October. The NIL policy is effective immediately. Under the PIAA's new NIL policy, Pennsylvania high school athletes are eligible to profit from their NIL from a number of options, including commercial endorsements, promotional activities, and a social media presence. The NIL policy, however, has some restrictions that mirror NIL policies adopted by other high school state athletic associations. The policy prohibits any person employed or affiliated with the school, including boosters and alumni, from soliciting, arranging, negotiating, or paying for the use of a student’s NIL. In addition, students cannot wear school uniforms or “school-identifying apparel” or make reference to the PIAA or their school or team name when engaging in NIL activities. Students also cannot endorse or promote any third-party entities, goods, or services during team or school activities. The students also cannot wear apparel or display a logo or insignia of an NIL partner during team activities, unless that logo or insignia is part of the team uniform. Furthermore, the policy outlined prohibitions on NIL activities in certain vice industries, including: Adult entertainment; Alcohol; Casinos and gambling; Tobacco and electronic smoking; Opioids; Controlled dangerous substances; and Weapons, firearms, and ammunition. The policy introduced a requirement that each NIL deal be based on the value a given athlete’s endorsement brings for providing a specific service/activity. Specifically, the policy states that “NIL contracts/agreements need to come from analysis of the value an athlete brings for providing a specific service/activity, not as an incentive for enrollment decisions or membership on a team.” The guidance, however, does not provide any objective criteria for determining the “value” an athlete’s endorsement would bring for providing a specific service/activity. Therefore, businesses entering into NIL deals with PIAA athletes will need to justify the “value” a given athlete brings to the deal using objective factors or metrics (e.g., potential engagement rate). The policy also includes a disclosure requirement that requires an athlete to disclose to their principal or athletic director any NIL agreement within 72 hours after entering into the agreement. With the PIAA’s new NIL policy, there are now 22 high school state athletic associations that allow student-athletes to monetize their NIL while maintaining their high school athletics eligibility. Ryan Whelpley is an Associate at Morse in Waltham, Massachusetts, where he is a member of the firm’s Corporate Practice Group. He is a graduate of Albany Law School and Union College. At Union, Ryan was a member and three-year captain of the Men’s Basketball Team. You can connect with him via Twitter (@Whelpley_Law) and LinkedIn.

For the last half-century, the NFL has separated itself from the rest of the major professional leagues as the most dominant sport in our country. Due to its immense popularity, the interest in the league extends far beyond the games on Sundays. While the NFL season only lasts for about half the year, the league stays in the mainstream conversation on the major sports television networks and talk radio shows throughout the year due to the draft, free agency, and coaching carousel. Now imagine if all those events were crammed into one month. That’s the current reality of December in college football. While I typically don’t like to compare the NFL to its college counterpart, I do think that the powers that be in college football should take a hard look at how well the professional game utilizes the calendar to keep fans interested throughout the year. Yes, there are some limitations that the college game must work with that the NFL doesn’t, but there are some issues that college coaches, administrators, players, and recruits are dealing with right now that can be addressed. Let’s dive into what can and can’t be changed. As we sit here in mid-December, several programs that experienced coaching changes have just hired their new man to lead their programs. The early signing period for recruiting opens next week. The Transfer Portal opened last week and nearly 1,000 players across all levels have entered it. And oh, by the way, teams are preparing for bowl games (including the College Football Playoff). In short, if you are a college football coach right now, there simply aren’t enough hours in the day to focus on all these very important pressing issues. The advent of the one-time transfer rule by itself would’ve had a significant impact on college athletics. But its arrival along with NIL rights has created no shortage of chaos. Lots of players across the country are entering the portal this time of year to test the open market to see if they can secure a NIL deal from their current school to keep them on campus or be lured by a big offer from another program. You might be asking why these players are entering the portal now, before their bowl games? It’s because the newly enacted 45-day transfer window just opened last week. The next question you might ask then, is why did the window open now? Well, because we are talking about college football, it’s imperative to remember that players looking to transfer need to begin classes when the spring semester starts in January. Because of this reality, I don’t see how the transfer portal chaos can be contained in the month of December. There’s no way around delaying it to the new year because of the need to get players on their new campuses and ready for spring ball. It’s worth mentioning that there is another 15-day transfer window after most programs finish their spring practices, but most of the volume of portal entries occurs in this window. So, if the transfer portal chaos (in its current form) cannot be changed, what can? The early signing period. For most of college football’s history, there was only one signing period each February where recruits could ink their names on their national letter of intent to play for their future school. However, in 2017, the NCAA Division I Council and the Collegiate Commissioners Association approved an additional period in December where players could officially sign with their new schools. Initially, many thought that only a handful of players would utilize the early signing period and the majority would still sign during the February period. That has proven not to be the case as nearly 80% of high school prospects have signed early. In theory, having an early period is a great idea. It allows recruits who are firm in their commitments to go ahead and sign their letters of intent and potentially enroll early at their new schools in time for spring practices. But one area in which it has been a failure is how it meshes with the timing of coaching changes. Back when the February signing period was the only signing time, almost all coaching changes had been completed. Few head coaches or coordinators are fired or changed after February, and coaching staff hired in early December had nearly two months to figure out how they want to manage their roster. That is no longer the case now as new hires are forced to hit the ground running from day one to not only salvage their high school recruiting class. As a result, schools have reacted by firing head coaches long before their season concludes. Increasingly, if you wait too long before the early signing date to make a coaching, roster, or program move, you're way too late. In 2021, 13 schools fired head coaches during the season. This year, an additional 8 did the same. "The December [signing] date changes everything," TCU AD Jeremiah Donati said last year when he decided to fire TCU legend, Gary Patterson. "[With] the old signing day, it was different. You could get through bowl season and kind of let this play out a little bit, but now the December deadline accelerates the process. So, what can be done about the early signing period? Some will argue that it should be eliminated, and college football should return to only having one period in February. While that likely would be preferable to what we have now, I do believe some form of an early signing period is beneficial to allow players who are deadest on their schools to not only sign but potentially enroll early in the spring semester. Therefore, I believe moving the early signing period to before the season would be the best solution. In doing so, you allow the high school recruits that want to sign early the opportunity to cap off their recruitments before the beginning of their senior seasons. In addition, you allow college coaches to have some level of certainty on how their classes are shaping up before they enter the grueling nature of their fall seasons. The mad rush of hosting recruits on campus, in-home visits, and high school visits that coaches do this time of year can be shifted to the summer when they don’t have to worry about the transfer portal, staff changes, and bowl games simultaneously. Is this a perfect solution? No, but in today’s era of college athletics, I don’t think there is a failproof way to do it. Recruits who sign early will need to have the opportunity to get out of their commitments if their school makes a coaching change. There still will be chaos in the transfer portal this time of year. Coaching changes will still happen before the conclusion of the season. But by moving the early signing date earlier, you take one thing off coaches’ plates. Many will point to the salaries head coaches make these days and refuse to “feel bad” for the number of hours they work (justifiably so). However, adding zeroes to a person’s paycheck doesn’t add the number of hours in their days and it’s worth noting that many of the assistants, graduate assistants, and support staff don’t make a tremendous amount of money. Most importantly, the student-athlete experience has been negatively affected by the December signing period. Here’s to hoping things can change for the better so players, coaches, and fans can keep their attention on the excitement of what’s happening on the field instead of worrying too much about what’s going on off of it. Just as NFL doesn’t have its postseason, draft, free agency, and coaching carousel all in one month, college football could shift at least one of its major events to a different date. Brendan can be found on Twitter @_bbell5

Around this time of year in college athletics, there is no shortage of football coaches making moves to different schools across the country. Whether its coaches getting hired, fired, promoted, or demoted, the informally titled “coaching carousel” spins out of control. Sticking to that theme, another group of coaches decided it was time for them to make a major move for their careers. However, these aren’t football coaches looking for the next big-time job for their careers. They’re volunteer baseball coaches seeking much-needed respect when it comes to their pay. While major college football programs employ ten on-field coaches and an unlimited number of “analysts” in off-field roles, the NCAA imposes a limit on how many on-field coaches a baseball program can have. Currently, college baseball programs are only allowed to pay three coaches: the head coach and two assistants (usually a pitching coach and a hitting coach). Because of the demands of developing players, preparing scouting reports, recruiting, and other organizational responsibilities, many programs employ a fourth coach to help handle the load. However, because of the NCAA rule, these coaches are prohibited from receiving payment and are often referred to as “volunteer assistants.” While these volunteer assistant roles can often serve as a springboard for younger coaches to develop their skills and hopefully land full-time roles in the future, the compensation of $0 in no way reflects the responsibilities and time demands of the position. While volunteer coaches are prohibited from recruiting away from campus, many of them perform essential functions that help a college baseball program run at maximum efficiency. When you flip on the College World Series every summer and watch programs like Vanderbilt or Ole Miss win national championships, the volunteer coaches likely played a major role. However, they don’t see a dime from their respective schools. Hopefully, the unfortunate reality could change in the near future. This week, Division I volunteer baseball coaches filed a lawsuit in the Eastern District of California alleging the NCAA illegally limits the number of paid baseball coaches a team can hire and also illegally price fixes a volunteer coach’s salary (at $0). Long before this lawsuit was issued, there has been a push by many involved in college baseball to add a fourth paid coach. But each time the issue has gone to vote at the Division I Council, it has been shot down. If power conferences that invest heavily into baseball had their druthers, the cap on paid coaches would’ve been lifted long ago. But because many athletic administrators at schools where baseball isn’t as big of a deal to have shot it down, it hasn’t received a majority vote. This lawsuit though can and hopefully will put an end to this mess. The plaintiffs for Smart et al. v. NCAA, which is seeking class certification, include Arkansas coach Taylor Smart and UC Davis coach Michael Hacker. Our own Dan Lust told Front Office Sports’ Amanda Christovich that the NCAA’s rule “could potentially be seen as an unlawful restraint and baseball provides a potentially appealing case for two reasons. A successful class action needs to have a “narrow” group, which is aided by limiting the lawsuit to one sport. And given that baseball coaching salaries are higher than many other sports, the potential damages for limiting compensation are higher. Lust also added that NCAA v. Alston likely paved the way for the complaint to be filed now because it ruled that the NCAA is subject to antitrust scrutiny. I’ve written about this issue in the past for our site before there was even a lawsuit involved. The expectation back then was that the three-paid coaches cap would likely be increased soon. Lawsuits like these make that speculation even more valid. It will be interesting to follow this case as it develops. Brendan can be found on Twitter @_bbell5

David Falk’s FAME sports agency (Falk Associates Management Enterprises) sued former NBA player Evan Turner for $2 million for breach of contract. The lawsuit was filed yesterday, December 1, 2022, in the Superior Court of Delaware. Falk is best known for representing Michael Jordan for the entirety of Jordan’s career. The defendants are EMTURN LLC (“EmTurn”) and Evan Turner. According to FAME’s complaint, EmTurn is a loan-out company made for Turner’s endorsement and marketing services. Plaintiff pleads alter-ego liability against Turner to avoid the LLC’s shield of personal liability. Specifically, it is alleged that “Turner regularly failed to observe corporate formalities with respect to EmTurn” as board meetings weren't held and Turner controlled all company bank accounts for personal use. Back in 2010, Turner agreed to hire David Falk as his exclusive agent in connection with contract negotiation and marketing and endorsement deals. Later in that year, the Philadelphia 76ers drafted Turner 2nd overall and Falk negotiated his entry-level deal. This lawsuit centers upon the marketing and endorsement aspect of the parties’ fiduciary agreement. With respect to marketing services, Turner allegedly agreed to pay Plaintiff a fee in the amount of 15% of all compensation received and 20% of such compensation in the event that Turner made more than $2 million in any given year. According to the complaint, on May 6, 2010, Falk entered into talks with a Chinese sports and apparel brand, Li-Ning Sports. This was identified as a potential marketing and endorsement opportunity for Turner. As a result, the parties agreed on a 6-year endorsement agreement which provided Turner and his company with a guaranteed minimum compensation of $15 million plus one million shares of Lin-Ning Sports that vested between 2011-2016. The breakdown of the alleged minimum guaranteed compensation ($15M) and vesting schedule are depicted below: Plaintiff claims that Turner then defrauded EmTurn by diverting the stock from EmTurn to himself. In September of 2021, Turner allegedly sold a portion of the Li-Ning stock and individually received the sum of $10 million. This action is what, Plaintiff claims, triggered the agency’s entitlement to $2 million, or 20% of the capital gains. FAME sent an invoice to Turner on July 15, 2022 for $2 million, and Turner has refused to pay it. The causes of action are breach of contract, unjust enrichment, and quantum meruit, with the latter two pleaded in the alternative. Evan Turner was an Ohio State standout, and player for various NBA teams between 2010-2020. Falk and Turner parted ways as fiduciaries in 2016, when Turner left to join BDA Sports. Jason Morrin is a law clerk (pending admission to the NY Bar) at Zumpano, Patricios & Popok LLP in New York, a firm dedicated to litigation and business counseling including in the areas of sports, gaming and entertainment. He graduated cum laude from Hofstra Law School where he was president of the Sports and Entertainment Law Society. His writing for Conduct Detrimental has been cited by ESPN, The New York Post, USA Today, and more.

This article was originally published on https://ublawsportsforum.com/. Jack Nicklaus, the world’s greatest golfer, and arguably one of the best course designers, finds himself in litigation against his old business partner, Howard Milstein. In 2007, Milstein bought Nicklaus’s intellectual property and golf course design services for $145 million. Milstein's business, Nicklaus Companies LLC, sued Nicklaus in May, alleging that he improperly went out on his own, and is now directly competing for golf course design projects and personally negotiating to re-up his endorsement deal with Rolex SA. This may seem reasonable, given Nicklaus’s noncompete agreement with the company expired in 2017, but the new world of name, image, and likeness (NIL) makes this increasingly more complex. The argument is not if Nicklaus can challenge Nicklaus Companies for design projects because the noncompete has run its course. Rather, the challenge for Nicklaus lies in the fact the judge ruled that there is no such end date for the transfer of Nicklaus’s NIL. Justice Cohen stated, "Whatever might be true under the noncompetition agreements, the plaintiffs own this intellectual property, and that isn't something that expires. The exploitative value of his name as an endorser of products and the like is where the line is drawn." The way this case is determined will likely have long-term effects on all athletes when it comes to their NIL. Although the company may own Nicklaus’s NIL rights, that does not mean they can do much with them without his willingness. This situation is tricky, and ultimately the only positive solution would be if the two sides were to come to a mutually collaborative resolution. Nicklaus is still heavily involved in the golf world and he seems to have the passion and drive to continue working to grow the sport. An important quote from the hearings was Nicklaus talking about the deal where he signed away his intellectual property rights. He stated, “he left the specifics up to his then-counsel Latham & Watkins LLP” and “To be honest with you, I didn’t read it, I was just told something I should do.” It should be noted that NIL was not relevant at the time, and it would have been challenging to foresee so much as to put a provision within a contract protecting this. This suit should act as a lesson for athletes, institutions, lawyers, and anyone involved in these contracts moving forward. This is an emerging landscape that has long-term ramifications unseen yet. Young athletes need to be mindful of the deals they are engaging in and the details involved. In Nicklaus’s case, he already went through a full professional career as an athlete and a businessman, but in the case of college athletes, a deal like this could keep them from earning money from their NIL that would change the dynamic of their lives and their careers. Any professional who is or intends to engage in the NIL landscape should follow this suit to see how the court acts on a dispute over one of the world’s greatest golfer's NIL and the precedent it sets for future athletes’ NIL. 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.

Two former Division I volunteer baseball coaches filed a class action lawsuit against the National Collegiate Athletic Association (NCAA), alleging that the NCAA “engaged in an illegal buyer’s-side monopsony by conspiring to fix the compensation of an entire category of college baseball coaches at zero.” Specifically, the lawsuit entitled Smart v. NCAA seeks damages and targets eliminating the volunteer coach position allowed by NCAA Bylaw 11.01.06. NCAA Bylaws limit the amount of paid baseball coaches to three per team. However, under the NCAA Bylaws, teams may have a fourth “volunteer” coach. The volunteer coach receives zero compensation for their work. The plaintiffs (Taylor Smart and Michael Hacker) are two former volunteer baseball coaches at the University of Arkansas and the University of California, Davis, respectively. The coaches served as volunteer coaches for multiple seasons. According to the lawsuit, volunteer coaches perform many of the same duties as their paid counterparts, including working more than 40 hours per work and serving as on-field coaches during games. As the plaintiffs allege, due to the NCAA reducing the volunteer coach’s salary to zero, the NCAA has restrained the market for baseball coaches and engaged in anti-competitive behavior by price fixing the market. Thus, the NCAA has violated Section 1 of the Sherman Act. In addition, the plaintiffs include claims for violating California’s unfair competition law and unjust enrichment due to the NCAA receiving the benefit of the volunteer coaches’ work yet not paying them. Possibility Of Success A similar case against the NCAA reached the United States Court of Appeals for the Tenth Circuit. In Law v. NCAA, another class action lawsuit, the NCAA instituted a rule limiting the salary of Division I entry-level coaches to $16,000. At the District Court, the judge granted summary judgment in favor of the plaintiffs. The Court of Appeals for the Tenth Circuit affirmed the lower court, finding that the NCAA’s rule had an anticompetitive effect due to the rule “lowering the price of coaching services.” The volunteer baseball coaches in Smart can find further support in NCAA v. Alston, which held that NCAA rules are subject to antitrust scrutiny. As a class action lawsuit, this matter could take years to resolve. In the end, we will likely see an end to the volunteer coach. 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.

The answer to the title of this article is yes . . . sort of. Liberty Media Corporation (“Liberty Media”), the owner of the 2021 World Champion Atlanta Braves, recently announced that it would break the team up (and I am not talking about the potential non-resigning of star shortstop, and home-grown talent, Dansby Swanson this offseason after letting Freddie Freeman walk in the previous offseason). Liberty Media announced that the legal ownership of the Atlanta Braves would be bifurcated – a new company, Atlanta Braves Holdings, Inc., would own the team itself and The Battery Atlanta (“The Battery”), as well as certain assets and liabilities associated with the stadium and The Battery[1] while Liberty Media would retain ownership of, essentially, everything else. This restructuring is nothing new in professional sports as the New York Knicks and New York Rangers are owned by Madison Square Garden Sports Corp and several major European football clubs employ a similar ownership structure.[2] Not to mention the most well-known example of all: the Green Bay Packers, which is a publicly owned company that has allowed fans in the past to purchase stock in the company (which gives the company funds and lets fans feel like they have a stake in the team).[3] What does the restructuring look like in practice? As part of a larger effort by Liberty Media to shift control of its assets, the corporation will redeem its existing common stock in exchange for shares of Atlanta Braves Holdings, Inc. and then recapitalize the remaining common stock into three tracking-stock groups.[4] After the split, Liberty Media Corporation and Atlanta Braves Holdings, Inc. would be two separate, although related, publicly traded companies. Look for stock in the Atlanta Braves to be available on the Nasdaq Global Select Market in 2023. But what does that actually mean for fans looking to buy into their favorite team, or invest in a professional team, and why exactly is Liberty Media restructuring at this point? Per Liberty Media’s press release announcing the restructuring, the goal is to “split off the Atlanta Braves into an asset-backed stock to better highlight its strong value.”[5] Liberty Media clearly believes that the Atlanta Braves as a business has value that is being left on the table by not listing it on the Nasdaq Global Select Market, and the restructuring allows for Liberty Media to still own and control the source of that value while creating a distinct entity to realize on that value. The restructuring also allows Liberty Media to shift its debt and equity ratio to improve its own finances. To an extent, Liberty Media is hoping that this move will allow them to take advantage of what they perceive is significant value in the brand of the Atlanta Braves while also improving financial conditions for it as a parent company: two financially strong companies are better than one. By restructuring, Liberty Media is likely hoping to offload certain debts in order to better protect the parent company. And by having a separate company encompassing the Atlanta Braves brand, Liberty Media is hoping that it can attract new sources of funding in the form of investors looking to purchase an ownership share in a Major League Baseball club. In a possible early sign that the move is paying off, Liberty Media stock was up nearly 10% after the announcement.[6] There is also speculation that splitting the companies up might be the first step toward selling the team…[7] Needless to say, the restructuring of the Atlanta Braves has a lot of significant implications, and Conduct Detrimental will seek to highlight just a few of those over the next few days. Grant Williamson is a graduate of the University of Tennessee College of Law - J.D., Class of 2019. He can be found on Twitter @GrantWilli33 Sources: [1] You Can Soon Buy Stock Directly in the Atlanta Braves - WSJ. [2] Id. [3] Id. [4] Id. [5] Liberty Media Corporation Announces Plan to Split off Atlanta Braves and Create New Liberty Live Tracking Stock Group :: Liberty Media Corporation (FWONA). [6] Liberty Media to split off Atlanta Braves into separate publicly traded company (ajc.com). [7] Atlanta Braves to become a publicly traded company in 2023 (tomahawktake.com).

On Tuesday, a jury returned a verdict in Gee v. NCAA, the first chronic traumatic encephalopathy (CTE) case against the NCAA to reach a jury, finding that the NCAA was not liable for Matthew Gee’s death. The NCAA will utilize the verdict to defend hundreds of pending CTE cases across the country. Matthew Gee was a linebacker for the University of Southern California from 1988 to 1992, winning a Rose Bowl for the Trojans in 1990. When Gee graduated from USC, he attended training camp with the Los Angeles Raiders. The Raiders cut Gee from the team, and Gee left football to run an insurance company and ultimately married his college sweetheart, Alana. According to the lawsuit, the Gees lived a normal life for 20 years. In 2013, Matt began to lose control of his emotions, drinking heavily and often unable to recall recent events—symptoms of CTE. Matt died on New Year’s Eve in 2018. Per reports, the cause of death was a combination of the toxic effects of alcohol and cocaine, plus other conditions, including cardiovascular disease, cirrhosis, and obesity. After Alana donated Matt’s brain to Boston University’s CTE center, the CTE center diagnosed Matt with CTE. Later, Alana sued the NCAA, claiming negligence in failing to protect Matt from head trauma that ultimately led to his death. At trial, the NCAA leaned on the organization’s lack of knowledge surrounding CTE’s effects during Gee’s time at USC. It was not until 2005 that a sturdy revealed evidence of CTE in football players—far beyond Gee’s time at USC. Further, Gee never reported a concussion during his time at USC, and even in his application to play for the Raiders, Gee reported that he had never been knocked unconscious. Gee’s attorneys put on evidence that included a former teammate testifying that Gee took hits that left him confused and other evidence that the NCAA knew about the effects of head injuries prior to Gee’s time at USC but failed to implement rules to prevent the injuries. In the end, Gee’s evidence could not convince the jury that the NCAA knew or should have known about the long-term effects of trauma to the head. The verdict could affect athletes’ head injury claims throughout the country. Gee’s case is unique in that it is the first case to reach a jury verdict. In 2014, Ploetz v. NCAA went to trial but settled just days into the trial for an undisclosed amount. Importantly, Gee’s attorneys were not allowed to produce evidence at trial that Gee was one of five linebackers from USC’s 1989 football team to die before the age of 50—a fact that could have impacted the jury’s decision. While this may have been the first case to reach a jury, it likely will not be the last. For all future cases, focusing on the causation element will be critical. 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.

Earlier this week, Miami-Dade County filed a Motion in the United States Bankruptcy Court for the District of Delaware, seeking to terminate the naming rights agreement between the county and FTX. FTX.US and its affiliated entities (“FTX”) filed for bankruptcy on November 11, 2022, which triggered a stay, preventing any entities from acting against FTX. Miami-Dade County is the owner of the arena that is home to the Miami Heat. In April 2021, the county and FTX agreed to a naming rights agreement whereby FTX would pay the county $135 million spread over 19 years. In turn, FTX’s name would be placed atop and throughout the arena. In the motion, the county identifies FTX’s failure to comply with federal and state laws as a default under the naming rights agreement. For further support, the county anticipates FTX’s future default by failing to pay over $5 million owed in January 2023. Thus, Miami-Dade County seeks to terminate the agreement and mitigate its damages. Under the Bankruptcy Code, a judge can only grant relief for cause, which a judge determines on a case-by-case basis. As the county cites, “To establish cause, the party seeking relief from the stay must show that ‘the balance of hardships from not obtaining relief tips significantly in [its] favor.”’ Atlantic Marine, Inc. v. American Classic Voyages, Co. (In re American Classic Voyages, Inc.), 298 B.R. 222, 225 (D. Del. 2003); In re RNI Wind Down Corp., 348 B. R. 286, 299 (Bankr. D. Del. 2006). Here, since FTX owes millions for the remaining years, it does not appear that FTX would suffer hardship from granting relief to the county. On the other hand, the county stands to lose millions if FTX fails to pay the remaining amounts due under the agreement. Thus, the county would suffer significantly more hardship, and the bankruptcy court should grant the county’s motion. If the court grants the motion, expect the county to move quickly for a new deal. The big question is, will it be for the same amount as FTX’s deal? 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.

As reported yesterday, high-profile athletic trainer Rob McClanaghan was arrested on charges of rape and drugging for intercourse. The suspect was transported by the BPD Fugitive Unit in coordination with members of the Warwick RI Police Department into custody and will be extradited on fugitive from justice charges. As a straight warrant was issued, at a minimum a clerk magistrate had to agree that probable cause existed. Additionally, with the high threshold of the Sexual Assault Unit of the Boston Police Department, it is believed that the evidence at this juncture must be very strong. However, how are rape and drugging for intercourse defined? Under Mass Gen. Laws Rape is defined in Chapter 265 § 22(b) while the enhancement is listed in Chapter 272 § 3. rape and drugging for intercourse is defined as whoever applies, administers to, or causes to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural intercourse with such person shall be punished by imprisonment in the state prison life or for any term of years not less than 10 years. As such, if convicted, Mr. McClanaghan must serve at least ten years in prison. Usually, rape is a crime punishable by not more than twenty years, but the drugging element enhances the charge to be punishable to up to life in prison with a ten-year minimum mandatory. How might the Commonwealth prosecute this case and how might McClanaghan’s attorney(s) defend it? The Commonwealth’s Case In any victim case, the case always revolves around the victim including credibility. Rape cases are especially victim-centric because, without victim testimony, there usually would not be a case to move forward with. The victim had to provide information to law enforcement for law enforcement to believe a crime had in fact been committed. That begs the question; what kind of evidence would have been provided? First, victim testimony is paramount to the successful prosecution in a rape case. I have to think there was a rape kit performed at the hospital after the incident as well as the victim’s medical records. What kind of drug was it? Was it a date rape drug? Were there independent witnesses? With the high-profile nature of this case, the prosecution can never have too much evidence. Remember the State has to prove each and every element beyond a reasonable doubt. The defense doesn’t need to prove anything, and a lack of evidence is grounds for the Defendant being found not guilty by a jury. The Defense’s Case The defense’s case is much different. As stated previously, the defense doesn’t have to prove anything. The burden never shifts to the defense. What could the defense be? It depends. It depends on what evidence the Commonwealth has. What is the alleged drug? Is it a date rape drug? That is important information to have when preparing for the defense. That is because the attorney is unlikely going to be able to argue consent as a defense if it is a date-rape drug. No jury is going to agree with it and the criminal defense attorney would likely lose any and all credibility with a jury by simply insinuating it. However, if the alleged victim took the drug knowingly and voluntarily (whatever the drug may be), the statute isn’t violated. However, if it is another type of drug then consent does become an option. That is because the statute doesn’t “extend to a defendant who merely shared drugs or alcohol with a person who knowingly and voluntarily accepted the drugs or alcohol.” Commonwealth v. LeBlanc, 73 Mass. App. Ct. 624. The words of the statute require some forceful action or deceit or trickery on the part of the defendant that amounts to more than merely supplying drugs or alcohol to a willing individual. Id. Every individual is presumed innocent until proven guilty. That is the foundation of our criminal judicial system. However, with the Sexual Assault Unit of the Boston Police Department intimately involved, I have to think the evidence in support of guilt must be substantial, if not overwhelming. Matthew F. Tympanick, Esq. is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense, Personal Injury Law, and Sports Law. Arrested or Injured? Don’t Panic…Call Tympanick! 1(888) NOPANIC. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and a Staff Editor on the UMass Law Review. He was previously a felony prosecutor, he prosecuted thousands of misdemeanor and felony criminal cases. He has tried 41 jury and non-jury trials. He frequently appears on Law & Crime as a Legal Analyst and speaks nationally on sports law issues. You can follow him on Twitter @TympanickLaw.

On November 21, 2022, the District Court of New Jersey granted the NFL’s motion to dismiss a lawsuit originally filed in 2019 by former New York Jets’ defensive back and special teamer, Rontez Miles. According to his complaint, Miles (“Plaintiff”) suffers from an autoimmune disorder called alopecia areata. Such a condition, he claims, causes him to “experience ocular photosensitivity and photophobia and limits his ability to see well in sunlight or artificial light.” With that, for at least three seasons, Plaintiff played with a protective shield on his facemask that helped him navigate the field. That came to a halt, starting in a 2017 preseason game when an NFL equipment judge told Miles that he was not permitted to play with the shield. Miles played the game against the Detroit Lions without his protective shield — and promptly suffered a broken orbital bone of the right eye. In his complaint filed 2 years after the injury, Plaintiff alleged that, “due to the lack of protection from the stadium lights, [he] did not see an opposing player approach, and hence, was unable to take defensive maneuvers.” His causes of action included: Count 1: Violation of New Jersey’s Law Against Discrimination (“LAD”); Count 2: Violation of Section 12101 of the Americans with Disabilities Act (“ADA”) for failure to provide reasonable accommodation to Plaintiff; and Count 3: Negligence Here is where labor law encroaches on Plaintiff’s (as with so many other parties governed by a CBA) federal law claims: §301 of the Labor-Management Relations Act (“LMRA”), a provision readily accessible in the proverbial holster of the league. §301 of the LMRA preempts claims based in state law brought by union-represented employees. Miles falls squarely in that category, as he was represented by the NFLPA during the underlying cause of action. The NFL claims that Miles’s claims are preempted by Section 301 because “the allegations are inextricably intertwined with the CBA and incorporated Official Playing Rules.” Miles — like the Broncos’ Aaron Patrick — seeks to skirt the CBA. Plaintiff argued that the NFL waived application of the CBA after the league allowed him to play for at least 3 seasons utilizing a protective shield without specific approval. Therefore, Plaintiff argues, his claims do not require the court to interpret the CBA, an action that the court is preempted from doing. Collective bargaining agreements make labor law the unrivaled king in sports law. The NFL argued that the court would need to analyze the CBA and its playing rules to “determine whether the NFL had a legitimate, non-discriminatory reason for its alleged refusal to permit Plaintiff to wear the shield.” Miles argued in response that the CBA had no bearing on his claims. The court was not convinced, as it ruled in favor of the NFL on Monday, dismissing Miles’s lawsuit. The court reasoned that “[t]he CBA governs the respective rights and responsibilities of the NFL, the Clubs, the NFLPA, and the players with respect to, among other subjects, player health and safety, player attire and equipment, and the remedies and benefits available to players in the event of an injury sustained while performing services under an NFL Player Contract, including during the course of an NFL game.” With respect to Plaintiff’s claims arising under the ADA, the court held that Miles failed to first file a charge of discrimination with the Equal Employment Opportunity Commission, an administrative requirement. Thus, this claim was dismissed as well. Time and time again, we are reminded of the power the NFL Collective Bargaining Agreement holds. Miles will have to seek a remedy within the CBA, not state law. Rontez Miles last played in the NFL in 2019 (the same year he filed this lawsuit) and ended up playing in 13 games that 2017 season. All 6 of his professional years playing football were for the New York Jets, who are making headlines for some other (Zach Wilson) reason today. Jason Morrin is a law clerk (pending admission to the NY Bar) at Zumpano, Patricios & Popok LLP in New York, a firm dedicated to litigation and business counseling including in the areas of sports, gaming and entertainment. He graduated cum laude from Hofstra Law School where he was president of the Sports and Entertainment Law Society. His reporting for Conduct Detrimental has been cited by ESPN, The New York Post, USA Today, and more.

Two days ago, New York Governor, Kathy Hochul, signed into immediate effect the “New York Collegiate Athletic Participation Compensation Act” (S.5891F)[1]. This legislation gives student-athletes in New York the ability to be compensated for the use of their Name, Image, and Likeness. This bill, introduced by Senators Parker, Bailey, and Jackson in late March 2021, was expected to be effective in January 2025. New York becomes the 32nd state to propose and enact a Collegiate Name, Image, and Likeness Bill since the NCAA started allowing amateur athletes to profit from their NIL in July of 2021. The New York bill is similar to other state NIL legislations, including provisions such as “no athletic association, conference, or other groups shall prevent student-athletes from earning compensation from the use of the athlete’s name, image, or likeness,” and “an athletic association, conference, or other groups shall not prevent student-athletes from obtaining professional representation in relation to name, image, or likeness contracts or legal matters….” Provisions of the bill also restrict students from entering into contracts with brands that are similar to or compete with school partnerships or with brands that the school is already partnered with. Additionally, students cannot formulate deals that conflict with their responsibilities and time commitments as student-athletes. There are two provisions of note included in New York’s NIL bill. 1. Requiring any professional representation obtained by a student-athlete to be registered pursuant to article thirty-nine-E of the general business law[2] or to be a licensed attorney. And arguably, more importantly – 2. a provision requiring any student-athlete who enters into a NIL contract to disclose the contract to the designated college official IN ADVANCE of the contract being executed. Currently, only Pennsylvania, South Carolina, Virginia, Illinois, and Michigan have provisions similar to this one. Other states require students to disclose their deals to their respective colleges but do not specify when the contract must be disclosed by. This provision in combination with the state’s requirements to provide financial literacy training will be a great preventative measure working to protect student-athletes from signing predatory contracts. As of August 2022, at least “450,000 student-athletes across the United States entered into NIL deals by partnering with businesses and promotions.”[3] That is 450,000 students who went from having no ability to profit from their NIL in 2021, to signing some sort of contract to be compensated for the use of their rights with little to no contractual or financial training. New York requiring student-athletes to disclose potential NIL contracts to a college compliance official prior to signing will help make sure the deals they are making are legit and follow both state and school regulations. However, it is also interesting to note that the New York bill does not say anything about contract duration extending beyond the student’s participation in an athletic program at a postsecondary educational institution. One of the initial concerns revolving around NIL rights was companies structuring their contracts so that if a college athlete becomes professional the company will receive cheap endorsement or might even take a cut of any subsequent contracts the athlete signs. It is so important that student-athletes and their guardians are educated on the dangers of signing some of these contracts and the full weight of what “legally binding” can mean. Thankfully, more and more schools are starting to provide NIL contract education and financial literacy training for their student-athletes. States like Texas and Florida require this training to be completed at the start of the athletes’ first and third years of eligibility. Prior to the NCAA’s “change of heart” in 2021, prohibiting students from receiving payment for competing and working for the school was often regarded as unfair and exploitative. Student-athletes take significant risks to benefit their colleges and were not allowed to be compensated for those risks beyond scholarships. Which was often below their cost of living and far below the revenue they produced for the school.[4] The passage of the New York bill will open the door for so many athletes who might not have had the ability or resources to make ends meet solely relying on scholarships to close that gap. Assemblymember Michaelle Solages said, “Today, we stand with student-athletes, former student-athletes, their families, and legislators in taking a giant step in the right direction for our student-athletes.” Holly A. Summers is a 2L at New York Law School and a Junior Staff Editor for the New York Law School Law Review. Sources: [1] https://www.nysenate.gov/legislation/bills/2021/S5891?intent=support [2] https://law.justia.com/codes/new-york/2015/gbs/article-39-e - Requires that athlete agents register with the State of New York. [3]https://en.as.com/ncaa/how-much-money-can-college-athletes-make-with-nil-marketing-endorsement-deals-n/ [4]https://www.governor.ny.gov/news/governor-hochul-signs-legislation-allow-collegiate-student-athletes-receive-compensation