Former USC star running back and Heisman trophy winner, Reggie Bush, filed a lawsuit against the NCAA on August 23, 2023. The lawsuit includes claims for defamation and false light, stemming from a July 2021 comment made by an NCAA spokesperson in response to a question from an ESPN reporter about whether the NCAA planned to revisit penalties imposed in prior years, including heavy sanctions levied against USC, in light of the NCAA’s adoption of its Interim NIL Policy (“NIL Policy”). The NCAA’s statement was defamatory, according to Bush, because it falsely implied that Bush engaged in a “pay-for-play” arrangement rather than what would now be allowable NIL activity. The NCAA quickly filed a motion to dismiss the case for failure to state a claim. Putting aside for the moment the merits of the defamation claim itself, the NCAA’s motion to dismiss raises interesting questions about what exactly constitutes “pay-for-play” under the NIL Policy. The NIL Policy, issued in July 2021, permits student-athletes to profit from their “name, image, and likeness” (NIL), when consistent with state law, without affecting their eligibility to compete in NCAA athletics. The NIL Policy, however, contains two major stipulations: athletes still cannot engage in “pay-for-play” arrangements, and schools cannot offer “impermissible recruiting inducements” for attendance. Bush’s defamation case turns, in part, on whether the benefits that Bush and his family allegedly received constitute “pay-for-play.” Those benefits were outlined in a 2010 report issued by the NCAA’s Committee on Infractions (“COI”) after a four-year NCAA investigation into Bush’s eligibility and other potential violations by USC.[1] The COI found that Bush and his family accepted cash, housing, an automobile, appliances, hotel lodging, and more from third parties while Bush was a student-athlete at USC in violation of NCAA amateurism rules.[2] In his complaint,[3] Bush asserts that, even assuming as true that he and his family received the benefits alleged in the COI Report, those benefits do not constitute “pay-for-play” because they were not received in exchange for his participation in athletics. To support this, Bush points to the NCAA Bylaws, which define “pay” as “the receipt of funds, awards or benefits not permitted by the governing legislation of the Association for participation in athletics.”[4] According to Bush, it is undisputed that the benefits he and his family allegedly received were not made in exchange for his enrolling at, or competing for, USC. In other words, there was no quid-pro-quo with boosters, the school, or anyone else, that influenced his decision to play football at USC. Therefore, Bush claims, the benefits were not “pay-for-play”; rather, Bush says the benefits were offered simply because of his image and success, making them akin to profits earned through his NIL, which are allowable under the NIL Policy. The NCAA responded to Bush’s arguments in its motion to dismiss by asserting that the benefits Bush and his family allegedly received were, and are, commonly understood to be “pay-for-play” under NCAA rules. As compared to Bush, the NCAA takes a much broader view of “pay-for-play,” stating in its motion to dismiss that “[m]ost people would understand [“pay-to-play”] to encompass any situation where a purported amateur is using his athletic talent to obtain remuneration, regardless of its source.” (Emphasis added). The NCAA also stated, in response to Bush’s argument regarding the Bylaws’ definition of “pay,” that “[b]y banning pay ‘for’ athletics participation, the Bylaws aim to prohibit all forms of payment made because of, not merely in exchange for, the student-athlete’s participation in athletics.” (Emphasis added). As an example of this, the NCAA pointed to the NCAA Bylaw outlining “Prohibited Forms of Pay,” which forbids “[p]referential treatment, benefits or services because of the individual’s athletic reputation or skill or pay-back potential as a professional athlete.”[5] The NCAA’s proposed interpretation of “pay-for-play” is curious in that it is so broad that it could easily be construed to encompass nearly all NIL agreements—which, of course, are generally considered to fall outside of the prohibited category of “pay-for-play.” After all, what, if not his or her “athletic reputation or skill,” allows a high-profile student-athlete to command a six to seven figure NIL deal? Perhaps the distinction is that NIL arrangements require the student-athlete to engage in some kind of promotional activity in exchange for compensation. Therefore, the student-athlete is compensated (arguably) not for his enrollment at a particular school or for his success on the field (both of which would constitute impermissible “pay-for-play”), but for the promotional activity in which he has engaged—be it endorsing a product on social media, appearing at a promotional event, or signing memorabilia. But this raises two issues: first, how exactly can one separate a student-athlete’s athletic reputation and/or skill from the promotional activity for which he is compensated; and second (assuming we can separate those things) why should a student-athlete’s ability to receive compensation while maintaining NCAA eligibility turn on whether he has engaged in a minor promotional activity in exchange for that compensation? As to the first issue, no one can seriously contend that the lucrative NIL deals many student-athletes have secured were not secured “because of the individual’s athletic reputation or skill.” Sure, the terms of the deal may also require that the student-athlete engage in a promotional activity of some kind. But whatever that promotional activity might be, it is valuable to the company—and therefore, the student-athlete is ultimately compensated by the company—only “because of” the student-athlete’s athletic reputation or skill. In some areas of law, under Title VII for example, “because of” is read to incorporate the standard test of “but-for” causation. See, e.g., Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013). “But-for” causation is established whenever a particular outcome would not have happened “but for” the purported cause. Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1740 (2020). In other words, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” Id. When applied to Title VII employment cases, the “but-for” causation standard “means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the [relevant factor] was one ‘but-for’ cause of that decision, that is enough to trigger the law.” Id. The NCAA’s statements in its motion to dismiss suggest that the “because of” language in the NCAA Bylaws was intended to incorporate a standard similar to the “but-for” causation standard applied in Title VII cases. For example, the NCAA states that “the Bylaws aim to prohibit all forms of payment made because of, not merely in exchange for, the student-athlete’s participation in athletics.” This language indicates that even in situations in which there are multiple reasons that a player has received payment, that payment remains prohibited so long as just one of those reasons is the student-athlete’s participation in athletics. In other words, a player cannot avoid liability just by citing some other factor (i.e., a promotional activity) that contributed to him receiving the payment. To summarize, under the “but-for” standard, so long as payment to a student-athlete as part of an NIL deal would not have been made in the absence of the student-athlete’s athletic reputation and/or skill, one must conclude that the payment was made “because of” the student-athlete’s athletic reputation and/or skill. And the fact that there may have been an additional factor that motivated the payment would not change this outcome. This, of course, would mean that all kinds of NIL activity that is universally considered permissible under the NIL Policy could actually fall within the category of “pay-for-play.” Take, for example, Blake Corum, standout running back for the Michigan Wolverines. Boasting partnerships with Subway, Outback Steakhouses, and Celsius, among others, Corum has an annual NIL valuation of nearly $1 million according to On3.com. Under the but-for test, the question we must ask is whether Corum would be likely to receive the same compensation but-for (i.e., even in the absence of) his “athletic reputation or skill.” The answer, of course, is obviously no. Moreover, under the but-for standard, it is irrelevant that any promotional activity Corum may have engaged in as part of these agreements—for example, appearing in commercials or attending a promotional event—also may have motivated these companies to pay him. So long as changing a single factor—here, Corum’s athletic skill or reputation—would affect the outcome, that factor is a “but-for” cause and will trigger the Bylaw. Thus, under the extremely broad interpretation advanced by the NCAA, nearly every NIL deal now accepted as permissible could in fact be prohibited as “pay-for-play.” The second problem with treating the act of a promotional activity as the distinguishing factor between “pay-for-play” and allowable NIL activity is that the distinction serves no legitimate purpose. Requiring a student-athlete to engage in some promotional activity in exchange for compensation does little, if anything, to advance the NCAA’s purported goal of protecting student athletes “from exploitation by professional and commercial enterprises.”[6] The following hypothetical illustrates the arbitrariness of the NCAA’s standard. Assume that student-athlete A, who is already enrolled at and competing for a particular school, accepts compensation from a third-party, but does not engage in any promotional activity in exchange for the compensation. Assume also that student-athlete B receives the same amount of money as student-athlete A from a company in exchange for posting an endorsement of the company’s product on social media. In both scenarios, the student-athletes receive the same amount of compensation, the compensation comes from a third-party (as opposed to the school itself, a booster, or someone else affiliated with the school), and the payment is (at least in theory) unrelated to the players’ willingness to attend or play for the university at which he is enrolled. The only difference, of course, is that student-athlete B has participated in a minor promotional activity—here, posting an endorsement on social media. And yet, the former apparently constitutes a “pay-for-play” arrangement for which student-athlete A would be deemed ineligible, while the latter would be entirely permissible as “allowable NIL activity.” Other examples also demonstrate the absurdity of this distinction. For instance, reports of student-athletes leveraging a more favorable NIL deal by threatening to transfer or declare early for the NFL Draft have become commonplace in the current NIL landscape. In a typical example of these scenarios, the student-athlete assesses the NIL opportunities presented to him by the school’s collective and decides whether the amount he can collect from those opportunities is sufficient to keep him at his current school. In response, the collective scrambles to piece together additional NIL opportunities to increase the student-athlete’s total potential income, thus incentivizing the student-athlete to remain at the school, rather than transfer to a school capable of offering greater NIL compensation. This scenario would seem to fall squarely within the NCAA’s proposed interpretation of “pay-for-play,” which (according to the NCAA in its motion to dismiss) includes, “any situation where a purported amateur is using his athletic talent to obtain remuneration, regardless of its source.” After all, it is only because of the student-athlete’s athletic talent that the collective at his current school is willing to offer him additional compensation. Moreover, this situation would seem to also involve improper recruiting inducements, given that the additional payments are made with the purpose of dissuading the student-athlete from transferring to a different program. And yet, the NCAA does not condemn these incidents as “pay-for-play” or “impermissible recruiting inducements” in violation of its NIL policy, presumably because the arrangements include a promotional activity on behalf of the student-athlete. Instead, the NCAA pretends that payment was made solely for the promotional activity and thus labels these arrangements “allowable NIL activity.” But, again, even if the promotional activity somehow removes this scenario from the NCAA’s proposed definition of “pay-for-play,” why should a player who receives the same compensation under similar circumstances, but does not engage in a minor promotional activity, receive the harsh punishment of being deemed ineligible for having engaged in “pay-for-play”? None of this is to suggest that all (or any) of the arrangements discussed above should be prohibited by the NCAA. To the contrary, it simply highlights the absurdity of the NCAA’s position on “pay-for-play” and the general arbitrariness of the NCAA’s rules—not to mention the selective enforcement of those rules. In reality, there is no meaningful distinction between what the NCAA calls “pay-for-play” and what it calls “allowable NIL activity.” Accordingly, the NCAA should concede that any distinction it tries to draw between “allowable NIL activity” and impermissible “pay-for-play” arrangements is completely arbitrary and totally impractical. “Pay-for-play” is already happening—the NCAA just refuses to refer to it as such. But labeling certain arrangements “allowable NIL activity” simply because they include some minor promotional activity does not change the fact that those arrangements fall squarely within the NCAA’s articulation of “pay-for-play.” Once the NCAA accepts this fact, perhaps it will be more inclined to take the next step toward implementing a system that is based in reality with clearer and more transparent rules and limitations, to the benefit of all parties. Alec McNiff (Twitter: @Alec_McNiff) is currently completing a federal district court clerkship after spending a year as a litigation associate at a major law firm. Alec earned his J.D. from University of Michigan Law School and holds a business degree from University of Southern California. All opinions are his own. [1] Bush has consistently disputed the allegations contained in the COI Report and continues to do so. [2] COI Report at 55-56. [3] The complaint was filed in Marion Superior Court in the State of Indiana. It is available at https://public.courts.in.gov/MyCase#/vw/CaseSummary/eyJ2Ijp7IkNhc2VUb2tlbiI6Imx5QkllMlZLa29GWW92cXpISHNocjRNUmdZN2s3S0wyLUV6N2RzZEh3M3cxIn19(Case No. 49D01-2308-CT-033106). Bush has since filed an Amended Complaint, but the allegations discussed herein are unchanged in the Amended Complaint. [4] NCAA Bylaw 12.02.10 (2023-24) (emphasis added). [5] NCAA Bylaw 12.1.2.1 (2023-24) (emphasis added). [6] NCAA Motion to Dismiss at 3-4.

On December 9, Shohei Ohtani ended his free agent courtship by signing a record-breaking 10 year / $700M contract with the Los Angeles Dodgers. Ohtani’s deal not only made him the highest paid player in Major League Baseball, but it also made him the highest paid athlete in America. Ohtani’s former teammate and future hall of famer, Mike Trout, is the second highest paid player in professional baseball; he is currently playing under a 12 year / $426M contract with the Los Angeles Angels—$274M less in total value. Although the total value is jaw dropping, Ohtani’s deferred salary is what makes this deal even more unique. Deferred salaries in of itself are not unique to MLB. Former Arizona Diamondback’s owner, Jerry Colangelo, notoriously negotiated several deferred contracts in the early 2000’s. His approach led to a star-studded ball club and an eventual World Series win in 2001. However, when Ken Kendrick took over as the managing partner in 2004, he had to foot the bill for 18 different deferred salaries left over by Colangelo, 15 of which were no longer a part of the Diamondbacks organization—most notably Randy Johnson, Curt Schilling, and Luis Gonzalez. According to Kendrick, he was responsible for $254M in deferred salaries. This, in essence, financially restricted the Diamondbacks over the next decade because they had to continue paying former players along with their current roster. On a larger scale, this led to MLB codifying deferred salaries into its Collective Bargaining Agreement (CBA); the CBA has largely maintained the same structure for deferred salaries since. Currently, there are no restrictions on how much money can be deferred, but each club is responsible for paying the deferred salary in an amount “equal to the present value of the total deferred compensation obligation, on or before the second July 1 following the championship season in which the deferred compensation is earned.”In other words, clubs can continue to defer as much as they want, but they will be subject to the Competitive Balance Tax (CBT)—commonly referred to as the “luxury tax.” The luxury tax refers to an increased tax rate for each dollar that exceeds a predetermined amount set forth by the CBA. The predetermined amount is outlined in the current CBA (in effect until the end of 2026); the remaining total is as follows: $237M in 2024, $241M in 2025, and $244M in 2026. And the tax rate is is determined by using the average annual value of each player’s contract, plus any additional player benefits (e.g., moving expenses, travel allowances, etc.). Thus, if a ball club spends more than $237M in its 40-man roster payroll in 2024, they will be taxed an excess amount. The tax rate is compounded over time for each consecutive year a club exceeds the predetermined amount. In year one, a club will have to pay a 20% tax on all overages; in year two, a club will have to pay a 30% tax on all overages; and in year three and beyond, a club will have to pay a 50% tax on all overages. If a club’s payroll goes below the luxury tax threshold for a season, then it resets, and they will go back to paying 20% if the exceed it again in the future. There are also additional surcharges if a club goes $20M over the threshold; the surcharge ranges from 12% to 60%. Ohtani’s new contract creates a situation where the luxury tax will inevitably collide with his deferred salary. However, like Colangelo’s Diamondbacks, the Dodgers front office could not have asked for a better situation for their immediate future. Typically, deferred salaries are spread out over a long period of time (i.e., ten years). And basic economics would tell us that the value should decrease over the length of the contract because of inflation and the decrease of the U.S. dollar over time. Since this is the case, it could look like Ohtani may have left some money on the table. This requires a deeper look. If Ohtani’s chose to not defer any of his salary, then his contract would have an average annual value (AAV) of $70M for the next 10 years, and the Dodgers’ CBT payroll would reflect such. But any money deferred outside the term of the contract is calculated using its present-day value. Ohtani elected to defer 97% or $680M of his contact outside the term of his contract. Therefore, after adjusting for inflation, the Dodgers only have a payroll hit of roughly $53M when they start paying his annual salary of $68M in 2034. Their remaining payroll will look something similar to this: $52M in 2035, $50.5M in 2036, $49M in 2037, $48M in 2038, $47M in 2039, $46M in 2040, $44.6M in 2041, $43.5M in 2042, and $42.5M in 2043. Ohtani will still receive his $68M during each of those years, but it will not be as hard of a strain on the team’s payroll for CBT purposes; there is reportedly no interest with the deferred salary, so there is no additional compensation for the team to consider. One major factor to also consider for Ohtani is if he chooses to move out of California by 2034. If he moves to a state with no state-income tax, then he can maintain millions more. If moves out of California to a tax-free state (i.e. Texas), then he will pay approximately 39.6% of his income in taxes (federal). If he stays in California, then he will pay approximately $53.75% in taxes (state, federal, and payroll). Obviously, Ohtani does lose the opportunity costs that comes with receiving the $68M now, but he will more than make up for it with off-the-field deals. The only real “risk” Ohtani faces with a deferred contract is the club’s ability to pay him. However, Forbes valued the Dodgers as worth $4.8B in 2023, so they are nearly a sure bet to be able to pay him. The Dodgers, like the Diamondbacks of the early 2000s, are in a win-now mode, only their window is much larger. And since the Dodgers have been to the postseason for 11 consecutive seasons, it is likely that MLB will see its best player in the postseason for years to come. Caleb Ortega is a 2L at South Texas College of Law. He served in the United States Marine Corps and is the Secretary of his school’s Sports & Entertainment Law Society. He can be reached on X and LinkedIn. References: [1] https://www.sportico.com/personalities/athletes/2023/shohei-ohtani-dodgers-contract-details-700-1234757983/ [2] https://www.eastvalleytribune.com/sports/deferred-contracts-still-limiting-d-backs-budget/article_a2bbfeec-ee4f-514c-9460-bb3725a7abf6.html [3] https://www.mlb.com/news/shohei-ohtani-dodgers-deal-deferrals-explained#:~:text=“Article%20XVI%20–%20Deferred%20Compensation”,Uniform%20Player%27s%20Contract%20may%20provide. [4] https://www.mlb.com/glossary/transactions/competitive-balance-tax [5] https://www.mlb.com/news/shohei-ohtani-dodgers-deal-deferrals-explained [6] https://www.cnbc.com/2023/12/14/why-shohei-ohtanis-700-million-contract-and-deferred-income-is-risky.html#:~:text=The%20Japanese%20superstar%20will%20receive,a%20guaranteed%208%25%20interest%20rate. [7] https://www.voanews.com/a/7400829.html# [8] https://smartasset.com/investing/inflation-calculator#1jDpbQlOr1 [9] https://www.forbes.com/teams/los-angeles-dodgers/?sh=1910ba8223ae [10] https://www.usatoday.com/story/sports/mlb/columnist/gabe-lacques/2023/10/12/los-angeles-dodgers-mlb-playoffs-history/71154122007/#

Alongside NIL, the one-time transfer rule has changed the landscape of college athletics. Prior to the launch of the “Transfer Portal,” NCAA football, men’s and women’s basketball, baseball, and men’s hockey players were required to sit out for a full season of play if they decided to transfer. Before the enactment of this rule, many players still changed schools in search of more playing time, enhanced competition levels, better academic opportunities, etc., but the quantity of transfers in today’s environment is not even comparable to the pre-2021 figures. Once the NCAA opened pandora’s box of allowing one transfer while retaining eligibility, it was only a matter of time before athletes, agents, and lawyers alike started to begin pushing for multiple transfers. In the time since the passing of the one-time transfer rule, the legal environment has swung even more towards college athlete empowerment. The 9-0 decision in the Alston case, looming employment lawsuits like the House case, and even Charlie Baker’s new proposal that would create a “new D1” have certainly changed the narrative in rapid fashion. To avoid sitting out after transferring for a second or even third time, many athletes have attempted to obtain a waiver from the NCAA, indicating a “good” reason for their additional transfer. These waivers have routinely been denied by the NCAA, which has caused quite a stir in many cases. However, the NCAA’s insistence on preventing athletes from maintaining eligibility after multiple transfers has recently taken a hit. After an antitrust lawsuit was filed by seven different states on the matter, U.S. District Court Judge John P. Bailey granted a 14-day temporary restraining order prohibiting the NCAA from enforcing its transfer waiver rules. The states involved in seeking the restraining order were Colorado, Illinois, New York, North Carolina, Ohio, Tennessee, and West Virginia. Ohio Attorney General Dave Yost stated “At the hearing, we found out that 99 players had been denied a waiver, and 44 are currently in process waiting. It’s reasonable to believe that 100 athletes or more could be impacted by today’s restraining order against the NCAA double transfer rule.” The lawsuit alleged requiring athletes to sit out means lost potential earnings form NIL or professional career opportunities. It pointed to exposure from competing in national broadcasts, claiming: “One game can take a college athlete from a local fan favorite to a household name.” Despite the ruling, college administrators are still holding fast in their belief that athletes shouldn’t maintain immediate eligibility following a second transfer. Georgia President and Board of Directors Chair Jere Morehead believes a policy to allow unlimited transfers is “inconsistent” with the NCAA’s mission of graduating student-athletes. Moreover, in unpacking the NCAA’s argument Sportico’s Michael McCann notes the NCAA has “sharply rebuked the AGs’ legal arguments as endangering college athletes’ academic interests, disturbing college athletics’ competitive balance and embodying government overreach into a private association.” The NCAA also argues the attorneys general are seeking to “rewrite the rule of a private association” to effect “virtually unlimited” transferring in college sports and offer “virtually no facts or legal authority to support their proposed change.” In its argument, the NCAA contends the AGs are misreading the U.S. Supreme Court’s ruling in the Alston case in saying “The ruling concerned a narrow and unrelated issue: NCAA limitations on education- related benefits (not athletics, transfers or NIL).” The TRO also prohibited the NCAA from enforcing its rule of restitution, which allows punishment for playing athletes who are later deemed ineligible. As for how many schools will play student-athletes while the rules are suspended, Kennyhertz Perry attorney Mit Winter remarks: “I think it’s unlikely the NCAA tries to enforce its transfer rules against any athletes now. It will instantly get sued. And I think the judge is also likely to grant a preliminary injunction after the end of the TRO’s 14-day period.” Winter also points out that to grant a TRO, a court “has to find there’s a likelihood of success on the merits of the underlying claims. This means the judge believes the state AGs will likely prevail on their claim that the NCAA’s transfer waiver rules violate fed antitrust law.” After Judge Bailey’s decision, according to Yahoo’s Ross Dellenger, the NCAA originally claimed that as a result of the decision, it “will not enforce the year in residency requirement for multiple-time transfers and will begin notifying member schools.” However, Dellenger reports the NCAA has since provided clarity, and a student-athlete who competes in a game over the next 14 days will, in fact, lose a season of eligibility if the court’s ruling is reversed. Where things go from here will definitely be worth monitoring. A full hearing is set for December 27, where more clarity on the matter would certainly be welcomed by athletes seeking a waiver, coaches, and compliance personnel across the country. Regardless, this is just another example of the legal environment threatening the NCAA’s governance power over college athletics.

(Image via Joshua Bessex/Getty Images) Per the Dallas Police Department, Buffalo Bills Defensive End Von Miller has an arrest warrant active against him for allegedly assaulting a pregnant person. According to the police report, Miller and the alleged victim got into a verbal argument that turned physical when Mr. Miller allegedly assaulting the victim. The allegations according to the Dallas Morning News is Mr. Miller grabbed the alleged victim by the throat and shoved her. For the record, I prosecuted close to 1,000 domestic violence cases while I was a misdemeanor and felony prosecutor for over 3 years. I have also defended client(s) against this very charge. What does this charge legally mean to Von Miller? First, in the State of Texas, Assault is defined as the following: Texas Penal Code: Section 22.01 Assault (a) a person commits an offense if the person: 1) Intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse. 2) Intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse. 3) Intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or practice. Assault is usually a Class A misdemeanor but if the alleged offender knew the alleged victim was pregnant at the time, the charge becomes a 3rd-degree felony. A 3rd-degree felony is punishable by no less than 2 years and no more than 10 years. Additionally, the Dallas Police may have enough to arrest Mr. Miller but a grand jury needs to agree with the charge. That is because in the State of Texas, all felonies must be charged by grand jury. That means the police will arrest Mr. Miller, but they need a grand jury to agree with them in order to formally charge Mr. Miller. As we saw in the Deshaun Watson case, grand jury indictments are not automatic. The District Attorney’s Office, if they wish, could simply charge Mr. Miller with assault, which would allow them to bypass the grand jury proceedings. Whether this case is formally charged will depend on victim cooperation and corroborating evidence. Alleged domestic violence cases can change on a dime. The reason is that how an alleged victim feels one day may change the next. I expect the alleged victim to meet with the District Attorney’s Office to discuss this matter. She very well may change her tune when she inevitably asks the prosecutor, “What is he looking at?” The prosecutor’s response would likely be, “Potential prison time as the sentencing guidelines call for prison time”. For which, I expect her to respond, “I do not want him to go to jail/prison. I just want him to get help.” I personally was told that almost every single time I interviewed an alleged domestic violence victim. If the victim doesn’t agree with how the prosecutor wishes to proceed, I don’t expect her to testify in front of the grand jury. Without a cooperating victim, this matter would depend on corroborating and/or on independent evidence. Were there any independent witnesses present when this alleged incident occurred? If so, I would expect the case to be formally charged. Is there a 911 call where there could be excited utterances? Excited utterances are an exception to the hearsay rule and victim unavailability is immaterial (there are hearsay exceptions where victim unavailability is required). Did the alleged victim make any statements while under the stress of the situation to law enforcement? Did law enforcement observe any injuries on the alleged victim? All of that will go towards whether or not Von Miller is formally charged with assault on a pregnant person. My read on the situation is this: If the alleged victim is cooperative, I think it would be difficult for Mr. Miller to dodge the indictment. Whether he is actually convicted is still a very long way away. We shall see. Matthew F. Tympanick, Esq. is the Founder/Principal of Tympanick Law, P.A., located in Sarasota, Florida where he focuses his practice on Criminal Defense, Personal Injury Law, and Sports Law. Arrested or Injured? Don’t Panic…Call Tympanick! 1(888)NOPANIC. He is a graduate of the University of Massachusetts School of Law where he served as a Public Interest Fellow and a Staff Editor on the UMass Law Review. He has appeared nationally on television, radio, and podcasts discussing criminal cases specifically sports criminal cases. He was previously a felony prosecutor where he prosecuted thousands of misdemeanor and felony criminal cases. He also has tried over 40 jury and non-jury cases. You can follow him on Twitter, Instagram, and Facebook @TympanickLaw.

Is Shohei Ohtani on the path to becoming a billionaire? Time will tell as the young Japanese mega-star and reigning unanimous AL MVP tackles free agency this offseason. Outside of baseball, we have already seen billionaire athletes like LeBron James, Tiger Woods, and Lionel Messi. However, achieving billionaire status as an athlete requires business acumen, savvy investments, and a marketable persona. Such status comes from a combination of endorsements, financial ventures, and salary. Never before has the world of sports witnessed a ten-digit contract. In other sports such as soccer and football, we have seen significant milestones. Lionel Messi's previous 4-year deal with FC Barcelona was capped at $674,000,000 (that’s $168,000,000/year!), and Patrick Mahomes signed a 10-year deal with the Kansas City Chiefs in 2020 worth $450,000,000. Ohtani’s former teammate and fellow once-in-a-lifetime talent Mike Trout holds the richest MLB contract to date, a 12-year deal for $426,500,000 agreed upon in 2019. Pundits wonder if Ohtani, a never-before-seen 6-tool athlete at only 29 years old, could be on the verge of surpassing the billion-dollar mark. But how did these massive contracts come to be? Let’s dive into a bit of history. With the establishment of the National League in the late 1800s, organized baseball truly came to fruition. Yet, with no union representation, players were, in the words of Monte Ward, the Hall of Fame 19th-century pitcher-shortstop and Columbia-educated lawyer, "bought, sold, and exchanged as though they were sheep." At a time when a player's salary ranged from $1,500 to $2,500 (roughly $60,000 today), athletes were compensated for their time but had little to no say in the whereabouts and the tangibles of their situation. The "Reserve Clause" allowed a team to reserve a player for as long as they liked, leaving players with limited options for negotiation. If a player wanted an increase in salary, his only leverage was to threaten retirement, as it was prohibited for any other team to sign him. Players were at the mercy of team ownership, unable to leave, refuse a trade, or negotiate for a raise. Finally, in 1969, the situation boiled over with the situation of Curt Flood. Flood, an all-star caliber centerfielder for the St. Louis Cardinals for 12 years, was traded to the Philadelphia Phillies after requesting a raise. Citing frustration and other concerns, Flood wrote a letter to then baseball commissioner Bowie Kuhn, requesting to be declared a free agent. Kuhn denied the request, leading to a lawsuit against Kuhn and Major League Baseball, alleging the reserve clause violated antitrust laws as a collusive measure that reduced competition. The case made its way all the way up to the United States Supreme Court. Flood v. Kuhn was not the first baseball case granted certiorari. In the 1922 case of Federal Baseball v. National League, the Court decided that professional organized baseball was not interstate commerce, exempting it from federal antitrust law under the Sherman Act. Despite the subsequent rulings of United States v. International Boxing Club and Radovich v. National Football League declaring boxing and football, respectively, as interstate commerce, in Flood, SCOTUS upheld the antitrust exemption carved out by Federal Baseball some 50 years prior on stare decisis grounds, ruling in favor of the league. Flood’s efforts were not in vain, as the Curt Flood Act of 1998 ended baseball's antitrust exemption in player-owner interactions, though it didn’t fully strike it down, preserving the exemption in other areas like franchise relocation. The exemption faced a recent challenge from minor league teams, but the case settled before reaching the Supreme Court earlier this November. It wasn’t until after the brief lockout of 1976 that the reserve clause was finally abolished, marking the beginning of the era of free agency in baseball and a surge in player salaries. Nolan Ryan's four-year, $4.5 million free-agent contract with the Houston Astros in 1979 made headlines, not just for being the largest baseball salary at the time but also for its rapid growth—from $3,600 in 1966 to $100,000 in 1974 and then $200,000 in 1977. Alas, here we find ourselves in 2023, speculating whether Sho-time Ohtani will secure that elusive billion-dollar deal. Not to be anticlimactic, but due to injury concerns, the answer will likely be no. However, don’t be surprised to see the first 10-digit deal occur in the world of soccer within the next couple of years (*cough cough* Saudi Arabia), with the NBA and NFL likely following suit within a decade from the time of this writing. Aaron Polonsky is a 3L at the Boyd School of Law @ UNLV. He can be found at https://www.linkedin.com/in/aaron-polonsky/. Sources Roger Abrams, Legal Bases Baseball and the Law, 1998. Robert Goldman, One Man Out, 2008. John Minan, Kevin Cole, The Little White Book of Baseball Law, 2009. https://www.expensivity.com/baseball-inflation-huge-increase-mlb-salaries/

Overview Matthew and Ryan Bewley are 19-year-old twin brothers from Ft. Lauderdale, Florida. The Bewleys were 5-star basketball prospects in the class of 2023, receiving scholarship offers from several major programs. They spent two seasons at Overtime Elite Academy (“OTE”) in Atlanta, GA before accepting scholarships from Chicago State University in June. The Bewleys have sued the NCAA in federal court alleging they were ruled ineligible due to compensation they received for the use of their name, image, and likeness (“NIL”) while they were playing for OTE. Less than a week prior to their first scheduled game, the NCAA issued a decision determining that the Bewleys were ineligible to play. This decision was made several months after it reached the opposite decision for some of the Bewleys’ former classmates and teammates at OTE. On Tuesday, November 14th, a judge denied the Bewleys’ motion for a temporary restraining order (TRO). If granted, this relief would have reinstated the NCAA eligibility for a minimum of 14 days or until a hearing for preliminary injunction is ruled upon. The Bewleys are seeking injunctive relief to prevent further irreparable harm as a result of being excluded from intercollegiate athletics which includes: the inability to participate in the team’s upcoming games, the loss of NIL income and scholarships, and other educational benefits and aid. The Contracts with OTE: The Bewley brothers agreed to athletic scholarships to cover education-based expenses throughout their high school careers with OTE. They also assigned their NIL rights to OTE for the term of their contracts in exchange for monetary compensation. The assignment of their NIL rights is permitted, like any other US citizen who has ownership over their NIL. The Bewley’s contracts are not prohibited by Georgia law, and they align with NCAA’s interim policy which permits NIL deals in accordance with the laws of each respective state. The Cause of Action: The NCAA alleged: (1) the Bewley’s OTE compensation exceeded “actual and necessary” expenses; (2) The Bewleys competed for a team that considered itself professional; and (3) the Bewleys competed with and against professionals. Count 1: Violation of Illinois Statute 110 ILCS 190/15(a) a) NCAA Bylaws regarding student-athletes playing professionally: NCAA Bylaw 12.2.3.2 permits prospective student-athletes to play for professional teams against other professionals prior to enrolling in a member institution and may be compensated as long as the student does not receive more than “actual and necessary expenses." The Bewleys argue that based on NCAA bylaws, they were allowed to play for a professional team prior to collegiate enrollment. They further argue that because their contract is not prohibited by Georgia law, it aligns with the NCAA’s interim policy which permits NIL deals in accordance with the laws of each respective state. The only limitation rests on their compensation which is discussed below. b) The Bewley’s Compensation and Eligibility The suit provided that the allegations stated above are completely inconsistent with the NCAA rulings regarding former OTE athletes who competed on the same teams, against the same competition, and received the same compensation. The suit alleged that the ruling is a direct violation of Section 15 (a) of Illinois’ Student-Athlete Endorsement Rights Act which states: “Compensation from the use of a student-athlete’s name, image, likeness, or voice may not affect the student-athlete’s scholarship eligibility, grant-in-aid, or other financial aid, awards or benefits, or the student-athlete’s intercollegiate athletic eligibility." The Bewleys allege that they are entitled to a permanent injunction preventing the NCAA from enforcing its regulations that completely contradict Illinois’s Student-Athlete Endorsement Rights Act. Furthering their claim, the brothers allege NCAA Bylaw 12.2.3.2 permits student-athletes to be compensated by a professional team as long as the student does not receive more than “actual and necessary expenses.” The above NCAA bylaw (12.2.3.2.1) specifically limits the compensation a prospective student-athlete may receive from their participation on a “professional team” to “actual and necessary expenses." If the NCAA decides that if the student-athlete received any amount above what they deem to be “actual and necessary," they reserve the right to permanently exclude the prospective student-athlete from competition. While the NCAA has determined that the Bewleys' compensation was above their threshold, the Bewleys' complaint alleges that the NCAA failed to recognize the portion of their compensation that was received in exchange for their NIL rights. The Bewleys' contract provided compensation for educationally related “actual and necessary expenses," but under NCAA bylaws and Illinois law, the Bewleys are also lawfully permitted to receive compensation in exchange for the use of their NIL separately, prior to enrolling in an NCAA member institution. In all, the Bewleys argue that under Illinois state law, compensation based on their NIL rights cannot affect their athletic eligibility. Count 2: Violation of Section 1 of the Sherman Act – 15 U.S.C §1 Unreasonable Restraint of Trade The Bewley’s complaint also proposes that the allegations above are in violation of Section 1 of the Sherman Act (15 U.S.C. §1) which states: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." The suit alleges that the NCAA has entered into a continuing contract “in restraint of trade in the relevant markets to artificially depress, fix, maintain, and/or stabilize the prices paid to prospective student-athletes like the Bewleys for their participation in athletics and the use of their NIL.” The complaint further alleges that NCAA Bylaw 12.3.2.1 unlawfully restricts the compensation a prospective student-athlete may receive for his or her participation on a professional team or other league prior to enrolling in an NCAA member institution. The Bewleys allege that the anticompetitive and illegal scheme has unreasonably restrained trade and that they are entitled to a permanent injunction that prevents the violations of law. Count 3: Violation of Section 1 of the Sherman Act – 15 U.S.C. § 1 Unreasonable Restraint of Trade – Group Boycott / Refusal to Deal The Bewley brothers also allege that the NCAA has further violated Section 1 of the Sherman Act (15 U.S.C §1) because their group boycott/refusal to deal consists of “(1) Defendant’s acts to prevent prospective student-athletes from being freely compensated for their participation in athletics and use of their images, likeness and/or names and/or (2) Defendant’s exclusion of prospective student-athletes that have received compensation above its “actual and necessary” threshold from intercollegiate athletics." The Bewleys argue that the NCAA is imposing limitations on a student-athlete's right to be compensated for their labor, and limit their rights related to the use of their NIL. It is alleged that this forecloses them from full access to the marketplace, and the “eligibility rules are used as a threat of boycott to force prospective student-athletes to abide by their rules, even before they have enrolled in a member institution." Claims of Irreparable Harm: The Bewleys are claiming that the NCAA’s decision to bar the brothers from intercollegiate athletics has caused and will continue to cause irreparable harm including: a) Loss of scholarships and related benefits including tuition, room and board, coaching, training, and the use of education services, tutoring, etc.; b) Inability to compete at the highest level of competition for basketball prospects in their age bracket; c) Loss of access to NIL endorsement opportunities reserved for collegiate athletes; d) Damage to reputation; and e) Damage to their NBA draft stock. My Take: The Bewley twins' legal battle against the NCAA highlights the complex and inconsistent landscape of eligibility rules concerning the use of NIL rights. The NCAA's decision to declare the Bewleys ineligible just days before their first scheduled game has left them on the sidelines for four missed games so far, likely contributing to Chicago State's 1-3 start. With an additional nine games slated to be missed before the case is heard, the brothers are grappling with the tangible consequences of their legal pursuit. The heart of the matter lies in the Bewleys' contracts with OTE, where they assigned their NIL rights in exchange for compensation—a practice permitted both by Georgia law and by the NCAA's interim policy. The discrepancy arises as the NCAA contends that the compensation exceeded "actual and necessary" expenses, while the Bewleys argue that their contract aligns with state laws and with NCAA guidelines. The Bewleys' situation underscores the inconsistencies between state laws and NCAA regulations, emphasizing the necessity for a comprehensive approach to avoid such disputes in the future. As the brothers seek injunctive relief, including the restoration of their NCAA eligibility, the case prompts reflection on the broader issue of student-athlete rights and fair treatment. Madison Greco is a second-year law student at Suffolk University Law School in Boston. She can be found on Twitter @mtgreco_ and LinkedIn (Madison Greco). Sources: Lawsuit:https://www.courthousenews.com/wp-content/uploads/2023/11/bewley-v-ncaa-complaint-us-northern-district-illinois.pdf Sherman Act: https://www.law.cornell.edu/uscode/text/15/1 NCAA Bylaws: https://web3.ncaa.org/lsdbi/search/bylawView?id=8740

As a small-town girl from the middle of nowhere Tennessee, lacrosse was not a household sport. To be honest, the only lacrosse knowledge I had pertained to the Duke Lacrosse 30 for 30 on ESPN. On July 14th, 2023, when I watched my first lacrosse game with Mike Rabil, the CEO and Co-Founder of the Premier Lacrosse League (PLL), I found out what the hype is all about. After getting a full PLL experience, I became obsessed and wanted to know everything about the sport, especially the setup of the League and strategies for future growth. Luckily, I had the amazing opportunity to speak with the PLL’s General Counsel, Jessica Evans, to get most of my answers. The PLL is unlike other professional sports leagues. Because the league is only five years old, it functions differently. With no “home base,” the eight different teams, in past seasons, traveled to multiple locations throughout the United States, leased stadiums from different colleges and arenas, and played at least two games every weekend during the summer. The purpose of this “touring” structure is to spread the sensation to parts of the nation where the knowledge of lacrosse was similar to mine. The league also functions differently in that it is investor-backed and uses a single-entity ownership structure. Typically, leagues are made up of teams owned by multiple people, whereas the PLL itself actually owns its teams and employs its players and staff. Ms. Evans explains that this type of ownership is advantageous at this stage of growth for several reasons. A particular legal benefit of single-entity ownership is that the League is not subject to the anti-competitive restrictions set forth under the Sherman Act, which involves antitrust laws and competitive market practices and limitations. A more practical reason is that, unlike teams that require multiple owners to come together to vote when making decisions, the PLL can make decisions quickly and efficiently because ownership is centralized. By way of example, the league’s teams have historically been city agnostic. The league recently announced that it is transitioning geographically affiliated teams– a large shift in its business model that it could execute quickly due to its single-entity structure. The League announced eight new “home bases" this past Wednesday. For the 2024 season, teams will be stationed in California, Colorado, Utah, Pennsylvania, North Carolina & South Carolina (base borders both states), New York, Massachusetts, and Maryland. The teams will be divided into East and West Divisions, adding division finals during the playoff season. Even with the new home bases and single-entity ownership and leasing venues. Using essentially a “crawl-walk-run” method, this is a natural evolution for the League, according to Ms. Evans. She states that this decision was the obvious next step for the league and a big investment. According to Co-Founder, Paul Rabil, the teams will continue using the touring method like prior seasons. The teams at “home” will have double headers to allow more opportunity for home fans to watch their favorite team. The biggest question is: Why did the PLL add home teams when the previous structure worked successfully? The main reason: growth. Anchoring teams to a “home base” will produce more fan engagement and introduce more sports lovers to America’s original pastime - the game of Lacrosse. I mean, who doesn’t want to cheer on the home team? The cities chosen were curated using several different methods including fan vote and live stream attendance, ticket sales from previous seasons, commercial opportunity through sponsorships, and overall sports market performance. Needless to say, the people in the chosen “home bases” are die-hard fanatics for any team representing their city. The 2024 PLL season schedule will be released on January 1. Clearly, I am excited for the 2024 PLL season! The new home base structure and continued touring method are exactly what the League needs to create a spark that spreads like wildfire nationwide. Paul, Mike, and Jessica are taking the necessary steps to really maximize the potential for the PLL. I cannot wait to cheer on my closest home city team (GO CHAOS!) this coming season and see how the PLL continues to grow. Abbigail Buck is a third-year law student at Regent University School of Law in Virginia Beach, Virginia. She can be found on X @abbibuckets and LinkedIn (Abbi Buck).

First reported by Amanda Christovich of Front Office Sports, a Washington state court judge has made a new ruling in Washington State University (WSU) and Oregon State University’s (OSU) litigation against the Pac-12 conference and the University of Washington (on behalf of the nine departing schools). For now, WSU and OSU are the only voting members on the conference’s board. WSU and OSU are fighting to prevent the outgoing schools from disbanding the conference. The two schools would like to keep the conference together and distribute the millions in exit fees the schools would retain if the Pac-12 remains. In September, the schools filed for a temporary restraining order, which a Washington state court judge subsequently granted and prevented the conference from holding their September board meeting. Later, WSU and OSU filed for a preliminary injunction, which was the subject of Tuesday’s hearing. The remaining Pac-12 schools have been leaning on the conference’s constitution and bylaws, which summarily state that when a member withdraws from the conference, the withdrawing member ceases to be a member of the Pac-12’s Board of Directors. As a part of their motion, WSU and OSU presented documents evidencing that the conference has previously taken voting power from departing schools. Tuesday’s ruling gives WSU and OSU control of the board (and money) as sole voting members. However, the ruling is stayed pending the University of Washington’s appeal of the decision. Given that the National Collegiate Athletic Association is in a constant state of realignment, the ruling will likely impact how schools change conferences in the future. Landis Barber is an attorney at Safran Law Offices in Raleigh, North Carolina. You can connect with him via LinkedIn or via his blog offthecourtdocket.com. He can be reached on Twitter @Landisbarber.

Former Lafayette Men's Basketball coach Michael Jordan has sued the college for more than $5 million for violation of the Civil Rights Act of 1964, wrongful termination, and breach of contract. Jordan was originally hired to coach the Leopards on March 29, 2022. He became Layfette College’s 19th Men’s Basketball head coach under a 5-year contact following the retirement of Fran O’Hanlon, who coached the Leopards for 27 seasons. Jordan didn't last very long in his position, though, as he was placed on paid leave by the University in February, 2023, before ultimately being terminated in March, 2023, one year after the initial hire. When Jordan was placed on paid leave, the school released a cryptic statement that it had received "a complaint . . . about [Jordan's] work as head coach." In his lawsuit, Jordan refutes the validity of that complaint and says that he "inherited a struggling basketball program with a team that finished in 8th place in the Patriot League" before he changed the narrative and fostered a "culture of accountability, trust, openness, honesty and hard work to Lafayette." Yet, on February 15, 2023, with only a few games left in the season and the Patriot League tournament only 2 weeks away, Jordan was suspended by Lafayette . Per the complaint, Jordan was told "that the suspension was done because a former member of the Men’s Basketball team had written a letter to the school complaining about Coach Jordan." However, Jordan believes that this was merely an opportunity for the University to fire Jordan without paying him the entirety of his contract. Jordan says the school "used the letter as pretext to discriminate." In the letter, the student complained that Jordan was too harsh on players and used foul language often. The University interviewed Jordan and he denied the claim. Jordan even had 45 witnesses prepared to speak on his character and refute the claims in the letter. Jordan does not know whether the school actually followed up with his offered witnesses. On March 29, 2023, Coach Jordan was terminated by Lafayette College. In the letter firing Michael Jordan from the head coach position, the school claimed that Jordan was terminated for “gross misconduct and/or insubordination” based on the alleged findings of the school's investigation. Jordan argues that his "predecessor [Fran O’Hanlon], a white male, was the subject of repeated and severe complaints to the College for many years and was never suspended or terminated." "The allegations against the former coach spanned decades and ranged from the mistreatment of Black athletes because of their race to specifically targeting individual players for harsh treatment." Jordan says that over $980,000 remained on his 5-year contract and he wants all of it. Further, Jordan demands $5 million for alleged pain and suffering, damage to his reputation, and loss of future earnings. Jason Morrin is a Workers’ Compensation and Employment attorney in New York. He graduated cum laude from Hofstra Law School where he was president of the Sports and Entertainment Law Society. His reporting for Conduct Detrimental has been cited by ESPN, The New York Post, USA Today, Bleacher Report, and more. He may be reached at [email protected] or on Twitter @Jason_Morrin.

The Ball family finds themselves back in the legal world against a familiar face. Alan Foster, a former business partner and advisee to the Ball family and their brand, Big Baller Brand LLC (hereinafter “BBB LLC”) has filed suit against Charlotte Hornets star and youngest Ball brother, LaMelo Ball for trademark infringement. Back in March of 2019, Lonzo Ball filed a suit against Foster alleging that Foster “Conspired to embezzle millions of dollars and then divert those funds for his personal use, including to acquire assets in Ethiopia.” Lonzo requested damages in excess of $2 million and this case is still pending in Los Angeles. While waiting for the outcome of this case, Foster decided to file his own suit against LaMelo and the Ball family. Below is a summary of the facts and requested relief from Foster. It is important to note this summary comes based off of the complaint for damages from Foster and should not be taken as legal or factual conclusions. In 2016, LaVar Ball, the Ball family father, asked Foster for his business guidance regarding his sons’ careers in basketball. LaVar and Foster agreed that marketing the “Ball” name was a unique and highly profitable opportunity. LaVar agreed that, in exchange for Foster providing loans to start the business and his business consulting, LaVar would grant Foster at least a 33% ownership in the new businesses and that Foster would hold officer and director positions in these companies. This was documented in the Proposed Terms-Ball Sports Group, Inc. (hereinafter the “BSG Agreement”). The Ball Sports Group would be constructed of a professional basketball sports agency, a media company, a merchandising company, and additional Ball Family Companies. The BSG Bylaws were created and shares were split up with 670,000 going to LaVar and Tina Ball, and 330,000 going to Foster. In 2017, LaMelo, LaVar, and Tina agreed that Foster should create a brand for LaMelo similar to the Zo2 brand created of Lonzo. Foster created the name and design for LaMelo’s brand, MB1, and told LaVar this brand would be owned and operated by BBB. They registered three trademarks related to MB1 including footwear, apparel, and sportswear. On August 22, 2017, BBB released the MB1 signature shoe for LaMelo to wear and sell. The complaint alleges that LaVar conspired with his family members to remove Foster after repeated confrontations about loans and shares by creating Big Baller Brand Inc. (hereinafter “BBB Inc.”) separate from BBB LLC, and not include Foster in the creation. BBB LLC was dissolved and LaVar transferred the BBB LLC trademarks to BBB Inc. Now that the Ball family had ownership over the MB1 trademark, they sought to find a partner to create products. With LaMelo’s sudden rise to stardom, PUMA jumped on the opportunity in 2020 after LaMelo was drafted 3rd overall in the NBA draft and signed him to a $100 million shoe deal. Puma released the Puma MB1 LO and MB1 BCA shoes, which Foster alleges violates the MB1 trademark originally filed by Foster due to the likelihood of consumer confusion. Foster is suing LaMelo and PUMA for trademark infringement alleging damages of over $200 million each. Foster is also filing a variety charges against LaVar, LaMelo, and PUMA including illegal conversion of property, unjust enrichment, fraud, breach of fiduciary duty, breach of contract, and unfair business practices. Seeing as how the original Lonzo v. Foster lawsuit is still pending, I do not see this getting resolved any time soon. The response from the Ball family and PUMA should shed more light on the facts of the case. However, what is clear is the animosity between the Ball family and Alan Foster has spanned half of a decade and at the moment, has no end in sight. Evan Mattel is a 3L at Hofstra Law, President of the Sports and Entertainment Law Society, and Founder of Hofstra Law’s NIL Program. He can be found at @Evan_Mattel21 on Twitter or on Linkedin: https://www.linkedin.com/in/evan-mattel-93a871182/.

The city of Boston arguably has one of the best sports fanbases in the country. While their beloved Red Sox, Celtics, Patriots, and Bruins are the powerhouses in the city, there is another sport thriving in this market: soccer. The New England Revolution, a Major League Soccer franchise, has distinctively carved out its niche in New England’s sports culture. While the Revs have not always grabbed the headlines in the city dominated by the other successful franchises, the team’s persistence and resilience have contributed to the growth of teams that find themselves lower in the landscape. However, it’s not just the men’s game that captures the hearts of Bostonians; the city’s sports culture is embracing change with the exciting rebirth of the National Women’s Soccer League ("NWSL") in Boston. The Boston Breakers women’s soccer team was founded in 2000 and was one of eight original women’s professional soccer teams in the United States. The team began their venture in the Women’s United Soccer Association and went on to be original members of two more startup leagues. Over the years, the franchise had struggled with its marketing and business model, and despite their relentless efforts to save the team, the franchise folded in January 2018. [1] The closure of the Boston Breakers raised questions about the challenges that women’s professional sports teams often face, including financial sustainability, stadium issues, and a competitive landscape that demanded consistent success to thrive. When franchises as such initially fold, several legal considerations come in to play. These include addressing contractual obligations with players, coaches, and staff, and the termination or modification of existing leases, sponsorships, and intellectual property rights associated with the team's branding. League-specific rules and approval would also be essential, as any intent to rejoin a soccer league would require adhering to league regulations, demonstrating financial stability, and potentially negotiating a new franchise agreement. Legal matters related to a new venue would also play a crucial role in navigating the complex legal waters to ensure a successful revival of the team. According to the “Expansion Team Player Acquisition Rules” through the NWSL, the Expansion Teams are subject to a specific set of guidelines to build their initial season rosters. The expansion teams have timelines for activities such as discovering and transferring players and guidelines for the asset selection process, including priority selection in the Expansion Draft and the next season’s NWSL Draft, and waiver wire, distribution, and discovery priority. [2] The popularity of women’s professional soccer in the United States has seen a remarkable surge in the wake of the U.S. Women’s National Team’s World Cup championships. The dominant victories and spirit displayed by the team have inspired a new generation of female athletes and captured the hearts of fans across the nation. The surge in popularity has led to greater television viewership, larger attendance at women’s games, and heightened recognition of women’s soccer players as influential figures both on and off the field. The team’s achievements have not only elevated the sport but have also advanced the conversation of gender equity and equal opportunities in sports, fostering a brighter future for women’s soccer in the United States. This foundation was just the beginning of the rebirth of NWSL in Boston. The city was awarded expansion rights for the league’s 15th team in September 2023 which is set to kick off in the 2026 season. The team is owned by Boston Unity Soccer Partners (BUSC), which represents a significant development in the world of professional sports. BUSC is led by a diverse all-female ownership group that was founded to promote women’s sports at all levels. The owners include Jennifer Epstein, Juno Equity Founder, and Boston Celtics Minority owner; Stephanie Connaughton, marketer and brand builder; Ami Danoff, Women’s Foundation of Boston Co-Founder and CFO; and Anna Palmer, Flybridge Capital General Partner. All women have deep ties to New England and share the passion for creating and maintaining opportunities for women in sports. The ownership represents a powerful symbol of the enduring strength and potential of women in the sports world. [3] The franchise has ambitions to partner with the City of Boston and the Boston Public Schools to modernize George R. White Stadium in the heart of the historic Franklin Park. This is not only a testament to their commitment to the growth of women’s soccer, but also a symbol of their dedication to community development. The modernization initiative not only prepares the venue for NWSL play but also brings significant benefits to the students and surrounding communities in Boston. The project will provide access to high-quality athletic facilities while preserving the heritage of the beloved Franklin Park – showcasing the impact of the game in the heart of Boston. BUSC plans to unveil the club’s brand as it moves closer to play in 2026. [4] The history of women’s soccer in Boston has been both challenging and inspiring. With the dedicated support of Boston’s passionate sports community and the commitment of an all-female ownership team, the NWSL’s return to Boston stands as a beacon of opportunity, equality, and empowerment, exemplifying the ever-evolving landscape of women’s sports. Sources: [1] https://www.bostonglobe.com/2023/09/18/sports/nwsl-boston-breakers/ [2] https://nwslboston.com [3] Id. [4] Id. Madison Greco is a second-year law student at Suffolk University Law School in Boston. She can be found on Twitter @mtgreco_ and LinkedIn (Madison Greco).

As much as the NCAA or athletic administrators want to deny it, television revenue controls college sports. I believe that deep down, the leaders of college athletics ultimately do want to “maximize the student-athlete experience” and “offer tremendous access to education through sports.” However, I also believe that those honorable and virtuous goals are taking a back seat to maximizing television revenue. The best evidence of this is undoubtedly the latest round of conference realignment, but there are plenty of other examples. The latest is a recent change in a long-standing postseason basketball tournament. Last week, the NCAA announced changes to the National Invitational Tournament (NIT) format. Up until now, regular-season conference champions who failed to reach the NCAA Tournament received an automatic bid to the NIT. But starting in the 2023-2024 season, this will no longer be the case. Instead, the top two teams in the NET rankings from each of the major six conferences (ACC, Big 12, Big East, Big Ten, Pac-12, SEC) that did not qualify for the NCAA Tournament will earn the first 12 NIT automatic bids and have the right to host first-round games. This change will inevitably have a negative effect on low- and mid-major programs who have ultra-successful regular seasons but come up short in their conference tournaments, where their league’s auto bid to the 68-team NCAA Tournament is earned. For example, the 2013 Robert Morris basketball team won the NEC regular season title with an impressive 14-4 league record. While they came up short in the NEC Tournaments, they earned an auto-bid to the NIT, where they defeated Kentucky. This was undoubtedly a monumental moment for the program and the university itself. However, these stories likely won’t be as prevalent under this new format. The Robert Morris’ of the world will not be guaranteed a national showcase opportunity through the NIT anymore. In its announcement of changes to the NIT for 2024, the NCAA said that it will "select the 20 best teams available to complete the tournament's 32-team field" after the 12 automatic bids are handed out to power conference schools. The other four hosting schools will be the "best" of the 20 at-large teams. Non-power conference commissioners have understandably expressed their distaste for the move. "I was surprised and disappointed in the action announced today by the NIT Board of Managers, approximately one week prior to the start of the 2023-24 season," said MAC commissioner Jon Steinbrecher. "To make such a substantive change to the NIT structure without providing a satisfactory explanation or building the foundation for such a change is troubling and leaves student-athletes, coaches, and fans in a state of uncertainty. Today's announcement is leading me to focus even more on the discussion around the possible expansion of the NCAA Tournament and I will marshal our membership's attention to that issue." From a legal standpoint, what allows the NCAA to do this without approval from many stakeholders in college basketball? The NIT, which the NCAA bought from ESPN in 2005, is technically under a separate LLC from the NCAA governance structure. This enabled NCAA higher ups to avoid going through the proper channels (AKA: low- and mid-major administrators) to get clearance on the significant format change less than two weeks before the season tips off. The change in format is likely a direct response to a new postseason tournament expected to begin as early as 2025. Recently, Fox Sports announced it's working on putting together a postseason men's college basketball tournament that would feature power conference schools that did not qualify for the NCAA Tournament. In a world where television revenue is king, the NCAA apparently feels that maintaining a tournament with low to mid-major programs with small fan and alumni is not feasible anymore. As deserving and motivated teams like a 24-11 Robert Morris or a 26-7 North Texas might be to play postseason basketball, the unfortunate reality is that an underachieving 17-15 Michigan or a 16-16 Florida will generate more television ratings. The NCAA Tournament itself currently has an uncertain future. Rumors of further expansion have certainly been floated over the years and how those additional bids could be divvied up will be a large point of contention. As the power conference schools continually consolidate, could low and mid-majors be boxed out of March Madness like they are being boxed out of the NIT? Hopefully not, but it’s certainly on the table. In all of this, it will be interesting to see how the NIT fits into the college basketball ecosphere moving forward. For years, the tournament had played its semifinals and final at Madison Square Garden in New York. However, the tournament has shifted its finals to Las Vegas and Indianapolis in recent years. The NCAA Tournament will obviously always be the most popular postseason college basketball tournament, but will the NIT continue to be second in line? That remains to be seen.