Over the past two years, the power conferences outside of the SEC and Big Ten have suffered some pretty tough blows. In 2021, the Big 12 lost its two biggest brands in Texas and Oklahoma; and in the following year, the Pac-12 lost two of its flagship members in USC and UCLA. With those departures came a lot of speculation about the future of those respective conferences. In today’s college sports landscape where media rights revenue is paramount, how would the Big 12 and Pac-12 fare at the negotiation table? This weekend, we have our answer for the Big 12. After another thrilling Saturday of college football, Sports Business Journal reported that the Big 12 reached a deal with ESPN and Fox for a six-year deal worth an estimated $2.3 billion. The deal is an extension of their current deal with the two networks that expires in 2025 when Texas and Oklahoma will depart for the SEC. You might be asking: why a deal was already reached when the current rights didn’t expire until 2025? The answer to that question is that the new Big 12 Commissioner, Brett Yormark, wanted to beat the Pac-12 in announcing a new media rights agreement. Ever since the Pac-12 joined the Big 12 in the “Power Conference That Just Lost Two of its Biggest Brands Club,” there has been a lot of chatter about which conference has the brighter future. The Big 12 obviously had a year’s head start, and smartly replaced Texas and Oklahoma with BYU, Cincinnati, Houston, and UCF, four of the best schools not in a Power 5 conference at the time. The Pac-12 is still yet to announce any expansion plan to date, but their advantage came in the fact that their media rights deal expired sooner than the Big 12’s in 2024. After the Big Ten announced their lucrative deal earlier this fall, the Pac-12 looked to be “next in line” to ink a new deal. That advantage disappeared a few weeks ago when Brett Yormark announced that his conference was entering into negotiations early with its current media partners, ESPN and Fox. By opening their negotiations ahead of schedule, the Big 12 was contractually obligated to engage in discussions only with the two aforementioned networks. If it didn’t reach a deal with either ESPN or Fox in the exclusive negotiation window, the conference would’ve had to wait until 2024 to take its rights to the open market. So why did the Big 12 act so quickly when conventional wisdom might say to wait until all the networks could’ve bid on their media rights in this era where live sports are so coveted? While Yormark or any higher-ups in the Big 12 office might not publicly admit it, the answer is that by signing now, they have beaten the Pac-12 to the punch. Yormark has not been shy about his desire to transform the Big 12 into more of a national brand from coast to coast. The conference recently held a promotional blitz in New York City, where Yormark and other prominent Big 12 figures like Scott Drew and Bob Huggins made the rounds in the media capital of the world. In addition, Yormark has been extremely vocal and open to additional expansion. He’s expressed the desire to reach all four time zones (the Big 12 is currently in three of them) and has claimed the conference is “open for business.” By beating the Pac-12 to the finish line in terms of the announcement of a new media rights deal, it’s clear that the Big 12’s future is secure, but what about the Pac-12’s? Unlike Yormark, Pac-12 commissioner George Kliavkoff has taken more of a “quiet confidence” approach when it comes to his league’s future plans. He has hinted that a new media rights deal could come in the near future, but until anything is signed, speculation will only continue to grow. There’s no secret that the Big 12 has had its eyes on Pac-12 schools like Arizona, Arizona State, Colorado, and Utah ever since the USC and UCLA/Big Ten announcement earlier this year. Kliavkoff hasn’t spoken publicly much, but when he has, he’s expressed full confidence that the remaining ten Pac-12 members are committed to the conference long-term. The expectation of many is that the Pac-12 will stay intact, but until a media rights deal with a strong grant of rights is signed, nothing is 100% certain. With the Big 12 signing their new media rights deal, those schools now have a tangible number to look at if they have the slightest interest in moving away from the Pac-12. The Big 12’s deal is expected to include a clause that may incentivize the conference to grow again where additional teams joining the league would receive a pro-rata share of the revenue. As someone who loves college athletics as a whole, I believe that the best-case scenario is for all conferences to be as healthy as can be. The Big Ten and SEC have separated themselves from the rest in the past few years, but that doesn’t mean there aren’t amazing schools with great athletic programs in the ACC, Big 12, Pac-12, American Athletic, Sun Belt, etc. Hopefully, the Pac-12 lands a great media rights deal in the coming weeks that secures their future like the Big 12 did this weekend. There is a lot of speculation that the Pac-12 could partner heavily with a streaming service looking to invest more in live sports like Amazon or Apple. We’ll see if the Pac-12 can match or even exceed the Big 12 in terms of annual payouts, especially considering they have only ten members to satisfy the Big 12’s twelve. When and if the deal is signed, we’ll have coverage of it here at Conduct Detrimental. Brendan can be found on Twitter @_bbell5

By Daniel Wallach In the more than 100-year history of the NFL, no team owner has ever been compelled by the league’s rules to sell his or her team due to personal misconduct. Dan Snyder, the embattled owner of the Washington Commanders, is poised to become the first person to earn that dubious distinction. After years of enduring one controversy after another involving Snyder, his fellow owners may finally be ready to move against him. At last week’s NFL Fall League Meeting in New York, Colts owner Jim Irsay told assembled media members during an impromptu press conference that he believes “that there’s merit to remove him as owner of the [Commanders].” However, it’s not as simple as convening an immediate voice vote among the owners. There’s a process that has to be followed. And, of course, you need facts. But those facts may soon arrive in the form of an investigative report by former United States Attorney Mary Jo White, who was hired by the league earlier this year to look into allegations of sexual misconduct made against Snyder by former team employee Tiffani Johnston, who told a congressional roundtable in February that Snyder harassed her at a team dinner, put his hands on her thigh, and later tried to push her into a limousine with his hand on her lower back. The scope of White’s investigation has since widened to include allegations of financial misconduct against the Commanders organization focusing primarily on the underreporting of visiting teams’ ticket revenues. Depending on her findings, White’s investigative report – which hopefully will be made public – could be the bombshell that triggers the commencement of NFL disciplinary proceedings against Snyder to force him to sell the Commanders. “It all flows from the Mary Jo White Report,” said Sports Business Journal’s NFL reporter Ben Fischer, a recent guest on the ‘Conduct Detrimental’ podcast. Fischer added that “we’re going to know within an hour of reading the report whether it sets out the basis for moving against Snyder. And from there I think it moves quickly.” And moving “quickly” means to a disciplinary proceeding governed by the NFL Constitution and Bylaws. Get ready to hear all about a “Section 8.13(B) proceeding.” No, it’s not quite the “Section 8” that Corporal Maxwell Q. Klinger pursued to no avail on the M*A*S*H television series. Section 8.13(B) is the specific provision of the NFL Constitution and Bylaws that spells out the disciplinary process and hearing procedures for determining whether an owner has engaged in the type of conduct that would warrant the forced sale of his ownership interest. The process can be initiated by the NFL Commissioner or by any team owner There are two different ways that a disciplinary proceeding against an owner can be initiated under the Constitution and Bylaws. The first is through action taken by the NFL Commissioner, who is empowered under Section 8.13(A) to discipline an owner if the Commissioner determines – following “notice and a hearing” – that the owner has “either violated the Constitution . . . or has been or is guilty of conduct detrimental to the welfare of the League or professional football.” Upon such a finding, the Commissioner has the “complete authority” under Section 8.13(A) to suspend the owner, cancel any of his contracts with the league, or impose a fine against such owner in an amount not to exceed $500,000. However, if the Commissioner believes that such penalties are not “adequate or sufficient, considering the nature and gravity of the offense involved,” he can exercise his authority under Section 8.13(B) to “refer” the matter to the League’s Executive Committee – a 32-member body comprised of one representative appointed by each member club – with a recommendation that the owner’s interest in the team be cancelled or forfeited in accordance with the ‘forced sale’ procedures set forth in Section 3.8(B). Alternatively, under Section 8.13(B), “any member of the Executive Committee” may refer charges “against a member or the holder of any interest therein” on the ground that such member or holder “has violated the provisions of the Constitution and Bylaws or is or has been guilty of conduct detrimental to the League or to professional football.” Upon the referral of such charges to the Secretary of the League, the Commissioner is required to undertake an investigation “as he deems appropriate.” Upon the completion of such investigation, the Commissioner must “submit a copy of the charges by mail to each member club and to the member or person against whom such charges have been made and shall make his recommendation thereon to the member clubs.” The member or person charged would then have 15 days to file a written answer to the charges. What is the advantage of one mechanism over the other? From the NFL’s vantagepoint, it might be preferable to have Commissioner Goodell take the initial action pursuant to his authority under Section 8.13(A) for two important reasons. First, there is language in Article 8 stating that “any ruling or decision by the Commissioner,” upon the ratification by an affirmative vote of no less than three-fourths of the members of the league, “shall be final, conclusive, and unappealable” and any party involved in or affected by such decision “agrees to release and waive” any and all claims arising out that decision. In other words, a disciplinary process initiated by the Commissioner might be insulated from any post-hearing judicial attack. By contrast, there is no similar language with respect to disciplinary proceedings that are instituted by an Executive Committee member pursuant to Section 8.13(B). Second, a ‘Commissioner-initiated’ process pursuant to Section 8.13(A) would ensure that Snyder receives two separate hearings – the one mandated under Section 8.13(A) during the initial proceedings before the Commissioner, and then the one provided under Section 8.13(B) following the Commissioner’s referral to the Executive Committee. While potentially duplicative, having the process initiated by the Commissioner rather than by one of Snyder’s fellow owners – and affording him the maximum number of hearings that are contemplated by Section 8.13 – would help the NFL neutralize any potential arguments by Snyder that the NFL failed to follow its own rules, did not provide him with a fair hearing, or that the owners colluded against him – any one of which could be grounds for overturning the NFL’s decision in court. The “special meeting” has no limits on the evidence that can be introduced The next step – regardless of whether it is a Commissioner referral under Section 8.13(A) or an Executive Committee member referral under Section 8.13(B) – would be the scheduling of a “special meeting” to hear the charges against Snyder. Under the NFL Constitution and Bylaws, a “special meeting” can be called by the Commissioner with as little as 7 days’ advance notice. Section 8.13(B) provides that the Commissioner shall be the “presiding officer” at the meeting unless he is the complainant. (The Commissioner would presumably be the “complainant” on his own referral to the Executive Committee pursuant to Section 8.13(A)). In such event, the presiding officer shall be elected by a majority vote of the members attending the meeting. (Spoiler alert: don’t look for Sue Robinson to be in the running for that role. Just a hunch). The special meeting itself is tantamount to an evidentiary hearing. Snyder would have the right to appear in person and be represented by counsel. Crucially, there are no limits on the evidence that can be introduced and admitted at the hearing. While Section 8.13(B) states that “[s]trict rules of evidence shall not apply, it also provides that “any testimony and documentary evidence submitted to the hearing shall be considered.” The use of the mandatory “shall” strongly suggests that the presiding officer has no discretion to disallow any testimony or documentary evidence submitted, regardless of whether it satisfies the judicial standard for admissibility. This flexible evidentiary standard could be a double-edged sword for both sides. While it would presumably allow the NFL to introduce evidence of the Washington Commanders’ payment of $1.6 million to settle a sexual misconduct claim against Snyder stemming from an alleged 2009 incident – such payments are normally inadmissible in court – it would also open the door for Snyder to introduce evidence that he has reportedly gathered against his fellow NFL owners in an attempt to show that he is being treated differently (i.e., worse) than others in the ownership ranks who have allegedly committed similar offenses but were never subjected to discipline. If the presiding hearing officer refuses to allow such evidence to be introduced at the special meeting despite Section 8.13(B)’s declaration that “any testimony and documentary evidence . . . shall be considered,” Snyder would have a credible argument that the NFL failed to follow its own hearing rules – thereby permitting a federal court to depart from the general rule of judicial non-interference with respect to the internal decisions of private associations such as the NFL. On the other hand, the allowance of such evidence could create a different kind of problem for the league – the risk that harmful or embarrassing information concerning any NFL owner would find its way into the public domain. This dynamic could spark a separate battle between Snyder and his fellow owners over whether the special meeting should be transcribed by a court reporter. For obvious reasons, the league – and most of the owners – would prefer that there be no hearing transcript at all, particularly if Snyder is going to introduce evidence of other owners’ personal misdeeds. However, Snyder would presumably want the special meeting to be transcribed in anticipation of later challenging the league’s disciplinary decision, including the fairness of the hearing, in federal or state court. Without a transcript of the hearing, any judicial inquiry into the fairness of the league’s hearing against Snyder might be a Sisyphean task. Thus, the league’s refusal to allow the hearing to be transcribed could present an additional legal risk to the NFL. No requirement that incriminating evidence be disclosed prior to the hearing Despite the adversarial nature of these proceedings – which in many ways resembles a trial – there is no requirement under the NFL Constitution that the league furnish Snyder with copies of any evidentiary material that will be used against him in advance of the hearing. This is in stark contrast to the way that discovery usually works in judicial proceedings, where there is typically a mutual exchange of documentary evidence well before the trial to prevent any unfair surprise. Even player discipline cases under Article 46 of the CBA contemplate an exchange of exhibits at least 10 days prior to the hearing. Instead, Section 8.13(B) merely affords Snyder the right to “an adjournment for a reasonable time to enable . . . him to present rebuttal evidence.” Depending on the magnitude of the evidence presented – and whether and to what extent an adjournment is granted – Snyder could point to this provision in later arguing that he was denied a fair hearing. The eagerly anticipated Mary Jo White investigative report will likely be at the center of any dispute over the reasonableness of any adjournment granted to Snyder. White’s investigation has already lasted more than six months and will likely encompass multiple subjects, a multi-year time horizon (particularly on the allegations of financial misconduct), dozens of witness interviews, and the review of thousands of documents. Given the expected scope and magnitude of the report, would the NFL have an unfair advantage by being able to present this evidentiary material at the hearing without having previously disclosed such material to Snyder? Would it be unfair and prejudicial to Snyder to grant him an adjournment of only a few weeks when White had nearly one full year to review the same documents and witness testimony prior to rendering her findings? Would the verdict against Snyder already be a fait accompli by the time an adjournment is granted because of Snyder’s counsel’s inability to effectively address in real time those evidentiary materials that had not been previously or fully disclosed to Snyder? Would the jurors – the other 31 owners – have already made up their minds by the time the hearing resumes after an adjournment? Given the potential risk of a court determining that this delayed evidentiary disclosure would deprive Snyder of a fundamentally fair hearing, it might be prudent for the NFL to provide Snyder and his legal counsel with copies of all the evidentiary material that it will be relying on prior to the commencement of the hearing and to delay the start of the hearing for a reasonable period of time – such as one month – to allow for meaningful review of these materials. What is the applicable burden of proof? The NFL Constitution and Bylaws do not specify the burden of proof that applies to disciplinary proceedings pursuant to Section 8.13(B). The term “burden of proof” refers to the obligation imposed upon a party, who alleges a fact or set of facts, to establish the existence thereof by a legally sufficient weight of the evidence. The customary degree of proof in non-criminal cases is the “preponderance of the evidence” standard. This is the standard that the league will likely use in any disciplinary proceeding against Snyder since it already employs that standard in other discipline cases – albeit, involving players – who allegedly committed ‘conduct detrimental’ to the integrity of the league. Under a preponderance of the evidence standard, the league would have to show that it was “more probable than not” that Snyder engaged in the alleged conduct. 24 out of 31 owners have to vote in favor of sustaining the charges Most important decisions under the NFL Constitution and Bylaws have to be approved by a vote of at least three-fourths of the owners of the member teams. A disciplinary proceeding under Section 8.13(B) to terminate an owner’s interest in a member team is no different, requiring an affirmative vote of not less than three-fourths of the member teams, “excluding the vote of any member in which the person charged has an interest.” Excluding the Washington Commanders, an affirmative vote of at least 24 member teams would be required “to sustain the charges” against Snyder. A ‘forced sale’ is the likely punishment, but not the only option In determining the penalty to be imposed against Snyder, the other 31 owners are not restricted to forcing him to sell his ownership interest. As Section 8.13(B) makes plain, the Executive Committee “may impose such other or additional discipline or punishment as it may decide.” For example, in lieu of a forced sale, the Executive Committee could instead decide to impose a monetary fine against Snyder in an amount higher than the $500,000 maximum to which the Commissioner is limited under Section 8.13(A). But the likelihood here is that the Executive Committee – presumably based on the Commissioner’s recommendation – would vote to terminate Snyder’s interest in the Commanders. If that were to happen, Snyder would be required to sell or dispose of his interest in the team pursuant to the procedure outlined in Section 3.8(B). Snyder would have 120 days to sell the team, otherwise arbitrators fix the price Under Section 3.8(B), Snyder would have 120 days to “complete” the sale or disposition of his ownership interest in the Washington Commanders’ franchise. If he cannot accomplish this within 120 days, then the price and other terms of the sale or disposition “would be fixed by mutual agreement” between Snyder and Commissioner Goodell. If that cannot be accomplished by mutual agreement, “then the price and other terms shall be fixed by arbitration” with one arbitrator to be selected by the Commissioner and the other by Snyder. If within five (5) days the two arbitrators cannot agree on the price and terms, “then the two arbitrators shall select a third arbitrator and the decision of the majority of the arbitrators shall be binding on all parties.” This process seems archaic and ill-suited for the current sports franchise marketplace. When this provision was written in the early1970’s, NFL teams were not selling for several billion dollars, or even hundreds of millions of dollars. In 1971, Robert Irsay purchased the Los Angeles Rams for $17 million – and then traded the Rams to Carroll Rosenbloom in exchange for the Baltimore Colts. At that price point – long before the advent of cable television and the internet – it might have made sense for the sales price of a terminated interest to be “fixed” by an arbitration panel – even in the absence of a ready, willing and able buyer. The NFL could just pay the “arbitrated” purchase price and run the team in the interim until it is eventually resold to a qualified bidder. In the current environment – with the Commanders valued in excess of $5 billion – it is far from a given that a franchise sale would close within 120 days. While the Denver Broncos sold in far less time, the sale of the New York Mets took months to be consummated. A hard and fast deadline would work to the disadvantage of Snyder – and derivatively to all other NFL owners – because a prospective buyer could gain leverage as time winds down on the 120-day clock and keep the price from spiraling upward. Likewise, having an arbitration panel decide the value of the franchise in a vacuum – without a qualified bidder and with so much uncertainty surrounding the location and funding of a new stadium – seems impractical well. With these uncertainties and no buyer, an arbitrated price seems destined to lead to a lower, rather than a higher, valuation. This risk is magnified, if, as expected, Snyder files a lawsuit to overturn the NFL’s decision to terminate his ownership interest and force a sale. Because of the potential for irreparable harm caused by the mandatory 120-day selling window, Snyder would likely seek a temporary restraining order or preliminary injunction to preserve the status quo while he continues to litigate the case. But what if he does not succeed in securing such relief? He would then face the prospect of having to solicit bids for the team while simultaneously arguing in court that he should not have to sell the team. This would inevitably result in the lapse of the 120-day period, the likely failure to reach an agreement on a price with Commissioner Goodell, and the valuation of the team being determined by an arbitration panel in the absence of any bidding environment. This would not be in the best interests of Snyder, the league, or the other 31 owners (who would stand to benefit from the Commanders selling for the highest price possible). Perhaps this is one area where it might make sense for the parties to agree to stay the Section 3.8(B) process during the pendency of any litigation, while allowing for the possibility of a voluntary sale without the constraints imposed by Section 3.8(B) and without prejudice to the legal rights of any party. What potential lawsuit claims can Snyder assert? Any legal effort by Snyder to use the court system to overturn the league’s decision to oust him faces a steep uphill climb. For starters, he will have to overcome language in Section 8.13(B) stating that any ruling or decision to cancel or terminate a person’s ownership interest for ‘conduct detrimental’ to the welfare of the league “shall be final, conclusive, and unappealable,” and, further, that the person involved in or affected by such decision “agrees to release and waive any and all claims that such party may now or hereafter have . . . arising out of or connected with such decision” against the Commissioner, “as well as against the League and any officer or employee thereof and every member club therein.” Such provisions are typically enforced by the courts, although there are exceptions for fraud, duress, lack of consideration, and mutual mistake. But even assuming that Snyder can overcome that formidable legal hurdle, he must still contend with the fact that the NFL is a private association. Courts are generally reluctant to interfere with the internal decisions of private associations, deferring to the principle that courts are ill-equipped to resolve conflicts involving the interpretation of the organization’s own rules. There are, however, several recognized exceptions to this general rule of judicial non-interference. For example, courts may review the disciplinary decisions of private associations if the entity failed to follow its own rules, failed to provide a fair hearing and/or fair procedures, acted arbitrarily and/or capriciously, or its decisionmaking was the product of fraud, bias, illegality, or collusion. Along those lines, Snyder could assert that the league acted arbitrarily and capriciously in forcing him to sell his interest when other owners accused of similar misconduct – such as Jerry Jones and Robert Kraft – were never suspended or even investigated. As one court aptly put it, “[d]isparate treatment of similar situations is the essence of ‘arbitrary and capricious.’” This also implicates the related issue of “fair notice.” Ironically, Snyder could invoke the same legal argument that Deshaun Watson somewhat successfully raised in his recent disciplinary case – i.e., that he did not have ‘fair notice’ that he would face expulsion for alleged misconduct that other similarly situated individuals – such as Jones and Kraft – engaged in without any league repercussions. In advancing this argument, Snyder would lean heavily on Judge Sue Robinson’s “fair notice” analysis in the Watson case. In declining to suspend Watson for the entirety of the 2022 NFL season, Judge Robinson held that principles of “fair notice” and “consistency of treatment among players similarly situated” required her to reject the NFL’s request, which she characterized as both a “dramatic” and “extraordinary change” in position when compared to past disciplinary cases.” As Judge Robinson explained, “[d]efining prohibited conduct plays a critical role in the rule of law, enabling people to predict the consequences of their behavior,” adding that “[it] is inherently unfair to identify conduct as prohibited only after the conduct has been committed, just as it is inherently unjust to change the penalties for such conduct after the fact.” Even while the acknowledging the league’s flexibility as a private association – allowing it to seemingly operate “as it deems fit” – Judge Robinson stated that “the post-hoc determination of what constitutes prohibited conduct . . . cannot genuinely satisfy the ‘fairness’ prong of the standard of review or justify the imposition of the unprecedented sanction requested by the NFL.” Citing Judge Robinson’s analysis, Snyder could likewise argue that the “prohibited conduct” in his case is not defined. Presumably, the forced sale of Snyder's ownership interest would be grounded on a finding that he committed "conduct detrimental to the welfare of the league." However, the term “conduct detrimental” is not defined anywhere in the NFL Constitution and Bylaws, even though it is it is mentioned over 20 times. Further, Article IX – revealingly entitled “Prohibited Conduct” – provides specific examples of what constitutes “conduct detrimental.” Section 9.1(A) thereof states that “[t[]he violation of any of the provisions of this Article IX shall constitute conduct detrimental to the League and professional football.” Article IX then proceeds to list numerous examples of “prohibited conduct” that rises to the level of “conduct detrimental to the League and professional football,” spanning some eight pages. Notably, none encompass criminal activities, sexual assault, sexual harassment, or other forms of personal misconduct. According to the canon of ejusdem generis, a general term (such as 'conduct detrimental') should be defined in light of the specific examples provided. Snyder could also point to Section 6.5(G), which empowers the NFL's 32-member Executive Committee to suspend or remove the Commissioner from office for "conduct detrimental to the best interests of the league" if he "shall be convicted of a crime involving moral turpitude." If a criminal conviction is the minimum threshold for suspending or removing the league's highest-ranking employee, then how can allegations which never led to criminal charges serve as the basis for removing an owner? Snyder could argue that since the league knew how to equate 'conduct detrimental' with crimes of moral turpitude when it came to the removal of the Commissioner, its failure to use similar language to justify the removal of an owner under Section 8.13(B) was intentional, further bolstering his claim that he was not given "fair notice" of the severity of the discipline. The disparate treatment of Snyder could also fuel a federal antitrust lawsuit, according to Alan Milstein, a prominent New Jersey sports lawyer with experience in antitrust issues. According to Milstein, "Snyder would likely rush to DC Federal Court seeking an injunction claiming the other NFL owners conspired to unlawfully force him to sell the team in violation of the antitrust laws." Milstein explains that "[f]or antitrust purposes, the league is not a single entity but an association of individual corporate entities which compete not just on the field but in the marketplace." He added that "[u]nder the rule of reason," which is the legal standard that applies to such claims, "Snyder would argue that the evidence he reportedly gathered against his fellow owners demonstrates he is being treated differently than others who have committed offenses that the league had assisted in covering up to its economic advantage." Snyder's chances of success on that claim "would largely depend on the quality and quantity of that evidence," Milstein added. Finally, Snyder could try to overturn his expulsion in court by asserting that the other owners "colluded" with one another to force him out of the league. “Collusion” – which is another one of the recognized exceptions to the general rule of judicial non-interference – has been defined as “secret cooperation for a fraudulent or deceitful purpose.” Here, Snyder would likely point to Jim Irsay’s recent statement that “there’s merit to remove” Snyder as evidencing a preordained decision by the other owners to jettison Snyder before any charges have been filed, suggesting that the eventual hearing will be nothing more than a ‘show’ trial. Further, to the extent that Irsay’s comments were influenced by anything he learned as a result of the NFL’s prior investigation of Snyder overseen by attorney Beth Wilkinson, Snyder could raise yet another legal argument familiar to longtime NFL observers – i.e., that the league is “retroactively” applying its policy to conduct for which Snyder has already been punished , in violation of “fair notice” requirements and the ex post facto clause of the U.S. Constitution. As you can see, there is no shortage of legal arguments that Snyder could raise in an attempt to remain part of an exclusive fraternity that seemingly no longer wants him. While the owners should have little difficulty getting to 24 votes, they may soon regret not amending the NFL Constitution and Bylaws's outdated disciplinary apparatus when they had the chance. The current document -- which is a vestige from the early 1970's -- contains a number of flaws and inconsistencies that could give Snyder several viable points of entry for challenging any decision to expel him. The bottom line: it won’t be so easy getting rid of Dan Snyder. *Daniel Wallach is the co-founder of Conduct Detrimental. He is a nationally recognized gaming and sports betting attorney. You can follow him on Twitter at @WALLACHLEGAL.

Earlier this week, Russian courts decided to deny WNBA star Britney Griner’s appeal of her nine-year prison sentence. As a result, Griner will be transferred from a prison in Moscow to a “remote” penal colony elsewhere in Russia. This result comes as no surprise but offers us another opportunity to examine the surrounding circumstances. At this point, most people have heard of this situation from the coverage in mainstream and sports-related media over the past 8 months, but it is worth a quick synopsis. In February of this year, Griner was arrested for allegedly possessing cannabis oil in her luggage while in Russia and was then sentenced to nine years in a Russian prison as a result of “smuggling” the product. Griner has apologized to her friends and family for her mistake of having these in her luggage. Both president Joe Biden and WNBA commissioner Kathy Engelbert have condemned these actions and have promised to “work with Griner” and Russia to get her home “as quickly as possible,” with her still being in custody 8 months later with her conviction upheld in court. All of this comes at a time when possession of cannabis in the United States is being widely decriminalized, but usage by professional athletes continues to be considered a violation of league rules across the country. This situation has obviously become an international political issue with wide-ranging implications, but it also raises some important questions about women’s sports here in the US—many of which are overshadowed and under-discussed given these geopolitical undertones. It's important to note the reason Greiner was even in Russia in the first place, which serves to highlight certain issues within the WNBA itself. Important Disclaimer: I am not an expert on geopolitical issues, and there is no question this situation involves a lot of complex geopolitical issues. As someone who covers important sports and legal issues here with Conduct Detrimental, the Griner situation offers an interesting perspective into structural issues faced by the WNBA as a whole that warrant discussion—and while impossible to talk about in a way that ignores the greater political forces and issues, I do my best to analyze this from a more organizational perspective to illustrate the context and sports-centric issues highlighted by the existence of this situation. Why Griner Was in Russia in the First Place Griner was in Russia during the WNBA’s offseason playing for UMMC Ekaterinburg, a Russian Women's Basketball Premier League [RWBPL], which is Russia’s equivalent of the WNBA. Playing for an overseas team in the off-season is quite common for WNBA players, but in most other professional sports in the United States is not something that occurs with any regularity—and in many situations is outright prohibited. The reason for the prevalence of this practice is simple and ultimately comes down to earning potential. Griner—whose accomplishments include being the only women’s basketball player in NCAA history to record 2,000 points and also 500 blocked shots, three-time All-American, 2012 AP Player of the year and Most Outstanding Player of the Year, and Olympic gold medalist (among many other accolades)—is currently on a three-year, $644,544 contract with the Phoenix Mercury. That translates to an average yearly salary of $221,515 annually. Within the WNBA as a whole, the minimum annual salary is $60,000, with a supermax contract in the league being approximately $228,094. The salary cap for WNBA teams is currently around 1.4 million dollars. For some perspective, The NBA’s salary cap for 2022 is approximately 122 million dollars, with the minimum rookie salary being slightly over $1 million, with a supermax contract having a value of up to 35% of the team’s entire salary cap, increasing by 8% annually. Currently, the highest supermax contract for an NBA player is held by Nikola Jokic, who signed his supermax extension with the Nuggets earlier this year for an additional 264 million (an average of 52.8 million dollars annually). This means that a WNBA supermax contract is worth only around 0.4% of Jokic’s 2022 supermax contract in the NBA. This disparity is ultimately the reason so many WNBA players also compete overseas and essentially year-round. Griner’s RWBPL contract Was approximately $1,000,000 a year—meaning she was making 77% more per year by playing in Russia than she was in the US. This phenomenon of playing overseas in the offseason is almost ubiquitous within the WNBA because these athletes are rightfully attempting to maximize their earning potential in overseas leagues that are more respected and celebrated (and thus can pay them more). WNBA CBA Agreement An issue that arises with these players participating in these overseas leagues is the schedule does not always line up well with the WNBA season. Most of the international leagues tend to occur during the winter (the offseason for the WNBA), with teams that are good enough to compete in the championship having their seasons extended into late February or early March regularly. training camp for WNBA teams begins in February, posing a direct conflict with four players participating in both leagues. At the start of the 2021 WNBA season, 35 players reported to training camp “late” and 12 missed at least one game at the start of the season. The WNBA players and owners came to a new collective bargaining agreement in 2020, which threatens this accepted industry norm of playing in overseas leagues by adding a “prioritization” requirement for players. According to the CBA, starting with the 2023 season any player who does not report by the beginning of training camp will potentially face punitive repercussions through the use of fines, and if a player misses the first game of the season they will be suspended for the entire season. In 2024 the rules become more strict, with players missing the start of training camp being suspended without exception. On the one hand, I do understand where the league and its owners are coming from with the implementation of this rule. If you have a contracted player whose duties include reporting to training camp and actually playing in games, you want to ensure that they are actually there when they're supposed to be. However, I think this rule also has its issues. The reason these players are reporting late is that they're playing in overseas leagues that are paying them more. What incentive does a player have to leave an overseas league early when that league is paying them over $1,000,000 a year to make it back on time for a league that only allows them to be paid a maximum of less than 1/3 of that? I understand why ownership felt this rule was necessary, but it ultimately just treats a symptom of the underlying issue. Exposing That Underlying Issue The underlying issue here isn't that WNBA players aren't reporting on time to camp, which is a symptom—it's that they aren't being paid enough in the first place. The WNBA is widely believed to have some of the best quality of talent for women's basketball in the world, but nowhere near the best salaries. These two things should go hand in hand—if you have the best talent and quality of play, economic logic suggests that that league also has the highest salaries. If you're playing in what is considered the premier women’s basketball league with the highest concentration of talent in the world, player salaries should reflect that. As mentioned above, with a WNBA supermax contract representing as little as 20% of a player’s salary in an overseas league like the RWBPL, there are clear issues of equity that exist between the WNBA and these overseas women’s basketball leagues. The WNBA has been around for 25 years at this point. It is not some new upstart league, and it is directly affiliated with the NBA. The fact that the WNBA is set up and managed differently than many international leagues is not enough of an excuse to have players maximum salaries being less than 20% of what they could make by playing in leagues that are seen as lesser from a competitive standpoint—and in a league where a supermax contract is worth less 0.4% of the constituent male leagues supermax. The NBA tends to be one of the more socially conscious of the major United States professional sports leagues, but they're not doing enough to actually promote gender and pay equality between the WNBA and these overseas leagues. As a result, the credibility of the NBA’s efforts and the WNBA itself is called into question by these direct inequalities between the two leagues in the US and the low pay provided to WNBA players compared to overseas leagues. Back to Griner We've now established that the reason Griner was even in Russia in the first place was to maximize her earning potential, something that the WNBA itself (as it currently functions) does not allow her to do. This inherent failing of the WNBA causes Griner and many other WNBA players to go overseas to potentially more hostile and legally strict countries in an attempt to maximize their earning potential. All of the political complications set aside, Griner’s situation would very likely not exist if the professional basketball leagues in the United States had more effectively tackled the issue of gender and pay inequality, and if these players were compensated at a more competitive level compared to (at least) these competing international leagues. Yes, Griner violated the law in Russia by having this cannabis oil in her luggage. Yes, there are going to be consequences for violating the law of whatever sovereign that you are in at the time. However, the only reason she was in Russia in the first place is because of this pay inequity between both the WNBA and international leagues and the NBA. This inequity is what created the circumstances in which this event unfolded in the first place. If pay in the WNBA was more equitable to (at the very least) these international leagues, the need for a prioritization rule in the new CBA agreement with harsh penalties would likely not be something that would be an issue, because there would be no impetus for these players to prioritize other leagues and opportunities over playing in the WNBA. I do not pretend that the Britney Griner situation is very complex because of the politics at work in the background. But don't let these political complications distract from the underlying issues that helped create the situation in the first place. Thinking about these structural reasons that Griner and other WNBA players are having to play basically year-round is important to consider as members of the sports law community so that we can work towards creating a more equitable environment for professional women's sports leagues here in the United States, so the leagues and the ways in which they are set up are both internationally and intranationally equitable. Zachary Bryson is a graduate from Wake Forest University with B.A. in Economics and a Minor in Entrepreneurship. He is currently 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

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.