Publicly subsidized stadiums are the ultimate partnership between sports teams and the public. The concept of stadium subsidies is not novel, but as the cost of stadiums reaches unprecedented levels, opponents of the “stadium construction wave” have started to impose significant setbacks on the projects. The Virginia legislature’s decision to exclude the $2 billion stadium deal for the NBA’s Washington Wizards and NHL’s Washington Capitals from their budget could signal a shift towards opposition to public-subsidized stadiums. It may also be a unique case, stemming from a dispute over the stadium’s location. Nevertheless, the decision by the Virginia General Assembly and the preceding debates offers valuable insights into the complexities of publicly funded stadiums. Background On March 7, 2024, The Virginia General Assembly released its final state budget of the legislative session. [1] Despite Republican Governor Glenn Youngkin’s best efforts, the budget bill did not include the $2 billion stadium deal. One of the biggest opponents of the deal, Senator Louise Lucas, played a pivotal role in the deal’s demise. As the chair of the senate’s finance committee, Lucas refused to put the proposed bills on the locket, stating that it is a bad investment which enriches club owners at the expense of taxpayers’ money. [2] The stadium deal has been under development since December 2023. Although there were debates over the stadium’s location, after both DC and Virginia elected officials proposed bids to either renovate Capital One arena or relocate it to Virginia, [3] The Monumental Sports & Entertainment CEO, and owner of Washington Wizards and Washington Capitals, Ted Leonsis announced the plan of moving the stadium across Potomac River to Alexandria, Virginia. The deal is a private-public partnership between Virginia and The Monumental. According to the terms of the deal, the Monumental would invest $400 million and the rest would come from public sources across the city or state. [4] In an announcement, Leonsis has tried to boost public support for the new deal, stating that new location, the Entertainment District at Potomac Yard, would provide best state-of-art facilities and best fan experience. [5] After the legislature rejected to fund the stadium on March 7, Youngkin expressed his frustration. He stated, “I believe the Senate is about to make a colossal mistake. It was truly— and could truly be—a monumental opportunity.” [6] The deal can still move forward if an amendment to the budget bill is introduced and voted on during the April 17 session or in a special legislative session. [7] Analysis Under the framework outlined by Ryan Gauthier’s good governance principles in stadium financing, [8] the stadium deal raises significant questions about transparency, public participation, social responsibility, and review. Transparency is the degree to which the actions and intents of an actor are made visible or “readily knowable to interested parties.” [9] In general, the lack of openness of sports teams with regards to their financial information raises transparency issues in stadium deals. In this case, limited access to the financial details of Wizards and Capitals, D.C. Mayor Muriel Bowser’s bid for renovating the Capital One Arena, [10] and the subsequent decision to move the stadium to Virginia has created additional ambiguities about the intentions of the parties involved in the deal. Balanced against the substantial impact the new stadium is expected to have on the city, the ‘readily knowable’ actions and intents of the lawmakers and Leonsis appear to fall short of the transparency standard. Further, public participation is “the process through which an organization enables key stakeholders to play an active role in the decisions and activities which affect them.” [11] According to Gauthier, there are two forms of public participation: passive and active. [12] Passive forms of public participation include “providing information or engaging in consultation and dialogue,” whereas active forms of public participation include “actions such as codesigning solutions, engaging in co-decision making between actors and stakeholders, and empowering stakeholders to make decisions themselves.”[13] While D.C. lawmakers maintained that they were negotiating several offers, Leonsis claimed he never received the $500 million dollar renovation bid until after the decision to move to Virginia has been made. The handling of the matter by D.C. Mayor’s administration and Leonsis remains unknown to the public. Therefore, the major impediment to public participation here appears to be the absence of public input and collaboration in the decision to move the stadium from D.C. to Virginia. On the flipside, there have been efforts from the representatives of a consulting firm to engage in community discussion about the project. [14] Leonsis also highlighted his efforts to boost public participation, stating that “All involved parties have undertaken an extensive community engagement process that is well underway. This process will provide a venue for all stakeholders to have input on this project.” [15] The extent of public participation seems to hinge on whether the project moves forward or not. Narrowly defined, “social responsibility” is the “voluntary contribution of finance, goods or services to community or governmental causes.” [16] The strongest arguments in favor of the new stadium deal fall under this category. Potomac Yard, the planned location for the stadium, is a vacant former rail yard. [17] The proposed plan estimates that the area will “catalyze 9.4 million square feet of office, residential and retail space,” [18] creating opportunities for new businesses, increased employment, and residential growth. Leonsis also asserts that infrastructure development of the Entertainment District is underway, which will lead to improve in the Metro system in Alexandria. [19] However, the current stadium has excellent transit access, therefore, fans most likely would have to transition from using transit to driving if the stadium is relocated to Alexandria, regardless of the investments to improve the Metro system in Alexandria, potentially leading to environmental drawbacks. [20] Lastly, accountability can be said to exist where “some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of those standards, and to impose sanctions if they determine that these responsibilities have not been met.”[21] Here, the proposed plan would be funded from by corporate taxes paid by businesses operating at the arena, personal income taxes from employees of those businesses, and income taxes from high-earning athletes and performers. [22] Hence, the revenue generated, predicted as $12 billion over the next few decades, is directly linked to the success of the project. Given that $2.2 billion worth of state and local income taxes of Potomac Yard would be redirected to the arena instead of schools, police, traffic, or other public services, it would be challenging for the public to validate the claims of such high financial needs for a new stadium. The problem exacerbates considering the ‘bad record’ of publicly-subsidized stadiums, which often fail to meet return on the investment. As a result, the arguments regarding review and accountability have been the critics’ strongest points, especially considering the significant financial investment at stake and the potential risks that insufficient returns could pose. While Virginia lawmakers refused to pay for the new stadium, Oklahoma City seems to be eager to put the taxpayer’s money on their stadium. [23] This discrepancy warrants a question: are lawmakers’ decisions to fund new stadiums based on purely financial considerations aimed at boosting city’s overall prosperity through sports, or do they serve as rewards for successful sports teams while penalizing others? Zeynep Karageldi is a passionate first-year law student at Cardozo School of Law with a keen interest in soccer and basketball. Serving as one of the 1L representatives of the Cardozo Sports Law Association, she delves into the intersection of sports and law, particularly focusing on intellectual property, antitrust, and contract law. References: [1] Hodjat, A., So is the Potomac Yard Stadium Deal Dead? An Explanation, Washingtonian (2024). https://www.washingtonian.com/2024/03/07/so-is-the-potomac-yard-stadium-deal-dead/ [2] 7News Staff, Gov. Youngkin, Group against Potomac Yard Sports Arena respond after Va. Budget released, WJLA (March 7, 2024). https://wjla.com/news/local/gov-youngkin-stop-thearena-potomac-yard-alexandria-virginia-entertainment-sports-complex-budget-senate-financeappropriations-richmond-washington-dc-wizards-capitals-richmond-politics-concerns# [3] DiMargo, C., Wilder, D., & Segraves, M., Virginia officials and wizards, caps owner agree on $2B plan to bring teams across the river, NBC4 Washington (Dec 14, 2023). https://www.nbcwashington.com/news/local/wizards-capitals-owner-announces-2-billion-planto-move-teams-to-virginia/3493235/ [4]               Hardy, K., More taxpayer money benefits pro sports owners Amid “Stadium Construction Wave”, Stateline (Feb 20, 2024). https://stateline.org/2024/02/20/more-taxpayer-money-benefitspro-sports-owners-amid-stadium-constructionwave/#:~:text=That%20hasn%27t%20stopped%20the,for%20the%20NFL%27s%20Buffalo%20 Bills. [5]               Pusatory, M., & Gregory, M., Ted Leonsis writes letter to fans explaining decision to move, WUSA9 (Jan 25, 2024). https://www.wusa9.com/article/news/local/virginia/ted-leonsismonumental-arena-letter-backlash/65-d6b3cf1e-26ba-43ba-85ac-3ecf1a6d07ae [6] Hodjat, A., Washingtonian, (2024). [7]  Id. [8]  Ryan Gauthier, Publicly-Subsidised Stadiums: Changing the Game Through Good Governance, 30 Jeffrey S. Moorad Sports L.J. 231 (2023). Available at: https://digitalcommons.law.villanova.edu/mslj/vol30/iss2/2 [9]  Thomas N. Hale, Transparency, Accountability, and Global Governance, 14 GLOBAL GOVERNANCE 73, 75 (2008); See also Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 YALE L.J. 1490, 1533 (2006). [10] Aldridge, D., With Virginia Arena deal roadblocked, Ted Leonsis and Muriel Bowser have a chance to save face, The Athletic (March 12, 2024). https://theathletic.com/5275584/2024/03/12/wizards-capitals-arena-washington-dc-leonsis/ [11] Monica Blagescu, Lucy De Las Casas & Robert Lloyd, Pathways to Accountability: A Short Guide to the GAP Framework 2 (2005). [12]  Gauthier, 30 Jeffrey S. Moorad Sports L.J, (2023) [13]  Erik Mostert, The Challenge of Public Participation, 5 WATER POL’Y 179, 183 (2003). [14]  Umeh, M., Virginia sen. Lucas Doubles Down on opposition to Potomac Yard Arena Plan, FOX 5 DC (Feb 19, 2024).  https://www.fox5dc.com/news/virginia-sen-lucas-doubles-down-onopposition-to-potomac-yard-arena-plan [15]  Leonsis, T., A letter from Ted Leonsis - Monumental Sports, Monumental Sports (Jan 25, 2024). https://monumentalsports.com/2024/01/a-letter-from-ted-leonsis/ [16] Jeremy Moon, The Social Responsibility of Business and New Governance, 37 GOVERNMENT & OPPOSITION 385, 385 (2002). [17] Capps, K., Plan to move Washington Capitals, Wizards to Virginia funded with income tax, Bloomberg.com (Feb 17, 2024). https://www.bloomberg.com/news/articles/2024-02-17/plan-tomove-washington-capitals-wizards-to-virginia-funded-with-income-tax [18] Id. [19]  Leonsis, T., Monumental Sports (2024). [20]  Opinion | questions on the Capitals and Wizards Arena Deal, Washington Post (Feb 14, 2024). https://www.washingtonpost.com/opinions/2024/02/14/capitals-wizards-arena-dealmetro-timeline/ [21]  Ruth W. Grant & Robert O. Keohane, Accountability and Abuses of Power in World Politics (2005) 99:1 AM. POL. SCI. REV. 29, 29 (2005). [22] Capps, K., Bloomberg.com (2024). [23] OKC voters approve new downtown arena, News List, City of OKC (Dec 12, 2023). https://www.okc.gov/Home/Components/News/News/4658/140#:~:text=Oklahoma%20Ci ty%20voters%20approved%20a,%2C”%20Mayor%20David%20Holt%20said.

While professional sports franchises garner more public attention, we sometimes forget that many of them desire to operate like any other "normal" business does. While the dollar figures on an team's balance sheet might look different than your local Mom and Pop, the overarching goal is the relatively similar: maximize revenues while limiting expenses. The San Francisco Giants recent release of third baseman J.D. Davis highlights this notion. After the club inked All-Star and 4-time Gold Glover Matt Chapman to a 3-year/$54 million contract with an opt-out clause, Davis' role on the Giants roster was severely compromised. After unsuccessfully attempting to trade Davis and his $6.9 million salary, the club placed him on unconditional release waivers. While seeing someone of Davis' caliber being placed on waivers this late in spring training is somewhat odd, player get waived all the time without much notoriety. So what's the big deal here? Well, the Giants found a loophole in MLB's Collective Bargaining Agreement (CBA) to save a substantial amount of money. When MLB and the MLB Players Association (MLBPA) agreed on the current CBA in March 2022, 1-year contracts for arbitration-eligible players would be fully guaranteed. This was an important deviation from previous CBAs and was a big win for the MLBPA. Essentially it prohibited teams from backing out of arbitration contracts after they were agreed to. Arbitration eligible players already face the possibility of not being "non-tendered" which is effectively being cut. But with this win for the MLBPA in the 2022 CBA negotiations, contracts that had been agreed to were supposedly guaranteed for the players. However, this turned out to be not entirely true for the select few players who go to an arbitration hearing. When the Giants placed Davis on waivers this week, they took advantage of a loophole that allowed them to save nearly $6 million on his salary. Over the offseason, Davis won his arbitration hearing against the Giants to receive $6.9 million instead of the club's filing at $6.55 million. But because the provision in the CBA specifically does not guarantee arbitration salaries arrived at through an arbitration hearing, the Giants were not obligated to pay out all of the $6.9 million owed to Davis. Instead, the club only was on the hook for just 30 days of termination pay amounting to a little more than $1.1 million. Was this the Giants plan all along? It's hard to know and speculating the club's motives is somewhat irresponsible. It's worth noting that Matt Chapman remained on the free agent market into March and the dollar figure he eventually signed for with San Francisco came in a lot lower than many expected. Therefore, it's hard to ascertain that the Giants always viewed Chapman as a replacement for Davis throughout the offseason. Nonetheless, Davis' agent and the MLBPA will certainly have an issue for the way this situation was handled. The Giants, like many other teams, have utilized the “file-and-trial” approach where all negotiations stop after the deadline for clubs and players to exchange salary figures to be presented at a hearing. Its purpose is to be a deterrent to negotiations reaching the hearing stage. Davis said last month that he would have happily accepted the Giants’ filing figure of $6.55 million prior to the hearing. But the team was not willing to reopen negotiations after the exchange of numbers. To then go to arbitration, lose the hearing, and then release the player without paying full freight undoubtedly isn't a good look for the Giants in retrospect. While this particular predicament is only applicable to a select few players moving forward, it's certainly something the MLBPA will look into as they prepare for the next CBA negotiations. Even with its faults, the arbitration process is overwhelmingly beneficial in pushing player salaries up over time. However, with this loophole, it creates an avenue for teams to skirt around guarantees stemming from salaries determined by arbitration hearings. Davis has subsequently signed a 1-year/$2.5 million contract with the Oakland Athletics, so he comes out around $3.3 million worse off than he would've been if the Giants honored his original contract. Nothing the Giants did was against the rules. The Giants abided by the letter of the law of the collectively bargained agreement that the players knowingly and willingly signed two years ago. In the move, the Giants shaved off nearly $6 million in payroll obligations and now stand roughly $13 million underneath the first luxury tax threshold of $237 million. This situation goes to show how important every detail of the CBA can be. The media and fans often grow tired whenever CBA negotiations drag on, but there is a reason why they do. Each side goes to extensive lengths to protect themselves against unfavorable scenarios. The MLBPA is the strongest player union in all of sports, so I bet they will have this situation in mind when the current CBA expires following the 2026 season. Brendan Bell is a 1L at Arizona State Law School and is the Southwest Regional Rep on Conduct Detrimental's Law School Student Board. He can be followed on Twitter (X) @_bbell5

On Capitol Hill the morning of March 12, 2024, Senator Ted Cruz hosted a roundtable discussion regarding the current state of NIL and the future of college athletics. The roundtable was designed to get the perspectives of numerous stakeholders to inform Congress about what is needed regarding a potential federal NIL bill. Contributors to the roundtable included legendary former Alabama football coach Nick Saban, Alabama Athletic Director Greg Byrne, ACC Commissioner Jim Phillips, college basketball players and NIL superstars Haley and Hannah Cavinder, their attorney and NIL expert Darren Heitner and The Collective Association President Russell White. The discussion opened with Senator Cruz asking what the biggest challenges are in the current “wild west” of college athletics. Coach Saban started the discussion by saying the spirit of college athletics is gone and that “all the things that [he] believed in for all these years, 50 years of coaching, no longer exist in college athletics.” Saban said he got into coaching to create opportunities for young people to be more successful through personal development, academic support, and enhancing future opportunities for his players. He said that now with the transfer portal and collectives offering essentially pay-to-play, college football is just a form of free agency. It is no longer about the development of individuals. His wife told him, “All [the players] care about is how much you’re going to pay them. They don’t care about how much you’re going to develop them, which is what we’ve always done.” This seemingly was a contributing factor to his retirement after the 2023-2024 season. Saban followed these comments later in the discussion by stating the following: “I don’t think that college athletics is really a business, college athletics is revenue producing.” The unanimous Supreme Court in NCAA v. Alston seems to disagree with Saban. Justice Gorsuch wrote in the opinion that “at the center of this thicket of associations and rules sits a massive business.”[1] The Court then cites the NCAA’s $1.1 billion annually generated by its March Madness tournament, and the College Football Playoffs valued at $470 million per year. Since then, the CFP signed a TV deal with ESPN worth $1.3 billion per season.[2] With college football and basketball generating billions in revenue a year, and their coaches often being the highest-paid employees of the university, it is hard to argue that these sports are not businesses. ACC Commissioner Jim Phillips then listed five “pillars” that he hopes a federal bill will accomplish: (1) uniformity across all states that creates fairness and competition, (2) assurance that NIL is not an inducement for pay-to-play but related to actual services offered and rendered by a student-athlete, (3) recognition of the student-athletes as students and not employees, (4) protection of student-athletes from scrupulous actors through a standardized forms, contracts and agency/representative licensing requirements, and (5) the providing of legal protection to the NCAA to enforce these rules. These points were echoed by Saben and Byrne, who believed that student-athletes should not be classified as employees and that the NCAA is in the best position to continue governing and enforcing rules if they get relief from their current pile of lawsuits. For the past year, NCAA President Charlie Baker has been lobbying Congress for an exemption to federal antitrust law, with courts striking down many of their rules and restrictions as anti-competitive in violation of the Sherman Act.[3] Byrne went even further, recommending there also be “safe havens'' from Title IX restraints. However, experts are conflicted on how and if Title IX would apply to an employment model and student-athlete salaries.[4] Byren and Phillips stated their concerns for the future of Olympic sports if athletes were deemed employees of the school. At Alabama, football and men's basketball generate the revenue to fund the nineteen other sports at Alabama. Byren told the table that if student-athletes were paid as employees, sports such as swimming, tennis, and track, would be in danger. Phillips believed that universities having to pay salaries to student-athletes would reduce the current benefits provided, such as meals, mental health programs, and investment in facilities. Byren jumped onto this point, bringing up potential tax implications of all of these benefits under employment status. The major consensus from today's roundtable was that student-athletes should be participating in revenue sharing. However, doing this without classifying student-athletes as employees remains unclear. Saban, Byren, and Phillips seem to suggest a special status for student-athletes must be created to achieve this. Student-athletes across the country believe that 20%-30% of revenue generated by college athletics should be shared with them.[5] Byren suggested that revenue sharing be individualized by sports with an equal split percentage across every sport, as opposed to the revenue of an athletic department as a whole. So, football players would only split the revenue generated by football, and volleyball players only split the revenue generated by volleyball. If Congress passes a bill, it is evident that bipartisanship is necessary. A Congressional bill means that student-athletes do not have an actual seat at the negotiation table, making it pivotal both sides work together to ensure the welfare, health, and safety of athletes. Senator Blumenthal and Senator Moran seem to agree on this point. Senator Moran believes they are “this” close and wants to turn efforts into accomplishments. As Senator Cruz, almost correctly quoting Yoda, said, “there is no try, do or do not.” If Congress does this, they need to do it right by the athletes, or they should not do it at all. The full discussion can be watched here. Andrew Gagnon is a 2L at the University of Kansas School of Law, where he is a representative in the Student Bar Association and member of the Sports Law Society. He can be found on Twitter @A_Gagnon34 and LinkedIn as Andrew Gagnon. [1] NCAA v. Alston, 141 S. Ct. 2150 (2021). [2] https://apnews.com/article/cfp-espn-34efc26e96a0596547b8b0dbcfb3287a [3] https://frontofficesports.com/the-biggest-takeaways-from-the-10th-congressional-nil-hearing/. [4] https://www.on3.com/os/news/boise-state-legal-expert-sam-ehrlich-ncaa-using-title-ix-as-hostage-in-nil-reform/ [5] https://www.athletesbureau.com/p/tab-poll-college-athletes-on-nil

Sports betting is a completely unprecedented chapter in the legal history of the United States, as there has never been an issue so convoluted between state lines. Ever since the Supreme Court struck down the federal ban on sports betting in 2018, the laws and regulations between different territories have been as varied as the sports that can be bet on. According to the American Gaming Association, 85 percent of American adults agree with the Supreme Court’s decision to strike down the Professional and Amateur Sports Protection Act. Yet, many states have tried and failed to pass legislation in order to legalize regulated sports gambling. The most notable of which would be California, in which two different bills broke spending records and had record support in advertising, yet both were heavily voted down in a public vote in 2022. Meanwhile, Delaware had little hesitation in passing legislation to legalize the matter in 2018, a little more than a month after the Supreme Court ruling. If you think that is a confusing concept, those are only the cut-and-dry cases. The real grey area can be found in states such as Florida, in which sports betting was legalized for three weeks before it was swiftly banned again. This was until mid-2023, when a D.C. Court of Appeals overturned the decision and decided that tribes in the state could test-launch a betting initiative to Florida residents. That lasted until September of 2023, when cease and desist orders were sent to multiple betting organizations operating in the area, which is an issue that is still ongoing to this day. That said, there are some straightforward cases, but the finite details of certain laws are still being determined within certain states. Some states, such as Indiana and Illinois, have placed certain rules on betting on collegiate games, whether it be that they must be placed in person, or that only certain bets are allowed. This is in comparison to Washington D.C. and Montana, who have simply deferred the power of deciding what bets are legal to the state lotteries. This confusion pales in comparison to that of Oklahoma, who has legalized sports betting but the programs to launch it are currently in limbo, with little to no news regarding the progress of sports betting organizations actually running within the state. In order to increase the ability for state laws to work in tandem with one another, sports betting needs to be similarly legalized in most, if not all states within the country. There are currently too many different variations of sports betting laws within different states, which does not allow for synergistic laws to be created that can help to make sports betting to be a more easily understood phenomenon within the country. It is still a relatively new concept, as it has only been around the last 5 or 6 years, and so there is still a lot of work to be done. Overall, sports betting is in a strange state in the United States. Perhaps a European approach to the matter would be more effective, with much looser laws only requiring that a person be 18 to be able to bet, with much less difference between laws in different countries. Either way, for further transparency in the industry, something needs to change. Jon Trusz is a graduate of the University of Connecticut who achieved degrees in Political Science and Communications and can be reached on LinkedIn under his name, or via email at [email protected].

While high profile free agent signings and blockbuster trades generate most of the headlines during the MLB offseason, salary arbitration is a key component of each club’s winter. While the process is complex and admittedly difficult to understand for the casual fan, it’s place in the game is crucial for the players. While arbitration cases inevitably lead to a level of tension between players and their respective clubs, it’s a necessary evil in the current economic system of baseball. Relatively speaking, there are very few cases that bleed into an arbitration hearing each year. Out of the hundreds of arb eligible players this, only 15 did not settle with their respective clubs. In this article, we’ll look at those 15 cases and see what the major takeaways are from this year’s cycle of arbitration cases. Of the 15 cases that went to a hearing, players emerged victorious in 9 of them. That marks the highest winning percentage for the players since the 2019 offseason. As you can see from the table below, clubs had fared well in arbitration hearings over the past couple of years, so this year produced better results for the player side. Even as more clubs are adopting the “file-and-trial” approach after initial exchanging numbers, we are not seeing a tremendous increase in the quantity of hearings. It’s worth noting that there were fewer hearings in 2021 simply because 2020 was only a 60-game season which obviously created a level of ambiguity pertaining to a player’s value that neither side likely wanted to turn over to an arbitration panel. The individual players involved in arbitration hearings this year ranged from high profile All-Stars to up-and-down relievers fighting for roster spots. While some players are treated differently than others in arbitration, the process is the same for each and every case. Much like other legal proceedings, precedent often wins the day. You might wonder why there is so much consternation over a few hundred thousand dollars in most cases between players and clubs. It’s because every single arbitration deal signed has long standing ramifications on the next player in line. Players want figures to keep rising while clubs want to keep them as low as possible. Here is a list of the players who went to a hearing and the salary figures that were debated. We start with Vladimir Guerrero Jr., whose $1.85 million spread was the widest following Adolis Garcia’s last-minute deal with the Texas Rangers to avoid a hearing. Vladimir Guerrero Jr., Toronto Blue Jays Luis Arraez (2B/1B), Miami Marlins J.D. Davis (3B), San Francisco Giants Austin Hays (OF), Baltimore Orioles Tanner Scott (P), Miami Marlins Taylor Ward (OF), Los Angeles Angels Alec Bohm (3B), Philadelphia Phillies Harold Ramirez (OF/DH), Tampa Bay Rays Mauricio Dubon (UTL), Houston Astros Jason Adam (P), Tampa Bay Rays Jazz Chisholm Jr. (OF), Miami Marlins Jose Suarez (P), Los Angeles Angels Jacob Webb (P), Baltimore Orioles Nick Gordon (UTL), Miami Marlins* *Gordon was traded to the Marlins following his arbitration case Phil Bickford (P), New York Mets

The NFL announced yesterday that the NFL salary cap figure for the 2024 NFL season will be set at $255.4 million. There is additionally $74 million per club for player benefits, which includes benefits for retired players and performance incentives. This increase is the result of the full repayment of all amounts advanced by the clubs and differed by the players during the COVID-19 pandemic as well as the increase in media revenue for the 2024 season. This announcement comes as the league prepares for the NFL Combine, being hosted from Monday, February 26, through March 4, at Lucas Oil Stadium in Indianapolis, Indiana. The NFL Combine is a hotbed for agents, scouts, and team executives representing all 32 clubs. The salary cap number being announced prior to the new league year, which officially begins on March 13, allows teams to plan accordingly. The nonplaying season is the active season for team executives. Decisions are made such as whether to cut veteran players with remaining years on their contract (commonly referred to as “cap casualties”), whether to apply the franchise tag or to extend a player, and whether there is a younger (and cheaper) player in the draft at a position of need. The window to use the franchise tag opened earlier this past week and the deadline to use the tag is 4 P.M. ET on March 5. The exclusive franchise tag is the more commonly applied tag and completely binds the player to his team. The exclusive franchise tag for a given player/position is calculated as the average of the top five salaries at the position for the previous year or 120% of the player’s salary from the previous year, whichever is greater. This year's tag number for a wide receiver is set at $21.816 million. The Cincinnati Bengals placed the franchise tag on WR Tee Higgins just last night while the two sides continue to have conversations regarding an extension. The question remains as to whether the two sides will be able to strike a deal with fellow Bengals WR Jamar Chase’s massive contract extension on the horizon. This increase in salary cap makes a long-term extension more realistic and lessens the burden for the Bengals if the team were unable to come to terms on a long-term extension. Two additional players who are likely hyperaware of the $30 million salary cap increase are both Minnesota Vikings WR Justin Jefferson and QB Kirk Cousins. Justin Jefferson has already stated that he wants to become the highest-paid WR in the league. His deal is likely to be in the range of $35 to $40 million per year. Jefferson is entering his fifth NFL season and in the final year of his rookie contract. He is set to make $19.7 million. Due to the NFL’s Collective Bargaining Agreement, a player can only be tagged a maximum of three times. Kirk Cousins was tagged twice earlier in his career while playing for Washington. Unfortunately for the Vikings, they will not get the chance to apply the franchise tag on their QB. Cousin’s contract voids after the deadline for applying the franchise tag which means that the Vikings will not have the ability to tag him. Cousins signed a 3-year, $84 million contract with the Vikings in 2018 and a 2-year, $66 million contract with the club in 2020. Both contracts were fully guaranteed. The unprecedented salary cap increase likely means another massive payday for Kirk Cousins, whether it be from the Minnesota Vikings or another club. Joseph Gravina is a 2L at New York Law School. He holds the position of Co-Alumni Chair of the New York Law School Sports Law Society, is a member of the New York Law School NIL Pro Bono Project, and serves as a regional representative of the Conduct Detrimental Law Student Board. He can be found on Twitter @jgravina10 and LinkedIn as Joseph Gravina.

I. Introduction While UEFA and FIFA have historically maintained a dominant market presence in “organizing and marketing interclub football competitions within the European Union,” [1] they have also restrained emerging entities from accessing this market. These organizations have repeatedly stressed the importance of successfully facilitating equitable competition within their leagues and tournaments, fostering opportunities for newcomers to contend for championship titles. On December 21, 2023, European Court of Justice (“ECJ”) took a page from their book and granted the nascent European Super League (“ESL”) an opportunity to explore the organization of a new pan-European interclub football competition. Although ESL will still need official approval, [2] this decision questions the very existence of the organizational structure of the game; marking a departure from the entrenched dominance of established entities, potentially opening avenues for greater competition and innovation in the European football landscape. II. Legal Background A. Formation of the European Super League European Super League, governed by Spanish law, announced its plan to organize “the first annual European football competition to exist independently of UEFA” in April, 2021. [3] The organizing company, ESLC, operates based on a semi-open business model; its shareholders consisted of European football clubs, including the “Big Six” of the Premier League, and the sports development company A22. [4] Although being subject to a prior approval under Articles 22 and 71 to 73 of the FIFA Statutes, and Articles 49 and 51 of the UEFA Statutes, [5] ESLC announced the plan to launch the new league. B. Retaliation from FIFA and UEFA The proposed plan sparked widespread protests among football fans and national governments, especially the UK government, who vowed to block British clubs from joining ESL under the forthcoming Football Governance Bill. [6] More importantly, UEFA, FIFA, Football Supporters Europe, LaLiga, the European Club Association, European Leagues and FIFPro Europe issued a joint statement, asserting that "[t]here is no place for any type of 'super league' in Europe. Sporting merit is what counts." [7] This statement from FIFA and UEFA affirmed that any club or player taking part in ESL would be expelled from the competitions organized by FIFA and UEFA, such as the Champions League and the World Cup. [8] Public pressure and the threats of sanctions quickly resulted in nine out of twelve clubs withdrawing from the ESL. The remaining clubs, led by the support of two La Liga giants Real Madrid and Barcelona, argued that UEFA, with the support of FIFA, was running an illegal monopoly. [9] The ESL then brought an action before the Commercial Court in Madrid (“Juzgado de lo Mercantil de Madrid”), contending that prior approval rules and associated sanctions under FIFA and UEFA statutes were in breach of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”), which prohibits anti-competitive agreements, and Article 102 of TFEU, which prohibits the abuse of a dominant position. C. Commercial Court in Madrid In July, 2021, the Madrid Court issued a preliminary injunction and ordered UEFA to (1) cancel disciplinary proceedings against clubs supporting the ESL; (2) render “inconsequential” the retaliatory measures such as fines, sanctions, and obligations, imposed on the clubs affiliated with ESL; and (3) publish the actions taken in compliance with the injunction on its official website. [10] The Madrid Court also requested a preliminary ruling to the ECJ under Article 267 TFEU to address issues regarding competition law and freedom to provide services. III. The European Court of Justice's Decision A. Abuse of a Dominant Position and Anticompetitive Agreements The ECJ held that adoption and enforcement of rules under FIFA and UEFA Statues wield significant influence over the organization of competitions, and agreed that UEFA holds “a dominant position (if not a monopoly) on that market, since it is the sole organizer of all major interclub football competitions at European level.” [12] Although Article 102 does not sanction the existence of a dominant position per se, the risk of an abuse of such power may warrant restrictions, obligations, and review. [13] The court concluded that adoption and implementation of rules and sanctions by FIFA and UEFA constitutes an abuse of a dominant position. Similarly, FIFA and UEFA provisions on prior approval, participation, and sanctions provide no framework, and fall short of the Article 101 standard, which requires that that the substantive criteria or the procedural rules of these entities are transparent, objective, precise, non-discriminatory and proportionate. The court ruled that the aforementioned provisions constitute “a decision by an association of undertakings having as its object the prevention of competition.” [14] The decision of the ECJ, while seeming like a win for the ESL, does not mark the end of the FIFA and UEFA monopoly. Through further arguments and evidence, FIFA and UEFA may benefit from an exemption to the application of Article 101—by meeting the stringent standard of proving anticompetitive object—or be considered justified under Article 102—by showing that their conduct was necessary, and that the exclusionary effect was outweighed by consumer benefits. It will be for the Commercial Court in Madrid to rule on these issues. [15] B. Future Implications While the European Court of Justice's decision may not have unfolded like a fanfare of a Champions League final, its significance will be imminent within the corridors of European football governance. The ruling's gradual effects will no doubt leave a mark on the future landscape of football organizations in Europe. By openıng the door for future enforcement actions against UEFA and FIFA, this decision may garner criticism for creating a standard for heightened regulatory oversight that could distort competition. Regardless, it ultimately represents a commitment to the principles of transparency, the freedom to provide services, and the preservation of fair competition within the realm of European football. Zeynep Karageldi is a passionate first-year law student at Cardozo School of Law with a keen interest in soccer and basketball. Serving as a 1L representative of the Cardozo Sports Law Association, she delves into the intersection of sports and law, particularly focusing on intellectual property, antitrust, and contract law. She can be found on LinkedIn at this link. References: [1] C-333/21, European Super League Company SL v. Unión de Federaciones Europeas de Fútbol (UEFA),  Fédération internationale de football association (FIFA), ECR, (2023). [2] Id. [3] Id. [4] European Super League Hopes Reignited As Court Rules UEFA and Fifa Acted Illegally By Blocking Competition, SPORTS MEDIA, (Dec. 21, 2023), https://www.sportspromedia.com/news/european-super-league-verdict-uefa-fifa-eu-ecj-court-ruling-bernd-reichart/ [5] European Superleague Company, Court of Justice, Celex No. 62021CJ0333 (2023) [6] Adam Forrest, European Super League Sunak Ban, Independent (Dec. 21, 2023), https://www.independent.co.uk/news/uk/politics/european-super-league-sunak-ban-b2467883.html [7] Bart H. Meijer and Rohith Nair, European Super League Back in Spotlight After Landmark Ruling, Reuters, (Dec. 21, 2023), https://www.reuters.com/sports/soccer/court-rules-uefa-fifa-breached-eu-law-over-super-league-2023-12-21/ [8] Ali Walker and Varg Folkman, Football’s Super League Gets Win at EU Top Court, Politico,  (Dec. 21, 2023), https://www.politico.eu/article/footballs-uefa-and-fifa-lose-eu-court-bid-to-halt-breakaway-super-league/#:~:text=European%20football%20was%20rocked%20on,future%20of%20football%20in%20Europe. [9] Id. [10] K. Tiyagi, Madrid Commercial Court Refers UEFA & FIFA’s Anti-Competitive Kick to the ECJ, Law Blogs Maastricht, (Jan. 14, 2022), https://www.maastrichtuniversity.nl/blog/2022/01/madrid-commercial-court-refers-uefa-fifa’s-anti-competitive-kick-ecj [11]  Case C-333/21, Opinion of Advocate General Rantos, ECR, (2023), https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX%3A62021CC0333 [12]  C-333/21, European Super League Company SL v. Unión de Federaciones Europeas de Fútbol (UEFA),  Fédération internationale de football association (FIFA), ECR, (2023). [13] Id. [14] Id. [15] Id.

The National Football League is in a litigation battle with four insurance companies, American Guarantee and Liability Insurance Company, TIG Insurance Company, the North River Insurance Company, and the U.S. Fire Insurance Company, to be reimbursed for paying off the 2017 concussion settlement with NFL players worth at least $1.3 billion.[1] The NFL and the four insurance companies are in a classic legal battle of the experts. The insurance companies found three experts who prepared reports to dismiss the National Institute of Health’s study that there is a causal link between multiple head hits and chronic traumatic encephalopathy (CTE).[2] For example, Professor of Neurology at the NYU Grossman School of Medicine in New City, William Barr, MD, said, “It is well-known in the neuropsychological literature that feigning and malingering is present in approximately 40% of individuals receiving testing in a litigation context and in cases where there is a potential secondary financial gain.”[3] In Barr’s report, he cites the “neuropsychological literature” to suggest that the NFL players are faking their injuries for money. Yet, Barr never said that he physically examined any of the athletes, which is another typical insurance defense expert tactic. Barr also said, “approximately 40% of individuals receiving testing in a litigation context.”[4] What about the injured people who never filed a lawsuit? Were their injuries more real because they did not have an attorney? What if the NFL settled prior to the Players filing litigation? Would the Players’ injuries be more real? Barr’s expert testimony fails to be persuasive. Medical experts fighting medical experts is hardly a novel legal strategy by insurance companies. In tort cases such as motor vehicle wrecks, medical malpractice, and slip and falls, it is a common insurance strategy to doubt the veracity of medical bills and records by getting another medical expert to question the plaintiff’s medical expert. This strategy tries to muddy up the water by attempting to place doubt in the minds of jurors to believe plaintiffs and their doctors. Unfortunately, finding such a medical defense expert is relatively simple. Just Google it. There are many well-known companies that offer medical expert services such as Juris Pro Expert Witness Directory, SEAK Expert Witness Directory, and American Medical Forensic Specialists where you can find an expert like picking out an Uber.[5] You can even find experts that will already side with your case, because the searches can be broken down into specifically Defense Medical Experts.[6] Expert battles over concussions are expensive and will inevitably fail to provide a definitive answer. The fundamental problem with diagnosing concussions is that people can exhibit an entire range of symptoms including but not limited to headaches, dizziness, nausea, vomiting, visual disturbances, sensitivity to light and sound, amnesia, brain fog, attention and concentration deficit, emotional symptoms such as anxiety, depression, insomnia, post-traumatic stress disorder, and hormone irregularities due to pituitary dysfunction.[7] NFL players may have a group of these symptoms but not all of these symptoms. For example, Luke Kuechley had a concussion and began uncontrollably crying while Tua Tagovailoa’s concussion on Thursday Night Football put him in a state of shock, a “fencing” response.[8] Due to the widespread nature of concussion symptoms, new tools and tests are becoming available. For example, the Food and Drug Administration authorized Q-Collars to be worn by football players as a way to help reduce the risk of the brain shaking inside of the skull.[9] The NFL has embraced Q-Collars with the following players wearing them in 2023: Chargers LB Drue Tranquill, Cowboys RB Tony Pollard, Cowboys TE Dalton Schultz, Panthers LB Shaq Thompson, Rams S Taylor Rapp, Eagles RB Boston Scott, and Seahawks TE Colby Parkinson.[10] The NFL has yet to embrace new tests for concussions: Brain Scope and Diffusion Tensor Imaging. A BrainScope is an FDA-approved device that uses electrical activity in the brain to diagnose concussions in athletes.[11] In a study from 2017 to 2019, male and female athletes from 13 to 25 years old with concussions and athletes without concussions were assessed within 72 hours of the injury.[12] The study included a combination of 49 high schools, colleges, and concussion clinics in the United States. 580 people participated in the study.[13] 207 were diagnosed with a concussion and 373 were not diagnosed with a concussion.[14] The Concussion Index had a sensitivity of 86%, specificity of 71%, and negative predictive value of 90%.[15] Leslie Pritchett, MD, Chief Scientific Officer of BrainScope said, “The results of this study are an independent demonstration of the power and reliability of BrainScope's Concussion Index –– as an objective marker in the clinical assessment of concussions at the time of injury and as a reliable indicator of change over time."[16] The BrainScope device is portable enough that it can be used on NFL sidelines during games. Diffusion Tensor Imaging is a type of magnetic resonance imaging technique that tracks the water molecules in the brain.[17] Imagine taking a bird's eye view of a 6-lane highway where you can see multiple cars going east and west. Then, in one of the eastbound lanes, a car stops clogging up traffic in only that lane while the other lanes are going smoothly. A DTI device takes images of the water molecules throughout your brain like cars on a highway and when you get a head injury, the water stops.[18] The DTI can find the location of the brain injury by finding where the molecules stop. Currently, DTIs remain legally controversial, because they are failing the Daubert and Frye evidence tests, but some courts are still allowing them including 16 jurisdictions.[19] The overwhelming benefit of BrainScope and DTI is that no one can fake the electrical activity in the brain, nor can anyone fake water molecules stopping in the brain. BrainScope and DTI can end the battle of medical experts and start a new future in accurately and objectively diagnosing concussions. Currently, the NFL uses an independent medical doctor to conduct a checklist to determine whether the player can return to play. Answering pre-determined questions can be easily circumvented by athletes with real injuries which has been described by Former New England Patriots Wide Receivers, Julian Edelman and Danny Amendola, here and Former Tennessee Titans Linebacker and current Seattle Seahawks Assistant Coach NFL Veteran, Daren Bates, here. The NFL should embrace a more objective approach to diagnosing concussions with a Brain Scope or Diffusion Tensor Imaging in conjunction with their concussion protocol. John Camacho is a graduate of South Texas College of Law where he earned a J.D. and a graduate of the University of Missouri, St. Louis where he received a M.A. in Philosophy. He is a Co-Founder of The Moral Questions of Sports Podcast and a Co-Host of the Oxford Public Philosophy Podcast. You can connect with him via Linkedin or via The Moral Questions of Sports. He can be reached on Twitter @Camachotalk and Instagram @themoralquestionsofsports. Sources: [1] See Danial Kaplan’s Front Office Sports article, “’Still a Great Deal of Uncertainty’: Deposition Exposes Goodell’s and NFL’s Concussion Deliberations.” https://frontofficesports.com/still-a-great-deal-of-uncertainty-deposition-exposes-goodells-and-nfls-concussion-deliberations/#:~:text=In%20the%20nearly%20nine%2Dhour,with%20playing%20contact%20sports%20to [2] See Daniel Kaplan’s Front Office Sports article, “The NFL’s $1B Battle Over Concussion Settlement Heats Up.” https://frontofficesports.com/the-nfls-1b-battle-over-concussion-settlement-heats-up/#:~:text=In%20a%20bid%20to%20avoid,there%27s%20no%20scientific%20CTE%20evidence. [3] Id. [4] Id. [5] Search these words in Google, “Expert Medical Witness” and these businesses came up. [6] See Seak Experts https://www.seakexperts.com/keywords/defense-medical-exam-expert-witness [7] Center for Disease Control “Facts about Concussion and Brain Injury Where to Get Help” https://www.cdc.gov/headsup/pdfs/providers/facts_about_concussion_tbi-a.pdf [8] See Tom Lutz’s The Guardian article, “The brilliant Luke Kuechly gave us a searing image of brain trauma” https://www.cdc.gov/headsup/pdfs/providers/facts_about_concussion_tbi-a.pdf and Rob Maaddi’s Associated Press article, “Explainer Tua Tagovailoa, fencing response and NFL protocol” https://apnews.com/article/tua-tagovailoa-fencing-response-de6a1e5d95a5ab869e043369cb6546c3 [9] Addy Bink’s The Hill article, “What are NFL players wearing on their necks?” https://www.ksn.com/sports/what-are-nfl-players-wearing-on-their-necks/ [10] Joe Rivera’s Sporting News article, “What is the Q-Collar? Explaining the band NFL players like Dalton Shultz, Tony Pollard wear around their neck” https://www.sportingnews.com/us/nfl/news/nfl-players-neck-band-q-collar-wear/cssc7pf8z69dnfwzowfhbo1x [11] See “JAMA Highlights Success of BrainScope’s EEG-based Concussion Index as Reliable Indicator of Concussion”https://www.brainscope.com/all-pr/jama-highlights-success-of-brainscopes-eeg-based-concussion-index-as-reliable-indicator-of-concussion. For more info, see Jeffrey Bazarian, MD, study “Validation of a Machine Learning Brain Electrical Activity-Based Index to Aid in Diagnosing Concussion Among Athletes”https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2776443?widget=personalizedcontent&previousarticle=0 [12] Id. [13] Id. [14] Id. [15] Id. [16] Id. [17] Nikos Makris, MD, PhD, et al article with American College of Neuropsychopharmacology, “Diffusion Tensor Imaging” See https://acnp.org/wp-content/uploads/2017/11/CH27_357-372.pdf. [18] Id. [19] See Andrew Lehmkuhl’s University of Cincinnati Law Review article, “Diffusion Tensor Imaging: Failing Daubert and Fed. R. Evid. 702 in Traumatic Brain Injury Litigation., page 298. https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1261&context=uclr

For many attorneys and law students aspiring to use their legal degrees to work in the sports industry, an in-house position with a professional organization is considered the peak of an arduous climb to the top of the sports law world. Oftentimes, legal positions in some of the mainstream sports in America, namely football, basketball, and baseball, are typically those that are sought after by sports enthusiasts in the legal world. Nevertheless, due to the exponential growth of its popularity and the constant expansion of its professional leagues, the path toward in-house positions in American soccer has never appeared more open for those aspiring to work within the beautiful game. As a law student who ultimately hopes to attain an in-house counsel position within professional soccer, I wanted to learn from those who are currently in positions in which I and several others passionate about the intersection of soccer and the law aspire to be. In that spirit, I have decided to start a process that I wanted to document by way of Conduct Detrimental to share with all who are interested – an interview with a member of the legal counsel at every MLS club. From these interviews, I hope to be able to provide insight into the nature of legal counsel positions in professional soccer. And at the end of this process, I hope that we will all be more knowledgeable on what it requires to successfully convert our greatest passions into a dream occupation. For this interview, I was fortunate to speak with Kylie DeWees – Staff Attorney at Sporting Kansas City (KC). A graduate of Minnesota State University and Dwayne O. Andreas School of Law at Barry University, Ms. DeWees’ first involvement within MLS was as a legal intern for Orlando City SC before transitioning to Sporting KC in November 2021. As well as serving the legal department for Sporting KC, Ms. DeWees spoke before the Kansas legislature and successfully advocated for a change in Kansas child protection laws during the summer of 2023.   The conversation I had with Ms. DeWees was incredibly insightful, and it was amazing to get to speak with her. Finally, this conversation represents Ms. DeWees’ individual views and opinions and does not purport to reflect the views or opinions of Sporting KC or MLS. With that said, here is the interview with Sporting KC Staff Attorney, Kylie DeWees: 1. BG: Tell us a bit about your story – what led your interest in working in-house within soccer to develop and the career steps you took that eventually placed you in your current position. KdW: First off, it’s taken many villages of people to get here, so I will try to remember as many of those who have helped me as I can! I grew up in Iowa without the ability to cheer for very many sports teams at home. In fact, one of our biggest teams is the Cedar Rapids Kernels (like the corn!). I grew up playing sports, specifically basketball and tennis, and I eventually went to Minnesota State to play tennis in college while also studying to receive a Master’s degree in sports management. During that time, I met with the assistant athletic director to resolve a certain issue with my scholarship to the school, which eventually worked its way to the CFO of the university. It was in this specific situation that I first realized the power of advocacy and the power of contracts as important legal documents. Actually, the assistant AD appreciated how I advocated so much that he asked me to be his graduate assistant in compliance. I worked in this position throughout the following year, and it helped inspire my interest in working in sports law. While working in compliance helped inspire this interest on a professional level, there were also personal motivations for my interest in sports law. When I was a child, I suffered from some traumatic events related to one of my former coaches. From this terrible experience, I was driven not only to work in sports to gain justice for others within the industry but also to reform state laws to help better protect children in sports. All of these factors led me to attend law school and specialize in sports law. I chose to go to law school at Barry School of Law in Orlando, Florida to open myself up to more opportunities in the sports industry. After my first year of law school, though, the COVID-19 pandemic hit, which had scary implications for me trying to find my first summer job. Thankfully, I had previously met with a criminal defense attorney in Florida who had represented some major sports clients, and I was able to secure an internship with him that first summer. In my second year, I applied for the legal internship with Orlando City SC. Unfortunately, I didn’t get it on my first attempt, but I was super grateful to have gotten the position after applying for it a second time. Having people at Orlando like Aurusa Moosani and Caesar Lopez as mentors were invaluable for my progression as a future in-house attorney. Heading into my final year of law school, I was informed of a contract administrator position with Sporting Kansas City. After speaking with my mentors at Orlando City about the opportunity, I decided to take it with the additional stipulation that I would become staff attorney contingent upon passing the Bar Exam. Thankfully, I was able to pass the Bar, my title changed to Staff Attorney, and now I’m here. 2.  BG: What does a typical workday look like for you as Staff Attorney at the Sporting KC? KdW: No two days are the same – I’m sure you’ve heard that quite a lot in your other interviews! But something unique about Sporting KC is that we are completely in-house – we own our stadium, we have our own in-house events business, and we are able to operate with a lot more control by being our own concessionaire. More liability comes with that, so we have to assist with a lot of additional agreements that you would not have if you were not your own concessionaire. In terms of how a typical day would look, though, one of my mentors, Dan Werly, SVP, COO of the Tennessee Titans, always brought up doing your tasks in the morning and setting up meetings in the afternoon. While it’s not always easy following that schedule to a tee, I try to check off many of my daily tasks in the morning, whether they deal with sponsorship agreements or longer-term goals, such as tasks relating to club policies. After that, I’m able to sit down in the afternoon and conduct the meetings that I need to have to ensure everything is operating smoothly from a legal perspective. 3. BG: If you could list three of the most important skills necessary to work as in-house counsel for an MLS club and provide a brief explanation for their importance, which skills would you choose? KdW: For in-house counsel specifically, I would say that interpersonal skills have to be super strong. Many assume that transactional work is quite introverted in that the attorneys seemingly do their work behind a shell, but specifically within MLS, you’re working with every department – corporate partnerships, finance, marketing, ticketing, and the list goes on. You need to be able to collaborate with each department, and that may look different depending on the department. You have to be able to communicate with different types of people and know your audience. Working with an MLS club allows me to work with diverse group of professionals every day. Another important skill is empathy. Having empathy on the job is really important because you never know what someone is going through in their day to day. People will respect you more when you give them a higher level of empathy, and tasks that need to be done will be completed faster when the collaboration is meaningful for both sides. Finally, I would say the ability to set boundaries or expectations with your colleagues is invaluable. If you can do the first two skills well, this last skill falls into place. When you respect people and they respect you, it’s easier to set boundaries with your capability to say when you’re able to get tasks done. And your colleagues will respect your ability to get things done in turn. Everything just works out better when you can communicate to others what they can expect from you. 4. BG: What is one piece of advice that you could offer about the industry to law students that you wish you were given when you were in law school? KdW: I would probably tell law students this: everything will be okay. A lot of law students who aspire to become in-house sports lawyers are driven, ambitious, and they want to press on to the next accomplishment. To that, I’d probably tell them to slow down a bit and to realize that everything will indeed be okay. It’s tough because you are studying for classes, then studying for the bar, then looking for a job, but slowing down and enjoying the time that you spend with those around you in law school is incredibly important. You’re not going to get that time back, so you need to make the most of it while you have it. Another thing that I would say is that everyone’s path is different. A lot of law students want to come work in-house immediately after graduation, but working at a law firm first often yields the same successful result. One of my colleagues, Andrea Kimball, worked at a law firm in San Diego before coming to work with SKC. Also, some of the most successful people I know in this industry worked in a law firm first before transitioning in-house. Hopefully, that should give some law students ease that their careers are not doomed if they do not land the in-house job they want right after graduation. There are many different paths to achieve success when trying to break into the sports industry. A very special thank you to Kylie DeWees for her time and for her contributions to this article. She can be found on LinkedIn at Kylie DeWees. Bryce Goodwyn is a 2L at Regent University School of Law and Editor-in-Chief of Conduct Detrimental. He is a member of the Regent University Law Review and ADR Board, and he also serves as an executive member of the Conduct Detrimental Law Student Board. He can be found on Twitter @BryceGoodwyn and LinkedIn as Bryce Goodwyn.

The world of women's basketball is buzzing with anticipation as Iowa's star player, Caitlin Clark, decides whether to take her talents professionally or remain with the Hawkeyes using her Covid year extension of eligibility. Clark's skill set and charismatic presence on the court have sparked discussions about the potential impact she could have on the WNBA, raising questions about whether her influence, known as the "Caitlin Clark Effect," could reshape the landscape of professional women's basketball. Sports fans across the nation cannot deny the allure of Caitlin Clark's game. She has become a sensation in college basketball as her flashy plays and swagger on and off the court grab the attention of millions of spectators. Her decision to either enter the WNBA draft or stay in college for another year could have far-reaching consequences for both leagues. At the heart of the debate is whether players like Caitlin Clark have the power to elevate the WNBA to new heights, drawing in more fans, followers, and lucrative deals. While it's true that all WNBA players can leverage off-court opportunities to supplement their salaries, Clark's potential impact goes beyond the traditional measures of success. Consider the numbers: Clark's National Player of the Year campaign not only brought accolades but also significant financial gains for the University of Iowa's women's basketball program. The team's total revenue doubled during her previous season, reaching an impressive $3.8 million. Ticket sales soared, with attendance records shattered at every turn. Clark's popularity translated into tangible economic benefits for her collegiate team, demonstrating her ability to draw crowds and drive revenue [1]. The real question is this: Can the “Caitlin Clark Effect” extend beyond the college realm and make a significant impact on the WNBA? The answer lies in her unparalleled talent and global appeal. Clark's impressive statistics speak for themselves: she is the only member of college basketball's exclusive 3,000-750-750 club, and her 40-point triple-double in the NCAA tournament made history. With career averages of 27.4 points, 7.9 assists, and 7.0 rebounds, coupled with impressive shooting percentages, Clark's on-court prowess is unmatched [3]. Moreover, Caitlin Clark's off-court earning potential is undeniable. With her name recognition and marketability, she stands to capitalize on lucrative NIL deals extending beyond her days at Iowa. According to On3, Caitlin Clark’s NIL deals are worth approximately $818,000, with deals with companies across many industries like Nike, Gatorade, State Farm, and Buick. While her WNBA rookie contract looks to stand around $75,000 per year, it is her long-term potential that excites stakeholders [2]. With WNBA popularity increasing, Clark’s star power could elevate the league to new heights. Recently, one of her autographed trading cards sold for $78,000 - a testament to her star power and market appeal [3]. Her potential arrival in the WNBA could inject new life into the league, attracting a broader audience and generating excitement among fans. With her electrifying style of play, ability to dominate games, and extreme fandom, Clark and other college players have the opportunity to elevate the WNBA to unprecedented levels of success. Peacock, the streaming service, has already benefited from its partnership with Clark, airing seven of Iowa’s games and capitalizing on Clark’s widespread popularity. As one of the most highly anticipated prospects in recent memory, Clark has the potential to drive viewership and engagement, drawing attention to the WNBA on a global scale [4]. While Caitlin Clark's potential to transform the WNBA is undoubtedly significant, she is not the only college basketball star able to make a game-changing impact. The rise of NIL opportunities has paved the way for numerous athletes to leverage their brand and commercial appeal. Players like Paige Bueckers, Cameron Brink, and Angel Reese, among many others, have already begun to capitalize on NIL deals, showcasing the range of talent and marketability within women's collegiate basketball. As more athletes recognize the value of their personal brands, the landscape of women's basketball will undergo a profound shift. These emerging stars, alongside Caitlin Clark, collectively represent a new era of empowerment and opportunity in women's basketball, where athletes can not only excel on the court but also thrive in the realm of business and branding. As fans eagerly await Clark's decision, one thing is certain: her impact on women's basketball, whether in college or the professional ranks, will be nothing short of transformative. Madison Greco is a second-year law student at Suffolk University Law School in Boston. She can be found on Twitter @mtgreco and LinkedIn (Madison Greco). Sources: [1]https://www.sportico.com/leagues/college-sports/2024/caitlin-clark-iowa-womens-basketball-revenue-1234764453/ [2]https://www.on3.com/db/caitlin-clark-162402/nil-deals/ [3]https://www.indystar.com/story/sports/columnists/gregg-doyel/2023/12/11/wnba-caitlin-clark-to-indiana-fever-draft-would-be-dream-come-true-for-indiananpolis-2024/71879011007/ [4]https://www.sportico.com/business/media/2024/caitlin-clark-iowa-hawkeyes-tv-peacock-streaming-1234764684/

Starting in 1993 as a professional mixed martial arts (MMA) organization, the Ultimate Fighting Championship (UFC) has since revolutionized the fight business and today stands as a premium global sports brand, media content company, and the largest Pay-Per-View (PPV) event provider in the world.[i] In January 2001, Zuffa, LLC., under the leadership of owners Frank Fertitta III, Lorenzo Fertitta, and Dana White, purchased UFC. Headquartered in Las Vegas, NV with a network of employees around the world, the brand produces more than 40 live events annually in some of the most prestigious arenas around the globe. UFC programming is broadcast in over 165 countries and territories, via more than 60 global broadcast partners, to more than 1.1 billion TV households worldwide in over 40 different languages.[ii] The UFC has established itself as the leading premier MMA fighting organization in the world today. In addition to dominating viewership, the UFC has also been the industry leader in terms of both revenue and profit. According to their latest financial report, the company raked in a record high of $1.140 billion in revenues—more than every other combat sports promotion combined—and reached $387 million in profit in 2022, a margin of 34%.[iii] However, despite the company’s increase in revenues, its athletes have not seen an increase in their share of that revenue. In fact, over the last year the company reduced athlete costs, driving total revenue share for its athletes to approximately 13-15%.[iv] In comparison, athletes in other U.S.-based sports leagues (such as the NFL, NBA, and NHL) receive approximately 50% of league revenues based on collective bargaining agreements, and European soccer leagues offer as much as 70% of revenues to players. However, a recent court victory threatens the company’s business model of athlete wage suppression. An antitrust class action, originally filed in December 2014 by three former UFC fighters (Cung Le, Nate Quarry, and Jon Fitch), specifically alleges that Zuffa’s (d/b/a UFC) alleged anti-competitive acts have made (and maintained) the UFC as the only viable option for MMA fighters who want to pursue a career in the profession.[v] Specifically, Plaintiffs allege that Zuffa did the following: (a) used exclusive contracts with specific provisions to retain fighters within the UFC; (b) used its market power in both the input and output markets to render fighter contracts effectively perpetual; and (c) acquired or drove out rival promoters.[vi] According to Plaintiffs, the alleged effect of Zuffa’s conduct was to establish such overwhelming market dominance that it could pay its fighters substantially less than what they would have been paid in a competitive market for their services.[vii] After the initial complaint was filed, in February 2015, Zuffa filed a motion to dismiss, asking the Court to throw out the fighters’ claim under Rule 12b(6) by arguing that even if the allegations were true, together they would still not be enough to support a claim under antitrust laws.[viii] In October 2016, the Court issued a formal written opinion denying the motion and allowing the fighters’ claim to move forward to discovery.[ix] The Plaintiffs’ lawyers were subsequently able to cause Zuffa to produce nearly 2.5 million documents, and questioned 50 witnesses under oath in depositions, including top UFC officials like Dana White and Lorenzo Fertitta.[x] On January 18, 2024, the district judge denied Zuffa’s motion for summary judgment and reaffirmed the findings in its August 9, 2023 order, which granted Plaintiff’s motion for class certification.[xi] Monopsony is an economic term used to describe a market involving a buyer with sufficient market power to exclude competitors and affect the price paid for its product—it is the counterpart to a monopoly, which exists in the supplier’s market.[xii] As a result of a monopsony, a sole purchaser has the power to set the price it pays for a service, and since the supplier has no other market for its product, it is forced to sell at the price the purchaser has set.[xiii] To grant class certification and prove violation of monopsony power under Section 2 of the Sherman Antitrust Act, Plaintiffs had to show, by a preponderance of evidence, that Zuffa: (1) “possessed monopsony power in the relevant markets,” (2) “willfully acquired or maintained its monopsony power through exclusionary conduct,” and (3) “caused antitrust injury” through such conduct.[xiv] In the Court’s August 9 class certification order, it sided with Plaintiff’s arguments on each issue. As the first element, the Court found that Plaintiffs provided sufficient evidence through circumstantial evidence that Zuffa maintained dominant power in both the input market (“the market for Elite Professional MMA Fighter services”) and output market (“promotion of live Elite Professional MMA bouts between Professional MMA fighters who compete in one-on-one fights.”[xv] The Court heard Plaintiff’s expert witness on the issue (Dr. Hal J. Singer) testify as to how from December 2010 through June 2017, Zuffa’s share of the Relevant Input Market fluctuated between 71 and 99% and rejected Zuffa’s arguments to the contrary.[xvi] By statistical analysis, the Court held that Plaintiffs presented, by.a preponderance of evidence, that Zuffa had market dominance. Further, to the second element, the Court found that Plaintiffs established that Zuffa willfully engaged in anticompetitive conduct to maintain or increase their market power. Specifically, the Court agreed with Plaintiffs’ specific allegations, that Zuffa: (a) used exclusive contracts with specific provisions keep fighters “locked up” in an anticompetitive manner; (b) used extracontractual methods to make fighter contracts effectively perpetual; and (c) acquired or drove out rival promoters.[xvii] The Court found, for the purposes of class certification, that Plaintiffs had set forth compelling evidence that these business practices amount to a violation of antitrust law. Notably, the Court stated “[Zuffa] evinced a clear intent to acquire and maintain monopsony power,’ additionally,  “[Zuffa] has not presented sufficient evidence that these exclusionary contracts and coercive tactics [and horizontal acquisition of competitors] were procompetitive or contributed to the overall development of the sport.”[xviii] Finally, to the third element, the Court agreed with Plaintiffs that Zuffa’s anticompetitive business practices were commonly applied to all members of the class.[xix] The Court found that both the “exclusive contracts” and “coercive tactics” used by Zuffa were commonly applied to all class members, as well as the impact of the horizontal acquisitions, which further limited exit options for fighters. Plaintiffs, by relying on Dr. Singer’s expert testimony, argue that Zuffa’s monopsony power artificially suppressed the fighters’ wages.[xx] The Court concluded that Dr. Singer’s reports and testimony are reliable sources of proof as to Zuffa’s anticompetitive conduct.[xxi] In response, the Court noted Zuffa attempted to create a straw man by “augmenting the fundamental assumptions of [Dr. Singer’s regression analysis] and running the regression again to show that if the model is rerun using different assumptions, it fails.”[xxii] However, the Court disregarded this argument as it “fail[ed] to actually grapple with the underlying assumptions of Plaintiffs’ model” and found that Plaintiffs established by a preponderance of the evidence that Zuffa’s antitrust violations resulted in both an impact and injury commonly felt by the class members.[xxiii] Ultimately, the Court granted Plaintiffs Motion to Certify as a Class Action in part. This decision allows the case to proceed on behalf of a “Bout Class” of current and former UFC fighters who allege that the UFC unlawfully monopolized the market for MMA promotion by, among other things, locking up fighters with exclusive contracts and acquiring its rival promotions, eliminating other potential competition organizers who could bid for the fighters’ services and leading to suppressed compensation for the fighters.[xxiv] Specifically, the Court granted class certification concerning UFC’s “unlawful use of its monopsony power in the relevant input market of fighter services for live UFC promoted MMA bouts taking place or broadcast in the U.S. from December 16, 2010, to June 30, 2017.”[xxv] The case Cung Lee v. Zuffa, LLC. will now move to trial by jury, scheduled for April 8, 2024. This author suspects that, if the case does not settle, the Plaintiffs’ will be awarded a significant portion of the $5 billion they could potentially receive in damages. In its brief, 12-page January 18 decision, the Court quickly disposed of each of Zuffa’s arguments for summary judgment and stated, “Plaintiffs have raised genuine factual disputes as to each element of Section 2 [of the Sherman Antitrust Act].”[xxvi] Thus far in the litigation, the Court has found Plaintiffs’ arguments compelling and have largely denied Zuffa’s counterarguments. Zuffa has been unable to show that its exclusionary and coercive business tactics have been pro-competitive. Meanwhile, the class certification order marks a key win for Plaintiffs. Although the legal battles are far from over, this development is a significant milestone for Plaintiffs, and not a very good sign for Zuffa. Gurtej Grewal is a 2L at Penn State Law. In addition to pursuing a career in sports law, Gurtej has a passion for antitrust and business litigation, intellectual property law, and arbitration. Gurtej is involved at PSL as the Managing Editor and Events Coordinator of their Sports and Entertainment Law Society and competes on the Vis Moot and Alternative Dispute Resolution teams. Sources: [i] UFC, History of the UFC, https://www.ufc.com/history-ufc. [ii] Id. [iii] Craig Pekios, Report – UFC Generated More Revenue Than Any Other Promotion Combined, Fighter Pay Continued To Plummet, Low Kick MMA, May 23, 2023, https://www.lowkickmma.com/ufc-generated-revenue-fighter-pay-dana-white. [iv] Id. [v] Cung Le, et al. v. Zuffa, LLC, et al., 2023 U.S. Dist. LEXIS 138702*, 6* (D. Nev. 2023) [vi] Id. [vii] Id. [viii] Id. [ix] Id. [x] UFC Antitrust Lawsuit, Key Developments, August 9, 2023, https://www.ufcclassaction.com/key-developments [xi] Cohen Milstein, Current Cases – Mixed Martial Arts Antitrust Litigation, January 18, 2024, https://www.cohenmilstein.com/case-study/mixed-martial-arts-antitrust-litigation/ [xii] Susan E. Foster, Monopsony and Backward Integration: Section 2 Violations in the Buyer’s Market, 11 U. Puget Sound L. Rev. 687 [xiii] Id. [xiv] Am. Pro. Testing Serv., Inc. V. Harcourt Brace Jovanovich Legal & Pro. Publications, Inc., 108 F.3d 1147, 1151 (9th Cir. 1997) [xv] Cung Le, et al. v. Zuffa, LLC, et al., 2023 U.S. Dist. LEXIS 138702*, 42* (D. Nev. 2023) [xvi] Id. at 46* [xvii] Id. at 57* [xviii] Id. at 69* [xix] Id. at 76* [xx] Id. at 79* [xxi] Id. at 84 [xxii] Id. [xxiii] Id. at 85 [xxiv] Id. at 5* [xxv] Id. [xxvi] Cung Le, et al. v. Zuffa, LLC, et al., 2024 U.S. Dist. LEXIS 8913*, 26* (D. Nev. 2024)

Brad Bohannon, the former University of Alabama baseball coach, violated NCAA wagering and ethical conduct rules when he provided insider information to an individual who bet on the baseball team’s games, according to a negotiated resolution between the University of Alabama and the NCAA announced on February 1, 2024 (the “Negotiated Resolution”). According to the Negotiated Resolution, on April 28, 2023, Bohannon sent several text messages containing information regarding the University of Alabama’s upcoming baseball game against rival LSU to an individual Bohannon knew to be involved in sports betting.  Bohannon relayed to the bettor that the University of Alabama’s projected starting pitcher would miss the game.  Bohannon sent the messages before informing the LSU baseball coaching staff that the pitcher would miss the game and indicated in those messages that he would wait to do so until the bettor had placed bets on LSU:  “HAMMER … [Student-athlete 1] is out for sure … Lemme know when I can tell LSU … Hurry.” The bettor attempted to place multiple bets on the Alabama - LSU baseball game—including a $100,000 bet on LSU to win—at the BetMGM sportsbook at the Great American Ballpark in Cincinnati, Ohio.  The sportsbook staff limited the bettor to one $15,000 bet on LSU, and flatly refused the other bets he attempted to place.  The sportsbook staff did so due to “suspicious activity,” including statements by the bettor that the bet was “for sure going to win” and “if only you guys knew what I knew.” The bettor also showed the sportsbook staff the messages he had received from Bohannon. On May 1, 2023, U.S. Integrity, a sports wagering monitoring company, alerted sports books to take caution when taking bets related to the University of Alabama baseball team due to certain betting irregularities. On May 3, 2023, the University of Alabama informed the NCAA enforcement staff that, in connection with law enforcement, the university had begun investigating the allegations surrounding Bohannon, and later informed NCAA enforcement of its discovery of a possible violation and Bohannon’s involvement.  The University of Alabama commenced the process to terminate Bohannon’s employment on May 4, 2023, and Bohannon resigned on May 17, 2024. According to the Negotiated Resolution, though Bohannon initially did cooperate with the NCAA’s investigation, he later refused to participate in an interview with NCAA enforcement, make full disclosure of relevant information, and provide access to his electronic devices. As part of the Negotiated Resolution, NCAA enforcement and the University of Alabama agreed that Bohannon’s actions violated certain principles of honesty and sportsmanship established in the NCAA Division I Manual Bylaws (the “Bylaws”), including principles captured in Article 10.3 of the Bylaws, which forbids staff members of an institution’s athletics department (including a coach) from knowingly participating “in sports wagering activities and providing information to individuals involved with or associated with any type of sports wagering activities” concerning an intercollegiate athletics competition.[1] Penalties Assessed Against the University of Alabama and Bohannon Violations of the Bylaws are separated into Level I, Level II, and Level III violations.[2]  Per the Negotiated Resolution, the University of Alabama and NCAA enforcement agreed that Bohannon’s actions constituted a Level I violation of the Bylaws, which are violations that “seriously undermine or threaten the integrity of the NCAA collegiate model.”[3] Once it has been decided or agreed that a violation has occurred, certain factors are weighed to determine the appropriate penalty.  Under the Bylaws, these factors are called “aggravating factors” and “mitigating factors.”  After balancing these factors, the NCAA can determine whether the violating party should be subject to “aggravated,” “standard,” or “mitigated” penalties. One such mitigating factor is “the absence of prior conclusions of Level I, Level II or major violations committed by the institution within the past 10 years.”[4]  This mitigating factor does not apply to the University of Alabama, however, because on November 20, 2020, the NCAA Division I Committee on Infractions issued a decision in connection with a case involving a former University of Alabama associate athletic director who received money in exchange for facilitating a meeting between the father of a student-athlete, a financial advisor, and the advisor’s representative.  Notwithstanding that decision, the Negotiated Resolution stated that NCAA enforcement believed that the Bohannon case did not warrant a departure upwards from penalties outlined in the Bylaws because the facts of the Bohannon case involved distinct behavior in a different sport, among other reasons.[5] The University of Alabama and NCAA enforcement ultimately agreed upon certain Level I mitigated penalties.  Specifically, the University of Alabama shall be under probation for three years (February 1, 2024 through January 31, 2027), during which time the University of Alabama must, among other things, continue to develop a comprehensive educational program on NCAA legislation and file preliminary and annual compliance reports with the office of the Committees on Infractions.  The University of Alabama must also pay a fine of $5,000.  The University of Alabama shall receive no postseason ban or scholarship reduction in connection with the negotiated resolution, however. As for Bohannon, the University of Alabama and NCAA enforcement agreed that Bohannon’s failure to cooperate with the investigation was its own Level I violation, and thus an aggravating factor, resulting in the following Level I aggravated penalties: Show-cause order:  A show-cause order requires a member institution to demonstrate why it should not be subject to a penalty or additional penalty for not taking appropriate disciplinary or corrective action against an institutional staff member who has been involved in a violation of the Bylaws.  Here, Bohannon was given a 15-year show-cause order.  As a result, during the show-cause order, any member institution employing Bohannon shall restrict him from all athletically related activity and, to the extent Bohannon becomes employed by a member institution, shall abide by the terms of the show-cause order unless it shows cause why the terms of the show-cause order should not apply. Head coach restriction:  To the extent a member institution does employ Bohannon while the show-cause order remains in effect, the employing institution shall suspend Bohannon from 100% of baseball regular season contests during the first five seasons of such employment. There is precedent for prescribing the show-cause order as a penalty against a coach who participated in impermissible sports wagering activities.  From August 2017 to May 22, 2018, an assistant coach of the University of North Carolina at Greensboro women’s basketball team placed wagers online on professional and intercollegiate sporting events, including games involving UNC Greensboro’s men’s basketball team.  Like Bohannon, the assistant coach failed to cooperate with the investigation by refusing to provide NCAA enforcement with his online sports wagering histories and credit card statements, constituting another Level I violation.  Considering the aggravating and mitigating factors present in that case, the assistant coach was given a 15-year show-cause penalty, according to the July 25, 2019 negotiated resolution between UNC Greensboro and NCAA enforcement. The same negotiated resolution gave another UNC Greensboro employee a 4-year show-cause order for similar behavior. From December 2017 through April 2018, an assistant director of UNC Greensboro’s fundraising organization also participated in limited online sports wagering activities over a similar period, including making at least one wager involving the school’s men’s basketball team.  Unlike the assistant coach, however, the assistant director only had one Level I violation because he cooperated in the investigation. The Negotiated Resolution can be found here: https://ncaaorg.s3.amazonaws.com/infractions/decisions/Feb2024D1INF_AlabamaPublicNR.pdf. The 2020 Public Infractions Decision can be found here:  https://ncaaorg.s3.amazonaws.com/infractions/decisions/Nov2020D1INF_UniversityAlabamaPUBLICInfractionsDecision.pdf The 2019 negotiated resolution between UNC Greensboro and the NCAA enforcement staff can be found here:  https://web3.ncaa.org/lsdbi/search/miCaseView/report?id=102784 The NCAA Bylaws can be found here: https://web3.ncaa.org/lsdbi/reports/getReport/90008 [1] See Bylaws Article 10.3. [2] See Bylaws Articles 19.1.2 – 19.1.4. [3] See Bylaws Article 19.1.1. [4] See Bylaws § 19.12.4.1(h). [5] The violations described in the Negotiated Resolution were the University of Alabama’s eighth Level I, Level II, or major case.