Passionate teammates, coaches, and fans are incensed at their favorite player when they turn the puck over in the defensive zone, but seemingly less so when they commit sexual assault. Thereby is the issue we face. Allegations of bullying, racism, sexual assault, domestic abuse, and more have silently followed the National Hockey League for years.[1] While the NHL has previously planned a platform for whistleblowers of abuse and training programs,[2] existing rules in the Collective Bargaining Agreement (CBA) and Standard Player Contract (SPC) have to be uniformly applied for them to have a true impact on player actions and attitudes. Current Issues Logan Mailloux, a top NHL prospect, was charged with defamation and offensive photography in Sweden for an incident that occurred on November 7, 2020. Mailloux asked all 32 NHL teams not to draft him in the 2021 NHL Draft, stating that he did not feel that he demonstrated enough character or maturity to earn the privilege of being drafted.[3] Mailloux was nevertheless drafted 31st overall by the Montreal Canadiens in the 2021 NHL Entry Draft. One must question whether this decision undermines the gravity of the offensive behaviour, and demonstrates the prioritization of on-ice performance over morality. Although the Canadiens have stated that they do not wish to minimize Mailloux’s actions and will provide him with the necessary tools to learn,[4] their decision to draft Mailloux suggests to NHL players and prospects that their off-ice behaviour will result in little to no career-related consequences. Otherwise, news has surfaced concerning the Chicago Blackhawks’ situation. An amendment to a lawsuit has been made stating that former video coach Bradley Aldrich forced a former player into sexual relations. Teammates engaged in “humiliating trash talking” to the player, including slur words, asking the player if he wanted to engage in oral sex for years at practices, with coaches present.[5] The Applicable Rules The SPC and CBA, among other sources, set out rules that govern players’ off-ice conduct. SPC: 14. “The Club may also terminate this SPC upon written notice to the Player [...] if the Player shall at any time: (a) fail, refuse, or neglect to obey the Club's rules governing training and conduct of Players, if such failure, refusal or neglect should constitute a material breach of this SPC [...]”[6]. CBA: “18-A.2 Commissioner Authority to Impose Discipline for Off-Ice Conduct. Whenever the Commissioner determines that a Player has violated a League Rule applicable to Players [...] or has been or is guilty of conduct (whether during or outside the playing season) that is detrimental to or against the welfare of the League or the game of hockey, he may discipline such Player in any or all of the following respects: (a) by expelling or suspending such Player for a definite or indefinite period; (b) by cancelling any SPC that such Player has with any Member Club; or (c) by imposing a fine on the Player [...].[7] 18-A.3 sets out the Procedures for Commissioner Discipline for Off-Ice Conduct. The Procedures include (a) a league investigation and details on hearings (b-e).[8] Notably, the investigations occur internally between the NHL and its Players’ Association (NHLPA), where an Impartial Arbitrator is only consulted in the event of an appeal (18-A.4).[9] Recommendations Clearly, there are many rules and policies that are in place to prevent misconduct and punish players that engage therein. To little surprise, these are broad rules to allow for case-by-case interpretation. Therefore, the issue is not a lack of rules, but rather, in the application or interpretation of the meaning of said rules. Adam Kierszenblat of The Hockey Writers suggests that the NHL needs to create a policy concerning sexual assault. Kierszenbalt suggests looking at policy created by the Major League Baseball for guidance.[10] Policy, training, and whistleblowers can ensure uniformity in prevention and disciplinary process between organizations. This idea can certainly help, but policy means nothing if it is not followed nor enforced. Perhaps there is too much leniency in what is meant by “conduct that is detrimental to or against the welfare of the League or the game of hockey”. One must ask whether this leniency may be a result of the internal nature of the investigations and hearings. The NHL’s support for many other noble causes, such as the You Can Play movement, Hockey is for Everyone, and creating the O’Ree Community Hero Award provides a glimmer of hope for the strides yet to be made concerning sexual, and other off-ice misconduct. The NHL and NHLPA must continue with preventive approaches to misconduct. Equally, they ought to hold players, coaches, and organizations accountable to ensure the relevant provisions of the CBA and SPC have a preventive effect. Regardless, these individuals and entities are held to the highest standard on the ice; why should that be any different off the ice? Don’t be mistaken, there are rules in place to punish players for forms of misconduct; they’re just not impacting teams and players in a way that sits well with the public’s moral compass. Therefore, if the NHL does not interpret and apply the rules of the CBA appropriately and change attitudes around the league, it is in the best interest of the league and its players to have decisions rendered by independent and impartial arbitrators at first instance, rather than through the league’s internal mechanism. . [1]See generally Patrick Kane, Slava Voynov, Logan Mailloux. [2] Greg Wyshynski, (ESPN, 2019). NHL Plans Platform for Whistleblowers of Abuse, Training Program [3] Frank Seravalli, (Daily Faceoff, July 20, 2021) . [4] ibid [5] Ben Pope, (Chicago Sun Times, July 22, 2021) [6] Collective Bargaining Agreement Between the National Hockey League and the National Hockey League Players’ Association, Exhibit 1 Standard Player Contract, article 14(a). [7] Collective Bargaining Agreement Between the National Hockey League and the National Hockey League Players’ Association, article 18-A.2. [8] ibid, article 18-A.3(b-e) [9] ibid, article 18-A.4 [10] Adam Kierszenblat, (The Hockey Writers, July 9, 2021) NHL Needs to Create a Sexual Assault Policy

In late 2020, more than a dozen Miami Gardens residents filed suit against Miami-Dade County and Mayor Carlos Gimenez for racial discrimination, seeking to prevent Formula One races from being held at Hard Rock Stadium, where the Miami Dolphins play. The plaintiffs alleged that their civil rights as well as state, county, and city laws were violated by the large-scale, car-racing event at the Hard Rock Stadium in their city. Liberty Media, the entity that owns and controls Formula One, announced, in September 2016, its goal of expanding Formula One racing to Miami. The plans initially contemplated a long weekend of racing in 2019, through the streets of downtown Miami, near Bayfront Park and the Port of Miami, among the city's restaurants, shops, and residential areas. In May 2018, Stephen Ross, the owner of the Miami Dolphins and the owner of the exclusive franchising rights to Formula One races in South Florida, expressed the goal of Formula One, "[i]n cooperation with the City of Miami and Miami-Dade County," to "deliver yet another global event that will be a destination for people from around the world and drive economic value to South Florida." Close to one-hundred Miami Gardens residents attended a October 29, 2019 commission meeting to express their opposition to Formula One racing in their neighborhood. Various residents and city leaders voiced their concerns about the myriad of negative impacts the racing would have on Miami Gardens: "catastrophic health impacts"-namely, hearing damage and air pollution, disruption to their daily lives, not being able to access their homes during races, unacceptably high noise levels, and extreme traffic congestion. The Miami Gardens residents and community leaders also highlighted the unprecedented outcry from the Miami Gardens residents, the Dolphins' lack of effort to engage them in the process, the community's historical lack of representation in and influence on the County, and the apparent double standard between the Defendants' response to the downtown Miami residents' opposition to the race as compared to, in contrast, the Defendants' disregard of the Miami Gardens residents' similar outcry. Formula One agreed to a $5 million pact with Miami Gardens over the next 10 years. In an effort to garner support, F1 proposed a community benefits package which includes priority hiring of Miami Gardens residents, the creation of a STEM program for children and other concessions to address residents’ concerns. Still, nearby citizens felt strongly in opposition and unsuccessfully attempted to overturn the election of a city council member who supported F1's proposal. The council would eventually vote to approve F1's offer, leaving this lawsuit as the residents' last chance. After much deliberation, the United States District Court for the Southern District of Florida issued its decision on July 7, 2021, holding for the defendants, F1 and the Miami Dolphins. Ultimately, the residents' suit was dismissed because they did not state a claim that was plausible enough to lead to relief. The court reasoned that the defendants were grounded in their reasoning for holding the race at Hard Rock Stadium in Miami Gardens. Said rationale was to eliminate the need for a formal street closure, which would have been required at other proposed locations, such as Bayfront Park. As for the plaintiffs' 14th Amendment equal-protection claim, the court held that the allegations did not amount to a plausible showing that the County specifically targeted Miami Gardens because it wanted to inflict harms associated with the event specifically on Black residents. "While it is certainly plausible that the harms alleged will disproportionately impact Black residents, simply by virtue of the fact that 73% of Miami Gardens' population is Black, that alone is not enough to show discriminatory intent." "[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact."). In order to allege an equal-protection claim, a plaintiff must set forth facts showing not only a racially disproportionate impact, but a racially discriminatory intent or purpose as well. The latter fell short here. Excerpts from the court opinion are depicted below:

The world of Formula One continues to develop constant controversies and interesting legal issues and questions, with the second half of this season it being no exception. I've covered many of these in previous articles, but these “constant controversies” continually evolve, changing as soon as you think it's “over.” With the divisive opinions surrounding Red Bulls' “breach” of the cost cap in 2021 and continued comments around the Oscar Piastri Saga, let's get into the most recent developments with legal implications in Formula One. Red Bull found to be in “Minor Breach” of 2021 Budget Cap On the forefront of everyone's minds right now is the finding that Red Bull exceeded the budget cap during its 2021 campaign, where Max Verstappen controversially won the World Drivers Championship. Accusations from Mercedes and Ferrari have been circulating for a while now, but recently the FIA declared that Red Bull did in fact breach the budget cap during their 2021 campaign. More specifically, the FIA determined that Red Bull committed a “minor” breach of the regulations, limiting teams to 145 million dollars per year, with certain exclusions. Based on current governance, an overspend of less than 5% of the overall cap (or approximately 7.25 million dollars) is considered “minor,” and subjects a team to a number of potential sanctions by the FIA. These include: A fine in an amount to be determined on a case-by-case basis A public reprimand A deduction of Constructors' Championship points was awarded [for 2021 in this instance] A deduction of Drivers' Championship points awarded Suspension from one or more stages of a competition Limitations on the ability to conduct aerodynamic or other testing; and/or reduction of the cost cap As of the writing of this article the FIA has not announced which of the available sanctions it will levy against Red Bull, with leadership at Mercedes and Ferrari, among others, advocating for the harshest possible penalties against Red Bull. This is particularly contentious because of the circumstances in which Red Bull and Max Verstappen were able to secure the World Drivers Championship last season, in light of controversial decisions made by then-race director Michael Masi. The discovery that Red Bull has breached the cost cap has reignited Mercedes fan's criticisms of last year’s championship and is also important as the first real challenge of enforcement for the FIA in the cost cap era. What will the punishment be? Speculating on the exact extent of the reprimand faced by Red Bull is complex and challenging, especially when looking at it from as much of a neutral perspective as one can. The FIA has a delicate balance it needs to strike with the punishment it decides to hand down to Red Bull—the FIA needs to make sure that the punishment is strong enough to set the proper precedent to deter teams in the future from breaching the cost cap, but not “so harsh,” as this is the first breach which occurred (during the first year of the cost cap era) and was relatively “minor.” With the 2021 title already being as contentious as it is, I don't think that the FIA will choose the nuclear option of deducting drivers’ championship points from Max Verstappen to an extent that changes the result of the championship for 2021. That would just add more fuel to the fire and bring more attention to a controversy that Formula One and the FIA are trying to move away from, and to me (being as neutral as possible) seems a little bit harsh for a “minor” infringement during the first year of an implemented budget cap. At the same time, simply doing a public reprimand (the least severe punishment in my opinion) isn’t going to deter overspending nearly enough going forward. Personally, I think this is why the FIA is taking its time determining the punishment. They're having to weigh these thoughts and considerations to decide not only what is an appropriate punishment for Red Bull now but set the precedent for what will be considered reasonable punishments for similar breaches in the future. I suspect that the FIA will choose an option somewhere in the middle—maybe implementing a fine, including a public reprimand, and imposing a restriction on testing for Red Bull. While they could in my mind foreseeably reduce Max's total points for the year, I don't think they're going to choose this option for a couple of reasons. One of which I've already mentioned is that they're unlikely to deduct points in such a manner that it would upset the championship standings for last year, and the second reason is if they only reduce his points by a small margin, they're setting a precedent that they are not going to easily be able to deduct more points from a driver or team that does this in the future. The other thing that will ultimately affect the severity of the punishment will be the extent to which Red Bull actually breached. punishments available to the FIA under a minor breach are the same if the team over spins by a few thousand dollars up to that 7.2 million mark—it would follow that if Red Bull was closer to the low end of a breach the punishment would be less, and if they were closer to that higher end that the punishment would be stronger. Without knowing exactly how much their overspending as it is difficult to predict exactly how severe the punishment will be. Once we know more about the size of the breach and the FIA's final decision regarding the punishment it will be worth the revisit, but until then too much is up in the air. I do not envy the people tasked with coming into this decision and I can only imagine the difficulties they are having with weighing all of the variables, and I hope that they are able to accurately find that elusive middle ground for “proper” punishment. 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.

I've covered the tumultuous Alpine and Oscar Piastri debacle in a number of previous articles— but in light of continued comments by Alpine and now Mercedes Team Principle, Toto Wolff, I felt it warranted another examination. Wolff is on record saying that the Piastri situation sets a “dangerous precedent” for Formula One teams and their junior programs by supporting the ability of a driver to be “disloyal” to a team that has substantially invested in their career. His comments suggest that the actions by Piastri (which were upheld as valid by the FIA’s Contract Recognition Board) will negatively impact teams that have junior programs and makes signing young drivers into these programs less appealing. I don't buy it. Wolff is saying this because of his close relationship with Alpine’s Team Principal, Ottmar Szafnauer, but I don't think he really believes this statement. Formula One is a calculating, emotionless place. When a team decides that you are no longer worth keeping as a driver, they make “harsh” but necessary decisions to cut drivers all the time (see Daniel Riccardo this season, Pierre Gasly/Alex Albon at Red Bull). Piastri made a similar decision, and it just so happens that this time it was the team that got the short end of the stick and not a driver. Also, the CRB found that at the time of his signing with McLaren, Piastri had no valid or enforceable contract with the Alpine, who was dragging their feet and finding him a seat because of uncertainty surrounding Fernando Alonso. Ultimately the blame for losing Piastri lies strictly with Alpine, who failed to recognize that he was out of contract and free to explore other options. This shouldn't be discussed as a “loyalty” question, but as one of contract management and drafting and should serve as a lesson to teams to make sure they're on top of that. Sources close to Formula One have said that Alpine’s contract department is only three or four people, which for a team that claims to be a “major force” within F1 and with an extensive junior program is not enough. This understaffing certainly played a role in the drafting of Piastri’s original contract, which did not keep him contracted for long enough and gave him this contractual out. It also certainly played a role in the fact that Alpine was “blindsided” that Piastri was able to sign another contract and that they missed their own contractual provision that allowed him to do this when evaluating options for the future. It is insane to me that Alpine was/is operating with such a limited contract department, and if anything, this situation should serve as a warning and less into teams to make sure their contracts say what they think they do, last for as long as they want them to, and are actively managed, especially as they get close to expiring or certain contractual options become available. This situation is a real-world and expensive lesson in contract drafting and management, not “driver loyalty” as Alpine wants it to appear. Teams like Red Bull and Mercedes also have extensive junior programs and don't have this issue because they properly manage these contracts and have a robust department devoted to them. For example, Pierre Gasly, who has been a driver in Formula One since 2017, is still on his contract with Red Bull which was signed when he was a part of their junior program. Red Bull saw his value and decided to protect it with a long contract so that they could reap the benefits of their investment in him. Apparently, Alpine didn’t do the same with Piastri. It's not like this issue is a new one or one that is out of the normal course of dealing for teams in the sport. By failing to maintain adequate personnel and practices, Alpine is fully to blame for creating this situation. Piastri Was rightfully frustrated and found an offer that was immediate and certain, something that Alpine was unwilling to give him. Just because it is the driver getting what they want instead of a team does not make this a huge problem that sets any “dangerous precedent.” If my frustration with the continued victim narrative being proffered by Alpine wasn’t already obvious, I honestly hope the drama around the Piastri saga is mostly behind us. The CRB has issued its final decision that Piastri’s McLaren contract is valid, and he will be racing for the team next year. If the roles were switched, Alpine would have had no qualms about cutting ties with someone they invested in if it was on their terms. Hopefully, all sides can move forward and stop dragging this out and attempting to characterize the situation as a “breach of loyalty” when it isn’t and instead is a result of failing to properly manage contracts. 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.

This week, the Supreme Court of the United States heard oral arguments in a case that could have a major impact on the sports and entertainment world. The case, The Andy Warhol Foundation for the Visual Arts v. Lynn Goldsmith, explores the limits of the fair use doctrine, which the Supreme Court also examined in 2021 in Google LLC. V. Oracle America, Inc. The big question in Goldsmith is “[w]hether a work of art is “transformative” when it conveys a different meaning or message from its source material.” Case Background In the 1980s, photographer Lynn Goldsmith licensed a photograph of Prince to Vanity Fair Magazine. Vanity Fair magazine commissioned Andy Warhol to design a cover for Vanity Magazine using the photograph. Warhol utilized the photograph to create fifteen additional works. After Prince’s death in 2016, Goldsmith notified The Andy Warhol Foundation for the Visual Arts, Inc. of the alleged violation of Goldsmith’s copyright in the original Prince photograph. In 2017, the Foundation sued Goldsmith for a declaratory judgment that Warhol’s works were non-infringing or fair use of Goldsmith’s original Prince photograph. The District Court for the Southern District of New York ruled that Warhol’s use of the photograph was fair use. Goldsmith appealed to the United States Court of Appeals for the Second Circuit, and the Circuit Court ruled that the District Court erred and Warhol’s works are not fair use. Fair Use Defense First codified in the Copyright Act of 1976, 17 U.S.C. § 107 details the four factors for the fair use defense: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The Supreme Court’s analysis will focus on the first factor and whether Warhol’s works are transformative. The District Court found Warhol’s work to be transformative because the works “can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” The Circuit Court disagreed. Specifically, Warhol’s works “retain[] the essential elements of the Goldsmith [p]hotograph without significantly adding to or altering those elements.” At oral argument, the Supreme Court Justices utilized pop culture references to illustrate scenarios that may or may not constitute fair use. For example., Justice Thomas asked whether adding “Go Orange” (referencing Syracuse University) as a banner on Warhol’s Orange Prince would have sufficiently transformed the work to satisfy the first factor. Attorneys for the foundation indicated that Justice Thomas’s banner would not have sufficiently transformed the work. Where to draw the line? That is the big question in front of the Justices. Any ruling will have a major impact on the sports and entertainment industries as companies try to determine what can constitute fair use. 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.

It has been reported by Richard Childress Racing that Tyler Reddick has been bought out of his Richard Childress Racing (RCR) contract by 23XI Racing, allowing him to compete for the team in 2023. In July, it was reported that top NASCAR driver Tyler Reddick was leaving RCR to head for Michael Jordan – owned 23XI Racing in 2024. The move caught owner Richard Childress and the team off guard, as in NASCAR it is unusual for a driver to have a contract done a full year before leaving their current team. The last time this situation occurred was in 2014, coincidently with Kevin Harvick parting ways with RCR to head for Stewart-Haas Racing. Richard Childress has made it publicly clear that he was not happy with Reddick’s antics or the fact that he was leaving in 2024. In the past month, RCR has signed two-time Cup champion Kyle Busch to drive the #8 Chevy. When the announcement was made, it was overshadowed by the question of what the team would do with Reddick. At the time, Childress stated that the team would field a third car for Reddick alongside Busch and Austin Dillion. The news was made public after Kurt Busch announced that he would not be returning to 23XI in 2023. Reddick will be taking the place of Kurt Busch, who has been out of competition since July due to a concussion sustained at Pocono. In his press conference, Busch stated, “I know I am not 100% in my ability to go out and race at the top level in the NASCAR Cup Series.” The 2022 season has marked a decline in the safety of race cars in NASCAR. Drivers have become increasingly worried about the safety of the “next-gen” model after several drivers sustained concussions from rear-end collisions, apparently due to the design of the rear of the car. Reddick will join Bubba Wallace to complete the 23XI stable for 2023. This leaves Kyle Busch and Austin Dillon at RCR. At this time, it is unclear if RCR will seek to expand to a three-car program or if the idea of a third car was merely a tactic in negotiations. This is an outcome that many industry members believed was inevitable with Kurt Busch’s concussion and Kyle Busch joining RCR. This resolution will allow both programs to focus on the future without the looming distraction that would have been present if Reddick had stayed at RCR in 2023. Jack Bradley is currently a Law school student at Duquesne University School of Law and an alum of Georgetown University (MPS) and Penn State University (BA). Jack is also the Co-founder and President of Poppy Packs, a 501c3 charity, and former Head of Marketing and Communications within NASCAR. Linkedin: https://www.linkedin.com/in/jackwilliambradley/ Twitter @JackWBradley Sources: https://www.usnews.com/news/sports/articles/2022-10-15/concussed-nascar-champion-kurt-busch-to-step-away-from-sport https://nascar.nbcsports.com/2022/10/15/tyler-reddick-to-drive-for-23xi-racing-in-2023-kurt-busch/ https://tobychristie.com/2022/10/11/report-23xi-racing-has-bought-out-tyler-reddicks-rcr-contract-for-2023/ https://nascar.nbcsports.com/2022/07/16/no-time-for-rcr-tyler-reddick-to-look-back-focus-turns-to-track-austin-dillon-richard-childress-kevin-harvick/ https://nascar.nbcsports.com/2022/07/12/tyler-reddick-will-join-23xi-racing-in-2024/

The Pac-12 Conference has had a rough go of it over the past few years. From missing out on the College Football Playoff each of the past five seasons to losing USC and UCLA to the Big Ten this past summer, it's clear that the premier conference on the West coast is going through tough times at the moment. Amid the adversity, the last thing the Pac-12 wants to see is a problem with its own network. Nonetheless, the Pac-12 Network filed a lawsuit this week against a major television provider for a breach of contract. According to Jon Wilner of the Mercury News, the network has filed a lawsuit against Dish for “withholding payments and violating the terms of their distribution agreement.” The dispute stems from the 2020 football season heavily impacted by COVID-19, especially in the Pac-12 where many schools didn’t even play half of the normal 12 regular season games. Wilner notes that the Pac-12 is seeking damages and injunctive relief in order “to both recoup the license fees Dish has already improperly withheld and to prevent any continued withholding of fees due under the parties’ agreement,” per the suit. Both Dish and the Pac-12 declined to comment on the matter, and two sources with backgrounds in sports media contracts tell Wilner that the redactions in the suit make it difficult to draw any definitive conclusions. For example, the two sides agreed on a rebate for the 2020 season “calculated pursuant to the parties’ agreed-upon rebate provision.” However, Dish, per the suit, “also inexplicably demanded from the Pac-12 additional rebates for the two contract years before 2020-21.” The explanation for Dish demanding additional rebates is redacted. Because of the redactions, Wilner’s sources were left wondering how Dish concluded that the shortfall in 2020 impacted the prior years and, therefore, prompted the decision to withhold present-day payments. The Pac-12 obviously contends that Dish’s position is improper and unreasonable because Dish could not possibly have suffered losses during the 2018-19 and 2019-20 contract years from COVID-19-related football shortfalls occurring one to two years thereafter. The Pac-12’s complaint includes a demand for a jury trial, so it will be interesting to see how this case plays out moving forward. The future of the Pac-12 Network is certainly up in the air at the moment along with the future of the conference as a whole. The Pac-12’s media rights deal just went to the open market after its exclusive negotiating window with Fox and ESPN concluded. Anyone interested in college sports law should pay attention to not only the resolution of the lawsuit but the Pac-12’s new media rights deal as well. Even though commissioner George Kliavkoff has expressed confidence that the remaining 10 members are committed to the conference, nothing can be set and stone until a new media rights deal with a strong grant of rights is signed. There is a lot of speculation that the Pac-12 could go heavy into streaming with Amazon or Apple with hopes to maximize revenue to keep its members from looking toward the Big Ten or Big 12. The college athletics landscape is shifting every day with lawsuits, conference realignment, transfers, and changing leadership. Add this lawsuit to the long list of business and legal issues facing the industry in this crazy time. Brendan can be found on Twitter @_bbell5

*Trigger Warning – This article includes allegations of grooming and sexual abuse that may be disturbing to individuals.* The NHL post-season has been relatively quiet. The draft came and went, and various teams traded and released players. Teams prepared for another season, and each hoped to win a cup. However, just days before the regular season was set to begin a Twitter post engulfed one player in allegations of grooming and sexually abusing a minor. On Friday a Twitter user by the name of @Emily_Smith3333 posted a message accusing Tampa Bay Lightning defenseman Ian Cole of assaulting her while she was in high school.[1] The Twitter account was created in September and is the only tweet associated with the account. Currently. there is little information about the identity of the individual who posted on the account. The tweet tagged the Lightning and NHL official accounts on the platforms. The detailed statement claimed that Cole had been playing in the NHL for several years when he began a four-year relationship with the individual when she was in high school. [2] The message states that Cole was aware that the individual was a minor and pressured her to have sex as well as pressuring her into doing things without consent.[3] The statement continues by saying that Cole bragged about his relationship with the individual to his NHL teammates and made repeated misogynistic comments to her.[4] Additionally, the allegation alleges that the individual was not the only minor that Cole had a sexual relationship. She states that Cole also engaged in relations with another minor from the individual’s high school after she had graduated. [5] The statement did not say when and where these incidents occurred. While Tampa’s season begins on Tuesday against the New York Rangers, Cole will not be skating with the team. Over the summer Cole was signed to a one-year $3 million contract with Tampa. The NHL and Lightning are aware of the allegations and have opened an investigation into them. There is no word if a police investigation will also be opened. As of now the Lightning have suspended Cole pending investigation of the allegations. In a statement released by the team “The Tampa Bay Lightning is aware of the allegations against player Ian Cole and are cooperating fully with the NHL on an investigation. Our organization takes these allegations very seriously. While we continue to gather more details, we have decided to suspend Ian Cole pending the results of an investigation. No members of the organization, including players, will comment further at this time.”[6] Cole has also released his statement via his agent on Twitter saying “I take the allegations made against me today in an anonymous tweet very seriously. I completely deny these allegations and will fully cooperate with the NHL and Tampa Bay Lightning, their officials, and legal departments in the forthcoming investigation. I look forward to clearing my name and demonstrating to the NHL and the Tampa Bay Lightning that these allegations are unfounded. I will have no further comment until the NHL’s investigation concludes.” This is not the first time the NHL has had to deal with allegations of sexual abuse. Last year Evander Kane was accused of abuse allegations by his ex-wife Anna. Additionally, the Chicago Blackhawks were engulfed by an investigation into sexual assault allegations from 2010 that led to various high-ranking members of the organization resigning. Moving forward it will be interesting to see how the Lightning and NHL handle the investigation. Jessica Shaw is a recent graduate of New York Law School and can be reached on Twitter @JessicaShaw22. Sources: [1] Crawford, K. Michigan native, NHL player Ian Cole suspended after accusation of sexual abuse, grooming a minor. Yahoo! Sports. Retrieved October 9, 2022, from https://sports.yahoo.com/michigan-native-nhl-player-ian-222435354.html [2] Id. [3] G, J. NHL investigating allegation

The National Football League (NFL) has made headlines for all of the wrong reasons following Thursday Night Football’s week 4 matchup between the Bengals and Dolphins. After Dolphins’ Quarterback, Tua Tagovailoa, sustained his second head injury in as many weeks[1], the National Football League Players Association (NFLPA) and NFL agreed to update their concussion protocols in an attempt to better protect players who sustain injuries to the head.[2]The current policy states that a team physician along with an unaffiliated neurotrauma consultant (UNC) will examine and determine if a player can return after sustaining suspected damage to the head.[3] The updated policy is rumored to change the current rule of a player returning after they display signs of “Gross Motor Instability”, which would eliminate much of the subjectivity of the current policy.[4]Rather, the new protocols would prohibit a player from returning to the game if they demonstrate “any instability.”[5] The current NFL collective bargaining agreement (CBA) states that the “the responsibility for the diagnosis of concussion and the decision to return a player to a game remains exclusively within the professional judgment of the [team physician].”[6] This means, regardless of the sideline UNC’s testing and/or opinion, the team doctor makes the ultimate decision which could lead to a conflict of interest between what the team wants and what is best for the player’s health. NFL chief medical officer Dr. Allen Sills stated that while the final language and consequences of the new policy are being discussed, they could be approved before Week 5 of the NFL season begins.[7] Under the current CBA of the NFL, the NFLPA has the right to investigate a matter which concerns the “health, safety, or medical care provided by Club-affiliated personnel.”[8]While the investigation is ongoing, it has already resulted in the firing of the UNC involved in the clearing of Tua after it was found he made “several mistakes” during his evaluation.[9] The firing of the UNC takes some of the heat off of the NFL and the Dolphins and amending the collective bargaining agreement could help protect injured players. However, neither of these addresses the root cause of the issue. In the 321 total games between preseason and the regular season, NFL players suffered a total of 187 concussions, calculating that 58% of games resulted in a concussion.[10] In a study conducted by a team of researchers led by Boston University Neuropathologist Ann McKee, 175 out of 202 (87%) former football players’ brains showed signs of chronic traumatic encephalopathy (CTE).[11] Head trauma and long-term injury is a prominent problem for football players during and after their career. The primary issue at hand is the Dolphins’, and potentially every NFL team’s, treatment of their players. The Dolphins tried to justify their decision by stating Tua’s injury was a back injury.[12] However, language in the concussion protocol never mentions proving it was a back or head injury, just proof that it was a neurological issue.[13] Attempting to use this loophole as a justification for their decision highlights the problem with the NFL. They value team success more than player health. It is a shame it took such a frightening injury to bring this issue to light, but we can only hope that players and fans alike keep the pressure on the NFL and its teams to implement policies that protect the long-term health of the players. Evan Mattel is a 2L at Hofstra Law, Vice President of the Sports and Entertainment Law Society, Representative for the New York State Bar Association's Entertainment and Sports Law Section, and a member of Hofstra's Labor and Employment Law Journal. He can be found at @Evan_Mattel21 on Twitter or on Linkedin Footnotes: [1] See What we know about the injury to Dolphins QB Tua Tagovailoa, and what’s next, ESPN (Sep. 30, 2022) https://www.espn.com/nfl/story/_/id/34697326. [2] See Ian Rapoport & Tom Pelissero, NFL, NFLPA agree to parameters of updated concussion protocols, NFL (Oct. 01, 2022) https://www.nfl.com/news/nfl-nflpa-agree-to-parameters-of-updated-concussion-protocols [3] See NFLPA to investigate handling of Dolphins’ QB Tua Tagovailoa concussion evaluation during game v. Bills, NFL (Sep. 25, 2022) https://www.nfl.com/news/nflpa-to-investigate-handling-of-dolphins-qb-tua-tagovailoa-concussion-evaluatio [4] See id. [5] Jack Baer, Tua Tagovaoila Rule? NFL, NFLPA reportedly working on change preventing players’ return after ‘instability’, Yahoo Sports, (Oct. 1, 2022) https://sports.yahoo.com/tua-tagovailoa-rule-nfl-nflpa-reportedly-working-on-change-preventing-players-return-after-instability-001833719.html?soc_src=social-sh&soc_trk=ma [6] Collective Bargaining Agreement, NFL (Mar. 15, 2020) https://nflpaweb.blob.core.windows.net/website/PDFs/CBA/March-15-2020-NFL-NFLPA-Collective-Bargaining-Agreement-Final-Executed-Copy.pdf [7] See Rapaport & Pelissero, supra note 2. [8] Baer supra note 5. [9] See Marcel Louis-Jacques, Unaffiliated neurotrauma consultant who evaluated Tua Tagovailoa fired, sources say; investigation ongoing, ESPN (Oct. 1, 2022) [10] See Injury Data Since 2015, NFL (Feb. 27, 2022) https://www.nfl.com/playerhealthandsafety/health-and-wellness/injury-data/injury-data. [11] See Meredith Wadman, Ninety-nine percent of ailing NFL player brains show hallmarks of neurodegenerative disease, autopsy study finds, Science (July 25, 2017) https://www.science.org/content/article/ninety-nine-percent-ailing-nfl-player-brains-show-hallmarks-neurodegenerative-disease [12] See Jodan Dajani, Tua Tagovailoa injury: Orthopedic surgeon discusses QB’s scary situation, decision to play Thursday night, (Sep. 30, 2022) https://www.cbssports.com/nfl/news/tua-tagovailoa-injury-orthopedic-surgeon-discusses-qbs-scary-situation-decision-to-play-thursday-night/ [13] See NFL Concussion Diagnosis and Management Protocol, NFL (Aug. 01, 2022) https://www.nfl.com/playerhealthandsafety/resources/fact-sheets/nfl-head-neck-and-spine-committee-s-concussion-diagnosis-and-management-protocol

On Monday, the Supreme Court of the United States declined to review the City of Oakland’s antitrust case against the National Football League (NFL). By the Supreme Court declining to intervene, the city’s chances to recover damages for the Raiders’ 2017 relocation to Las Vegas are minimal. Additionally, the case sets a bad precedent for the city if another team decides to leave. The Raiders returned to Oakland in 1995 after spending over ten years in Los Angeles. Upon return to Oakland, the city leased the Oakland Alameda County Coliseum to the Raiders with an original term of sixteen years, which the parties eventually extended in 2009 and 2014. As the Coliseum began lagging behind other NFL facilities, the city began negotiating with the Raiders to find a solution that would keep the Raiders in Oakland, including proposing to donate the land to the Raiders in 2014, proposing a $500 million renovation in 2015, and proposing building a new $1.3 billion stadium in 2016. In 2017, the Raiders applied to the NFL to relocate to Las Vegas, which thirty-one teams approved—the Miami Dolphins being the lone holdout. In 2018, the Raiders filed a complaint in the United States District Court for the Northern District of California alleging Sherman Antitrust Act violations via horizontal price-fixing and a group boycott, and over $240 million in damages. Specifically, the league engaged in a group boycott by refusing to deal with the city by removing a team and not granting the city an expansion franchise and engaged in a horizontal price-fixing scheme by limiting the number of NFL teams—driving up the price of having an NFL team. The District Court dismissed the antitrust claims are “too speculative to confer antitrust standing.” After appealing to the United States Court of Appeals for the Ninth Circuit, the Circuit Court upheld the District Court’s ruling. In a last-ditch effort, the city appealed to the Supreme Court, which the Supreme Court declined to review on Monday, leaving the city out of options. The ruling is another sting for a city that has watched multiple teams leave. Beyond the Raiders heading to Las Vegas, the Golden State Warriors left in 2019 for a new home in San Francisco. Currently, the city and the Oakland Athletics are negotiating over a new baseball stadium, which would be located at Jack London Square. However, the city and the A’s have yet to reach a deal, and it is becoming increasingly likely that the A’s will join the Raiders in Las Vegas. With the A’s possibly leaving for Las Vegas, the ruling on the city’s antitrust claims sets a bad precedent. Thus, the city will likely have to look at other options for recovering damages if the A’s leave. In the end, the losses keep piling up for the city, and another team may leave soon. 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.

A look back In January 2019 English side Cardiff City FC (“Cardiff”), a premier league team at the time, struck an agreement with French Ligue 1 side FC Nantes (“Nantes”) for the transfer of striker Emiliano Sala for 15 million pounds. After the public announcements from each club, the Argentine player boarded a small private aircraft to go from western France to Wales. January 21st, 2019 was the last time anyone would see the striker, as the plane tragically crashed in the English Channel that day, killing both Sala and the pilot. The Dispute As a result of the tragic death of Emiliano Sala, an unprecedented inquiry developed into whether Cardiff still owed the transfer fee to Nantes. The FIFA procedural rules, FIFA Regulations on the Status and Transfer of Players, FIFA Rules Governing the Procedures of the Players’ Status Committee, and the Dispute Resolution Chamber (2018 edition), all have no mention of this scenario. However, FIFA stepped in and decided on September 25, 2019, that Cardiff must pay Nantes the first installment of the 6,000,000 euro transfer fee plus 5% interest per annum. Cardiff immediately appealed the decision to the Court of Arbitration for Sport. The decision can be found here. On appeal in front of the three-person panel in Switzerland, Cardiff contended that from a contractual perspective with a glimpse into the common intention of the parties, the transfer agreement could not be valid as two conditions precedent to the contract were not fulfilled. First, Cardiff claimed the player was being transferred and Nantes failed to validly terminate their employment relationship pursuant to the French Labour Code. Secondly, Cardiff claimed the player could at no time have been deemed a Cardiff player due to the absence of player registration with the premier league, the common intention of the parties. After a long hearing back in March of 2022 and months of examining evidence and law, the panel for the Court of Arbitration for Sport ruled on August 22 that the player transfer was completed because all conditions precedent in the transfer agreement were satisfied before the tragic death. Therefore, Cardiff’s payment obligations were rightfully triggered pursuant to the transfer agreement, and the Welsh side must pay the first installment of the transfer fee plus 5% interest per annum from the date January 27, 2019, until the date of effective payment. The Reaction Although the Court of Arbitration for Sport has ruled on this matter, it does not seem like this will be the end of the dispute among the clubs. In response to the decision, Cardiff publicly stated, “Cardiff City is disappointed by the decision of the Court of Arbitration in Sport. Once the club’s lawyers have digested the reasons for the decision we expect to appeal and will not be making any payments to FC Nantes in the meanwhile. If those appeals are unsuccessful and the club is liable to pay the transfer fee, the club will take legal action against those responsible for the crash and recover its losses. This will include FC Nantes and its agents.” Nantes released its statement stating, “FC Nantes welcomes the decision rendered today on appeal by the Court of Arbitration for Sport. The court has completely rejected the appeal lodged by Cardiff City and has confirmed the decision rendered by FIFA on September 25, 2019, concerning the transfer of Emiliano Sala. The Court, therefore, ruled as Nantes had argued since the start of the proceedings, that the player’s transfer to Cardiff City was over when he died tragically in an aviation accident. FC Nantes is delighted that this procedure,- initiated by Cardiff City and then delayed on numerous occasions by Cardiff City, - which has been difficult for all those close to Emiliano, is finally over. The club hopes this will mark the end of the public misinformation campaign, which FC Nantes has never reacted to, out of respect for the player’s family. Along with their initial ruling for Cardiff to pay the first installment of the transfer, FIFA has imposed a three-window transfer ban for the now Championship club (i.e., the second division of England). Although the ban has not taken effect due to the ongoing appeals, it seems that pressure is slowly caving on Cardiff to pay the French side or face the consequences of the FIFA punishment. Zac Montanez is a recent law graduate of New York Law School. He can be found on LinkedIn here.

On the latest episode of Conduct Detrimental, Dan Lust and Dan Wallach discussed the NFLPA’s initiation of an investigation into the concussion protocols performed on Miami Dolphins’ quarterback, Tua Tagovailoa. During their discussions, the Dans talked about the controversy surrounding the game including video clips showing Tua stumbling after a fall in which Tua’s head whipped into the grass. They also discussed how the Dolphins’ social media team seemed to flip-flop on their reports of Tua’s injury during the game. This only fueled concerns that the concussion protocols may have been conducted in a way that allowed Tua to return to the game prematurely. In this article, I dive deeper into the NFL’s Collective Bargaining Agreement, highlighting the sections that gave the NFLPA the power to initiate an investigation as well as the punishments that could be handed down by the league should they find any wrongdoing by the team’s medical staff. I conclude with a short trip into the world of medical malpractice, comparing the standards of proof with those stated in the NFL’s CBA. The NFL, over the past decade, has made it a priority to enhance player safety on multiple fronts. The NFL uses complex analytics to help develop new helmets that provide more protection for players. This year, we saw the implementation of Guardian Caps which players wore during preseason practices. On the same line, the NFL established the Head, Neck, and Spine Committee. In Article 39, Section 16, the NFL gave the committee power to create the “Concussion Diagnosis and Management Protocol.” As part of this protocol, the Committee issued an “NFL Concussion Checklist.” The CBA goes on to state, “[t]he application of the NFL Concussion Checklist to evaluate potential concussions during NFL preseason and regular season games is mandatory.” The formatting of the quote above is ripped straight from the CBA. The NFL wants to emphasize the mandatory nature of following the NFL Concussion Checklist by underlining the word in the CBA itself. The next section in the CBA is the power behind the NFLPA’s complaint brought to the league surrounding the Dolphin’s handling of concussion protocol. The CBA states “The NFLPA, the NFL Management Council or any player involved in an alleged failure by a club employee or other member of a club’s medical staff to follow any of the mandatory steps required by the NFL’s Concussion Checklist shall each have the right (independently or collectively) to bring forward a complaint about such alleged failure to the Representatives, which complaint shall be submitted in writing.” Now that the complaint has been brought forth by the NFLPA, the question is: what happens next? As with most things in the NFL or any major sports league, the short answer is arbitration. The NFL and the NFLPA appoint Representatives to participate in the arbitration over the complaint. The CBA outlines, “The Impartial Arbitrator shall determine: (1) whether a Club employee or member of a club’s medical team knowingly and materially failed to follow any of the mandatory steps in the NFL Concussion Checklist and, if so, (2) whether there were any relevant mitigating or aggravating factors present in the incident, including, without limitation: (a) whether the deviation resulted from an ambiguity in the Checklist or its failure to address the facts triggering the underlying violation, (b) whether any player interfered with the club employee or medical team’s ability to perform its duties, and (c) whether competitive concerns motivated the deviation.” As sports law fanatics, this provision provides what we look for when scoping out potential legal issues within sports. This provision provides the standard by which the arbitrator will determine the outcome of the complaint. This standard is stated as knowingly and materially failed to follow any of the steps outlined in the Concussion Checklist. The provision then goes on to do one of my favorite things and add complexity to the standard by accounting for mitigating factors. If the arbitrator does find that the employee of the Club knowingly and materially failed to follow the Concussion Checklist, then the CBA states the Commissioner shall hand out a punishment. The potential punishments include: (a) issuance of a letter of reprimand advising that club employee(s) and/or member(s) of the club’s medical staff knowingly and materially violated the NFL Game Concussion Protocol, (b) requiring the club employees or medical team members involved with the deviation from the Protocol to attend remedial education; and/or (c) a fine against the club in an amount no more than Five Hundred Thousand Dollars ($500,000); and any other discipline that the Commissioner deems warranted by the violation. Those who have played sports or are fans of sports have undoubtedly heard stories about players “playing hurt.” It happens all the time and stories come out yearly about players who found out about an injury and decided to hold off on surgery or did not realize the severity of the injury in question. The NFL has included a provision in the punishment section of the CBA in the hopes of discouraging teams from putting players back in too soon following a concussion. Specifically, the CBA states, “In the event that the NFL Commissioner determines that the violation of the NFL Concussion Checklist was motivated by competitive considerations (e.g., intent to leave player in game and knowingly, intentionally and materially disregard the Protocol in order to gain a competitive advantage) the Commissioner may require the club to forfeit draft pick(s) and additional fines exceeding those amounts set forth above.” If the NFL finds that concussion protocol was violated by a team’s employee, this conclusion may also give rise to a legal claim against that medical professional for Medical Malpractice. Given that the Tua concussion controversy occurred during a home game for the Miami Dolphins, Florida law will govern any potential action. The Florida statute provides, “the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.” It continues, “The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” Florida law attaches the preponderance of the evidence standard to its medical malpractice claims or whether something is more likely or not based on the evidence. The preponderance of the evidence standard is most likely the standard the arbitrator uses when they reside over the complaint brought by the NFLPA. If the team is punished by Roger Goodell for failing to follow concussion protocols and Tua has somehow suffered harm from this failure, then Tua may just have a solid claim for medical malpractice against the team as well. This article highlights the different connections between this controversy and the law. It is important to note that concussions have been a problem for the NFL since the league was established. Currently, the NFL is still paying former players from a concussion fund that started payments in 2017. Given this history, it is the hope that the NFL does its due diligence in ensuring that teams are following proper concussion protocol to protect the players. 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 can be reached via Twitter: @maderlaw and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.