Since 1922, Major League Baseball (“MLB”) alone among U.S. professional sports leagues has enjoyed a judicially created antitrust exemption.[1] The Supreme Court reaffirmed that exemption as recently as the 1972 Flood v. Kuhn decision.[2] Through 1998, that exemption remained unchanged and afforded MLB a pass from all antitrust scrutiny.[3] Pursuant to the 1996 MLB-MLBPA Collective Bargaining Agreement, both the league and the players jointly lobbied Congress to narrow the scope of the exemption.[4] This resulted in the enactment of the Curt Flood Act of 1998, which reinstated baseball players antitrust rights and limited MLB’s exemption to immunize only “the business of organized professional baseball.”[5] Despite the Flood Act’s codification of MLB’s antitrust exemption, the league continues to face antitrust challenges.[6] Nonetheless, the circuit courts have consistently reaffirmed the exemption and the Supreme Court has declined to review those rulings.[7] As recently as 2018, the Supreme Court denied certiorari in two cases, Wyckoff v. Office of Commissioner of Baseball (Second Circuit)[8] and Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC (Seventh Circuit).[9] The most recent challenge was filed in the Southern District of New York on Monday, December 20, 2021.[10] In the complaint of The Staten Island Yankees v. Major League Baseball, the plaintiffs allege that the MLB Clubs’ horizontal agreement eliminating their affiliations with 40 Minor League Baseball Teams is an unreasonable restraint of trade, in violation of Section 1 of the Sherman Antitrust Act.[11] In arguing that “MLB should not be permitted to shield itself [from antitrust challenges] with an anachronistic baseball exemption…,” they are asking the court to not only enjoin and declare illegal the anticompetitive agreement, but also to entirely eliminate MLB’s antitrust exemption.[12] Based on precedent alone, this new challenge is likely to fail. But there have been two recent developments which seem to threaten what is left of MLB’s exemption, further bolstering the Staten Island Yankees’ claim and breathing new hope into the suit. Is MLB at risk of losing its antitrust exemption altogether? 1. The Supreme Court’s Decision in National Collegiate Athletic Association v. Alston[13] in June 2021 Dicta in the unanimous Supreme Court decision in NCAA v. Alston seems to invite challenge to MLB's exemption.[14] In rejecting similar antitrust immunity for the NCAA, Justice Gorsuch writing for the Court referred to MLB's antitrust exemption as “unrealistic,” “inconsistent,” and “aberrational.”[15] He explained that the Court has previously refused to extend the exemption to other sports leagues, and that the way for the NCAA to acquire similar antitrust privileges is "by legislation and not by court decision."[16] But earlier in the Alston opinion, Justice Gorsuch stated "[w]hether an antitrust violation exists necessarily depends on a careful analysis of market realities… if those market realities change, so may the legal analysis."[17] This language suggests two possible threats to MLB's antitrust exemption. First, the Court is once again inviting legislators to fix the problem (as Congress did after the Flood decision with the Flood Act). But, if legislators don't act and the Court believes "realities have changed" sufficiently, the Court may decide to revisit and change, or even abolish, the judicially created exemption. The Alston decision itself revisited Court precedent from National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma[18] and decided “realities changed” so as not to protect NCAA amateurism rules from antitrust challenge.[19] As it turns out, the Supreme Court may not need to intervene due to an entirely different development. 2. Congressional Bills Have Been Introduced in Response to MLB’s Decision to Move the 2021 All-Star Game In April 2021, MLB announced its decision to move the 2021 All-Star Game from Atlanta to Colorado, in response to Georgia’s new voting law.[20] Such decision angered many federal legislators, who voiced their desire to retaliate by revoking MLB’s antitrust exemption altogether.[21] Senator Ted Cruz stated "[i]f Major League Baseball is going to act dishonestly and spread lies about Georgia's voting rights bill to favor one party against the other, they shouldn't expect to continue to receive special benefits from Congress."[22] Siding with congressional anger at MLB's decision, Missouri also passed a Concurrent Resolution urging Congress to end MLB's antitrust exemption.[23] The resolution attacked MLB's political decision to move the All-Star Game out of Georgia and called for the federal government to "stop granting special privileges to specific, favored corporations…."[24] As it currently stands, two bills have been introduced in Congress.[25] The first is the “Competition in Professional Baseball Act,” S. 1111, introduced by Senator Mike Lee and co-sponsored by Senator Cruz, Senator John Hawley, Senator Marco Rubio, and Senator Marsha Blackburn.[26] The second is the “Competition in Professional Baseball Act,” H.R. 2511, introduced by Congressmen Jeff Duncan and co-sponsored by thirty-three other representatives.[27] Both bills would remove MLB's antitrust exemption by repealing Section 26(b) of the Clayton Act, where the Curt Flood Act of 1998 is codified and which provides MLB its current exemption.[28] At present, both were referred to their respective Committee on the Judiciary, but no such movement has occurred since then.[29] Although it is unclear whether we will soon see the demise of MLB's antitrust exemption, either at the hands of Congress or the Supreme Court, one thing is clear: when professional sports leagues make moves like MLB did, they must appreciate that they can become a "political football" for the objectives of any party or interest in opposition. And who knows if this will deter similar decisions in the future. Francesca Casalino is a 2023 J.D. Candidate at Brooklyn Law School. She can be reached via email at [email protected], on Twitter @FrancescaCasalino, or on LinkedIn at https://www.linkedin.com/in/francesca-casalino-059574124/. [1] Federal Baseball Club of Baltimore, Inc. v. Nat’l League of Pro. Baseball Clubs, 259 U.S. 200 (1922). [2] Flood v. Kuhn, 407 U.S. 258 (1972). [3]See Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953); United States v. Int’l Boxing Club, 348 U.S. 236 (1955); Radovich v. Nat’l Football League, 352 U.S. 445 (1957); Haywood v. Nat’l Basketball Ass’n, 401 U.S. 1204 (1971); Flood v. Kuhn, 407 U.S. 258 (1972). [4] 1997-2000 MLB-MLBPA Basic Agreement, Article XXVIII (1996). [5] Curt Flood Act of 1998, 15 U.S.C. §26(b). [6]See City of San Jose v. Office of the Comm’r of Baseball, 776 F.3d 686 (9th Cir. 2015), cert. denied, 577 U.S. 816 (2015); Miranda v. Selig, 860 F.3d 1237 (9th Cir. 2017), cert. denied, 138 S. Ct. 507 (U.S. 2017); Wyckoff v. Office of Comm’r of Baseball, 705 Fed. App’x 26 (2d Cir. 2017), cert. denied, 138 S. Ct. 2621 (U.S. 2018); Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC, 870 F.3d 682 (7th Cir. 2017), cert. denied, 138 S. Ct. 2621 (U.S. 2018). [7]See id. [8] Wyckoff, 705 Fed. App’x 26. [9] Right Field Rooftops, LLC, 870 F.3d 682. [10] Complaint at 1-5, Staten Island Yankees et al. v. Major League Baseball, 1:21cv10876 (filed Dec. 20, 2021). [11]Id. [12]Id. at 5. [13] Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (U.S. 2021). [14]Id. at 2159-2160. [15]Id. at 2159. [16]Id. at 2160. [17]Id. at 2158. [18] Nat’l Collegiate Athletic Ass’n v. Board of Regents of Univ. of Okla., 468 U.S. 85 (1984). [19] Alston, 141 S. Ct. at 2158. [20] Anthony Castrovince, ’21 All-Star Game, Draft Moved from Atlanta, Major League Baseball (Apr. 2, 2021), https://www.mlb.com/news/2021-all-star-game-draft-relocated. [21]See Tal Axelrod, Republicans Blast MLB For Moving All-Star Game, The Hill (Apr. 2, 2021, 5:26 PM), https://thehill.com/homenews/state-watch/546246-republicans-blast-mlb-for-moving-all-star-game. [22]Republicans Want to Yank Baseball’s Antitrust Immunity after MLB Reaction to Georgia Voting Law, Reuters, (Apr. 14, 2021, 3:16 PM), https://www.reuters.com/world/us/republicans-want-yank-baseballs-antitrust-immunity-after-mlb-reaction-georgia-2021-04-14/. [23] H.R. Con. Res. 20, 101st Gen. Assemb., First Reg. Sess. (Mo. 2021). [24]Id. [25] Competition in Professional Baseball Act, S. 1111, 117th Cong. (2021); Competition in Professional Baseball Act, H.R. 2511, 117th Cong. (2021). [26] S. 1111. [27] H.R. 2511. [28] S. 1111; H.R. 2511; 15 U.S.C. §26(b). [29] H.R. 2511 - Competition in Professional Baseball Act, Congress.gov, https://www.congress.gov/bill/117th-congress/house-bill/2511?s=4&r=5 (last visited Nov. 23, 2021); S. 1111 - Competition in Professional Baseball Act, Congress.gov, https://www.congress.gov/bill/117th-congress/senate-bill/1111?s=5&r=57 (last visited Nov. 23, 2021).

On Sunday, Tampa Bay Buccaneers wide receiver Antonio Brown made an abrupt exit from a game against the New York Jets. Brown removed his jersey and football gear before running off the sidelines in the middle of the game and leaving MetLife Stadium entirely. Reports that followed the incident indicate Brown may have had a legitimate reason to not reenter the game: he was injured. “What he told the staff, from what I understand, is that he was not going into the game because, in his mind, he did not feel he was healthy,” NFL Network’s Ian Rapoport said on Monday. “The response then from the offensive coaches and from Bruce Arians was, ‘If you are not gonna go into the game when we tell you to go into the game, then you cannot be here.’ At that point, they threw him off the sidelines and then cut him from the team.” However, Bucs head coach Bruce Arians shared a different version of the story. “I don't know that he was (injured),” Arians said Monday. “It was pretty obvious what happened. He left the field and that was it. We had a conversation and he left the field.” Without revealing what words were exchanged during said conversation, Arians claimed that Brown refused to return to the game when he was asked to play in the second half so he cut him from the team. While Brown has made headlines in the past for various reasons, this time his actions may actually draw more attention to a long-standing practice in the NFL: the return to play culture. Former Seattle Seahawks team physician, Pierce Scranton, opined that as a result of pressure from team management, “[t]he conventional doctor-patient relationship is nonexistent [in sports medicine], and the trust naturally fostered by such a relationship is consciously undermined by the organization.” As another former team physician stated, “There is no loyalty except to winning. In the NFL, owners and coaches can treat employees in ways that would immediately provoke a successful lawsuit in any other business.” Since its inception, the NFL and its member clubs that comprise the league have realized that keeping their best players on the field increases the odds of winning a championship and ensures strong attendance at games and the best possible TV ratings. Just last year, the NFL signed long-term agreements with media partners Amazon, CBS, ESPN/ABC, FOX and NBC to distribute NFL games across television and digital platforms. Its new media rights deal, which runs through the 2033 season, will give the NFL total earnings of a whopping $113 billion. As a result of the significant profits flowing from television deals, the NFL has created a return to play culture that prioritizes profit over players’ health and safety. The NFL has used their inherent authority to compel all NFL players and participants to follow the policies, rules, and regulations the NFL has enacted and imposed. The NFL-NFLPA Collective Bargaining Agreement (“CBA”) contains a number of provisions that directly depict the authority of the NFL as it relates to players’ health and safety. They are mainly found in Article 39, which concerns the dynamic of health care professionals paid by teams to treat players. Interestingly, Article 39 dictates that the “primary duty” of an NFL team physician in providing medical care is “not to the club but instead to the player-patient.” In addition, teams must use their “best efforts” to ensure that players are “provided with medical care consistent with professional standards for the industry.” Pursuing the best interests of the patient is the central hallmark of health care and it is reflected in laws, regulations and professional licensing requirements like the Hippocratic oath, which obligates doctors to provide ethical care to their patients and not harm those patients. However, in the context of sports, the best interests of the coaches and owners of the team often take priority over the player-patient. Per the CBA, the Head Team Physician has the exclusive and final authority to determine whether a player is cleared to return to participation in football activities. But when a health care professional is employed by an NFL team, they are constantly threatened by the possibility of losing their job if they deviate from the requests of coaches or owners. All too often, this prompts team doctors to misrepresent the severity of injuries or conceal life-or-death medical information all to obey team management’s demands to get the player back on the field as quickly as possible. For instance, leading up to Sunday’s game, Brown did not practice on Thursday and Friday due to an ankle injury. He was also listed as questionable for Sunday’s game. The same lingering ankle injury had also caused him to miss multiple games this season. With that said, it is apparent that the Tampa Bay Buccaneers organization and its doctors, trainers, and coaches were aware that Brown was struggling with a painful injury. However, Brown on the sidelines in Week 17 does not provide the organization any benefits, but deliberately ignoring and actively concealing medical information so Brown stays on the field will. If head coach Arians told the team doctor he needs Brown on the field by Sunday, he will do everything in his power to ensure that happens – or risk losing his job. Despite the NFL claiming teams must use their “best efforts” to ensure that players are “provided with medical care consistent with professional standards for the industry,” that is clearly not the case. In fact, former head coach Tom Coughlin admitted in a deposition for a medical malpractice lawsuit that he “can and will exert as much pressure on the player and the doctors to get the player [back] on the field.” Another former player reported that he was watching nearby as a teammate was getting evaluated by a team doctor and overheard a disturbing statement: “If you were a normal person, we might do things a little differently, but you’re a football player,” the team doctor said. Players also have the collectively bargained right to seek a second medical opinion and, provided a player satisfies Article 39 procedural requirements in seeking such an opinion, the team can be obligated to pay for the medical services rendered by that outside physician. But, the language of the CBA is carefully crafted to exert more control, as it includes that the player still must consult the team physician prior to seeking a second opinion. Later on, the player must ensure that the team physician be “furnished promptly” with a report that details the outside physician’s views on diagnosis, examination and recommended course of treatment. A player can also elect to pursue the recommendation of the second opinion over the opinion offered by the team physician, but only after consulting with the team physician and giving “due consideration” to his or her recommendations. Rick Stroud of the Tampa Bay Times reported Wednesday that Brown visited with a “top surgeon” outside the team, and that the evaluation (including an MRI) confirmed that he has “serious pain.” The belief, per Stroud, is that Brown “probably should’ve never been on the field to begin with on Sunday.” If Brown is still on the Bucs roster, Article 39 of the CBA requires him to give the team doctor a full report detailing the outside physician’s opinion. Not only that, but he must then meet with the team doctor to discuss his or her recommendations before pursuing the second opinion. The way these pertinent sections of the CBA are written give team doctors complete control over the player’s health and safety by significantly influencing the player’s decisions, even when that player receives a second opinion. The team physician is able to ignore, minimize, dispute, and actively suppress any second opinion due to the immediate trust players place in their hands as both members of the team, and more importantly, as their doctor. Ordinary everyday people trust doctors. Professional football players trust them the same, if not more. However, player injuries pose a serious business problem for the NFL and its member clubs. The aftermath of Antonio Brown’s exit is a developing story, but seemingly provides insight into the return-to-play culture and thorny dynamic of health care professionals paid by teams to treat players. According to the Tampa Bay Times, an official statement from Brown will be released soon, and will echo that despite Brown’s high threshold for pain, it’s believed he should not have been on the field Sunday. Stephanie Weissenburger is an Associate at Geragos & Geragos. You can find her on Twitter @SWeissenburger_ and Instagram @Steph_ExplainsItAll

Looking to ‘smack’ the National Hockey League (NHL) and Seattle Kraken “Straight Outta The Krak House” and into a Washington district court, a Florida apparel company initiated a civil action against the league and hockey team back in January of 2022. Following correspondence from the NHL parties in early September 2021 that it was infringing and diluting team and league trademarks, Smack Apparel Company filed the suit to obtain a ruling that its Kraken-themed t-shirt designs are expressive and transformative works protected by the First Amendment and not explicitly misleading to consumers. The first t-shirt at issue depicts, “Welcome to the Krak House,” on the front with “an artistic rendering of a red eye and squid-like appendages that conjure up the image of a sea monster,” as Smack described in its Complaint. Another t-shirt states, “Krakheads Anonymous,” with Smack’s brand logo on the front while the back reads, “Krakheads Anonymous Meeting Schedule,” and lists the schedule of the Kraken’s 2021–2022 home games at Climate Pledge Arena where the team plays. A third shirt sold by Smack features on the front, “Straight Outta the Krak House,” a parody of N.W.A.’s iconic hip hop track, “Straight Outta Compton,” with tentacles wrapping around the text. Smack Apparel argued that its t-shirts contain creative, original artwork and humorous messages that provide commentary on the Kraken “hockey club, its fans, and pop culture.” But the NHL and the Kraken were not laughing in their Response last Monday, where the parties stated that intellectual property misappropriation is Smack’s “business model” and indeed, this is not Smack’s first trademark dispute. In support of its point, the NHL parties cited the 2008 decision in Board of Supervisors for Louisiana State University Agricultural & Mechanical College v. Smack Apparel Company, which found Smack liable for trademark infringement as it attempted to capitalize on the color schemes and other indicia identifying four popular universities’ football programs. Notably, Smack admitted to intentionally incorporating the plaintiffs’ color schemes, logos, and designs, relying on their power to entice fans of the universities to buy the company’s shirts. The NHL and Seattle Kraken argued that the t-shirt manufacturer’s Motion for Judgement on the Pleadings in the current dispute ignored many pertinent fact-intensive issues, including the likelihood of consumer confusion between Smack’s products and the NHL’s officially-licensed ones. Smack claimed that it dispels confusion with disclaimers on its website that state “all of [its] designs are not endorsed or sponsored by any organization or individual” but rather “licensed only by the 1st Amendment.” But the NHL parties responded that such disclaimer is not enough to resolve the dispute. Furthermore, by using filters on its website, SmackApparel.com, that specifically designate NHL Clubs and timing its advertising with “NHL Clubs’ real-world events,” the NHL parties asserted that Smack Apparel targets and misleads NHL and NHL Club fans. In their Response, the NHL parties also contended that Smack sought to evade the discovery process by providing incomplete responses to discovery requests in the countersuit brought against the company for unfair competition and trademark and copyright infringement. These requests included the bases for Smack’s assertion that its t-shirts constitute parody and feature unique designs. Smack’s claim that its shirts are “spoofs” are rather contradictory, according to the NHL parties, since the company declared in its own Complaint, for example, that the “Straight Outta the Krak House” design parodies the rap song, “Straight Outta Compton,” and not the NHL or Kraken hockey club. The t-shirts that the NHL believes infringe on its Stanley Cup trademarks and copyrights cater to Tampa Bay Lightning fans. One such shirt, among others, sold by Smack says, “2020 We Got the Cup” and “Champions” over hockey sticks and palm trees with the company’s brand name, while the back reads, “Stanley Gets Another Tan” above a pair of sunglasses. After concluding that the company has misappropriated the NHL parties’ reputation and goodwill to entice consumers and fans to purchase its t-shirts, the NHL and Seattle Kraken requested that the U.S. District Court for the Western District of Washington deny Smack Apparel’s motion for judgment on the pleadings completely. Nancy Mouradian is an incoming 1L at Pepperdine Caruso School of Law in Malibu, CA with a B.S. in Business Law.

Early yesterday morning Fernando Alonso sent shockwaves through the world of Formula One by announcing his plans to join Aston Martin for the 2023 Formula One season. This decision has sent the projected driver’s market for next year into silly season, disrupting many plans that before seemed as good as done. This move directly impacts several teams on the grid and could cause several more surprising contract decisions. First, let's analyze why Alonso made the decision in the first place. It was widely accepted and thought that Alonso wasn't going to sign another contract to continue driving for the current team he was with, alpine. However, the retirement of Sebastian Vettel late last week opened up a new Ave for the veteran and makes sense from the perspective of the team as well. Aston Martin, previously known as racing point and Force India, was purchased by Laurence Stroll shortly after the team entered conservatorship due to the financial struggles of its original owner. Part of the rebranding into Aston Martin has been huge amounts of investment in an attempt to attract larger and more lucrative sponsors. With the second Aston Martin seat being held by Lance stroll, Lawrence's son, the team needed a veteran driver that gave the team credibility, stability, and an image to warrant sponsors joining. This is why the team signed four-time World Champion Sebastian Vettel in the first place. His experience, name, and presence on the team allowed them to go out and secure large lucrative sponsorship deals, while Vettel’s experience and feedback helped the team run more efficiently. When Vettel announced his retirement suddenly last week, Lawrence stroll and the team were left without that veteran presence necessary to help build the team internally as well as necessary to keep the large sponsors that they had signed. With limited options this late in the season, Lawrence struck quickly and poached Fernando Alonso from Alpena by offering him a multiyear contract, while it is thought that Alpine was only offering him a one-year contract. The reasoning behind that decision is straightforward enough, but the decision for Alonso to move has implications beyond that that are much less clear. Alonso moving means there is now an open seat at Alpine, and still an open spot at Williams. Up until the announcement that Alonso was switching teams, it was thought by the majority of the F1 community that Alpine reserved a driver Oscar Piastri would be sent on a loan contract to Williams so that he would be participating in Formula One until they needed him to replace either for an end to Alonso or Esteban Ocon. well, with the departure of Alonso happening earlier than expected, the logical thing for Alpine to do would be to promote Piastri and keep him on the team, as no other good driver options exist from within Formula One (if you ignore the speculation that Daniel Ricciardo might leave—he has already had ill-fated time with the team that currently operates as Alpine, and they would be unlikely to hire him back). As mentioned above, a deal with Oscar Piastri and Williams was thought to be “as good as done,” but now we know why the deal had not been actually signed yet—Apline didn't want to make anything final until they knew what was going on with Fernando Alonso. This situation leaves the biggest question mark over Williams. If they still plan to part ways with Nicholas Latifi at the end of this season, they have no clear easy option to replace him with. Williams could pull Stoffel Vandoorne, Mercedes reserve driver in to fill the position, but this is not a great long-term solution. The only other logical option for the team would be Logan Sargeant, a current formula two driver sponsored by the team. The problem with Vandoorne would be a lack of experience or real proof that he has what it takes to be a Formula One driver, and while Logan Sargeant has been doing well this season in Formula Two, Williams would have preferably liked to wait so that he could mature and develop further before bringing him up to Formula One. There is no easy answer for Williams, who certainly has drawn the short straw in this transaction. The next few weeks will be full of speculation as we go through the summer break, and the entire Formula One world will be sitting on the edge of their seats waiting for the Williams announcement to see just how they managed to get out of this tough situation. 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.

As reported earlier in the week, Chip Ganassi Racing (CCR) has sued Alex Palou for breach of contract. While the suit has been ongoing, Palou has continued to race for CGR, including racing at Indianapolis Motor Speedway this past weekend at the Gallagher Grand Prix, finishing 10th. Palou has tried to remain civil about the conflict when speaking to the media. In an interview with Jenna Fryer, Palou stated, "I'm not a lawyer. I'm just a racing driver." While Palou and Ganassi have been on the track, their lawyers have been hard at work. It has been reported that Palou's attorneys have asked the suit to be moved from Marion County, Indiana, to federal court. According to the IndyStar, Palou's legal team argued the change of venue was needed due to "… "diversity of citizenship" and the "amount in controversy." (IndyStar) Palou's legal team states that Palou is a resident of Spain and is only living in the United States temporarily on a work visa. ALPA Racing, also named as a defendant, is registered and incorporated in Spain. Palou's legal team has argued that due to all parties not sharing common state citizenship with the state of Indiana, the case needs to be moved to federal court. Regarding the amount in the controversy claim, Palou's team argues that the money lost by Palou having to stay with Ganassi instead of moving to McLaren in 2023 would exceed $75,000 and thus would typically be the federal court's jurisdiction. At the end of the notice, Palou's legal team states plans for a countersuit, "Defendants currently anticipate asserting non-contractual counterclaims, including at least for defamation. The damages Defendants will seek on these counterclaims will exceed $75,000." A potential countersuit, as well as a venue change, is sure to spice up this already intense conflict. This issue is nowhere near being over, and it is only a matter of time until the troubles in the courtroom spill onto the track. Jack Bradley is currently a Law school student at Duquesne Univesity School of Law and 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 for Norm Benning Racing. Sources Brown, N. (2022, August 1). Alex Palou's lawyers seek to move Chip Ganassi's lawsuit to Federal Court, plan countersuit. The Indianapolis Star. Retrieved August 1, 2022, from https://www.indystar.com/story/sports/motor/2022/08/01/alex-palou-lawyers-motion-move-chip-ganassi-racing-lawsuit-to-federal-court-plan-for-countersuit/65388612007/ Fryer, Jenna (@JennaFryer) I'm not a lawyer. I'm just a racing driver." https://twitter.com/JennaFryer/status/1552724879400640512

Just over a year ago on July 1st, 2021, college athletes finally gained the ability to profit off their name, image, and likeness legally. Ever since there has been no shortage of coverage and discussion about the topic of NIL in addition to how certain schools are leveraging it to attract top recruits and transfers. However, just a few days earlier on June 21st, 2021, the Supreme Court ruled against the NCAA via a 9-0 vote in the NCAA v. Alston case. Given that the case was decided days before NIL was enacted, many people falsely assumed that Alston was centered around the NCAA restricting college athletes from making money from endorsement deals, jersey sales, or appearances. But the case had nothing to do with NIL. Previously, the NCAA had established rules to limit the type of compensation and benefits that the school could give to their athletes. The Alston ruling brought an end to the NCAA’s ability to do that and schools were given the autonomy to provide unlimited education-related benefits beyond tuition. You might be asking: what are some of those benefits? While there are many things that can fall into this category, some of the most common are grants-in-aid for tuition, fees, room, board, books, computers, internships, and other expenses up to the value of the full cost of attendance. Most notably, however, schools now have the power to offer direct financial awards in the form of academic achievement awards of up to $5,980 per year. While all of these things will greatly benefit athletes in their experience on campus, the last item on that list is the one that obviously generates the most attention. We constantly hear how NIL payments aren’t supposed to come directly from the school, be used as recruiting inducements, or be used as pay-for-play performance incentives. Whether those rules are actually being followed across the nation is a whole other topic. However, Alston's payments are different. They can be paid out by the school and can be based on performance, academic performance that is. Now, while every school has the ability to disperse $5,980 per year to all of their athletes, that doesn’t mean that all of them have the capacity to do that. As conference realignment has resurfaced this summer, we’re constantly reminded of the growing financial gap between the most powerful conferences and everyone else. Quite frankly, there aren’t many schools in the country that can afford to offer Alston payments to all of their athletes. According to an ESPN article this past April, only 22 schools had announced they had plans in place to offer Alston awards. In the future, more are expected to join that list, but it will be far from a universal offering even among FBS schools. $5,980 per year is not life-changing money and by itself probably shouldn’t be the sole factor why a recruit should or shouldn’t choose his or her school. However, it’s hard to imagine that not being a factor in the decision-making process. A recent On3 article highlighted how football recruits still view factors like the coaching staff, proximity to home, and playing time more heavily than NIL. But 57% of recruits surveyed in the pieces still listed NIL payments among the top five items in their criteria. If a coaching staff in any sport can sell to a recruit that he or she has the ability to make approximately an additional $25,000 if they perform well in the classroom, that’s a big plus. For high-profile blue-chip football and basketball recruits, this is probably less relevant. The money reportedly offered to the elite prospects dwarfs the maximum Alston payment a school can offer. However, I can see this being a factor in many of the other sports on campuses across the country and at the mid-major level where NIL isn’t as prevalent. If one particular Sun Belt school, for example, is able to offer Alston awards to their athletes while their peers are not, that school can position itself to have an immediate talent advantage. Additionally, the way schools structure their Alston payments is important and is by no means universal across the board. Wisconsin recently announced in their plan that athletes will receive only $980 per year until their athletic eligibility has expired and, upon graduation from Wisconsin, will receive an additional $5,000 for each year up to $25,000. Simply, that means that if a Badger athlete wants his or her full Alston payment, they cannot transfer and must graduate. Other schools pay the full $5,980 upfront each year. How schools handle Alston payments moving forward will be interesting to follow. As we know, the landscape of college sports is evolving each day and how things are in five years is extremely unpredictable. Kevin Warren said that the “business of college sports is growing faster than the governance of college sports” at Big Ten Media Days this past week and it couldn’t be closer to the truth. Who knows, athletes could become employees of their respective schools and might make NIL and Alston payments less significant. But for now, every school that can offer the $5,980 per year has an undoubted recruiting edge. Brendan can be found on Twitter @_bbell5

In signing Kyler Murray to his recently-inked $230 million contract, the Arizona Cardinals added a clause that created a bit of a media firestorm throughout the past 72 hours. Reportedly the team added a clause that required Kyler to conduct four hours of “independent study” per week, without distraction from a second screen, television, or social media, in addition to his official team preparation activities. After the leaked provision started gaining massive media attention, Kyler conducted an impromptu press conference to address the clause, where he called the media attention “disrespectful” and dismissed the idea that he does not prepare for games in the same way other quarterbacks do. After Kyler’s press conference, the team announced they removed the clause, citing the distraction it created as a motivating factor. All the hoopla surrounding the unusual insertion into this contract notwithstanding, the mere fact that it became a tangible clause in the contract means serious trouble for the Cardinals’ relationship with Murray going forward. Organizational trust in leadership must be absolute to optimize performance in any industry. Any indication from those rowing the boat that they don’t believe in the people charged with steering the ship and the odds of a disjointed journey go up exponentially. In such a high-profile industry as the NFL, it has become vital that the team has full and complete trust in its GM, Head Coach, and Quarterback. Further, that trust must run from the ownership level down, from the rest of the team back up, and must be confidently expressed both internally and externally. Speculation, especially in the aftermath of failure, will naturally run rampant, but the teams that are able to maintain this trust when they know they have the right leaders are infinitely more likely to turn things around and succeed. Part of this means knowing that those leaders will be the ones working the hardest to correct the course, and consequently giving them the leeway to do so. As it relates to contract negotiations, the legal professionals involved are trained to do the opposite. Agents and GC’s can never rely on unspoken trust. It’s their job to ensure, in writing, that all parties to a contract will perform to the exact standard required in exchange for payment. Only if the possibility of the specific circumstances in a subsection of a contract happening is so infinitesimally small that it need not be addressed should that clause then be excluded from the deal. This is where it becomes vital for ownership to step in and weigh the need for the clause with the risk of alienating the player. Alternatively, the GC (or whichever Assistant GC drafted the clause) should also understand the implications of that stipulation, conduct their own cost-benefit analysis, and be able to articulate those risks so their client (ownership) can make an informed decision. Clearly, in this situation, neither the ownership nor the legal team understood the blowback that something like this might create, both with the player and in the media. By including this clause in Kyler Murray’s contract, whether in the draft or final version and whether or not it was ultimately removed, the Arizona Cardinals have clearly shown they don’t trust Kyler in the same way that every other NFL team trusts a bonafide franchise quarterback. The problem is that trust is required not only for Kyler to play (and live the rest of his life) with the freedom that the team believes he is “the guy,” but for the rest of the team and the organization to believe that he is a franchise quarterback, one that will lead them through the highs and sometimes terrible lows of the NFL schedule and ultimately to the promised land. By specifying that Kyler does his homework every week, in writing, in a $166 million guaranteed deal, that trust is broken, and it will take a long time to rebuild. Unfortunately for the Cardinals, the most likely way for that to happen will be by sticking with him if things do not go according to plan. Only one team wins the Super Bowl every year, and Vegas (+3260 Super Bowl Odds according to vegasinsider.com) doesn’t believe that team will be the Cardinals. In fact, they have the third-best odds in their division, which would likely mean that even a playoff birth is not guaranteed at this point. Kyler will only feel that trust from the organization if they show complete faith in him in a situation where most teams wouldn’t. In return, the team will only now be fully confident in Kyler if he, through a demonstrated work ethic and by stepping up to be a definitive leader of the team, brings them out of an adverse scenario and propels them to their definition of success, which may or may not be a Super Bowl. From where the organization (and their relationship with Kyler) sits right now, that would be quite the remarkable turnaround. Michael DiLiello is an Army Officer transitioning to the Sports Law field and will enroll as a 1L at the University of North Carolina School of Law in the Fall of 2022. His opinions are purely his own and do not reflect the opinions of the United States Army, the Department of Defense, or any other external agency. Twitter: @Mike_DiLiello LinkedIn: http://linkedin.com/in/michael-diliello-1057b439

First reported by Evan Drellich of The Athletic, Major League Baseball Commissioner Rob Manfred has responded to the letter from the United States Senate Judiciary Committee, which questioned the impact of Major League Baseball’s antitrust exemption on Minor League Baseball. Commissioner Manfred’s response paints a different picture of the antitrust exemption’s impact than the response submitted by Harry Marino, Executive Director of Advocates for Minor Leaguers. Highlights Commissioner Manfred issued a 17-page response to the United States Senate Judiciary Committee. Thus, Commissioner Manfred covers multiple topics, including Major League Baseball attempting to add an international draft, which is currently off the table due to the league failing to reach an agreement with the Major League Baseball Players Associations (MLBPA). In Marino’s response to a similar letter from the United States Senate Judiciary Committee, Marino notes that the uniform player contract is a byproduct of the antitrust exemption. The uniform player contract limits a Minor League baseball player’s ability to negotiate better living conditions and better wages. In response, Commissioner Manfred recognizes that all professional sports have a uniform player contract, and the terms and conditions are the “product of collective bargaining with the Major League Baseball Players Association [“MLBPA”] and therefore qualify for the non-statutory labor exemption to the antitrust laws.” Moreover, Commissioner Manfred notes that Major League Baseball’s First-Year Player Draft is a product of collective bargaining with the MLBPA. “Thus, because many of the most significant terms and conditions of employment for Minor League players are the product of collective bargaining with the [MLBPA], removing the baseball exemption would not subject them to antitrust scrutiny because of the non-statutory labor exemption,” Commissioner Manfred wrote. Commissioner Manfred highlighted a number of benefits that the antitrust exemption allows Major League baseball to control, including housing, training standards, benefits, and meals. Another point Commissioner Manfred harped on is that by allowing Major League Baseball to require each team to have four Minor League affiliates, Minor League players actually benefit. If the government removed the antitrust exemption and teams were allowed to make their own decisions, teams may disaffiliate with minor league teams and move their development system to their spring training complexes in Florida or Arizona, which would limit opportunities for players and deprive Minor League baseball communities of their team. A final point that Commissioner Manfred considered important: due to the antitrust exemption, only one Major League Baseball team has relocated to another market in the last 50 years. Other professional leagues have had multiple teams relocate to other markets in the same time period. The antitrust exemption allows Major League Baseball to prevent fan bases from losing their teams. Overall, Commissioner Manfred pins many of the issues with Minor League baseball on collective bargaining between Major League Baseball and the MLBPA. Further, Commissioner Manfred flips the script and paints the antitrust exemption as a benefit to communities due to Major League Baseball controlling the amount of Minor League teams and the location of Major League teams. However, the story remains the same, Minor League baseball players are consistently underpaid, subject to lengthy contracts, and subject to suboptimal living conditions. Now, it is up to the United States Senate Judiciary Committee to change the narrative. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber

The 2021 Formula One (F1) season has been regarded by many as one of the most competitive and entertaining in recent memory; a high level of competitive racing supported by new tracks, new fans, and now a new F1 World Drivers’ Champion in Dutchman Max Verstappen. Despite all the hype (real and dramatized), the 2021 season ended in an "insane" and "chaotic" fashion last Sunday evening (local time) at the newly remodelled Yas Marina Circuit in Abu Dhabi. While the race and the season are now over, the lawyering may have just begun. This article analyses the protest against the race results (the Classification) established at the end of the 2021 F1 Season (the Competition) by the Mercedes-AMG Petronas F1 Team (Mercedes) and the swift dismissal of the protest by the race Stewards (Stewards). The team has notified that it intends to appeal the Stewards’ dismissal. Though it has been reported at the time of writing (early on 14 December (AEDT)) that the Mercedes Team Principal and CEO, Toto Wolff, considered withdrawing said intention, this article also goes through the potential arguments and considerations that Mercedes and the Fédération Internationale de l'Automobile (FIA) may make in appeal proceedings. What Happened? (And What Didn’t) After a year of thrills and spills, the two best drivers all season long - seven-time World Drivers’ Champion Sir Lewis Hamilton (who will be officially knighted this week) of Mercedes and Red Bull Racing Honda’s (RBR) Verstappen - came into the finale sitting equal on points, though with Verstappen ahead in the important count of race wins. After what was becoming an inevitable win for Hamilton, both he and Verstappen ended up duking it out in a one-lap dash to the chequered flag in the final race of the season, the 2021 Abu Dhabi Grand Prix (the Race). While that may sound like a worthy ending to one of the best seasons of the premier international motor sport category, the actual final lap (lap 58 of the Race) resulted in a predictably lop-sided 'battle' where Verstappen in his fresh soft-tyred Red Bull Honda overtook Hamilton’s Mercedes with its 40 lap-old hard compound tyres, also taking the Race win and Verstappen’s first World Driver’s Championship. The chaos and confusion in the Race came before the final lap, starting with a crash at turn 14 by Williams Racing’s Nicholas Latifi on lap 53 after a brief tussle for 16th place with perennial back-marker and rookie F1 driver Mick Schumacher (son of seven-time F1 World Driver’s Champion, and legend of the sport, Michael Schumacher) of the Haas F1 Team. At the time, Hamilton had a 12 second lead over second-placed Verstappen and was seemingly cruising to the Race win and his record-breaking eighth F1 World Driver’s Championship. Latifi’s crash caused the neutralisation of the Race with the deployment of the safety car by the FIA Race Director, Michael Masi. Under safety car conditions, drivers slowed down to follow the safety car, with some diving into the pits for fresh tyres. Crucially, while Verstappen pitted for a set of the faster soft compound tyres, Hamilton was not instructed to pit, Mercedes radioing their greater concern for him to maintain track position, critical to ensure he was best placed on the restart or in the conclusion of the Race under safety car conditions. This left Hamilton at the front of the Race, but on hard compound tyres that were put on the car back on lap 14. When Verstappen re-joined the track, he lined up behind the safety car with five other cars - driven by Lando Norris, Fernando Alonso, Esteban Ocon, Charles Leclerc, and Sebastian Vettel (collectively, the Five Drivers) - now between him and Hamilton. The safety car remained on the circuit for the next four laps of the Race and the racing was neutralised as track marshals attended to the removal of Latifi’s car and related debris. During this time, team personnel from both Mercedes and RBR communicated with Masi and queried the application of the FIA’s 2021 Formula One Sporting Regulations (Sporting Regulations) in the situation. Understandably, both sides were advocating alternate applications of the Sporting Regulations with Masi. Masi initially informed the teams that the lapped cars driven by the Five Drivers would not be released to drive ahead of the safety car and rejoin that back of the pack. This virtually guaranteed Hamilton the Race win and the title of 2021 World Driver's Champion as Verstappen would have to attempt to navigate his way through the lapped traffic on one or perhaps two remaining laps to contend for the title. Confusingly for Mercedes, Hamilton, the drivers and teams of lapped cars behind Verstappen on track, and many fans watching along, on lap 57 - the penultimate lap- after a query from RBR Team Principal, Christian Horner, Masi announced his new decision that the cars driven by the Five Drivers between second and first place (but only these cars) would be released and that the safety car was returning to the pit lane on that lap. The new decision from Masi effectively engineered the lop-sided finish to the Race, or what Masi referred to as “a motor race” in his final broadcast radio communication with Wolff. Verstappen was in essence handed his first championship in F1 - and first in any major category of motor sport. All was not lost for Mercedes on the day, as they finished the Constructor's Title in first place and won that important championship (some regard it as more important than the driver's title as it linked to financial rewards for teams). Mercedes Protests As the RBR team and Verstappen were celebrating his win, Mercedes filed two protests. The first protest, detailed in a FIA Summons to RBR (Verstappen noted as the driver of Car 33) and Mercedes (Hamilton identified as the driver of Car 44) timestamped at 7.25pm and 7.30pm (local time) (respectively) set out a: “Protest by Mercedes-AMG Petronas F1 Team against Car 33, alleged breach of Article 48.8 of the 2021 FIA Formula One Sporting Regulations” (the First Protest). The First Protest related to Mercedes’ claim that Verstappen 'overtook' Hamilton while the safety car was deployed and during lap 57. We see this to be the 'lower priority' and ‘weaker’ of the two protests. RBR argued against the claim that Verstappen had overtaken Hamilton under the safety car. The Race Stewards considered the First Protest to be admissible but dismissed it in a decision issued at 10.15pm (local time) on the basis that: “… although Car 33 did at one stage, for a very short period of time, move slightly in front of Car 44, at a time when both cars where accelerating and braking, it moved back behind Car 44 and it was not in front when the Safety Car period ended (i.e. at the line). The second protest, detailed in a FIA Summons to RBR (Car 33) and Mercedes (Car 44) timestamped 7.33pm and 7.34pm (local time) (respectively) set out a: “Protest by Mercedes-AMG Petronas F1 Team against the classification established at the end of the Competition, alleged breach of Article 48.12 of the 2021 FIA Formula One Sporting Regulations” (the Second Protest). The Second Protest was in relation to Masi’s application of the procedure in the Sporting Regulations to allow lapped cars to be released while under safety car conditions and rejoin the cars lining up behind the safety car in order of position in the race and the return of the safety car to the pits. We see this as the stronger of the claims by Mercedes and is considered to be the main priority in the protests. The rest of this article now focuses on the Second Protest. Why Mercedes Filed the Second Protest Mercedes filed the Second Protest due to two alleged breaches of Article 48.12 of the Sporting Regulations. Article 48.12 is extracted below (emphasis added): "If the clerk of the course considers it safe to do so, and the message "LAPPED CARS MAY NOW OVERTAKE" has been sent to all Competitors via the official messaging system, any cars that have been lapped by the leader will be required to pass the cars on the lead lap and the safety car… Unless the clerk of the course considers the presence of the safety car is still necessary, once the last lapped car has passed the leader the safety car will return to the pits at the end of the following lap. If the clerk of the course considers track conditions are unsuitable for overtaking the message “OVERTAKING WILL NOT BE PERMITTED” will be sent to all Competitors via the official messaging system." It is clear that Article 48.12 provides the Race Director with significant discretion and the ability to exercise their judgment within the ‘field of play’ that is a safety car situation during a race. Again, at first, Masi, directed (per Article 48.12 of the Sporting Regulations) that all lapped drivers "will not be allowed to overtake". His subsequent reversal of his initial decision with respect to only the Five Drivers on lap 57 appears contrary to the references in Article 48.12 that: the message to allow overtaking must be sent to all drivers; and "any cars that have been lapped by the leader" have to unlap themselves. (Masi’s new decision left drivers of the three other lapped cars behind Verstappen on track rather confused as a result.) The issue of when the safety car is supposed to come into the pits was the second plank of the Second Protest. Per Article 48.12, the safety car can only return at the end of the lap after all lapped cars have passed the leader. Though not all lapped drivers had passed the leader (Hamilton), let’s assume for the sake of the argument that the Five Drivers’ passing Hamilton on lap 57 satisfied this requirement. Even then, a literal reading of Article 48.12 would require that the safety car come in at the end of lap 58, the final lap of the race. In effect, the race would have to end under a safety car, which is hardly befitting of the finale many may have anticipated to such an outstanding year of racing. Instead, the safety car came in at the end of lap 57 and racing resumed at the start of lap 58. Hamilton’s 12 second lead on lap 53 was now reduced to Verstappen starting the final lap directly behind him on fresh tyres. Verstappen was thus neatly placed on a path to victory in the race and effectively handed the F1 World Drivers’ Championship. In this regard, Mercedes argued that if the alleged breaches had not occurred, Hamilton would have won the race. They requested the Stewards to amend the Classification under Article 11.9.3.h of the FIA International Sporting Code (the Code) such that it reflect the field as at the end of lap 57. What the Stewards Decided The Stewards ruled against Mercedes’ Second Protest. Their decision was based on three points: 1. Article 15.3 of the Sporting Regulations provides Masi with (to quote the provision) "overriding authority" in "the use of the safety car"; 2. even if Masi acted contrary to Article 48.12, Article 48.13 requires the safety car, in any case, to come in at the end of the lap during which the message, "Safety Car in this lap", is displayed (here, lap 57); and 3. Mercedes’ desired remedy would comprise "effectively shortening the race retrospectively". Hence, the Stewards retained Masi’s decisions and, in essence, confirmed Verstappen as the 2021 World Drivers’ Champion. Note that this is would not have been the first time in Formula 1 that the Stewards ruled after a race, including in a manner which affected the final Classification: · After the 1989 Japanese Grand Prix, the Stewards disqualified Ayrton Senna from the race for rejoining the track illegally. Given the points standings, that decision ultimately handed the World Driver's Championship to his title rival, Alain Prost. · After the 1997 European Grand Prix at Jerez, Spain, the FIA stripped Michael Schumacher of all of his 78 championship points from the 1997 season after he collided with title-rival and eventual Champion, Jacques Villeneuve. · After the 2017 United States Grand Prix, Verstappen himself was given a five-second time penalty for an illegal overtake, which demoted the Dutchman to fourth. (A very good explainer of the role of the Stewards, and an overview of similar F1 disputes is provided by Autosport.) Mercedes’ Appeal Shortly after the Stewards handed down their decision, Mercedes notified them of their intent to appeal it to the International Court of Appeal (ICA), per Article 10.1.1.a d) of the FIA Judicial and Disciplinary Rules (the Rules), and Article 15.1.5 of the Code. Procedure Mercedes are required to notify the Stewards of their actual appeal within 96 hours of that notification, per Article 10.3.1 a) of the Rules. At 7.02am (AEDT) on Monday 13 December 2021, Mercedes posted on Twitter that: “We have lodged notice of intention to appeal the decision of the Stewards under Article 15 of the Sporting Code and Article 10 of the Judicial and Disciplinary Rules.” Article 10.6.4 of the Rules gives Mercedes (the Appellant) at least fifteen days to "submit… grounds for appeal", following which the FIA (the Respondent) will have fifteen days to file its response, subject to the decision of the President of the ultimate Hearing. Per Article 10.9.1, the Hearing will be an adversarial one (like a common law court proceeding). In arriving at its decision, the ICA will have "all the decision-making powers of the" Stewards, per Article 10.10.1. Note that the ICA is not bound by its previous decisions, per Alfa Romeo Racing(Decision) (Case No ICA-2019-06 and Case No ICA-2019-04, 3 October 2019) at para [33] (Alfa Romeo). The governing law of the ICA is set out in Article 14.4 of the Rules: "The applicable law is the regulatory texts of the FIA (Statutes, Regulations, other binding rules), as well as French law." So how may the chips fall before the ICA in any appeal proceedings? What May Mercedes Argue? Firstly, given the above analysis of why they filed the Second Protest, Mercedes have an arguable case that the provision was not complied with by Masi. The Stewards accepted this possibility by stating, "Article 48.12 may not have been applied fully, in relation to the safety car returning to the pits at the end of the following lap". Secondly, Mercedes is also likely to argue that the Stewards’ invocation of Article 15.3 of the Sporting Regulations in their dismissal of the Second Protest is incorrect. From their perspective, the Stewards invoked the "overriding" discretion which the provision grants to the Race Director to justify Masi’s potential failure to apply Article 48.12 properly, as above. Mercedes’ counsel can highlight that while Article 15.3 affords the Race Director with powers, it does not allow a Race Director to override the Sporting Regulations. Instead, the provision merely provides the Race Director, in essence, a power of veto over the decisions of the clerk of the course (a person appointed by the FIA’s ASN, or the local national motorsport governing body) in relation to the matters which the provision lists, including "use of the safety car". We contend that Article 15.3 merely operates to make the locally appointed clerk of the course subordinate to the FIA’s Race Director in relation to the matters set out within. The provision does not expressly provide either official the power to disregard the Sporting Regulations. It also does not appear conceivable that the FIA drafted Article 15.3 with the intention to provide such a power by implication from the words of the provision. This is because Article 2.1 of the Sporting Regulations expressly binds all Formula 1 officials (emphasis added): "... to observe all the provisions as supplemented or amended of the International Sporting Code (the Code), the Formula One Technical Regulations (Technical Regulations), the Formula One Financial Regulations (Financial Regulations) and the present Sporting Regulations." The structure of the Sporting Regulations reinforces the importance of this obligation: Article 2.1 is the third provision of the Sporting Regulations. If a Race Director is required to comply with the Sporting Regulations, why would the FIA seek to legitimise what the Stewards themselves have acknowledged is the potentially incorrect application of the Sporting Regulations? That too after Masi himself commented after the 2020 Eifel Grand Prix that: ”There’s a requirement in the sporting regulations to wave all the lapped cars past. From that point, it was position six onwards that were still running [on the lead lap], so between 10 or 11 cars had to unlap themselves. Therefore the Safety Car period was a bit longer than what we would have normally expected.” In his own words, Masi has stressed the obligation of the Race Director to observe Article 48.12 of the Sporting Regulations, in full. Thirdly, Mercedes may seek to undermine the Stewards’ belief that Article 48.13 of the Sporting Regulations overrides Masi’s potential failure to apply Article 48.12 fully and correctly. The first paragraph of Article 48.13 reads as follows (emphasis added): "When the clerk of the course decides it is safe to call in the safety car the message "SAFETY CAR IN THIS LAP" will be sent to all Competitors via the official messaging system and the car's orange lights will be extinguished. This will be the signal to the Competitors and drivers that it will be entering the pit lane at the end of that lap." Since the stated message was sent to all drivers in Lap 57 (putting to one side again the fact that not all lapped drivers were allowed to pass Hamilton), Article 48.13 requires the safety car to come in at the end of Lap 57, which it did. This was a result contrary to what a literal application of Article 48.12 would require — that the safety car come in at the end of Lap 58, as above. Article 48.13 does not expressly empower the Race Director to rule on the withdrawal of the safety car in violation of Article 48.12. It is unclear how such a power can be implied, given the arguable intent of the FIA in drafting the Sporting Regulations, which is evidenced by Article 2.1, as above. Mercedes can run an argument similar to that which can be deployed concerning the Article 15.3 issue: that Article 48.13 cannot authorise the breach of Article 48.12. Hence, Mercedes’ arguments are likely to revolve around the principles of legality and predictability. The ICA defined the principle of legality in Pekaracing (Decision) (International Court of Appeal, Case No 24/2009, 3 December 2009) at para [16] (Pekaracing) as follows (emphasis added): "In all cases the Court retains its supervisory function of ensuring that the rule of law is respected and that when drive through penalties are applied, they are applied only as authorised in the ISC and any Supplementary Regulations. Any other conclusion would imply that Court could exercise no legal control even where a drive through penalty had been imposed in circumstances far outside the [Code]." While that case was in relation to the Stewards’ imposition of a drive through penalty under the Sporting Regulations (and, in the present facts, Hamilton was not penalised), the ICA can be argued to possess a plenary jurisdiction to protect the rule of law and ensure that the Stewards act within the bounds of the Sporting Regulations. Mercedes can stress that the ICA needs to ensure that the F1 Championship is conducted strictly according to the prescribed rules — that the rule of law be preserved. The team can press that the Stewards’ application of Articles 15.3, and 48.12-48.13 to dismiss the Second Protest was ultra vires, unlike the decisions of the Stewards in Alfa Romeo that had a "sound legal basis" (at paragraph [40]). The principle of predictability concerns that of decision making by the Stewards. While the appellant in Alfa Romeo (at paragraph [41]) argued the principle to, in part, bar the sanctioning of drivers on an inconsistent basis, the principle arguably extends to how the Stewards adjudicate on the Race Director’s actions in relation to a safety car, given the potential for drivers to be penalised for conduct under a safety car (see, eg, Article 48.8 of the Sporting Regulations). The need for predictability of the Stewards’ decision making in this context is critical especially when Articles 48.12-48.13 may contradict each other, as above. Teams and their drivers need certainty as to how that potential contradiction will be resolved because of how tight the margins between drivers at the end of a safety car period become, as seen in the Race. Very few, if any, situations are closely analogous to what transpired at Yas Marina. A proper legal precedent is required as to how the Sporting Regulations will treat such a fact set. What May the FIA Consider? In addition to reiterating the above reasoning of the Stewards’ decision to dismiss the Second Protest, the FIA may argue that Masi’s application of Article 48.12 of the Sporting Regulations comprised ‘field of play’ decisions. To apply what the FIA argued in Alfa Romeo at paragraph [23], there would be "strong sporting reasons [to] justify that [Masi’s decisions] should not be subject to appeal". Separate to the ICA, the Court of Arbitration for Sport (CAS) held in Horse Sport Ireland v. Fédération Equestre Internationale (Award) (Court of Arbitration for Sport, Case No 2015/A/4208, 15 July 2016) [2]-[3] (HSI) that the "principle of respecting field of play decisions… [is] a sport specific rule that guides much of sports competition at a fundamental level". Deviating from this doctrine may run contrary to the underpinnings of sports law itself. The FIA can perform a similar analysis to counter Mercedes’ arguments and attack the remedy it pursued in the Second Protest, namely that the Classification be retrospectively amended to reflect the field as at the end of lap 57. The FIA can stress that Mercedes is seeking to change the outcome of not just one race, but the 2021 World Drivers’ Championship, through litigation. This is contrary to the core idea of the ‘field of play’ doctrine that "match officials must be allowed to officiate a sporting event freely without any legal interference". The FIA can highlight what the CAS ruled in HSI (at paragraph [2]) to be "strong sporting-based principles" that justify match officials’ decisions being left undisturbed, including: "... the need for finality and… the need to avoid constant interruption of competitions, the opening of floodgates and the difficulties of rewriting records and results after the fact." The FIA can present the above doctrine of the CAS as persuasive for the ICA, given that Article 9 of the Rules establishes the latter as a sports law dispute resolution body. The FIA can submit that the same ideas and principles from the CAS jurisprudence represent "strong sporting reasons" (Alfa Romeo, at paragraph [23]) for the ICA to respect Masi’s decisions in applying Articles 48.12 of the Sporting Regulations. But then again, Mercedes can rebut any such submission by the FIA. How Might Mercedes Respond? Firstly, Alfa Romeo is not analogous to the present facts. That ICA decision concerned a challenge to a stop-and-go penalty, which teams could not appeal according to the applicable versions of the Code and the Sporting Regulations at the time. The FIA argued that the explicit bar on appeal was for "strong sporting reasons" and the imposition of the penalty was thus a ‘field of play’ decision. In the present case, however, the wording of Article 12.3.4 of the current Code and Article 17.3 of the current Sporting Regulations does not bar an appeal against decisions of the Stewards under Article 48.12 of the current Sporting Regulations. It is unclear what "strong sporting reasons" would render decisions under Article 48.12 ‘field of play’ decisions that must be respected on appeal. To the contrary, using the excuse of "strong sporting reasons" to quash an appeal founded in relevant rules contradicts the principles of predictability and legality, which Mercedes can argue, as above. Secondly, in Alfa Romeo, the ICA did not seem to rely on the FIA’s specific argument as to the ‘field of play’ doctrine in its judgement. The ICA focused on how the Stewards imposed the relevant penalty in a fashion compliant with the relevant rules. To the contrary, the Stewards, according to Mercedes, have not applied Article 48.12 of the Sporting Regulations correctly in the Race. This can dovetail with Mercedes’ argument invoking the principle of legality, further weakening the FIA’s case. Thirdly, and though the CAS will not hear any appeal by Mercedes (rather, the ICA will), it makes a vital point in HSI at paragraph [2] that Mercedes may rely upon: "According to CAS jurisprudence it is the rules of the game that define how a game must be played and who should adjudicate upon the rules." Mercedes may use such an argument to require the proper and complete application of the Sporting Regulations. Potential Remedies Hamilton Wins Clearly Mercedes is seeking that the race Classification be amended to award the win (and thus the World Driver’s Championship for 2021) to Hamilton, with Verstappen relegated to second place. Win-Win Article 13 of the Rules allows for a party to seek 'alternative remedies'. But in the 'binary' world of motor racing there is only ever one winner of the World Driver's Championship each season (hence why the race win count is important in the case where drivers are level on points at the end of a season). Or is there? Perhaps such an alternate remedy may be that both Verstappen and Hamilton jointly be classified as co-Champions for 2021. This sounds 'out there', but in light of the very real practical issues faced with the removal of Verstappen's Championship, this 'far out' idea may have legs - as is considered further in the conclusions below. Conclusion - Mercedes' Options Within the context of the decisions handed down by the Race Director during the Race and what transpired at the end of the Race and the following dismissals of the Mercedes protests (and in particular the Second Protest), it is our opinion that the Sporting Regulations, the Code and the Rules allow Mercedes the scope to argue that the Race Director erred in his application of the Sporting Regulations and that the race Classification be amended to award the win (and thus the World Driver’s Championship for 2021) to Hamilton. Practical Effects However, in very practical terms, and within the context of the celebrations and the numerous congratulatory social media posts that have followed the awarding of the Race win and the Championship to Verstappen, how would such a reversal play out? Should Mercedes notify the FIA of their actual appeal, the Hamilton fans and the sports law purists will claim that a wrong can be made right. Though the Verstappen fans, citing that he and RBR did nothing wrong, may equally claim that a successful Appeal is an invalid reversal of a field of play decision and therefore a denial of ‘justice’. The latter group would seek to rely on the Stewards dismissing the Second Protest partly because Mercedes was seeking for the race to be shortened after the fact “and hence not appropriate”. Withdrawing the Appeal In a sport that is becoming as much about entertainment and brand equity as it is about the actual competition between the teams and the sport itself, Mercedes may elect to drop their intent to appeal and settle the matter. Though this effectively ends the matter (and forces sports law nerds to put away the popcorn), this would allow Mercedes to 'take the high road', which Hamilton has done in what has been an exceptional public display of grace, humility, and good sportspersonship in the face of what happened after the Race. Alternative Remedy Or, as a goodwill gesture to the sport and in seeking an alternative remedy under Article 13 of the Rules, Mercedes may argue further or in the alternative in their appeal that both Hamilton and Verstappen be awarded the 2021 World Driver's Championship title jointly. Conclusion - FIA Recommendations For the FIA, the win-win scenario of the proposed co-Champion remedy may allow the governing body to save face and move forward. But regardless of how the various scenarios may play out, or the lasting impact on die-hard fans of the issues arising from Sunday's Race finish, the FIA can still look to what took place as a chance to improve its position as regards its governance and competitive integrity. While recent reports seem to make out that Team Managers will not be able to have ongoing discussions with the Race Director (including as to rule interpretations) from the 2022 F1 season, the FIA should also consider: · giving the Race Director additional support during race weekends with extra dedicated personnel who are expert in the Sporting Regulations, the management of safety-related applications of these, and broader integrity matters - in addition to the Stewards who are expert in considering on track and 'racing' issues from their perspectives as ex-drivers. The additional personnel could be tasked up with specific sections of the Sporting Regulations as subject matter experts in certain situations, to be called upon on an as needs basis; and · revise the Sporting Regulations to make the Articles that are broadly-worded (like Article 15.3) and/or ambiguous and contradictory (as in the conflict created by Articles 48.12 and 48.13) clearer and more definite in their application at such critical times of a race. F1 is now a major global sport providing a high level of entertainment on (and off) the track and also a valuable property in its own right and a large international business and, without any disrespect to Michael Masi, the stakes are clearly too high to leave somewhat ambiguous field of play rule interpretation, consideration, arbitration, and application to just one person (even where supported by Stewards), especially where that plays such a part in deciding a race winner and World Drivers’ Champion. As in other sports (especially those that have been commercialised to F1’s extent), F1 sells integrity. The integrity of the Competition should be central to the interpretation and application of the Sporting Regulations and be above all other considerations and outcomes, including entertainment. About the Authors: Ravi Nayyar holds a LLB from the University of Sydney and is a PhD candidate looking at how critical software regulation fits into critical infrastructure regulation. Ravi is passionate about many sports, including Formula One. Mat Jessep is a Sydney-based commercial/corporate lawyer and business consultant with specialist skills and experience in Sports, Esports, Media and Entertainment, acting for clients in Australia, New Zealand, Japan, North America, the UK, and Europe. Mat is experienced in commercial and corporate matters, including transactional, contractual, procurement, company secretarial, governance, integrity, branding, reputational, strategy, regulatory, compliance, and legal project management advice and support. Leveraging off of more than 10 years’ experience as a lawyer and a career in marketing and brand management before that, Mat has established Game Legal and Game Consulting to deliver focused legal, governance, and strategic commercial advice to clients involved in Sports, Esports, and Pop Culture - Gaming, Media, Tech, Internet, Brands & IP, Entertainment, TV, Music, Film, Art, & Fashion - as well as to Businesses and for new Start-Ups.

As teams around the world continue to qualify for the 2022 World Cup, the host country, Qatar, finalizes its preparations for the teams and their fans to arrive. Included in those preparations is an unexpected major public relations cleanup for both FIFA and the host country. Qatar and FIFA, the international governing body of association football, have been under fire since the country’s successful bid in 2010. From allegations of underlying corruption in the bidding process to severe human rights infringement in construction development, criticism and controversy have surrounded most news regarding one of the most-watched sporting events in the world. To prepare for such an anticipated event, Qatar has poured an unprecedented amount of funds into developing an infrastructure for the tournament, costing upwards of $200 billion. Among these developments are the construction of eight stadiums, an airport city, transportation/housing developments, and the expansion of luxury hotels across the country.[1] The construction for the 2022 World Cup has been carried on the backs of migrant workers from South Asian and African countries that traveled to Qatar in search of stable job opportunities. Instead, these migrant workers are exploited through dangerous working conditions and dismal labor laws. According to The Guardian, more than 6,500 migrant construction workers have died in the process of constructing this project. Qatar’s winning bid has not only provided the country with the opportunity to subject itself to economic growth, but it has also allowed the country to subject itself to public scrutiny regarding the region’s “kafala” system of labor.[2] This system requires workers to give up their passports and work in the country until released by their employer. The kafala system also discourages laws designed to protect the labor and human rights of migrant workers. The workers’ common grievances include nonpayment/delayed payment, poor living conditions, and extraneous manual labor in poor working conditions. In addition, Qatar’s intense summer heat has been found to be a significant factor in many deaths that occurred throughout the construction process. In 2015, the FIFA Task Force suggested moving the tournament to the fall months due to the fear that players and fans would suffer from heat-related injuries. The Qatar 2022 World Cup will be the first tournament to not be held in the usual summer months.[3] Although Qatar and FIFA officials considered the health of future world cup attendees, the same consideration was not given to the health of the migrant workers. Football federations and fans from around the world have asked for FIFA to address the concerns and property investigate the deaths and corruption related to Qatar’s hosting of the World Cup 2022. After about a decade of protest and controversy, Qatar began to amend laws pertaining to the labor and individual human rights of migrant workers in the country. New labor laws were introduced in 2020 to guarantee a basic minimum wage and reduce the exploitative factors of the kafala system.[4] In early December 2021, FIFA held a meeting with “political institutions and rights organizations to discuss human rights in Qatar ahead of the 2022 World Cup.” This meeting allowed the stakeholders to voice their concerns about crucial issues, from the rights of laborers to those of the LGBTQIA community.[5] Qatar believes that the opportunity to host the World Cup 2022 will be invaluable in diversifying the country’s economy and providing many more opportunities of international involvement to come. This global vision is shown to be a potential reality given recent efforts. In November 2021, Qatar hosted its first ever Formula One Grand Prix and signed a 10-year deal to continue hosting in future Formula One seasons. Qatar continues to be under an international spotlight as the world awaits the arrival of the 2022 World Cup. Human rights organizations have critically watched Qatar’s recent labor reforms and hope that more meaningful change is soon to follow. [1] https://www.globalvillagespace.com/qatar-to-spend-a-whopping-6b-on-construction-for-fifa-2022/ [2] https://www.bloomberg.com/news/articles/2021-06-21/why-qatar-is-a-controversial-venue-for-2022-world-cup-quicktake [3] https://www.nbcnews.com/news/world/qatar-world-cup-exploited-migrant-workers-human-rights-rcna2889 [4] ​​https://www.hrw.org/news/2021/08/02/migrant-workers-and-qatar-world-cup [5] https://www.reuters.com/lifestyle/sports/fifa-holds-meeting-address-human-rights-concerns-ahead-qatar-world-cup-2021-12-14/

I have heard or read both MLS and USL officials claim that the leagues are not in competition with each other. Both leagues seem convinced of the upward trajectory of soccer in the United States and an apparently boundless population of new soccer fans. But is that true? This claim is particularly skeptical in light of the fact that MLS clubs are pulling their affiliates out of the USL and starting a separate league, MLS NEXT Pro. This article will explore the relationship between MLS and the USL and generally argue that reality is not quite what the two leagues claim it to be. As an initial matter, it is important to understand that soccer in the United States is organized unlike the other major professional sports leagues (NFL, MLB, NBA, and NHL). In 1978, Congress passed the Amateur Sports Act,[1] which granted what is today known at the United States Olympic and Paralympic Committee (USOPC) the authority to govern all Olympic-related athletic activity in the United States. As part of the statute, the USOPC is authorized to certify a national governing body (NGB) for each sport.[2] Pursuant to that authority, the USOPC has certified the United States Soccer Federation (USSF) as the NGB for soccer in the United States. While there are NGBs for football, baseball, basketball, and hockey in the United States, the professional leagues preceded those organizations and do not themselves derive their standing from those NGBs. In contrast, MLS and USL are formed pursuant to and governed by USSF Bylaws and Policies. Most significantly, USSF Policies dictate that there shall be three levels of men’s professional soccer (Divisions I, II, and III).[3] The Divisions are separated by different standards for cities of play, stadium sizes, financial viability, television broadcasts and more.[4] For example, a Division I league (such as MLS), requires at least fourteen teams and stadiums that hold at least 15,000 fans. Division II stadiums are only required to hold 5,000 people. While MLS is the only league ever certified as Division I, there has been a rotating cast of Division II and III leagues. Today, the USL Championship (USLC) is the sole Division II league while there are two Division III leagues: USL League 1 (USL1) and the National Independent Soccer Association (NISA) (which, to be honest, I’ve almost never heard anything about and seems precarious). Importantly, this current structure is the subject of ongoing litigation. The North American Soccer League (NASL), a Division II league from 2011 through 2017, has an ongoing lawsuit against USSF, MLS, and the USL, alleging that the three parties, in violation of antitrust law, illegally conspired to divide up the American soccer market. The NASL folded after it failed to obtain a preliminary injunction,[5] but the suit is ongoing (comments by MLS and USL that they are not competing would not seem helpful from an antitrust perspective). The NASL’s departure paved the way for the USLC to move from Division III to Division II and for the creation of USL1. With the NASL out of the picture, the American soccer market appeared to be stabilizing. In 2015, MLS folded its own Division III Reserve League and reached an agreement with the USL to coordinate on player development.[6] In the 2021 season, USLC had 32 clubs, 11 of which were owned, controlled, or otherwise affiliated with MLS clubs. USL1 had 12 clubs, five of which were affiliated with MLS clubs. Consequently, American soccer seemed to be morphing into a major/minor league structure similar to that which exists in baseball, hockey, and basketball (despite the USL’s strange position that it is not a “minor league”). Indeed, the USL seems to have had considerable success building smallish stadiums in small and mid-size cities as part of economic development plans, not unlike what has often happened in minor league baseball. I will pause here to note an important component of MLS clubs’ involvement in the USL. The MLS LLC agreement[7] contains a covenant not to compete, in which each MLS club agrees, among other things, not to “anywhere in North America, carry on, own, manage, join, operate or control, or participate in the ownership, management, operation or control of, or be connected as a director, officer, employee, partner, member, consultant or otherwise with, or permit its name to be used by or in connection with, any soccer-related business which, directly or indirectly, competes with or is otherwise similar to the business of [MLS].” As a result of this provision, MLS must approve each MLS club’s involvement in the USL. This provision could potentially be subject to antitrust attack, as rules prohibiting sports team owners from owning teams in other sports have previously been struck down.[8] Nevertheless, the rule stands. If it appears that American soccer has found a previously unattainable homeostasis, why is that being disturbed once again? The MLS and USL development partnership ended at some uncertain recent date (I would guess that the NASL case played a role in that). But then MLS announced that beginning in 2022, it is going to operate its own Division III league,[9] recently named MLS NEXT Pro. To populate the league, the clubs previously playing in either the USLC or USL1 and which were owned by or affiliated with an MLS club, will be leaving the USL immediately or in the near future.[10] The USL insists that it does not perceive the new MLS league as a problem but I see at least two major issues. First, the sudden departure of clubs from USL1 threatens the league’s licensing. The USSF’s standards require Division III leagues to have at least eight teams. Consequently, USL must – and seemingly is on track to – replace the departing MLS-affiliated clubs to maintain its sanctioned status. While this problem may be solved for now, Division III soccer clubs are not a stable (or profitable) business enterprise and there is sure to be turnover among the clubs in future years. Second, the USL and its clubs have now lost a significant part of its marketing cache by losing affiliation with MLS clubs. Part of the draw of seeing any minor league athlete is knowing that they are in the pipeline to one day reach the major leagues. And USL clubs undoubtedly sought to market their players as the future of MLS. This is largely no longer going to be the case. Young players will no longer use the USL as a stepping stone to MLS – instead, they will jump from their MLS Division III club to MLS. As a result, the USL begins to resemble independent minor league baseball. As most anyone knows, Minor League Baseball (MiLB) is a network of more than 100 teams competing at various levels of baseball below that of MLB. Most of these clubs are owned, controlled, or otherwise affiliated with MLB clubs. The MLB clubs provide economic support and marketing cache for the clubs to remain viable, while working to develop the MLB club’s next generation of players (the relationship between MLB and MiLB has been fraught in recent years but those issues are beyond this article). When affiliation agreements expire, the MiLB clubs scramble to find a new MLB partner. The failure to do so can be catastrophic to the club. To this point, some MiLB leagues – the independent leagues – have generally operated without any affiliation with MLB clubs. Not surprisingly, they have historically been far less stable, as both the leagues and the clubs in them come and go from time to time. Is that the future of the USL? Of note, I think there is another important fact cutting against the idea that there is enough soccer interest to go around for both MLS and the USL. None of these organizations is profitable. I went through the financial situation of MLS and its clubs in my article from last week, and suffice to say, there is no reason to believe that of the USL and its clubs is any better (in fact, it is almost certainly worse). Competition has proven fatal to numerous American soccer leagues and clubs in the past. I think the new MLS Division III league is a body blow to USL, whether it admits it or not. Time will tell whether it is a knockout. [1] 36 U.S.C. §§ 220501-220552. [2] 36 U.S.C. § 220521. [3] Policy 202-1, United States Soccer Federation, Inc., Policy Manual, available at https://www.ussoccer.com/governance/bylaws. [4] The 2014 USSF Professional Standards are available here: https://kennethrusso.com/ussf-professional-standards/. [5] See N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32 (2d Cir. 2018). [6] https://www.si.com/soccer/2015/05/26/mls-usl-partnership-player-development. [7] The 2012 version of the MLS LLC Agreement can be found at Nowak v. Major League Soccer, LLC, 14-cv-3503, Dkt. 23 (E.D. Pa. Apr. 23, 2015). [8] See North Am. Soccer League v. Nat’l Football League, 670 F.2d 1249 (2d Cir. 1982). [9] https://www.espn.com/soccer/major-league-soccer/story/4415507/major-league-soccer-to-launch-development-league-in-2022; MLS Next Pro: ‘We’re going to use this new league as a way to test concepts’ – The Athletic [10] https://theathletic.com/2136000/2020/10/13/mls-reserves-league-usl/

The last month in the world of college athletics has generated a lot of conversation. Every year around this time, coaches are hired and fired in what’s called the “coaching carousel.” However, this year’s cycle has been far more chaotic than one’s we’ve seen in recent years due to the movement from blue-blood program to blue-blood program and the significant amount of money being thrown around for some of these coaches. As a result of high-profile schools like USC and LSU firing their coaches so early in the season, several athletic directors and fans across the country feared their coach would leave their school for those jobs. While labeling a certain coaching job as a “top 5 job” is extremely subjective and varies by each individual coach, USC and LSU are widely considered to be among the best places to attract elite talent and compete for national championships on an annual basis. Therefore, we saw several coaches get massive contract extensions to levels that raised eyebrows from many in the industry. Despite only being in his second season at Michigan State and third overall as a head coach, Mel Tucker received a 10 year/$95 million contract extension to stay in East Lansing. James Franklin, whose Penn State Nittany Lions slumped down the stretch to a 7-5 record, netted a 10 year/$85 million extension for himself. Not to mention, Lincoln Riley and Brian Kelly, who got the USC and LSU jobs respectively, each inked deals at or near nine figures. Furthermore, Jimbo Fisher (Texas A&M), Lane Kiffin (Ole Miss), Mike Gundy (Oklahoma State), PJ Fleck (Minnesota), Dave Clawson (Wake Forest), Mark Stoops (Kentucky), Jonathan Smith (Oregon State), Jeff Hafley (Boston College), Jeff Traylor (UTSA), and Hugh Freeze (Liberty), have all signed contract extensions in the past three months as well due to the interest they’ve garnered from other schools. All this activity has generated a lot of attention on college athletics. So much so that Senator Richard Blumenthal from Connecticut said that the recent flurry of what he termed “outrageously astronomical” contracts for college football head coaches is getting the attention of Congress and could spark reform. Now, it’s worth mentioning that coaches deserve to be handsomely compensated. I happen to be a big proponent of coaches and love to follow them as they build each of their respective programs. From an X’s and O’s, recruiting, and relational perspective, the number of hours they put into their jobs cannot be understated. However, in this new era of college athletics with the advent of NIL, the Transfer Portal, and Alston, is solely investing heavily in a head coach’s salary enough to help maintain a sustainable program? I don’t think so. This week, the University of Texas announced an unprecedented NIL initiative where each offensive lineman at the University of Texas will receive $50,000 annually to promote selected charities through a newly created Horns With Heart non-profit entity. While Texas might’ve been the first school to publicly announce this type of NIL deal, they most certainly shouldn’t be the last. When it comes down to it, the teams that compete annually for national titles are the ones with the best players. You can have the best coaches, the coolest uniforms, the nicest facilities out there, but the lifeblood of college athletics is recruiting. Kirby Smart, the Head Coach of the CFP bound Georgia Bulldogs, put it bluntly with “There's no coach out there that can out-coach recruiting. I don't care who you are. The best coach to ever play the game better be a good recruiter because no coaching is going to out-coach players.” Therefore, whether everyone likes it or not, a big part of recruiting nowadays comes down to what a school can offer from an NIL standpoint. Now, a school cannot actually provide their student athletes NIL deals, but there are certainly things they can do to let all of their prospective recruits know they will be taken care of when they arrive on campus. Every school that competes at the highest level of college athletics have an abundance of well-connected donors and boosters who run successful companies. Since NIL was enacted on July 1st, we’ve seen no shortage of NIL deals for individual student athletes and a decent number of team-wide deals as well. But what’s going on at the University of Texas right now is something I think could be one of the biggest recruiting tools out there: Endowed NIL deals. Similar to how certain donors or corporations endow scholarships to college students at a university, the Horns with Heart non-profit entity is endowing NIL deals to the offensive lineman at Texas. Instead of donating money to either pay for a coach’s salary or to the athletic department in general, the army of boosters some of these big-time college athletic programs have could come together and create NIL endowments for players on their respective teams. This could be broken down by position group or other factors, but I think it could be the future of college athletics. It goes without saying that the top offensive lineman in high school right now took notice of the announcement of the $50,000 that could be coming their way if they went to Texas. Many around the country have asked how or if we can stop this trend of escalating coaching salaries and the arms race of facilities in college athletics. From a legal perspective, capping coaching salaries is probably not practical, but that doesn’t mean things cannot be done. From a booster’s perspective, taking the investment that has gone to paying for or buying out a coach’s contract and redistributing it into the hands of student athletes through endowed NIL deals like we’re seeing for the offensive lineman at the University of Texas could be an option where everyone wins. While they may not get the 1o year deals in nine figures, coaches will have an easier job recruiting to their schools with the NIL outlook they can point to (which in turn will likely lead to good results on the field). Student athletes, who are obviously prohibited from being paid directly by the schools, can earn money many people think they deserve for the revenue they generate. And although athletic departments might not like that their boosters aren’t investing directly in their hands, I think it’s clear that by getting the best student athletes to their campuses, they will benefit in the long run by winning games and competing for championships. Times are changing rapidly in college athletics. A decade ago, no one would’ve envisioned a non-profit entity offering $50,000 to a position group on a college football team. To succeed, people involved will need to adapt to the modern era or risk falling behind on the field, court, or pitch. To be clear, schools cannot contribute to these deals or explicitly guarantee recruits will get them, but they can certainly do their due diligence with their donors and boosters. Endowed NIL deals could be the best way to redistribute some of the money that many have described as being “carelessly thrown around” in terms of astronomical coaching contracts and luxurious facilities. It will be interesting to see how soon we’ll see more of these type of NIL deals in the future. Brendan Bell is currently a Junior at Auburn University majoring in Finance with aspirations to attend law school. He is passionate about the business of college athletics and would love to obtain a career in the industry some day. You can follow Brendan on Twitter @_bbell5