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.

Denver Broncos linebacker Aaron Patrick is suing the NFL, the Los Angeles Chargers, and ESPN for an injury he sustained on the sidelines during a Monday Night Football game between the Broncos and the Los Angeles Chargers at SoFi Stadium. The injury occurred immediately after Patrick attempted to tackle Chargers punt returner, DeAndre Carter, near the 21-yard line. During that play, Patrick's momentum carried him off the field and onto the sideline, where his cleats became lodged in the cords and cables connected to the NFL's instant replay monitor. Despite attempting to avoid contact, he collided with the NFL's TV Liaison and suffered a torn ACL, ending his season. He is a member of the NFL Players Association (NFLPA), and thus, the conditions of his employment are set by a collective bargaining agreement (CBA) between the NFLPA and the NFL. Patrick then filed various claims of negligence and premises liability against the NFL, ESPN, the Los Angeles Rams, and the Chargers. He contends that the League and Chargers negligently permitted and maintained a dangerous condition in SoFi Stadium, creating an unreasonable risk of injury. Premises liability is a type of negligence claim that arises from a breach of landowner's duty to maintain their land in a reasonably safe condition. He demands compensation for pain and suffering; emotional distress; loss of income, including salary and forgone bonuses; and continued economic loss given the injury's destructive impact on his NFL career. The NFL and Chargers petitioned for removal from state court to federal court to focus on fighting the case on the grounds of the league's CBA with the players. They later asked to have the case dismissed, arguing that Mr. Patrick's claims are preempted by the CBA between the NFL and the NFLPA. Article 39 of the CBA requires "every stadium in which an NFL game is to be played" to comply with the mandatory practices delineated in the Field Surfaces Manual. The NFL and the Chargers contend that the court cannot evaluate whether they were negligent without evaluating whether they complied with the mandatory practices. Thus, they argue that Mr. Patrick's claim is really a breach of contract claim masquerading as a tort claim. According to Defendants, their potential liability to Patrick in these claims solely arises from the CBA because, under California law, "there is no duty of care to protect a sports participant against risks of injury that are inherent in the sport itself." The risk of injury arising from a collision with the objects on the sidelines is an inherent risk of professional football, whether those objects are other players or team staff, benches, coolers, camera equipment, or audiovisual equipment with their attendant cables and cords. Whenever the NFL or one of its clubs is sued by a player in court, they argue that the claims (usually state common law tort claims) are "preempted" by Section 301 of the Labor Management Relations Act. Under well-established and controlling Supreme Court precedent, any claim whose resolution is substantially dependent upon analysis of the terms of a CBA is preempted. In other words, claims that are inextricably intertwined with the terms and provisions of the agreement cannot proceed in court. The intended and frequent result is the dismissal of the claims. Notwithstanding, preemption doesn't always lead to NFL players losing lawsuits. In 2018, a St. Louis jury awarded Reggie Bush $12.5 million in damages for injuries he incurred while playing for the San Francisco 49ers in 2015 when he slipped on an uncovered concrete surface in the Edward Jones Dome. The NFL-NFLPA CBA contains grievance arbitration procedures that Patrick did not pursue. Consequently, his claims against the NFL and Chargers were dismissed in their entirety on September 21, 2023. He cannot litigate the negligence and liability claims against the NFL and Chargers. Instead, he must follow the stipulated grievance procedure outlined in the CBA before seeking further court intervention. Madelyn Feyko is a 2L at the Hofstra Law and is the Vice President of Sports for the Sports and Entertainment Law Society. She can be found on LinkedIn at the following link: https://www.linkedin.com/in/madelyn-feyko-8942b520a/ or on Twitter @madelyn_feyko.

Head Coach Liability Under NCAA Rules and the Responsible Corporate Officer Doctrine In the business world, CEOs and other corporate officers generally may be held personally responsible criminally or civilly only for actions in which they have personally engaged. But that’s not always the case. In some circumstances, corporate officers may be held strictly liable for a civil or even criminal violation. For example, under the controversial responsible corporate officer (RCO) doctrine, a corporate officer may be held criminally liable for corporate violations that affect public health and well-being simply because the officer had the authority to prevent the unlawful conduct and failed to do so. Whether the officer participated in the unlawful activity, knew about it, or even prohibited it is irrelevant. The mere fact that the officer had, “by reason of his position within the organization, responsibility and authority either to prevent . . ., or promptly to correct, the violation complained of, and that he failed to do so” is sufficient to establish personal liability for the crime.[1] Though controversial and fairly draconian, the RCO doctrine seeks to incentivize—by the threat of criminal liability—corporate officers to implement and actively oversee effective compliance measures within his or her organization. College football head coaches are often referred to as the “CEO” of their school’s football program. And when it comes to a head coach’s responsibility for NCAA violations, the NCAA now applies a strict liability theory similar to the RCO doctrine, whereby a coach’s knowledge of, or participation in, conduct that violates NCAA regulations is completely irrelevant. A review of several changes to the NCAA bylaws reveals how the NCAA has steadily moved toward adopting this harsh standard. In 2005, the NCAA first adopted a bylaw titled “Responsibility of Head Coach,” which stated: It shall be the responsibility of an institution’s head coach to promote an atmosphere for compliance within the program supervised by the coach and to monitor the activities regarding compliance of all assistant coaches and other administrators involved with the program who report directly or indirectly to the coach.[2] In October 2012, the relevant bylaw was amended to read: An institution’s head coach is presumed to be responsible for the actions of all assistant coaches and administrators who report, directly or indirectly, to the head coach. An institution’s head coach shall promote an atmosphere of compliance within his or her program and shall monitor the activities of all assistant coaches and administrators involved with the program who report, directly or indirectly, to the coach.[3] Nearly two years later, in August 2014, the NCAA amended this bylaw again, broadening it by making the head coach responsible for the actions of not only “all assistant coaches and administrators . . .” but “all institutional staff members . . . .”[4] Finally, the NCAA amended this bylaw last August, which took effect on January 1, 2023. In its current form, bylaw 11.1.1.1 states: An institution's head coach shall be held responsible for the head coach's actions and the actions of all institutional staff members who report, directly or indirectly, to the head coach. In order to assist the NCAA Division I Committee on Infractions in penalty deliberations, the enforcement staff will gather information regarding whether the head coach promoted an atmosphere of compliance within the program and monitored the activities of all institutional staff members involved with the program who report, directly or indirectly, to the coach.[5] Over time, the NCAA’s changes have clearly broadened the liability that may be imposed upon a head coach for actions of third parties within his or her program. But the NCAA’s latest amendment in particular includes two significant changes. First, under the pre-2023 version, a head coach was only “presumed to be responsible” for the actions of staff members that report to him or her. This language left open the possibility that the “presumption” of responsibility could be rebutted by evidence demonstrating why the head coach should not be held responsible for a staff member’s misconduct. The 2023 version of the bylaw, however, leaves no room for rebuttal, stating clearly that a head coach “shall be held responsible” for the actions of all staff members that report to him or her. In effect, the new bylaw imposes strict liability on a head coach for the actions of all institutional staff members that report to him or her. Second, the updated bylaw arguably modifies (or clarifies) the purpose for which a head coach’s efforts to create an atmosphere of compliance will be considered. Under the previous version, the language in the bylaw created a separate duty for a head coach to promote an atmosphere of compliance and to monitor staff members within the program (“head coach shall promote an atmosphere of compliance” and “shall monitor the activities . . . .”). The amended language, however, appears to limit the consideration of whether or not a head coach promoted compliance and/or monitored his program to penalty determinations only. This interpretation is consistent with the 2023 bylaw’s imposition of strict liability on head coaches—after all, if a head coach is strictly liable for the actions of his or her staff members, then any efforts taken by the coach to implement compliance measures would be completely irrelevant to a determination of liability. Those efforts would, however, be relevant to any penalty imposed by the Committee, as the updated language makes clear. This change by the NCAA does not come as welcome news to Jim Harbaugh, head coach of the Michigan Wolverines football team, which is currently under investigation for allegations relating to sign-stealing. Michigan is accused of violating two rules: (1) NCAA bylaw 11.6.1, which prohibits “off-campus, in-person scouting of future opponents (in the same season)” and (2) Section 4.11(h) of the NCAA Football Rulebook, which prohibits “any attempt to record, either through audio or video means, any signals given by an opposing player, coach or other team personnel.” Harbaugh has maintained that he had no knowledge of the alleged sign stealing, nor has he directed anyone on his staff to engage in such activity. But based on the strict liability standard imposed by NCAA bylaw 11.1.1.1, Harbaugh could be held accountable regardless of whether he was involved in the alleged wrongdoing. So, for everyone wondering whether Harbaugh was involved or how much he knew about the alleged sign-stealing operation—the reality is, it doesn’t matter whether he knew anything at all, at least from an NCAA violation standpoint. If Michigan goes down, Harbaugh does too. 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. [1] United States v. Park, 421 U.S. 658, 673-74 (1975). [2] NCAA Division I Manual, 11.1.2.1 (2005-06). [3] NCAA Division I Manual, 11.1.1.1 (2013-14) (emphasis added). [4] NCAA Division I Manual, 11.1.1.1 (2015-16) (emphasis added). [5] NCAA Division I Manual, 11.1.1.1 (2023-24) (emphasis added).

A lawsuit was filed against United Airlines yesterday, October 25, 2023, by two United Airlines employees with over 30 years of combined service time for the company. Plaintiff Dawn Todd is a 50-year-old Black woman and Plaintiff Darby Quezada is a 44-year-old woman of Mexican, Black, and Jewish descent. The lawsuit centers on United’s staffing of its Los Angeles Dodger Charter Program. Per their complaint, plaintiffs say a team charter crew member is a highly coveted position because members can “earn more money, receive premium accommodations and higher per diem compensation, and often receive valuable sporting event tickets, field passes, and rare sports merchandise.” In fact, plaintiffs say that former Dodger Justin Turner gave staff “manilla envelopes of cash . . . at the end of the 2021 season.” However, plaintiffs say they were denied this role for more than a decade, despite having the necessary experience and qualifications, because of their race. Specifically, plaintiffs claim that United staffed the program “with virtually all white crews.” Finally, after “extensive interviews,” plaintiffs were selected to serve as members of the dedicated crew for the Dodgers Inflight Charter Program. However, in 2022, after several White United flight attendants in their 20s or 30s were added to the crew without interviews, Todd and Quezada claim they were told that interviews were not required for those women because the new additions “fit a ‘certain look’ that the Dodgers players liked.” Quezada claims that her supervisor told Quezada that she was shocked the Dodgers’ Senior Director of Team Travel said, “hi” to Quezada “since he only prefers white and Asian flight attendants.” Todd and Quezada say they began receiving far fewer flight assignments before Todd was demoted from the crew around the beginning of the 2023 MLB season. Todd alleges she was “replaced by white female flight attendants . . . who leapfrogged the minority flight attendants who had seniority but were pushed to the bottom.” Todd says this caused her financial harm. Per the complaint, in September of 2023, Todd submitted a formal complaint to United but the defendant “took no meaningful action to investigate Todd’s complaints, address the widespread discrimination, or protect her from retaliation.” Further, Todd says she and Quezada have been retaliated against after no longer getting selected for any charter flights and hostile and unfair treatment in the workplace. Quezada, a granddaughter of Holocaust survivors, says that when she once ordered a kosher meal on one of the Dodger flights, coworkers belittled her and said, “you know Jesus died for you even if you don’t believe” and “you don’t look Jewish.” Quezada and Todd also allege that minority flight attendants have not received a cut or any of the tips, gifts, and merchandise provided by the players. With that, the plaintiffs filed an 11-count complaint in LA County Court. This is not the first time United Airlines has been accused of favoring young, white, blonde attendants for sports flights. Jason Morrin is a Workers’ Compensation and Employment attorney at Morrin & Sands. 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.

Today, the National Labor Relations Board (NLRB) denied the National Collegiate Athletic Association (NCAA), PAC-12 Conference, and University of Southern California’s (USC) Motion to Dismiss the Complaint filed by the National College Players Association (NCPA). Based on the scheduling order, the parties will move forward with a hearing on November 7th, addressing pretrial motions and subpoenas. Last year, the NCPA filed the charges with the National Labor Relations Board—later filing a Complaint that USC, the PAC-12 Conference, and the NCAA, as joint employers, unlawfully violated the National Labor Relations Act by misclassifying college football and basketball players as non-employees. In response, the NCAA, conference, and university denied the NCPA’s allegations, responding that the NLRB lacks jurisdiction over the NCAA and should decline jurisdiction over the responding parties, among other defenses. After all parties agreed on a scheduling order on October 13th, the responding parties filed a Motion to Dismiss the NCPA’s Complaint. Without a response, the Office of the Executive Secretary of the NLRB summarily denied the Motion to Dismiss, citing section 102.24(b) of the Board’s Rules, which states, “[a]ll motions for summary judgment or dismissal must be filed with the Board no later than 28 days prior to the scheduled hearing.” Per the scheduling order, the parties scheduled a hearing to address pretrial motions on November 7th. Therefore, the responding parties filed the motion less than 28 days prior to the hearing. Thus, the parties will proceed to the hearing without addressing the Motion to Dismiss, and the path to joint employee status just got a bit easier for the NCPA. 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.

Across the NFL, NBA, and MLB, sports owners are in full peacock mode. Strutting. Proud. Bruce Sherman, the Miami Marlins Owner, reportedly sought a new president of baseball above Kim Ng’s position despite the team’s recent success of making the playoffs. Ng declined the Marlins’ option. Sherman defended his reasoning by citing the team’s need for player development and drafting abilities.[1] After five and ½ years, Sherman is making it publicly known that he is the face of the Marlins instead of Derek Jeter or Kim Ng. In the NFL, David Tepper, the Carolina Panthers Owner, continues to be an active new owner in his first 5 years. First, Tepper hired college football coach, Matt Rhule, and then fired him after less than three seasons. Tepper’s new head coaching hire, Frank Reich, has the Panthers winless at 0-5. After Reich’s multiple “not fun” meetings with Tepper, Reich gave away his play-calling duties to offensive coordinator, Thomas Brown.[2] Clearly, Reich’s decision was an attempt to appease Tepper. As new owners, Sherman and Tepper are showing everyone who’s in charge. In Dallas, the owners are happy. Mark Cuban, the Dallas Mavericks Owner, took his team to Abu Dhabi to play a preseason game with the future hopes of acquiring sovereign wealth investment similar to the deal struck by Ted Leonsis, Owner of the Washington Wizards, Capitals, and Mystics.[3] Jerry Jones, the Dallas Cowboys Owner, loves the “tush push” play so much that it was not eliminated in the last owner’s meeting.[4] The safety issue of the ‘tush push’ play and the moral concern of sports washing or image laundering seem to escape the minds of Dallas owners. Of course, no owner is happier than Jody Allen, the Portland Trailblazers Owner. In early September prior to trading Damian Lillard, Allen declared, “We really need to move on. We’ve got great young talent. We’re not like other rebuilding teams who don’t have a strong core of young players. It’s time to turn the page” from Damian Lillard.[5] Not only did the Portland Blazers receive a hull of players and draft picks, but they sent Lillard to a better winning situation in the Milwaukee Bucks than the Miami Heat. By General Manager, Joe Cronin, ignoring Lillard’s trade request to be only sent to the Heat, Hankins made a better winning and career decision for Lillard’s own legacy than Lillard desired. Surely, NBA front offices will cite the Lillard trade to players like James Harden who make trade requests. The Philadelphia 76ers and new Washington Commanders Owner, Josh Harris, put his foot down by refusing to give James Harden a long-term deal; instead, Harris wants James Harden to play on a 1-year deal or receive significant trade compensation.[6] Without a long-term deal, Harden wants to play for Steve Ballmer, Owner of the Los Angeles Clippers. Recently, Ballmer celebrated the start of construction on his new Clippers stadium with 1,500 toilets and is reportedly refusing to trade Terance Mann to the Sixers for Harden.[7] Harris and Balmer are in an old-fashioned standoff with the prize of a playoff absentee player in Harden. And how are owners dealing with domestic violence problems? They are benefiting from it. Tilman Fertitta, the Houston Rockets Owner, first banned Kevin Porter Jr from the facility for his recent charges of second-degree assault, third-degree assault, and felony strangulation. After Porter’s ex-girlfriend defended Porter and the Manhattan prosecutors dropped the second-degree assault charge, Fertitta turned a tragedy into a trade positive by sending Porter, a 2027 second-round pick, and a 2028 second-round pick to Oklahoma City Thunder for Victor Oladipo and Jeremiah Robinson-Earl. Clayton Bennett, the Oklahoma City Thunder Owner, will add these picks to his already large pile and waive Porter. Instead of speaking on the problem of domestic violence or even making a half-hearted attempt at donating money to a domestic violence organization, Fertitta and Bennett said nothing and made their teams better. Charlotte Hornets This leads to the new owners of the Charlotte Hornets, Rick Schnall and Gabe Plotkin. What will their strategy be with Miles Bridges who recently violated the protection order from his 2022 felony domestic violence charges? Will they follow Sherman and Tepper and show the NBA who is in charge? Will they keep Bridges and side with Cuban and Jones choosing profit and talent over safety and morality? Will they merely “move on” from Bridges? Will they stand pat and wait like Harris and Ballmer? Or use him as a trade piece like Fertitta and Bennitt? Legally, the ownership relationship is unique between Schnall and Plotkin because they have a Rotating Ownership: “Plotkin and Schnall will serve as Co-Chairman of Hornets Sports & Entertainment and will rotate the team’s governorship every five years, beginning with Schnall.”[8] Surely, Schnall and Plotkin will want to reach a consensus as new owners dealing with their first big problem. However, Schnall has final decision-making power. This is important for the NBA because The NBA requires one voice, or one owner who speaks for the entire team. The one-voice theory is seen in constitutional law. In the three branches of government, there is only one branch that speaks to the international world, the executive branch. One person represents America and speaks for America when America must speak to the international world. How will Schnall speak? Schnall has options, but this is his first test in figuring out his own voice knowing that it also has a five-year time limit. Lebron James Why should Lebron James care about any of this? The Charlotte Hornets Rotational Ownership Model offers a unique blueprint for James to own a team in Las Vegas. Last year, James officially became a billionaire.[9] He is also involved in the ownership group with Fenway Sports Group, Owners of the Boston Red Sox, Pittsburgh Penguins, and Liverpool of the Premier League. However, the expansion fee alone is reportedly $2.5 billion plus all of the other expenses required to own a team. [10] Plus, to be an owner, you must personally put in a certain amount of money. James’ competition is Tim Leiweke, CEO of the Oak View Group, who has budgeted $10 billion for a basketball arena, hotel, gaming, and entertainment district in the Las Vegas area. Due to the rising costs and steep competition, James should be open to a Rotational Ownership Contract with either Fenway Sports Group or the Oak View Group. John Camacho is a graduate of South Texas College of Law where he earned a J.D. and a graduate of the University of Missouri, St. Louis where he received a M.A. in Philosophy. He is also a Co-Founder of The Moral Questions of Sports. He can be reached via Instagram, @themoralquestionsofsports. Sources: [1] See Barry Jackson’s Miami Herald article, “One driving factor in Marlins’ decision with Ng. And a look at how her trades worked out.” https://www.miamiherald.com/sports/mlb/miami-marlins/article279076609.html [2] See Alex Zietlow’s Charlotte Observer article, “Carolina Panthers Frank Reich says owner David Tepper won’t ‘sit idly by.’” [3] See Ken Maguire’s The Associated Press article, “Mavs and Timberwolves play in Abu Dhabi as Gulf region’s influence with the NBA grows” https://www.nbcdfw.com/news/sport problms/nba/mavs-and-timberwolves-play-in-abu-dhabi-as-gulf-regions-influence-with-the-nba-grows-2/3354856/ [4] See Rob Maaddi’s FOX Sports article, “NFL explores ban on hip drop tackle, considers ‘tush push’ rule change for safety” https://www.livenowfox.com/sports/nfl-explores-ban-on-hip-drop-tackle-considers-tush-push-rule-change-for-safety [5] See Ben Golliver’s The Washington Post article, “The Blazers waved goodbye to Damian Lillard. Now what?” https://www.washingtonpost.com/sports/2023/10/06/trail-blazers-life-after-damian-lillard/ [6] See Shams Charania and The Athletic Staff article, “James Harden tells NBA investigators Daryl Morey said he’d trade guard ‘quickly’ after opt in: Sources.” https://theathletic.com/4793506/2023/08/21/james-harden-daryl-morey-liar-nba-investigation/?source=twitterhq [7][7] See Kyle Neubeck Philly Voice article, “In new interview, James Harden addresses his future and star trade rumors.” https://www.phillyvoice.com/james-harden-trade-rumors-nba-damian-lillard-interview/ [8] See NBA article, “Group Led By Gabe Plotkin and Rick Schnall Finalizes Purchase of Majority Stake in Charlotte Hornets from Michael Jordan” https://www.nba.com/hornets/news/group-led-by-gabe-plotkin-and-rick-schnall-finalizes-purchase-of-majority-stake-in-charlotte-hornets-from-michael-jordan [9] See Chase Petrson-Withorn’s article, “Lebron James is a Billionaire” https://www.forbes.com/sites/chasewithorn/2022/06/02/lebron-james-is-officially-a-billionaire/?sh=14654194453e [10]See Callie Lawson-Freeman’s article, “Lebron James wants Las Vegas NBA team. So does Shaquille O’Neal, who doesn’t want to ‘partner up.’ https://sports.yahoo.com/lebron-james-wants-las-vegas-nba-team-so-does-shaquille-oneal-who-doesnt-want-to-partner-up-191411505.html

Caselaw History Name, Image, and Likeness (“NIL”) in college sports first became a talking point in the legal field with Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85, 94 (1984). The issue there was whether the NCAA restricting schools’ rights to sell their own broadcast rights as part of a larger deal with ABC, CBS, and TBS violated antitrust law.[1] Once reaching the Supreme Court, the first seed of NIL analysis was planted. The Court stated that the NCAA horizontally restrained trade by price-fixing TV deals, which required Rule of Reason analysis under the Sherman Antitrust Act.[2] Under Rule of Reason, the plaintiff has the initial task to show the restraint causes “significant anticompetitive effects within a relevant market.”[3] If the plaintiff succeeds, the defendant must show evidence of the restraint's “procompetitive effects.”[4] Lastly, the plaintiff must then demonstrate any legitimate objectives that can be accomplished in a “substantially less restrictive manner.”[5] The NCAA’s evidence for procompetitive effects was unpersuasive, so the agreement violated the Sherman Antitrust Act.[6] One quote stands out: “The NCAA seeks to market a particular brand of football -- college football. . . . In order to preserve the character and quality of th(is) ‘product’, athletes must not be paid, must be required to attend class, and the like.”[7] Then comes O'Bannon v. NCAA, 802 F.3d 1049, 1070 (9th Cir. 2015). Ed O’Bannon, a former basketball player at UCLA, saw himself in a video game.[8] The character resembled Ed, had his jersey number, and played for UCLA even though O’Bannon never consented to have his likeness used, nor was he ever paid for it.[9] O’Bannon sued the NCAA and Collegiate Licensing Company (CLC), arguing rules forbidding paying an athlete violated the Sherman Antitrust Act.[10] O’Bannon reached the appellate courts, with the appellate court affirming that the NCAA must satisfy Rule of Reason analysis which “requires that the NCAA permit its schools to provide up to the cost of attendance to their student-athletes”.[11] According to the court, the discrepancy in “offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap.”[12] If this were allowed, the NCAA would no longer have a differentiated product and would then be no different than minor league sports.[13] NCAA v. Alston involved current and former Division I student-athletes suing the NCAA for their compensation rules, alleging that they violated Section 1 of the Sherman Act.[14] Ultimately, the Supreme Court upheld the injunction granted by the district court which restricted cash awards to players for academic achievement by capping them at $5,980 annually.[15] The NCAA still had freedom to reduce awards and/or set the criteria for earning the awards.[16] The NCAA is free to outlaw in-kind benefits unrelated to education if they want or ask for clarification from the district court before going to the Supreme Court.[17] Justice Kavanaugh’s concurrence showed us that the Supreme Court was catching up with the times and directly called out the NCAA: the NCAA’s business model would be flatly illegal in almost any other industry in America” because it is “price-fixing labor” which is a textbook antitrust issue and that the NCAA “is not above the law.[18] Alston’s Aftermath and the Logistics of Paying Players After Alston, schools still cannot pay athletes directly: coaches cannot offer money to recruits to go to a certain college nor can current student-athletes get compensation for any “athletic achievements.”[19] Student-athletes CAN earn money from “endorsements, signing autographs, selling apparel, corporate partnerships, charitable appearances, teaching camps and starting their own businesses”, etc., and can also hire “professional service providers for NIL activities.”[20] Some states even allow high school players to earn NIL deals, with no risk to their eligibility: Tennessee, California, and New York.[21] Early on, the NCAA stated that collectives, or “groups of boosters and businesses”, cannot be involved in recruiting or transfers, but states soon passed laws to allow schools or third parties to give money to student-athletes through NIL, with Tennessee as a prime example, along with Alabama and others.[22] Collectives are booming: Tennessee has Spyre Sports Group, one of three different Tennessee collectives, that works primarily with the University of Tennessee football and basketball.[23] Spyre has an annual goal of raising 25 million dollars and have raised 13.5 million dollars for confirmed NIL deals through their official collective: the Volunteer Club.[24] The Volunteer Club has one of the most high-profile deals thus far: Nico Iamaleava, the top-rated recruit out of the 2023 recruiting class, and a five-star quarterback from California.[25] On3 has his NIL value at approximately 1.2 million dollars and the deal is projected to be worth 8 million dollars over three years.[26] Who do Schools Look to Pay and What are the Numbers? This begs the question: what goes into a player’s value? On3.com offers a possible explanation: the Roster Value Index and the Brand Value Index, with three factors going into the calculation: performance influence, and exposure.[27] On3 notes that this dollar figure is the “optimized NIL opportunity for athletes relative to the overall NIL market and projects out to as long as 12 months into the future.”[28] College football recruiting is starting to mirror the veracious market for QB talent in the NFL. The top collectives for schools are “willing to spend at least $1 million on a blue-chip quarterback, with the market value for the position being toward the $1.5 to $8 million range once UT’s Iamaleava deal was public.[29] Lesser-rated QBs are cashing in on the booming market; according to one source one four-star QB is looking for $7-8 million, already having turned down an offer of $6 million.[30] It may be better to wait out the market so that a QB’s value continues to rise; one source said the rate could go as high as $5 to $8 million.[31] NIL's Effect on the Law How does all this data affect agency law? There could be a case for agents prioritizing certain positions when looking at potential clients: QB is likely given the massive growth in the market concerning the position. Moreover, agents could prioritize working in certain locations or with certain schools, given they can maximize the commission they earn because certain schools have higher budgets than others, with the Power 5 schools being an example. Furthermore, with agents that represent non-QBs, they may promote going to wherever the student-athlete can maximize their value. Agents repping QBs may prioritize player comps or the importance of garnering a social media following. Agents may also incentivize waiting to capitalize on their market value as the NIL space continues to grow. There is also the possibility for federal legislation, and there are multiple proposals: a bipartisan bill from Tommy Tuberville, a bill from Democrat Corey Booker, and a bill from Republican Roger Wicker.[32] The Power 5 conferences have some demands and preferences for these proposals; the must-haves are preventative while the preferences are concerned with “additional student-athlete support, healthcare benefits for student-athletes and enforcement of laws in new legislation”.[33] Some must-haves are: “college athletes being classified as employees; granting athletes their name, image and likeness rights in media telecasts of competition; and NIL or third-party payments being used as ‘recruiting or participating inducements.’”[34] Others include federal legislation preempting state laws, as well as to provide ‘legal liability protection for following these provisions of the new law, at least prospectively’”, effectively an anti-trust exemption, which is unlikely after the Alston opinion.[35] Athletes as employees is a particularly important issue. In Johnson v. NCAA, student athletes are arguing that they are employees under the Fair Labor Standards Act (FLSA), which entitles them to “minimum wage and overtime pay.[36] Hypothetically, these players could then unionize under collective bargaining and fight for revenue-sharing on their TV money, as Michael Hsu, a former Minnesota regent suggests, with the nightmare scenario being players could ask for as much as 50% during potential CBA negotiations, just like the pro players have successfully done.[37] The amount of revenue in play here would depend on the sport, so some athletes in different sports could benefit more than others, but the key is that every student-athlete would get something.[38] Johnson v. NCAA could affect Title IX, which “bars discrimination on the basis of sex for any educational program or activity receiving federal financial assistance.”[39] If Title IX still applies to employees, it “would require the benefits that a university provides male and female athletes to be comparable, thus creating a sizable financial stress test for schools”; but if not, “women’s sports (and non-revenue sports in general) would be vulnerable to being eliminated.”[40] Even if Title IX still applies, some male athletes could challenge the proportion of revenue given to female athletes, with a reduction almost certain, since women’s sports typically do not bring in as much revenue, using basketball as an example.[41] If this is challenged, it could undo years of progress and development in women’s sports.[42] Antitrust law could be dealt yet another blow with House v. NCAA.[43] There, athletes argue denying NIL for college athletes “should, lead to monetary damages for athletes who were denied endorsement, group licensing and other opportunities that would have existed in the college sports marketplace," and so essentially granting back pay due to the lost opportunity on endorsements, apparel, autographs, etc.[44] This case has the potential to “bankrupt the NCAA.”[45] Adam King is a recent graduate from the University of Tennessee College of Law. He is currently clerking for a practice in Crossville, Tennessee that focuses on criminal defense and estate planning, but hopes to make a name for himself in sports law. Adam can be found on LinkedIn at Adam King. Sources: [1] Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85, 94 (1984). [2] O'Bannon v. NCAA, 802 F.3d 1049, 1070 (9th Cir. 2015). [3] Id. [4] 802 F.3d at 1070. [5] Id. [6] Bd. of Regents, 468 U.S at 120. [7] Id. at 101-02. [8] O'Bannon, 802 F.3d at 1055. [9] Id. [10] O'Bannon, 802 F.3d at 1055. [11] Id. at 1079. [12] O’Bannon, 802 F.3d at 1079. [13] Id. [14] NCAA v. Alston, 141 S. Ct. 2141, 2151 (2021). [15] Id. at 2153. [16] Alston, 141 S. Ct. at 2153. [17] Id. at 2165-66. [18] Alston, 141 S. Ct. at 2167, 2169 (Kavanaugh J. concurring). [19] Pete Nakos, Why NIL has Fans, Coaches, Administrators Anxious about Future of College Sports, (March 15, 2023, 8:31 pm), https://perma.cc/3Q99-Q3TE. [20] Id. [21] Nakos, supra note 19; NIL High School Rules, on3.com, https://perma.cc/2TZ7-TB6A (March 15, 2023 9:01 pm). [22] Id.; see also NIL College Rules, On3.com, https://perma.cc/9WAP-8DUG, (March 16, 2023, 1:48 pm). [23] Dan Morrison, Tennessee Volunteers NIL Collective: Spyre Sports Group (March 15, 2023, 9:15 pm), https://perma.cc/6MUP-LMDL. [24] Pete Nakos, Spyre Sports' Volunteer Club Facilitates $13.5 million in NIL Deals, (March 15, 2023, 9:20 pm), https://perma.cc/C6PV-R9CG. [25] Pete Nakos, The Volunteer Club Signs NIL deal with Tennessee Quarterback Nico Iamaleava, (March 15, 2023, 9:23 pm), https://perma.cc/J658-5T2J. [26] Id. [27] Shannon Terry, About On3 NIL Valuation, Brand Value, Roster Value (March 15, 2023, 9:36 pm) https://perma.cc/EQL3-RRVU. [28] Id. [29] Jeremy Crabtree, NIL Creates Multi-Million Market Rate for Blue-Chip Quarterbacks, (March 16, 2023, 10:10 am), https://perma.cc/E6JG-5YPE. [30] Id. [31] Crabtree, supra note 29. [32] Jeremy Crabtree, Former Auburn Coach Tommy Tuberville to Introduce NIL Regulation Bill in Senate, (March 16, 2023, 12:00 pm), https://perma.cc/Z55G-TA3N; Pete Nakos, Five Senators Set to Reintroduce Athlete Bill of Rights in Congress, (March 16, 2023, 12:31 pm), https://perma.cc/EPS7-9MFD; U.S. Senate Committee on Commerce, Science, and Transportation, Wicker Reintroduces Bill Establishing a National Framework for Student Athlete NIL, (March 16, 2023, 12:43 pm), https://perma.cc/9UGY-4GQK. [33] Andy Wittry, ACC Memo: Power 5 Reach Consensus on What ACC Calls ‘Must Haves’ with Federal Legislation, (March 16, 2023, 12:04 pm), https://perma.cc/HV2Y-DZ2E. [34] Id. [35]Wittry, supra note 33; Andy Wittry, Can Congress Help with the Power 5’s ‘Must Haves’ and ‘Negotiated Issues’?, (March 16, 2023, 12:15 pm), https://perma.cc/UU4C-ZHMV. [36] Eric Prisbell, Johnson v. NCAA: Why College Sports Fans Need to Pay Attention to this Court Case, (March 16, 2023, 12:53 pm), https://perma.cc/54HA-STHD. [37] Wittry, supra note 35. [38] See Eric Prisbell, Student-Athletes as School Employees Could Lead to Interesting Negotiations, (March 16, 2023, 1:11 pm), https://perma.cc/S3M3-S5JA. [39] Prisbell, supra note 36. [40] Id. [41] David Berri, For the NCAA, Building the Business of Women’s Sports Starts With Basketball, (April 28, 2023, 10:46 am), https://perma.cc/VXD5-YYGA. [42] Prisbell, supra note 36. [43] House v. NCAA, 545 F. Supp. 3d 804 (N.D. Cal. 2021). [44] Id. [45] Wittry, supra note 35.

In an ever-changing sports marketing landscape, the NFL has unveiled an innovative strategy to harness the marketing skillfulness of college athletes, propelling itself into a dynamic future of fan engagement and brand connectivity. The NFL has taken a significant step in broadening its outreach by enhancing its program aimed at enlisting college players as brand ambassadors, reports Julian Cannon of DIGIDA. This fresh initiative, known as the Collegiate Marketing Program, aspires to foster a closer connection between collegiate athletes and the NFL. Notably, this year's initiative boasts active participation from all 32 NFL teams and over 100 universities nationwide, a significant expansion from the 60 participating universities last year. This expansion aligns with the NCAA's adoption of its NIL (Name, Image, Likeness) Program, which permits college students to earn compensation for the use of their personal brand. Experts estimate the NIL market to be currently valued between $750 million to $1 billion, with projections suggesting it could swell to a staggering $3-$5 billion within the next five years, as reported by On3.com. Football stands at the forefront of the NIL arena, closely followed by men's basketball. Sana Merchant, NFL Senior Director of Club Social Strategy, highlighted the NFL's pre-existing collaboration with college students, even before the NIL rule change. During this period, students were involved in creating content related to NFL alumni who were once recruited from their college programs. Through the marketing program, college athletes receive coveted exposure on NFL social platforms and gain access to the NFL's valuable intellectual property. This access enables them to incorporate NFL-sponsored content into their own promotional endeavors. The NFL, regardless of the content creator, maintains specific guidelines about where its content can be used, working in tandem with the respective colleges to establish precise policies. “We work with our partner schools to highlight key on and off-field moments that we think will resonate with our target demos,” said Merchant. “Though the game action is a core tenant of our strategy, our coverage goes much beyond that and a lot of the content we collaborate on focuses on moments where the helmets are off.” They have been covering a wide spectrum of topics, including key college matchups, compelling storylines, combine performances, drafts, rookies' debut games, and more. Merchant declined to disclose specific budget details, so for now the precise allocation of the NFL's advertising budget for these efforts remains undisclosed. Ryan Detert, CEO of Influential, an influencer marketing agency, underscored the critical importance of expanding fan bases, particularly among younger audiences like Gen Z and Gen Alpha. Detert pointed out that through the college marketing program, the NFL taps into the popularity of NIL-endorsed talent, bridging the gap between diverse demographics and piquing the interest of new fans who might not fit the traditional mold. As Detert noted, we can anticipate brands of all sizes leveraging NIL talent to better connect with younger fan bases and nurture brand loyalty moving forward. In embracing the potential of college athletes as marketers and seizing the opportunities presented by the evolving landscape of NIL, the NFL positions itself to engage fans across generations, ensuring a vibrant future for the sport. Madelyn Feyko is a 2L at the Hofstra Law and is the Vice President of Sports for the Sports and Entertainment Law Society. She can be found on LinkedIn at the following link: https://www.linkedin.com/in/madelyn-feyko-8942b520a/ or on Twitter @madelyn_feyko.

For the second time in just over a year, the National Football League has been named as a defendant in a lawsuit that accuses the league of racial discrimination. Former NFL Network journalist, Jim Trotter, filed a complaint in the United States District Court for the Southern District of New York claiming not only that he himself was subjected to discriminatory employment practices, but also asserting a slew of salacious, racially-charged allegations, including the 1930s “Gentleman’s Agreement” to exclude Black players, the blackballing of Colin Kaepernick, racist comments made by current NFL team owners, and the failings of the Rooney rule, to name but a few. The 53-page Complaint alleges that the NFL let Trotter go in response to his challenging the League – and in particular, Commissioner Roger Goodell – regarding the NFL’s track record on discrimination, as well as the League’s lack of diversity in its coaching ranks, in the League office, and in the NFL Media newsroom. In particular, the Complaint highlights two instances in which Trotter publicly asked Goodell, at the annual “State of the League” press conference before Super Bowls LVI and LVII, why “we’ve never had a black person in senior management in our newsroom.” Trotter alleges that, following these inquiries, he was asked by NFL Management to confirm whether Trotter was “in alignment” with the NFL, to which Trotter responded that he was not “in alignment” with the NFL’s lack of diversity, and reported his concerns about both discrimination and potential retaliation resulting from his questions. According to the Complaint, a few days later, and despite having previously informed Mr. Trotter’s agent that his contract would be renewed, the NFL allegedly retaliated against him by declining to renew his contract. Trotter brings six claims alleging retaliation and discrimination under three different statutes: Section 1981 of the Civil Rights Act of 1866 (“Section 1981”), the New York State Human Rights Law (“NYSCHRL”), and the New York City Human Rights Law (“NYCHRL”). The Complaint alleges that Trotter lost his job “for having the courage and integrity to stand up to the NFL.” More than Mr. Trotter’s courage and integrity, however, there are three pertinent issues presented in the Complaint which will affect the trajectory of the lawsuit. First, the Court must determine whether the NFL itself actually employed Trotter. For the Section 1981 claims, the Courts will analyze whether the NFL “exerted significant control” over Trotter: did the NFL supervise Trotter’s day-to-day activities; have the authority to hire or fire Trotter; set his work rules and conditions of employment; issue Trotter work assignments; or issue Trotter operating instructions? For the NYSHRL and NYCHRL claims, the Court will look at whether the NFL: (1) had the power to select and engage Trotter; (2) paid him; (3) had the power to dismiss Trotter; and (4) had the power to control the employee's conduct. Zurich Am. Life Ins. Co. v Nagel, 571 F Supp 3d 168, 184 (S.D.N.Y. 2021). The NFL will argue that Trotter had no contract with, and was not employed by, the NFL itself, but rather by NFL Enterprises and the NFL Network (or “NFL Media”). The Complaint attempts to preempt this issue by describing the ways that the NFL owned and controlled the NFL Media entities that actually contracted with Trotter and claiming that the NFL issued instructions regarding his work: not to mention suggesting strongly that Trotter was let go as a direct response to his questioning of Goodell. Second, the Court will evaluate whether Trotter was engaging in protected activity. Under these statutes, the term “protected activity” includes action taken to protest or oppose statutorily prohibited discrimination. This issue will likely come down to whether Trotter’s public and private inquiries regarding Black representation in the newsroom and on the news desk constituted protests of alleged discrimination. Third, the Court must decide whether the decision to let Trotter go was in retaliation for his actions and inquiries, or whether the defendants had a legitimate, non-retaliatory reason for its decision. There are, of course, more issues to be analyzed by the Southern District Court than the three discussed above. Like the pleadings in Brian Flores’ Complaint against the NFL, Trotter’s Complaint states the intention to file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission, after which he will likely amend his Complaint to include claims arising from Title VII of the Civil Rights Act. A claim under Title VII will almost certainly implicate additional issues for the Court to preside over. Defendants currently have until November 17, 2023 to respond to the Complaint by way of either Answer or Motion to Dismiss. Charles Bergin is an attorney at Kaufman Dolowich LLP. His practice focuses on labor and employment law, business litigation, immigration law and general liability defense. He has a background in entertainment law, sports law, and insurance litigation. He was named a 2020, 2021 and 2023 New York Metro “Rising Star” in the field of “Business Litigation”. Alessandro J. Angelori is an associate at Kaufman Dolowich LLP. His practice focuses on labor and employment law, insurance litigation and coverage, intellectual property matters, and general liability defense.

This past weekend, I was given the opportunity to attend the 45th ABA Sports and Entertainment Annual Conference in Las Vegas. It was an excellent conference and I felt as though I should share my experience with other law students who are interested in the sports law industry and why such law students should attend next year's conference and any others that become available to them. During three days, I met and spoke with over 50 practicing attorneys in the sports and entertainment industry. That would have taken me at least a month to do via social media (i.e., LinkedIn). Not only did I make a substantial amount of connections, but each connection started with a handshake, which placed a face to my name and my story. Suppose we all put ourselves in the shoes of a professional in this industry, or any industry, it is clear that an email from a random student might be intriguing the first time, but by the 30th student, you are attempting to create an automated template to respond to the students reaching out to you (or just ignoring them). However, when that introduction is an in-person handshake from a 6'1 goofy-looking redhead, not only do I get a personalized response, but the professional is much more likely to remember me. The professionals you meet give you their real-life story, which contains much more detail than their bio on LinkedIn or their firm’s/organization's website. This gives you the opportunity to imagine yourself in their shoes. If you think someone has your dream job, you get the chance to hear their story from exactly where you are at in life. Giving you an automatic road map to help shape how you can achieve your dream. Sure, you will deviate from their path because no two people are the same, but it places you in a much better position than you were in before you met them. The best part about hearing their story in person is that at any point if you have a question or want a deeper understanding of a certain matter, the professional will be happy to answer those questions, because what lawyer does not love talking about themself. During the conference, I was exposed to a wide variety of topics within the sports law industry. I was able to expand my knowledge on subjects such as arbitration law within sports, and then 15 minutes later was able to learn about regional sports networks ("RSNs") and how sports law experts are shaping how fans watch their favorite teams. I knew diddly squat about RSNs before this conference, and now I have a general idea and I know exactly who to point to in order to learn more. By living through the experts for a few days, it helps you narrow down the specific industry that you want to work in. I walked in thinking, “I know I want to work in sports and I know I want to use my JD, but I am unsure of the ideal position for me.” Leaving the conference and hearing numerous stories, backgrounds, and day-to-day roles, I now know that I want to work in private practice upon graduation and focus on sports clients that have issues regarding labor and employment, intellectual property, NIL, estate planning, business creation and litigation, and higher education. I know that I am not restricted to this list of areas and if the NCAA comes calling, asking me to create a structure on how to move forward in this new era, I will take on that role, but the idea is to utilize stories of these experts to give yourself a sense of direction. The biggest takeaway from the conference that every law student and young professional wanting to work in the sports and entertainment industry should know, is that every single story I heard started with, “because I knew so and so.” To work in this industry, it is crucial that you get to know as many people as you can who have prevailed in the industry because that is how you will land a job. Most students have already heard this, but I want to make sure that not only are you aware of how to get a job, but that you are aware you need to take action right now on this knowledge to obtain a job. Start connecting now. Emails, phone calls, LinkedIn, webinars, and especially conferences. Start doing them all as soon as you can. Extra Tips I Learned From the Conference 1. Everyone is human and these experts were once in your shoes, so be prepared, but just have a conversation with them, be sincere and honest. 2. Do not just talk sports law with them. Ask about their family, hobbies, and more. You want to build a connection with them, not just ask them how to get a job. 3. Do not rush the conversation. These professionals are heavily liked, so they will get pulled away from your conversation, realize that you will likely see them again, and can always shoot them an email. Do not feel you have to get your entire life story out in two minutes. 4. Reflect and enjoy the fact that you will be in a room full of the leading experts in your dream profession. You might even have the privilege of spending time with the general counsel of your favorite sports team, or even your favorite league. Self-reflection is key to growing and becoming a better student, employee, and person. Logan Hughes is a third-year law student at Ohio Northern University Claude Pettit College of Law. You can follow him on Twitter @loganchughes23 and on LinkedIn (Logan Hughes).