As of right now, student-athletes in the NCAA are not considered employees. Many argue that should change. This is a hunch, but there is a chance student-athletes will make the jump to employees in a manner very similar to the one where they became allowed to be compensated for their name, image, and likeness. How We Got to NIL Rights: On September 30, 2019, California passed Senate Bill 206 which allowed NCAA athletes to be compensated for their NIL. The bill was to take effect on January 1, 2023. Then numerous other states passed very similar legislation that would allow athletes compensation for their NIL. This put some pressure on the NCAA, which at the time was the only reason athletes were not allowed to make money on their NIL. When these bills would take effect, the NCAA would then violate state law. However, at the time none of them were in effect. Then on June 21, 2021, the Alston decision by the Supreme Court came out. The case consisted of athletes alleging that the NCAA had violated antitrust laws by restricting non-cash education-related benefits. Judge Wilken of the Ninth Circuit ruled against the NCAA and found that athletes could receive benefits beyond the previously-established full scholarships rule. The NCAA could not prevent athletes from receiving post-eligibility scholarships to complete undergraduate or graduate degrees. Wilken also established that the conferences within the NCAA could set other allowances. However, the NCAA could still limit cash or cash-equivalent awards for academic purposes, so there is no pay-for-play. The Supreme Court affirmed Wilkens decision and found against the NCAA. The Supreme Court however, did not attempt to make any judgment on whether student-athletes should receive further pay. [1] The Supreme Court did not make the NCAA take away their restriction of NIL rights for college athletes, but they showed that the NCAA was restricting the athletes too much by only allowing a full scholarship. This gave further momentum, along with those states passing NIL laws to student-athletes getting the right to their NIL. Then on June 30, 2021, just 9 days after the Supreme Court’s ruling, the NCAA approved the new interim NIL policy allowing student-athletes to be compensated for their name, image, and likeness. Now Further Compensation for Athletes? If history were to repeat itself, we might see a very similar situation that results in student-athletes being paid part of the revenue generated by their team. On January 19th, 2023 California lawmaker Chris Holden proposed a bill labeled the College Athlete Protection Act that would require schools with major revenue-generating sports to create a fund that would pay the players a share of their teams’ annual revenue. The formula designed to create fair market value compensation for the athletes would be giving them half of the team's revenue either through grant-in-aid scholarship dollars or in revenue-sharing payments, after deducting what the team spent on scholarships. For example, if the San Diego State basketball team generates roughly $6 million in revenue and spends roughly $500,000 on scholarships for its players, the school would have to set aside $2.5 million at the end of the year for the players. Players could receive up to $25,000 in annual payments at the end of their season and any additional money would be held in a trust until they graduate. The bill also creates regulation about a 21-member state-run panel that regulates how schools give resources to protecting and educating their activities. Other areas of emphasis in the bill include: return to play, guaranteed scholarships, and restricting schools from cutting varsity programs if the athletic director makes more than $500,000 a year. [2] The proposed bill does make it clear that athletes would not be considered employees. [3] Employment Status: On February 8, 2022, the National College Players Association (NCPA) filed a charge with the National Labor Relations Board (NLRB) claiming that the NCAA, Pac 12, and USC unlawfully violated the employee rights of college football and basketball players under the National Labor Relations Act. The NCPA complained that for the past 6 months, the employers have interfered with, restrained, and coerced its employees… by repeatedly misclassifying employees as “student-athlete’ non-employees.” The NLRB has agreed to bring the charge against the NCAA, Pac-12, and USC. If a settlement is not reached the case will be heard by an administrative law judge. That decision would then likely be appealed to a five-person National Labor Relations Board in DC (which currently has a 3-2 Democratic majority), and then that decision could be appealed to a US District Court or even the US Supreme Court. If the NCPA were to win the case, student-athletes would be classified as employees and would be given all the rights of employees and must be paid to play. [4] Getting to the Deja Vu: It takes a stretch, but if you look at these scenarios from a broad perspective we see that NIL rights came about because California passed a law, other states passed similar laws, the US judicial system heard a case that somewhat had to do with what the laws revolved around, and it leads to the NCAA giving the states what they wanted. Now, we have California’s proposed law and a potential case that could be heard by the US judicial system. I do not mean to say that athletes are going to be classified as employees, I just intend to show the similar characteristics that lead to the NCAA’s hand being forced. Multiple factors will come into play when determining if student-athletes will be paid for their play; whether the California bill passed, other state legislation, any federal legislation, the result of the NCPA lawsuit, and the mindset of the new NCAA President Charlie Baker. The moral of the story is we are getting closer and closer to athletes being paid for the services they are providing for the schools. A big question might be, will the NCAA create its regulation concerning it, or are they once again going to wait for their hand to be forced? Written by Logan Hughes, a second-year law student at Ohio Northern University. Twitter: @loganchughes23 Linkedin: Logan Hughes. Sources: [1] 135 Harv. L. Rev. 471 (2021) [2] Dan Murphy, “New California bill pushes for college sports revenue sharing”, espn.com, Jan 19, 2023, https://www.espn.com/college- sports/story/_/id/35483573/new-california-bill-pushes-college-sports-revenu e-sharing. [3] Id. [4] Michael McCann, “NCAA, PAC-12 Accused of Athlete Labor Violations in New Filing”, sportico.com, Feb 8, 2022, https://www.sportico.com/leagues/college-sports/2022/ncaa-pac-12-ucla-and-usc-1234660311/.

The NCAA has circulated a memorandum to its Division I member schools that includes a standard of review for violations related to NIL activities (H/T to @WinterSportLaw who tweeted the memo). The memorandum also lists several factors for determining whether an NIL violation has occurred and provides additional information on the related infractions process. Standard of Review The memorandum states that when available information supports that the behaviors leading up to, surrounding, and/or related to an NIL agreement or activity were contrary to NCAA Division I legislation and/or the interim NIL policy, the NCAA’s enforcement staff and Division I Committee on Infractions shall presume a violation occurred. Once it is presumed an NIL violation has occurred, the burden then shifts to the institution to “clearly demonstrate” that all behaviors complied with NCAA legislation and the interim policy. The standard of review and burden-shifting analysis included in the memorandum is essentially a reiteration of statements in the NCAA’s press release announcing updated NIL guidance for institutions in October 2022: Factors for Determining NIL Violations The memorandum also outlined several factors for determining whether an NIL violation has occurred, including, but not limited to, impermissible contacts, offers, and benefits. Impermissible Contacts. An impermissible contact is deemed to occur when an institutional staff member directly or indirectly contacts a prospect who is not in the NCAA Transfer Portal to discuss NIL opportunities. An impermissible contact is also deemed to occur when a representative of the institution’s athletic interests (e.g., booster, collective) contacts a prospect or their family about potential NIL opportunities before the prospect signs with an institution. Impermissible Offers. The memorandum provides several examples of impermissible offers: 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 (i.e., city, ZIP code) 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. Impermissible Benefits. An impermissible benefit is deemed to occur when 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. Infractions Process The memorandum concludes by discussing the infractions process for a potential NIL violation. The memorandum discusses how the NCAA’s enforcement staff has the authority to conduct either a (1) limited/expedited investigation or (2) issue a Letter of Inquiry (“LOI”) to an institution. After reviewing the information obtained through the investigation and/or the institution’s responses to an LOI, the enforcement staff will allege an NIL violation unless it concludes that the institution rebuts the presumption that a violation has occurred. If the institution agrees a violation has occurred, the institution and enforcement staff may submit a summary disposition or negotiated resolution for approval by the Committee on Infractions. If the institution and enforcement do not agree as to whether a violation has occurred, the case will proceed to a contested hearing Key Takeaway The NCAA’s memorandum is intended to crack down on the use of NIL payments as recruiting inducements or disguised “pay-for-play” deals. However, the NCAA has yet to actually enforce its NIL rules. Coaches and administrators have been calling for the NCAA to enforce its rules for months as boosters and collectives continue to commit recruiting violations and use the guise of NIL to lure top high-school recruits and target players in the Transfer Portal through “pay-for-play” deals. But, this new memorandum may be a warning sign for institutions and collectives to get their act together as the standard of review places a heavy burden on institutions to clearly demonstrate that all behaviors with respect to an NIL agreement or activity complied with NCAA rules. 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 and LinkedIn.

The effect a “contract year” has on an athlete is undoubtedly an interesting phenomenon to observe. Whether it’s an MLB, NFL, NBA, or NHL player, the stakes involved for a player’s performance entering free agency are through the roof. Even as smart as today’s front offices are in their holistic evaluations, the recency bias of seeing an athlete succeed or fail could mean the difference of tens of millions. A prime example on the positive side is Aaron Judge. In 2022, Judge was in his last year of club control with the Yankees. He proceeded to break the AL single-season homerun record and inked a $360 Million deal as a result. For a player who’d battled injuries over the course of his career before 2022, if Judge failed to stay healthy and perform in his contract year, he would’ve settled for far less than that this winter. On the flip side, Joey Gallo was also in a contract year in 2022. In the summer of 2021, Gallo was rumored to be negotiating with the Texas Rangers on a potential nine-figure contract to stay in Texas. The talks fell through, and Gallo was eventually traded to the Yankees (later to the Dodgers), where he struggled mightily over the next year and a half. Once positioned to a lucrative $100 Million deal, Gallo was forced to take a 1-year/$11 million deal with the Minnesota Twins. So that’s professional sports. But what about college football? Obviously, college athletes (for the time being) don’t have contracts with their schools, so our attention will be on the coaches. In evaluating the landscape of college football coaching contracts, something really stood out: today’s coaches rarely even get to the point where their deal expires. Why is this the case? While acknowledging that every situation is unique, the contract status for a coach can often be described in one of two ways. The first is if the coach is succeeding and the second is if the coach isn’t. Hitting on the positive side first, if a coach has a successful season or collection of seasons, athletic directors, university presidents, and boosters are immediately pressured to do whatever it takes to keep that coach at their school. Whether it be another school or the NFL, the fear of losing a successful coach often leads to schools shelling out lucrative extensions. Even if a coach isn’t a real candidate for another job, the magnificent work of agents to push rumors into the public sphere can give coaches tremendous leverage at the negotiating table. Whether or not these long-term extensions are wise investments is certainly unknown. In looking at Nick Saban’s pay over the years, there’s no question the seven-time national championship coach has been worth every penny to the University of Alabama. But for Jimbo Fisher and Mel Tucker, there’s certainly some early trepidation on whether their schools acted too soon. However, it’s worth mentioning that hindsight is always 20/20, and the 10-year/$100 million deal is the market for the perceived elite coaches today. Without the extension at Michigan State, would Mel Tucker have taken the LSU job? Who knows? But Michigan State, like many other schools today, wasn’t willing to take that chance. The other reason why coaches rarely get too close to a contract year is quite simple: They get fired well before their contract expires. I’ve written extensively for the site about how coaches are getting fired sooner and sooner into their tenures over the past few years, and I really don’t expect that trend to cease. If a coach doesn’t have success on the field or on the recruiting trail within two years, the pressure to get a new coach in that will is through the roof, especially at big programs. Paying a buyout is undoubtedly a tough pill to swallow for a school’s power brokers. But when pressed to make that decision, they aren’t asking whether or not they can afford to pay their fired coach, they’re asking if they can afford not to. In total, of the 69 power conference schools (including Notre Dame), 65 have either fired or extended a coach over the past two calendar years. Some, including Washington and Texas Tech have done both. Simply put, when it comes to coaches’ contracts in today’s college football, a coach either gets fired or gets extended within months on the job. There’s no in-between. Below is a conference-by-conference look at the contract status of each coach. *Denotes private institutions. Private institutions are not required to release contract terms, but in many cases, they do Although not included in the charts, the Group of 5 data is similar. Whether or not we see this trend reverse or scale back is yet to be determined. But as conferences continue to sign lucrative media rights deals, it’s clear that big-time programs aren’t pressing for money. Sure, in a day where the players start getting paid directly by the schools like employees, this may change. But for now, the money must go somewhere. A significant portion of it is going to extensions or buyouts for coaches. Brendan can be found on Twitter @_bbell5

On January 5, 2023, the Federal Trade Commission (“FTC”) proposed a new rule that would ban employers from imposing non-competes on their workers. Under the rule, a non-compete clause means “a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.” If the rule becomes law, it could have huge implications for workers in all industries – including college athletics. Although the use of traditional non-competes in employment agreements between universities and college football coaches is not widespread, they do exist. The University of Arkansas Razorbacks’ employment agreement with head football coach Scot Pittman contains a non-compete that prohibits Pittman from seeking or accepting a head coaching or assistant position at any other Southeastern Conference (“SEC”) school for the duration of the contract unless he is fired without cause.[1] The University’s employment agreements with its former head football coaches Bobby Petrino[2] and Bret Bielema[3] similarly barred them from coaching other football teams in the SEC. In addition to non-competes, universities include other types of clauses in college football coach agreements designed to restrict competitive activity such as: non-disclosure covenants, non-solicitation covenants, consent to interview clauses, and liquidated damage provisions. So, the question arises, are non-competes and other restrictive covenants in college football coach agreements subject to this proposed ban? The answer appears to be yes as to non-competes. The FTC’s rule is a broad-based ban on the use of non-competes in the employment context. The rule makes no exception for high-level employees or employees with access to trade secrets or highly sensitive information. Thus, it would apply to almost all workers – including coaches. The only exception is for non-competes with the seller of a business. Notably, there are aspects of the FTC’s rule that could impact the enforceability of other types of clauses, such as liquidated damages. To better understand the implications of the FTC’s rule, it is helpful to explain the origin of the rule and its scope. How Did We Get Here? Arguably, a sub sandwich. In 2014, non-competes drew national attention when sub-sandwich chain Jimmy John’s imposed non-compete covenants on its sandwich makers. Jimmy John’s stopped its use of non-competes after it was sued by the Illinois and New York Attorney General’s offices. Nonetheless, the controversy heightened hostility towards non-competes and led to Federal legislation being introduced in Congress.[4] None of the legislation, however, garnered sufficient bipartisan support. Because legislation never caught traction, in 2016 the Obama White House called on state policymakers to take action to reduce its perceived misuse of non-compete agreements. Specifically, the White House’s “Call to Action” encouraged states to impose at least one of the following actions: Ban non-compete clauses for categories of workers, such as workers under a certain wage threshold; workers in certain occupations that promote public health and safety; workers who are unlikely to possess trade secrets; or those who may suffer undue adverse impacts from non-competes, such as workers laid-off or terminated without cause. Improve transparency and fairness of non-compete agreements by, for example, disallowing non-competes unless they are proposed before a job offer or significant promotion has been accepted (because an applicant who has accepted an offer and declined other positions may have less bargaining power); providing consideration over and above continued employment for workers who sign non-compete agreements; or encouraging employers to better inform workers about the law in their state and the existence of non-competes in contracts and how they work. Incentivize employers to write enforceable contracts, and encourage the elimination of unenforceable provisions by, for example, promoting the use of the “red pencil doctrine,” which renders contracts with unenforceable provisions void in their entirety. In 2018 and 2020 the Federal Trade Commission (“FTC”) held full-day workshops on non-competes to determine whether there is a legal and empirical basis to promulgate a rule curbing or banning non-competes. Then, in 2021, making good on his campaign promises, President Biden issued an Executive Order that encouraged the FTC to take unspecified action against unfair non-competes and other agreements limiting employee mobility. In response, the FTC first issued its Strategic Plan for Fiscal years 2022-2026 that included express references to non-competes. Now, nearly eighteen months after the Executive Order, the FTC has published its proposed rule banning non-competes. Surprisingly, the scope of the proposed rule would bar non-competes for almost all workers, exceeding the Obama Call to Action that encouraged limits on only certain workers, such as low-wage earners. Does the New Rule Apply to Other Restrictive Covenants, such as Non-disclosures, Customer Non-solicits, and Non-recruitment Covenants? The exact scope of the rule is not clear yet. In addition to banning non-competes, the rule prohibits “de facto” non-competes or contractual provisions which prevent or have the effect of preventing an employee from working elsewhere after his/her employment ends. The rule provides the following examples of de facto non-competes: Non-disclosure agreements which are so broad that they prevent an employee from working in the same field elsewhere; and Training repayment provisions which require the worker to repay training costs if the worker leaves within a certain time period and if the obligations are not reasonably related to the costs the employer incurred in training the worker. These examples suggest that narrowly tailored customer non-solicits, non-recruits, and nondisclosures will not be impacted by the ban. Whether other types of clauses contained in coach agreements, such as liquidated damage clauses, will be deemed de facto non-competes and covered by the rule is unclear. What are Liquidated Damage Clauses and Why Could they be Barred by the FTC’s Rule? Liquidated damage clauses are common in college football coach agreements. These clauses permit the coach to terminate the employment agreement early without cause but render the coach liable to the university for an amount specified in the contract which is denominated and agreed to as liquidated damages. By example, the agreement between the University of Georgia and its head football Coach Kirby Smart contains a liquidated damage clause. Specifically, the Agreement provides that if Coach Smart were to resign prior to the end of the term he would owe the school $5 million if it were to happen between the 2022 and 2025 seasons. The liquidated damage amount decreases over the course of the contract, dropping to $4 million for the 2026 and 2027 seasons, $3 million for the 2028 season, $2 million for the 2029 season, and $1 million for the 2030 and 2031 seasons.[5] The Ohio State University’s agreement with its head football coach Ryan Day was extended in 2022 and contains a similar liquidated damage clause with varying sums of money based on how far into the contract’s term Day’s termination occurs as follows: Prior to Jan. 31, 2023: $5 million, 2024: $4.5 million, 2025: $4 million, 2026: $3 million, 2027: $2 million, 2028: $1 million, 2029: $750,000.[6] Historically, liquidated damage clauses have not been considered as non-competes in the eyes of the courts or subjected to the same degree of scrutiny as non-competes. However, the FTC’s rule applies to contractual provisions which prevent or have the effect of preventing an employee from working elsewhere after his/her employment ends. The FTC’s disdain for non-competes coupled by its recent enforcement actions suggests that it could view hefty-liquidated damage clauses as de-facto non-competes or provisions that have the effect of preventing coaches from leaving one program to coach another. At the very least, liquidated damage clauses for assistant and position coaches could be at risk if they appear so high as to deter free mobility. Recent activity by the FTC supports such an aggressive approach. The FTC released the proposed rule a day after it settled complaints alleging that three companies and two individuals violated § 5 of the FTC Act by imposing and enforcing anticompetitive employer/employee non-competes. One FTC complaint alleged that Prudential Security used individual lawsuits to enforce non-competes, which required low-wage security guards to pay a $100,000 penalty if violated.[7] The FTC seemed troubled by the liquidated damage clause. The proposed rule requires employers to rescind any existing non-competes and to notify their workers and former workers that their non-competes are no longer in effect. The deadline to do so would be within 180 days of publication of the final rule. Therefore, if the FTC took an aggressive approach and barred liquidated damage clauses, coaches would have free reign to terminate their employment agreements at any time without the university having meaningful recourse. The financial ramifications could be significant. Without contractual safeguards, universities would likely choose to pay their coaches less. In the coming years we would likely see a coaching carousel. Could the FTC’s Actions Impact College Football Players? The FTC’s proposed rule will clearly impact agreements between universities and coaches, but what about the rule’s impact on player mobility in the era of transfer portals? Currently, as “student-athletes” college football players are not protected by employment laws that apply to workers. They are also not required to sign non-compete covenants with their university. Ironically, this may change if the National Labor Relations Board (“NLRB”) is successful in its push to declare certain players employees under the National Labor Relations Act (“NLRA”). In September 2021, the employment status of athletes garnered a media frenzy when NLRB General Counsel Jennifer Abruzzo issued a memorandum expressing her position that certain collegiate athletes are employees under the National Labor Relations Act, and, as such, are afforded all statutory protections.[8] More recently, in December 2022, the NLRB announced that it is pursuing a lawsuit against the University of Southern California, the Pac-12, the NCAA by the National Players Association claiming that football and basketball players are misclassified as “student-athletes” and should be considered employees.[9] If certain college players are deemed employees under the NLRB and other laws, they would likely be treated as employees in all regards including restrictive covenants. Thus, interesting questions arise as to the implications of the FTC rule on players such as: Could college football players be bound by non-competes? Could college football players be bound by non-disclosure, non-solicitation covenants or liquidated damage provisions? If the FTC modifies its proposed rule to limit the ban to low-wage earners, would college football players who earn NIL money be considered low-wage earners? If college football players could be bound by non-competes, would universities in States where non-competes are illegal (such as California) have a recruiting advantage? Would employment status impact transfer portal rules in the future? Looking to the Future Like all rules issued by regulatory agencies, the FTC’s proposed rule will go through a “notice and comment” period. During this 60-day period, various stakeholders and members of the public may submit feedback or comments on the proposed rule. Sometime after the 60-day period, the FTC will likely issue a final version of the rule, which could differ from the language of the proposed rule. A final rule would likely not by published for several months. Is the FTC Allowed to Regulate and Ban Non-competes? The United States Supreme Court has recently reined in the authority of agencies to regulate in areas that materially impact the economy in the absence of clear congressional authorization. Once the final rule is issued, it will almost certainly be challenged as beyond the FTC’s authority.[10] In fact, FTC Commissioner Christine Wilson issued a scathing dissenting statement when the proposed rule was published. She asserted that non-compete clauses are an inappropriate subject for rulemaking and that the rule “represents a radical departure from hundreds of years of legal precedent that employs a fact-specific inquiry into whether a non-compete clause is unreasonable in duration and scope, given the business justification for the restriction.” In the months to come, expect a lot of debate and lingering uncertainty about the merits and validity of the rule. Ken Winkler is a shareholder at Berman Fink Van Horn in Atlanta, where he counsels employers and business owners on employment law and compliance, including workplace issues such as harassment (#MeToo) and discrimination; ADA, FMLA, and other employment laws governing the workplace; employment restrictions (non-competes); and employment and business litigation. Ken obtained his law degree (1993) and B.S.B.A (1990) from The Ohio State University. You can read his blog, SportsFansGuide2HR, and connect with him via LinkedIn and Twitter @kwinklerbfvlaw. Footnotes: [1] Pittman's contract holds SEC non-compete clause. Tom Murphy & Matt Jones, Pittman’s Contract Holds SEC Non-Compete Clause, Arkansas Democrat Gazette (July 25, 2020, 2:15 AM), https://www.arkansasonline.com/news/2020/jul/25/pittmans-contract-holds-sec-non-compete-clause/. [2] Jason Kirk, Bobby Petrino’s Arkansas Contract: On His Buyout and SEC West Non-Compete; Atlanta SBNATION (Dec. 9, 2010, 6:24 PM), https://atlanta.sbnation.com/georgia-bulldogs/2010/12/9/1867054/bobby-petrinos-arkansas-contract-buyout-sec-west-non-compete. [3] See First Amendment to Employment Agreement (https://htv-prod-media.s3.amazonaws.com/files/first-amendment-to-employment-agreement-fully-executed-bret-bielema-redacted-111517-1510777379.pdf). [4] Benjamin I. Fink, Employer Alert: Non-Competes are Under Attack in Certain States, Berman Fink Van Horn (Jan. 16, 2020), https://www.bfvlaw.com/employer-alert-non-competes-are-under-attack-in-certain-states-2/. [5] Thomas Neumann, Kirby Smart’s $112.5M UGA Contract Contains Massive Guarantees, Sports Illustrated (Aug. 4, 2022), https://www.si.com/college/2022/08/04/kirby-smart-uga-bulldogs-contract-guaranteed-money. [6] See Head Coach Employment Agreement (https://media.bizj.us/view/img/11501416/ryandaycontract-executed5-31-19-151677.pdf); Russell Steinberg, Ryan Day Salary, Contract & Buyout Breakdown at Ohio State, Boardroom (last updated Nov. 28, 2022), https://boardroom.tv/ryan-day-contract-salary-buyout-ohio-state/. [7] Decision and Order, Prudential Security, Inc., et al., FTC Docket No. C-XXXX, https://www.ftc.gov/system/files/ftc_gov/pdf/2210026prudentialsecurityproposedorder.pdf. [8] Office of Pub. Affairs, NLRB General Counsel Jennifer Abruzzo Issues Memo on Employee Status of Players at Academic Institutions, National Lab. Rel. Board (Sept. 29, 2021), https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status-of. [9] Dan Murphy, NLRB to Pursue Unlawful Labor Practices Against USC, Pac-12, NCAA, ESPN (Dec. 15, 2022), https://www.espn.com/college-football/story/_/id/35259868/nlrb-pursue-unlawful-labor-practices-usc-pac-12-ncaa; NLRB to Pursue Unlawful Labor Practices Against USC, Pac-12, NCAA, Conduct Detrimental (Dec. 15, 2022), https://www.conductdetrimental.com/news/nlrb-to-pursue-unlawful-labor-practices-against-usc%2C-pac-12%2C-ncaa. [10] Chelsey Cox, U.S. Chamber of Commerce Threatens to Sue the FTC Over Proposed Ban on Noncompete Clauses, CNBC (Jan. 12, 2023, 6:12 PM), https://www.cnbc.com/2023/01/12/us-chamber-of-commerce-threatens-to-sue-the-ftc-over-proposed-ban-on-noncompete-clauses.html.

If this offseason has told us anything regarding the state of the game, it’s that Major League Baseball is not struggling financially. Now that concerns about COVID-19 and a lack of labor peace are seemingly in the rear-view mirror, we’ve seen numerous teams get back to spending aggressively in free agency. In addition, MLB sold its share of BAMTech, a video streaming tech company, for a reported $900 million dollars. In short, when it comes to the almighty dollar, business is booming in baseball. However, just because revenues are at all-time highs for MLB doesn’t mean there aren’t major issues that need to be addressed for the long-term health of the game. One of those issues is baseball’s popularity and appeal to the younger generation of sports fans. According to Global Data, the average age of a baseball fan in North America is 57, a figure that should concern Rob Manfred in the commissioner’s office in New York. Over the past couple of years, we’ve seen MLB take certain measures like adding the 3-batter minimum rule and a pitch clock to speed up the pace of games. In addition, in hopes to spark a little more action and excitement, the league has increased the size of the bases to encourage more base stealing and has also banned the shift. However, perhaps the most important factor in MLB’s quest to make the game more appealing is to simply make the game more accessible to consume. This may seem obvious, but if you have any experience with MLB’s dreaded “blackouts,” you know exactly what I’m talking about. The current problem for many MLB.TV and Extra Innings subscribers are that local games are blacked out. The blackout restrictions are meant to protect local TV partners and force fans to watch the local broadcast of the game rather than using their MLB.TV or Extra Innings subscription. With many fans cutting the cord, the digital landscape is shifting more toward streaming each day. Inevitably, blackouts have been a huge source of frustration for fans. As an example, imagine you are a New York Yankees fan living in North Carolina. You pay well over $100 for an Extra Innings or MLB.TV subscription, which allows you to watch the Yankees. However, under the current arrangement, any games that the Yankees play against the Baltimore Orioles, Washington Nationals, Cincinnati Reds, and Atlanta Braves would be blacked out on subscription packages in an attempt to force fans to tune into the local broadcast. In cases where fans are streaming or don’t have access to the local broadcast, they are unable to watch the game. For a sport that is somewhat declining in popularity and failing to appeal to the younger generation, restrictions such as these do nothing but hurt the long-term health of the game. However, it looks like MLB has taken a strong step to address this issue. Last week, the league announced that it has hired longtime regional sports network executive Billy Chambers for the newly created position of EVP/Local Media. According to John Ourand of Sports Business Journal, the main issue Chambers will tackle is helping MLB take better control of their local media rights. Reportedly, one of MLB’s goals is to create a national product that would combine local rights with its Extra Innings and MLB.TV packages. According to MLB’s press release, Chambers will work closely with the 30 Clubs on the most effective means to distribute games to fans in local markets throughout the country. Additionally, he will work with Kenny Gersh, whose role at MLB centers around driving new revenue streams and business initiatives for the league, including all business aspects of the league’s sports betting strategy, fantasy baseball, the league’s direct-to-consumer media businesses, and Web 3 opportunities such as NFTs. From this, it’s apparent that MLB understands the current predicament and is working diligently to address it in the best way possible. Untangling television and media rights contracts is no small task, so it’s unreasonable to expect overnight changes. But if you’re an MLB fan, you can’t help but be somewhat encouraged by the steps the league is taking by adding Chambers to their staff. Brendan can be found on Twitter @_bbell5

The iconic chime. The players hugging the commissioner. The NFL draft is an event where athletes' dreams come true as a culmination of their hard work in the weight room and on the field has led to them almost instantly becoming millionaires. However, there is a dark side to what should be a pure beautiful moment. In 2005, Aaron Rodgers was one of six athletes invited to attend the draft. Rodgers had to sit and wait as 23 players were selected before him, including the 5 other athletes that attended the draft, before the Packers finally selected him at pick number 24. While embarrassing for Rodgers, no fault can be assigned with teams either choosing other quarterbacks or not needing to draft one being the main reasoning behind his fall in the draft. In 2016, Laremy Tunsil was projected to be the third pick of the draft. However, before the draft began, a video was posted on Twitter from Tunsil’s account which showed Tunsil wearing a mask that had what appeared to be a marijuana pipe with smoke attached to it. The video was quickly deleted but the damage had been done, causing Tunsil to fall to the 13th pick of the draft. Tunsil claimed his account was hacked, but seeing as the video was real, Tunsil could only have considered a civil suit against the hacker if the hacker was found. As of today, there has been no evidence solidifying anyone as the hacker, thus no lawsuit. Far more common than these situations is the occurrence of anonymous sources stating issues with players during the draft process. For instance, there are current reports from Todd McShay regarding the projected top 3 selection in the upcoming NFL draft Jalen Carter. McShay has been reporting that there are character concerns with the Georgia defensive tackle but has not cited any examples or individuals who have this opinion. The issue for players like Carter is that these allegations can lead to teams passing on him in the draft. Teams commit a lot of resources to each draft pick and have limited selections, so they may avoid a player for issues that do not even have a factual basis because of the value of each pick. On the other side, players lose millions of dollars for each pick they do not get chosen. Using the figures from spottrac.com, the difference between picks 1 and 2 in the 2022 draft was a contract worth $1,861,979 less. Even more shocking, the difference between pick 1 and 10 was a contract worth $18,873,693 less. The easy argument here is to point out that players like Carter will be making at least 20 million once drafted, so some may say that complaining about this is just complaining about a couple of million from someone who is already becoming a multi-millionaire. First, players come from diverse backgrounds of financial stability, and these contracts are given out on a scheduled system of payments. This means that each paycheck will be smaller and many of these players want every dollar possible to help their families or those who helped them along the way. Second, the main issue here is the morals behind it. Why should we allow unnamed “sources” to tank players’ draft stocks for no substantial reason other than creating controversy during the draft? Where a player is drafted is not just a number, but a brighter future with financial stability. Can the player take legal action through a defamation suit? The players have multiple things working against them. First, players who are good enough to be drafted will be considered public figures, who are held to a different standard in defamation lawsuits. Courts treat public figures differently as they are individuals who seek attention through the media and thus have access to said media, allowing them to better control the narrative. Further, public figures must prove that there was actual malice from the individual who made these comments about them. This is oftentimes very difficult to prove as the confidential sources who make these comments are often scouts, general managers, or teammates who could claim they are simply sharing their truthful opinion about the player and lack malice. If a player tries to meet this standard through a defamation lawsuit, confidentiality will further make the case difficult. Today, there are 49 states who have enacted shield laws. Shield laws generally require the side seeking the journalist to testify and reveal their sources to prove that the information sought is “relevant, material, and unobtainable from an alternative source.” While most likely not the most difficult bar for a player seeking information from a direct quote from a journalist's confidential source, it is another hoop to jump through. Overall, a defamation suit is unlikely to prove worthwhile as a result of the ease of denial with the source being confidential. Further, these comments could be loosely based on fact, ruining the case. For instance, in the Carter incident, the confidential source could use one minor blowup at practice as evidence of “character concerns.” Unfortunately for players like Carter, they will have to outwork these kinds of comments rather than find success within a courtroom. Dustin Pokorny is a 1L student and representative of the Sports Law Society at the University of Southern California Gould School of Law in Los Angeles. He can be found on LinkedIn at https://www.linkedin.com/in/dustin-pokorny-301459172/.

Do I have a list in my phone that highlights all of Lamar Jackson's accomplishments that I will include as fun facts throughout this article? I plead the 5th. Now that we got that out of the way, let's get into his contract status and the Ravens' three options. Introduction Lamar Jackson, Florida native and former Louisville quarterback, was the last pick (32nd) in the 2018 NFL Draft. He signed a four-year deal with the Ravens for $9,471,648 with a $4,968,471 signing bonus. Lamar has been crucial to the Baltimore Ravens' run-first offense winning an MVP in 2019 and posing a 49-21 record thus far. Fast forward to 2022, Baltimore exercised their fifth-year option to keep him one more season pushing his deal closer to $23,016,000. Thanks to Sam Hubbard's 98-yard fumble-return TD, the Ravens season has ended and Jackson is currently not under contract. ***FUN FACT 1: Lamar, at 22, is the youngest QB to ever win an MVP in the NFL. The total number is unclear. However, per Adam Schefter, Baltimore reportedly offered Jackson a contract extension worth $250 million. This offer was for six years, per Chris Mortensen, with $133 million guaranteed. Jackson would have been the second-highest-paid quarterback in terms of average money per year and guaranteed money at signing. Why deny this offer? Let's ask his agent. Jackson, who does not have an agent, seems to want the Deshaun Watson special (absent the litigation). Watson secured a $230,000,000 deal with $230,000,000 fully guaranteed from the Cleveland Browns. In addition to breaking the hearts of NFL owners into pieces, this precedent set a high bar for many future NFL QBs, like Lamar. Before the Watson deal, Russell Wilson's $245,000,000 deal ($160,000,000 fully guaranteed), was the highest fully guaranteed deal and still $70,000,000 less. This decision, like the Browns' decision, played out perfectly as the Denver Broncos finished 5-12 at the bottom of the AFC West. Going into next season, the Ravens now have three options with respect to Lamar: (1) exercise their franchise tag, (2) finalize a trade, or (3) agree to a long-term deal. 1. Franchise Tag The franchise tag window is open between Feb. 21 and Mar. 7. The Ravens can either offer a (1) exclusive or (2) non-exclusive franchise tag. The way to reconcile these two tags is that an exclusive tag is more expensive ($45 million) but allows the Ravens to control the negotiation process. A non-exclusive is more affordable ($32 million) but allows other teams to talk with Jackson. Most teams, despite the extra money, lean toward an exclusive tag so that another team cannot dictate communications with the desired player. ***FUN FACT 2: Lamar, in 50 games, is the only NFL player ever with 8000 pass yards and 3000 rush yards. The exclusive franchise tag poses a problem, per ESPN's Jamison Hensley, because the Ravens have a little over $40 million in cap space. Since the exclusive tag is projected to be around $45 million, the organization would have to make some pay cuts in order to be under the cap by Mar. 15. If the Ravens offer a franchise tag—arguably their best financial decision—Lamar could very likely sit out the 2023 season because his security is not guaranteed. Lamar's knee injury against the Broncos during Week 13 appeared to be inconsequential - Harbaugh at least made it seem that way - but he ended up missing four games and their first-round playoff exit against the Bengals. Fans, like myself, speculate that potentially would have played through the injury if the Ravens gave him his fully guaranteed deal. Since the front office did not "truss" Lamar, he decided to nurse his injury back to full health to ensure he can get the full money somewhere else, if required. Hopefully, Jackson does not consult with Le'Veon Bell, who was upset with the Steelers' franchise tag and sat out the 2018 season to protest. ***FUN FACT 3: Lamar has the most career NFL wins by a QB younger than 25. The good news is that only Kirk Cousins and Dak Prescott have been offered franchise tags in the past and both led to the QBs getting paid. Kirk left Washington to sign long term-deal with Minnesota, and Dak later signed a long-term deal with Dallas. 2. Trade (please don't) This option would definitely make some noise in the NFL because there have only been 9 trades involving MVP QBs and none have been above the age of 30. Twitter has already been having some fun photoshopping Lamar on their favorite teams. The Ravens understandably have some dubious feelings on giving Jackson a fully guaranteed deal because he missed 10 of the past 22 games. With his nature of being a mobile QB, the risk of injury is much higher than someone who is more of a pocket passer. It's impossible to say what the Ravens would be able to secure in a trade, but precedent is on their side. I mentioned how poorly both Wilson and Watson turned out, but the Seahawks (trading Wilson) and the Texans (trading Watson) got plenty in return. ***FUN FACT 4: Lamar is one of two players (Tom Brady) to have 5 touchdowns and 0 interceptions in 3 games during a season. Seattle got two first-round picks and two second-round picks for Wilson even with him being 33 at the time. Similarly, Houston got first-round picks in 2022-2024 and some other picks for Watson even pending litigation at the time. Lamar's value, at 25 and arguably at the peak of his career, is likely higher than both of these quarterbacks. 3. Long-Term Deal Contract negotiations have been going on for two seasons. Baltimore now has two months to make this long-term deal happen. Things could be seen as pointing in the right direction as the Ravens recently fired running back and tight end aficionado OC Greg Roman. John Harbaugh took this opportunity to speak highly of Lamar and note that he will be involved in the process of finding a new OC. "Lamar Jackson is our quarterback...everything we've done is based on this incredible young man." He went on further to say that "everyone wants Lamar to be in Baltimore and Lamar wants to be in Baltimore." I can confirm this statement and I speak for everyone. Thanks for stopping by, Matt Matthew Marino is a 2L at Elon University School of Law.

On Thursday, California Assembly Member Chris Holden introduced the College Athlete Protection Act (“Act”). The Act will require California colleges and universities to split annual revenue with student-athletes. Additionally, the Act is similar to the College Athlete Race and Gender Equity Act introduced last year, which ultimately failed to pass. Under the College Athlete Protection Act, California colleges and universities must establish a degree completion fund for student-athletes in revenue-generating sports, including football, men’s basketball, and women’s basketball. From the degree completion fund, colleges and universities must pay up to $25,000 per student-athlete per year, depending on the amount of revenue earned by the college or university. If the amount an athlete earns exceeds $25,000, the institution retains the funds until the student-athlete graduates. If the student-athlete does not graduate within six years of full-time enrollment, the student-athlete forfeits the funds. Importantly, the Act does not designate student-athletes as employees, institutions must comply with Title IX proportionality requirements for degree completion funds, and the portion of the Act governing degree completion funds only applies to Division I sports. Other notable parts of the Act require the development of College Athlete Protection Health and Safety Standards, which California colleges and universities will have to follow once established. Institutions will be responsible for sports-related medical expenses even after a student-athlete has left the college or university. California led the way on name, image, and likeness, which ultimately forced the National Collegiate Athletic Association (NCAA) to change its rules. Now, California is pushing to allow colleges and universities to directly pay athletes and alter the NCAA’s ban on “pay-for-play.” 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.

Major League Baseball’s Salary Arbitration Exchange Date was this past Friday, January 13th. Entering Friday, there were over 200 MLB Players who knew what team they would be playing for in 2023 but had not yet come to an agreement as to what salary they would be paid. If no settlement can be reached between the Clubs and Player representatives by the end of exchange day, both sides submit a salary figure to be decided by an arbitrator in a hearing. Although most players were able to reach a settlement with their teams, such as stars Juan Soto ($23M), Vladimir Guerrero Jr ($14.4M), Julio Urias ($14.25M), and Josh Hader ($14.1M), when the dust finally settled there were 33 players/teams who ultimately filed. The biggest differential in filing numbers belongs to Kyle Tucker v. Astros and Bo Bichette v. Blue Jays, with both Players and both teams filing at $7.5M and $5M respectively. The Tampa Bay Rays lead all MLB teams with seven hearings scheduled. Check out below to see what your favorite team has in store! Total Filings By Team: 7 Players Filing (1) Tampa Bay Rays 3 Players Filing (1) Seattle Mariners 2 Players Filing (6) Houston Astros, Los Angeles Angels, Miami Marlins, Minnesota Twins, Philadelphia Phillies, & St. Louis Cardinals 1 Player Filing (11) Arizona Diamondbacks, Atlanta Braves, Baltimore Orioles, Kansas City Royals, Los Angeles Dodgers, Milwaukee Brewers, New York Mets, New York Yankees, Pittsburgh Pirates, Toronto Blue Jays, & Washington Nationals 0 Players Filing (11) Boston Red Sox, Chicago White Sox, Chicago Cubs, Cincinnati Reds, Cleveland Guardians, Colorado Rockies, Detroit Tigers, Oakland Athletics, San Diego Padres, San Francisco Giants, & Texas Rangers Filings by Team: Filings by Differential: Dean Rosenberg is a 3L student and the President of the Sports Law Society at Benjamin N. Cardozo School of Law in New York City. He can be found on LinkedIn at https://www.linkedin.com/in/dean-rosenberg-4a1507a1/ and on Twitter @deanrosen7. For all of Dean’s Conduct Detrimental Articles, click here.

In 2022, Former New Orleans Saints head coach Sean Payton announced he was stepping away after 15 seasons leading the team, including winning Super Bowl XLIV in 2009. Since then, Payton has worked as a studio analyst for Fox. Recently, Payton has interviewed (or will interview) with multiple teams, including the Denver Broncos and Carolina Panthers, and appears to be ready to return to the sidelines. However, many fans are wondering why Payton is not free to sign with any team of his choice. Contract Explained In September 2019, the Saints and Payton announced a five-year contract extension, keeping Payton as head coach of the Saints until 2024. Payton abruptly stepped away in 2022, but even when a coach retires, the team retains the coach’s rights for the remainder of the contract term. Thus, until the coach’s contract expires, a former club (in this case, the Saints) must receive compensation for the coach’s (Payton) rights. A coach is not able to freely sign with another team. Similar rules exist for player retirements. The most recent example of a team trading for a coach is the Tampa Bay Buccaneers trading for Bruce Arians in 2019. Bruce Arians stepped away from coaching the Arizona Cardinals in 2017. After the Cardinals and Arians signed a contract extension in 2015, the Cardinals retired the rights to Arians through the 2019 season. When Arians decided to return to coaching in 2019, the Buccaneers gave the Cardinals a sixth-round pick in exchange for the coach. Payton is likely to command much more than a sixth-round pick. After leading the Saints to sixth NFC South titles, eight playoff berths, and a Super Bowl, compensation likely will include a first round pick and more. Coaches of Payton’s caliber are rarely available, but due to the Saints holding Payton’s rights, teams have more to think about than the coach’s annual salary. In the end, it may be worth it for teams looking for immediate success. 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.

It’s almost Super Bowl Sunday 2023 and Rihanna’s Savage x Fenty clothing and lingerie brand has just revealed that it will be launching a limited-edition Game Day Collection in advance of her scheduled Super Bowl half-time performance. The Game Day collection will feature seventeen pieces. The pieces include feature hoodies, sweatpants, varsity jerseys, tops, hats, beanies, boxers, and a bandana. The performance, which is scheduled to take place in Glendale, Arizona at the State Farm Stadium on Feb. 12 will also be prefaced by a three-day retail pop-up experience in Los Angeles taking place from January 27th to January 29th. At that time, consumers will have a chance to shop the Game Day collection in a store that will feature football-themed mannequin heads and goalposts which will serve as clothing racks, photo moments, and branded giveaways. Rihanna, the headliner of the Super Bowl halftime show, has consistently attracted thousands of concertgoers for past performances. Her popularity, however, could mean that she may run into ticketing issues as fans prepare for the performance by purchasing tickets to the Super Bowl or by buying merchandise from her highly anticipated collection. This issue may be largely due to counterfeit ticketing which has been widespread in sports since last year., Many fans may expect that her merchandise will sell out quickly For Fenty, who is choosing to add a layer of Super Bowl spirit by offering the collection. Because of this, Fenty’s brand may have to contend with online ticket and merchandise scalpers at various levels. The issue of ticket scalping and selling fraudulent merchandise asks the legal community to consider how we can protect consumers and brands from profiting off a brand’s value. Proponents of brand protection have cited that the only way to protect a brand is through using artificial intelligence, which includes NFTS. “NFT stands for ‘non-fungible token’. Non-fungible means that something is unique and can’t be replaced. By contrast, physical money and cryptocurrencies are fungible, which means they can be traded or exchanged for one another. Every NFT contains a digital signature which makes each one unique. NFTs are digital assets and could be photos, videos, audio files, or another digital format. NFT examples include artwork, comic books, sports collectibles, trading cards, games, and more.” A lack of NFTs has made it easier for patrons to scalp, resell, or repurchase fraudulent tickets to attend sporting events. Although NFTs have become more popular recently and brands such as Adidas and Patron have cited success while using NFTs, the issue of fraudulent ticketing during sports events will likely continue to pervade the sports industry. Fraudulent ticketing during sports events has largely resulted in delays and congestion for eager fans who often spend hundreds of dollars to attend various kinds of sporting events. The effect of fraudulent ticketing during sports events has affected athletes’ competitiveness in winning games. Last May, pandemonium ensued at the UEFA Champions League Final in Paris, with claims of fraudulent tickets causing massive delays and bottlenecks at security checkpoints. This resulted in clashes between fans and authorities. If Rihanna is seeking to launch a Game Day Collection in anticipation of her Super Bowl Sunday Half-Time performance, the singer could likely be losing thousands of dollars in merchandise, due to fraudulent purchases in addition to a possible melee due to the limited variety of merchandise being offered to consumers online. Instituting NFTs could be a viable solution to this potential issue since the technology offers complete veracity of the tickets' authenticity. It is not possible to forge NFTs since blockchains are built on top of NFTs Blockchains are systems of transactions made in cryptocurrency. Using blockchain makes cryptographic hash easier to separate. The complete history of the ticket is then recorded from the moment it is minted through the sale of the ticket and revitalization. If the Fenty brand is looking to protect its merchandise and the value of her Super Bowl half-time performance, she should also consider RFID tags for any potentially fraudulent activity that could occur in counterfeiting and pirating her merchandise. “RFID tags are a type of tracking system that uses radio frequency to search, identify, track, and communicate with items and people. Essentially, RFID tags are smart labels that can store a range of information from serial numbers to a short description, and even pages of data.” Using this system would allow consumers and the Fenty brand to protect merchandise that is likely worth a large amount of money. If Fenty chooses to implement RFIDs and NFTs, the brand’s value could increase significantly since consumers will have to verify the authenticity of the merchandise which will make it difficult to resell without any repercussions. We’d like to think that fans would rather decide the authenticity of the plays being called on the field as opposed to whether they purchased authentic limited-edition merchandise from Fenty. Introducing NFTs and RFID chips is the best cause of action to ensure that the brand remains intact as we near Super Bowl Sunday. Lauren E. Johnson is a graduate of Touro Law Center located in Central lslip, New York where she received her Juris Doctor degree. She holds a Bachelor of Arts degree in English and Political Science from St. John's University and a Master of Arts in Criminal Justice from Boston University. She is the chairwoman of the Metropolitan Black Bar Association Sports and Entertainment Law Section, and has participated in numerous initiatives to propel the fields of fashion, arts, media, sports, entertainment, and criminal justice in a new direction. Her passion for these industries is also evidenced by the many volunteer opportunities in which she has participated. Sources: https://www.kaspersky.com/resource-center/definitions/what-is-an-nft https://pagesix.com/2023/01/09/rihanna-drops-super-bowl-2023-themed-savage-x-fenty-merch/ https://identificationsystemsgroup.com/what-are-rfid-tags-and-how-are-they-used/ https://www.kaspersky.com/resource-center/definitions/what-is-cryptocurrency

At the end of December, reports began to surface that Kevin Warren was likely to leave his post as Big Ten Commissioner to become the next President/CEO of the Chicago Bears. Those reports were proven correct this past week, creating a vacancy for one of college sports most powerful positions. Where the Big Ten goes from here will undoubtedly have a drastic impact on the future of the college sports landscape. Will they hire someone from within the college athletics or higher education space? Will they take the same approach they did with Warren and look outside the industry? What role will the new hire have in addressing the issues college athletics currently faces? All these questions have massive significance. Say what you want about Kevin Warren’s three-year stint as commissioner of the Big Ten Conference, but one thing you can’t say is that it was uneventful. On one hand, he was heavily criticized for initially canceling the 2020 football season amid the COVID-19 pandemic. On the other, he acquired USC and UCLA from the Pac-12, stretching the conference’s footprint from coast to coast. Additionally, he inked a transformative media rights deal with Fox, CBS, and NBC, placing the Big Ten ahead of the SEC financially. Warren undoubtedly had a clear vision for the Big Ten, but he won’t be around to execute it and see it through. That will be the responsibility of the next hire, which makes the conference’s search extremely important Now that the media rights deal has been signed, the new commissioner’s first task will be onboarding USC and UCLA into the league in the summer of 2024. This process will be a lot harder than it seems at the surface due to the extensive nature of the Big Ten’s footprint. How the conference handles scheduling with member schools on opposite coasts will be interesting to watch. The “student-athlete experience” is something many athletic administrators reiterate, so how the conference can maximize it amid the obvious challenges will be paramount. What will generate the most conversation around this hire, however, is the new commissioner’s stance on the overarching issues in college athletics. Over the course of Kevin Warren’s tenure in the commissioner’s office, we’ve seen the advent of NIL, the Transfer Portal, and booster-led collectives. In addition, the Supreme Court’s 9-0 ruling in the Alston case opened the door for future litigation against the NCAA. Simply put, the Big Ten Commissioner job in 2023 is starkly different from what the Big Ten Commissioner job in 2020 was. Legally, the NCAA’s model built on amateurism appears to be in serious jeopardy. Between the NRLB’s recent memo to House v. NCAA to Johnson v. NCAA, the writing appears on the wall that things won’t be like they used to be in the foreseeable future. The big question now is: what can be done about it? We’ve heard many administrators plead with Congress to provide some form of antitrust protection and a Federal NIL law, but many are skeptical they will come. It’s worth noting that the NCAA recently hired former Massachusetts Governor, Charlie Baker, to take over as President. In reading the tea leaves, it’s clear his political experience played a role in the Association’s hiring process. So, the big question in the Big Ten Commissioner search is what kind of leader will the conference hire? One who is proactive and understands the inevitable reality? Or one who is beholden to the amateur model? The answer to this question likely won’t change the direction college sports are heading, but it will undoubtedly change how quickly we get there. Whether or not college athletes become full-fledged employees is unknown and will likely be determined in the courts. But one thing is clear, the amateur model where college athletes are receiving zero compensation directly from their schools or conferences appears to be on thin ice. Hopefully, the new Big Ten Commissioner recognizes this and has a strong vision for the future. It’s worth noting that the hire will be made by the member schools, so it’s really up to them to decide. At the end of the day, the Big Ten Commissioner role is one of (perhaps the most) powerful positions in all of college sports. But with great power comes great responsibility. It will be fascinating to see who ultimately gets the job. Brendan can be found on Twitter @_bbell5