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

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

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

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

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

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

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

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

With the 2022 FIFA Men’s World Cup in Qatar set to kick off in approximately one month, players from all 32 competing nations are preparing to compete at one of the world’s greatest sporting spectacles. Of the 32 participating teams, England is approaching this World Cup with a general sense of optimism, headlined by a core of established senior players and a generation of breathtakingly talented young players who have inserted themselves into the conversation of the world’s elite. Before the beginning of the calendar year, this generation included another prominent name – one who, at the peak of his performance, was being touted as the next great forward to represent the Three Lions. Nevertheless, due to an ongoing legal dilemma stemming from discoveries made just eight months ago, this player has not only been removed from the conversation of players to represent England at the World Cup but has also brought the status of his professional career to a screeching and potentially fatal halt. Last week, Manchester United forward Mason Greenwood was formally charged with attempted rape, assault occasioning actual bodily harm, and controlling and coercive behavior. The charges stemmed from his arrests by the Greater Manchester Police on January 30 and February 1 on suspicion of rape, assault, sexual assault, and making threats to kill. In a statement following the arrests, Greater Manchester Police indicated that the arrests resulted from the force’s awareness of social media images and videos posted by a woman regarding various incidents of physical violence. Greenwood was released on bail the morning after the initial arrests and remained on bail in the months following. Before the announcement of the formal charges, however, Greenwood was arrested on October 15 over allegations that he breached his bail conditions. After appearing at Manchester & Salford Magistrates’ Court on October 17, Greenwood was remanded in custody once a district judge found that he had indeed breached his bail conditions over allegations of attempted rape and other offenses. Nevertheless, Greenwood was released on bail on October 19 after a private hearing at Minshull Street Crown Court, as he now awaits a court appearance before Manchester Crown Court to determine the merits of the charges placed upon him. Coincidentally, Greenwood’s court date falls on November 21 – the date of England’s opening World Cup match against Iran. Adding to the legal troubles surrounding Greenwood, his employer has now formally responded to his actions with official consequences of their own. On October 15, Manchester United released a statement acknowledging the criminal charges brought forth against Greenwood and confirming that Greenwood remains suspended by the club during the pendency of the judicial process. While such a statement officially confirms the club’s willingness to suspend Greenwood in light of the controversy surrounding the allegations, it must be noted that the club, while not having officially suspended Greenwood until October 15, has prohibited the forward from training or featuring in any games with the team since the date of the initial arrests. Interestingly, as part of the terms of the standard Premier League contract established by the most recent edition of the Professional Footballers’ Association’s collective bargaining agreement, Greenwood is still being paid by the club, as suspended players are only withheld from pay for a maximum of fourteen days. Yet while Greenwood still receives financial compensation from his employer, he has removed himself from contention for a place in the current Manchester United team and has seemingly lost any opportunity to lead his country in Qatar. While the legal outcome of Greenwood’s alleged actions remains to be seen, the nature of the situation demonstrates that such actions may indeed have consequences. If Greenwood’s alleged actions are indeed realized to be true, the importance must certainly shift toward the support and well-being of the young woman who brought forth the allegations rather than focusing on the implications of Greenwood’s professional career. Nevertheless, the mere fact that this possibility may be proven reality has proven enough to impede the ultimate dream of one of England’s once most promising talents – to play in a World Cup. Ultimately, this story serves as a lesson that, no matter who you are or what you do, a failure to treat others with the respect and decency they deserve may leave you with a court date rather than with the chance to lift one of the world’s most coveted sporting trophies. Bryce Goodwyn is a 1L at Regent University School of Law. He is a member of the Honors Program and currently works as a Dean’s Fellow completing research and administrative work. He also formed part of the recently established National Sports Legal and Business Society as the East Region Chair. He can be found on Twitter @BryceGoodwyn and on LinkedIn as Bryce Goodwyn.

This past off-season’s 99-day lockout, the second longest of its kind in the history of MLB, resulted in major shifts favoring the rights of players. Minimum salaries for players and luxury-tax thresholds increased, respectively forcing, and encouraging teams, to invest more in the on-field product. The work stoppage was an ugly process. Both MLB and the MLBPA negotiated for weeks to save the 162-game season. Eventually, both sides compromised, and the season started just a week later than originally scheduled. However, both sides failed to establish a necessary and inevitable caveat: An International Draft. Most casual fans are aware of the domestic amateur draft that happens annually during the season; High School and College players, if selected, negotiate with the team that drafted them based on the slot value of where they were taken. Much less is commonly known about the international signing process. Essentially, most players outside of the US and Canada are permitted to sign with an MLB organization when they turn 16. However, many top-tier players, especially in Latin America, agree to deals with teams as early as the age of 13. According to Jeff Passan of ESPN, many elite players in the Dominican Republic drop out of school to pursue baseball careers at as early as ten years old. This incentivizes these young children, many of whom grow up impoverished, to take performance-enhancing drugs in the hope that an increase in performance will catch the eyes of MLB scouts and secure a large signing bonus. While an International Draft is not without its downsides, it would certainly limit the incentive for young children to drop out of school at such a young age and potentially hurt themselves with PEDs, as there would no longer be verbal agreements made with players under the age of 16. During the lockout, MLB proposed an international draft late in the negotiation process, to the annoyance of the MLBPA, who have long been opposed to the idea. To preserve the start of the 2022 season, both sides agreed to kick the can down the road, setting a July 25 deadline for the implementation of an international draft. In an effort to sweeten the deal for the MLBPA, MLB offered to end the qualifying offer system, which the players have loathed since its implementation in 2012. Essentially, players who have fulfilled their required service time to finally hit free agency can be extended a qualifying one-year offer by their team (worth $18.4 million in 2022). Players have the chance to accept the offer or to decline it and test free agency. Most players who are productive enough to be given a qualifying offer have waited six to seven years while being underpaid before they hit free agency and find long-term financial security. The qualifying offer complicates that mission for many players, as any opposing team that signs a player in free agency who declined a qualifying offer must forfeit their first-round pick in the following draft (teams drafting in the top ten forfeit a second-rounder instead). The draft pick compensation required to sign one of these players can destroy a player’s value, as was seen this past offseason with former all-star Michael Conforto, formerly of the New York Mets, who has still yet to sign with any team following his declining of the $18.4 million offer last November. The stage was set for the MLB and MLBPA to finally agree on an international draft. Both sides had much to gain from an agreement: dissipation of the corruption of young players in Latin American countries, and full value being awarded to productive players hitting free agency for the first time without the worry of draft pick forfeiture. All that was left was for both sides to agree on how total money was to be awarded to the 600 players taken in the international draft. Unfortunately, MLB and the MLBPA failed to come to an agreement on the total money that would be allotted to the players. According to Alden Rodriguez of ESPN, the gap between the two sides never reached less than $69 million. This is a very unfortunate turn of events for the young players in Latin America, who will not have a chance to be subject to an international draft until the implementation of the next CBA. While the use of an international draft as a bargaining chip by the MLB and MLBPA is not surprising, it still comes to the detriment of young players, who will still often be pressured to take PEDs to get a large signing bonus. Hopefully, MLB can find a way to decrease the corruption for the sake of these young players. Even so, the overarching issue is still apparent: At what point will MLB and the MLBPA, both part of a multibillion-dollar corporation, decide that the pressure put on these young Latin American players is not worth the proportionally small amount of money that separates the two sides?

Daniel Kaplan from The Athletic and Michael Rosenberg from Sports Illustrated reports that Alana Gee, the widow of former University of Southern California (USC) Trojan linebacker from 1988-1991 Matt Gee, is suing the NCAA for his wrongful death. She believes the onset of CTE, as a result from playing football, caused her husband to act differently in his waning years before his death. She is bringing a wrongful death lawsuit to prove had Matthew Gee not played football for USC and the NCAA, he would not have lashed out and changed behaviors after his football career was over. In 1989, the USC Trojans had twelve linebackers on its roster. Five would die all before turning fifty years old. The most notable linebacker from this Trojan team is Junior Seau, who was an All-Pro linebacker with the then-San Diego Chargers and the New England Patriots. He committed suicide in 2012, and doctors found he suffered from chronic traumatic encephalopathy (CTE). CTE is only found in the brain post-mortem, so after death. Alan Wilson, Scott Ross, David Webb, and lastly, Alana’s late husband, Matt Gee. Rosenberg dives into each person as their body turned against them before dying young. There are stories from each player’s life, and how similar the downward trends began. Alana Gee plans to use this story as evidence that her husband’s death is due to the NCAA not properly monitoring their football players at the scrutiny they are today. Alana Gee plans to have Dr. Bennett Omalu, the first doctor to diagnose CTE in a football player’s brain, testify as an expert witness should this case proceed to trial. The NCAA argues that an individual understands the risks of football before they participate in the sport. They argue there are known inherent risks such as injury. She counters that CTE is not an inherent risk, but one the NCAA should warn players about. The NCAA has implemented new rule changes after CTE was discovered, such as targeting, to crack down on head injuries suffered from playing football. The NCAA argues that Matt Gee suffered from alcoholism, obesity, diabetes, and other illnesses prior to his passing on New Year’s Eve, 2018. They argue Matt did not suffer from CTE at all, perhaps it was a different type of encephalopathy. He suffered from liver disease due to his alcoholism and drug use. He suffered from hypertensive and atherosclerotic heart issues. The NCAA argues these caused his death, not CTE, so they should not be held liable to Alana Gee in her wrongful death lawsuit against them. They argue their member schools, here USC, are responsible for the safety and well-being of their student-athletes. There is legal precedent as an NCAA CTE case from Texas settled in 2019, and there is another one in Indiana arguing the NCAA knew that football caused these injuries. They argue the NCAA did nothing until CTE was discovered to further protect their football players from the lasting effect of concussions and other head injuries. Other cases, such as one in California, was dismissed because science could not link former Pop Warner football players’ death to the league. The NCAA is seeking to block evidence, such as the Rosenberg article, and other media related to the 1989 USC team because this media could be damaging to their cause since five linebackers from that team died before turning fifty. They all died from their own downward spirals, whether it was suicide or binge drinking. The common theme all five linebackers had were that they suffered from mental illnesses shortly before death. This is likely CTE symptoms, but tests were not done on all five brains. Junior Seau is the only confirmed player that suffered from CTE after researchers studied his brain after his suicide in 2012. The merits of Alana Gee’s case are not frivolous, so this case should not get dismissed. However, if this case is brought to trial, and found in her favor, this could open Pandora’s Box to all those who passed away young or “before their time” after they participated in contact sports. Alex Patterson is a Thomas M. Cooley Law School graduate and works for Kerley and Talken PC as a paralegal. He played football for seventeen years as an offensive and defensive lineman. He graduated from Lindenwood University-Belleville in 2018 with a Bachelor’s in Sports Management. He can be followed on Twitter @alpatt71.

Daniel Kaplan from The Athletic reports the NFL will vote Tuesday on the person or people responsible for paying St. Louis the $790 million settlement fee. This settlement fee stemmed from the NFL not following its own relocation guidelines when the Rams applied for relocation in 2015. The Rams relocated to Los Angeles in 2016, but this relocation did not technically “occur” in 2016. It happened in 2013. In 2013, then St. Louis (now Los Angeles) Rams owner Stan Kroenke showed NFL Commissioner Roger Goodell and other NFL owners the land he purchased in Inglewood, California. This land is the current land SOFI Stadium and its surrounding area sits in Hollywood Park. The relocation occurred in 2013 because the land was big enough for an NFL stadium, television studios, and more. Stan Kroenke is married to Anne Walton, a Walmart heiress, and he is personally worth around $7 billion. Goodell and the owners knew their best chance for the league to move back to the second-largest market in the nation was through Stan Kroenke and the Rams. Kroenke’s and the NFL’s plan to Los Angeles was set in motion. The Rams filed their articles of incorporation as a California company in 2014, while they were still located in St. Louis. This was done after the Rams won an arbitration hearing against St. Louis about which entity had the better stadium plan to renovate the then-named Edward Jones Dome. The “St. Louis” Rams still “competed” to 7-9 seasons in 2014 and 2015 before the relocation meeting occurred in Houston on January 12th, 2016. The owners voted 30-2 in Kroenke’s favor over another competing Los Angeles project in Carson, California brought forth by the then-San Diego Chargers and then-Oakland Raiders ownership groups. Stan Kroenke agreed to cover all legal “costs” that would incur from this relocation. Kroenke argues this only covers the legal fees, and every other owner has to pay their share for the $790 million settlement fee. Other owners, such as John Mara Jr., argue they would not have voted for Kroenke to leave St. Louis had they known this was the case. The NFL assessed a $7.5 million fee against each club in December for partial payment for the settlement fee. Earlier this year, Goodell created a five-member ad hoc committee to make a recommendation to him on who has to pay the settlement fee. This committee lost members, but it still stands. NFL owners disagreed with the NFL’s plan to assess a $7.5 million fee against them because this matter has not been determined yet. The meeting next Tuesday is scheduled to be in New York. Stan Kroenke can still personally sue Goodell and the finance committee, should it be determined that he is the sole person to pay the settlement fee. This meeting will likely turn owners against each other as it did last December after they found out about the indemnification clause Kroenke had in the relocation. The owners do not like to lose money, and if each owner has to fund part of their wealth for the settlement fee, this will not sit well with them. St. Louis has yet to announce how they are going to split the settlement money among the parties in the lawsuit, the city, the county, and the Regional and Stadium Authority. The good news for St. Louis is the city is receiving an Xtreme Football League (XFL) franchise, that will play its games at the Dome at America’s Center, marking football’s second return to St. Louis. The first return was the COVID-19 abbreviated return of the Xtreme Football League (XFL). This meeting will divide the owners into whether they are going to pay the settlement fee and turn on Stan Kroenke and Jerry Jones, the project’s voice, for forcing them into this situation, or whether they will rejoice in hearing that Kroenke has to fund the entire $790 million settlement fee by himself. If this happens, expect him to sue the NFL for misconstruing the word “costs” and turning on the word’s ambiguity. Alex Patterson is a Thomas M. Cooley Law School graduate and works for Kerley and Talken PC as a paralegal. He played football for seventeen years as an offensive and defensive lineman. He graduated from Lindenwood University-Belleville in 2018 with a Bachelor’s in Sports Management. He can be followed on Twitter @alpatt71.