On October 26, the NCAA issued a press release containing clarifications for its interim NIL policy. Since the NCAA instituted an interim policy while calling on the Federal legislature to create a regulatory framework for NIL, the landscape has been somewhat unruly. However, to bring some sort of uniformity to the NIL space, the NCAA released “clarifications,” saying what is and is not permissible under the policy. Per the clarification, as it relates to institutional support for student-athletes, no staff member of the athletics department, nor a company owned by a staff member may: Represent enrolled student-athletes in negotiating or securing NIL deals. Proactively assist in the development/creation, execution, or implementation of a student athlete’s NIL activity like developing products, promotional metals, or ensuring the performance of contractual NIL activities unless the same benefit is generally available to the institution’s students. Provide services other than education to support NIL activity. The NCAA specifically mentions graphic designers, tax preparation, and contract review, unless the same benefit is generally available to the institution’s students. Provide access to equipment to support NIL activity, like cameras, graphic software, or computers unless the same is generally available to the institution’s students. Allow student-athletes to promote their NIL activity while on call for required athletically related activities (i.e., celebrations on the court, press conferences, practice, pre- and post-game activities) The full press release can be viewed here. Stephon Burton is a 2022 graduate of Duquesne University School of Law in Pittsburgh, PA. He obtained his undergraduate degree from Washington & Jefferson College in 2019. He can be contacted via email at [email protected] or on Twitter @stephonburton

On October 26, the Division I Board of Directors released new guidance detailing what is permissible and impermissible for a college or university to provide for student-athletes’ name, image, and likeness (NIL) activities. The new guidance provides specific examples of permissible and impermissible conduct, but the question remains: how will Division I enforce violations of the policy? The new guidance primarily broke institutional involvement into four categories: institutional education and monitoring; institutional support for student-athlete NIL activity; institutional support for NIL entity/collective; and negotiating, revenue sharing, and compensating. Institutional Education and Monitoring Notably, in this category, Division I did not detail any impermissible activities. For permissible activities, education sessions for student-athletes, NIL entities (including collectives), boosters, and prospective student-athletes are allowed. Thus, Division I does not have any qualms with a college or university educating parties that may take part in NIL activities. Institutional Support for Student-Athlete NIL Activity. Here, Division I makes it clear that a college or university can notify a student-athlete of NIL opportunities, including providing contact information to an entity and arranging space for an entity and student-athlete to meet. However, the college or university cannot provide services (including contract reviews and tax preparation), develop (including promotional materials), or implement a student-athletes NIL opportunity unless the benefit is available to the student body. Many student-athletes do not disclose NIL activities to their institution. Therefore, despite having guidance permitting colleges and universities to support student-athletes in their NIL opportunities, it is unclear how many institutions will take advantage of offering services or implementing NIL opportunities. Institutional Support for NIL Entity/Collective Interestingly, under the new guidance, Division I will allow staff members to assist entities in raising money, provide donor information, and even request a donor provide funds to an entity (as long as the funds are not for a specific sport or athlete). Impermissible activities include providing tickets to a donor for providing funds to an entity and donating to an entity. The biggest surprise is allowing institution members to request a donor provide funds to an entity. Now, athletic departments, booster clubs, and collectives can work together to enhance their standing amongst student-athletes and prospective student-athletes. Negotiating, Revenue Sharing, and Compensating Unlike the institutional educating and monitoring category, this category lists only impermissible activities. Here, Division I is making it clear that institutions (and their staff members) cannot be involved in negotiating or compensating student-athletes. Due to the optics of pay-for-play, this is rather unsurprising. Other Item to Note The Division I Board of Directors adopted a new standard for reviewing potential violations. Now, when the enforcement staff will “presume a violation occurred unless the school clearly demonstrates that the behaviors in question were in line with existing NCAA rules and the interim policy.” Thus, Division I puts the burden on the institution to prove that violations of the interim NIL policy did not occur. While any guidance clarifying an institution’s role under the interim NIL policy is helpful, with a minimal enforcement staff and institutions all over the country, the longstanding issue remains: how will Division I enforce violations of the policy? 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.

Over the past year, the Lerner family has been shopping around their family’s prized possession, the Washington Nationals. The history of the Lerners’ ownership and more information about the early steps of this potential sale can be found here. A group led by businessman Ted Leonsis is said to be the “clear front runner” to take over the team. This does not come as a huge surprise given Leonsis’s involvement in D.C. sports. Monumental Sports & Entertainment (a company owned by Leonsis) owns the NBA’s Wizards, the NHL’s Capitals, and the WNBA’s Mystics, and the Lerners are minority owners in the company as well. Reports showed there were five major bidders for the Nationals, but over the last month the Leonsis group emerged as front runners, and this may have to do with another high-profile individual expected to be a part of the group with Leonsis, David Rubenstein. Although the group is in the driver’s seat to accomplish a deal, there is no indication it will happen in the immediate future. Leonsis is accustomed to acquisitions in the D.C. market. Monumental Sports & Entertainment previously purchased 33% of NBC Sports Washington, which holds the broadcasting rights to the Wizards, the Capitals, and the Mystics, and also bought out NBCUniversal’s 67% share last August. It seems clear that if Leonsis was to acquire the Nationals, he would want to broadcast them on NBC Sports Washington, but the team’s current broadcasting rights are with the Mid-Atlantic Sports Network (MASN). This could become a hurdle for Leonsis to overcome. As it stands, the Orioles own 75% of the Mid-Atlantic Sports Network, and the Orioles and the Nationals have been engaged in rights fees litigation for over a decade. In 2019, an arbitrator ruled in favor of the Nationals, awarding them $105 million to be paid from the Orioles. The award was appealed and has yet to be decided in the New York Court of Appeals. If Leonsis successfully consummated a deal with the Lerners, his logical next step would likely be to settle with the Orioles and buy out of the deal with MASN. There is no clear indicator as to where the Lerners and Leonsis are in the transaction timeline, but it is clear that this deal is far from finalized. However, previous reports have shown that the Lerners are actively trying to move the team and that Leonsis is the most willing bidder to match their price. Leonsis is a sensible match to be the buyer given his footprint in D.C. sports and his ability to fund a project of this magnitude. 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.

The NCAA’s Division I Board of Directors issued new guidance to member schools on Wednesday to clarify institutional involvement in name, image, and likeness (“NIL”) activities of enrolled student-athletes. The new guidance includes a non-exhaustive list that addresses permissible and impermissible institutional involvement in an enrolled student-athlete’s NIL activities. “The NIL landscape is constantly evolving, and the Board of Directors decided it was important to offer further guidance with respect to a number of key questions that have arisen recently,” Jere Morehead, Chair of the Board and President of the University of Georgia said in a statement. “As we continue to reinforce current NCAA rules, we expect to offer further guidance in the future on what should and should not be done when engaged in these activities. We are committed to fostering a fair and appropriate NIL environment that supports our students and complies with our rules.” The guidance was largely broken down into three distinct areas related to institutional involvement: (i) education and monitoring; (ii) school support for student-athlete NIL activities (which also addressed school involvement with collectives and other NIL entities); and (iii) negotiating, revenue sharing, and compensating. Education and Monitoring The guidance provides that schools are generally permitted – and are encouraged – to provide education to its current student-athletes on NIL. Specifically, the guidance mentions financial literacy, taxes, social media, and entrepreneurship as potential topics for NIL education. The guidance also states that schools can educate collectives and other NIL entities, boosters, and prospective student-athletes. Furthermore, if permitted by state law, schools can – and should require – athletes to report NIL activities to the athletics department. The Board of Directors also received a report about the benefits and challenges related to the use of an independent, third-party administrator to collect student-athlete NIL disclosures, but declined to take action on this item at this time. School Support for Student-Athlete NIL Activities The guidance next provides clarifications on a school’s support for student-athlete NIL activity. Notably, the guidance prohibits schools from the following activities: Schools cannot provide free services (e.g., graphic designers, tax preparation, contract review, etc.) to student-athletes unless those same services are available to the general student body. For example, if a law school clinic provides pro bono legal services for NIL contracts for athletes, it will need to provide those same services to the general student body. Schools cannot offer equipment (e.g., cameras, graphics software, computers, etc.) to student-athletes to support NIL activities, unless that equipment is also available to the general student body. Schools cannot allow student-athletes to promote their NIL activity while participating in required athletics activities (e.g., pre- and post-game activities, court celebrations, news conferences). The guidance, however, does clarify situations in which schools are permitted to support student-athlete NIL activity. Several examples of permissible activities for schools include the following: Schools can inform student-athletes about potential NIL opportunities and can engage an NIL service provider (e.g., Opendorse, INFLCR, MOGL, MarketPryce, etc.) to administer a “marketplace” that connects student-athletes with potential NIL opportunities without involvement of the school. Schools are permitted to provide stock photos, videos, or graphics to either a student-athlete or an NIL entity. Schools can promote a student-athlete’s NIL activities, provided there is no value or cost to the school (e.g., retweeting or liking a social media post). Schools can also promote the student-athlete’s NIL activities provided that the student-athlete or NIL entity pays the going rate for advertisement (e.g., collective pays for an advertisement on a video board). School Involvement with Collectives and Other NIL Entities Collectives have been a hot button topic thus far in the NIL era. Many athletics department officials and coaches have expressed concerns that collectives are using NIL as improper recruiting inducements. According to a study by LEAD1 Association, a group that represents athletics directors of the 130-member schools of the Football Bowl Subdivision, 90% of athletics directors surveyed described themselves as “concerned” (73% of the respondents being “extremely concerned”) that NIL payments from collectives are being used as improper recruiting inducements, both for high school athletes or college transfers. The section of the guidance that focuses on school support for student-athlete NIL activity provides several clarifications on collectives and other NIL entities. Subject to certain conditions, the guidance provides several examples of permissible activities for schools with respect to collectives and other NIL entities: School personnel (including coaches) can assist an NIL entity with fundraising through appearances or by donating autographed memorabilia but cannot donate cash directly to those entities, nor can school staff members be employed by or have an ownership interest in an NIL entity. For example, Ryan Day, the head football coach at Ohio State, and Chris Holtmann, the head men’s basketball coach at Ohio State, both attended a fundraising event this past summer for The Foundation, a 501(c)(3) NIL collective that supports Ohio State athletics. The coaches’ attendance and participation at this fundraising event is permitted under the new guidance. Schools are also permitted to request that donors provide funds to an NIL entity, as long as the schools do not direct funds to be used for a specific sport or student-athlete. School may provide contact information of a donor or an NIL entity to student-athletes, introduce student-athletes to representatives of an NIL entity, and arrange for meeting space for an NIL entity and a student-athlete on campus. Schools can provide tickets or suites to NIL entities through sponsorship agreements, as long as the terms of those agreements are the same as for other sponsors. However, those assets (e.g., tickets, suites) cannot be provided to a donor as an incentive for providing funds to the NIL entity. Negotiating, Revenue Sharing, and Compensating Finally, the last section of the guidance provides scenarios in which schools are not permitted to represent student-athletes in securing or negotiating NIL deals. Notably, the guidance provides that athletics department staff members cannot represent enrolled student-athletes for NIL deals, including securing or negotiating deals on behalf of the student-athlete. This prohibition on representing enrolled student-athletes in NIL deals also extends to third party individuals or entities acting on behalf of the athletics department (e.g., third party rights holders, third party agents). As a result of this prohibition on securing or negotiating NIL deals, some schools may need to reevaluate their in-house and external NIL services and potentially unwind relationships with third parties. For example, South Carolina entered into a partnership with sports marketing agency Everett Sports Marketing (ESM) to broker NIL deals for Gamecock athletes and created an in-house NIL initiative called Park Avenue, a subsidiary of ESM, that provides Gamecock student-athletes with brand support, content development, and deal procurement and negotiations. Another example includes USC’s partnership with media agency Stay Doubted, which established a subsidiary named BLVD LLC to operate as an agency and media company exclusively serving USC athletes for NIL opportunities. Depending on the legal structure and details of these arrangements, South Carolina and/or USC may be in violation of the section of the guidance that prohibits schools or third party agents acting on behalf of schools from securing or negotiating NIL deals. Schools and their personnel are also prohibited from entering into contracts with athletes for the sale of product related to the athlete’s NIL. The school and its staff members, however, may purchase items that are de minimis in value and for the same rate available for the general public. This likely means that schools will need to engage third parties, such as group licensing agencies like The Brandr Group, to offer co-branded NIL products. The guidance also clarified that coaches and other staff members are prohibited from providing NIL deals to athletes through their own businesses. Conference and student-athlete broadcast and NIL revenue sharing is also not permitted under the new guidance. However, this prohibition will likely be – and currently is – subject to legal challenges. In House v. NCAA, NCAA student-athletes are alleging that the NCAA and its member schools, as well as the Power Five conferences, have violated antitrust laws through amateurism rules by denying players economic opportunities to profit from their NIL. The plaintiff student-athletes are seeking substantial monetary damages, potentially worth billions of dollars, related to lost NIL revenue, which is broadly interpreted to include already-paid broadcast revenue, in addition to injunctive relief. Student-athletes are also prohibited from receiving compensation directly or indirectly for promoting an athletics competition in which they participate. What Does the New NIL Guidance Mean? The new NIL guidance does not change the NCAA’s existing NIL rules. Instead, the new guidance aims to clarify those existing rules for institutional involvement. Although the guidance does not cover every possible scenario regarding school involvement in NIL activities, it does provide a fairly comprehensive list of permissible and impermissible activities for schools. In light of this new guidance, schools should reevaluate the NIL services they offer both internally and externally through third parties as such services, particularly those that involve securing or negotiating NIL deals, may be in violation of the new guidance. The Board of Directors also adopted a proposal for new allegation and conclusion standards regarding potential NIL violations. The proposal places a heavy burden on schools to demonstrate that any allegation of impermissible conduct is in line with existing NIL rules. The Board provided the following summary of the proposal: “When information available to the enforcement staff indicates impermissible conduct occurred, the enforcement staff and Committee on Infractions will presume a violation occurred unless the school clearly demonstrates that the behaviors in question were in line with existing NCAA rules and the interim policy.” The Board of Directors, however, did reiterate its previous position that “the focus of its NIL guidance is not intended to question the eligibility of enrolled student-athletes.” Furthermore, the Board said that “[f]or any violations that occurred before this additional clarification, the board directed the enforcement staff to review facts of individual cases but pursue only cases that are clearly contrary to the interim policy.” In other words, the new guidance is not directed at player eligibility, nor punishing schools for violations of the guidance prior to its adoption, unless such violations are clearly egregious. Rather, the guidance is intended to level the playing field for schools by clarifying permissible and impermissible activities. Ryan Whelpley is an Associate at Morse in Waltham, Massachusetts, where he is a member of the firm’s Corporate Practice Group. He is a graduate of Albany Law School and Union College. At Union, Ryan was a member and three-year captain of the Men’s Basketball Team. You can connect with him via Twitter (@Whelpley_Law) and LinkedIn.

On April 5 2018, MMA superstar Conor McGregor made headlines after going on a violent tirade in the loading dock of the Barclays Center in Brooklyn. McGregor was caught on camera throwing a hand truck through a bus window carrying UFC 223 fighters. One of those fighters was Michael Chiesa. Chiesa claimed the propelled hand truck broke the bus window, causing its handle and glass from the shattered window to strike him, lacerating his face. With that, Chiesa filed suit in New York against McGregor and McGregor Sports and Entertainment, LLC (“MSE”) in 2018. Chiesa alleged, among other causes of action: assault, battery, and negligent and intentional infliction of emotional distress. McGregor and MSE (“defendants”) moved to dismiss certain claims filed by Chiesa (“plaintiff”) for failure to state a cause of action and for lack of personal jurisdiction against MSE. In an order dated September 10, 2019, the Supreme Court in Kings County in New York dismissed plaintiff’s second, third and sixth causes of action. According to his complaint, Chiesa’s second cause of action was negligence. The lower court dismissed this claim, holding that defendant’s actions were intentional, and thus the proper cause of action to recover is battery, not negligence. The 2nd Department reviewed this decision after Chiesa appealed and released its decision today. The Court upheld dismissal of the negligence claim, holding that it cannot stem from intentional activity. Chiesa’s third cause of action was for negligent infliction of emotional distress. The Second Department upheld the lower court’s dismissal of this claim as well, holding that “[a] negligent infliction of emotional distress cause of action must fail where, as here, no allegations of negligence appear in the pleadings.” The negligence claim was dismissed, as discussed above. However, the Court took a different route on Chiesa’s sixth cause of action. This claim was for intentional infliction of emotional distress. Today, the 2nd Department reversed the lower court’s decision to dismiss this cause of action, bringing it back to life. The Court held, “[c]ontrary to the defendants’ contention, the complaint sufficiently alleged that McGregor engaged in conduct ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” “Besides the alleged throwing of the hand truck that is the basis of the plaintiff's assault and battery causes of action, the plaintiff also alleges that McGregor threw other objects at the bus, attempted to board the bus, prevented the bus from moving, kicked the bus, and yelled threats and expletives.” Finally, the Court held that the allegations made in the complaint are sufficient to support personal jurisdiction against MSE and that the defendant’s motion to dismiss should have been denied as to this issue. Personal jurisdiction refers to a court’s power to hear claims over a particular party, rather than a court’s power to hear a claim itself. The 2nd Department held that there were sufficient contacts for personal jurisdiction because McGregor acted for the benefit and on behalf of MSE. “Overall, the plaintiff’s allegations that McGregor’s tortious conduct was intended to promote and bring publicity for a potential fight between McGregor and Nurmagomedov, and that MSE was involved in the promotion/sponsorship of the fight between McGregor and Nurmagomedov at UFC 229, was sufficient to allege, prima facie, that McGregor’s conduct was for the benefit of MSE.” Therefore, defendant’s activity in the state of New York is imputed to MSE, permitting a New York court to preside over claims against MSE. The Court continued, “[a]dditionally, the plaintiff's allegation that MSE procured and paid for the use of an aircraft so that McGregor could confront Nurmagomedov at UFC 223 Media Day was sufficient to show, prima facie, that MSE exercised control over McGregor. These allegations were sufficient to demonstrate, prima facie, that MSE was subject to the personal jurisdiction of the court.” 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. He is also a contributor to the top-rated LEGAL AF news podcast on the Meidas Media Network.

I was traveling in the State of Washington two weeks ago when the Oregon School Activities Association announced that it was permitting its athletes to capitalize on their name, image, and likeness (“NIL”). As I told On3 at the time, “[s]tates that haven’t passed updated bylaws will soon become the exception.”[i] This made me think, “why hasn’t Washington authorized NIL while neighboring states like Oregon, Idaho, and California have done so, and other nearby states like Nevada and Montana are considering revising its NIL rules for high school athletes?” The Evergreen State has been marked as “prohibited” for some time by websites tracking this issue. So, I looked at the Washington Interscholastic Activities Association’s (“WIAA”) website to see if this topic has been discussed by the WIAA’s Executive Board. During the last Executive Board Meeting of the 2021-22 school year (June 5, 2022), there is reference to NIL and that “editorial changes” were made to the “Amateur Standing” rule in the WIAA handbook that “do not represent a significant change to what has previously been allowed by rule in the past.”[ii] These “editorial changes” are highlighted below[iii], and were later included in the 2022-23 WIAA handbook[iv]: With this additional commentary, it appears that, pursuant to Rule 18.25, the WIAA has permitted its athletes to engage in NIL deals without jeopardizing their eligibility all along, provided that: (1) such deal does not connect to the athlete’s school, team, WIAA district or WIAA state association; (2) the athlete does not appear in the school’s uniform and does not utilize the marks, logos, and other intellectual property of the athletes’ school, WIAA district or WIAA state association; and (3) such deal is not based on athletic performance. This is further confirmed by the new “Question and Answers” guidance released by the WIAA for this school year.[v] It should also be noted that while Rule 18.25.2(G) states that a “student-athlete may not . . . [a]dvertise or promote a commercial product or service,” which may seem at odds with the clarifications on NIL, this clause is meant to be read in conjunction with the aforementioned “editorial changes.” Did the WIAA notify its member schools that NIL is actually permitted for its athletes? That is a bit unclear. But it does not appear that Caleb Presley, the top football recruit in the State of Washington who has a $143K NIL valuation according to On3[vi], has engaged in any social media-related NIL deals after a quick review of his social media accounts (i.e., Twitter, Instagram, TikTok). This does not mean Presley has not engaged in other NIL-related activities (e.g., autograph sessions) nor other WIAA athletes have signed NIL deals. Washington should now be included among the 20 state high school athletic associations, including Alaska, California, Colorado, Connecticut, Idaho, Iowa, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Nebraska, New Jersey, New York, North Dakota, Oklahoma, Oregon, Utah, and the District of Columbia, that permit NIL at the high school level. Expect this number to grow in the coming months. Sources: [i] https://www.on3.com/nil/news/where-is-nil-allowed-after-oregon-becomes-19th-state-to-allow-it-for-high-schoolers/ [ii] http://www.wiaa.com/results/execboard/21-22/6-5-22/Minutes.pdf, page 5. [iii] http://www.wiaa.com/results/execboard/21-22/6-5-22/A-1.pdf, page 2-3. [iv] https://wiaa.com/results/handbook/2022-23/FullHandbook.pdf, page 38. [v] https://wiaa.com/results/handbook/2022-23/Q&A.pdf, page 22-23. [vi] https://www.on3.com/db/caleb-presley-17145/nil/

A lawsuit led by Arizona State swimmer Grant House, Oregon basketball player Sedona Prince, and former Illinois football player Tymir Oliver is aiming to alter the name, image, and likeness landscape by retrieving billions of dollars in media revenue paid to conferences and colleges. After overcoming a motion to dismiss from the NCAA, the athletes are now seeking certification of four classes covering multiple sports and damages. Classes Part of the plaintiffs’ claims is that the current NCAA rules deny current players NIL opportunities. Thus, the first class is made up of current division I athletes seeking injunctive relief to prevent the NCAA from enforcing the NCAA’s interim NIL policy. Each of the following three classes is seeking monetary damages. One class will include football and men’s basketball players who have played since June 2016 until class certification. Importantly, the alleged class damages include depriving the class of sharing in multibillion dollar media contracts. Another will include women’s basketball players from the same time period, and the last class will include non-basketball and non-football players. All classes project nearly 7,000 members except for the women’s basketball class, which projects close to 900 members. Rule 23 Rule 23 of the Federal Rules of Civil Procedure dictates the requirements for class certification. As a prerequisite, the plaintiffs may sue on behalf of the class if: "the class is so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class.” Since this is an antitrust suit alleging that the NCAA, its conferences, and member schools alleging that the entities illegally conspired through NCAA rules to deny athletes NIL opportunities, the plaintiffs should be able to satisfy the commonality requirement. As to typicality, the requirement can be satisfied if the claims arise from the same court of conduct, which the plaintiffs may prove through the NCAA’s refusal to allow NIL opportunities. Whether House, Prince, and Oliver can fairly and adequately protect the class remains to be seen. Once the prerequisites are satisfied, the plaintiffs must satisfy other requirements before Judge Claudia Wilken certifies the class. Importantly, Judge Wilken oversaw O’Bannonand Alston, two other antitrust lawsuits that changed the NCAA landscape. Similar to O’Bannon and Alston, House is another class action suit that could change the future of college sports. 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.

Recently, reports have begun circulating that FIA is working towards the creation of an all-women feeder series to slot in towards the bottom of the Formula One feeder pyramid. Reportedly, this series would be targeted at women in their teens to prepare them for entry into F3 or F2 with a “realistic timeline” to have them develop to the point of being eligible to race in Formula One. This is an interesting step for the FIA in increasing inclusivity in a sport that has not seen a woman race in Formula One since 1976. But, before we congratulate the FIA on this rumored development, let's dive in a little bit deeper into the surrounding circumstances—and then decide if the FIA still deserves a pat on the back. Looking at this from a global perspective, this move comes as a bit of a surprise. In 2018, the “W Series” was founded to be an all-women open-wheel championship, to promote opportunities for women in motorsports, acknowledging the difficulty many of them face when pursuing a career as professional drivers. As one can imagine, however, starting any new independent motorsport series in the 21st century requires extensive investment, and the W series has struggled since its inception to find the necessary financial backing, even having it to postpone the remaining three races of the 2022 season due to expected funding falling through. According to reports, the FIA is not considering partnering with the W Series because it considers the competitors “too old” to be viable options for development in F3 and F2. Essentially, this would mean the FIA is saying that they view the competitors in the W Series as “not worth their investment.” Instead, the FIA's new series would target these younger talents and promote investment in them with hopes they would increase the presence of women in F3 and F2, the two primary feeder championships into Formula One. On the surface, it seems confusing that the FIA wouldn't partner with the W Series, which already exists and could make very good use of the type of funding the FIA could provide. I don't buy that the reason for declining to partner with the W Series is because the drivers are “just” too old—with the type of stability and financial backing the FIA could provide, it could dictate requirements to be implemented to the W Series, instructing them to increase the number of younger drivers or developing a similar “feeder” program (to the FIA’s proposed ‘independent’ program) for women in their teens. This would 1) allow for the same development of young women, providing women a platform to use to get into one of the F1 feeder championships, and 2) provide the women who couldn’t/are already too old/do not make it to F1 and “age out” of F3 or F2 a platform to demonstrate their skills and compete at the highest possible level. The fact that the W series already exists (even though it is still in its infancy and financially unstable) and is being completely overlooked by Formula One speaks to deeper underlying issues with the FIA and its motivations. If the FIA just wanted to increase the involvement of women in F3 and F2 it could just provide incentives to teams already competing in those championships (and teams in the world of carting, which is [I think] where the FIA is targeting this female series—before a competitor reaches the level of F3) and devote resources to directly make their open-wheeled series more inclusive, but instead they are contemplating making a separate feeder series. I am not arguing that this is not a step in the right direction towards a more equal and inclusive field, but is the “step” big enough, and does it have the right motivations? Given the fact that the FIA is not looking to partner with the W Series—a series that is doing its best to actively promote women in open-wheel motorsports—and is only considering starting a low-level “feeder series” that will slot somewhere below F3, I don't think this is any meaningful progress that we should be congratulating the FIA over (assuming they follow through and create this rumored series). Given the resources that the FIA has, the need that the W Series has exhibited for funding and partnership, and the fact that the FIA is ultimately a profit-motivated entity, I think this potential proposal is just doing the bare minimum to be socially acceptable and punting the ball down the road, deferring an actual solution to the underlying issues within the sport for some point later when it makes “more financial sense” to do so. Call me cynical, but I don't see this potential proposal by the FIA as any real meaningful progress. Instead, I think it’s more of an optical illusion allowing the FIA to defer actual investment into fostering equality. Women undoubtedly belong in Motorsports and deserve the same opportunities, and they shouldn't be forced to celebrate menial gains and half-baked attempts by the FIA of “increasing opportunities” that ignore available avenues of progress like the W Series. Again, while a “step in the right direction” by the FIA, this proposal is just a baby step, and the least investment the FIA can think of that is going to be socially acceptable. Is it worth celebrating? Yes—anything promoting increasing women in motorsport competition is. But when celebrating, remember it’s just a baby step—and there is more that can, and should be done. Zachary Bryson is a graduate of Wake Forest University with a B.A. in Economics and a Minor in Entrepreneurship. He is currently a JD candidate at Elon University School of Law, Class of 2023. You can connect with him via LinkedIn or follow him on Twitter at @ZacharySBryson. Source: https://www.espn.com/f1/story/_/id/34847486/f1-working-all-female-feeder-series-sources

As the world of professional sports continues its international growth pattern, athletes have recognized the worldwide value of their personal name, image, and likeness (NIL), and the importance of protecting their marketability with the filing of individual trademarks. Recently, NBA superstar Luka Doncic initiated a legal action against his mother, Mirjam Poterbin to reclaim trademark rights to his own name that she currently owns and controls. According to the petition to cancel filed on behalf of Doncic’s company, Luka99, Inc., it has unsuccessfully filed a number of trademark applications with the United States Patent and Trademark Office (USPTO) seeking protection in several different classes of goods and services. So, how did this happen? Due to the already existing registered trademark, “LUKA DONCIC 7,” owned by Poterbin, Poterbin’s current trademark ownership prevented Doncic’s applications for the marks “Luka Doncic” for protection with regard to various goods and services, and “Original Hoops of Luka Doncic” for basketball merchandise, from being processed under Trademark Act Section 2(d), 15 U.S.C. § 1052(d). A third application for the mark “LUKA DONCIC” for use in charitable fundraising has not yet been reviewed but is also expected to be rejected on the same grounds. To properly understand this dispute, Doncic, who is now 23 years old, became a professional basketball player at just 13, when he signed a 5-year contract with Real Madrid. In the early years of his career, Doncic relied on his mother for her guidance and management of his off-court business opportunities, which included Poterbin’s registration of several trademarks in Europe and the United States relating to the Dallas Mavericks guard’s name. For instance, Poterbin also holds registered federal trademarks in the marks “LD7,” “LUKA 77” and “LUKA MAGIC 77.” The unique legal problem that has arisen can be explained this way: American trademark law does not permit registration of a mark involving the name of a person that is not the registrant unless that person provides their consent. See, Lanham Act, § 2(c). It also prohibits marks suggesting a false association with another person or entity. See, Lanham Act, § 2(a). Here, Poterbin applied to register the “LUKA DONCIC 7” mark in 2018 with Luka’s consent, and the mark was registered in early 2020. Doncic was 19 years old at the time he gave his consent. However, the Lanham Act and USPTO guidance are silent on whether cancellation of consent or of association is possible or permissible. It simply is not contemplated by the law and case law offers no prior examples of such cancellation. In Luka’s case, the most logical course of action with the greatest chance of success would have been for Doncic to resolve the issue directly with his mother privately and for her to voluntarily relinquish the rights to the mark to Doncic’s company. That has not happened, however. Instead, Doncic has filed a petition seeking to cancel Poterbin’s registration in the mark at issue on the grounds that: Poterbin and her goods and services are not affiliated or associated with Doncic, and he does not approve or sponsor Poterbin or her goods and services (Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a)); Doncic revoked his consent for Poterbin’s use of his name in her mark by letter in July 2021 and did not consent to the future use or registration by Poterbin of any marks related to Doncic (Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(c)); and Poterbin is not actually using the mark on any of the goods and services identified in her original application and lacks the intent to resume use of the mark, thereby having abandoned her rights to the mark (Section 14(3) of the Trademark Act, 15 U.S.C. § 1064(3)). Of the three grounds cited, the abandonment argument is poised to be Doncic’s best chance of success and may very well grant him the requested cancellation of Poterbin’s mark. Trademark law does not favor upholding the registration of marks that are not ultimately used for commercial purposes and, in fact, statutorily permits petition cancellation founded upon just such an abandonment by a registrant. See Section 14(3) of the Trademark Act, 15 U.S.C. § 1064(3). The ultimate decision, in this case, is likely to hold significant legal value at a time when NCAA student-athletes are, for the first time ever, permitted to profit from the marketing of their own name, image, and likeness, in addition to the continued growth of the European professional youth basketball circuit as a pipeline into the NBA. Efforts are also already underway to lower the minimum NBA draft age from 19 to 18 for aspiring NBA players. Doncic’s situation poses a glaring example to young athletes at the precipice of their professional careers of the importance of protecting their personal publicity rights and what can happen if an athlete trusts a family member and grants consent to the use of their publicity rights. It should, at a minimum, cast a spotlight on the importance of entering well-written, protective contracts with any advisor figure – even a family member – to protect the athlete’s legal recourse by way of a breach of contract action. The decision in this case on the cancellation question could have a more far-reaching impact than just serving as a cautionary tale. If the court finds that revocation is permissible at any time, young athletes will have some assurance that providing consent to an advisor figure, sponsor, or parent does not necessarily result in the permanent loss of their rights. If the court determines revocation to be impermissible, however, the decision could create a chilling effect on young athletes’ willingness to enter agreements and would likely (or at least, should) inspire more tightly worded, conservative contracts for those who remain willing to enter them. Doncic’s case is certainly one to watch closely and could pose an interesting modification to trademark law. UPDATE: “Doncic v. His Mother” Trademark Dispute Continues Mirjam Poterbin, the mother of NBA Superstar Luka Doncic, has filed a motion to dismiss her son’s petition to cancel the trademark that she currently controls. Poterbin’s memorandum submitted in support of her motion argues that Doncic’s submission lacks a “valid ground” for contesting the registration. Poterbin’s position is that Doncic’s consent agreement was submitted along with her application for the trademark at issue, that the consent agreement was valid, and that Doncic freely gave away his privacy and publicity rights to her by entering into the agreement and authorizing Poterbin to use and register the mark. Interestingly, Poterbin hardly addresses the legality of rescinding consent, almost ignoring the argument and mentioning it only by way of a brief parenthetical that sets the argument aside, but subtly hints that the cancellation of consent may be legally questionable. Poterbin further argues that the connection between herself and her son is not false. Poterbin asserts that Doncic has admitted that Poterbin provided long-term assistance to him with his business affairs and that Doncic provided Poterbin with written consent to use and register the mark so that she could continue handling his business affairs associated with a line of goods and services listed in the registration. With respect to the abandonment issue, Poterbin argues that Doncic’s allegations in the petition (that “upon information and belief” the mark was not being used for any goods or services and that “upon information and belief” Poterbin lacked the intent to resume use of the mark) are insufficiently pled, insofar as Doncic did not provide any factual support for the allegations in the petition and did not demonstrate any reasonable inquiry into whether the mark was in fact abandoned. Of note, Poterbin does not contradict Doncic’s argument with any factual indication or evidence that the mark is, in fact, being commercially used or that she does intend to resume the use of the mark. The above articles were originally published by Lewis Brisbois Bisgaard & Smith’s The Official Review on October 13, 2022, and October 14, 2022. To view the posts, please click here and here.

It's old news at this point that IndyCar driver Colton Herta, who was being considered for a drive buy Red Bull and Alpha Tauri, will not be on the grid in 2023. While several factors influenced this final decision, one was certainly the difficulty and complexities around qualifying Herta for an FIA super license. Let's take a quick look at exactly what the regulations are, and why this was a problem for Herta. The FIA super license program was implemented in the wake of Red Bull signing Max Verstappen to Torro Rosso (now Alpha Tauri) In 2016. This was at the time a controversial move due to how young Verstappen was, completing his first race for the team before he had a road driver's license at the age of 17. The controversy that this created within the paddock prompted the FIA to adopt the “points system” they now use for attaining a super license, which is required by all drivers to compete. This points system awards drivers in various other racing series “points” depending on where they finish in the standings for that sport and require that a driver accrue 40 points before they can apply for a super license to race in Formula One. The issue with the system as implemented arises because this point system does not treat the different series as equals, with an obvious preference towards formula two and formula three, the lower “feeder” levels of Formula One With an apparent prejudice to the American racing series of IndyCar. The following graph, curtsey of The Race demonstrates the points that are awarded for finishing in the top 10 spots of F2, IndyCar, F3, and the FREC. For the sake of the argument, let's say you race in IndyCar, and finish 5th in the overall drivers standing for three years in a row. That would be a very impressive feat, as IndyCar is a professional racing series “on the same level” as Formula One (with its junior programs as well). After those three years in IndyCar, you would have accrued 24 super license points(8 per each year). Now let's say you finish first in the FREC, the “Formula Regional European Championship”—a well-contested but lower-level European championship between F2 and F3. Finishing 1st in that championship once leaves you with 25 super license points. Let that sink in for a moment—finishing 5th in a professional, well-respected, open-wheel championship in the United States is viewed as approximately 30% as valuable as winning an amateur but Formula One-affiliated championship. I'm not saying that finishing fifth should give the same number of points, but this demonstrates how undervalued IndyCar drivers are in this super license context. Another example would be finishing 5th in one season and 2nd your next season in IndyCar. This would still leave you 4 points shy of qualifying for a super license. Meanwhile, a driver could finish 4th and 5th in Formula 2 (an amateur feeder series) during that same time that you’re racing as a professional and be more than qualified for a super license (having 50 points overall) is frankly baffling. I understand that the hierarchy and pyramid structure of Formula One, formula two, formula three, etc. is important to promoting your in-house development programs, but the incredible discount shown to professional racing in IndyCar is eyebrow-raising at the very least. The FIA does have a rule that allows them to grant a super license if a driver has at least 30 points and is unable to otherwise qualify due to situations of force majeure, but they have never exercised this(and simply “not having enough points” isn’t force majeure), and it is obvious they did not plan to with Herta. I don't have the answers as to what would be a more appropriate award of super license points, but it is apparent that there is a negative bias that needs to be corrected within the rules. Especially as Formula One gains popularity in the United States and teams continue to look to drivers from the US to capitalize on this added interest, the disadvantage drivers have by participating as professional drivers in IndyCar needs to be remedied in some way moving forward. While the hopes for Herta in 2023 are dead on the vine, the FIA needs to be cognizant of these developments and issues with their current implementation of the super license system and work towards a “better” remedy. Zachary Bryson is a graduate of Wake Forest University with a B.A. in Economics and a Minor in Entrepreneurship. He is currently a JD candidate at Elon University School of Law, Class of 2023. You can connect with him via LinkedIn or follow him on Twitter at @ZacharySBryson.

First Reported by A.J. Perez of Front Office Sports, John Gruden v. The National Football League, et al. returned to court on Thursday. After District Court Judge Nancy Allf denied the National Football League’s (NFL) motion to compel arbitration last week, on Thursday, Judge Allf rejected the NFL’s attempt to seek a stay of the lawsuit pending an appeal Judge Allf’s decision. With the NFL running out of opportunities to force Gruden to arbitrate, this case inches closer to discovery, which could reveal much more about the league. Background In October 2021, Jon Gruden resigned as head coach of the Las Vegas Raiders after the New York Times revealed emails from Gruden, which included racist, misogynistic, and homophobic comments regarding individuals throughout the league. The emails, which Gruden sent prior to Gruden’s January 2018 contract with the Raiders, surfaced after the NFL launched an investigation into the then-named Washington Football Team, which included outside counsel reviewing over 650,000 emails and interviewing more than 150 witnesses. Gruden later settled with the Raiders. Allf’s Decision On Arbitration “A court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute[,]” wrote Judge Allf (citing Granite Rock Co. v. Int’l Bhd. Of Teamsters). Pertinent to Judge Allf’s decision was the contract language. Specifically, Gruden’s employment contract states that the agreement is entered into “by and between the Oakland Raiders . . . and Jon Gruden.” Although Commissioner Goodell did sign the employment contract to indicate Commissioner approval, Commissioner Goodell was not a party to the contract, nor was the NFL a party to the contract. Further, Judge Allf quickly disposed of the NFL’s argument that the bylaws and constitution require arbitration, noting “[w]hatever ability the NFL Parties may have had to compel arbitration under the [contract] expired as soon as Gruden and the Raiders terminated the Agreement.” Lastly, Allf noted that Gruden’s emails and conduct occurred before his employment with the Las Vegas Raiders. Thus, Judge Allf denied the motion to compel arbitration. Allf’s Decision On Staying The Lawsuit In response to Judge Allf’s decision, the NFL immediately sought to appeal the decision. As a part of the appeal, the NFL sought a stay of the lawsuit pending an appeal. Typically, for a judge to grant a stay pending an appeal, the party seeking a stay must demonstrate “a strong likelihood of success on the merits of its appeal.” Since Gruden’s conduct occurred before his return to the NFL, and the NFL was not a party to his employment contract with the Raiders, the NFL could not demonstrate a likelihood of success on the merits, and Judge Allf denied the motion to stay. The NFL can seek a stay with the Nevada Supreme Court and likely will exhaust all options to avoid litigation. With Washington Football Team owner Dan Snyder under the microscope, the NFL is eager to avoid going to discovery and potentially revealing more information from the Washington Football Team investigations. 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.

Jerry Reinsdorf, owner of the Chicago Bulls and White Sox. was prominently featured in the recent hit docu-series "The Last Dance" about Michael Jordan and the Bulls' dynasty. Reinsdorf now finds himself in hot legal water as a complaint has been filed against him in California. Here's a breakdown of the case: The Parties: The plaintiff is Tiana Waters, an African-American home health care worker hired by Reinsdorf to "render household services related to the care of his [ailing] sister," Judith. The Defendants in this case are Jerry Reinsdorf and unnamed defendants labeled DOES 1-50, who Ms. Waters believes are all responsible in some manner for the alleged events that caused the injuries and damages to her. Ms. Waters will seek leave of the Court so she can amend her complaint and reveal the names of DOES 1-50 and their capacities. Mr. Reinsdorf and DOES 1-50 were Ms. Waters' employers or other persons acting on behalf of the employer as defined by the Labor and Industrial Welfare Commission Order No.15 and Labor Code Section 558 and are therefore purportedly liable to Ms. Waters. The Jurisdiction and Venue: The Court has personal jurisdiction over Mr. Reinsdorf as he is either a citizen of the state, has sufficient minimum contacts in the state, or intentionally avails himself of the California market. Venue is proper because Mr. Reinsdorf conducts business in Los Angeles and the claims stem from Los Angeles. Facts: Mr. Reinsdorf hired Ms. Waters as a full-time employee in order to take care of his sister, Judth. During her time as an employee, Ms. Waters reported to Dr. Irwin Lehrhoff, an agent of Mr. Reinsdorf. Ms. Waters used medical tools and supplies provided in order to monitor Ms. Reinsdorf's health as well as provide further care. Ms. Waters worked at least five (5) days per week (Monday-Friday) from 7:00am - 7:00pm, occasionally working Saturdays and at times 24-48 hours straight. After a few months, Judith's daughter, Lara, came to live with Judith and began controlling the home healthcare workers including Ms. Waters. Dr. Lehrhoff was aware of and authorized Lara's conduct. During her employment, Ms. Waters was not encouraged to take a lunch break and when she did, was interrupted by the defendant who told her to perform work-related tasks during breaks. Ms. Waters did not receive compensation for the work done on her breaks. Ms. Waters was also required to track and email her hours the Katie Kermle, an assistant to the defendant. In July 2021, Lara requested Ms. Waters wear a baby monitor at all times or sit beside Judith during her shift to prevent her from experiencing seizures. Ms. Waters protested stating that stopping a seizure could result in death. Lara rejected this rationale and attacked Ms. Waters' culture stating her culture does not know when to "shut up" and should do their job. Ms. Waters brought this to the attention of Dr. Lehrhoff, however it changed nothing. Shortly after, Ms. Waters was fired. Ms. Waters states that she was incorrectly classified as an independent contractor rather than an employee which allowed the defendant to underpay her and deprive her of certain benefits given to employees. Complaints: Willful Misclassification (Labor Code §226.8) - Ms. Waters alleges that Mr. Reinsdorf wilfully misclassifed her as an independent contractor rather than an employee becauseMr. Reinsdorf and his agents retained control over the manner and means of accomplishing Ms. Waters business results such that an employer-employee relationship was established. Failure to Pay Compensation Due Upon Terminaion (Labor Code §201) - Ms. Waters alleged that she was not paid for all of the hours worked during her employment under Mr. Reinsdorf and alleged Mr. Reinsdorf willfully did not pay her after being fired. Failure to Pay all Wages for Ovetime (Labor Code §§519/1194) - Ms. Waters alleges that the defendant required and permitted her to work 77 (seventy-seven) hours per week and then failed to pay for the overtime associated with those hours. Failure to Provide Accurate Wage Statements (Labor Code §226) - Ms. Water alleges that the defendant failed to provide her with timely and accurate wage statements breaking down her gross salary, total hours, deductions made, and name and address of the employer. Ms. Waters also claims this was done knowingly and intentionally. Failure to Provide Rest Break (Labor Code §226.7) - Ms. Waters alleges that the defendant consistently interrupted her breaks and never encouraged Ms. Waters to take the break entitled to by law. Failure to Provide Meal Break (Labor Code §§226.7/512) - Ms. Waters alleges that she was not encouraged to and was interrupted during her lunch breaks. Waiting Time (Labor Code §§202/203) - Ms. Waters alleges that she has not been promptly paid following her termination of her employment on July 15, 2022 Unfair Competition (Business and Professions Code §17200) - Ms. Waters alleges that the misclassification as an independent contractor rather than an employer to avoid obligations of employee-protections is unfair and unlawful. Monetary Remedies Sought: For general damages of approximately $250,000.00; For special damages of approximately $250,000.00; For punitive damages of approximately $250,000.00 Evan Mattel is a 2L at Hofstra Law, Vice President of Hofstra's Sports and Entertainment Law Society, and Representative for the New York State Bar Association's Entertainment and Sports Law Section. He can be found on Twitter @Evan_Mattel21. Evan uncovered this lawsuit with Conduct's Jason Morrin. Jason is a Law Clerk (pending Bar admission) at Zumpano, Patricios, & Popok. He can be found on Twitter @Jason_Morrin.