To say the world of sports and labor law often intersect would be an understatement, and in its current state, you may think the MLB lockout is the biggest story sitting at this intersection. But by the beginning of February, you may be incorrect. The NWSL preseason is set to start on February 1st, and it now appears the players will not report to their clubs if a Collective Bargaining Agreement is not in place. If this were to occur it would be the league’s first work stoppage. The Player’s Association hopes that with less than two weeks before the preseason starts, this will help push the league to figure out the details. The NWSL was established in 2012 and had its first game on April 13th, 2013. Interestingly, the league has operated for nine years without a collective bargaining agreement to this point. CBAs are usually an integral part of any sports league, from the WNBA to the NFL. So, it is evident that the player’s frustrations about not having an agreement are not without merit. Negotiation of the league’s first collective bargaining agreement was first announced in April 2020, but over a year later, there is still no agreement. Without such an agreement, the players feel as though they are being left in an uncomfortable and insecure position. So, the players rightfully want to ensure the league takes steps towards improvement before providing their labor. Especially after a tumultuous 2021 season in which the league saw consistent, valid criticism. A point of further frustration stems from the fact that through October, none of the twelve-team owners had attended a single bargaining session, according to the Executive Director of the NWSL Players Association, Meghann Burke. Meanwhile, players have participated in every bargaining session, with one session having more than 25% of the players attend. To this point, there has been agreement on certain issues, but certain major points remain in contention. With neither side claiming to have reached an impasse withholding their labor or striking is the next option on the table for the players. The league is young, and some may fear that the league would be unable to recover from a strike properly. But there are three reasons why now may be the players and the players association’s best opportunity to pressure the league through a strike. The public support for the players is at an all-time high. So, if they strike, the “court of public opinion” would likely be in their favor. With a long preseason ahead of them, there would still be hope that a deal could be made, and the strike wouldn’t affect the regular season, which doesn’t start until May. In a more recent development for the league saw that the U.S. Soccer Federation would no longer be paying USWNT players NWSL salaries. Because of this, USWNT stars such as Megan Rapinoe are allowed to join the NSWLPA for the first time in league history. Opening the strike to have stars and new players alike join together. Both sides likely prefer to get a deal done without disrupting the 2022 season. But the point remains that this may be the player's first opportunity to profoundly change what it means to be an NWSL athlete—ultimately creating an unprecedented opportunity to put pressure on the league for a meaningful change!

A lot remains unclear in the NCAA athlete name, image, and likeness (NIL) space. States are unsure how their laws interact with NCAA policy. Schools remain confused in the role they play in brokering these deals between athletes and third parties. The NCAA has requested Congress to step in and provide uniformity, but so far their begs have gone unanswered.[1] Despite all this uncertainty, one group has emerged to reap the benefits from NIL – women’s basketball players. Haley and Hanna Cavinder are members of the women’s basketball team at Fresno State. The twins share a backcourt and lead the Bulldogs in points and assists. But even more impressive than their on-court work is their off-court following. Their joint TikTok account @cavindertwins has nearly 4 million followers. To place that into perspective, two-time NBA MVP Steph Curry’s TikTok account has 2.2 million followers. These sisters are social media superstars. The Cavinder twins have pounced on the opportunity to profit from their name, image, and likeness more than any other college athlete. They were the first college athletes to sign an NIL deal with Boost Mobile on July 1. Since then, they have signed deals with Champs, Eastbay, the WWE, and even had their images plastered onto a billboard in Times Square. The old guard at the NCAA must be sick to their stomach. The Cavinder twins aren’t the only women’s hoopers growing their brand while also lining their pockets. Paige Bueckers, the UCONN superstar and widely considered best player in the country, has inked NIL deals with StockX and Gatorade. Bueckers, the former Gatorade Player of the Year in high school, joins athletes such as Michael Jordan, Zion Williamson, and Serena Williams representing the brand.[2] Brands have taken notice of the obvious – women’s basketball players are marketable. They can reach a young following through social media that not even the best men’s basketball players on the planet can accomplish. Women’s college basketball players are bigger digital media stars than their male counterparts, and the numbers back it up. Since the NIL floodgates opened this past summer, women’s basketball trails only football in compensation for deals signed. There could be a variety of factors as to why women’s basketball comes in higher than men’s when it comes to NIL. First and foremost is the social media presence mentioned above. But the chart above also reveals a lot about the current landscape of men’s basketball. The combination of the one-and-done era and the rise of alternative routes to the NBA has resulted in men’s college basketball players not having the same national star power they once had. If Zion Williamson stayed four years at Duke, he likely would have been the first collegiate men’s athlete to sign with Gatorade. Instead, stars like Zion are on campus for a couple months and then sign their lucrative endorsement deals once they hit the NBA. Conventional logic would follow that the sport of women’s basketball must be benefitting from this added exposure to their athletes. Well, not so fast. NIL goes against everything that the NCAA has always stood for, so they are refusing to embrace the benefits while simultaneously placing unnecessary roadblocks to halt progress. Likewise, schools seem afraid of breaking the law or NCAA policy and are also missing out on valuable opportunities. Fresno State has a strict Intellectual Property use policy when it comes to athlete NIL deals: As a result, the Cavinder twins can’t promote the school or their conference in any fashion through their brand deals. You would think Fresno State would love the free publicity that comes with their famous backcourt’s exposure. Apparently not. The Cavinder twins recently signed a groundbreaking NIL deal with the sport apparel company Baseline Team, making themselves co-founders and granting themselves a 25% ownership stake. Baseline Team’s main business focus is developing retro basketball shorts. Due to Fresno State’s NIL policy, even after Baseline Team acquired a license to use Fresno State’s logo, as student-athletes the twins must black out the logo when promoting their merchandise.[3] Below is the home page of Baseline Team’s website found at: https://baselinecpg.com/ If companies are investing in these athletes to grow their brand exposure, why isn’t Fresno State or the NCAA utilizing the same methods to grow the sport they play? The social media engagement could go a long way in increasing the popularity of women’s basketball. It doesn’t take a marketing genius to think that the Cavinder twins or Paige Bueckers should be all over NCAA social media accounts and other media outlets. Women’s basketball has constantly battled with the NCAA for equal treatment with the men’s game. NIL is an area is where the women’s game has growth potential even over the men’s game. Just recently the NCAA surrendered to mounting pressure and changed its Final Four logos and social media accounts to separate the men’s and women’s game. Previously, the logos were the same and the twitter account @FinalFour called it’s itself the “official” feed of the NCAA Final Four but only tweeted about the men’s sport with no updates about the women’s tournament.[4] NIL is commonly thought of as a groundbreaking mechanism that allows players to take power back from the NCAA and profit off their own brands. But NIL also provides opportunities for schools and the NCAA to grow their sports. The NCAA needs stop being hesitant and start developing plans to embrace NIL to grow women’s basketball. The players are becoming superstars – Why not grow the game alongside them? Matt Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and instagram @MattNettiMN and find him on Linkedin at https://www.linkedin.com/in/matthew-netti-ba5787a3/. You can find all his work at www.mattnetti.com [1] Dan Murphy, Everything You Need to Know About the NCAA’s NIL Debate, ESPN (last visited Jan. 23, 2021) https://www.espn.com/college-sports/story/_/id/31086019/everything-need-know-ncaa-nil-debate. [2] Scott Polacek, UConn's Paige Bueckers Becomes 1st College Player Ever to Sign Contract with Gatorade, Bleacher Report (last visited Jan. 23, 2022) https://bleacherreport.com/articles/10019464-uconns-paige-bueckers-becomes-1st-college-player-ever-to-sign-contract-with-gatorade. [3] Kristi Dosh, Cavinder Twins Flex Their Muscles as Entrepreneurs With Latest NIL Deal, Forbes Sports (last visited Jan. 23, 2022) https://www.forbes.com/sites/kristidosh/2022/01/18/cavinder-twins-flex-their-muscles-as-entrepreneurs-with-their-latest-nil-deal/?sh=1602564f17fa. [4] Matthew VanTryon, The NCAA Changed It’s Final Four Logos. It’s Another Step For Women’s Basketball Equality, IndyStar (last visited Jan. 23, 2022) https://www.indystar.com/story/sports/college/2022/01/05/ncaa-changes-final-four-logos-social-media-handles-womens-equality-march-madness/9101782002/.

Something that we knew was likely coming for a decade finally happened this week, as Barry Bonds was left out of the Hall of Fame by voters from the BBWAA. The baseball media controls who enters Cooperstown via the most traditional path. Writers who have spent ten consecutive years involved in the BBWAA receive a HOF vote and are able to vote for a decade even once they are no longer active. This means that some people who aren't tuned into the game are able to cast ballots on what enters the museum...and that's what this is really about. The Baseball Hall of Fame and Museum is a museum. The Hall claims that it's all about "the relationships forged, stories shared, cherished memories created..." Who amongst us hasn't joked about the fact that Barry Bonds was regularly walked even when it would put runners in scoring position? Or even more hilariously when the bases were loaded. Aren't stories (positive and negative) shared about Bonds' efforts in the Pirates' loss to the Braves in the 1992 NLCS? The Pirates' last winning season for two decades? About the fact that Bonds had more intentional walks than the Tampa Bay Rays' entire franchise in several thousand fewer at-bats? Don't cherished memories of Bonds exist in San Francisco, where he saved the Giants' franchise and helped them build their beautiful ballpark downtown? Didn't we forge relationships rooting for or against Bonds? Here are the facts: Barry Lamar Bonds is by far the greatest player ever based on bWAR at 162.7 wins above replacement (WAR), even better than his Godfather, Willie Mays (156.1). In an era that was tainted by performance enhancing drugs (which were largely ignored by the powers that be at the time), Bonds was far superior to his colleagues. Hitting a baseball is near impossible, and Bonds was the best at that skill. But Bonds was more than who he was at the plate. He was a marvelous athlete, winner of eight Gold Gloves. Young Barry was a terror on the basepaths. He's the only player to belong to the 500/500 home run/stolen base club. The case against Bonds is simple in its scandalous nature and lack of ability to process context. The guy was alleged to use steroids, he wasn't nice to the media, and he had a huge ego. I won't touch the last one because these are professional athletes, and ego is a driving force for a lot of them to achieve great things. It's not good, but it's everywhere. The first point, I understand. It would be one thing if that were a consistent rule, though. At this point, there is almost certainly an inductee who used performance enhancing drugs. Whether that's anabolic steroids, or amphetamines, or they were spitting tobacco juice to affect the rotation of the ball. That happened, and the Hall is in the perfect spot to be able to give context to the achievements of those players. If necessary, they could put the Steroid Era guys in their own wing. It's just an improper use of the Hall to tell half the story and leave players who are otherwise deserving out based on suspicion. Also bothersome in relation to steroids is that there's a lack of consistency that is particularly evident this year. David "Big Papi" Ortiz, the jovial giant who broke the Curse of the Bambino with his clutch hitting against the Yankees in 2004 and proceeded to win three more World Series' in Boston while clubbing 541 Home Runs, was elected on the first ballot this year. Most notably, Ortiz rose to be a leader in Boston, helping to heal the city after the 2013 Boston Marathon Bombings. Ortiz was always friendly with the media in Boston and nationally. His easygoing nature, hearty laugh, and thousand watt smile are disarming, charming, and endearing. Kenan Thompson plays a friendly caricature of the heavily accented Ortiz on Saturday Night Live. Ortiz is part of the media analyzing baseball now, appearing on FOX and on a podcast with Barstool Sports. Papi is almost universally liked. I like Ortiz. I think he's one of the most lovable characters in baseball during my lifetime and was a fearsome slugger. I think he belongs in the Hall for the exact reason that you can't talk about baseball history and the curse-breaking Red Sox without discussing Ortiz's prowess for the clutch hit. The thing is that Ortiz registered a positive PED test when MLB finally attempted to reign in the steroid issue, beginning with an effort to recognize how widespread the issue was with anonymous submissions in 2003. The failed test became public knowledge in 2009. Ortiz never tested positive once MLB implemented a formal testing scheme in 2004. Bonds was alleged to have registered positive tests in 2000 and 2003 that became public knowledge during a perjury trial. He never tested positive under MLB's formal testing scheme. Bonds ultimately had his conviction of obstruction of justice overturned in 2015. So where is the biggest difference here? Is it that Bonds wasn't friendly with the media? It certainly can't be that Ortiz was a better player than Bonds. Ortiz's WAR counter places him in the bottom five of all inductees. In fact, Bonds nearly achieved Ortiz's entire career WAR (55.3) in just his seven seasons with the Pittsburgh Pirates (50.3). Bonds has 7 MVP awards to Ortiz's zero. In fact, if you just took Bonds' achievements prior to the alleged November 2000 positive test, Bonds would be the only member of the 400/400 home run/stolen base club. Bonds had 3 MVP awards before he was ever alleged to have cheated. We have to do better to fulfill the missions stated by the Baseball Hall of Fame and Museum. With that in mind, I have a handful of changes that I'd like to see. First, I'd like to see all ballots be made public after the results are announced. In 2016, the BBWAA voted by a significant (80-9) margin to publish all ballots publicly by 2018. The Hall of Fame refused to do so. The results of private vs. public ballots may surprise you. Bonds appeared on 77% of public ballots, which means that he would have surpassed the 75% threshold required for induction. However, he only appeared on 53% of private ballots. That is a 24% difference. On the other hand, Omar Vizquel, who allegedly sexually assaulted a former batboy, benefitted from secret ballots, outperforming his public ballots by 28%. Second, I think we should go back to a 15 year tenures for possible inductees. I believe that as younger members of the BBWAA achieve voting power, they may let their positive memories, connections, and stories about great players of the Steroid Era like Bonds or Roger Clemens guide them. We have already seen anger over the players in the Steroid Era dissipate. An additional five years may very well allow passions to be relaxed and time to provide context. Third, I think that expanding the number of votes per year beyond the cap of ten players is a good idea. In crowded years, that could allow good players like Johan Santana to receive additional consideration. Fourth, lower percentage thresholds may provide players deserving of additional consideration like Nomar Garciaparra with valuable time to be discussed. A one percent threshold to stay on in the first three years, and then a five percent threshold to stay on the ballot beyond year three is something that I've seen proposed and makes sense. Finally, I believe that some players should vote. One idea is to allow players who achieve at least 10 years of service time at the Major League level the opportunity to vote on their colleagues. If some of these proposals are adopted by the Hall, I believe we can make Cooperstown more representative of the game and more likely to achieve its stated goals. Tarun Sharma is a current 3L at the University of Minnesota and former Baseball Operations Professional for the San Francisco Giants and Arizona Diamondbacks. He is an occasional co-host on the Conduct Detrimental podcast and handles some social media and legal research for the Conduct Detrimental Group, as well. You can find his thoughts in the weekly Sports Law Review Newsletter by Conduct Detrimental or on twitter @tksharmalaw. Sign up at conductdetrimental.com to get the week’s biggest sports law news in your inbox!

In the Spring of 2018, UConn fired head basketball coach, Kevin Ollie, after the school self-reported numerous NCAA violations that occurred in the program under Ollie’s watch. At the time, Ollie still had more than a year left on his contract at the time of his dismissal, but UConn insisted that the firing was for cause due to the violations which would void the buyout provisions in his contract. However, after a lengthy legal battle, an independent arbitrator has ruled that UConn improperly fired their former coach and must pay him more than $11 million. Attorney Jacques Parenteau called the ruling a “total vindication” for Ollie and that it proves the NCAA’s decision to place UConn on probation and sanctioning Ollie in 2019 was “erroneous and unfounded.” UConn officials adamantly disagree with the decision and believe they were in the right to fire Ollie with cause due to the alleged violations. Instead of waiting for the conclusion of the investigation into the program, the school claims it did not have “the luxury of waiting more than a year before terminating Ollie for the misconduct the university was aware he had engaged in.” “The arbitrator’s decision is nonsensical and seriously impedes the university’s ability to manage its athletics program,” the university said in a statement. “It also sends a signal to other coaches in Connecticut that they may ignore NCAA rules with impunity and continue to be employed and paid.” While UConn can insist on its innocence all they want, they’re still on the hook for the $11 million. But in the bigger picture, this ruling should serve notice to athletic administrators and university presidents moving forward. In the last couple months, we’ve seen numerous coaches sign massive contracts to either stay at their current school or take over a new program. With these massive contracts comes massive buyouts. With many schools across the country having quick triggers, agents representing these coaches are placing more emphasis on protecting them with strong buyout provisions in their contract. For example, if Texas A&M’s Jimbo Fisher were to be fired without cause prior to next season, the Aggies would be on the hook for north of $80 million. Now, it’s extremely unlikely that A&M would let Fisher go now, but it goes to show how big these buyouts are getting. But a way for schools to get around paying these buyouts when their coach’s programs start struggling is firing them for cause. And in some cases, schools attempt to dig up dirt to avoid the liability. We saw this as recently as 2020 when Tennessee self-reported recruiting violations allegedly committed by then head coach Jeremy Pruitt. After signing him to a contract extension after his team started 2-0 earlier in the season, the Vols lost 7 of their final 8 contests. Of course, the news of Tennessee’s self-reporting came after their 7th and final loss. The similarities are striking in the Kevin Ollie/UConn situation. After winning the national championship in 2014, UConn only returned to the NCAA Tournament one more time and slumped to two consecutive losing seasons before Ollie was terminated in 2018. With significant money still owed to Ollie heading into the next season, UConn pulled the “self-reporting” card to fire him with cause. But here’s the question that looms large: If UConn was competing for conference titles and making deep postseason runs in Ollie’s last few years on the job, would UConn have self-reported violations? I don’t think so. For any school looking to get out of paying a fired coach’s buyout, you’d better have a real reason to do so. The arbitrator's ruling in the Kevin Ollie/UConn case should send a message that “digging up dirt” to save money on an underperforming coach is risky business. A contract is a contract, and if a school is not happy with the buyout language in, they probably shouldn’t have agreed to it. Coaching college ball is a tremendously hard profession, especially in today’s environment. People sometimes criticize coaches for making “too much” money, but the amount of time and effort they put into their job deserves some protection. Improperly firing a coach for cause is simply an unethical move. To make matters worse, UConn doesn’t just owe Ollie $11 million over a prolonged stretch, they owe it in the next 10 business days. Not ideal for athletic department that reported that its budget deficit rose from just over $43 million to nearly $47 million in 2021.

Last week, the NFL responded to Jon Gruden’s lawsuit alleging the NFL was the true actor behind the leaks that ultimately led to his termination with the Las Vegas Raiders. The NFL filed a multi-faceted motion to dismiss, in which they argued that the suit should be moved into arbitration in accordance with the NFL Constitution and Bylaws (which we won’t address here) and that Gruden’s lawsuit lacked cause. Specifically, they reasoned that Gruden cannot deny that he wrote the terrible statements in those emails and that those comments by themselves constituted enough cause for the Commissioner, Roger Goodell, to terminate Gruden’s contract under his executive powers.[1] This admission by the NFL gives us a significant indication on not only how they intend to proceed with Gruden’s lawsuit, but also the possible reasoning behind the NFL’s aggressively defensive strategy with regards to the contents of the Washington Football Team investigation. This admission by the NFL indicates to some extent what we already suspected, that the NFL has (or at least indicates that they have) a detailed knowledge of the WFT Investigation emails. Further, they understand that the contents, when exposed, were cause enough for league personnel to lose their jobs (whether due to the Commissioner’s hand, as they argue they had the right to do, or Raiders Owner Mark Davis’ after the situation became untenable for his franchise). If the NFL does not now release the rest of the emails knowing they contain no further nefarious information, then I only see the following three scenarios as possible reasons why: The contents, or the inaction shown by the NFL in response to reported misconduct, are so damaging to the league itself that they must do everything possible to prevent their publication. Some have already argued this is the real reason, including Pro Football Talk’s Mike Florio.[2] The NFL (see: owners) do not want to create a precedent where public pressure, warranted or not, could cause the sale of an unwilling owner of a franchise (as the contents of the WFT investigation may force Owner Dan Snyder to do). The NFL (again, see: owners) do not want to ever reach the discovery phase of any lawsuit they are involved in, no matter the gravity of the underlying documents (as they attempted to avoid in the St. Louis Rams lawsuit).[3] If Scenario 2 or Scenario 3 are reality, then I think there have been (or need to be) some serious discussions at the NFL Headquarters about what is ultimately best for the organization. I say “organization” in reference to the NFL itself, as much as you consider it that and not an association of 32 separate individual businesses (as Federal Courts have found).[4] But if you consider what’s best for the organization, then there’s a legitimate argument to be made that transparency in this case, aka the release of the WFT investigation emails, may begin the long, slow, painful process of rebuilding public trust in the institution of the NFL to handle these issues on their own in a morally-correct way (assuming they care about that sort of thing). This is not a new concept for the NFL. They have released extensively detailed reports on investigations in the past, with the Ray Rice investigation being a prime example.[5] To do so now would be a wholistic recommendation that would need concurrence from the PR, Legal, and Organizational Management teams, but its not absurd to think that we’re reaching a point where that is the reality. The cost of protecting Dan Snyder (or any other league personnel implicated by these documents) or the privacy of these documents purely to avoid discovery in Scenario 3 is most likely no longer outweighing the benefit of restoring some semblance of public faith in how the NFL treats its employees and players by releasing the contents of the investigation. If their leadership team has an interest in being (much less being viewed as) a morally-conscious or value-based organization, they should be able to see that. I realize that may be naïve to think they care, but let’s assume based on their various community service and engagement initiatives that they might.[6] To continue to dig in based purely on avoiding precedent or discovery would be an indication by Roger Goodell and his team that they are more interested in the individual desires of the 32 NFL franchise owners than what is ultimately “good for the gander,” something that we suspect is part of the job description of NFL Commissioner and comes with Roger Goodell’s rumored $60 million dollar salary.[7] The NFL is a conglomeration of smart people, which is why everything I just said is unlikely to have played out, because ultimately someone smarter than me (an ever-growing segment of the population) would have figured out by now that this is hurting the NFL way more than it’s helping. That’s why Scenario 1 starts to look more and more likely, whether due to the heinousness of the original offense or the lack of action by the NFL, which if it is the latter continues to grow by the day. If that inaction is the root of all of this legal maneuvering, then I would only advise that there is a saying about bad news and time. As Dan Wallach pointed out, this information will come out eventually, there’s too much public interest now for it not to.[8] The end of that bad news not getting any better with time may be when the leaders of the NFL are sitting in front of Congress or emptying the contents of their desks and walking out onto Park Avenue. Michael DiLiello is an Army Officer transitioning to the Sports Law field and will enroll as a 1L 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 [1]Mohr, Dani. 2022. NFL files motions to dismiss Jon Gruden's 'baseless' lawsuit: 'He has no one to blame but himself'. January 09. Accessed January 28, 2022. https://www.sportingnews.com/ca/nfl/news/nfl-motions-dismiss-gruden-lawsuit/21ems6gzx8nw12wztnm098fyk [2] Florio, Mike. 2021. Former WFT employee possibly sheds light on why NFL is covering up the results of the investigation. December 23. Accessed January 28, 2022. https://profootballtalk.nbcsports.com/2021/12/23/former-wft-employee-possibly-sheds-light-on-why-nfl-is-covering-up-the-results-of-the-investigation/. [3] Wallach, Dan, and Dan Lust. 2022. Conduct Detrimental: S3 E68; 10:05-22:40. [4] Wallach, Dan. 2021. NFL Can’t Transfer Gruden Lawsuit to Federal Court Due To Corporate Status. November 19. Accessed January 28, 2022. https://www.conductdetrimental.com/post/nfl-s-status-as-unincorporated-association-may-bar-removal-of-gruden-lawsuit-to-federal-court. [5] Mueller, Robert S. 2015. REPORT TO THE NATIONAL FOOTBALL LEAGUE OF AN INDEPENDENT INVESTIGATION INTO THE RAY RICE INCIDENT. WilmerHale. [6] NFL. n.d. NFL In The Community. Accessed January 28, 2022. https://www.nfl.com/community/. [7] Saul, Derek. 2021. NFL's Roger Goodell Reportedly Makes $63.9 Million Per Year — Here's How That Compares To Other Top Execs And Sports Commissioners. October 29. Accessed January 28, 2022. https://www.forbes.com/sites/dereksaul/2021/10/29/nfls-roger-goodell-reportedly-makes-639-million-per-year---heres-how-that-compares-to-other-top-execs-and-sports-commissioners/?sh=453f25cd5702. [8] (Wallach and Lust, Conduct Detrimental: S3 E68; 10:05-22:40 2022)

Tumultuous Times in the Diamond Sport Things are certainly busy in Major League Baseball ("MLB"). Following the difficulty of the 2020 Covid-altered season, the 2021 season was largely a success. However, the beginning of the 2022 season is proving somewhat tumultuous. In addition to the filing of a new lawsuit challenging MLB's federal anti-trust exemptions[1] and the non-admission of two of MLB's greatest statistical performers to the Hall of Fame,[2] MLB and the Major League Baseball Players Association (the "Union") have failed to agree on a successor collective bargaining agreement, resulting in the present ongoing lockout. Negotiations have centered around various long-standing rules, such as free agency eligibility and uniform use of the designated hitter. Notably here though, is a significant proposed change to the potential compensation for pre-arbitration eligible players. MLB's Compensation and Arbitration Structure To understand the proposed rule and its implications, a brief overview of MLB's early compensation and arbitration process is warranted. Generally, minor league and MLB players without the requisite service time for free agency play on one-year contracts.[3] The MLB calendar typically has 187 days and a 'full season' for service time purposes constitutes 172 days.[4] Between 172-187 days constitutes a maximum of 1.00 years of service time in any season.[5] Compensation is dictated by the level of competition and its associated minimum salary. In 2021, for instance, players in A-ball received $500 weekly, while in AAA, it was $700.[6] In MLB, the minimum salary for 2021 was $563,500.[7] Salaries prorate as players progress or demote through the various competition levels. Following any season, clubs generally have the unilateral right to renew minor league and young MLB player contracts.[8] Thus, clubs retain robust control of the early careers and earning potential of their young players. Once a player accrues 3.00 years of MLB service time, that player is eligible for salary arbitration following the season.[9] This formal arbitration process is the player's first chance for a significant raise. MLB players are continually eligible for salary arbitration after each season until they reach 6.00 years of service.[10] At this point, a player becomes eligible for free agency and generally may sign with any club and on any agreed upon terms.[11] The period before reaching 3.00 years of MLB service time is generally known as the 'pre-arbitration eligibility period.' Now, MLB and the Union are negotiating a proposed rule change where a pre-arbitration eligible player can earn additional compensation more commensurate with their actual performance.[12] This is particularly important when considering that many players were drafted at 18 years old and may not make it to their first season of salary arbitration (if ever) until aged 22, 28, or even older. In that time, most young professional baseball players hardly make enough money to get by, let alone make any contextual decent compensation. As an example, Yankees slugger Aaron Judge was drafted in the 1st round of the 2013 draft and briefly made his debut in the majors in 2016. His first full, and rookie eligible, season came in 2017. In that year, while on a Yankees' controlled and renewed contract for $544,500, Judge would lead the American League in walks, runs, and home runs.[13] He additionally earned an All-Star appearance, a Silver Slugger Award, was named the American League Rookie of the Year, and finished 2nd in the American League MVP voting.[14] All this while the average MLB salary for 2017 was $4,450,000[15] and players performing similarly, but free agency eligible, could easily earn $20,000,000 or more. Of course, there are legitimate arguments in favor of the clubs' player and contractual control. Perhaps most appropriately is the preservation of parity and competition in a game where the clubs are not limited by a uniform salary cap, which favors larger market clubs with deeper pocketed ownership. Still, it is a hard reality for a player performing as well as Judge did in 2017 to earn orders of magnitude less than his lesser performing peers. Proposed Pre-Arbitration Bonus Pool Fortunately for the players, additional pre-arbitration eligible compensation is presently being negotiated by MLB and the Union as part of the larger effort to end the lockout. However, perhaps in keeping with recent MLB curiosities, the mechanics of such additional compensation is potentially problematic. Broadly, the proposed mechanics are essentially the following: the top 30 performing pre-arbitration eligible players receive tiered compensation bonuses from a central fund, the amount of which is currently being negotiated.[16] Additional bonus compensation can be earned for winning awards such as the MVP or Rookie of the Year. Wins Above Replacement ("WAR"), an advanced baseball statistic, would be the basis for determining the top 30 players, while the writers of the Baseball Writers' Association of America ("BBWAA") select award winners. Essentially, what the formula for WAR attempts to quantify is how many wins (positive WAR) or losses (negative WAR) a player’s performance is worth, relative to the average performing replacement level-player in MLB.[17] The Potentially Problematic Use of WAR Using WAR, however, is potentially problematic. WAR is both a proprietary and dynamic formula. Measures of WAR are not constant, since the formulas continually undergo recalculation to better quantify performance value in a game with ever-changing rules and circumstances. Further, WAR’s proprietary formula is created, used, and continually re-formulated by multiple non-MLB entities. MLB's website glossary alludes to three of the most common WAR formulations, from FanGraphs, Baseball Reference, and Baseball Prospectus.[18] Thus, there is no uniform WAR calculation. Further, it remains to be seen which WAR measure would be used and whether any of the entities promulgating WAR would want their statistic being the direct basis of an MLB player's compensation. The Baseball Writers' Association of America Adding further complication, season awards, the basis for potentially additional pre-arbitration eligibility compensation, are voted on by the BBWAA writers. This is significant given that the BBWAA writers, rightly or wrongly, often seem to take virtuous positions on certain votes, such as the Hall of Fame entrance for retired players. This offseason, the BBWAA writers collectively voted not to allow Barry Bonds and Roger Clemens into the Hall of Fame, two of the greatest statistical players the game has ever seen, for their perceived use of performance enhancing drugs.[19] The merits of such action is better covered in another article. However, for present purposes, it shows a general willingness on behalf of the BBWAA to consider non-performance circumstances in bestowing awards and recognition on players, which, given the structure of the proposed pre-arbitration compensation awards, would have additional financial implications for these pre-arbitration eligible players. This could be particularly impactful in an environment where young players are perceived to be more outspoken and brash than in years past. Conversely, it could motivate some BBWAA writers to vote for a pre-arbitration eligible player over a veteran player for a major season award such as MVP in order to provide some additional bonus compensation to a young player. In any event, MLB and the Union are running out of time to agree on a new collective bargaining agreement. Without a new agreement in the very near future, the 2022 season may be delayed. Assuming, a new agreement is reached, it will certainly be interesting to see which long-standing rules of the game, such as the pre-arbitration system, undergo significant amendment. Matthew D. Batista, Esq. is a transactional associate attorney in the San Diego of Klinedinst PC. His practice ranges from general corporate law, to M&A, intellectual property, and real estate across a range of industries, including sports & entertainment. Mr. Batista can be contacted at the following link https://klinedinstlaw.com/profiles/attorney/matthew-batista?all=1. [1] See https://images.law.com/contrib/content/uploads/documents/389/152201/MLB-Antitrust.pdf (the Complaint). [2] See https://www.espn.com/mlb/story/_/id/33138890/hall-fame-voting-winners-losers-david-ortiz-gets-else-got-good-bad-news [3] https://www.mlb.com/glossary/transactions/contract-renewal [4] https://www.mlb.com/glossary/transactions/service-time [5] Id. [6] https://www.espn.com/mlb/story/_/id/28702734/mlb-raising-minimum-salary-minor-leaguers-2021 [7] The Basic Agreement 2017-2021 (the Collective Bargaining Agreement) can be accessed here: https://www.mlbplayers.com/cba; https://www.espn.com/mlb/story/_/id/28702734/mlb-raising-minimum-salary-minor-leaguers-2021 [8] http://m.mlb.com/glossary/transactions/contract-renewal [9] Assuming the player does not reach 'Super-Two Status,' also potentially under negotiation for a new collective bargaining agreement, see http://m.mlb.com/glossary/transactions/super-two; see also http://m.mlb.com/glossary/transactions/salary-arbitration [10] This assumes that the player and their Club don't agree to a contract that 'buys out' that player's arbitration eligibility; http://m.mlb.com/glossary/transactions/salary-arbitration [11] Though MLB compensation must at least reach the minimum threshold; see http://m.mlb.com/glossary/transactions/free-agency [12] See generally https://www.mlbtraderumors.com/2022/01/mlb-lockout-rumors-bonus-pool-pre-arbitration-minimum-salary.html; see also https://theathletic.com/news/mlb-willing-to-introduce-bonus-pool-for-pre-arbitration-players-but-at-fraction-of-mlbpa-proposal-sources/iZVNnxqa8cCt/ [13] See https://www.baseball-reference.com/players/j/judgeaa01.shtml [14] Id. [15] https://www.espn.com/mlb/story/_/id/31270164/average-mlb-salary-417-million-48-2019 [16] See https://www.mlbtraderumors.com/2022/01/mlb-lockout-rumors-bonus-pool-pre-arbitration-minimum-salary.html [17] See generally https://www.mlb.com/glossary/advanced-stats/wins-above-replacement [18] See Id. [19] See generally https://www.espn.com/mlb/story/_/id/33138890/hall-fame-voting-winners-losers-david-ortiz-gets-else-got-good-bad-news

Many young American soccer players aspire to play professionally in Europe. This January transfer window saw a lot of young Americans achieve their dreams. This goes to show that MLS’ commitment to academies and developing young players has proved to turn a profit and become a benefit of playing in the league. As each season goes on, more and more homegrown players have been sold as European clubs start to key in on American and Canadian talent. We’ve seen big clubs like Bayern Munich and Manchester City come in for young talent from MLS. This has established MLS as a good league for development for young players and where young players can play for a few years before securing a big move. Someone like Ricardo Pepi, who has gone through the FC Dallas Academy, played for the USL team and then showed his talent for the first team got a big move to Augsburg. Augsburg shattered their club record to bring in the young American striker. It’s a win-win for both the club and player. Pepi gets his move to Europe while FC Dallas gets to keep the entire $18 million fee because Ricardo Pepi was signed as a homegrown player. This rule was recently implemented for MLS teams to be encouraged to sign homegrown players and play them in hopes to get them a big transfer to Europe. Pepi became the most expensive American sold in MLS history, while being the 2nd most expensive MLS sale behind Miguel Almirón’s transfer to Newcastle in 2019. Pepi isn’t the only national team striker to get a move to Europe. Daryl Dike also got his move to Europe to West Bromwich Albion, who play in England’s 2nd division. Dike’s path to Europe was a bit different than Pepi’s. Dike went through the college system, which has become a lot less likely for top American talents. Dike was selected 5th overall in the 2020 MLS SuperDraft by Orlando City after having signed a Generation Adidas deal, which is for college players who would like to play professionally but are not eligible for the SuperDraft. Although Dike did not make a move to a top five league, his move to West Bromwich Albion could pay off dividends as they are currently in position for the EFL Championship playoff, with the winner of it being promoted to the English Premier League. The most interesting part about these two moves is how the performances of these two will affect the battle for the striker position as the United States look to qualify for the World Cup in November. Another player who went a similar route to Dike is goalkeeper Matt Turner. Turner’s story is a bit different as he wasn’t a highly coveted player coming out of college, even going undrafted in the SuperDraft. This didn’t stop him as he’s been one of the best shot stoppers in MLS in the past few years. It’s been reported that he will be joining Arsenal in the summer by multiple outlets including Taylor Twellman and Fabrizio Romano. This is a very interesting move as he will likely be a backup to Aaron Ramsdale at Arsenal while in the middle of a position battle for the national team. Turner is battling fellow Premier League backup goalkeeper Zack Steffen. With both of them getting very little, if any, Premier League action, it will be tough for both to cement their spot as the starter for the national team by being in good form at club level. Matt Turner isn’t the only MLS player to transfer to Arsenal, with Colorado Rapids defender Auston Trusty also getting a transfer to the London club. Trusty will stay on loan with the Rapids until July 17, 2022. This move came out of nowhere without any reports linking Trusty to Arsenal, but it could possibly be explained by Stan Kroenke being the owner of both Arsenal and Colorado. Trusty has zero caps for the US national team, so Arsenal will likely loan him out once he joins in the summer. Other MLS players who have earned big moves to Europe includes James Sands to Rangers, Kevin Paredes to Wolfsburg, Justin Che to Hoffenheim, Cole Bassett to Feyenoord and George Bello to Arminia Bielefeld. While it’s been a huge window for MLS exports, Toronto FC made one of the biggest signings in league history when they captured the signature of European champion Lorenzo Insigne. His reported salary of $15 million is more than double the previous record for biggest salary in league history. Insigne is a great player who featured on Italy’s triumphant run in last summer’s European Championship. Italy are still vying for a spot in the World Cup after having failed to qualify in the group stages. Insigne will need to have an even bigger role in Italy’s attack after national team teammate Federico Chiesa suffered an ACL injury which will cause him to miss the World Cup Qualifying playoffs. Just five years ago, MLS and United States soccer fans were excited at the thought of players going on trials to European clubs. Now, multiple players per transfer window are getting moves to European clubs and featuring for them. With the World Cup being in North America in 2026, it will be an interesting few years leading up to it to see how much MLS grows between now and then. Greg Termolle is a 2L at the Elisabeth Haub School of Law at Pace University. You can follow him on Twitter at @GregTerm.

Plaintiff Dr. Robert Corwin is an owner of Class A stock of Golden Nugget Online Gaming ($GNOG). Corwin brough this action in Delaware Court of Chancery pursuant to 8 Del. C. § 220 to compel inspection of books and records. Plaintiff seeks to investigate potential breaches of fiduciary duty by: (i) Tilman Fertitta, GNOG’s controlling stockholder, and (ii) the Company’s board of directors in connection with GNOG’s pending merger with DraftKings and certain related side deals between DraftKings and Fertitta-controlled entities. This lawsuit was filed on February 1, 2022. On August 9, 2021, it was announced that DraftKings agreed to buy Golden Nugget Online Gaming in an all-stock transaction valued at 1.56 billion dollars. Under the terms of the deal, Golden Nugget shareholders would receive 0.365 DraftKings shares per each GNOG share owned. Upon the announcement, Golden Nugget shares soared 29% premarket, while DraftKings was down 2.7%. Plaintiff Corwin alleges that Fertitta and his affiliated entities collectively controlled approximately 88% voting power of GNOG, and indicated that they alone would approve the Merger. Accordingly, GNOG’s minority stockholders would not be given an opportunity to vote on the DraftKings Merger. In connection with the execution of the Merger Agreement, Corwin alleges, DraftKings and a Fertitta-controlled entity, Fertitta Entertainment, Inc. (“FEI”) entered into a commercial agreement and other side agreements whereby DraftKings agreed to provide expanded market access, database access, and marketing integrations across FEI’s asset portfolio, including the Houston Rockets, Golden Nugget LLC, and Landry’s LLC. As a result of the merger, FEI agreed to designate DraftKings as the exclusive daily fantasy sports, sports betting, free-to-play and iGaming partner of the Houston Rockets, and to provide DraftKings with the right to open a sportsbook with “DraftKings” marks and logos at the Toyota Center in Houston, Texas. Corwin writes that as the owner of the Houston Rockets basketball team, Fertitta stands to be the largest beneficiary of this agreement. And, according to the complaint, since the announcement of the merger, Fertitta has boasted that the Commercial Agreement will drive revenue to his other (non-GNOG) businesses. Plaintiff claims, because of the side deals, the merger is procedurally and substantively unfair to minority stockholders. "The Merger provides numerous non-ratable benefits to Fertitta and FEI through, among other things, the Commercial Agreement, the License Agreement, and other related side agreements that are not going to be shared with GNOG’s minority stockholders." In addition to the foregoing, plaintiff raises additional issues with the merger. First, he claims that GNOG did not disclose all the provisions of its side agreements. Additionally, he claims that the consideration to be paid to GNOG's stockholders (in the form of receiving 0.365 DraftKings shares per each GNOG share owned) is unfair. On CNBC, Fertilla commented that DraftKings "underpaid" for GNOG and that he "woke up this morning struggling." DraftKings CEO Jason Robbins characterized the deal as "a steal." Finally, Dr. Corwin alleges that the process undertaken to approve the merger was unfair. He writes the following in the complaint to that end: "[t]he Merger was not conditioned on the approval of GNOG’s minority stockholders. The Board that approved the Merger and related side deals was conflicted, with at least four of the six-members having extensive personal and business ties with Fertitta. The Special Committee formed by the Board was formed too late to play a meaningful role in the process. The GNOG Board’s financial advisor, Jefferies LLC, was conflicted by its longstanding business ties to Fertilla, and Jefferies and Fertilla handled substantive negotiations over the Merger despite their obvious conflicts of interest." Plaintiff asks that the Court enter a summary order directing the company to produce for inspection all of the books and records that he has requested. As of January 6, 2022, GNOG responded to the plaintiff's demand, asserting inter alia, that it failed to state a proper purpose and was overly broad. Did Fertitta enter into the DraftKings merger to gain personal benefits for himself and his various companies? Follow along @ConDetrimental for updates as this case advances. 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.

By Dan Lust & Tarun Sharma To get you caught up on the issues, we boiled down this lawsuit to two basic components – what’s happened so far and what’s happening next. What’s Happened So Far On Tuesday, former Miami Dolphins Head Coach Brian Flores filed a class action lawsuit against the NFL, and specifically the New York Giants, Miami Dolphins, and Denver Broncos, as well as the other 29 teams. Flores, a New Yorker who is the son of Honduran immigrants, alleges racial discrimination in hiring processes around the League. Flores most notably points to text messages between himself and New England Patriots Head Coach Bill Belichick. Belichick mistakenly texted Flores, his former Defensive Coordinator with the Patriots, when he meant to text Brian Daboll. Belichick congratulates Flores for securing the New York Giants’ Head Coaching position. However, Flores was not scheduled to interview with the Giants until later that week. Belichick then clarifies that he made a mistake and that he meant to text Daboll his congratulations. The timing of Belichick’s texts is important because it appears that the decision was already made as to who would be hired as the Giants’ next coach before Flores ever had a chance to interview for the role. That matters because the NFL has a hiring process known as the Rooney Rule. In 2003, the NFL implemented the Rooney Rule, which requires that NFL teams interview minority candidates for head coaching roles. Since then, the Rule has expanded to include assistant coaching and front office roles, as well. At the point that the Giants had interviewed Flores, the only minority candidate that they had interviewed was their own Defensive Coordinator. Flores is alleging that his experience with the Giants was a “sham interview” only conducted for the purpose of satisfying the Rooney Rule. Flores also alleges that this is not the first sham interview that he has been the victim of. In 2019, before accepting the Dolphins’ Head Coaching job, Flores was invited to interview with the Denver Broncos. Flores alleges in the complaint that then-GM (and NFL HOF QB) John Elway, President/CEO Joe Ellis, and other members of the Broncos’ party showed up an hour late to the interview. Flores states that the Broncos’ contingent looked hungover, and that the substance of the interview reflected that he was never a serious candidate for the job. Shortly thereafter, Vic Fangio was hired as Denver’s Head Coach. The complaint, filed by Flores on the same day that he interviewed with the New Orleans Saints for their Head Coaching vacancy, proceeds to outline the NFL’s failures when it comes to racial equality. He notably includes last year’s Jon Gruden email saga, the revelation that the NFL’s Concussion Settlement used race-norms (the idea that black players had lower baseline aptitude than white players) in determining whether former players would be compensated for cognitive impairment, and the paltry number of black coaches compared to the number of black players, as examples of the NFL’s ongoing issues with race. Possibly the most stunning of the allegations that Flores makes in the complaint relate to the behavior of Dolphins’ owner Stephen Ross. Flores alleges that Ross asked Flores to “tank” the 2019 season, and offered him $100,000 for every game that he lost. Following the 2019 season, Flores alleges that Ross began to pressure him into recruiting a prominent quarterback in violation of the League’s tampering rules. When Flores refused, he was treated with disdain as someone who was difficult to work with. There has been plenty of speculation as to who this prominent QB is, but signs point to this being either Tom Brady, who played in New England while Flores was with the organization, or Deshaun Watson, who Flores is reportedly close to. In response, the NFL stated that it is “deeply committed to ensuring equitable employment practices” and “we will defend against these claims, which are without merit.” The latter is a canned line that is somewhat typical of any party that is being sued. Basically, you have to say that to have a chance to win. The Broncos issued a statement disputing Flores’ recollection of the 2019 interview, stating that the allegations are “blatantly false.” The Dolphins, battling on two fronts, released a statement saying they “vehemently deny any allegations of racial discrimination” and “the implication that we acted in a manner inconsistent with the integrity of the game is incorrect.” What’s Next First things first, Flores alleges that there are as many as 40 possible litigants that can join his class, which he defines as “All Black Head Coach, Offensive and Defensive Coordinators and Quarterbacks Coaches, as well as General Managers, and Black candidates for those positions during the applicable statute of limitations period.” It will be up to a Federal District Court Judge in the Southern District of New York to certify this class. For this reason, there is language in the complaint that argues it is impractical and inefficient to join all of these parties to the lawsuit. Flores is seeking increased objectivity for hiring/firing decisions, creation of a training program for black coaches, incentives for hiring and retaining black coaches and front office personnel, and more transparency in the hiring process. Second, the NFL will almost certainly seek to dismiss the suit, but our own Dan Wallach believes that this complaint has satisfied the requirements to survive such a motion. Stay tuned to Conduct Detrimental to see whether this case makes it to discovery, a point at which juicy evidence could come to light and turn the entire League on its head. This article was cross-published in Joe Pompliano's Huddle Up Newsletter. Dan Lust (@SportsLawLust) is a Sports Law attorney at Geragos & Geragos and Co-Host of the Conduct Detrimental Podcast. Tarun Sharma (@TKSharmaLaw) is a Third-Year Law Student at Minnesota Law and he is a frequent guest on the podcast in addition to publishing Conduct Detrimental’s weekly “Sports Law Review” Newsletter which you can subscribe to through our website.

Among the claims in Brian Flores’ bombshell lawsuit filed yesterday was a startling revelation that he was allegedly enticed (with $100,000 per loss) to lose games by Dolphins’ Owner Stephen Ross. I won’t address the validity of Brain Flores’ claims of racial bias in the NFL’s hiring process here (Not to minimize them, I just do not believe I am the person at Conduct Detrimental to provide the proper legal analysis of those claims. Dan Lust, Dan Wallach, and Mike Lawson addressed those claims on yesterday’s Conduct Detrimental Podcast). This bribery accusation, if true, could be fatal to Stephen Ross’ NFL Ownership, and could have major ramifications for the NFL and its owners. But I believe this accusation should go beyond that and prompt a re-examination on what the responsibilities of ownership of a professional sports enterprise should be. Tanking in the NFL, or professional sports in general, is not a new concept. We have seen plenty of teams employ tanking strategies to secure high draft picks over the past two decades across American sports. As this strategy has evolved, we’ve also seen teams operate without ever fulfilling that promise of future competitiveness, where it seems more and more like a ruse that is designed purely to keep the money faucet flowing for owners who don’t really have any interest in winning. I wouldn’t say this is necessarily the case with Ross (although the Dolphins’ resume since 2000 would beg to differ), but it is for plenty of franchises. It’s more common in smaller media markets, where profit margins are comparatively slim. The owners of those teams often prioritize meeting their earnings quotas over the performance of the team, which includes offloading any talented players with upcoming paydays to avoid expensive, top-of-the-market contracts. This situation is most visible in baseball, where the sheer number of players, number of games (and thus reduced profits per game), early separation of playoff contenders, unpredictability of scouting, and amount of luck required to tank successfully makes this business model more common. To some extent, the owners of these franchises, while they flounder hopelessly in mediocrity, are relying on being able to maintain the emotional attachment their fans have to the team to keep the money coming in. Their fanbases are sold the idea that they will one day compete so they will continue to spend money to support ownership groups who need those funds so they can continue to not care. It’s unfortunate, if due to genealogy, geography, or nostalgia borne of adolescence you are part of one of those fanbases, but there isn’t much you can do besides not buying tickets or t-shirts. In light of these claims against Stephen Ross, however, I believe it’s time to look at some sort of legally binding way to avoid this problem. What I’m suggesting is a fiduciary clause in the purchasing/franchising documents of a professional sports league that would require the owner of that franchise to act in the best interest of the team, the players, the fanbase, and the league by always attempting to field a competitive team. Professional leagues know that these under-performing franchises are bad for business, the NFL admitted as much on an Owners’ Call before this past season.[1] This fiduciary clause, the same type required by lawyers and financial advisors, would be enforceable through the same sort of arbitration process that eligible MLB players and teams go through to settle contractual disputes. After a prolonged period of failure (or exposure of the type of allegations made against Stephen Ross), these owners could be remanded to arbitration to present their case to an independent party, have that case argued against by the league, and ultimately have a target for competitiveness in the following season or seasons set by an independent arbitrator. If they fail to meet that target after the specified period, the franchise would be re-possessed and sold at public auction to the highest bidder, and the corresponding fanbase would be freed from the yoke of an ownership group more interested in profits than performance. The concept of competitive incentive already exists in major professional sports. European Soccer maintains this incentive through relegation, but there are ways to flirt with relegation while making enough money to balance the excel sheet. Especially in America, in the age of nationwide TV contracts and mega-sponsorship deals (not to mention the windfall of money coming from sports gambling) there is no longer an excuse for a franchise to be an abject failure over decades purely due to where they play, yet all of that money means there is less and less of an incentive to compete as long as the coffers stay full for owners who don’t share the same spirit of competition that the players and fans do. Of course, no existing league would even remotely entertain this. That would require the current owners to expose themselves to losing their money cows through what they would consider forces beyond their control, and rich people don’t stay rich doing that. But these mega-billionaires affect too many lives to not be forced (or at least prodded more than they are) to handle these businesses in a genuinely competitive manner. The tanking strategies of these teams affect the future earnings and health of their players and affect the businesses and lives of millions of people within their communities. A system like this would ensure that these owners steward their teams in a way that isn’t painting a hopeful façade on a failure and asking you to buy another jersey to put black ink on their balance sheet. Michael DiLiello is an Army Officer transitioning to the Sports Law field and will enroll as a 1L 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 1Fischer, Ben. 2021. NFL sent pointed message to underperforming clubs. October 25. Accessed February 1, 2022. https://www.sportsbusinessjournal.com/Journal/Issues/2021/10/25/Upfront/NFL-tickets.aspx.

Major League Baseball Commissioner (MLB) Rob Manfred has been in the spotlight for the last few years, and often not for good reason. From the criticism over not punishing players in the 2017 Houston Astros cheating scandal, to the league’s botched management of the COVID-19 Pandemic in 2020, to the ongoing dispute over a new Collective Bargaining Agreement (CBA), Manfred has had a difficult time to say the least. Through it all, one thing has been evident about Manfred’s approach to crises within the league: he is in no way supportive of the very players who keep the league going. In fact, in some instances, he has gone so far as to blame the players for his own failures. Let’s start first with the pandemic-shortened 2020 season that didn’t begin until late-July. While commissioner Adam Silver of the National Basketball Association (NBA) was busy developing an exemplary pandemic-response model that included a player “bubble” and contact-tracing, Rob Manfred was wasting time arguing with and blaming the player’s association.[1] Two comments stand out. First, after guaranteeing players and baseball fans that a 2020 season would be played, Manfred seemed to renege on his promise and actually threatened MLBPA executive director Tony Clark that he would cancel the season entirely.[2] While Manfred could have spent his weeks producing a comprehensive program to maximize player safety for whatever portion of the season was to be played, he instead chose to entangle himself in a labor dispute well ahead of the current collective bargaining negotiations. Needless to say, it was not a good look for the commissioner. Manfred’s blunders didn’t end there. After imposing a 60-game season that began in July 2020, the Miami Marlins and St. Louis Cardinals quickly faced outbreaks within their respective organizations. While Manfred is certainly not to be blamed for all issues that arose during the pandemic, his approach to the outbreak, like the labor dispute, was troubling yet again. Instead of looking at his own shortcomings in establishing COVID protocols, Manfred placed the blame on the players for being irresponsible.[3] Now, Manfred deserves some credit for taking responsibility for allowing the spring-2020 labor dispute going public.[4] Unfortunately, it doesn’t look like he has learned from past mistakes. Fast forward to the MLB lockout threatening to delay the start of the 2022 season. While several elements of the CBA are in dispute, chief among them is free agency. Currently, it takes players three years of service time to reach arbitration eligibility and another three to reach free agency.[5] Look at a young player like Vladimir Guerrero Jr. who entered the league at 20 years old and hit 48 home runs and 111 RBI’s in his third year.[6] Under the current terms, even if he continues that level of production, he won’t be eligible to receive a massive contract in free agency for three more years. To address this unfairness, the player’s union is asking for the creation of a $100 million pool of money to compensate players who have not reached arbitration eligibility and for an increase in minimum salaries.[7] Yet, after nearly two months since the MLB entered a lockout, the league has shown little if any interest in working with the player’s union to make compensation more reasonable for the players. While the player’s union has made some adjustments to its positions, that clearly cannot be said for the league. Perhaps we shouldn’t be surprised given commissioner Manfred’s history of going against the players. After all the flak he received for the Astros scandal and disparaging of the players and MLBPA during the pandemic, one would think that he would have been more willing to work with the union to address player concerns. I guess that was too optimistic. Hopefully, pitchers and catchers will report for spring training this February, but right now, it's looking bleak. While we can all rejoice in knowing that games will likely be played in a couple months, the commissioner’s problems will press on. Beyond the lockout, the MLB is now the subject of two additional lawsuits. One, is to end its antitrust exemption. The other, is a class-action lawsuit on behalf of Minor League players to address the fact that they have been severely underpaid for far too long.[8] This time, let’s hope that Rob Manfred finally gets things right. A.J. Lise is a 2L at New York Law School. He is a member of his school’s Dispute Resolution Team and has been a personal injury paralegal since 2018. He can be reached at [email protected] and @aj_lise on Twitter. [1] Ogbunu, C. Brandon. 2020. How the NBA Conquered COVID-19. October 8. Accessed February 1, 2022. https://theundefeated.com/features/how-the-nba-conquered-covid-19/. [2] Miller, Randy. 2020. Union chief Tony Clark trashes Rob Manfred for backtracking on threats to order MLB season / ‘Players are disgusted’. June 15. Accessed February 1, 2022. https://www.nj.com/yankees/2020/06/union-chief-tony-chief-trashes-commissioner-rob-manfred-for-backtracking-on-threats-to-order-mlb-season-players-are-disgusted.html. [3] Keyser, Hannah. 2020. What MLB should have learned from America’s botched pandemic response but didn’t. August 3. Accessed February 1, 2022. https://www.yahoo.com/now/what-mlb-should-have-learned-from-americas-botched-pandemic-response-but-didnt-143059720.html [4] Gregory, Sean. 2020. 'I Blame Myself.' MLB Commissioner Rob Manfred on Baseball's Labor Dispute, Planning for a Postseason Bubble. August 21. Accessed February 1, 2022. https://time.com/5882380/rob-manfred-mlb-bubble-covid/. [5] Perry, Dayn. 2021. MLB vs. players union: What is MLBPA fighting for with lockout likely after CBA expires? November 23. Accessed February 1, 2022. https://www.cbssports.com/mlb/news/mlb-vs-players-union-what-is-mlbpa-fighting-for-with-lockout-likely-after-cba-expires/. [6] https://www.baseball-reference.com/players/g/guerrvl02.shtml [7] Nightengale, Bob. 2022. MLB lockout updates: Spring training likely to be delayed as Tuesday negotiations go nowhere. February 1. Accessed February 1, 2022. https://www.usatoday.com/story/sports/mlb/columnist/bob-nightengale/2022/02/01/mlb-lockout-news-spring-training-2022-likely-delayed/9303711002/. [8] Acquavella, Katherine. 2020. Supreme Court clears the way for class action lawsuit from minor league players being paid below minimum wage. October 5. Accessed February 1, 2022. https://www.cbssports.com/mlb/news/supreme-court-clears-way-for-class-action-lawsuit-from-minor-league-players-being-paid-below-minimum-wage/.

BY: Stowell Simonton In Grutter v. Bollinger, the Supreme Court held that colleges and universities are allowed to use race as a factor in its admissions decision. Grutter was decided in 2003 and upheld in 2016. However, the makeup of the justices has changed significantly since then. Justice Anthony Kennedy wrote the majority opinion retired in 2018, and Justice Ruth Bader Ginsburg who joined in the majority passed away in 2020. Now, with the additions of Justice Neil Gorsuch, Brett Kavanaugh and Amy Coney Barret, the Supreme Court has a 6-3 conservative majority. The Supreme court has decided to revisit the legality of allowing race to be a factor in the admission process. The court will hear a pair of cases involving the admissions process used at Harvard College and the University of North Carolina. As of now, it is unclear when the court will hear oral arguments. In the matter involving Harvard College, a group of students argued that the Harvard College admission process violates the Title VI of the Civil Rights Act of 1964 by penalizing applicants who identify as Asian-American. The students content that Harvard purposely discriminated against Asian- Americans by providing the applicants with lower admission score ratings and intentionally limiting the number of Asian-American it admits. In the case brought against the University of North Carolina, Students for Fair admissions argued that public university provides racial preferences to Black, Latinx, and Native Americans, but not to Asian or white applicants. The case was brough in 2014 and alleged the admission process was in violation of the 14th amendment and federal law. Although these cases involve the college/university admissions process, the Supreme Court decisions could open the door to challenging “The Rooney Rule.” The Rooney rule, named after former Pittsburgh Steeler owner Dan Rooney, is a National Football League (“NFL”) policy that establishes NFL must interview ethnic-minority candidates for head coaching and senior executive football operation positions. The rule has been in effect since 2003. Detractors of the Rooney Rule will likely argue the NFL policy violates Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits discrimination based on certain specified characteristics: race, color, national origin, sex, and religion. Advocates of the policy will argue the rule is not in violation of Title VII because it promotes fair opportunity but does not lead to an employment decision based on race. Because the Supreme Court now has conservative majority, legal challenges are being revisited regarding abortions, the second amendment, and now race as a factor in the college admission process. Following this trend, it is likely other groups will challenge the constitutionality of rules promoting racial diversity in the hiring process as well. Stowell (“Stowe”) Simonton is a Business Law and Employment Law attorney located in Massachusetts. Stowe graduated from Union College in 2017 and Suffolk University Law School in 2021. LinkedIn: Stowell Simonton, Esq. | LinkedIn Twitter: stowe (@StoweSimonton) / Twitter