The Chip Ganassi Racing (CGR) Alex Palou situation has taken another turn. The Indystar has reported that CGR has filed a suit against Alex Palou for breach of contract in Marion County Supreme Court. Two weeks ago, Chip Ganassi Racing reported that they had resigned the 2021 IndyCar Champion to a new contract. Within a couple of hours of this being reported by Chip Ganassi Racing via social media, Palou announced on Twitter, "I did not approve that press release, and I did not author or approve that quote. As I have recently informed CGR, for personal reasons, I do not intend to continue with the team after 2022." ( Palou) Palou later stated that he was leaving Chip Ganassi Racing for Arrows McLaren at the end of the season. Palou along with new team Arrows McLaren have maintained that they have not done anything wrong and that there has been no breach of contract. In the past two-week stretch, the animosity between the team and driver has been high. It has been previously reported by NBC sports that Palou no longer has access to crucial data at and away from the track. Even more worrisome, it was rumored that after seeing Palou's tweet, CGR may have contacted other drivers to take over for Palou at the Toronto Grand Prix just a few days after the dispute. Court records show that Palou and ALPA Racing (Palou's racing entity) are listed as defendants. Palou was served summons at his residences in Spain and Indianapolis. Ganassi's lawyers have filed to seal the official complaint and four exhibits in the case. Lawyers for Chip Ganassi Racing have also filed an emergency motion for expedited discovery. Palou has announced that he plans to move to Arrows McLaren for the Sept. 11th race at Laguna Seca. This is believed to be why Ganassi has filed a prompt hearing motion on the preliminary injunction requesting that it is heard prior to the end of August. Chip Ganassi Racing when reached for comment by Racer.com stated “Alex Palou is under contract with Chip Ganassi Racing through the end of the 2023 season. He is a valued member of our team, and we will continue to support him in chasing wins, podiums, and IndyCar championships. As the result of a competing racing team improperly attempting to contract with him notwithstanding the clear terms of our contract, we are proceeding to legal process pursuant to the contract.” It is clear that both sides are not close to ending this dispute any time soon, all eyes will be on Palou as he competes for Ganassi this weekend in Indianapolis. 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 Palou, Alex (@AlexPalou) Twitter 12th July 2022 https://twitter.com/AlexPalou/status/1546996392912109568?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1546996392912109568%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fmotorsports.nbcsports.com%2F2022%2F07%2F12%2Falex-palou-mclaren-racing-chip-ganassi-f1-indycar-2023%2F Brown, N. (2022, July 27). Chip Ganassi racing sues Alex Palou in Marion County Superior Court amid contract dispute. The Indianapolis Star. Retrieved July 27, 2022, from https://www.indystar.com/story/sports/motor/2022/07/27/indycar-chip-ganassi-racing-sues-alex-palou-amid-contract-dispute/65383813007/ Ryan, N. (2022, July 13). Alex Palou says he'll leave Ganassi for McLaren in 2023 - NBC Sports. MotorSportsTalk | NBC Sports. Retrieved July 27, 2022, from https://motorsports.nbcsports.com/2022/07/12/alex-palou-mclaren-racing-chip-ganassi-f1-indycar-2023/ Pruett, M. (2022, July 27). Ganassi team sues Palou. RACER. Retrieved July 27, 2022, from https://racer.com/2022/07/27/ganassi-team-sues-palou/

Last week, stories emerged revealing that on July 14, Jason Stahl, executive director of the College Football Players Association (CFBPA), met with Penn State football players. News of the meeting between the CFBPA and Penn State football players, which included a list of demands and information regarding unionizing, led to a call between Stahl and Big Ten commissioner Kevin Warren. While the CFBPA is not a union, if the Big Ten does not entertain the CFBPA’s demands, the CFBPA may explore forming a union, which would allow the union to collectively bargain for reforms. About the CFBPA The CFBPA is an organization “founded to represent past, present and future college football players nationwide.” By organizing college football players, the CFBPA is a member-led organization pushing for changes in college football. The CFBPA currently has three demands to the Big Ten, including sharing media revenue and enhanced medical care. Notably, the demands come at a time when the Big Ten is in the midst of negotiating a new media rights deal, and Division I is being transformed after the NCAA adopted a new constitution in January. Previous Attempts to Unionize The CFBPA’s talk of unionizing should remind fans of Northwestern University (NU) football players’ attempt to unionize through the College Athletes Players Association (CAPA) and supported by United Steelworkers. Beginning in 2014, NU football players formed CAPA and began pushing for reforms, including enhanced medical care. Initially, the regional office of the National Labor Relations Board (NLRB) ruled that the football players were employees with a right to unionize. Specifically, Chicago regional director Peter Sung Ohr found that the athlete-university relationship resembles an employee-employer relationship. Northwestern University appealed the regional director’s decision. Instead of overturning the decision, the NLRB declined to rule on the case, citing a lack of jurisdiction over state-run colleges and universities. Thus, ending the football players’ union efforts. Changing Landscape As stated previously, Division I is currently transforming, including navigating allowing athletes to profit off their name, image, and likeness, and the United States Supreme Court ruled in NCAA v. Alston that NCAA rules limited education-related compensation violated the Sherman Antitrust Act, recognizing that the NCAA is a profit-making enterprise. Most importantly, On September 15, 2021, the NLRB’s General Counsel, Jennifer Abruzzo, issued a memorandum taking the position that student-athletes are employees under the National Labor Relations Act and thus, afforded all statutory protections. While a memorandum is merely advisory, it does yield support for the CFBPA’s position. Other cases regarding college athletes’ status are ongoing, including Johnson v. NCAA, which is waiting on a ruling from the U.S. Court of Appeals for the Third Circuit on the following question: “Whether NCAA Division I student athletes can be employees of the colleges and universities they attend for purposes of the Fair Labor Standards Act, solely by virtue of their participation in interscholastic athletics.” Therefore, a lot has changed since Northwestern University football players attempted to unionize in 2014. With the changing landscape, any attempt to unionize may succeed. Path Forward On Tuesday, July 26, at Big Ten media day, Commissioner Warren made it clear that the Big Ten has formed a student-athlete advisory group that will discuss revenue sharing and the college athletic environment. Thus, the efforts of Penn State football players are already paying off. Will conversations between the conference and players lead to changes? Hopefully, it will. If not, the CFBPA may take a chance at forming a union. 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

As a fan of a sports team, a championship win is a pinnacle of happiness, guaranteeing a lifetime of memories, countless stories to pass along to friends and family, and a healthy amount of money spent at cash registers to commemorate the occasion. In June 2019, the St. Louis Blues defeated the Boston Bruins to win the 2019 Stanley Cup on Boston’s TD Garden home ice, while at the same time, Aaron Stock–a Wentzville native, Richmond Heights firefighter, and Blues fan–was celebrating at a watch party at the Blues’ Enterprise Center.[1] As easy as it is to imagine wanting to preserve memories of the greatest year your team has ever had, try to then imagine how you would feel if your favorite team was seemingly gaslighting you while selling you a bill of goods. This appears to be the origin story of a lawsuit that is now on the Conduct Detrimental radar. Stock appears to have initially filed suit in St. Louis County on October 14, 2021,[2] but the case was transferred to the City of St. Louis on July 8, 2022.[3] As of this writing, a jury trial is scheduled for January 30, 2023, but this assumes that there are no delays in deposing witnesses and that the parties do not otherwise settle the matter. Aaron Stock has purchased thousands of dollars of St. Louis Blues memorabilia. Now, he's suing the team saying some of it was mislabeled.[4] According to Katie Kull’s reporting on this lawsuit, Stock was the winner of a Blues-sponsored auction in October 2019, bidding almost $1700 for leg pads attributed to Stanley Cup-winning starting goaltender Jordan Binnington–and also attributed to the 2018-19 Cup-winning season.[5] Stock appears to have subsequently attempted to “photo match” his memorabilia, only to come to a disappointing conclusion that his Binnington pads were from the year after the Stanley Cup win (the 2019-20 season)--instead of the 2018-19 season as seemingly advertised. “Photo matching” refers to noticing unique identifying marks or characteristics on game-used artifacts, and locating that memorabilia with the exact markings in-game photographs. This disappointing Binnington discovery appears to have uncovered similar stories about memorabilia from other key Blues players, such as Cup-winning backup goaltender Jake Allen and star winger Vladimir Tarasenko: the items were apparently stated to have been worn in the 2018-19 Cup year, but no photos existed to corroborate the Blues’ statements about their use in that season. When the product description hinges upon game use in the championship year, a team’s alleged mistake should be a key fact for a jury to decide! As a collector of game-used memorabilia myself, I can confirm that mistakes can happen. Some teams offer a certificate of authenticity (COA) accompanying the memorabilia that they sell, some teams do not offer any COA but will still include an item description as to when and by whom the equipment was used, and some teams will only hold an occasional garage sale where everything is sold “as-is.” When a COA accompanies a piece of game-used memorabilia, collectors will conclude whether the COA is corroborated by photo matches, or whether there is more to the story than that. I have items in my collection that photo match to more games than the COA and/or the auction item descriptions offer, to fewer games, or sometimes to simply an incorrect game. Then, if the COA proves to have wrong information, the collector as buyer probably has to choose between living with an expensive “buyer beware” lesson or else seeking recourse in other ways. For the sake of some personal examples, I own a game-used helmet that I won from a Montreal Canadiens auction.[6] This white helmet was sold as “Ben Chiarot’s 2020 playoffs used helmet.” The helmet photo matches quite obviously to the 2020 playoffs, and it also photo matches just as obvious to many regular season games before the 2020 playoffs–at least one of them, I attended in person. Here, as a collector, I am happy because the photo matches are better than advertised, so I will never complain! Meanwhile, I also own a Corey Schueneman stick that is authenticated by the Habs as used in LGBTQIA+ Pride Night warmups on April 16, 2022, prior to the game against the Washington Capitals.[7] In this auction, there were no photos of the exact stick for bidding, but I knew Schueneman was pictured with a Pride-taped stick at this warmup on the Canadiens’ Instagram page, so I bid on it hoping it would photo match. Interestingly, it clearly does not photo match Pride warmups, but it does conclusively photo match to the previous night’s game instead, on April 15, 2022, against the New York Islanders. My best guess is that this stick was used on the 15th, retaped so it was ready for warmups on the 16th, and whether or not it was actually used in warmups on the 16th, it was given a COA and sold to me. This is a slightly odd fact pattern, but with a photo match to regular season game action, this is better than a warmup stick, so once again, I will not complain about this piece of memorabilia either! Back to the St. Louis litigant. Stock’s allegations appear to be more than just one accident at auction, because he offered his concerns and objections to the Blues to General Counselor Michael Lowenbaum in May 2020, and Lowenbaum admitted deficiencies in the authentication system at a July meeting.[8] Since then, instead of overhauling their authentication processes, refunding Stock, or even arranging for autograph sessions to keep Stock out of the courthouse, the Blues allegedly continued selling “fake goods” such as a Carl Gunnarsson “game used” helmet with no stickers or any other signs of use, and ultimately instructed Stock to stop bidding on Blues items.[9] Now, Aaron Stock has thousands of dollars worth of St. Louis Blues game-used memorabilia–some accompanied by incorrect or intentionally misleading COA’s, and a lawsuit against his favorite team. Whether his collection can still remind him of the 2019 Stanley Cup championship, or whether it is now his personal tort museum, will be shaped by the future fate of these legal proceedings. Mike Engle is an associate attorney for the United States federal government. During his time at Hofstra Law School in New York, his articles were published in the Hofstra Labor & Employment Law Journal and the DePaul Journal of Sports Law & Contemporary Problems. He was also an invited guest on the now defunct vlog Law & Batting Order. Mike resides in Upstate New York with his wife, Gillian, and their daughter, Esther. Interact with him on Twitter @EngleLaw29, but only during off-duty hours and preferably not during Montreal Canadiens games! [1] Kull, Katie, Diehard Blues fan sues team, claims they sold thousands in mislabeled merchandise, LONGVIEW NEWS-JOURNAL (July 25, 2022), https://www.news-journal.com/diehard-blues-fan-sues-team-claims-they-sold-thousands-in-mislabeled-merchandise/article_36e01e8e-db37-5abd-9edd-f76bf8956ca7.html [2] Docket No. 21SL-CC04831 (accessed July 25, 2022), https://www.courts.mo.gov/casenet/cases/header.do?inputVO.caseNumber=21SL-CC04831&inputVO.courtId=CT21 [3] Docket No. 2222-CC06810 (accessed July 25, 2022), https://www.courts.mo.gov/casenet/cases/header.do?inputVO.caseNumber=2222-CC06810&inputVO.courtId=CT22 [4] Kull, supra note 1. [5] Kull, supra note 1. [6] Engle, Michael, Ben Chiarot 2020 Helmet, GAME USED AUTHORITY (accessed July 25, 2022), https://gameusedauthority.com/guauth.com/ci/p0zk. [7] Engle, Michael, Corey Schueneman 2022 Hockey Stick, GAME USED AUTHORITY (accessed July 25, 2022), https://gameusedauthority.com/guauth.com/ci/p0jh6g==. [8] Kull, supra note 1. [9] Id.

Since the outbreak of the Russian invasion in Ukraine, FIFA has attempted to demonstrate solidarity by assisting foreign nationals inadvertently caught in the middle of war. On June 21, FIFA issued a ruling allowing foreign players and coaches at Ukrainian clubs the opportunity to unilaterally suspend their contracts until June 30, 2023, unless a mutual agreement could be found by June 30 of this year. For one of Ukraine’s most prestigious clubs, however, this ruling would hold ominous repercussions, and they have responded accordingly. Last week, Ukrainian club Shakhtar Donetsk filed papers in the European Court of Arbitration for Sport (CAS) to appeal the most recent update of FIFA’s ruling, seeking €50million in damages from soccer’s governing body. In its filing to the CAS, Shakhtar has also requested FIFA be ordered to pay damages to the club and cover all costs related to future arbitration proceedings. Shakhtar Donetsk is one of Ukraine’s most successful clubs, having won the Ukrainian championship an impressive 13 times and represented Ukraine in the UEFA Champions League on a regular basis. Nevertheless, an inherent trait for which the club is known around the world is their propensity to employ foreign players within the team – especially those from Brazil. Currently, Shakhtar employ 14 foreign players at the club, so any ruling issued by FIFA that allows foreign players to leave Ukraine without their clubs recollecting a transfer fee would hold disastrous consequences for said clubs’ incoming revenue. Shakhtar’s revenue streams have already been devastated as a result of the Russian invasion. In order to raise funds necessary to maintain the financial stability of the club, Shakhtar were in active discussions to sell their foreign players to other clubs. Shakhtar were not oblivious to the notion that their foreign players would not desire to return to play in the middle of an active war zone. Nevertheless, the club still felt entitled to recover transfer fees for the sales of their players. Unfortunately for Shakhtar, however, FIFA’s June ruling meant that they had 9 days to close all pending deals before the players would be allowed to move to the buying clubs absent of a fee. For those unaware with the nature of transfer negotiations in global soccer, the process of sealing a transfer can be incredibly tedious. Clubs first must meet at a common valuation for the player in question. Once the valuation has been met, the deal is then subject to the personal terms of the contract, which the buying club must negotiate with the player’s agent or team of representatives. Needless to say, the closing of transfer deals for just a single player is a process that typically spans the length of an entire transfer window, so to mandate that a club be able to negotiate the sales of 14 players in 9 days is an unattainable proposition for any club. Additionally, the players’ agents and the buying clubs also knew that they could wait until June 30 to engage in any transfer discussions with Shakhtar in order to avoid paying the Ukrainian club a transfer fee. Consequently, Shakhtar lost out on millions of Euros worth of incoming revenue, forming the basis of their compensatory claims against FIFA in the CAS. For Shakhtar’s chief executive, Sergei Palkin, FIFA’s ruling is a gross indication of apathy displayed toward the financial difficulties Ukrainian clubs currently face. With FIFA’s decision, Shakhtar are now unable to collect funds they are rightfully owed for player sales and that they require to continue paying the instalments owed to other clubs for the previous transfers of their current players. Palkin has even stated that current FIFA president Gianni Infantino has failed to respond to multiple letters addressing the matter at hand, leaving one of most recognizable Ukrainian clubs to sit in financial anguish. According to Palkin, the club will have all papers filed to the CAS by August 15 and will take legal consultation to understand all their options in pursuing their claim against FIFA. It will certainly be interesting to observe the steps taken by both FIFA and the CAS in this matter. Since war began in Ukraine, FIFA has been quick to emphasize their support for Ukrainian fans and players, yet Ukraine’s clubs have simultaneously felt the financial sting of neglect. Now, Shakhtar’s legal claims against FIFA indicate that clubs are ready to fight back. Bryce Goodwyn is an incoming 1L at Regent University School of Law. While at Regent, he will be a member of the Honors Program and will work as a Dean’s Fellow during his 1L year completing research and administrative work. He also formed part of the recently established National Sports Legal and Business Society as the Regent University Chair. He can be found on Twitter @BryceGoodwyn and on LinkedIn as Bryce Goodwyn.

Despite missing the National Football League (“NFL”) playoffs this season, the Denver Broncos have been dominating news headlines recently because of an issue with an asserted right of first refusal, commonly called a “ROFR” in the legal and real estate communities, in a sale of the team. Team officials and ownership were apparently blindsided (pun definitely intended) when ROFR Holdings Ltd., a Canadian holding company, sent a letter through its attorney informing the organization that if it intended to sell the team, which the organization’s leadership had openly discussed during this NFL season, that ROFR Holdings Ltd. would assert its right of first refusal. But what exactly is a right of first refusal? Simply put, a right of first refusal is a bargained for, contractual right that allows a party – ROFR Holdings Ltd., in this case – to, in a transaction, step into the shoes of another interested party who has made an offer and either consummate the transaction on the terms proposed by that other interested party or refuse to consummate the transaction on those terms, which would allow that other interested party to consummate the transaction. For example, if you had a right of first refusal to buy my car, I would be well within my rights to offer to sell my car to Peyton Manning for $10,000, but before I could actually sell Peyton the car, you would be able to see that I had an offer of $10,000 to purchase my car and could decide if you wanted to buy my car for $10,000 (in which case the former Super Bowl MVP would have to find a used car elsewhere) or decide that the offer is not worth it (in which case Peyton Manning would be able to buy my car). Having a ROFR to buy my car versus having a ROFR to buy an NFL franchise is clearly a much more valuable contractual right, and something that the Denver Broncos organization was concerned about in anticipation of a possible sale of the franchise. The alleged ROFR itself dates back to the 1984 sale of the team by Edgar Kaiser to Pat Bowlen. As part of the sale, Kaiser retained a right of first refusal for the team. Kaiser has since passed, as has Bowlen, but before his passing, Kaiser assigned the ROFR to ROFR Holdings Ltd., which his estate owned in part. Or at least that is the factual scenario that ROFR Holdings Ltd. asserted.[1] To clear things up before any sale was announced, the Denver Broncos organization went on the offensive. The organization filed a lawsuit asserting that the right of first refusal was no longer enforceable by ROFR Holdings Ltd. because it was improperly transferred. The court agreed, with the judge stating that the ROFR “is no longer valid or enforceable in any respect.”[2] While the decision may not seem like much of a win for the Denver Broncos, after all, even with the ROFR, the organization would be able to complete a sale to some party at the end of the day, having the ROFR declared unenforceable is in reality a big win for the organization: the more parties involved in negotiations and discussions (and the ROFR adds at least one more party to all negotiations), the more money that goes to attorneys and other advisors instead of into the pockets of the owners. Plus, having a party with a ROFR can make it harder to pit potential buyers against each other in an effort to increase the ultimate value of the franchise. For a great discussion of the business terms of the imminent sale of the Denver Broncos franchise, which is now primed to be one of the most expensive sales of a sports franchise ever, check out Joseph Pompliano’s post on Huddle Up. [1] Court Ruling Sets the Stage for a Possible Denver Broncos Sale - WSJ. [2] Court Ruling Sets the Stage for a Possible Denver Broncos Sale - WSJ.

With the 2022 Winter Olympics Games set to begin in less than six weeks, the status of the men’s ice hockey tournament has as little clarity as any sport in the Games. It was only December 22, 2021 when the National Hockey League (NHL) announced that it would not be sending its players to Beijing due to the rising cases of COVID-19 in the NHL, an announcement that was particularly disappointing after it was announced approximately three months earlier that the NHLers would be returning to the tournament after being held out of the 2018 Winter Olympics in South Korea. While traditional hockey powers scramble to piece together a roster, there is one team that knows—for the most part—who will be taking the ice and wearing their nation’s colors in February: China. As one can imagine, China is far from a hockey superpower (currently ranked 32nd in the world); however, they received its first berth to the Olympic ice hockey tournament because it is hosting the Games. Even though the Chinese team is much farther along in finalizing its roster, this is not to say that China has not had its issues in forming a competitive team since it was elected to host the Games in July 2015. In fact, it was only a few months ago that the International Ice Hockey Federation (IIHF) considered removing China from the tournament due to "insufficient sporting standard.” The difficulty in fielding a competitive squad is mainly due to the historical lack of ice hockey talent in China. South Korea faced the same issue entering the 2018 tournament but were able to strengthen its roster by naturalizing a handful of foreign players from North America that were playing in Asia League Ice Hockey (ALIH) thanks to an amendment in the country’s “Nationality Act”, which permitted foreigners to naturalize in South Korea if they can contribute to the national interests of the nation, including those who had excellent ability in sport. In addition, anyone that naturalized was able to keep their original country’s passport. The South Korean team was not a powerhouse by any means, going winless and being outscored 19-3 in the 2018 Games, but was ranked 21st in the world heading into the tournament. China attempted to jumpstart its hockey program by using a similar strategy as the South Koreans with the creation of the Kunlun Red Star, a China-based professional team slated to compete in the highly competitive Kontinental Hockey League (KHL) starting in the 2016-17 season. Being the only high-level professional franchise in China after the dissolution of the ALIH’s China Dragon after the 2016-17 season, Kunlun became the proxy training ground for the future Chinese hockey squad. The idea of potentially playing in the Olympics drew many North American hockey players to Kunlun, many of whom have Chinese heritage, including former NHLers Brandon Yip and Spencer Foo. However, Kunlun has not faired well in the KHL, finishing with a losing record in its previous four seasons and are currently dead last in the KHL this season. In addition, the team has been forced to relocate to the suburbs of Moscow the past two seasons due to the COVID-19 pandemic. The current make-up of the Kunlun roster gives us a good idea of who will be suiting up for the Chinse squad on February 10 against the United States. It has been projected that more than half of the Chinese squad will comprise of players born outside of China. However, the roster has been in flux in the last few weeks, mainly in part to the IIHF’s eligibility standards and China’s naturalization laws. Pursuant to the IIHF’s rules, to participate in the Olympic ice hockey tournament players must, in short: (a) be under the jurisdiction of an IIHF member national association; (b) be a citizen of the country they represent; and (c) (i) prove that they have participated for at least two consecutive hockey seasons in their new country and have neither transferred to another country nor played within any other country, or (ii) if the player has previously participated in IIHF for another country, such player has participated for at least four consecutive years in the national competitions of their new country. This standard has been made even more difficult due to the strict naturalization laws in China, which has some of the most difficult immigration standards in the world. While China’s “Nationality Law” generally allows foreigners to become naturalized citizens if they have relatives who are Chinese citizens, have settled in China, or “have other legitimate reasons,” it is widely understood that if one does not have a relative who’s a Chinese citizen and lives in China their chances for naturalization are essentially zero. Further complicating this issue is the fact that China, unlike South Korea, does not recognize dual nationality, meaning any person that naturalizes to China must relinquish their previous country’s passport. According to Mark Dreyer of China Sports Insider, the idea of giving up a Canadian or U.S. passport and becoming a Chinese citizen has caused some of the prospective Olympic players on Kunlun’s roster to hesitate in joining Team China. During this same report, Dreyer noted that Canadian-born defenseman Victor Bartley (121 NHL games) left the Kunlun team to go back home at the end of November 2021. While it is unclear as to why Bartley left the program after being a staple on the Kunlun blueline for three seasons—the Chinese media and team communications staff has been tightlipped, as one can imagine—it is possible that Bartley left to concerns over his future citizenship. However, it is possible that Bartley would not have been eligible to play for Team China anyways because Bartley represented Canada in the U18 World Junior Championships and only played three seasons for Kunlun, or the fact that Bartley played in Poland during the 2020-21 season before returning to Kunlun for this third season. China’s goaltending situation also appears to be in flux. Of the five goalies to appear in net for Kunlun this season, only one was born in China (Pengfei Han, who has appeared in one game this season). Earlier this season, the bulk of the goaltending duties was handled by Russian-born Alexander Lazushin; however, his contract was (according to the Kunlun Twitter account) mutually terminated because “his naturalisation case was out of criteria because of breaks in playing for Chinese teams.” While Lazushin played the entire 2018-19 season for Kunlun, he spent the entire 2019-20 season playing for the KHL’s Lokomotiv Yaroslavl and appeared in only one game for Kunlun last season before returning to Kunlun full time this season. This leaves Canadian-born Paris O’Brien and American-born Jeremy Smith (2nd Round draftee in 2007 NHL Draft), along with Han, as China’s legitimate options between the pipes. O’Brien appears to be a lock for the Olympic roster having played for teams in China the last four seasons and being listed as having Chinese citizenship on the KHL website, while Smith’s situation seems to be more up in the air considering he represented the U.S. in the 2008 World Junior Ice Hockey Championships, is only in his third season with Kunlun, and is currently listed as having American citizenship on the KHL website. While the IIHF has refused to confirm which Kunlun players are eligible for China’s roster, it does appear that China’s roster is close to being set with Foo, Kunlun’s leading scorer, and Yip, Kunlun’s captain, leading the way. Foo, the former 2017 Hobey Baker finalist at Union College, is in his third consecutive season with Kunlun, while Yip, a 2009 national champion at Boston University, played three consecutive seasons for Kunlun from 2017-18 through 2019-20 before playing in Finland in 2020-21 and returning to China for the 2021-22 campaign. Both Canadian-born players also have Chinese heritage and are listed as Chinese citizens on the KHL website. Others expected to be on China’s roster include Parker Foo, a draft pick of the Chicago Blackhawks and Spencer’s younger brother, and American-born Jake Chelios, the son of NHL Hall of Famer Chris Chelios. Even though the NHL players will not be participating in this year’s Games, most experts still expect the Chinese team to get blown out by the Canadians, Americans and Germans in the preliminary round. However, the Chinese team has been playing together for a while now, which could give them some advantage in the tournament. *Daniel S. Greene is an attorney based in Syracuse, New York. He has been published by The Sports Lawyers Journal and New York State Bar Association’s Entertainment, Arts and Sports Law Journal, and has guest lectured on various sports law topics at Syracuse University's College of Law and School of Sport Management, as well as at Cazenovia College.

The legal relationship between MLS and its players is complex and something I will explore in a future article in my series of articles on MLS. The present article concerns legal issues in MLS as to non-players employed by the clubs,[1] including but not limited to coaches, trainers, executives, and sales staff. To understand the issue at hand, a primer of antitrust law is helpful. Section 1 of the Sherman Act (1890) prohibits “every contract, combination or conspiracy in restraint of trade.”[2] The Supreme Court subsequently clarified that only “unreasonable” restraints are illegal.[3] Most Section 1 cases are analyzed through the “rule of reason,” a three-step, burden-shifting framework: (1) the plaintiff must first show that the challenged restraint has a substantial anticompetitive effect; (2) if the plaintiff carries that burden, the defendant must show a procompetitive rationale for the restraint; and, (3) if the defendant satisfies its burden, the plaintiff must show that the procompetitive benefits can be achieved through less restrictive means.[4] Importantly, since antitrust law is concerned with economic competitiveness, the challenged restraint and its procompetitive and anticompetitive traits must be analyzed within a relevant market.[5] As is hopefully obvious, labor markets, i.e., the markets for employees, are subject to antitrust laws.[6] Finally, antitrust law remains a powerful remedy by virtue of the fact that the law calls for treble (triple) damages as well as attorney’s fees.[7] I turn now to three practices of concern within MLS.[8] First, on an annual basis, MLS collects data from each club about the club’s personnel, including, generally, the types of departments, the number of people in each department, the types and number of executives, and, most importantly, the compensation paid to employees.[9] Second, with the help of the data it collects, MLS assists clubs in negotiating with their employees as to compensation and position, e.g., by telling the club the range of and average salaries for particular positions or where a particular employee’s salary ranks as compared to his peers at other clubs. Third, MLS generally requests or requires that clubs interested in hiring an employee away from another club, contact that club and advise it of their interest in the employee. I believe these practices have the effect of restraining the non-player labor market in MLS, potentially in violation of antitrust law. It should be clear that MLS’ collection and dissemination of data about club personnel salaries suppresses the salaries of club personnel. Clubs should be competing for personnel, offering a better position or pay to entice an employee from one club to another. However, clubs are able to use the salary data from MLS both in making offers to new employees and in negotiating with their current employees. For example, if an athletic trainer requests a raise, the club may be able to learn from MLS that the athletic trainer is already the tenth highest paid athletic trainer and that the trainer’s salary is only $15,000 less than the highest paid athletic trainer in the league. With that information in hand, the club can comfortably throttle any raises offers made to the athletic trainer and be less concerned about responding to the athletic trainer’s demands since they know the boundaries of the market. Moreover, if another club wanted to hire that athletic trainer, the club will know how much the highest paid athletic trainer currently receives and cap its offer accordingly. This is the type of information sharing that the Federal Trade Commission (FTC) and Department of Justice (DOJ) warn against. Specifically, those agencies have explained that when it comes to the “the sharing of competitively sensitive information – such as recent, current, and future prices, cost data, or output levels,” the agencies are “concern[ed]” that doing so “may facilitate price or other competitive coordination among competitors” in violation of the antitrust laws.[10] Salaries are prices in the labor market. And the sharing among MLS clubs of salaries has the purpose and effect of facilitating price coordination among clubs which are competing for personnel, to the detriment of that personnel. Next, turning to MLS’ instructed practice of requiring clubs to speak with the other club before hiring away an employee, this too potentially runs afoul of DOJ and FTC guidance. As explained by those agencies, “[a]n individual likely is breaking the antitrust laws if he or she: agrees with individual(s) at another company about employee salary or other terms of compensation, either at a specific level or within a range (so-called wage-fixing agreements), or agrees with individual(s) at another company to refuse to solicit or hire that other company’s employees (so-called ‘no poaching’ agreements).”[11] Indeed, Duke University recently agreed to pay $19 million to settle allegations it had entered into a no-poach agreement with the University of North Carolina concerning faculty members. While MLS’ practice may not be an explicit “no poach” agreement, it substantially chills the labor market within MLS. Club personnel will be understandably reticent to seek out new employment with another MLS club if their current employer is going to find out – that is a surefire way for that employee to be viewed as disgruntled and/or expendable. MLS would likely dispute that it has its own labor market for purposes of antitrust law (as club employees often come from many other industries). But undoubtedly many MLS club employees move around within the league (or want to) after having learned certain MLS-specific skills or knowledge at a club. Antitrust cases are notoriously complex and difficult to prove, often requiring extensive and contested economic analysis. MLS would for sure have defenses to the issues I have raised, including but not limited to the relevant market, whether there is actually any restraint agreed upon by the clubs, whether the clubs’ conduct is merely “parallel,”[12] and that the clubs’ sharing of data is reasonably necessary for the operation of the MLS joint venture. Nevertheless, I think I have set forth above a prima facie case of concerning conduct which unnecessarily and unfairly restricts the pay and movement of non-player personnel within MLS. Christopher Deubert is Principal at Law Office of Christopher R. Deubert, Esq. You can see more at www.deubertlaw.com. [1] Some may be familiar with MLS’ status as a “single-entity” in which MLS employs the players, potentially providing an antitrust defense. However, non-player personnel are employed by clubs and thus the single-entity argument is not available. [2] 15 U.S.C. § 1. [3] Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 87 (1911). [4] See NCAA v. Alston, 141 S.Ct. 2141, 2160 (2021). [5] Id. at 2151-52. [6] Id. at 2154. [7] 15 U.S.C. § 15. [8] It is my understanding that other sports leagues engage in the same or similar practices but have chosen to focus on MLS as part of this series of articles. [9] See Section 15 of the the MLS Constitution, available as Exhibit B to Utah Soccer, LLC d/b/a Real Salt Lake’s Motion to Compel Arbitration and Dismiss or, in the Alternative, Stay the Proceedings, Petke v. Utah Soccer, LLC, Case No. 190907265 (Utah Dist. Ct. Oct. 7, 2019). [10] Dep’t of Justice and Fed. Trade Comm’n, Antitrust Policy Statement on Sharing of Cybersecurity Information (Apr. 10, 2014), at 4-5 n.12, available at https://www.ftc.gov/public-statements/2014/04/department-justice-federal-trade-commission-antitrust-policy-statement. [11] Dep’t of Justice and Fed. Trade Comm’n, Antitrust Guidance for Human Resource Professionals (Oct. 2016), at 3, available at https://www.justice.gov/atr/file/903511/download. [12] See, e.g., Kelsey K. v. NFL Enters., LLC, 254 F. Supp. 3d 1140 (N.D. Cal. 2017).

Part of what makes sports so special and different from almost every form of entertainment is the element of hope. Even if you’re team is buried in the standings, there’s always optimism for next year and the hope that a championship is coming down the road. But over time, if the results aren’t there and the losses continue to add up, change becomes inevitable and new leadership is necessary. All the hope for the present turns into hope for the future and fans begin to wonder what great coach or GM their team can hire to turn things around. Over the past few months, we’ve seen some moves on the coaching front that have made national headlines. In college football, 28 schools have hired new head coaches so far in one of the craziest “coaching carousels” we’ve seen to date. USC, a historical powerhouse that has lost its elite status recently, was able to pry Lincoln Riley away from another blueblood in Oklahoma. After firing Ed Orgeron less than 2 years removed from a national title, LSU poached Brian Kelly away from Notre Dame, one of if not the biggest brands in college athletics. Did Oklahoma or Notre Dame have any way of knowing that USC and LSU respectively were coming after their coaches? No, and the reasoning for that is that hiring process in college sports doesn’t abide by the same formalities that they do in pro sports. This came to light by recent news coming out of the New York Mets quest to fill their out coaching staff for their new manager, Buck Showalter. Reports from the Athletic’s Ken Rosenthal over the past week stated that the Mets were denied permission to interview Padres Quality Control Coach, Ryan Flaherty and Giants Co-Pitching Coach, Andrew Bailey for their vacant bench coach position. In Major League Baseball, teams are required to “ask permission” to interview coaching and executive positions. Normally, when it involves a promotion (i.e. a bench coach interviewing for a manager or an Assistant GM interviewing for a GM), a team will grant the rival team the right to interview. But they don’t have to. Because we are past the “normal” hiring cycle in the MLB offseason, the Padres and Giants decided not to grant the Mets the permission to interview their respective coaches. Even though the Mets were offering what would be a promotion for both Flaherty and Bailey, MLB rules permit a team from blocking another team from interviewing their staff members if they are under contract. If this were in the NFL, the Padres and Giants would not be allowed to deny the Mets this permission. Current NFL rules state that a team can only block a candidate from interviewing for a position that would be a lateral move and cannot stop assistant coaches from interviewing for a position that would be a promotion. MLB is able to do this mainly because of their antitrust exemption it’s had since 1922’s “Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs” case. While Flaherty and Bailey haven’t released public animosity towards their current employers from blocking them the opportunity to advance in their coaching careers, many around the game believe they would’ve jumped at the opportunity to head to New York. Flaherty played under Buck Showalter in their time together in Baltimore and Bailey would’ve returned closer to his home roots while working under new GM Billy Eppler, who gave him his first coaching opportunity a few years ago. All of this goes to show just how different the hiring process is between college sports and professional sports. Baseball’s antitrust exemption is widely believed to be outdated and could be in danger moving forward. If a coach sees a better opportunity for their careers, themselves, and their family, they should be able to take that opportunity. Oklahoma and Notre Dame couldn’t block Lincoln Riley and Brian Kelly from interviewing for another job, and maybe that’s the way it should be. If the buyout language is clear and honored, a coach, just like any of us, should be able to advance in their chosen profession.

Cards. You gotta know when to hold ‘em, know when to fold ‘em. Not many days long after the clock struck midnight in 2022, Fanatics struck a deal of their own with Topps, a company synonymous with baseball cards and baseball history, as reported by Forbes, ESPN, Sportico and more. They bought the company for a price tag of $500 million, along with Topps’ expiring license to exclusively produce trading cards with Major League Baseball logos and trademarks. Topps has an extensive 70-year legacy as the manufacturer of baseball cards dating back to 1949 when they released a set of “Magic Photo Cards” in their bubblegum packs, in which images appeared on cards when exposed to water and light. These cards showed now-historic greats, such as… “The Sultan of Swat, The King of Crash, The Colossus of Clout, Babe Ruth, the Great Bambino!” Fun fact: Sandlot director, David Mickey Evans, was born in 1962. In case you need a reminder of how long traditional baseball cards have been around, remember that they pre-date the creator of one of the most iconic baseball movies of all time. Fast forward through rosters upon rosters of players, the historic sales of highly valued cards and the proliferation of the digital age, there now exists a thorough history with Major League Baseball and Fanatics to unpack, much like that of a newly released Topps Annual Set. 1951-1952: Topps Produces and Releases the First Full Set of Baseball Cards Until 1952, Topps had only released single baseball cards at a time, never a full collection. The first annual set released in 1952 featured 407 cards in total that were released in batches. Through the present day, this annual set has become a staple for collectors with each passing season. These anticipated sets continued to grow in popularity and caused people to fall in love with collecting baseball cards and of course, the game of baseball. “Generations of baseball fans have grown more connected to the game through collecting baseball cards. We look forward to partnering with Topps to restore baseball cards as the game’s premiere collectable.” -Bud Selig January 2010: Topps Granted Exclusive MLB License Topps was granted the exclusive rights to produce baseball cards featuring Major League Baseball logos and trademarks. Reports of this exclusive license started circulating in the summer of 2009 with the exclusivity starting on January 1, 2010. This made Topps the first exclusive multi-year license holder of MLB intellectual property to be reproduced on baseball cards, stickers and other collectibles. The duration of the license was never disclosed. Why give exclusivity to one brand? Then-Commissioner Bud Selig wanted to give Topps market exclusivity, effectively shutting out other competitors in the market, such as Panini and Upper Deck: “Generations of baseball fans have grown more connected to the game through collecting baseball cards. We look forward to partnering with Topps to restore baseball cards as the game’s premiere collectable.” It was speculated that having kids peruse shelves with baseball cards from multiple brands would confuse them as early consumers of the sport. Exclusivity over league intellectual property wasn’t unheard of in this time, as Panini and Upper Deck worked on deals with the National Basketball League and the National Hockey League, respectively. Important thing to note is that Panini and Upper Deck still held licenses with the MLB Players’ Association, which means they could use player imagery but not MLB trademarks, now held exclusively by Topps…or well, let’s keep going with this storyline. March 2013: MLB Extended Topps’ Exclusive License The exclusive license that Topps acquired in 2010 was extended through 2020 in an effort for consistency and long-term business goals. Their venture as an exclusive licensor was comparatively short, but substantially lucrative. Mark Sapir was quoted on Cardboard Connection Radio during a 2013 Sports Industry Summit, “Having a long-term deal and a long-term partnership allows you to invest in the business and plan the business." The impact that baseball cards had on the league’s revenue and its players’ income would be revealed soon enough. April 2013: MLBPA Pays Players Their Licensing Income Previously Withheld During Labor Negotiations The union disclosed the disbursement of licensing-related income withheld from players over the course of their most recent labor negotiating cycle in 2011. Their next annual report to the U.S. Department of Labor showed large increases in revenue for licensees, such as Take-Two Interactive video game developer for MLB 2K, Majestic licensed apparel company, MLB Advanced Media and last but not least, Topps. Topps brought in $9.6 million over the 2012 fiscal year to be distributed amongst players in the form of “special dues refunds” that are usually held out in between labor deals. July 2018: Topps’ Exclusive Rights are Extended (Again) Profits and check distributions continued for all parties involved, and MLB once again extended Topps’ exclusive license. This time, through 2025; or so they thought. 2020: Topps Reaches a Record Year In Sales Topps saw a record year of sales, totaling $567 million. This 23% increase in sales resulted from a change in e-commerce and overall digital strategy amidst preparations to enter the world of non-fungible tokens (NFTs). April 2021: Topps Announces Plans to Merge with Mudrick Capital Acquisition Corporation II Valued at about $1.3 billion by Mudrick Capital, Topps was expected to merge with Mudrick late in the second quarter or early in the third quarter. Topps president, Michael Brandstaeder, is quoted “The strategies we have implemented in recent years, including building a digital business that has deepened consumer engagement, have driven excitement and innovation across Topps, fueling strong and increasing revenue with accelerating profitability. The future for Topps has never been brighter, and, with a talented and dedicated management and employee base, we are excited for the road ahead.” Jason Mudrick, founder and Chief Investment Officer of Mudrick Capital is quoted alongside him, “[Topps] is well situated with a universally recognised brand to capitalize on the fast emerging market for collectible NFTs. We are excited to partner with this exceptional organization to help write the next chapter in the long history of its truly iconic brand.” The mutually-beneficial merger was predicted to more than double Topps’ valuation from $1.3 billion to $2.7 billion. A huge reliance of that valuation was that Topps’ would maintain its licensing deals with Major League Baseball and the MLB Players’ Association. August 2020: Fanatics Buys Exclusive Trading Card License from MLB Fanatics worked a behind the scenes deal with Major League Baseball to become the exclusive licensee for baseball trading cards after Topp’s license was set to expire at the end of 2025. That means that starting January 1, 2026, Fanatics would own the exclusive rights once held by Topps for more than a decade at that point, and a right that they held onto for decades prior. Topps’ similar license with the MLBPA runs through the end of this year. Topps claims that they were not aware that this deal was happening until the headlines were about to surface on our smart devices. In an official statement by Andy Redman, executive chairman of Topps, and as reported by the New York Times, “[we were] unaware that Major League Baseball was negotiating with anybody other than Topps regarding our rights beyond 2025.” Topps and Mudrick Capital promptly called off their merger. Without holding the MLB license past 2025, Topps would not be able to produce the very baseball cards that made their business blossom over the decades. Knowing that their MLB license had an ending date, Topps’ future was in question. September 2021: New Fanatics Trading Cards Company Valued at Over $10 Billion After acquiring the future title to MLB intellectual property, Fanatics raised $350 million for their new trading card business in a Series A funding round. This round of investments brought their new company, Fanatics Trading Cards, at a valuation of $10.4 billion before even producing a single card. January 4, 2022: Fanatics Buys Topps At a Price Tag of $500 Million On January 4th of this year, the inevitable happened. Fanatics announced that it would be purchasing Topps for $500 million. With this purchase, they have acquired Topps’ entire sports and entertainment department and with it, the remaining years of their exclusive MLB license and the final year of their MLBPA license. Fanatics now can start producing and distributing trading cards using MLB logos and trademarks now instead of waiting until 2025. Not only did they acquire Topps’ intellectual property, but Fanatics now owns the human capital that Topps once had, specifically employees of various tenures at Topps. Per ESPN, all of the approximately 350 Topps employees will shift over to Fanatics Trading Cards. Michael Rubin is full of optimism in Fanatics’ future, as if it were ever in question before acquiring Topps. His statement announcing the purchase is quoted in CNBC: “With trading cards and collectibles being a significant pillar of our long-term plans to become the leading digital sports platform, we are excited to add a leading trading cards company to build out our business.” The sweet crumbs left in this Fanatics’ fairy tale are the leftover candy and gift cards divisions still in Topps’s ownership. Even with crumbs there, it’s questionable if Topps might ever find its way back to home plate. Moving Forward This entire saga, having ballooned significantly since Fanatics announced its eventual license to be the exclusive trading card producer of Major League Baseball in August, is an example of how valuable exclusivity and intellectual rights are for a brand to create, distribute and sell licensed products that consumers love. Just before losing their license with MLB beyond 2025, Topps was valued at $1.3 billion. Topps was purchased by Fanatics for $500 million, over half than less what they were valued back in April by Mudrick Capital. When Fanatics acquired the rights in a backdoor deal with the league, Topps’ brand became obsolete. I don’t mean to burst their bubblegum, but their standing as a baseball card company was well-known and celebrated. You, the reader, most likely look at a Topps baseball card differently than you would a piece of Bazooka bubble gum. Topps did not know that Major League Baseball was considering passing off the exclusive rights to another party. It was a gamble that Topps didn’t start negotiating to extend their rights as they had done twice in the last near-decade before negotiating a merger with another company. If I learned one thing in 1L property: it’s that nothing lasts in perpetuity. It’s hard to not feel bad for Topps when you consider the power dynamics of an e-commerce behemoth taking away intellectual property rights that transformed what was once a family-owned candy store in Brooklyn to a top, global licensor for a major sports league. On the other hand, it may have been the most strategic move that Fanatics has made in recent years. Instead of buying out Topps outright, they acquired the license that made them valuable. When Topps lost their value, Fanatics was able to sweep in and buy them out at a discount. So now, not only does Fanatics have a league license for baseball cards years ahead of schedule. From an outsider perspective, they have the human capital needed to transition themselves and win loyalty from longtime Topps consumers: creative individuals previously working for Topps who’ve made these cards so successful over the years, relationships with manufacturers, printing machines and everything that went into a 2.5” x 3.5” card. Some still say they’ll never buy a baseball card with a Fanatics logo where a Topps logo should be. Others see potential for Fanatics to bring baseball cards into the future, namely through NFTs. And it’s an added point on where intellectual property is needed as new digital ventures open a wild, wild west. A big motivator for Fanatics to purchase Topps right away is for them to develop baseball cards in the booming NFT and crypto space through their digital collectible arm, Candy digital. On January 13th, Candy Digital announced the opening of its secondary marketplace for Major League Baseball NFTs. That marketplace opened to consumers on January 15th, as announced by Fanatics and Candy Digital social media. Who knows what’s next for licensed MLB trading cards, physical and digital alike. Baseball Cards. Topps didn’t fold them. Rubin now holds them. ______________________________ Andrea is a FLEX-2L at the Elisabeth Haub School of Law at Pace University and the President of the Pace Sports, Entertainment and Arts Law Society (@Pace_SEALS on IG and Twitter). She is in her third season as an Email Marketing Coordinator at BSE Global for the Brooklyn Nets, Barclays Center and Long Island Nets. Prior to BSE, she spent over a year at Steiner Sports Memorabilia before they were acquired by Fanatics in June 2019. You can find her on most social media channels as @dreagarcia21.

Evander Kane, once a prolific player for the Buffalo Sabres and the San Jose Sharks, is facing legal issues after his gambling issues forced him into bankruptcy, per the Edmonton Journal and other sources. The Sharks originally waived him, which meant he was placed on waivers for any team to claim him, and no team did. The Sharks sent him to their minor league affiliate. After a few months there, the Sharks outright released him after he violated the NHL’s COVID protocols for a second time this season. The Edmonton Oilers want to sign him, but he could be facing legal issues as he needs to cross the border from the United States into Canada. Mr. Kane’s controversies and legal issues include assault and harassment, gambling debts and bankruptcy, NHL game betting, domestic violence, as well as multiple violations of NHL COVID-19 protocols. Mr. Kane was a prominent player with the Buffalo Sabres before they traded him to the San Jose Sharks. Going back to his issues with the NHL’s COVID protocols, the league suspended him for 21 games to start the 2021-2022 season for submitting a fake vaccination card. The straw that broke the camel’s back in San Jose was his subsequent transgression of crossing the border without proper medical clearance on December 29th, and this lead to his contract termination with the Sharks. Now, the Edmonton Oilers expressed interest in Mr. Kane. They want another winger to complement their dynamic duo of Connor McDavid and Leon Draisaitl. Oilers general manager Ken Holland believes Mr. Kane deserves a second chance in the National Hockey League, but this would be his third team should the Oilers decide to sign him. Also, Canada’s government is stricter about COVID than the United States. For example, the Canadian arenas either allow a partial crowd or no crowds at all where the majority of the arenas in the United States are allowing full capacity. Regarding Mr. Holland’s statement about Evander Kane earning a second chance, one could argue his second chance came in Buffalo, and his third and fourth came in San Jose. This would be his fifth chance to prove he is not the gambler who blows all his money at parties and other events. His wife is demanding money from him, and he has shown that off the ice, he is a troublemaker. Although his on the ice skillset is fantastic, it is the off the ice character that is dragging him down from another NHL pursuing him. With his talents, another team would have grabbed him off waivers, but due to his character they did not. This is similar to the Antonio Brown saga in the NFL. Both athletes are great at their respective sports, but their off the field/ice personalities hinder their presence on a team and within a locker room. Alex Patterson is a 3L at Thomas M. Cooley Law School in Lansing, Michigan. He played football for seventeen years as an offensive and defensive lineman. He graduated from Lindenwood University-Belleville in 2018 with a Bachelor's in Sports Management. He can be followed on Twitter @alpatt71.

On November 21, 2021, 49ers’ wide receiver and NFL veteran Mohamed Sanu was awarded $1,147,593.60, resulting from a JAMS arbitration proceeding against Fantex. Last month, Sanu filed a petition in San Francisco County Superior Court to confirm the arbitration award and enter a judgment thereon. The arbitration was entitled: Fantex Inc. v. Mohamed Aasin Sanu, and related Counterclaims, JAMS Arbitration No. 1100107319 (Hon. Jay Gandhi (Ret.) presiding). The Arbitration Hearing was conducted over three days, on June 25, June 28, and July 2, 2021. Fantex was launched in 2013, providing a unique investment opportunity to sports fans: the ability to buy and sell stock in individual athletes. The year Fantex was founded, Mohamed Sanu was selected in the third round of the NFL draft to play wide receiver for the Cincinnati Bengals. Sanu was the third athlete to sign a brand contract with Fantex. Only Vernon Davis and EJ Manuel had deals with the company before him. Sanu signed in May of 2014; a $1.6 million fee to Sanu in exchange for a 10% equity stake in Sanu’s future brand-related earnings. In November 2014, Sanu’s initial public offering went up and fans could officially “trade” his stock. Sanu spoke with Fortune.com about his vision and taste for business: “Definitely, Fantex is part of that, because I’m using football as my platform to catapult myself into business and learn more about business. I want to be a successful businessman outside of football. I’ve done being a successful football player, but I’m just learning about how business works. Even doing interviews like this, and talking to other business owners and picking their brain, learning how they established themselves, how they got started… You have to be real gritty with things like that, you need the determination to learn these things.” Player stock prices mirrored their on-field production or popularity. This was a novel and creative idea from Fantex, though one that didn’t work out long-term. Sanu’s stock started at about $10 a share. After he posted career-highs in catches (56), yards (790) and touchdowns (5) in 2014, the stock rose to $13 a share. According to the Arbitration decision, though Fantex sold 164,300 Sanu shares at $10 per share, the IPO failed to raise the amount necessary to pay Sanu under the Brand Agreement. Instead, as disclosed in Fantex’s Prospectus, certain Fantex directors entered into standby purchase agreements to purchase up to approximately 59% of the Offering, thereby raising the remainder necessary to pay Sanu and close the deal. That day, Fantex paid Sanu the $1,560,000 purchase price pursuant to the Brand Agreement. Overall, Fantex signed contracts with eleven athletes and completed six IPOs worth a total of $25.8 million. However, in August 2016, the company closed its platform to individual investors, and in March 2017, the company's CEO and co-founder, Cornell French, left Fantex. Sanu stopped paying Fantex 10% of his future brand income in January 2019. On October 28, 2019, Fantex filed a demand with JAMS. Fantex claimed Sanu breached the parties’ Brand Agreement by failing to continue making brand income payments after January 2019. Fantex sought an accounting and payment of what Sanu owed under the Brand Agreement to that point. Sanu filed his counter-claims on November 4, 2019. Sanu claimed Fantex (1) breached the Brand Agreement by shutting down the Platform in August 2016; (2) breached the covenant of good faith and fair dealing by refusing to factor the shutdown of the Platform into negotiations with Sanu to terminate the Brand Agreement; and (3) fraudulently induced Sanu into entering the Brand Agreement with promises of endorsement deals. Sanu also alleged Fantex violated California’s Miller Ayala Athlete Agents Act. On the heels of Fantex's trading shutdown, Sanu attempted to terminate the agreement between the parties. The parties could not agree to mutually satisfactory terms. Sanu was aggrieved that he was obligated to pay 10% of his future earnings in perpetuity to Fantex, without the benefits of the trading platform. Litigation followed. According to the Arbitration decision, Fantex contended that Sanu breached his contractual obligations by refusing to continue payments to Fantex and sought its percentage of the remainder of Sanu’s earnings owed to date. Sanu believed the benefit for which he bargained no longer existed and that he was deceived into signing with Fantex in the first place. Sanu sought the nullification of the Brand Agreement and a return of the monies paid to date or, at the very least, a finding of no further obligations owed. Arbitrator Gandhi held the following: “[O]ne must give due credit to the Brand Agreement as written and the parties’ course of conduct surrounding that contract. Accordingly, in the face of Sanu’s contractual and fraudulent inducement claims, the law and the evidence support Fantex’s position. Equally, one must give due credit to the Miller-Ayala Athlete Agents Act (the “Act”) as written and the parties’ course of conduct surrounding that Act. The Act is a broad and sharp statute enacted in California to govern athlete agents and protect athletes. While, for instance, Fantex may assert that it engaged in holistic brand advancement only, Fantex’s internal records, among other things, exhibit that Fantex acted “on [Sanu’s] behalf” to secure particular endorsement deals, including a “paid appearance” – conduct within the purview of the Act. That evidence and similar evidence cannot be lightly cast aside. The Arbitrator is understanding of Fantex’s viewpoint. The Arbitrator is mindful that any line crossing of the Act may seem unintended, or de minimis, or unequal. In the end though, on this specific record, including the entirety of the factual circumstances here, Sanu’s position that Fantex ran afoul of the Act is supported by the law as written and the proffered evidence. In the end, the Arbitrator is bound to follow both.” The Final Award thereupon declared that: “As a result of Fantex’s violation of the Act, Sanu [sought] a finding that the Brand Agreement is null and void, .... Sanu is entitled to the remedy he seeks pursuant to Section 18897.9 of the Act. [ .... ] Accordingly, the Brand Agreement is void and unenforceable.” Sanu successfully claimed that Fantex acted as an athlete agent under the Miller-Ayala Athlete Agents Act. Cal. Bus. & Prof. Code § 18895, et seq. The Act is a quasi-criminal statute that encourages private litigants to protect their interests in the face of improper or unethical contracts involving professional athletes. Cal. Bus. & Prof. Code § 18897.8. Specifically, Sanu pointed to examples of Fantex’s interactions with third parties and contended that Fantex promised, offered, attempted, and negotiated with potential endorsers to obtain endorsement contracts for Sanu in violation of the Act. Fantex argued the Act is not applicable to the relationship between Fantex and Sanu because the Brand Agreement and Fantex’s relationship with Sanu did not meet certain contractual definitions described in the Act. According to the Arbitration decision, the reasoning for the final award is summarized by the following: “As a result of Fantex’s violation of the Act, Sanu [sought] a finding that the Brand Agreement is null and void, as well as a return of the monies paid by Sanu to Fantex in the amount of approximately $1,970,000. Sanu is entitled to the remedy he seeks pursuant to Section 18897.9 of the Act. Bus. & Prof. Code § 18897.9(a) (“Any agent contract that is negotiated by an athlete agent who fails to comply with this chapter…is void and unenforceable.”). The Arbitrator has found that Fantex acted as an athlete agent and that the Brand Agreement was an agent contract under the Act’s language. Accordingly, the Brand Agreement is void and unenforceable. The parties should return to the financial state in which they found themselves prior to execution of the Brand Agreement. Fantex must return the amount paid by Sanu to Fantex during the life of the Brand Agreement. Similarly, Sanu must return the amount paid by Fantex to Sanu in connection with the Sanu IPO.” The Arbitrator also awarded $533,775.00 in total attorney’s fees to Sanu’s counsel for services relating to this matter and $203,818.60 in costs. Sanu is currently on injured reserve and is questionable to return for the 49ers' divisional round playoff game against the Green Bay Packers. Jason Morrin is a third-year law student at Hofstra Law School in New York. He is the President of Hofstra’s Sports and Entertainment Law Society. Additionally, he is a Law Clerk at Geragos & Geragos. He can be found on Twitter @Jason_Morrin.

The Athletic’s Austin Meek reports more than 1,000 survivors, who were sexually abused by former Wolverines doctor Robert Anderson, reached a $490 million settlement. Dr. Anderson became the official Wolverines team doctor in 1966, three years before the school hired Bo Schembechler to be the football team’s new head coach. An alleged victim is Coach Schembechler’s son, Matt Schembechler. $460 million will be dispersed among the 1,050 sexual assault survivors that came forward, and the other $30 million will be saved to be handed out to future sexual assault victims that come out and say they were abused by Dr. Anderson. Meek in a separate article wrote the school’s officials failed to heed these warnings, and many sexual abuse victims were athletes, and Dr. Anderson abused them during their annual physicals that were required by the athletic department. The student-athletes were afraid to report his behavior because they thought if they reported his actions, they would lose their scholarships. Others expressed discomfort with his examinations, but school officials dismissed those concerns. The report mentions three different occasions in the 1970s and the 1980s when Wolverine football players brought these issues and concerns to Coach Schembechler, which was added to a previously documented conversation Coach Schembechler had with a student broadcaster in the early 1980s about Dr. Anderson possibly sexually abusing Michigan student athletes. Every time this issue was brought up to Coach Schembechler or other Michigan officials, they refuted it and shot it down. Who knows how many student athletes were sexually abused by Dr. Anderson during his tenure as the head physician at the University of Michigan from 1966 to 2003, but I commend the students who had the guts and courage to bring their experiences then and now. No monetary amount will erase the pain and embarrassment they suffered from Dr. Anderson’s actions and the school turning a blind eye to the program. The school relied on their football program to bring in revenue, especially when Bo Schembechler coached there from 1969-1989. The football program thrived under his tenure at Michigan, and it seems like he feared that if Dr. Anderson’s actions were brought to light, he would have had to resign, like Joe Paterno did at Penn State when Coach Sandusky’s actions were brought to light just over a decade ago. The coaches need to set their ego aside, and do what is right for their players and students, not for their job security. Lloyd Carr, who succeeded Bo Schembechler, is guilty as well. Although he brought the program a national championship in 1997 and had great success against Ohio State until Jim Tressel took over the Buckeye program in 2001, he should have voiced the players’ and students’ concerns about Dr. Anderson and the way he conducted physicals. Although Dr. Anderson has passed, his legacy still remains and the students and athletes he abused are still reminded of what he did to them to this very day. This is why the university settled with the plaintiffs. They did not want their dirty laundry aired at trial. They would lose not only recruits and students, but they would lose sponsors, their reputation, boosters, and other things that make the school profitable due to their programs and students in those programs. This settlement is not a win for the students and alumni who were abused by Dr. Anderson. They deserve a day to tell their stories about Dr. Anderson, or the school must report their findings about Dr. Anderson, so the public really knew what went on in Ann Arbor from 1966 to 2003. Alex Patterson is a 3L at Thomas M. Cooley Law School in Lansing, Michigan. He played football for seventeen years as an offensive and defensive lineman. He graduated from Lindenwood University-Belleville in 2018 with a Bachelor's in Sports Management. He can be followed on Twitter @alpatt71.