With his combination of power and speed, Los Angeles Dodgers’ infielder Trea Turner is one of the most electric players in Major League Baseball today. At 28 years old, he is already one of only five players in MLB history with three career cycles, and this winter, Turner will do something that very few baseball players do - go through the arbitration process for the 4th time! Along with 11 other hitters,[1] Turner was a Super Two player in 2019, and thus eligible for an additional arbitration year. Out of that initial group, only Turner and Hedges have made it to their 4th arbitration year without signing an extension, getting non-tendered, or falling behind accruing service time. For an explanation on Super Two criteria, see this article! Despite having gone through the arbitration process three times already, Turner has never actually had to sit for a hearing - he settled at $3.725M in 2019,[2] settled at $7.45M in 2020,[3] and settled once again with the Nationals at $13M in 2021.[4] This is not uncommon. In the last 5 years, only 14 Super Two hitters[5] have gone through the arbitration process for the 4th time, and only Josh Donaldson had ever been through an arbitration hearing.[6] In fact, all 14 of those hitters reached a settlement with their Club and avoided going to trial during their 4th arbitration year. In 2021, Kris Bryant was the only 4th time eligible Super Two player and settled with the Cubs for a salary of $19.5M,[7] a raise of only $900K. All three 4th time Super Two players in 2020,[8] all four in 2019,[9] and all three in both 2018,[10] and 2017,[11] settled with their clubs and avoided a trial. The group of hitters most comparable to Turner are Nolan Arenado (settled for $26M in 2019) Josh Donaldson (settled for $23M in 2018), George Springer (settled for $21M in 2020), Kris Bryant (settled for $19.5M in 2021), and Anthony Rendon (settled for $18.8M in 2019) However, most of Turner’s ‘salary neighbors’ within this group of hitters - Nolan Arenado,[12] Josh Donaldson,[13] and George Springer[14] - agreed to two-year extensions which bought out their 2nd and 3rd years of arbitration eligibility, taking them out of the picture for a 3rd year to 4th year comparison of arbitration raises. Unlike Turner, Bryant was coming off a down year in 2020 where he hit just .206 with 4 home runs in only 34 games.[15] Since Kris Bryant did not perform well in his platform season (Trea finished 5th in MVP voting in his platform season),[16] had a much higher third time arbitration salary ($18,600,000 to $13,000,000), and had both Rookie of the Year and Most Valuable Player awards (Trea has neither), he would likely not serve as a good comparison for either team or player side when putting together a potential Turner case. Enter Anthony Rendon. Anthony Rendon received the largest raise from 3rd to 4th year of arbitration eligibility in MLB history when he settled with the Nationals at a salary of $18.8M in 2019, a $6.5M raise from his $12.3M salary in 2018. Just like Turner, Rendon settled with the Nationals in each of his first three arbitration eligible seasons: First Time Eligible: Turner (2019): $3,725,000 Rendon (2016): $2,800,000 Second Time Eligible: Turner (2020): $7,450,000 $3,725,000 Raise Rendon (2017): $5,800,000 $3,000,000 Raise Third Time Eligible: Turner (2021): $13,000,000 5,550,000 Raise Rendon (2018): $12,300,000 6,500,000 Raise Turner and Rendon’s salaries reflect comparable performance on the field. When Rendon was eligible for his 4th arbitration year, he was coming off a season in which he finished 11th in MVP voting and 3rd in Gold Glove voting (he was not selected as an All-Star). In his career, Rendon had recorded one top 5 MVP finish, two top 10 MVP finishes, and won the Comeback Player of the Year award in 2016. Similarly, Turner also has recorded one top 5 MVP finish and two top 10 MVP finishes, however unlike Rendon, Turner was selected as an All-Star in his platform season. Turner’s platform season performance was stronger than Rendon’s nearly across the board, with Turner holding an advantage in: Runs (107 to 88), Homeruns (28 to 24), Stolen Bases (32 to 2), AVG (.328 to .308), and Wins Above Replacement (6.5 rWAR and 6.9 fWAR to 5.1 and 6.2 respectively). That’s not to take anything away from Rendon or the season that he had in 2018. In fact, there is a strong argument to be made that Turner had the greatest hitting season ever for any 4th time arbitration eligible hitter - his totals of 107 Runs, .328 Batting Average, 6.5 rWAR, and 6.9 fWAR are each the highest ever within that group. With Rendon and his $6.5M raise as the only realistic comparison for Turner, it is no stretch to predict that Trea receives at least a $7M raise, putting his 2022 salary at or above $20M. This would continue the trend of Trea placing himself in elite company: he would become just the 5th hitter in Major League history to receive a salary arbitration award above $20M, joining Mookie Betts,[17] Nolan Arenado,[18] Josh Donaldson,[19] Francisco Lindor,[20] and George Springer.[21] Whether or not Turner and the Dodgers reach a settlement or go to trial, it is likely that one of the most underrated players in MLB will quietly make history once again this winter. Dean Rosenberg is a 2L student at Benjamin N. Cardozo School of Law in New York City. He can be found on LinkedIn at https://www.linkedin.com/in/dean-rosenberg-4a1507a1/ and on Twitter @deanrosen7. For all of Dean’s Conduct Detrimental Articles, click here. [1] Byron Buxton, Curt Casali, Brandon Drury, Austin Hedges, Travis Jankowski, Max Kepler, Jose Peraza, Kevin Plawecki, Blake Swihart, and Tony Wolters [2] https://www.washingtonpost.com/sports/2019/01/10/joe-ross-nationals-avoid-arbitration-by-settling-before-deadline/ [3] https://www.espn.com/mlb/story/_/id/28460082/trea-turner-nationals-avoid-arbitration-745m-deal-2020 [4] https://www.mlbtraderumors.com/2021/01/nationals-trea-turner-avoid-arbitration.html [5] Kris Bryant, Jackie Bradley Jr., Jake Marisnick, George Springer, Nolan Arenado, Didi Gregorius, Jurickson Profar, Anthony Rendon, Lonnie Chisenhall, Josh Donaldson, Martin Maldonado, Darwin Barney, Lucas Duda, and Eric Hosmer [6] Donaldson lost to the Blue Jays his first time eligible for arbitration in 2015 when he filed at $5,750,000 and the Club filed at $4,300,00 [7] https://www.espn.com/mlb/story/_/id/30719204/chicago-cubs-avoid-arbitration-kris-bryant-javy-baez [8] Jackie Bradley Jr., Jake Marisnick, and George Springer [9] Nolan Arenado, Didi Gregorius, Jurickson Profar, and Anthony Rendon [10] Lonnie Chisenhall, Josh Donaldson, and Martin Maldonado [11] Darwin Barney, Lucas Duda, and Eric Hosmer [12] https://www.purplerow.com/2017/1/13/14247806/colorado-rockies-nolan-arenado-arbitration-contract [13] https://www.mlbtraderumors.com/2016/02/blue-jays-josh-donaldson-agree-to-two-year-extension.html [14] https://www.espn.com/mlb/story/_/id/22331130/george-springer-houston-astros-agree-two-year-deal-avoid-arbitration [15] Ibid [16] https://www.baseball-reference.com/awards/awards_2021.shtml [17] Settled for $27M with the Red Sox in 2020 [18] Settled for $26M with the Rockies in 2019 [19] Settled for $23M with the Blue Jays in 2018 [20] Settled for $22.3M with the Mets in 2021 [21] Settled for $21M with the Astros in 2020

The NHL season is underway and while the spotlight is on the players, more light needs to be shed on the teams. The Chicago Blackhawks were recently in the news for their investigation into allegations of sexual assault from 2010. This resulted in the president of hockey operations resigning and the team being fined $2 million dollars. The Pittsburgh Penguins recently settled following claims that former Wilkes-Barre/Scranton Penguins coach John Donatelli sexually assaulted Erin Skalde in 2018. The details of the settlement were not disclosed. While these stories have been a hot topic there is little media coverage about the Anaheim Ducks General Manager (GM) Bob Murray. Murray has been employed by the Ducks since 2005 and is the third-longest tenured GM in the NHL. The other two tenured GMs are Nashville’s David Poile and San Jose’s Doug Wilson.[1] At first Murray was placed on administrative leave by the Ducks but ultimately, he resigned from his position. The leave and ultimately resignation stem from the same allegation of improper professional conduct, the specific of the complaints as well as people who came forward has not been disclosed. An internal investigation conducted by Sheppard Mullin revealed that Murray created a toxic workplace by verbal abusing and harassing Ducks players, coaches and personnel.[2] One source stated “Working for Bob Murray was pure daily mental warfare. The abuse was endless. Crazy text messages to players and staff berating them for their performance and threats of job security happened with regularity. These weren’t one-time slip-ups or mistakes. These were regular explosions and eruptions.”[3] This type of verbal abuse does not belong in the workplace. Following his resignation, Murray will enroll in an alcohol abuse program and assistant general manager Jeff Solomon will take over as interim GM.[4] After resigning Murrays said "I want to apologize to anyone adversely affected by my behavior. I vow to make changes to my life, starting with enrolling in a treatment program. I want to thank Henry and Susan Samueli, and Michael Schulman, as working for them has been one of the highlights of my career. As I step away from the Ducks, I will focus my attention on where it should be: improving my life for the betterment of my family and friends." The Ducks owners, Henry and Susan Samueli released a statement following Murray’s resignation saying "First and foremost, we apologize on behalf of the organization to anyone affected by misconduct from Bob. We expect every member of our organization to be treated with respect and will not stand for abuse of any kind.” [5] The NHL also released a statement supporting the resignation and condemning any type of workplace abuse. While the sentiments from the owners and league are a start, it is not enough. The NHL needs to hold teams more accountable for their staff and actions of the teams. The last few months have seen allegations from the Blackhawks and the Penguins. In both situations, complaints were ignored by high-ranking officals within the organizations. The individuals who work and play for these teams have the right to be in a workplace enviornment that is welcoming, not toxic. This does not just apply to the NHL; the NFL and the NBA have also had allegations against owners of teams with in the last few years. The bad behavior of the high-ranking individuals in these leagues is unacceptable and should no longer be tolerated. The commissioners of the leagues need to do better to protect the staff and players. [1] Seravalli, Frank. “Sources: Ducks GM Bob Murray Placed on Leave for 'Mental Warfare,' Verbal Abuse.” Daily Faceoff, Nov. 10, 2021, https://www.dailyfaceoff.com/sources-ducks-gm-bob-murray-placed-on-leave-for-mental-warfare-verbal-abuse/. [2] Id. [3] Id. [4] Shilton, K. (2021, November 11). Anaheim Ducks general manager Bob Murray resigns, will enroll in Alcohol Abuse Program. ESPN. from https://www.espn.com/nhl/story/_/id/32601417/anaheim-ducks-general-manager-bob-murray-resigns-enroll-alcohol-abuse-program. [5] Id.

Picture this: you’re sitting at your laptop, and after hearing some buzz about allegations of abuse in the NWSL, you decide to Google the situation. You get super creative with your search and enter, “Abuse in the NWSL.” Here are the titles of just some of the articles you would find: “Rory Dames Accused of Verbal, Emotional Abuse After Resignation as Chicago Red Stars Coach” “Red Stars’ Dames Resigns Amidst Abuse Allegations; NWSL Players Say U.S. Soccer Failed to Act” “Again and Again. Women’s Pro Soccer Players Are Just the Latest to Deal with Abuse” “‘This Guy Has a Pattern’: Amid Institutional Failure, Former NWSL Players Accuse Prominent Coach of Sexual Coercion” “Dames Becomes Fifth Male NWSL Coach to Resign in 12 Months Amidst Abuse Claims” “A Timeline of the Abuse Allegations, Protests, and Negotiations that Have Rocked the NWSL” “NWSL Agrees to Several Demands from Players in Wake of Abuse Scandals” “NWSL Sexual Abuse Scandal: Female Athletes Deserve Better” Within the past few months, courageous NWSL athletes decided that enough was enough. Athletes across all teams stood in solidarity with one another as they championed the #NoMoreSilence campaign, one which referred to the six years wherein league leadership did nothing to investigate claims of emotional, verbal, and sexual abuse.[1] Brave survivors came forward both to share their stories and to put pressure on league administration to act accordingly. As each new player came forward with her own story, it seemingly empowered the next one to follow suit. As of now, players from the Washington Spirit, Portland Thorns, and Chicago Red Stars have come forward with similar allegations of abuse from within their organizations. Head coach Richie Burke of the Washington Spirit was fired midseason amid allegations of verbal and emotional abuse, which presented itself as racially insensitive comments, threats, and personal insults against players.[2] After hiring an independent third party to evaluate the allegations, the NWSL released findings that substantiated the claims.[3] The League determined that Burke had violated its anti-harassment policy and permanently banned him from working with NWSL players in any capacity.[4] In the wake of Burke’s firing, Spirit players came forward with a series of demands from upper management—namely for the organization’s CEO, Steve Baldwin, to step down from his role and sell the team. The powerful statement penned by the athletes can be found at the following link: https://theathletic.com/news/washington-spirit-players-ask-former-ceo-steve-baldwin-to-sell-team/G2HYPC21HtcL/ Even still, allegations of abuse continued. Head coach Paul Riley of the North Carolina Courage was fired following allegations of verbal abuse and sexual coercion which occurred during his time as head coach of the Portland Thorns.[5] The allegations against him spanned “over a decade and across multiple teams.”[6] As details of the League’s mistreatment of the situation emerged, NWSL Commissioner Lisa Baird resigned from her position just days after Riley was terminated.[7] Lisa Levine, the former general counsel of the NWSL, resigned as well.[8] It is important to note that these authority figures were permitted to resign—rather than be fired—from their positions despite their blatant disregard for the health and safety of the athletes. The most recent development in the untangling of this cobweb of abuse came about last week when Christen Press, perhaps one of the most famous and talented players within women’s soccer today, came forward to corroborate stories of verbal and emotional abuse handed down from Chicago Red Stars head coach Rory Dames. Once again, however, Press made these allegations long ago—in fact, Becca Roux, executive director of the national team players’ union, confirmed that these allegations were reported as early as 2018.[9] “I think Rory emotionally abuses players,” Press stated. “He doesn’t have a safe distance between himself and [them]. He uses his power and status as the coach to manipulate players and get close to them.”[10] Similar to the allegations made against North Carolina Courage head coach Paul Riley, Press—and the seven others speaking up beside her—claimed that nothing was done to mitigate the damages of this abhorrent behavior. However, in Dames’ case, players went not to the NWSL itself, but to straight to the top—the U.S. Soccer Federation.[11] Their response, both to Press and the others? “Be quiet.” The allegations against Dames, who was the longest-tenured coach in the NWSL when he was permitted to resign, were first reported to the public by the Washington Post. The Post conducted a series of private interviews and examined confidential records in the course of their investigation after allegations of abuse continued to arise from players. Per their investigation, the Post determined that players had seen Dames “cross a line” into the territory of verbal and emotional abuse, stating that he would control, berate, and humiliate players and often broke the boundaries of the player-coach relationship.[12] In 2021 alone, five male NWSL coaches—including Dames—have been accused of misconduct, making it clear that this abuse is nowhere near an isolated incident.[13] May we tip our hats to all of the brave athletes who came forward over the past six years, to those who are currently taking a stand, and to those who are not yet ready to do so. We, as your fans, stand by you in your demand for #NoMoreSilence. [1] https://www.insider.com/nwsl-sex-abuse-scandal-players-protest-honor-survivors-league-return-2021-10 [2] https://www.npr.org/2021/09/29/1041397913/nwsl-washington-spirit-richie-burke-fired [3] Id. [4] Id. [5] http://wesleyanargus.com/2021/11/01/nwsl-sexual-abuse-scandal-female-athletes-deserve-better/ [6] Id. [7] https://www.espn.com/soccer/united-states-nwsl/story/4491397/former-nwsl-commissioner-lisa-baird-resigns-from-us-soccer-board-of-directors-sources [8] Id. [9] https://www.washingtonpost.com/sports/2021/11/22/rory-dames-chicago-red-stars-resigns/ [10] Id. [11] Id. [12] Id. [13] Id.

The date was December 11th, 2020. Fresh off back-to-back 10 win seasons and New Year’s Six Bowl victories, Dan Mullen’s tenure at Florida couldn’t be going any smoother. Ranked 6th in the country and in control of their own destiny to reach the College Football Playoff for the first time since its formation in 2014, Mullen was viewed as one of the premier coaches in the SEC. Meanwhile, after a collection of 10 win seasons in his first few years in Ann Arbor, Jim Harbaugh’s Michigan Wolverines had played their last game in an abysmal 2-4 abbreviated Big Ten season. After failing to beat Ohio State in each of his first 5 attempts, people wondered if Jim Harbaugh could ever get Michigan over the hump to win big time games and into CFP contention. In the offseason entering this season, both coaches received adjustments to their contracts, but not in the same fashion. Despite struggling down the stretch and finishing 8-4 after a competitive loss to the eventual National Champion Alabama, Mullen was rewarded with a three-year contract extension through the 2026 season that raised his annual salary to $7.6 million a year. The thought was he had the Gators in position to challenge perennial powers Alabama and Georgia for the foreseeable future. Following Michigan’s underwhelming 2020 season and the perceived distance their rival in Columbus was creating between them, there was a thought that Michigan would fire Jim Harbaugh. However, the Wolverines administration decided to stick with their coach, but not without stipulations. Harbaugh’s guaranteed salary was cut in half, which is something you rarely see happen. Coming into 2021, one coach was on the hot seat, and it definitely wasn’t Dan Mullen. Fast forward to where we are today. Jim Harbaugh’s Wolverines finally got over the Ohio State hurdle to win the Big Ten East. They’ll play this week for a spot in the Playoff despite a preseason betting win total of 7.5. Dan Mullen, less than six months after signing a contract extension, is out of a job. While there certainly were issues pertaining to recruiting and obviously performance on the field, Mullen went an impressive 34-15 in his four years in Gainesville. Mullen wasn’t the only coach to be fired by their respective school this coaching cycle on a whim. Less than two years after winning a national championship, LSU’s Ed Orgeron was fired. Before even coaching his 14th game at Washington, Jimmy Lake was let go after going 7-6. In his third year at Texas Tech, Matt Wells was fired despite a 5-3 record at a program that had only finished above .500 once in the previous seven seasons. While there were certainly unique variables that played a role in each of these changes, it’s clear that recency bias and external influences are having a major impact in a university’s decision making process. With all the financial advantages boosters can provide to an athletic department, they might come with expectations for some form of influence on crucial decisions including who is leading their program. In some cases, this has led to university officials and athletic directors losing firm control over the hiring/firing process. It isn’t rare to see coaching searches drag on because of a power struggle between prominent boosters. And when a coach fails to have success soon after getting hired, the amount of patience certain individuals have is lessening year by year. However, if Michigan had the same quick trigger that Florida had with Dan Mullen, would the Wolverines be in the Big Ten Championship this week? In the same vein, if Notre Dame would’ve fired Brian Kelly after the Irish’s 4-8 season in 2016, would they have made two CFP’s and be in contention for another one this year? Whether it’s firing a coach too early in their tenure or terminating them after one down year, recency bias is more prevalent than ever before in college sports. Coaches need time to bring in their recruiting classes to fit their program. Additionally, teams have bad seasons, it’s part of sports. A couple of bounces here and there can turn a 9-win season into a 6-win season. While nothing can be certain, who’s to say that Florida couldn’t bounce back next season just like Michigan did this year? An interesting test case to watch will be Nebraska’s faith in Scott Frost. Unlike Mullen, Frost hasn’t had success in his current job. However, Nebraska is giving him another chance at a reduced salary. Although they went 1-8 in Big Ten play, Nebraska was not outscored in terms of cumulative point differential. If Nebraska improves next year, I think schools across the country should really question if caving to recency bias is really worth it. We’re up to $62 million in total buyout money spent by public schools this year, which is just not a good look for college sports. On the flip side, coaches need strong language in their contracts to protect against this ongoing trend. Brendan Bell is currently a Junior at Auburn University majoring in Finance with aspirations to attend law school. He is passionate about the business of college athletics and would love to obtain a career in the industry some day. You can follow Brendan on Twitter @_bbell5

MLS’ status as a “single-entity” league is oft reported and mentioned, but not well understood. The league, others like it (such as the NWSL), and their extremely expensive antitrust counsel often hold it up as some sort of legal golden goose. This article will explain why that is a legal and factual fallacy. This article will proceed in five parts, explaining: (1) MLS’ corporate structure; (2) antitrust law and the single-entity concept; (3) MLS and the single-entity defense historically; (4) relevant MLS club operations today; and, (5) why the single-entity defense is unhelpful to MLS today after the decision in the Moultrie v. NWSL case. MLS’ Corporate Structure MLS – which began play in 1996 – is structured differently than the NFL, MLB, NBA, and NHL. In each of those leagues, each individual club is its own legal entity (e.g., the New York Football Giants, Inc.).[1] Those clubs then agree to the creation and operation of their respective leagues by contract, through Constitutions and Bylaws. The leagues themselves are unincorporated associations,[2] i.e., they, generally speaking, are not separate legal entities.[3] Each club continues to operate as its own business and directly employs its own players and other personnel. While there is no “National Football League, Inc.” there is a “Major League Soccer, LLC.” MLS is a limited liability company and consists of 27 professional soccer clubs. The legal entity which operates each individual club is a member of MLS.[4] Thus, when people talk about MLS being a “single-entity,” the entity to which they are referring is “Major League Soccer, LLC.” Importantly, while the clubs employ their non-player personnel (i.e., pay and provide benefits), players are employed by MLS – all player contracts are executed between the player on one hand and MLS on the other, unlike in the NFL, MLB, NBA, and NHL. It is this last piece of the structure that is intended to provide protection from the antitrust laws. Antitrust Law and the Single-Entity Defense Section 1 of the Sherman Act prohibits “every contract, combination or conspiracy in restraint of trade.”[5] The Supreme Court subsequently clarified that only “unreasonable” restraints are illegal.[6] Importantly, to state a Section 1 claim there must be a plurality of actors, i.e., two or more.[7] The leading case on this issue is Copperweld Corp. v Independence Tube Corp. (1983) in which the Supreme Court held that a parent corporation and its wholly owned subsidiary were incapable of conspiring with one another for purposes of Section 1.[8] The single-entity defense was thus born. Since Copperweld, sports leagues have repeatedly tried to invoke the single-entity defense in antitrust lawsuits.[9] Sports leagues have credibly argued that they are unique products that require a high degree of collaboration to create, e.g., you cannot have a game with just one team, teams need to agree to the rules of the game, etc. While courts have been sympathetic to these views in applying the antitrust laws, no court has ever found that a sports league, in any capacity, is a single-entity and therefore immune from antitrust law.[10] Most notably, in 2010, the Supreme Court unanimously rejected the NFL’s argument that its licensing arm (National Football League Properties) constituted a single-entity for purposes of licensing NFL club intellectual property for use on merchandise.[11] MLS and the Single-Entity Defense Historically To understand MLS’ invocation of the single-entity defense, it is important to understand the application of antitrust laws to sports. Sports leagues consist of individual clubs which, among other things, compete in a labor market for players’ services by, for example, offering longer contracts for more pay. This is the process we know as free agency. However, for many years, no such processes existed. Instead, player employment was strictly controlled by rules ageed upon by the clubs and without any player input. Eventually, players began to challenge these rules as violations of Section 1 of the Sherman Act, alleging that they were unreasonable restraints on the labor market agreed upon by competitors in that market. The courts frequently agreed and through lawsuits and other legal actions in the 1970s through early 90s, the players won the right to free agency (and sometimes hundreds of millions of dollars in damages). Today, restraints on the player market – such as salary caps, maximum salaries, service time requirements for free agency and the draft – are protected from antitrust law so long as they are collectively bargained with the players’ union, a concept known as the “non-statutory labor exemption.” MLS wanted to avoid these lawsuits and also maintain maximum control over the player market. Consequently, in consultation with antitrust lawyers from the other sports leagues, it came up with its single-entity structure.[12] Nevertheless, MLS’ efforts to avoid antitrust scrutiny were tested almost immediately. On February 13, 1997, MLS players, led by Iain Fraser, filed a lawsuit against MLS and the handful of entities operating clubs at that time, alleging that the restraints imposed by MLS and the clubs over player movement were violations of Sections 1 and 2 (which governs monopolization) of the Sherman Act. The players, who were not unionized at that time, were represented by longtime counsel for sports unions and players, Jim Quinn and Jeffrey Kessler, both then of Weil, Gotshal & Manges. MLS and the clubs responded by asserting the single-entity defense. The District Court bought the argument. The United States District Court for the District of Massachusetts found that MLS was a single-entity and thus dismissed the plain­tiffs’ Section 1 antitrust claims.[13] The remainder of the plaintiffs’ claims was dismissed after a jury found that the plaintiffs had failed to adequately allege a relevant market in which MLS had allegedly violated the antitrust laws.[14] The First Circuit disagreed, finding the MLS’ argument that it was a single-entity to be “doubtful.”[15] On appeal, that court found as follows with regard to MLS’s operations: “[T]here is a diversity of entrepreneurial interests that goes well beyond the ordinary company. MLS and its operator/investors have separate contractual relationships giving the operator/investors rights that take them part way along the path to ordinary sports team owners: they do some independent hiring and make out-of-pocket investments in their own teams; they retain a large portion of the revenues from the activities of their teams; and each has limited sale rights in its own team that relate to specific assets and not just shares in the common enterprise. One might well ask why the formal difference in corporate structure should warrant treating MLS differently than the National Football League or other traditionally structured sports leagues.”[16] Ultimately, the court declared that the single-entity question “need not be answered definitively in this case.”[17] The First Circuit affirmed the dismissal of the plaintiffs’ claims based on the jury’s determination about a relevant market. The players formed a union soon thereafter, the first collective bargaining agreement was reached in 2004, and the antitrust challenges put to rest for the foreseeable future. MLS’ failure to receive a legal determination that it is a single-entity in the Fraser case is particularly striking given the league’s operations at that time. In the 1996 and 1997 seasons, there were ten clubs and only six owners: MLS owned and controlled the Dallas Burn, Tampa Bay Mutiny, and San Jose Clash; Phil Anschutz owned the LA Galaxy and Colorado Rapids; and Lamar Hunt owned the Columbus Crew and Kansas City Wiz. If ever there was a time to demonstrate that the league was sufficiently centrally controlled such that it should be considered a single-entity for antitrust purposes, 1997 was the time. As will be explained next, since then the leagues’ operations have considerably decentralized, making the single-entity defense almost entirely implausible. MLS Club Operations Today It is important to recognize that the only area in which MLS would claim the single-entity defense is with regard to its relationship with players. On this point, MLS will always point first and foremost to the fact that the players sign their employment contracts with the league and are paid by the league and not the individual clubs. Nevertheless, after that, the clubs do not possess any “unity of interest,” a crucial factor in the Copperweld decision. Clubs, without any material input from the league, control their own rosters and salary budgets – they research, scout, select, and negotiate terms with players (including free agents and transfers), all within the highly competitive international soccer labor market. Indeed, the MLS Constitution declares that teams have the “right and obligation” to “select players for the team.”[18] When a club and player have come to terms, the club presents the details to MLS to do the paperwork, largely as a formality. MLS is generally only involved to ensure that the contracts comply with the collective bargaining agreement and other rules – the same role that all leagues play when it comes to reviewing and approving player contracts. These facts in and of themselves should be fatal to any claim by MLS and its clubs that they are today a single-entity within the player labor market. MLS and the Single-Entity Defense Today The prospect of the MLS – or really any league – asserting the single-entity defense was struck a massive blow in June 2021 in the Moultrie case. Olivia Moultrie, born in September 2005, is a tremendous young soccer talent. However, the NWSL’s rule requiring players to be at least 18 prevented Moultrie from playing in the nascent league. Moultrie sued, alleging that the NWSL’s eligibility rule violated the antitrust laws by unreasonably preventing her from playing. The case has many interesting components, but I will focus here on just the fact that the NWSL responded by asserting the single-entity defense. The United States District Court for the District of Oregon wholly rejected the NWSL’s argument.[19] The Court, citing the NWSL’s LLC agreement, listed out a wide range of ways in which clubs operate independently including selecting and negotiating with players.[20] The Court further found that “the member teams… are direct competitors in the market for players.”[21] In sum, the Court held that the “NWSL and its member teams are not a single entity under §1 of the Sherman Act despite the League's legal classification as one LLC”[22] and enjoined the NWSL from enforcing the age rule. The Moultrie case, while only that of a single district court, is a massively problematic precedent for MLS. The NWSL currently only has ten clubs and as a result has much more centralized control than MLS does – perhaps akin to how MLS operated in 1997 at the time of the Fraser lawsuit. Today, MLS is a billion-dollar industry with club valuations in the many hundreds of millions of dollars. Further, each club employs more than a hundred employees to carry out all its varied business functions and endeavors. It is simply fantastical to suggest that such a business is being operated as a “single-entity.” Nevertheless, it should not matter. Today, MLS negotiates the terms and conditions of player employment with the MLS Players Association (MLSPA), taking advantage of the non-statutory labor exemption to the antitrust laws. At the expiration of a CBA, MLS players could theoretically take a page out of the book of their brethren in the NFL and NBA by decertifying the MLSPA as their bargaining representative and bringing an antitrust lawsuit. However, given the generally precarious financial condition of MLS (to be discussed in my next article), I believe that both the MLS and MLSPA know such litigation – and the work stoppage it would involve – would be traumatic for the league and its future. Consequently, I expect that the MLS and MLSPA will, by bargaining collectively, continue to act like the other sports leagues. Commentators of all kinds should treat the MLS accordingly. Christopher R. Deubert is the Principal at the Law Office of Christopher R. Deubert, Esq., specializing in sports, litigation, and labor and employment. Chris has more than a decade of experience in sports and the law, including a stint as General Counsel of an MLS club, and has more than 30 academic publications to his credit. For more, please visit www.deubertlaw.com. [1] See, e.g., Brady v. Nat’l Football League, 640 F.3d 785 (8th Cir. 2011) (“This is an appeal by the National Football League and 32 separately-owned NFL teams”). [2] Montador v. NHL, 15-cv-10989, 2020 WL 11647730, at *17 n.2 (N.D. Ill. Nov. 24, 2020); Senne v. Kan. City Royals Baseball Corp., 14-cv-608, 2021 WL 3129460, at *2 (N.D. Cal. July 23, 2021); NCAA v. Governor of N.J., 939 F.3d 597, 597 (3d Cir. 2019); Am. Needle, Inc. v. NFL, 560 U.S. 183, 183 (2010). [3] All the leagues do have related legal entities that carry on various business aspects of each league, such as broadcasting or merchandising. [4] See Complaint, Major League Soccer, LLC v. Pearson, 21-cv-13940, ECF No. 1, at ¶ 14 (D.N.J. July 21, 2021) (identifying NYRB as the “entity that operates the New York Red Bulls soccer club”); Nowak v. Major League Soccer, LLC, 14-cv-3503, 2015 U.S. Dist. LEXIS 184338, at *1-2 (E.D. Pa. July 20, 2015) (“Each team within the MLS is owned by MLS but is operated by an owner-operator that is a member of MLS. Pennsylvania Professional Soccer, LLC, (‘PPS’) is the owner-operator that operates the Philadelphia Union MLS team, and is a member of MLS.”); see also Defendants Olsen, D.C. Soccer, LLC and Major League Soccer, LLC’s Motion to Dismiss, Horton v. Espindola, 17-cv-1230, ECF. No. 17, at *5 (D.D.C. Sept. 7, 2017) (“MLS is owned by the operators of each of the teams that participate in the League.”) [5] 15 U.S.C. § 1. [6] Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 87 (1911). [7] See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769-70 (1983). [8] Id. at 771. [9] See Gabriel Feldman, The Puzzling Persistence of the Single-Entity Argument for Sports Leagues: American Needle and the Supreme Court’s Opportunity to Reject a Flawed Defense, 2009 Wis. L. Rev. 835, 844-49 (2009). [10] See id. [11] Am. Needle, Inc. v. NFL, 560 U.S. 183 (2010). [12] See Fraser v. Major League Soccer, L.L.C., 97 F.Supp. 2d 130, 132-34 (D. Mass. 2000) (discussing MLS’ structure, operations and origin, including meetings with NFL’s antitrust counsel). [13] See id. at 135–36. [14] See Fraser v. Major League Soccer, L.L.C., 284 F.3d 47, 55 (1st Cir. 2002). [15] Id. at 58. [16] Id. at 57. [17] Id. at 56–59. [18] The MLS Constitution is 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). [19] See O. Moultrie v. Nat’l Women’s Soccer League, LLC, 2021 WL 2478439, at *10-11 (D. Or. June 17, 2021). [20] Id. [21] Id. at *12. [22] Id. at *11.

Last Wednesday, the NFL and their thirty-two owners settled with St. Louis, the Convention and Visitors Commission (CVC), and the Regional Stadium Authority (RSA) for $790 million. St. Louis mayor Tishaura Jones and County Executive Sam Page decided to settle; the lawyers received the backlash due to their payout from this settlement, which turned out to be $276.5 million. In civil cases, the clients, here Mayor Jones, Sam Page, and the CVC and RSA, make the decision to settle, not the attorneys. The decision to take $513.5 million, after attorney fees, turned out to be the right decision. Frank Cusumano, lead sports reporter for the NBC affiliate, KSDK, spoke with former St. Louis mayor Francis Slay, and Mr. Slay believed the plaintiffs made the correct decision. Mr. Slay is speaking from experience, as he was on the plaintiffs’ side in the Exxon Valdez case. In Exxon Shipping Co. et. al. v. Baker et. al., the jury at the trial court level awarded the plaintiffs $287 million in compensatory damages. The jury and an Anchorage, Alaska court punished the Exxon Corporation by assessing $5 billion in punitive damages. Exxon appealed this judgment to the 9th Circuit U.S. Court of Appeals, which reduced the judgment to $4.2 billion. Exxon appealed this judgment not to the U.S. Court of Appeals but to the Supreme Court. The Supreme Court called this judgment excessive, and they reduced the punitive damages to a one-to-one ratio. The Supreme Court’s ultimate judgment on the punitive damages ended up being $500 million. The Supreme Court did not reduce the compensatory damages. The punitive damages were reduced from $5 billion to $500 million, a 10% judgment from what the trial court originally awarded to the Alaskan citizens. In the St. Louis case, damages were reported to be in the billions, should this case have gone to trial and the plaintiffs won. Even so, as pointed out by Conduct Detrimental’s own Dan Lust, in an interview with 590 the Fan’s Bernie Miklasz, and local St. Louis media, the NFL would have appealed the circuit court’s ruling. It is certainly conceivable that the Missouri Court of Appeals could have reduced these damages to an amount below the $790 million settlement the parties agreed to last week. This type of NFL appeal at the circuit court level could take years and delayed any recovery accordingly. Not to mention the fact that a victory was never guaranteed t at trial or appeal. The point is settling now guaranteed a victory. It was a safe decision that ensured an immediate financial windfall. Can we really blame them for going that route? St. Louisans can be frustrated that this never went to trial, that they lost out on a franchise team possibility (which STL attorneys might not have pushed strongly for as Dan Lust and others pointed out), and they never got to see the NFL “squirm” on the witness stand. The plaintiffs’ attorneys did air the NFL’s dirty laundry because they won almost every motion at discovery, and the NFL’s motions to either dismiss the case or send this case to arbitration were rejected by Judge McGraugh. St. Louis had a viable case, but as shown in the Exxon case, they took the best offer available to them without going through the trial process. The best analogy I can use is an example from the game show “Let’s Make a Deal.” On the show, some contestants are offered a “sure thing,” or they can take the curtain or big box. If they take the curtain or big box, they lose the “sure thing.” The curtain or big box can be a “Zonk,” which is a fake prize. In this case, the “sure thing” was the $790 million settlement, and the curtain or big box was the trial. It may have been the safer option but it does not necessarily mean it was the wrong option. 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.

In October, I was fortunate enough to be a part of a panel at the Harvard Law School Sports Law Symposium entitled “On the Rise? Pro Soccer in the United States.” The question mark in the title was added at my suggestion. My uncertainty as to the place of soccer in the North American sports landscape is derived from the financial realities of MLS and its clubs, as I will explain in this article (we will save discussions about the USL for my next article). As an initial matter, if MLS is on the rise, it seems to necessarily suggest that other leagues are on the decline and that MLS may pass them. Indeed, some MLS club owners have spoken of MLS passing MLB and the NHL in popularity.[1] This is not reasonable. The four major North American sports leagues collect the following approximate amounts of revenue each year: NFL - $14B; MLB - $10B; NBA - $8B; and, NHL - $4B. MLS’ revenues are approximately $1B per year, 25% of the NHL’s revenue and only 10% of MLB’s revenue. This is not a gap that is likely to close anytime soon, if ever. Consequently, MLS seems likely to remain the 5th largest and most popular league in North America for a long time to come. Next, let’s turn to the most important source of those revenues – television contracts. The NFL just signed new television deals worth approximately $10B per year. No other league is reaching those numbers any time soon. The NHL this season started the terms of national television deals which bring the league $725M annually. The English Premier League just signed an American television deal worth $450M annually for six years. By comparison, MLS is currently playing under television deals worth a reported total of $90M, or a little more than $3M per club. Those television deals expire at the end of 2022 and MLS is banking on a major increase. Further, MLS has instructed that clubs cannot extend their local television deals beyond the 2022 season, retaining the possibility that the league can package all of the clubs’ television rights into a single package (as is done in the NFL). The question though is what MLS can realistically expect from a television contract. MLS matches on ESPN and ABC this season average 384,000 viewers.[2] So far this season, NHL games on ESPN and Turner Sports appear to be averaging about twice that.[3] Next, the 2020 MLS Cup had approximately 1 million viewers.[4] By comparison, the 2021 NHL Stanley Cup Final averaged about 2.5 million viewers.[5] These figures would suggest MLS is capable of a television package that is at most half of what the NHL receives, or $362.5M annually. Based on the Premier League’s recent package, this seems possible. This would be a dramatic increase in revenue but I am not persuaded it will materially change MLS’ financial outlook. We also need to consider local television contracts. In MLB, NBA, and the NHL, teams enter into agreements to broadcast locally games which are not being aired on national television. These deals are worth millions or tens of millions of dollars per year. In contrast, it is my understanding that most MLS teams must pay to be on television locally. Simply put, the local ratings for MLS matches are so low that television networks do not see value in broadcasting them. Clubs are forced to pay the networks to broadcast their games (while also usually paying for production) just so the clubs can try to maintain some sense of credibility and momentum with their fanbases. Without meaningful broadcast revenues, clubs generate the majority of their revenue from ticket sales. COVID-19 obviously put a major dent in that bucket and seems likely to continue to do so for an extended period of time. While some MLS clubs have impressive attendance figures, more than half the league averages less than 15,000 fans per match[6] (assuming clubs are accurately report attendance, which some probably aren’t). MLS tickets average $45-50.[7] With only 17 home matches, a club averaging 15,000 fans per match receives annual revenue of approximately $11.5-12.75M. In most contexts, that is a pile of money, but when it is the principal revenue source for operating a professional sports club, it is not much. Having discussed two of MLS’ principal revenue streams, let’s consider club finances generally. Of the 124 teams in the NFL, MLB, NBA, and NHL, it is my understanding that all but a handful of NHL teams are profitable in their own right, i.e., without regard to the finances of a parent company or affiliated entity (such as a stadium). By comparison, it is my understanding that at most there is 1 or 2 MLS teams that are profitable. The remainder lose millions of dollars a year. Further, it is my understanding that the MLS league office relies on multi-million dollar capital calls from its clubs to operate each year. No other league does this. Finally, with revenues of $1B, that implies that the average club has revenues of approximately $37M, which qualifies as a small business according to the standards of the Small Business Administration. Some have taken to calling MLS a Ponzi scheme.[8] I’ll explain. MLS had 20 teams in 2016. By 2023, it will have 29. All those new clubs will have paid large expansion fees, some in the hundreds of millions of dollars. The league, through one channel or another, distributes much of those funds to its clubs to help fund their operations. At some point soon, the league will reach capacity and the expansion fees will dry up. Consequently, I believe MLS relies on two ownership models. First, there are uber-wealthy individuals who do not mind losing millions of dollars every year on their MLS club because it likely offsets taxable gains elsewhere – this group includes individuals who also own NFL clubs, like Arthur Blank, Robert Kraft, and Ziggy Wilf. The second model is having clubs borrow considerable sums from major financial institutions, often with high interest rates, to fund operations and construction of new soccer-specific stadiums, in the hopes that the equity value of the club will rise fast enough to allow for refinancing on better terms or new investors. Some clubs are regularly selling off minor stakes in the clubs to fund the club’s operations. For example, if the club (including related entities) is valued at $500M, the club may sell a 1% stake to a professional athlete or public figure as a vanity investment for $5M. The club will then turn around and use that $5M to cover payroll and operating costs. This is not exactly a model of financial stability. Despite the above questions, the league marshals on. Indeed, it successfully survived COVID-19 which it might not have been able to do a decade ago. The financial situation of the league and many of its clubs can sometimes seem precarious – particularly as compared to other sports leagues – but the league and clubs have managed them to date and likely will continue to do so. Nevertheless, there is nothing about MLS’ attendance figures or television ratings that indicates this economic model is going to materially change anytime soon. Consequently, MLS, the preeminent soccer league in the US, is not on the rise – it is and will remain flat, as the 5th league in the United States. Christopher R. Deubert is the Principal at the Law Office of Christopher R. Deubert, Esq., specializing in sports, litigation, and labor and employment. Chris has more than a decade of experience in sports and the law, including a stint as General Counsel of an MLS club, and has more than 30 academic publications to his credit. For more, please visit www.deubertlaw.com. [1]MLS Owners Predict League Will Pass Baseball, Hockey in Popularity in Next 10 Years, SI.com (Feb. 26, 2020), https://www.si.com/soccer/2020/02/26/mls-owners-predict-future-popularity-mlb-nhl-premier-league. [2] https://espnpressroom.com/us/press-releases/2021/08/major-league-soccer-audience-on-abc-and-espn-networks-up-50-percent-in-2021-compared-to-2020-regular-season/. [3] https://www.cnbc.com/2021/10/14/nhl-started-its-1-billion-deal-with-espn-and-turner-sports-heres-how-many-people-watched-the-season-openers.html. [4] https://www.sportspromedia.com/news/mls-cup-final-tv-ratings-viewers-fox-unimas/ [5] https://www.sportspromedia.com/news/stanley-cup-final-tv-ratings-nbc-viewership-average-audience/ [6] https://soccerstadiumdigest.com/2021-mls-attendance/ [7] https://www.ticketmaster.com/mls [8] Ken Belson, Don Garber on M.L.S.’s Past, Present and Future, N.Y. Times (Aug. 3, 2019), https://www.nytimes.com/2019/08/03/sports/soccer/don-garber-mls.html; Neil DeMause, Is MLS A Ponzi Scheme?, Deadspin (Aug. 4, 2017), https://deadspin.com/is-mls-a-ponzi-scheme-1797509617.

On December 5, 2021, women’s soccer player Sam Kerr was left to her own devices when a fan stormed the pitch in a game between Chelsea and Juventus. During the match, an attendee ran onto the field, approaching players for pictures and running around aimlessly, with no interference from security. Kerr, seemingly and rightfully frustrated with this interference of the match, lowered her shoulder and knocked over the pitch invader. This led to security finally entering the pitch and, albeit more politely than expected, carrying the fan away. Surprisingly, Kerr received a yellow card penalty for hitting this fan, even though many view her act as one that protected the players when security failed to. While this penalty can and should be appealed, such an occurrence raises questions as to how a fan could disrupt a game so easily with no interference. When reflecting on how to prevent a fan from storming the field, we typically look to the regulations and laws that deter the individual from making such a decision, and the security that physically prevents the action from taking place. For example, in the MLB, sneaking onto the field is punishable by a criminal trespass charge, a night in jail, a lifetime ban from the venue, and in some jurisdictions, a fine. In New York, this behavior is punishable by up to a year in jail and fines of up to $25,000. In the United Kingdom, fans who storm the field are arrested and charged with a fine of up to 1,000 euro, along with the social ramifications of disrupting the beautiful game. Aside from legal deterrence, fans are usually prevented from entering the pitch because of heightened security protecting the athletes. Due to the harsh penalties at stake and the risk of physical contact with a security guard, many are left questioning how the fan from the Chelsea game ran around for minutes without apprehension, and why he only received a temporary suspension from attending games instead of any criminal or civil charges. The answer to this question is bleaker than it seems: inequity due to gender. The UK Football Offences Act states, “It is an offense for a person at a designated football match to go onto the playing area, or nay area adjacent to the playing area to which spectators are not generally admitted, without lawful authority or lawful excuse.” While this seems promising for prosecution of the fan’s actions, this Act, amended in 2011, includes protection for teams comprised of men, and not for women. Therefore, under statute in the UK, individuals who sneak onto the field in a women’s game statutorily do not have any risk of criminal or civil penalties. Further, while the venue could hold this fan accountable by creating a lifetime ban for their actions, the venue has also failed to do so. Beyond just failing to ban the fan, the venue did not provide heightened security. This is likely because under UK law, police are not required to attend women’s matches unless a credible threat to the players is made ahead of time. As it currently stands, in the UK, women athletes are afforded little to no protection from intruding fans, and while this fan seemed to be mostly harmless, many fear that relying on the innocence of intruders is a slippery slope. All it takes is one overly obsessed or dangerous fan to put the athlete’s lives in great danger. Since this incident and the highlighted focus on the inequities in the legal ramifications between men and women sports, Parliament had introduced legislation to amend the Football Offences Act to include women’s matches. Until such an amendment is made, leagues, venues, and law makers should consider additional methods to protect women athletes. Finally, the league should reconsider their penalty on Kerr, as it sends a message that protecting women athletes when the law fails them is an act that negatively affects their career.

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

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

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

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