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

As we approach kickoff of the first matches of the 2022 World Cup, an expected five billion viewers will watch as brand-new stadiums and the luxuries of Qatar built on the backs of forced labor are put on display. How should we, as global citizens and sports fans, handle the moral and ethical implications of consuming the World Cup this month? First, we must address the context and background of the 2022 Qatar World Cup. The concept of a Qatari World Cup has been tainted from the start. In 2010, FIFA announced its decision to award the 2018 World Cup to Russia and, surprisingly, the 2022 World Cup to Qatar. In 2011, Phaedra Almajid, a former media officer of Qatar, alleged that Qatari representatives bribed three football officials $1.5 million each to secure the country’s bid. An investigation by FIFA into their own conduct found no foul play and then-president Sepp Blatter emphasized that the bid decision was final and irreversible. In 2011, Qatar began construction on its World Cup stadiums. The government obtained laborers for this project under the Kafala system, mainly coming from Bangladesh, India, and Nepal. Kafala is a form of forced labor authorized in Lebanon, Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the UAE. Put simply, the Kafala system binds a worker to a Kafeel, or sponsor, who has full control of their contract, wages, working conditions, and immigration status. Kafala has been widely criticized as “21st-century slavery,” and in 2014 Amnesty International exposed human rights violations occurring in Qatar such as “appalling living conditions,” delayed salaries, inability to leave the country, and threats to their lives if they try to leave. Following global criticism, Qatar implemented reform laws removing exit permit requirements, setting a non-discriminatory minimum wage, and removing requirements for employer permission to change jobs. However, while these laws provide optimism for the future, they were put in place after nine years of World Cup stadium construction had already taken place. Additionally, it is difficult from the outside to perceive the strength of the enforcement of the laws. For example, the Qatari government reports that of 15,000 deaths in the country by non-citizens, less than forty were related to work or working conditions, but independent investigative reports have found the number of work-related deaths to be approximately 6,500. Further, Qatar claims that there have been zero deaths in the construction of World Cup stadiums, but critics argue this number is illegitimate. Typical construction death rates over such a long period of time are approximately 1%. In Qatar’s published reports, 69 to 80% of deaths of migrant workers have been attributed to “natural causes,” and therefore under Qatari law, no autopsies were conducted to find the true causes of death. So, how should we react? It is important we acknowledge both the history of oppression and the modern steps being taken toward progress. Qatar’s successful World Cup bid directly resulted in an influx of migrant laborers under the Kafala system, thousands of whom lost their lives. However, the Kafala system was in place long before the World Cup bidding process began and continues to propel a modern-day slavery system in many Gulf countries. Because of the global spotlight put on an oft-overlooked country with a population of fewer than three million people, real legislative progress has been made. Criticism and subsequent change did not happen overnight and came only after a decade of oppression, trafficking, and wrongful death. But the reality is that today Qatar stands at the forefront of labor reform among Lebanon and the Gulf Cooperation Council. While the sacrifice of lives in Qatar cannot be quantified or justified as “worth it” because no lives should be lost to implement these changes, we can acknowledge the positive changes to Qatari society in which the World Cup has played a role. Further, we must keep in mind that Qatar’s progressive reform and leadership do not mean it is living up to a moral human rights standard. Even since these reforms, either because of ineffective enforcement or continued governmentally authorized oppression, many laborers in Qatar are still not being treated fairly or given fundamental freedoms. Instead of taking this momentum of progress to drive further change, FIFA has urged the competing nations to “focus on football” and depoliticize the tournament. This is the exact opposite of global social accountability, and further tarnishes FIFA’s already sullied reputation, adding to the long list of corruption and controversial errors shadowing the governing body. Fortunately, many countries are pushing back by announcing plans to wear armbands in support of anti-discrimination, create a worker’s compensation fund, and wear all-black uniforms to mourn migrant worker deaths in Qatar. In addition, Fox, the official broadcast partner of the World Cup in the U.S., has agreed to “avoid coverage of Qatar’s controversial treatment of migrant workers during World Cup broadcasts.” This disappointing decision, clearly tied to revenue and likely under pressure from FIFA, severely limits the free speech rights of announcers and commentators whose platform will reach millions of potentially uninformed viewers. To combat this stifling of information flow, it is critical that other media outlets and we as viewers make a point to keep this conversation alive. The power of the internet and social media can be leveraged toward driving further progress in the wake of dismantling the Kafala system and ultimately achieving a positive social impact out of a World Cup that has historically had disastrous effects on the lives of laborers. Therefore, this month, I hope we all choose to watch the World Cup in an engaged and passionate manner, not only as fans but also in advocacy of the social and human rights implications of the tournament. Matteson Landau is a JD Candidate (Class of 2024) at Pepperdine University Sources: https://frontofficesports.com/fifa-expects-5b-viewers-for-qatar-world-cup/ https://www.theguardian.com/football/2014/dec/16/whistleblower-phaedra-almajid-hits-back-fifa-confidentiality-complaint https://pulitzercenter.org/stories/thousands-migrant-workers-died-qatars-extreme-heat-world-cup-forced-reckoning https://cirs.qatar.georgetown.edu/kafala-labor-system-reform-and-the-2022-world-cup/ https://www.amnesty.org/en/latest/campaigns/2016/03/qatar-world-cup-of-shame/ https://uniglobalunion.org/news/qatars-new-labour-reform-key-to-dismantle-the-kafala-system/ https://www.espn.com/soccer/fifa-world-cup/story/4782322/world-cup-worker-died-qatar-suffering-to-survive-e60 https://www.espn.com/soccer/fifa-world-cup/story/4790519/fifa-on-qatar-world-cup-nations-told-to-stick-to-footballnot-politics https://abcnews.go.com/Entertainment/wireStory/fox-avoid-world-cup-off-field-controversy-qatar-91475419

Currently, Braves Holdings, LLC is publicly traded under the broader umbrella of The Liberty Braves Group (NASDAQ: BATRA, BATRK). Liberty Media Corporation has announced a split-off of Braves Holdings, LLC (owner/operator of the Atlanta Braves) and the connected real estate development, The Battery Atlanta, from Liberty Media Corporation. The new company will be called Atlanta Braves Holdings, Inc. Unusual in baseball, publicly traded teams give us a peak into the massive profits professional franchises earn. The Braves release an earnings report each season. In 2021, the Braves enjoyed a $104 million profit. The Braves are not the only team that releases an earnings report. The Toronto Blue Jays release an earnings report since Rogers Communication, inc. (NASDAQ: RCI) owns the team. The earnings reports produced by the Braves and Blue Jays, which show millions in profit, contradict Commissioner Rob Manfred’s assertion that owning a franchise is less profitable than buying stocks. Since all other teams are privately owned, they do not release their earnings. Additionally, Major League Baseball passed a rule preventing new franchises from going public (Major League Baseball excluded the Braves and Blue Jays) since Major League Baseball rules require having a controlling owner with ultimate authority and responsibility for team decisions. Tax advantages are additional incentives for privately owned teams. As detailed by ProPublica, a provision in the tax code allows owners to deduct the sale price against their income during ensuing years since owners are purchasing assets that depreciate over time. Thus, even when franchises are profitable (and often are), owners can utilize the tax code to save on taxes. The Braves split-off must be approved by Major League Baseball. If it happens, the Braves will utilize the market boost in financing to invest in salaries, Truist Park, and the Battery, which is exciting for the team and fans alike since almost all other Major League Baseball franchises are privately-owned. 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.

This past Saturday at UFC 281 in Madison Square Garden, Israel Adesanya squared off against former kickboxing foe Alex Pereira. Adesanya was attempting to avenge two of his five losses during his illustrious 75-5 kickboxing career as well as his only knockout defeat. But how did these two former kickboxers find themselves rematching in a different sport at the most famous arena in the world? Both Adesanya and Pereira began their careers as kickboxers respectively from New Zealand and Brazil. The two fighters began tallying up wins and knockouts until they were finally matched to fight one another. The first fight between the two took place in China in 2016 where Pereira, somewhat shockingly was declared the winner by decision. In their second bout, which took place only one year later in Pereira’s home country of Brazil, Pereira became the first person to ever knockout Adesanya with his famous left hook. Pereira would finish his kickboxing career with a 33-7 record, winning Glory kickboxing championship belts across multiple weight divisions. This is where Pereira earned the nickname “Poatan” which translates to hands of stone. Following this knockout loss to Pereira, Adesanya decided to make a change in his career and attempt to fight in the UFC. UFC is different than kickboxing as it includes mixed martial arts and wrestling. The differences in fighting styles and lack of wrestling skills that Adesanya possessed from his kickboxing career left his future in fighting and in particular the UFC in question. Would Adesanya’s fight style of being an unorthodox elite striker work or allow him to flourish in the UFC? Well, it did, and “The Last Stylebender” (Adesanya’s nickname) went from making his UFC debut against Rob Wilkinson to fighting Kelvin Gastelum for the interim middleweight title in just 426 days. Less than 100 days later, Adesanya was triumphant as the undisputed UFC middleweight champion of the world. Prior to UFC 281, Adesanya held a ridiculous 23-1 record in the UFC with his only loss coming to Jan Blachowicz when Adesanya tried to move up a weight class and become the fourth UFC fighter to hold championship belts across multiple divisions. The only other four fighters to accomplish the feat of being a double champion were the famous Connor McGregor, Daniel Cormier, Amanda Nunez, and Henry Cejudo. However, lurking in the shadows was Pereira, the man who defeated Adesanya kickboxing not once but twice. Pereira decided like Adesanya to make the jump to the UFC and made his debut in November 2021. And like Adesanya, Pereira’s fighting style would be questioned as he was a kickboxer with elite striking abilities and not a grappler or a wrestler. However, just like his former foe Adesanya, his fighting style flourished in the UFC, and in just 371 days, he was given the chance to fight Adesanya once again, but this time for the UFC middleweight title. This past weekend, on November 12, at UFC 281 Pereira and Adesanya squared off in the main event of the evening in what was touted as one of the most anticipated fights of the year. As someone who was personally at this event, I can tell you this fight along with the rest of the fight card absolutely lived up to the hype. In fact, there were seven first-round finishes which tied a UFC record. UFC 281 was also the 2nd highest-grossing event in Madison Square Garden all-time, behind only another UFC event. Through the first four rounds, it seemed as if Pereira had almost no chance. In fact, the scorecard of all three judges had scored the contest 39-37 (in favor of Adesanya) and Adesanya’s live odds of winning the fight were -1300, meaning a bettor would have to risk $1,300 to win just $100. However, Pereira’s corner told him what he had to do in the fifth round to win the fight and the rest was history. Pereira started teeing off on Adesanya throwing a flurry of punches and kicks and in the final round of the fight, Pereira secured a TKO win with his signature left hook. The same left hook he used to previously knockout Adesanya back in 2017. And just like that Pereira became the new UFC middleweight champion of the world. Now, just days after losing the UFC middleweight title and the opportunity to avenge kickboxing losses against his biggest rival, Adesanya faces another troubling opponent: the law. On Wednesday, November 16, just four days after the most crushing loss of Adesanya’s career, he was arrested at JFK Airport for criminal possession of a weapon. Adesanya had brass knuckles while going through a TSA screening near the American Airlines terminal around 2 pm. It is unclear whether or not Adesanya was carrying the brass knuckles, or if they were stored in his carry-on bag, however, carrying brass knuckles is a class A misdemeanor according to the state of New York. Under New York Penal Law § 265.01(1), certain objects are automatically considered weapons regardless of whether or not you had the intent to use that object unlawfully against another person. Therefore, one could be arrested for being in possession of “metal knuckles” or brass knuckles. Supposedly, Adesanya threw away the brass knuckles and cooperated with the authorities. Adesanya’s manager responded to his arrest stating, “Israel was handed a gift by a fan, which he put in his luggage. He complied accordingly, the matter was dismissed, and he is on his way home.” However, there have been no statements made as to whether Adesanya was issued a Desk Appearance Ticket (“DAT”) which means he may have to return to New York for a criminal court case. Receiving a DAT is an alternative to forcing Adesanya to “go through the system” being processed and potentially spending some time in jail. Why does any of this matter? If Adesanya received a DAT, the first issue is that Israel Adesanya isn’t a United States citizen. He is only a citizen of his home country New Zealand. Secondly, Adesanya would likely have to hire an attorney to make an appearance for him in the state of New York because he returned to New Zealand. Finally, the judge could decide that either Adesanya needs to make an appearance, which is rare, or that Adesanya’s attorney may have to take a plea deal. Again, we are unsure if Adesanya did in fact receive a DAT because the only people who know about receiving one are Adesanya himself, likely his manager, and the police department. However, if he did receive one, which seems likely since he continued his travels home to New Zealand, we may see an attorney come forward and represent him sometime soon. Based on the reports and information available to the public, it looks like this was just a simple misunderstanding between Adesanya, his manager, and the law. However, according to the law, Adesanya didn’t need to have any intent (mens rea) to use the object, and therefore, Adesanya still violated the law. Adesanya will likely not serve anywhere near the maximum sentence of 1 year in jail or three years probation that results in committing a class A misdemeanor in New York, but Adesanya will likely have to pay some sort of fine. So, for those UFC fans, this will likely not cause a delay in a potential 4th fight between Adesanya and Pereira. Maxwell Popkin was born and raised in Boca Raton, Florida. He went to the University of Florida and graduated in 2016 with a Degree in Bachelor of Science in Business Administration-Management. He's currently a 2L at New York Law School and is involved in the Sports Law Society Club and had the pleasure of taking Dan Lust's Sports Law Class last semester. He can be reached on LinkedIn at https://www.linkedin.com/in/maxwell-popkin/.

This article was originally published on the https://ublawsportsforum.com/ Before the 2021/22 MLB regular season, both the owners and the union went through a lengthy collective bargaining negotiation. A key aspect of these negotiations was to encourage teams to promote their top prospects, or to ensure certain players secured a full year of service time, regardless of their actual games played. The goal of this was to eliminate service time manipulation by teams. Service time manipulation is when teams keep their top prospects in the minor leagues for more than 171 days to secure the team a guaranteed seventh year of control over that player. An encouraging sign that the incentive in the new CBA was positively impactful in some way is Orioles star catcher, Adley Rutschmann. Rutschmann finished runner-up in this year’s American League Rookie of the Year race. In prior seasons, this would be nothing but a disappointing second-place finish, but with the “prospect promotion incentive” Rutschmann earns a full year of service time for the 2022 season.[1] What this incentive spells out is that any prospect with less than 60 days of MLB service coming into this season who placed on at least two preseasons top Top 100 prospect lists at Baseball America, ESPN or MLB Pipeline now receives a full year of service time if they can finish the top two in Rookie of the Year voting.[2] This is beneficial for Rutschmann, and any future player that finds themselves in that position because it expedites his path to salary arbitration and free agency by a year. Although this clearly benefits players like Adley Rutschmann, Julio Rodriguez, Michael Harris II, and Spencer Strider, it is unclear whether the new prospect promotion policy is disincentivizing service time manipulation as a whole. One thing that is now clear to teams is that if they have confidence a prospect is a legitimate contender for Rookie of the Year, then there is no point for a team not to have that player on the big league roster on day one of the regular season. In turn, teams are incentivized to be more competitive from the start of the season. In some of the games, young and rising stars will get their turn at salary arbitration and free agency sooner than in years past and fans will get to see their favorite team’s best prospects much sooner. The “prospect promotion incentive” on its face is a positive implementation of the 2022 CBA and something that fans and players were desperately hoping for. At the outset, it seems as though it was successful in the year of its inception because of big-name players like the ones mentioned above accruing a full year of service time for their performances. However, it is hard to really determine if this new policy is protecting a majority of the game’s top prospects, or just the best of the best. In the coming years, this will be something noteworthy to follow to see if this could again be a talking point when the league and the union sit at the bargaining table in 2026. 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. Sources: [1]https://www.mlbtraderumors.com/2022/11/adley-rutschman-earns-full-service-year-with-rookie-of-the-year-runner-up.html [2] Id.

On Tuesday, multiple plaintiffs filed a class action complaint in the District Court for the Southern District of Florida against FTX entities, Sam Bankman-Fried (former Chief Executive Officer of FTX), and multiple celebrities and athletes, including Tom Brady, Stephen Curry, Naomi Osaka, and Larry David. The lawsuit relates to FTX’s sale of yield-bearing cryptocurrency accounts and the athletes’ promotion of FTX. As a brief background, the FTX entities were established in 2019, operating as a marketplace for trading crypto assets. FTX quickly gained popularity amongst new and experienced investors, with billions of dollars traded daily on the marketplace. In November, CoinDesk issued a report detailing FTX’s operations. Within days, customers withdrew over $5 billion from the marketplace, which FTX could not fulfill. Shortly after, Sam Bankman-Fried announced that Binance would purchase FTX. The next day, Binance announced it would not purchase FTX due to mishandled customer funds and a potential federal investigation, effectively forcing FTX into Chapter 11 bankruptcy. Much of the class action complaint revolves around FTX using the athletes/celebrities “to raise funds and drive American consumers to invest in the [yield-bearing accounts] . . . pouring billions of dollars into the Deceptive FTX Platform to keep the whole scheme afloat.” At the same time, the athletes/celebrities’ promotions “made and broadcast around the country through television and internet render them liable to [the plaintiffs] for soliciting their purchases of the [yield-bearing accounts].” Despite FTX insisting that the yield-bearing accounts are not securities, the plaintiffs allege that they are securities as defined in SEC v. W.J. Howey Co., 328 U.S. 293 (1946). Specifically, FTX offered “interest rewards on crypto assets held in the [yield-bearing accounts] . . . . [then] the FTX [e]ntities pooled the [yield-bearing account] assets to engage in lending and staking activities from which they derived revenue to pay interest on the [yield-bearing accounts].” Thus, the yield-bearing accounts constitute securities. As the plaintiffs allege, since an FTX yield-bearing account is not a federally covered security nor registered under Florida statutes, FTX and the athletes/celebrities (as directors, officers, partners, or agents) have violated the Florida Securities and Investor Protection Act. Building on the Florida Securities and Investor Protection Act violation, the plaintiffs also allege violations of the Florida Deceptive and Unfair Trade Practices Act. According to the plaintiffs, FTX and the athletes/celebrities misled consumers regarding FTX’s platform and yield-bearing account, including assuring consumers that they were not investing in securities, thereby inducing consumers to spend billions on the marketplace. In addition, the plaintiffs include a claim for civil conspiracy against FTX and the celebrity athletes, alleging that FTX and the celebrity athletes conspired to misrepresent the FTX platform and induce the plaintiffs to invest in the yield-bearing accounts, which caused the plaintiffs to lose their investments. The Securities and Exchange Commission (SEC) has previously charged celebrities for touting cryptocurrency. Earlier this year, Kim Kardashian paid $1.26 million to settle the SEC’s charges against her for touting EthereumMax without disclosing the payment she received for promoting the product—a violation of federal securities laws’ anti-touting provision. Here, the plaintiffs appear to be aiming at a similar outcome. Over the past year, cryptocurrency exchanges have invested heavily in professional sports. With FTX failing, leagues, teams, and athletes could start distancing themselves from cryptocurrency—the Miami Heat recently removed FTX from the team’s arena. Despite FTX filing for bankruptcy, the company will not be out of the news soon. 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.

Following the 2021-2022 season, Miles Bridges looked like a budding star for the youthful and exciting Charlotte Hornets. Bridges, the 12th pick of the 2018 draft out of Michigan State, averaged over 20 points, 7 rebounds, and nearly 4 assists per game, helping propel Charlotte to their first winning season in 6 years. Bridges’ ascendance came to a sudden halt on June 29th, when he was arrested for felony domestic violence. According to TMZ, Bridges allegedly attacked his partner, Mychelle Johnson, causing her to suffer “assault by strangulation, brain concussion, closed fracture of [the] nasal bone, contusion of rib, multiple bruises [and] strain of neck muscle.” The alleged assault also occurred in front of the couple’s two children. Following the incident, Johnson took to Instagram to share photos of her injuries, which showed a fractured nose, a bloody ear, scratches on her face, and bruises along her arm, back, and legs. Normally, in a situation like this, a team’s front office would feel pressure to release the player from his contract. But in this case, Bridges was set to become a free agent the next day, meaning the Hornets did not have to make that decision. Following the allegations and arrest, no team has signed Bridges. However, this may soon change following the recent conclusion of the legal proceedings involving Bridges. On November 3rd, Bridges pled “no contest” to the felony domestic violence charge, meaning that Bridges did not admit guilt to the allegation, but still accepted the charge as a felony on his record as well as any resulting punishment. According to ESPN’s Baxter Holmes, the sentence does not involve jail time, but required three years of probation, 52 weeks of both domestic violence counseling and parenting classes, 100 hours of community service, and weekly drug testing. There will surely now be NBA teams interested in signing Bridges, despite the ugly allegations. Holmes maintained that the NBA will likely decide to suspend Bridges once he does sign with a team, as it is within their right to do so under the Collective Bargaining Agreement because Bridges plead no contest. The upcoming suspension for Bridges could be lengthy. Per Bleacher Report’s Eric Pincus, a similarly relevant occurrence transpired in 2014, when the Hornets’ suspended forward Jeff Taylor for 24 games after pleading guilty to misdemeanor domestic violence. However, it would not be surprising to see a significantly longer suspension for Bridges, given the fact that he pled no contest to a felony (a more serious charge), not a misdemeanor (a less serious charge). This begs the question: Will a team soon sign Bridges, despite the disturbing allegations and potentially lengthy suspension? The likely answer to this is yes, and the reasons for it unfortunately have little to do with whether Bridges deserves a second chance, but rather his ability as a basketball player. The unpleasant reality of the professional sports landscape is that as long as a player can significantly contribute to his team’s success, that player will generally be given second and third chances—even when there is compelling evidence they committed violent criminal acts. In the NBA, for example, players charged and even convicted of serious crimes such as Metta Sandiford-Artest and Jason Kidd (both pled guilty to domestic violence) have been given second and even third chances to return to the league. Similarly, in the NFL, we have recently seen Deshaun Watson be awarded a record-breaking deal in terms of guaranteed money despite having 22 sexual assault lawsuits being filed against him. These players, Artest, Kidd, Watson, and now Bridges, are similar in one respect: they are all impact players. Contrast them to someone such as former Bills punter Matt Araiza, who was accused of raping a 17-year-old girl while he was still in college. Shortly after the allegations became public, the Bills cut Araiza. Most teams would not consider Araiza, a punter, to be an impact player. Shortly after the allegations became public last August, Araiza was cut by the Bills. No team has signed Araiza since. It is difficult to imagine that Araiza will get another chance in the NFL. For teams that sign these troubled impact players, it is obvious that they deem that the advantage received on the field/court outweighs whatever public criticism is leveled against the team. While it is certainly admirable to believe that people can change and very often deserve a second chance, professional leagues have shown us that the main indicator of whether a player deserves one is skill, rather than accountability and growth. We do not know whether Miles Bridges will play again in the NBA, but based on recent history, I suspect that he will be signed by a team very soon. Robert Ricigliano is a 2L student at New York Law School. Robert is passionate about all sports, particularly how they relate to athlete representation and intellectual property.

On November 14, 2022, the District Court of New Jersey denied defendants Seton Hall University, Kevin Willard, Tony Testa and Deja Craig’s motion to dismiss plaintiff Myles Powell’s claims for gross negligence. Factual History Myles Powell was a star basketball player at Seton Hall University. In November of Powell’s senior season, he suffered what was believed to be an ankle injury and was examined by then-head coach Kevin Willard and Director of Sports Medicine Tony Testa. The duo determined that the injury was limited to just Powell’s ankle and instructed him that he could continue playing at no risk of further injury. However, that later proved to be questionable advice at best. In December of that year (2019), Powell began experiencing severe pain in his right knee. Powell alleges that, before games, Testa would inject him with an unknown substance and give him unknown pills to mask the pain. According to the January, 2022 second amended complaint, Powell alleges Testa mistakenly texted him [Powell] “[y]a Myles Powell has a lateral meniscus tear,” thinking the message was being sent to someone else. Powell believes that Testa later advised Willard of the meniscus tear, but both did nothing to address it, nor (intentionally) inform Powell. In fact, Powell alleges in his complaint that on the following day, on January 14, 2020, Testa texted Powell saying “[r]emember to take your medicine this morning.” Powell alleges that at no point during his senior season did Seton Hall, Willard, or Testa suggest to Powell that he stop playing or consult with an independent medical professional. In June, 2020, Powell went to the head orthopedic surgeon for the Philadelphia Eagles., Dr. Matthew Pepe. Dr. Pepe arranged an MRI scan of Powell’s knee and ultimately found a clean tear in Powell’s lateral meniscus. Powell alleges that he had been properly diagnosed, he would have been sidelined for the remainder of his senior season to properly heal. Powell claims that because his meniscus tear was “suspected or discovered” by NBA teams, he went from being a “guaranteed” first-round draft pick to undrafted. He now plays in the Philippine Basketball Association, where he recently scored 50 points in a game. Legal Analysis Defendants brought their motion to dismiss pursuant to FRCP 12(b)(6), which provides for the dismissal of a complaint if the plaintiff fails to state a claim upon which relief can be granted. To survive a 12(b)(6) motion, and pursuant to the famous Twombly/Iqbal line of cases, “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face’” The District Court of New Jersey issued its decision on November 14, 2022, writing “[t]he central question with respect to each of Powell's three counts of gross negligence is whether the allegations in the [second amended complaint], assumed to be true, would satisfy the higher standard needed to state a claim of gross negligence or whether such allegations sound merely in simple negligence.” “Where negligence is the failure to exercise ordinary or reasonable care that leads to a natural and probable injury, ‘gross negligence is the failure to exercise slight care or diligence.’” Ultimately, the court held that Powell has plausibly alleged a gross negligence claim against the defendants. If Powell’s alleged facts are true, he has demonstrated that defendants’ breach caused his injuries and that he suffered as a result. Thus, Powell lives to see another day in court. This does not mean that his claims will necessarily be successful moving forward. It is significant though, as he made it past the first, and often most fatal stage of a lawsuit. He can now focus on compelling discovery, and should seek private text conversations between Willard and Testa regarding their knowledge of the extent of his injury. The court gave significance to Testa’s “accidental” text to Powell stating that he has a meniscus tear. Also, the court notes that “Powell alleges that his father spoke with Willard who conceded that Defendants made a mistake in not properly disclosing and treating Powell's injury. Willard is currently the head men’s basketball coach at the University of Maryland. Presiding District Court Judge William J. Martini is a graduate of Big East foe Villanova University; don’t expect any favors for Seton Hall and the defendants! 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.

A 12-acre parcel in the South End of Niagara Falls, New York is currently the subject of ongoing eminent domain proceedings, featuring a battle between development and construction company Niagara Falls Redevelopment (NFR), and Niagara Falls officials, including its mayor, Robert Restaino. Restaino has been vocal in his support of an event center and campus, named Centennial Park, emphasizing the jobs and economic growth the project would bring to the area. However, there has been a lack of evidence that there will be adequate funding for the proposed project or that it will be viable long-term without a permanent tenant. The city argues that the Niagara University Basketball and Hockey Teams would fill this latter void, but the city has received no assurances from the school as to whether or not they are on board. In response to the eminent domain proceedings and the city’s push to claim the land, Roger Trevino, a principal of NFR, said, “We firmly believe that eminent domain proceedings are not needed, and we oppose such actions as highly premature. Eminent domain can take years and cost taxpayers millions. It would be completely unnecessary in the face of the opportunities we have been discussing with Mayor Restaino” (Niagara Gazette, 2022). While this Niagara land battle presents some compelling legal questions, the more interesting inquiry is whether or not a city could or would ever initiate eminent domain proceedings for a major college or professional team, and what legal challenges those proceedings may face. What Is Eminent Domain? Eminent domain is the power of the government to take property for public use without the consent of the owner. It can be exercised either by public officials or by private parties to whom the power has been delegated. And it can be exercised either through the initiation of legal proceedings or simply by taking possession up front, with compensation to follow. PennEast Pipeline Company, LLC v. New Jersey, 141 S.Ct. 2244, 2251 (2021). The Supreme Court has consistently upheld the right of government entities to transfer ownership of seized properties to third parties, as long as the seizure has a legitimate public purpose. See Kelo v. City of New London, 545 U.S. 469 (2005); see also Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984). Necessarily, the main issue in a sports-related context will be whether or not sporting venues have a “legitimate public purpose” to satisfy legislative bodies and, more importantly, courts. The City of Niagara faces an uphill battle in its eminent domain proceedings not only because of the “legitimate public purpose” question, but also due to other factors like funding, economic viability, and whether or not the current land development plan is a more legitimate public purpose than the city’s plan. But using the Niagara case as a springboard, the question of whether or not a sports stadium or arena serves a legitimate public purpose becomes an interesting public policy debate. Policy Arguments for a Public Purpose In arguing for a “public purpose” for a stadium or arena, the positive arguments center around the economic benefit to the municipality, similar arguments to the ones currently made for public funding of stadiums. The city initially benefits from the construction of the stadium. That process creates scores of jobs, especially if the team adds a shopping district or some other attraction to the construction project. Once the venue is up and running, the city ideally benefits from having attractions year-round that fill that stadium, whether it be the principal occupant, concerts, amateur competitions, etc. Gameday visitors travel on mass transit and on toll roads, generating tax dollars. Visitors generate additional tax dollars when they park in paid lots, visit small businesses prior to the game, purchase concessions and souvenirs at the game, and stay in hotels or vacation rentals within the municipality. Of course, there are benefits of the stadium that are not purely economic but still beneficial to the local community that receives a new venue. The increased attention on the team and their new arena naturally provide opportunities for the local government and businesses to promote social and community initiatives. Additionally, teams will more than likely have their own charitable foundations and projects that will positively impact the local community. Finally, the greater share of jobs required to continue to operate the stadium will usually allow for more employment opportunities for lower-income communities, and in doing so will ideally raise the standard of living for that city. Policy Arguments Against a Public Purpose In arguing against the seizure of land for sports venues, cities have a number of economic concerns that usually apply. The contested land may serve a more beneficial purpose, especially if the land desired has a viable economic, historic, social, or artistic purpose. The up-front taxpayer input usually required by most teams hampers the local economy, while the revenues generated may reside largely or solely with the team. The seizure of the land and construction of the stadium will naturally create disruptions to the local market and possibly the local infrastructure, including roads and mass transit. Further, once the stadium is up and running, there is no guarantee of financial viability, even if the team is very successful, depending on the cost of the project and any additional construction projects. As a social matter, state and local governments may be hesitant to support eminent domain proceedings for sports-related purposes. The venue may be most beneficial to non-residents, depending on the average income of the city compared to the average price of tickets. Residents could, effectively, be priced out of the enjoyment the seizure was initiated to create, even more so if the area around the venue becomes too expensive, forcing current residents to relocate. Further, increased transient traffic will naturally create disturbances and require increased maintenance efforts, both for public services and for local residents. The economic investment and impact of the stadium may prompt the local government to cater more policies to visitors, potentially at the expense of residents. This may result in the municipal government ignoring larger social problems to support the team and the new venue. Finally, the seizure may have disproportionate effects on lower-income communities and communities of color, which may be amplified if the land is of particular historical or social significance within those communities. A Potential Real-World Example If Restaino and crew can prove that Centennial Park does in fact serve a public purpose, will the decision open the floodgates? With this case as precedent, it’s possible professional and collegiate teams are able to claim land for the construction of their own facilities and venues. The University of Miami is rumored to be looking into building its own stadium at Tropical Park in Coral Gables. The project is being spearheaded by Canes’ booster, John Ruiz, with the help of his son, Johnny Ruiz, and HKS architects, who are known for SoFi Stadium, AT&T Stadium, and U.S. Bank Stadium. While there hasn’t been any official word from the University, local Coral Gables residents and some city officials have been pretty vocal in their opposition to the proposal, citing increased traffic and loss of the use of the historical Tropical Park. If Niagra Falls city officials are able to claim the 12-acre parcel for an event and athletic complex by justifying the taking as ‘in the interest of public good’, it's possible Ruiz and company follow suit, potentially bringing in the University of Miami and the City of Miami to repurpose Tropical Park.

Around this time of year, we see a lot of coaching changes in college athletics. Whether it's coaches being fired or taking other jobs, the coaching “carousel” as we know it begins to spin out of control. However, seeing head coaching changes in college basketball in the first few weeks of November is extremely rare. But last week, Hartford men’s coach John Gallagher resigned from his position the day before the 2022-2023 college hoops season tipped off. What led to this decision? Could there be a legal dispute? Let’s dive into this peculiar situation. To understand Gallagher’s resignation, it’s key to trace the confluence of events that led to the thirteenth-year head coach stepping down. Since 1984, The University of Hartford’s men’s basketball program had been competing in Division I in various low to mid-major conferences. Throughout its history, the Hawks have struggled to find consistent success on the hardwood, regularly finishing toward the bottom of the America East Conference standings. However, the program has experienced unprecedented highs since Gallagher took over in 2010, including the school’s first and only trip to the NCAA Tournament in 2021. Because of that success, you would think that the positive momentum would’ve spurred no shortage of fan excitement and additional investment, right? Wrong. Immediately following their NCAA Tournament berth, the University of Hartford's Board of Regents voted to transition all of their athletic programs from the Division I to Division III level beginning in the 2023-2024 academic year. In the last few years, we’ve seen numerous schools move up a level, but very rarely do you see a school move down, especially all the way from Division I to Division III. Obviously, any player or coach that signed up to be a Division I player or Division I coach would probably be upset if their school announced a move to Division III, and Gallagher fell into that camp. While he stayed on the job last season, many in the industry believed his time in Hartford would come to an end at the conclusion of this upcoming season. But why did he step down now? Gallagher’s frustrations with the Hartford administration for taking his program down to the Division III level were already high coming into the season. However, in one of his team's exhibition games, it appears like those frustrations finally reached a boiling point. According to his resignation letter, Gallagher alleged the school failed to protect the safety and well-being of their student-athletes by neglecting to provide an athletic trainer for the Hawks’ preseason battle with Dartmouth College. He claimed the lack of medical support not only potentially caused a knee injury to one of his players but also resulted in a longer and more painful recovery process. “At least one parent has reached out to express outrage at this situation,” Gallagher said in his statement. “This is something that I, as a Coach, cannot tolerate.” While it appears the lack of a trainer at one of his team’s games was the breaking point, it’s only a piece of this situation that needs to be monitored. In his resignation letter, he cites a breach of contract by the University on several occasions. Gallagher reportedly remains in an active lawsuit with a member of the University’s Board of Regents dating back to 2021 after being assured that Hartford would remain at the Division I level. Allegedly, those reassurances led Gallagher to decline an offer to join Porter Moser’s staff at the University of Oklahoma. In all the fallout, Hartford released a statement to ESPN that refuted Gallager’s claims. “Mr. Gallagher’s resignation letter is full of inaccuracies,” the school said. “We are confident that these baseless claims and attacks will be disproved through the legal process. We wish Mr. Gallagher well and look forward to announcing interim leadership for our men’s basketball program.” The “he said, she said” in this situation is definitely worth monitoring, especially with the precedent it might set in college athletics moving forward. I mentioned earlier that it has been rare to see schools move down from Division I. However, with the NCAA Transformation Committee actively in work to determine what constitutes Division I, we could see more schools make the institutional decision to transition downwards. There might be certain investment thresholds that the “new D1” schools need to meet, and some schools might decide the juice is not worth the squeeze. For coaches of those programs that decide to move down to Division II or Division III, how will their contracts be handled? Will they be free to find other jobs? Will they be confined to the same language as the original deal? Will they follow Gallagher’s steps and pursue legal action? Obviously, the difference between Division I and the lower levels is vast and the nature of the original contract agreement would definitely be different. However, Gallagher’s dispute with Hartford might be the test case that lays the groundwork for future cases with similar contexts. Hopefully, the Hawks can have a somewhat “normal” season this year despite the chaotic start. You have to feel for the players who put in the work all summer and fall anticipating playing under Gallagher, only to see their coach walk out the door the day before the first game. It’s an unfortunate situation that you have to hope works out for all parties involved. Brendan Bell can be found on Twitter @_bbell5