The panel convened in the Independent Accountability Resolution Process (IARP) issued its decision in the Louisville Infractions Case. In finding that many of the current members of the athletic department, coaching staff, and men’s basketball team had “little to nothing to do with the behaviors at issue,” the panel issued only minor penalties to the University of Louisville. In 2020, Louisville was given a Notice of Allegations from the NCAA, largely based on the pay-for-play scheme unveiled by the Federal Bureau of Investigation’s (FBI) probe into multiple programs. At Louisville, the probe centered around former top 100 recruit Brian Bowen Jr. during Hall of Fame coach Rick Pitino’s tenure as head coach of Louisville’s men’s basketball team. As a part of the scheme, former Adidas employees Jim Gatto, Christian Dawkins, and T.J. Gassnola attempted to pay Brian Bowen Sr.—through Louisville assistant coaches—thousands of dollars for Brian Bowen Jr. to commit to Louisville. In October 2017, within a month of the FBI revealing the scheme, Louisville fired Rick Pitino and Athletic Director Tom Jurich. Brian Bowen Jr. was never allowed to play for the Cardinals. The NCAA added more allegations in October 2021 involving an assistant coach’s extortion attempt on former Louisville head coach Chris Mack. In January 2022, Louisville parted ways with Mack. Despite acknowledging that many of the individuals involved in the scheme/recruiting violations are no longer at the institution, the panel issued multiple penalties, including: $5,000 fine; Two years of probation; Prohibition of unofficial visits for two weeks; Prohibition of recruiting communications for an additional two weeks; and Seven-day reduction in the number of recruiting days; Importantly, current Iona University men’s basketball coach Rick Pitino avoided sanctions due to the panel finding that Pitino “promoted an atmosphere of compliance.” Thus, he was not involved in the scheme. Note, there is no appeal process for the IARP. Therefore, this decision brings the Louisville pay-for-play saga to an end. With the Louisville decision, the IARP continues to wind down its case list. In August, the Division I Board of Directors decided to eliminate the IARP. The Louisville case demonstrates the big issue with the IARP—final decisions took far too long. Therefore, the Board of Directors is aiming to accelerate the timelines for issuing infractions decisions. Now, Louisville can begin to move forward as a program. 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.

(6-0, 3-0 SEC) Tennessee upsets (6-1, 2-1 SEC) Alabama in a high-scoring affair. This victory from Tennessee ended their 15-game losing streak against Saban's football powerhouse. Their last win against Alabama occurred in 2006. How did the fans react? They definitely made a statement, that's for sure. The fans stormed the field, tearing down the goalposts in the process. Tennessee's Twitter Account tweeted: "Y’all remember how we tore the goalposts down, hauled them out of Neyland, and dumped them in the Tennessee River? Yeah, that was awesome. Anywho, turns out that in order to play next week’s game, we need goalposts on our field. Could y’all help us out?" Man, I love the South. The school hoped to raise $150,000 and got $80,000 within the first 24 hours. Not only is it egregious to tweet this from your main account, but they had some fun with how to contribute. The University suggested $52.49 (the final score) or $1.019.15 (the capacity at Neyland Stadium). How did the SEC respond? They definitely made a statement, that's for sure. The SEC fined the University $100,000. Fines typically range from $50,000 for a first offense and up to $100,000 for a second offense. This was Tennessee's second offense, the first occurring during a basketball game in 2006 against Florida. A third penalty would cause $250,000. The SEC's policy states: "Access to competition areas shall be limited to participating student-athletes, coaches, officials, support personnel and properly-credentialed individuals at all times. For the safety of participants and spectators alike, at no time before, during or after a contest shall spectators be permitted to enter the competition area. It is the responsibility of each member institution to implement procedures to ensure compliance with this policy." Was this fine reasonable? Hard to say. It is pretty clear they violated the SEC policy, but it could be argued that the publicity this football program is receiving was worth the financial penalty. According to Tennessee's national data to the NCAA, the athletic department generated $133 million in revenue, with $62.4 million coming from football. I chose law school to avoid math, but I think they should be fine. Tennessee moves up to the No. 3 in the National Polls and Alabama moves down to No. 6. The Tennessee football program is for real this year. Matthew Marino is a J.D. Candidate Elon University School of Law, 2023.

This past weekend, Red Bull driver Max Verstappen secured his second consecutive Formula One World Driver’s Championship by winning the 2022 Japanese Grand Prix. Verstappen drove the RB18 to 12 wins and 14 podiums with four races still to go in the season. Red Bull started the season with reliability issues which caused Verstappen to retire in two of the first three races this season. Once Red Bull fixed those issues, Verstappen dominated most of the races this season. Avid fans saw this championship coming due to Ferrari’s strategy issues and Mercedes’ lack of straight-line speed. However, the Japanese Grand Prix ended with confusion. Even Verstappen was unaware he had secured the championship. Those around the driver had to convince him that the points fell in his favor crowning him the champion. So how could this be? How could there be so much confusion about how points the FIA gives out points? The answer lies in the changes the FIA made to the point structure following the 2021 Belgian Grand Prix. During that race, rain caused severe delays. Formula One races are limited to a hard three-hour limit from the intended start time. Weather delays can cause the race to be ended by this three-hour limit rather than drivers finishing the original amount of intended laps. The FIA changed the sporting regulations to state that the FIA would award fewer points to the drivers if the drivers run less than a complete race. For example, if the drivers run a whole race, the first-place driver receives 25 points; but if the drivers run only 50-75% of the race, the first-place driver only gets 19 points. See articles 6.4 and 6.5. Unfortunately, the changes the FIA made to the rules did not have the intended effect due to the wording of the regulations. The rules state that the FIA will only give out reduced points for a race “If a race is suspended in accordance with Article 57, and cannot be resumed.” The rules do not state that the FIA will award reduced points when the race concludes due to the three-hour time limit under normal conditions. Article 57 is where the bulk of the confusion lies. Teams were under the impression that the FIA would hand out reduced points for ANY race if drivers ran less than 75% of their intended distance. Instead, the wording states that the FIA would hand down reduced points only when the race is suspended and doesn’t resume. Verstappen won the Japanese GP by completing 28 of the original 53 laps (just under 53% of the intended distance). He, and most others, believed that this meant the FIA would award Verstappen 19 points which would not have secured the championship. In the end, the conclusion to the 2022 championship race was confusing but hardly as controversial as the end of last year’s championship. Verstappen winning the 2022 championship seemed inevitable based on his performances. If Verstappen couldn't win the driver's championship in Suzuka, he would have most likely won at the United States Grand Prix on October 23rd. Related to Formula One controversy, recent news has also emerged that Red Bull may have exceeded the cost cap during the 2021 Formula One season. The FIA implemented a cost cap to even the playing field for teams with potentially less funding given free spending. This news could add more controversy to an already controversial 2021 season. As always, keep in touch with Conduct Detrimental for all developing legal controversies in Formula One. Justin Mader is a recent graduate of the University of New Hampshire Franklin Pierce School of Law, earning a J.D. and a Sports and Entertainment Law Certificate. He also serves as a Producer, Editor, and Contributor for Conduct Detrimental. He can be reached via Twitter: @maderlaw and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.

California holds some of the most popular and successful teams in the United States. Currently, the state houses 15 professional sports teams. According to the Orange County Register, those 15 teams have a combined worth of $43 billion and generate a yearly revenue of $4.1 billion. The Los Angeles Rams won the most recent Super Bowl. The Golden State Warriors defeated the Boston Celtics to win the most recent NBA Finals Championship. While they are not currently winning too many games, the Los Angeles Lakers are a worldwide phenomenon. The Lakers' history includes former legends such as Kobe, Shaq, and Kareem and current superstar Lebron James being instantly recognizable by name alone. Even in college, USC and UCLA attract huge audiences from all over the country to watch their games. On November 7th, residents from California will have the chance to vote in the midterm election. This election is important to California sports fans as the ballot includes two different sports betting initiatives looking to be passed by the voters. According to sources, these two initiatives raised just under $600 million in contributions towards or against the respective cause. From political parties to public policy organizations, dozens of contributors have allocated their money toward ad campaigns throughout the state. Having two different sports betting bills on the ballot can be confusing. This article will summarize each ballot initiative to inform voters of what they are saying yes or no to come election day. After summarizing both ballots, I will break down the potential revenue projections that California could see from sports betting. It is important to note that these initiatives do not conflict. California voters can choose to pass both. California Proposition 26, Legalize Sports Betting on American Indian Lands Initiative (2022) Proposition 26 is a combined constitutional amendment and statute implementation. Proposition 26 aims to allow California tribes that have obtained gaming licenses the ability to offer sports betting. Proposition 27 legalizes in-person betting only. The proponents of this proposition make up the Coalition for Safe, Responsible Gaming. This coalition includes 24 California tribes and dozens of other political organizations. Proposition 26 follows a similar structure as compared to states that have sports betting regimes in place. The proposition has set the tax rate at 10%. The funds from the tax are as follows: 15% to the California Department of Health for researching, developing, and implementing programs for problem gambling prevention and mental health 15% to the Bureau of Gambling Control for enforcing and implementing sports wagering 70% to the General Fund Residents of California will be able to vote on a variety of sports. Prop 27 will exclude high school sports and any collegiate event that includes a California collegiate team. However, residents will have to visit casinos to place their bets. There will be no shortage of options; many tribes seem eager to get operations started in their own casinos. The ballot also includes provisions that would legalize roulette and dice games. For access to the full text and more information on Proposition 26, click here. California Proposition 27, Legalize Sports Betting and Revenue for Homelessness Prevention Fund Initiative (2022) Proposition 27 is very similar to 26 except that it focuses on legalizing online sports wagering. This proposition would allow those possessing either an operating agreement or market access agreement with a qualified tribe to offer betting to California residents. Those in favor of Proposition 27 include the usual companies such as DraftKings and FanDuel. There are a few tribes in favor of the proposition as well. They have contributed just under $170 million in campaign contributions. However, the opposition has contributed around $250 million to ensure voters vote no on Proposition 27. The opposition includes both the Democratic and Republican parties of California. The opposition also includes multiple native tribes and around a dozen other social organizations. The proposition imposes a 10% tax on any online wagers made by those physically located in California when placing their bet. The funds from the tax are as follows: 85% to California Solutions to Homelessness and Mental Health Support Account (which provides permanent and interim housing) 15% of revenues to the Tribal Economic Development Account Proposition 27 includes similar betting restrictions to Proposition 26. Proposition 27 has a complete ban on youth sports. Proposition 27 will also create the Division of Online Sports Betting Control that will “implement and enforce this chapter and supervise the offering, conduct, and/or operation of online sports betting in the State of California…” The Division has the power to exclude or approve additional sporting events. The Division will keep a real-time list of approved sporting events, leagues, and the types of bets authorized for sports betting operators. For access to the full text and more information on Proposition 27, click here. Sports Betting in California California residents hold the future of sports betting in the state in their hands. These propositions are also exclusive, meaning one, both, or neither could pass during this election. Preliminary polls show that both propositions are struggling to get the necessary support to pass this November. Los Angeles is the country’s second-largest market, trailing only New York. New York began offering sports wagering in January 2022. Since then, the state has raised around $400 million in tax revenue. While California will have a lower tax at 10% compared to the 51% New York has set, it is not unreasonable to think that California can hit around $150-200 million in its first year of tax revenue. Given that the date is fast approaching, we will soon learn whether California residents will be able to place their bets on their favorite hometown teams. Justin Mader is a recent graduate of the University of New Hampshire Franklin Pierce School of Law, earning a J.D. and a Sports and Entertainment Law Certificate. He also serves as a Producer, Editor, and Contributor for Conduct Detrimental. He can be reached via Twitter: @maderlaw and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.

Last week, District Court Judge Andrew Carter, Jr. granted Major League Baseball’s (MLB) Motion to Dismiss four former Minor League Baseball teams’ lawsuit. While it is a big victory for MLB, an appeal is likely on the horizon. Background Before 2020, the Professional Baseball Agreement (PBA) between MLB and the National Association of Professional Baseball Leagues governed the relationship between MLB teams and minor league affiliates. As a part of the PBA, MLB teams could have as many minor league affiliates as they wanted. In turn, MLB teams paid the payroll costs for players, managers, and other employees, and the affiliates paid 8 percent of ticket sales to the MLB teams. In 2020, MLB announced the Professional Development League (PDL), proposing to cap minor league affiliates at four per organization and shift the model to minor league teams affiliating through licensing agreements rather than contracting through the National Association of Professional Baseball Leagues. By 2021, the Professional Development League came to fruition, and 40 teams were eliminated, including The Staten Island Yankees, The Norwich Sea Unicorns, Salem-Keizer Volcanoes, and Tri-City ValleyCats. Due to the elimination, the four affiliates filed suit in the United States District Court for the Southern District of New York, alleging that MLB violated the Sherman Act by orchestrating a horizontal agreement among its teams and excluding the plaintiff affiliates from the new league. A Victory for MLB’s Antitrust Exemption The affiliates overcame the first hurdle—establishing standing for an antitrust claim. However, Judge Carter easily disposed of the suit, leaning heavily on prior holdings (“the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws.” Toolson v. New York Yankees, Inc., 346 U.S. 356, 357, 74 S. Ct. 78, 98 L. Ed. 64 (1953)). Specifically, Judge Carter found that “minor league affiliations are central to the business of baseball.” Therefore, it falls within the exemption, and “until the Supreme Court or Congress takes action, the exemption survives[, and] shields MLB from [the affiliates’] lawsuit[,]” Judge Carter reasoned, granting the Motion to Dismiss. The affiliates can appeal the ruling, which counsel for the affiliates has assured will happen and will focus on “overthrowing the baseball exemption.” Ultimately, the affiliates hope that the issue will reach the Supreme Court. Considering the United States Senate Judiciary Committee has begun reviewing the antitrust exemption, there may be enough support for the Supreme Court to review the issue, and either through the Court or Congress, it may be overturned. Until then, the exemption gives MLB a big victory. 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 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

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.

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.

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.