After a frustrating first round of The Open last week, Bryson DeChambeau had some negative remarks towards his equipment, in particular his driver. In a post-round interview, DeChambeau said, “If I can hit it down the middle of the fairway, that’s great, but with the driver right now, the driver sucks. It’s not a good face for me, and we’re still trying to figure out how to make it good on the mis-hits.” He went on to say, “It’s literally the physics and the way that they build heads now. It’s not the right design, unfortunately, and we’ve been trying to fix it…” This understandably did not sit well with the people at Cobra Golf, who sponsor DeChambeau and manufacture his drivers. Ben Schomin, Cobra’s tour operations manager and a recent caddy for DeChambeau, told Golfweek, “Everybody is bending over backwards [for DeChambeau]. We’ve got multiple guys in R&D who are CAD-ing this and CAD-ing that, trying to get this and that into the pipeline faster. [DeChambeau] knows it. It’s just really, really painful when he says something that stupid. He has never really been happy, ever. Like, it’s very rare where he’s happy.” It’s not very often that professional athletes get into feuds with their sponsors, but when they do, the remarks made by the athlete could have significant ramifications including termination of the sponsorship. Almost every athlete endorsement agreement has legal language covering this exact type of scenario. Brands want to protect themselves from paying an athlete a good amount of money to endorse their brand and then have the athlete turn around and disparage the brand. Legally, a brand often includes language in the Termination section of an endorsement contract such as: “Brand may terminate or suspend this Agreement or withhold payment to Athlete in the event: (i) Athlete disparages Brand or its Products by Athlete’s words or conduct.” Some brands will even include a entire Non-Disparagement section in the endorsement contract that could read something like this: “Athlete hereby agrees that during the term of this Agreement and for ninety (90) days thereafter, Athlete will not make any statement or take any action that disparages, is derogatory, or is otherwise damaging to Brand and/or its subsidiaries. Violation of this provision is hereby deemed an incurable, material breach allowing for immediate termination of this Agreement.” Please note that these are not actual examples from DeChambeau’s agreement with Cobra, rather common language found in various athlete endorsement agreements. Although, it is very possible that Cobra includes similar language in their agreements with athletes. DeChambeau’s conduct almost certainly rises to the level of disparaging and derogatory towards Cobra. Although he did not expressly mention the Cobra brand in his rant, it was pretty apparent who he was talking about. Depending on the exact wording in his agreement with Cobra, it is cenceivable that DeChambeau’s actions rose to the amount of a breach of his endorsement agreement. DeChambeau later took to Instagram to apologize and walk back some of his comments. It remains to be seen if the relationship between DeChambeau and Cobra can be repaired. Of course, there are other factors involved when dealing with these situations but it is most likely the case that brands can suspend, withhold payments, and even terminate sponsorships over events like this one. Matt Haage is an attorney that has worked for four different sports agencies. He has reviewed hundreds of endorsement contracts for athletes in a wide variety of sports. Matt can be reached at [email protected].

There are few things that scare NHL fans more than not making the playoffs. There is the trade deadline, free agency, offseason trading and expansion drafts. All of these come with the possibility of a fan’s favorite player being traded to another organization. However, some trades are made with the player’s best interests in mind and can benefit the player in the long run. In recent weeks trade rumors have been surrounding the expansion draft for the NHL's 32nd team the Seattle Kraken but also the fate of Jack Eichel. Eichel is the current captain of the Buffalo Sabres and was drafted by the organization in 2016. He is the face of the Sabres and the organization’s highest-paid player. Eichel signed an 8 year / $80,000,000 contract with the Sabres. With five years left on his contract, Eichel may be looking to part with the Sabres after the handling of his neck injury. Eichel has not outright said he wants to be traded. However, teams like the Ducks, Flames, Wild, Golden Knights, Bruins, and Rangers are looking to acquire Eichel if he is traded On March 7, 2021, in a game against the New York Islanders, Eichel took a hit in the game that would ultimately end his season. Following the hit, Eichel was examined by team doctors and diagnosed with a herniated disc. While the injury ended his season, how to treat the injury is causing the most trouble. The Sabres organization is recommending a 12-week rehab, but Eichel is requesting surgery after seeking a second opinion. The surgery that he is requesting is a cervical disk replacement surgery, which has never been performed on an NHL player. Recovery time for this surgery is an average of 4 to 6 weeks. Eichel and general manager Kevyn Adams are at ends with each other despite trying to find common ground. However, a trade deal and the Collective Bargaining Agreement (CBA) may be on Eichel’s ticket to getting the surgery. The new CBA was approved in July of 2020 and is in effect until 2026. The CBA is a legal contract between the NHLPA and the NHL that sets out the terms and conditions of employment for all professional hockey players playing in the NHL, as well as the rights of the NHL Clubs, the NHL, and the NHLPA. Sections 32 to 50 lays out the Medical – Legal Issues of the agreement. Section 34 Second Medical Opinion List – Selection and Removal is applicable in Eichel’s situation. Attachment C of Section 34 says; “A Player may seek a second medical opinion regarding a diagnosis made by a team physician or a course of treatment (including the timing thereof) prescribed by a team physician ("Second Medical Opinion") from a list of medical specialists with outstanding reputations and experience in their area of expertise...”.[1] This allows Eichel to seek a second opinion after receiving a diagnosis or treatment from the Sabres’ medical team. Eichel was in his legal right to seek a second opinion after not agreeing with the team doctor’s recommendation for treatment. Potential teams looking to acquire Eichel may permit him to get the surgery that he wants. But it doesn’t seem likely that the Sabres will relent easily. The team is looking for young players and that could require teams to give up prospects and high-level draft picks to get Eichel. The complicated part of this is that the Sabres could limit teams’ access to Eichel’s medical records unless the trade is serious. If access to medical record is limited, teams may walk instead of going through the hassle. In the coming hours, days, and weeks, it will be interesting to see whether Eichel stays in Buffalo or is sent elsewhere. Either way, this will create fascinating NHL precedent moving forward. A trade could happen any second – stay tuned. [1]Collective Bargaining Agreement, The PA | NHLPA.com, www.nhlpa.com/the-pa/cba.

One issue that has not been greatly addressed with respect to student-athletes being able to monetize on their rights of publicity (i.e., name, image, and likeness – NIL) is how will universities and colleges monitor the use of their intellectual property (IP). Universities are very protective of their trademarks, copyrights, and any IP that is associated with the university. Time and time again, these institutions have asserted their rights against any number and type of organization or individual who attempts to use some aspect of a university’s IP, or something too similar, in a commercial manner. This could include logos, colors, names, mascots, likeness, or other that would be copyrighted or trademarked by the university or would readily associate with a university. For example, universities have gone after high schools for copying their logos or having too similar of a logo, have gone after apparel companies for using their trademarks and/or copyrights without permission, gone after breweries/distilleries for using a university’s likeness, and so on. With athletes now able to monetize their NIL, something to watch is how the athletes associate themselves with their universities, and how much leeway the universities will give the athletes. It is a given that at least some of the value of an athlete’s NIL is directly associated with his or her university. Fan bases, alumni, and even rivals know that athletes have short terms with a school, and thus, tend to root for or against a school as much as the athletes themselves. While it is true that some athletes may have greater popularity than the schools themselves, these are likely rare. Therefore, it will be beneficial to the athletes to be able to market themselves as an extension of the school itself, which may require use of colors, logos, names, or other IP of the school. The rulings of the Supreme Court and legislative acts to not allow for unmitigated use of a school’s IP for an athlete. Thus, it is likely that any attempt by an athlete to use an aspect of a school’s IP in a commercial manner will fun afoul of the university’s policies, and the university or other institution may need to make a determination whether to act against its own athlete and require them to stop use of the unlicensed IP, or to potentially take action and sue the athlete and any entity compensating the same as part of their use of their NIL. It will be a bit of a catch-22 for the universities – enforce their IP rights and risk athletes choosing to go elsewhere, or allow the unlicensed use of the IP, which could open the door to the weakening of the IP rights and inability to prevent others from using their IP. An easy solution will be education and working together between the universities and athletes. Bringing potential opportunities to the universities will allow them to evaluate the potential use of the university’s IP, and may even allow the university to license use to both the athlete and third-party working with the athlete, which can provide another revenue stream for universities. Take the following example, QB1 gets an opportunity to make money by selling t-shirts with their nickname. The t-shirts will include reference to QB1’s school in the use of the color schemes and helmets with logo. The school could license the use of the color/logo to QB1 and the apparel company, and all three could obtain a cut of any money made by sale of the shirts. Without the logo, the school would likely be able to stop any and all sales for violations of their trademark and/or copyright rights. While it is great that athletes are able to start making money on their rights of publicity, the universities will still be able to have at least some control on how they are presented. However it pans out, it is going to be a busy time to be in compliance and IP law associated with universities. UPDATE: On July 20, 2021, the University of North Carolina Tarheels announced a voluntary, Group Licensing Program for its current student athletes. The Program is intended to allow the athletes to “benefit from their NIL in conjunction with UNC's official trademarks and logos.” However, the athletes are not obligated to join this program, and are still able to negotiate their own licensing opportunities outside of the program.

Over the past month, we have seen the ripple effects of the NCAA’s suspension of Name, Image, and Likeness regulations span far and wide. This has spurred questions in more realms than anticipated - from the Barstool Athletes debacle to outstanding taxation and intellectual property debates. There is a reason this new NIL era has been coined the Wild West, and it continues to make waves today. The newest questions are centered around Ohio State’s latest five-star recruit, Quinn Ewers. The powerhouse quarterback is reported to have the potential to earn almost one million dollars in NIL deals, should he choose to forgo his senior season. As an athlete in the state of Texas, Ewers is unable to benefit off his name and likeness while still playing for his high school team. The state’s NIL laws state that no individual, corporate entity, or other organization may enter into any arrangement with a prospective college athlete relating to the athlete’s NIL prior to the athlete’s enrollment in an institution of higher education, a regulation that stands in stark contrast to opportunities other high schoolers have been able to cash in on with their NIL. Earlier this month, Mikey Williams made headlines when he became the first prep basketball player to sign with a prominent representation agency. The high school phenom is reported to rake in seven figures while still playing his final year at Vertical Academy in North Carolina. Unlike Ewers, Williams has no limitation on profiting off his NIL. Williams will continue to work towards his diploma while playing against top competition in showcases with his prep team. Vertical Academy is not under the governance of a state high school athletic association that puts restrictions on student-athletes monetizing their NIL. Instead of participating in a state sanctioned league, the Academy will function as a high level club team that will play against other prep schools. In a recent article by the National Federation of State High School Associations, the governing body said that their stance against its student-athletes profiting off their NIL was backed by concern for potential effects on the recruiting process and a want to keep high school athletics centered around the team. Coaches across the country have voiced fears of the detrimental repercussions players signing NIL deals could have on their team’s chemistry. Still, others have advocated for their players' right to profit. Regardless, Ewers still has the potential to make hundreds of thousands of dollars before playing a single snap of Division I football. With the starting position seemingly wide-open for the Buckeyes and the August 3rd camp start date looming, the eighteen year old has a heavy decision to make. Will he stay and hopefully lead his elite high school team to another state championship game, or will he cash in and head to Columbus early? Ewers expects to make his decision within the next week. Julie Chambers is a rising 2L at New England Law | Boston. For inquiries, email [email protected]. References: https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB01385F.pdf#navpanes=0)%0D https://www.espn.com/high-school/story/_/id/31861613/mikey-williams-signs-excel-sports-nil-deal-expected-generate-millions-high-school-basketball-star https://www.nfhs.org/articles/nil-rulings-do-not-change-for-high-school-student-athletes/

The NHL has begun investigating allegations that the San Jose Sharks left wing Evander Kane has been gambling on his own games. On an Instagram page purporting to be Evander’s wife, Anna Kane dropped some serious allegations that Evander has been working with bookies and betting on his own games. For purposes of this article, I will assume that the posts from the @A.Kane_ Instagram account truly came from Evander's wife, Anna Kane. That said, she made a crystal clear plea to the NHL and Commissioner Gary Bettman in her Instagram story stating: “@nhl Can someone ask Gary Bettman how they can let a player gamble on his own games? Bet and win with bookies on his own games?” Anna Kane also posted a screenshot on her Instagram, and explained in an Instagram story, that she received an alleged email from Evander which he gave her instructions on moving out of their house which was being taken by the bank and she had to sell her wedding ring. In a since-deleted story, Anna Kane stated: “How does the NHL let a compulsive gambling addict still play when he’s obviously throwing games with bookies to win money? Hmm maybe someone needs to address this.” Earlier this year, Evander’s financial troubles came to a head. In January, Evander filed for Chapter 7 bankruptcy in which he listed his liabilities as $26.8 million and admitted that $1.5 million of that was due to gambling. However, this wasn’t Evander’s first publicized gambling issue. In 2019, Evander was sued by The Cosmopolitan casino in Las Vegas, where they allegedly extended $500,000 of gambling markers to Evander, in April of 2019, that he allegedly failed to pay. Further in May 2021, Evander was sued for $15 million by a lender, Professional Bank, for allegedly defrauding the company on a loan application. This brings us to the NHL collective bargaining agreement (“CBA”). The CBA was ratified on January 12, 2013, and is effective until September 15, 2026, following a four-year extension in June 2020. Of most importance here is exhibit 14 “Form of Standard Club Rules” which states, “Gambling on any NHL game is prohibited.” (emphasis added). Article 18-A sets forth the commissioner discipline for off-ice conduct. The commissioner’s disciplinary authority is set out in 18-A.2, which states: “Whenever the Commissioner determines that a Player has violated a League Rule applicable to Players (other than Playing Rules subjecting the Player to potential Supplementary Discipline for On-Ice Conduct), or has been or is guilty of conduct (whether during or outside the playing season) that is detrimental to or against the welfare of the League or the game of hockey, he may discipline such Player in any or all of the following respects: (a) by expelling or suspending such Player for a definite or indefinite period; (b) by cancelling any SPC[1] that such Player has with any Member Club; or (c) by imposing a fine on the Player not exceeding the maximum permissible fine under Section 18.7(b).[2] The easiest comparison we can make in this situation is Pete Rose. Rose is known for two things in baseball: most hits of all time and his permanent ban from the MLB (preventing him from being elected to the Cooperstown Baseball Hall of Fame). Rose was a known gambler and, like Evander Kane, struggled financially.[3] On March 20, 1989, the MLB and Commissioner Peter Ueberroth began their investigation of tax and gambling issues involving Rose. After a two-month investigation, by special counsel John Dowd, a 225-page report resulted including records and testimonies that evidenced Rose had bet on the Reds when he was a player-manager and manager from 1985-1987. Ultimately on August 24, 1989, Rose voluntarily placed himself on baseball’s permanently ineligible list, and the MLB agreed not to release the investigation findings. Rose has remained on the ineligible list since 1989, despite his efforts to be reinstated. The NHL Public Relations tweeted out that they are conducting a full investigation into the aforementioned allegations. The next steps here are for Commissioner Gary Bettman to suspend Evander Kane indefinitely until they complete their investigation. Evander Kane could face future fines and the possibility of his SPC being cancelled. Worst of all, if the allegations prove to be true, Kane may never play in the NHL again... and the sport's relationship with gambling would be set back decades. Pete Rose, baseball... déjà vu. Mike Lawson is an Associate for O'Connell and Aronowitz in Albany, NY. He is the Producer of the Conduct Detrimental Podcast and can be reached on Twitter @Mike_sonof_Law. [1] Standard Player’s Contract. [2] A fine may be in an amount up to fifty percent (50%) of the Player's Paragraph 1 NHL Salary and Bonuses, but not including Performance Bonuses, divided by the number of days in the Regular Season, but in no event shall it exceed $10,000 for the first fine and $15,000 for any subsequent fine imposed in any rolling twelve (12) month calendar period. Player Salary and Bonuses forfeited due to a fine will be calculated based on a Player's Averaged Amount. [3] In 1990, Pete Rose pled guilty to two felony counts of filing false income tax returns, in which he was sentenced to six-months in prison and fined $50,000.

Evander Kane of the San Jose Sharks finds himself as the target of a bombshell allegation at the center of the hockey universe. The Sharks had a rough season after not making the playoffs, unfortunately the post season has not been kind to the organization either. Posts from an Instagram account (@A.Kane_) purporting to belong to Anna Kane, the wife of Evander Kane, accuse Evander of betting on and throwing games he played in to fund his gambling addiction. Again, for purposes of this article we will assume that the posts are actually coming from the real Anna Kane, which seems to be the case following Evander's statement, but more on that below. Some background is required here given Kane's lengthy litigation history and troublesome financial dealings. Evander Kane is the left winger of the Sharks and has been with the team since 2017. He is currently three seasons into a seven-year $49 million contract. Before delving into the current accusations, it is important to mention Kane’s past issues. In 2019, a Las Vegas Strip casino sued Kane alleging he failed to pay back a $500,000 gambling debt he racked up during a playoff series against the Golden Knights. Three days before the 2020-21 season Kane filed for bankruptcy, he is said to have had $26.8 in debt at the time he filed. More recently he was sued by Professional Bank for $15 million after the bank alleged he defrauded the company while securing a $1.5 million loan. In separate Instagram posts and stories, the @A.Kane_ Instagram account laid out a series of accusations against Evander Kane, some involving his alleged gambling, some about abandoning his children, and others about an alleged extra-marital affair. Essentially all of these posts -- including those that have since been deleted -- are detailed in the embedded Twitter thread below from the Co-Host of the Conduct Detrimental Podcast, Sports Attorney Dan Lust (@SportsLawLust): For sports purposes, the biggest accusation is certainly the claim that Kane gambled on his own games and even threw games to win money with bookies. In the first post it says, “How does the NHL let a compulsive gambling addict still play when he's obviously throwing games to win money? Hmm maybe someone needs to address this." In another post, the NHL account is tagged and asks “Can someone ask (NHL commissioner) Gary Bettman how they can let a player gamble on his own games? Bet and win with bookies on his own games?” In yet another, Kane is accused of abandoning his wife, their daughter, and their unborn son to party in Europe. In the same post it is said that their house was being taken by the bank, she had no money to purchase formula and she had to sell her wedding ring to have money. More posts go on to detail an alleged extra-marital affair. Whether or not these personal allegations have anything to do with the gambling is unclear. After the posts were made the National Hockey League and the Sharks organization quickly both made statements about the accusations. The National Hockey League released the following statement: "The League was made aware this evening of a post on social media alleging that San Jose Sharks Player Evander Kane bet on NHL games. The integrity of our game is paramount and the League takes these allegations very seriously. We intend to conduct a full investigation and will have no further comment at this time." A short time after the Sharks released their own statement: "The Sharks have been in contact today with the (NHL) about the serious allegations made against Evander Kane. We support a full and transparent investigation into the situation to maintain the integrity of the game and consistency with our team values." Evander Kane quickly addressed the allegations saying they were false and that he had never gambled on a hockey game, a Sharks game and has never thrown a game. Evander also addressed Anna as his estranged, soon to be ex – wife and claimed that she has kept him from seeing daughter. Overall, Evander said that he will cooperate with the NHL’s investigation and wants his name cleared. If these allegations are truly false, you would have to imagine his lawyers are contemplating bringing a defamation action. Defamation when someone publishes false statement that tend to harm another's reputation. Here, since Kane is a public figure— he'd need to establish that Anna Kane is making these accusations with “actual malice”. In other words, that she knows they are explicitly false but is making them anyway. An extremely high burden but it's been satisfied before. Keep in mind that - as we have laid out on Conduct Detrimental - the NHL Collective Bargaining Agreement does not explicitly advise what the investigation would entail or the maximum penalties that Kane could face. This is not a criminal case but it is similarly imperative to view Kane as innocent until proven guilty. Let’s see what concrete evidence -- if any -- comes out before we rush to judgment. One thing is clear, however, this type of allegation has simply not occurred in modern sports. Evander Kane's reputation is very much on the line and every singly move he makes moving forward will be dissected with a critical lens. One misstep could cost him his career. Jessica Shaw is the Secretary of the New York Law School Sports Law Society. She can be reached on Twitter @JessicaShaw22.

Here's an update on the developing story surrounding the MLB’s Cleveland Indians name change that we broke on ConductDetrimental.com. *** Out of all the names the Cleveland baseball team could have chosen to rebrand its team, they decided their best option was the Cleveland Guardians… despite the fact that a Cleveland-based roller derby team claimed the name back in 2011, along with the domain name (See ClevelandGuardians.com) and various social media accounts (Instagram and Facebook). It has been one week since the Indians made their official announcement and things are heating up in the Roller Derby vs. Baseball “Battle for Branding” – The latest news being that the local roller derby team filed a trademark application with the United States Patent and Trademark Office on July 27th for rights to “Cleveland Guardians.” Along with actively posting to their social media accounts and per their Facebook page, rolling out new merchandise, this new filing is just another indication that the roller derby team is not going to disappear like the Indians may have hoped. The baseball team filed their own trademark application days earlier on July 23. Does the date sound familiar? It should. It is the same day the team officially announced “Cleveland Guardians” as their new name. The Cleveland baseball team first filed trademark applications for the "Cleveland Guardians" on April 8 in the Republic of Mauritius, a small island near Africa. Why file in a foreign country you ask? The filings in Mauritius allow the team to claim April 8th as its priority date in the US. But unfortunately for the baseball Guardians, the derby Guardians still own and have control over the domain name and associated social media accounts. Not only that, but when there are conflicting trademark applications, the first-to-file does not mean automatic priority. Other considerations include whether there is only an intent to use the mark or if the mark has actually been used in the past are considered. Under U.S. trademark law, an Applicant that has filed an application to register their mark can assert priority against a user of an unregistered mark, so long as: (1) the Applicant has actually used the mark in commerce prior to the unregistered user’s use of the mark in commerce in the same geographical territory, or (2) the Applicant is able to successfully register their mark provided that (a) the Applicant filed the application for trademark registration prior to the date of actual use of the mark in commerce by the other unregistered user, and (b) the Applicant has either actually used the mark in commerce, or has shown a bonafide intention to use the mark in commerce at the time of filing the trademark application, followed by actual use within the specified amount of time. However, if the goods and services are distinguished in the product classes, the two companies may have similar names without trademark issues. This is because the guiding principle of trademarks is to avoid consumer confusion. It is likely that the roller derby and baseball team can be significantly distinguished, but that still does not relieve the baseball Guardians of all of their problems – see ClevelandGuardians.com. With nearly 2,700 votes, 88.6% believe that roller derby Guardians own ClevelandGuardians.com and should be able to make a substantial profit if they ultimately sell the domain to the baseball team. It has held the name for years and has proved its use of both the domain name and social media accounts, even advertising their 2022 tryouts just days after the baseball team’s announcement. Smart move. And not only that, advertising "new merch soon available at ClevelandGuardians.com!" a few days later on July 29. An even smarter move. Seemingly, the more noise they make, the bigger the payout they should receive. Luckily for the Washington Football Team, who is looking to announce its new name and logo in early 2022, this embarrassment will be tough to beat (not that Washington hasn’t had their fair share of embarrassment and mismanagement over the past year). Washington team president Jason Wright told ESPN that he hopes his team’s rebranding process is “as seamless as possible and of the quality it deserves so these little things, these gremlins that can pop up in the implementation process” are taken care of before rolling it out. I never thought I would say this, but maybe Washington should give the baseball team some much-needed advice. Per reports, the team apparently did conduct due diligence yet only mentioned potential conflicts with the New York Guardians of the XFL, Marvel’s Guardians of the Galaxy, or a mysterious December 25, 2020 trademark filing by Bryant Street Sports LLC that was then abandoned on July 27, 2021. From my perspective, it seems the Cleveland baseball team may have settled this earlier trademark and potentially paid the filer to withdraw its application. Conspicuously absent, however, is that they settled with the roller derby Guardians, as shown by the derby’s recent filing on the same day that Bryant Street Sports LLC abandoned theirs. Assuming that was the case, isn’t that worse? The question that no one has answered, and maybe the Indians legal counsel can, is what was the rush to announce this on July 23rd without having everything in order. From the roller derby Guardians’ July 27th trademark filing, it seems clear the trademark debacle was not solved either. My question for the baseball Guardians is, what were you thinking? Now you have to cut a check for the website domain name, related social media accounts, and now the trademark. The Cleveland baseball team seems to have two options here: either pay the roller derby team whatever they want or change the name… again. You’ve created a giant mess and you have no one to blame but yourselves. The premature announcement will likely cost the team millions, as the more hype the derby team receives, the more money they may have to fork over. There are no signs of the roller derby team slowing down and they may be rolling in a lot of dough once this debacle is all over. No pun intended. Lesson learned. Never underestimate a roller derby team. Stephanie is a recent graduate of New York Law School and a law clerk at Geragos & Geragos. You can find her on Twitter @SWeissenburger_ and Instagram @Steph_ExplainsItAll

With the signing period for players selected in the MLB First Year Player Draft recently concluded, the biggest headline that emerged was that the New York Mets were unable to sign their first round pick (10th overall), Kumar Rocker. Rocker had become one of the most famous college baseball players in this generation following his 19-strikeout No-Hitter and College World Series Most Outstanding Player Award in 2019. Entering this Spring, many lauded Rocker as being the top candidate to go first overall in this Summer’s MLB Draft. Although he was a First Team All-American for Vanderbilt, his performance didn’t live up to what scouts were looking for to go at the very top of the draft. Nonetheless, the Mets selected him in the top ten and many believed he was the ‘steal’ of the draft. Unlike some of the other drafts, the MLB signing bonus is negotiable around what is referred to as ‘slot-value’. Each pick in the first ten rounds has an assigned slot agreed upon by MLB and the MLBPA and each team has an assigned bonus pool they can spend according to the value of their picks. Past that, teams and agents are left to their own to determine what each player signs for. Shortly after the draft, all signs pointed to Rocker and the Mets agreeing on a $6 million signing bonus, $1.3 million above the assigned $4.7 slot value for the 10th overall pick. However, things got complicated from there, and Rocker didn’t end up signing. Let’s look at how we got here and why something like this shouldn’t happen moving forward. In the time from when the Mets drafted Kumar Rocker until the conclusion of the signing period, the Mets discovered some sort of medical issue with Rocker, obviously lessening their interest in extending him a $6 million signing bonus. While we will most likely never know where the negotiations and specific offers went from there, reports claim that the Mets either pulled their offer completely off the table or lessened it to a significant degree, which Rocker and his advisor, Scott Boras, likely scoffed at. Boras is known for not backing down or taking any discounts with his clients, and it led to Rocker not accepting anything below what he thought was acceptable. In compensation for not signing Rocker, the Mets will receive the 11th overall pick in the 2022 MLB Draft. In Rocker’s case, he can return to Vanderbilt for his Redshirt Junior season, although initial reports have ruled that out. In addition, he can begin his professional career in Independent League Baseball domestically in the United States or sign overseas in Japan or Korea. He is not allowed to sign with another MLB club as a free agent and will have to wait until the 2022 MLB Draft to do so. While it’s rare for a prospect drafted this high to not sign with the club that selects him, it is not unprecedented. In 2014, the Houston Astros decided to lessen their offer to high school pitcher, Brady Aiken (first overall), after his physical reportedly didn’t come back clean, and Aiken decided to take his talents to IMG Academy before being selected seventeenth overall by the Cleveland Indians the next year. If it makes Mets fans feel better, it actually turned out well for the Astros in this case. Houston received the number two overall pick in 2015, which turned out to be Alex Bregman, and Aiken has struggled with injuries over his Minor League career. There are a few other examples of this, but on the rare occasion it does happen, it makes many question the process of the MLB Draft. On one hand, a rare occasion like we’re witnessing now with Kumar Rocker shouldn’t spark change to the whole MLB Draft system by itself. This issue just reinforces the problems that come with it in its entirety. The lack of concreteness of what the signing bonuses are in the first ten rounds allows teams to manipulate their offers up and down the draft. The MLB Draft has become less about selecting the best player, but selecting the best player at the right price. After already drafting him, the Mets determined that $6 million (or obviously anything near that) was not the right price for Rocker, so they opted not to sign him. Not assigning concrete and non-negotiable draft bonuses to specific slots creates vagueness and allows MLB teams to manipulate draftees up and down the board. Just because the Mets didn’t believe Rocker was healthy enough to deserve a signing bonus doesn’t mean every team would’ve passed on Rocker as well. According to Scott Boras’ statement, his independent doctors claimed he had no structural damage. The fact that Rocker will not have to wait another calendar year to enter Major League Baseball because of one front office’s decision just feels wrong. The MLB Draft is already complex due to the above slot-below slot dynamic that goes on all the time, but an issue like this highlights why this system needs to be questioned. A major fix would involve changing the slot system to that of the NFL where all of the picks slots are prearranged and non negotiable. But a more reasonable change would be to allow a player in Kumar Rocker’s situation with his alleged medical issue the ability to sign with another club that believes he’s healthy. Rocker is a victim of a system that rewards the Mets for not signing a player they believed was worthy of the tenth overall selection. The Mets will just move right along and take the eleventh overall pick along with their other first round pick next year while Rocker will have to wait one more year to fulfill his dream of signing that first MLB contract. The current CBA is set to expire following this season and this issue should be on the long list of discussion points that needs to be negotiated.

Barcelona is the world’s most valuable soccer team. The world’s best player, Lionel Messi, recently agreed to a new contract that will keep him in Barca colors for another five years. Barcelona is also over 1 billion Euros in debt. And unless they can clear enough money to get under La Liga’s salary cap by August 31st, the club will not be allowed to register Messi’s new contract, which would render him ineligible to play in the league until January. La Liga’s salary cap is not fixed like in American sports leagues. Spanish teams are allowed to spend on players and staff based on several factors, including their income and expenses, and crucially for Barca, debt repayment. Barcelona’s limit for this season has been reported at between €160-200 Million (about $189-236 Million), down from €347 Million ($409 Million) last year. Even with the huge drop, Barca’s cap is still higher than every La Liga club other than Real Madrid. The problem lies in part in the fact that Barcelona’s cap figure is less than 30% of what it was two seasons ago. Add to that some questionable financial management and the fact that they haven’t stopped acquiring high-priced superstars. The upshot is that the club needs to move more than €200 Million worth of salary off their books before they can register the contracts of Messi and new signings Sergio Aguero, Memphis Depay, Eric Garcia, and Emerson Royal. Even if Barca is able to move some current players, as long as the club is over the cap, it can only allocate 25% of transfer profits for new costs, allocating the other 75% to paying outstanding debts. Other clubs know that Barcelona must move salaries, which hurts the club’s leverage in potential deals. And transfer values have generally gone down worldwide due to the pandemic’s effect on revenue, meaning the powers that be at the Camp Nou have their work cut out for them. Barca’s situation is raising a host of current and potential legal issues. For one, players they would like to—and need to—move are under contract, for extensive annual wages. This is money the club legally owes the players. Those deals would have to be re-negotiated or moved for cents on the Euro. Worse, Barca unilaterally terminated the contract of Brazilian midfielder Matheus Fernandes—via an e-mail to the player. Fernandez has said he intends to file suit over the dismissal. From a sponsorship perspective, a league with Messi on the bench is less marketable than one with him making his trademark 60-yard runs or curling in magical free kicks. La Liga’s global partners include Budweiser, Puma, EA Sports, and Panini; Barcelona’s partners include Nike, Rakuten, and Gatorade. It’s not a stretch to think they’d be less than pleased at the prospect of a half season without the league’s most marketable star and might even want to pursue “make goods” due to Messi’s absence. These factors (and common sense) lead to the prevailing thought that La Liga will figure out a way to make sure Barcelona fixes its issues, or even alter the system to allow the club to register Messi’s contract. For what it’s worth, league president Javier Tebas has maintained that the league will not change the rules for Barca’s benefit. Whatever Barcelona does to address its financial situation, it needs to be done soon—Barca kicks off the La Liga season on August 15th. Ben Shrader is a partner at Hart McLaughlin & Eldridge in Chicago, where he serves as Chair of the Chicago Bar Association Sports Law Committee. You can reach Ben at [email protected]

What goes up, must come down. This saying goes in physics, gymnastics and in life. In true fashion, Simone Biles pulled a move that no one else anticipated during the Olympic Games: she withdrew from competition. When Biles pulled herself from the Olympic gymnastics individual all-around event for her mental health, public sentiments varied. Some might say that Biles is so used to flying high that she took a page from Icarus and flew too close to the sun. I say she had the weight of the world ready to pull her down. A quick note on my own personal experience with this topic: mental health is just as important, if not more important, to your physical health while competing at any level of sport. I give so much credit to her teammates for being the support that Biles at this time. Biles didn’t “give up” on her team, and it clearly shows in the way they celebrate each other and their achievements that they want to lift each other up. Yet, the world looked to the Olympics in anticipation of Biles winning the individual all-around gold medal. It seems that the world felt entitled to watch her perform. Even with the world watching her, Biles owes nobody answers regarding her mental health. But could her individual sponsors have been an exception? Her sponsorship portfolio is an impressive reflection of her athletic career: Athleta, Visa, CorePower and more. From a corporate social responsibility perspective, it was doubtful that any sponsor would speak out against Biles. In a world where light is being shown on mental health, any corporate action against Biles at the moment would have been a step out of bounds. Rather, her sponsors got right to the punch and offered their support, a world-class social effort for a world-class athlete. If we weren’t in a world where mental health is being advocated for, would her sponsors have had a course of action for her lack of performance? Was there a return-on-investment that they relied on following her expected gold medal win? In basic first year law student contract terms, a promise for performance? Well, I’ll start by saying I don’t know the full details of her sponsorship contracts. Is she paid for social media posts? Event appearances? Medals? Just being the GOAT? Most likely secret answer E: all of the above. Let’s assume parts of her contract, such as event appearances and media campaigns, were contingent on bringing home Olympic gold. Despite the incredible team event silver medal she will be toting back to the United States, sponsorship revenue executives have to wonder if they will be losing money on campaigns bolstered by gold. After all, sports and especially the Olympics are all about the “what-ifs.” It’s a simple formula that’s been in place for centuries. Even as an earthly resource, gold is worth more than silver. A gold medal athlete is meant to make more money. But Simone Biles is proving she’s worth more than gold. Gold medals are a wonderful thing to be attained, but Biles taking her place as a champion for mental health during AND after these games might be her biggest win. Long gone are the days of quarterbacks saying “I’m going to Disneyland!” after the championship game. Queue the ending scene from The Game Plan (2007), a personal favorite movie of mine, where Joe Kingman (the one and only Dwyane “The Rock” Johnson) chooses his daughter over a fast food sponsorship. Athletes are aligning with brand partners for more than what they can bring to competition, and the way her partners promote her following the Games will be an example of how brands can model their “promise for performances” moving forward. It’s no longer all about the medals or trophies brought home but a combination of who the athlete is and what their values are. Because the greatest gymnast of all time has put her mental health over another set of gold medals to hang on her neck, the world is talking about mental health. The discussion isn’t over just yet. Andrea is a part-time evening 2L at the Elisabeth Haub School of Law at Pace University and the incoming Vice President of the Pace Sports, Entertainment and Arts Law Society. She works full-time as an Email Marketing Coordinator at BSE Global for the Brooklyn Nets and Barclays Center. You can find her on most social media channels as @dreagarcia21.

The Name, Image, and Likeness (NIL) era has arrived, and the consequences for collegiate athletics have been far-ranging. Within only one month, student athletes and sometimes even full teams have executed endorsement or sponsorship deals, while conferences like the Big 12 and SEC are scrambling at the prospect of major conference realignments. INFLCR, an Alabama-based brand building company that works directly with multiple top universities has already reported that through one month of the NIL era, at least 1,300 NIL transactions have taken place.[1] These transactions have totaled approximately $1.256 million, with the average NIL deal coming in at around $923.[2] However, underlying all the NIL-related innovations taking place in college sports, a new question has arisen: should high school student athletes be able to profit off their Names, Images, and Likenesses? Prior to July 1, 2021, this question was often overlooked in the context of NIL, but it has risen to the limelight after the sports world has gotten a taste of just how fruitful NIL possibilities can be. In late July, Southlake Carroll High School (TX) Quarterback Quinn Ewers informed Yahoo Sports that he was “leaning” towards skipping his senior year of high school to enroll early at Ohio State University.[3] Ewers, the top ranked football recruit in his class per Rivals.com, is currently prohibited from profiting off his Name, Image, and Likeness under Texas’ existing NIL structure. Texas’ NIL law expressly provides that “No individual, corporate entity, or other organization may: (1) enter into any arrangement with a prospective student athlete relating to the prospective student athlete’s name, image, or likeness prior to their enrollment in an institution of higher education.” [4] Despite Texas’ NIL limitations, Ewers’ 83,000 Instagram followers and iconic blonde mullet have already earned him NIL offers from local and national companies. With these NIL opportunities in mind, Ewers announced on August 2nd that he had decided to forgo his senior year of high school eligibility and enroll early at The Ohio State University. Ewers, via his Twitter (@QuinnEwers), stated “following Texas’ UIL informing me I would be prohibited from profiting off my own name, image, and likeness, I’ve taken time to think about what lies ahead of me, both in the short- and long-term. It’s unfortunate I’ve found myself in this situation, as my preference would have been to complete my senior season at Southlake Carroll along with the teammates and friends I’ve taken the field alongside for the past three years. However, following conversations with my family and those I know have my best interests in mind, I’ve decided it’s time for me to enroll at Ohio State and begin my career as a Buckeye.”[5] Ewers, by enrolling early at Ohio State, will not only be able to profit off his NIL, but will also have the opportunity to obtain eligibility for the NFL Draft one year earlier than if he had elected to complete his Southlake Carroll football career. With substantial benefits available for Ewers outside his home state of Texas, it is clear that the NIL spotlight is beginning to shift to high school athletic stars. Ultimately, Ewers’ decision to enroll at OSU early will make him a trailblazer in the NIL sphere. In the absence of much needed federal NIL legislation, many States that do have NIL legislation in place explicitly prohibit high school student athletes from profiting off their Names, Images, and Likenesses. The outlier is California, whose Student Athlete Bill of Rights legislation helped expedite the NIL evolution to where it is today. In California, high school student athletes are expressly permitted to monetize off their Names, Images, and Likenesses in the same way college student athletes can.[6] Without federal NIL legislation, States which have declined to pass NIL legislation to date are forced to rely on statewide high school athletic association’s NIL policies. For instance, the National Federation of State High School Associations outwardly prohibits high school student athletes from monetizing off their NILs.[7] On July 28, 2021, the New York State Public High School Athletic Association (NYSPHSAA) agreed to hold a vote in October 2021 to definitively determine whether high school student athletes can utilize their NILs without threatening their athletic eligibility.[8] If the NYSPHSAA votes affirmatively to extend NIL rights to high schoolers, it places New York and California preparatory high schools at a clear competitive advantage in athletics recruiting. Supporters of extending NIL rights to high school student athletes ground their reasoning in many of the same concepts that support giving NIL rights to college athletes: the belief that individuals should be able to allow the free market to determine the worth of their Names, Images, and Likenesses, instead of having governing bodies in sports cap that value at zero dollars. Other high school athletes like basketball phenoms Mikey Williams and Bronny James have social media followings exceeding 1 million followers across Instagram and TikTok. If high school athletes with this sort of online presence are recruited by companies for endorsement deals, they’d be forced to decline lucrative offers to maintain eligibility. However, the same premise does not apply to musicians, artists, or E-sports players who are still in high school. The obvious disconnect based on the tradition of Amateurism has put high school athletes in a bind, and the time is now for Congress and State Legislatures to act and permit high schoolers to join the NIL era. Nevertheless, one thing is for certain: Quinn Ewers’ decision to enroll at Ohio State a year early will have clear repercussions, as the future of high school sports and athletic recruiting will forever be changed. [1] Eric Prisbell, NIL: A Quick snapshot one month into the NCAA’s new era, On3.com, (Aug. 1, 2021), https://www.on3.com/news/nil-quick-snapshot-one-month-into-ncaa-new-era/ [2] Id. [3] Pete Thamel, Will America’s No. 1 QB recruit Quinn Ewers give up 7-figure NIL offers for one more season of Texas high school football?, Yahoo! Sports, (July 28, 2021), https://sports.yahoo.com/will-americas-no-1-qb-recruit-quinn-ewers-give-up-7-figure-nil-offers-for-one-more-season-of-texas-high-school-football-200803437.html [4] TX SB 1835(j)(1), 2021-2022, 87th Legislature. [5] Quinn Ewers (@QuinnEwers), TWITTER (Aug. 2, 2021, 12:48 PM), https://twitter.com/QuinnEwers/status/1422237898989088768 [6] Doug Samuels, Report: California says NIL rights aren’t just for college athletes, Football Scoop, July 22, 2021, https://footballscoop.com/news/report-california-says-nil-rights-arent-just-for-college-athletes [7] Dr. Karissa Niehoff, NIL Rulings Do Note Change for High School Student-Athletes, National Federation of State High School Associations, July 7, 2021, https://www.nfhs.org/articles/nil-rulings-do-not-change-for-high-school-student-athletes/ [8] Tommy Sladek, NYSPHSAA to vote on allowing high school athletes to benefit off name, image, likeness, CNY Central, July 28, 2021, https://cnycentral.com/sports/high-school/nysphsaa-to-vote-on-allowing-high-school-athletes-to-benefit-off-name-image-likeness

An eyebrow-raising lawsuit has been filed against Michael Finley, Mavericks' Vice President of Basketball Operations and former NBA star. Here is the full caption: The plaintiff in the complaint is seeking $35 million with a curious claim that he devised the business name and idea for "Aquafina," the water brand. While the plaintiff here doesn't make an outward legal claim as to why he is entitled to the requested money, this lawsuit appears to be for misappropriation of a trade secret. Still, it's not entirely clear if the plaintiff is making that specific claim from what the complaint reads. Of note, the complaint- filed in the Middle District of Florida, Fort Myers Division - is largely hand-written and seemingly done by the plaintiff, himself. Per the court filing, the plaintiff claims that the name "Aquafina" was his idea, created in honor of and for Finley. He seems to have arrived at the name by a simple calculus: water= "aqua" and Finley= "fina"... I guess making Aquafina? If true, this would make for a very interesting fun fact in basketball circles. However, while the plaintiff writes "Michael Finley of Aquafina," I can't find any indication, anywhere, that Finley is somehow connected to the water brand in an official capacity or otherwise. In order for Finley to be a culpable party, he would likely need to have some connection to or profit from the plaintiff's work in creating the brand. On that note, Aquafina's current CEO is the other defendant in the case. Curiously, though, the actual brand Aquafina and its parent company, PepsiCo, are not named in the case. This is truly a bizarre court filing but I guess it gets some points for creativity. Meanwhile, this is not the first time Aquafina, or its parent company, PepsiCo, have been hit with a misappropriation lawsuit. In April of 2009, two Wisconsin men filed suit against PepsiCo, alleging that they came up with the business idea for Aquafina in 1981, and a confidentiality agreement was breached when that idea was stolen. Pepsi failed to respond and the men initially won a $1.26 billion judgment! The immense victory didn't last long, though. Weeks later, said judgment was vacated by the same judge after PepsiCo's attorneys finally offered their attention. The claims were time-barred, as there was just a six-year statute of limitations. If you ask me, this lawsuit is likely destined to fail as well given the timing of the events vs. when the lawsuit was filed. Still, I call on the internet to determine whether the true origins of Aquafina are rooted in NBA greatness. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is President of the Hofstra Sports and Entertainment Law Society and is a law clerk at Geragos & Geragos. He can be followed on Twitter and Instagram @Jmorr1.