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One of the best aspects of sports in our society is the connection a professional or college team can have with its respective city and fans. In an era fraught with political division, it’s always nice to see people in a particular town or religion come together in unison to support their favorite team as one. A great example of this in recent years is the bond the Padres have formed with the city of San Diego and the “Friar Faithful” as termed by the great play-by-play broadcaster Don Orsillo.   While the Padres have been in San Diego for over 50 years now, the city’s support of the team is clearly at an all-time high. The reasons for this are multifaceted. Yes, the departure of the Chargers for Los Angeles left the Padres as the only major professional franchise in the city. Yes, Petco Park is an amazing setting to watch a baseball game. And yes, the team is in the midst of its most successful five-year run in club history. But the overarching reason for why San Diego has become a baseball town is the late Peter Seidler’s investment into not only the on-field product but the overall fan experience.   Seidler became the chairman and largest stakeholder in the Padres in 2020 after being part of the group that purchased the team in 2012. Tragically, Seidler died in November 2023 at the age of 63 after a months-long illness. Since his passing, control over the San Diego Padres has now come into question.   This week, Sheel Seidler, the widow of Peter Seidler, filed a lawsuit against her husband's brothers for control of the franchise. In the complaint filed in Texas state probate court, Sheel claims that Bob and Matt Seidler committed "breaches of fiduciary duty and fraud" as trustees of the Seidler Trust that controls the franchise. She alleges that the brothers have "irreconcilable conflicts of interest" and sold assets of the trust to themselves at "far below-market prices" in an effort to gain control of the team.   Moreover, the complaint accuses the Seidler brothers of pursuing an initiative to sell the Padres and maybe even relocate the franchise. This inflammatory and potentially hyperbolic language is common in legal complaints and is likely included to invoke support of the Padre fanbase that still reveres the life and legacy of Peter. Sheel further stated that she was frequently involved in team business while her husband owned the team, including input on daily operations, management hirings and free-agent signings. Given the fans obviously appreciated Peter’s aggressive spending in his final years, they would be more apt to favor Sheel over the brothers clearly portrayed as the “bad guys” looking to line their own pockets and even relocate the team, something that might strike a chord with San Diegans in light of the Chargers and even Clippers departures from the city. On the other hand, The Peter Seidler Trust headed by the brothers issued a statement asserting the lawsuit is "entirely without merit." "Peter had a clear estate plan," said the statement. "The plan specifically named three of his nine siblings, with whom he had worked closely for many decades, as successor trustees of his trust and Peter himself prohibited Sheel from ever serving as trustee."The statement went on to declare that Sheel Seidler agreed in a sworn document that "she had no right to be or to designate the Control Person" and would not interfere with the process to choose someone for that role.” It will be interesting to see how this suit develops and whether a solution can be reached between the two sides. Oftentimes however, these inter-family fights for control over sports franchises ultimately lead to a sale of the team. We saw this most recently in Baltimore where the Angelos family feud over the Orioles led to last year’s sale of the club after Peter Angelos passed away. It's obviously too early to know whether a sale of the Padres is imminent. But earlier this offseason, the Pohlad family announced their intentions to sell the Minnesota Twins following 40 years of ownership. Reports have recently surfaced that a potential sale to a new group could be completed by Opening Day, highlighting the intense demand for MLB franchises despite amid diminishing regional TV revenues for smaller to middle market clubs.   The Padres are currently valued at $2.03 billion, the 15th-most valuable MLB club, according to Sportico. Forbes has the team's value at $1.78 billion. It’s worth noting that MLB took over production and distribution of Padres games in 2023 after Diamond Sports Group, the parent company of Bally Sports, failed to pay the team. Given San Diego is one of the smaller media markets in MLB and pales in comparison to Los Angeles and San Francisco, it's uncertain whether the team can continue to carry the unprecedented payroll levels they have maintained in recent years. The good news is that the Padres ranked third in overall attendance last season, as over 3.3 million fans flocked to Petco Park to watch the Padres reach 93 wins for only the second time in franchise history. Since Peter Seidler took over control of the club in 2020, attendance is up over 39% from 2019 levels. This likely makes up for some of the TV revenue lost from Diamond. How much is unknown to the general public. How all of affects this the Padres pursuit of Roki Sasaki or ability to retain impending free agents such as Dylan Cease or Luis Arraez remains to be seen. Hopefully, whoever is in control of the Padres moving forward keeps the team’s great fans at the center of their focus. It would be a shame to see San Diego’s fervor for their Friars be diminished in any way.   Brendan Bell is a 2L at SMU Dedman School of Law. He can be followed on Twitter (X) @_bbell5

The proposed settlement in House v. NCAA represents a transformative shift in collegiate athletics, introducing sweeping changes to athlete compensation and the operation of athletic programs.  Although the settlement aims to bring stability to college athletics in the NIL era, several of its key components raise new questions that are likely to spark additional litigation.  If Judge Wilken approves the settlement at the fairness hearing scheduled for April 7, 2025, the following issues will likely be focal points for future legal disputes. The Legality of a Cap on Revenue-Sharing The proposed settlement permits Division I schools to allocate up to 22% of the average annual athletic department revenue of a “Power Five” school directly to their respective athletes.  In 2025, this figure is projected to be approximately $22 million. Payments counting toward this cap include Alston awards (up to $2.5 million), scholarship awards exceeding limits previously set by NCAA Division I rules (up to $2.5 million), and any direct payments or personal benefits provided by the school to athletes or their families beyond what NCAA rules historically allowed.  However, excluded from the cap are NIL payments from third parties, including those facilitated by the school acting as a marketing agent for the athlete.  Still, as detailed below, third-party payments from certain parties (mainly, collectives and boosters) must qualify as “true NIL” to be exempt. Disputes are almost certain to arise over whether specific payments meet the above criteria (and thus count toward the cap).  For instance, questions may emerge about whether an athlete received payments from a legitimate third party—which would not count toward the cap—or from an entity posing as a third party but effectively controlled or operated by the school, in which case the payment would count toward the cap. In addition to challenges to individual payments, the cap itself will likely face legal scrutiny as an unlawful restraint on compensation, particularly because it was not collectively bargained.  Although the NCAA has sought legislative protection from Congress against future antitrust lawsuits, those efforts have largely been unsuccessful.  A successful challenge to the cap in future litigation would bring athletes closer to being classified as employees, paving the way for collective bargaining agreements to replace the framework established by the House settlement. Applicability of Title IX Title IX requires schools to provide equal opportunities for men and women in their athletic programs.  In short, schools subject to Title IX must allocate scholarships and other benefits to male and female athletes in proportion to their participation in athletics.  While subject to future legal challenges, Title IX is unlikely to bar the payment of back-damages to athletes who opt into the settlement, because the parties have released Title IX claims regarding such damages.  However, what is less clear is whether Title IX will apply to future payments under the prospective revenue-sharing framework established by the proposed settlement.   Some legal experts argue that revenue-sharing payments made directly from a school to an athlete fall outside the scope of Title IX, particularly when structured as compensation for a license to use the athlete’s NIL.  Others maintain that any payments made by an athletic department to its athletes constitute financial assistance and therefore must comply with Title IX.  In light of the uncertainty, schools will continue to take different approaches based on their own risk tolerance.  Some will opt to distribute revenue evenly between men’s and women’s sports (or proportionally, based on participation rates), while others may allocate a majority of the funds to revenue-generating sports, which typically include football and men’s basketball.  However, as NCAA President Charlie Baker has noted , either approach could prompt litigation—whether from athletes in revenue-generating sports claiming an unfair share of the revenue split, or from female athletes alleging that the school’s unequal revenue distribution violates Title IX. Without clear guidance from the Department of Education or its Office for Civil Rights, the question of whether and to what extent Title IX applies to revenue sharing will likely be decided by future litigation. Defining the Scope of “Associated Entities or Individuals” Under the proposed settlement, all third-party NIL deals exceeding $600 must be reported.  However, NIL agreements involving “associated entities or individuals,” regardless of value, are subject to a fair-market-value (FMV) assessment to determine whether the compensation qualifies as “true NIL.”  Consequently, determining whether an individual or entity qualifies as an “associated entity or individual” is critical, as it triggers the FMV assessment.  Litigation is likely to play a key role in clarifying the scope of “associated entities or individuals.”  While collectives and boosters clearly fall under the definition of “associated entities or individuals,” the term’s full scope is uncertain.  For instance, the settlement’s definition includes any individual or entity that “has assisted in the recruitment or retention of prospective or current student-athletes.”  But what qualifies as “assist[ing] in the recruitment or retention of prospective or current student-athletes”?  Could a supportive tweet about a player bring an individual within this definition?  Although the settlement broadly defines associated entities and individuals, schools—led by their collectives and boosters—are likely to explore creative strategies to funnel money to athletes through sources that fall outside this definition, thereby avoiding the FMV assessment.  Efforts to test these boundaries will almost certainly lead to further litigation. 4.     Assessing Fair-Market Value As explained above, the proposed settlement makes third-party NIL agreements involving “associated entities or individuals” subject to a fair-market-value (FMV) assessment.  Specifically, the settlement empowers the NCAA to prohibit payments from such individuals or entities unless the payments serve “a valid business purpose related to the promotion or endorsement of goods or services provided to the general public for profit, with compensation at rates and terms commensurate with compensation paid to similarly situated individuals with comparable NIL value who are not current or prospective student-athletes at the [school].”  This requirement will apply to any agreement signed after the settlement receives final approval, and to existing qualifying agreements that include payments made on or after July 1, 2025. Determining the FMV of an athlete is inherently challenging due to the numerous factors—many of them intangible—that influence an athlete’s marketability.  The NCAA has indicated that it will hire Deloitte to evaluate the FMV of athletes’ third-party NIL agreements.  However, as prominent sports attorney Tom Mars has pointed out on X (@TomMarsLaw), Deloitte itself has acknowledged that calculating “the potential [return on investment] for brands investing in student-athletes through NIL is speculative.” The NCAA may leverage new technologies to refine its FMV assessments, such as Opendorse’s recently launched platform , which uses a formula considering factors like an athlete’s association, division, conference, school, sport, position, accolades, existing deals, social media following, and more.  But even with these technological advancements, accurately assigning a dollar value to individual athletes remains a complex and subjective process.  As a result, collectives and/or boosters are likely to challenge any NCAA decision to prohibit a third-party NIL agreement on the grounds that it exceeds a particular athlete’s FMV.  Notably, the first step to any such challenge would be appealing the NCAA’s decision to a neutral arbitrator selected by the parties in House prior to final approval of the settlement. Conclusion The proposed settlement in House introduces significant changes to athlete compensation in collegiate sports, particularly through its revenue-sharing framework.  However, this arrangement will likely lead to legal disputes, especially over the cap on revenue-sharing and the application of Title IX.  Defining “associated entities or individuals” for reporting purposes and determining the fair-market value of NIL agreements will also be key points of litigation.  Assuming the settlement is approved, these future legal battles resulting from the settlement’s implementation could reshape (yet again) how collegiate athletes are compensated. Alec McNiff, an attorney licensed in California, is an Associate at a global law firm.  He earned his J.D. from University of Michigan Law School and holds a business degree from University of Southern California.  Follow him on LinkedIn or on X (@Alec_McNiff).

While the current CBA between MLB and the MLBPA doesn’t expire until December 2026, it’s not too early to look ahead to some of the issues that will undoubtedly shape the negotiations between the two sides. Given the tenor of the last round of bargaining combined with the game’s history of lockouts and strikes, it would be naïve to expect a smooth and swift process this time around. However, while the focus will be directed at the tension between MLB and the MLBPA, there might be just as much to sort out between the commissioner’s office and the collective owners across the sport.   While MLB’s total league revenue figures continue to grow each year, that revenue is not shared equally across each of the 30 franchises. The reality of revenue and payroll inequity is nothing new in the game and it’s no secret that teams like the Yankees and Dodgers have far more resources available than the Pirates and Rays. This is especially relevant given MLB’s lack of a salary cap compared to the other major professional sports. While the commissioner’s office and each of the respective owners will continue to push for some form of a salary cap in future CBA negotiations, there’s little reason to believe the MLBPA will ever concede such a momentous action.   Nonetheless, recent developments in the sports media landscape could prove to be a major source of contention among baseball’s 30 owners.    In today's media environment, television networks have been facing an accelerated rate of cord-cutting in recent years as consumers opt for streaming services. Despite maintaining stable ratings, as live sports often do, regional sports networks (RSNs) have felt the brunt of the shift away from cable. Chief among these RSNs is Diamond Sports Group, the parent company of FanDuel Sports (formerly Bally Sports), which just two years ago carried the rights to nearly half of the MLB clubs. In March 2023, Diamond filed for Chapter 11 bankruptcy protection, casting doubt on the company's ability to broadcast games moving forward. Eventually, Diamond emerged from bankruptcy and will continue to broadcast games for a handful of teams in 2025, but the lengthy saga created a lot of discussion about the future of how fans consume MLB.   I’ve written for multiple years now that one of MLB’s goals is to create more a national product that would address the local blackout problem through in-market streaming. MLB.tv is a great product that many leagues are envious of. However, without control of broadcast rights, many fans have been “blacked out” from watching certain games. Progress has been made on this front over the last couple years, but the issue is far from obsolete as we head into 2025.   To that point, Rob Manfred formally announced earlier this offseason that MLB plans to create national packages for major streaming companies to bid on in 2028, the year that the league’s national television deals with ESPN, Fox and Turner are set to expire. To do so, the commissioner needs as many of its teams’ local media rights available as possible by then to bundle them together for potential platforms. Manfred ultimately wants the league office to take over teams’ local media rights — the traditional, linear TV rights, as well as the in-market, direct-to-consumer streaming rights, both of which currently belong to the individual clubs.   The league already has some of their team’s rights in hand as they are already handling the broadcasts for a handful of clubs in 2025. Moreover, the deals for the aforementioned teams returning to Diamond Sports were designed around the goal of being available to MLB three years down the road. As of now, close to two-thirds of the league’s teams appear to have their rights available come 2028, if not more. However, just because the rights may be available, and some owners would likely be on board with combining the rights of all the teams doesn’t mean every owner will happily turn over theirs. Achieving the changes the commissioner seeks is a difficult task because the worth of media rights varies greatly from small markets to large.   According to Morningstar, the Dodgers make an average of over $300 million per year from their local TV deal with Charter Communications’ Spectrum. The Yankees took home $143 million  from its YES platform in 2022. By contrast, several clubs generate less than even $70 million annually from their respective deals. Therefore, why would teams like the Dodgers or Yankees agree to share TV revenues with teams like the Pirates or Rays?   Of the four major professional sports in America, local television deals provide MLB franchises with the highest percentage of their overall revenue on an annual basis (approximately 25%). The nature of the 162-game season provides an unmatched volume of content for television providers to fill programming from early spring all the way into the fall. So, while ticket sales, sponsorships, concessions, and even the national television revenues provide significant revenue streams, the local television deal plays a big role in separating the financial “haves” from “have nots” in baseball. In an interview on Sirius XM’s MLB Network Radio, Manfred implored that “it’s important to recognize that our clubs should and do act in their economic self-interest.” “If you want to make a change, you’ve got to demonstrate to people that what you’re offering to them is better for them” Manfred continued. “I do think there are a combination of things that for even the very biggest teams, we can demonstrate that for the good of the game over the long haul, it’s better for everybody and better for them.” One of the ways Manfred can demonstrate this is by showing that the plan will make MLB games more accessible for fans, thereby expanding the reach of the sport across the country and the world at-large. Hypothetically, getting more eyeballs on the product creates avenues to unlock a wider audience and appeal to new demographics that baseball hasn’t unlocked to this point. Therefore, a potential short term financial set back could prove to be offset by long term gains of more invested fans in MLB. However, Yankees owner Hal Steinbrenner has already hinted that he isn’t fully on board with handing over his team’s rights. “W e’ve had discussions with Rob in the past,” Steinbrenner said earlier this offseason when asked about Manfred’s plan. “He knows my take, which is that at the very least, it needs to be an optional thing, but I’m gonna leave it at that. But we’ve got a good board of directors at the YES Network, and we’ve got a good network, and we’re doing pretty good right now.”   Whether or not Steinbrenner is speaking on behalf of every big market club’s owners remains to be seen, but conventional wisdom suggests that Steve Cohen, Mark Walter, or Tom Ricketts won’t be too eager to give up the financial windfall that comes from their respective TV deals. It will be fascinating to see how the tenor of these conversations play out either behind closed doors or potentially through the media as 2026 nears.     So, while the upcoming CBA might very well feature intense bargaining between the owners and the players, don’t discount the tension that will undoubtedly be present between the owners and the owners. Hopefully, a solution that benefits all parties can be reached over the coming years. At the end of the day, the number one goal for MLB and the owners should be to act in the best interest of the game and its fans. Without the fans, baseball is far from an $11 billion dollar industry. Brendan Bell is a 2L at SMU Dedman School of Law. He can be followed on Twitter (X) @_bbell5

Image Source: IFovdtv.Com Streaming services like Netflix are expanding their offerings, including live sporting events. A question I've been asked multiple times (surprisingly more than expected) is how these services are able to broadcast such games. A common misconception is that the individual teams license their games. However, that is not the case. To fully understand this, what intellectual property is and how it is relevant to sports must be discussed. Intellectual property includes trademarks, patents, and copyrights. For this discussion, we'll focus on copyrights. To summarily define the term, a copyright is a form of protection created by law that protects original works of authorship that are fixed in tangible form from being used without permission/authorization by individuals or entitles besides the original author(s). Worth noting, a work is considered fixed in tangible form when it is captured in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for a short time. Copyrights protect things such as books, songs, movies, photographs, and yes, even sports broadcasts. Typically, a broadcast is copyrighted after it airs, as live events don't exist in a tangible form beforehand without something like a script (a whole different conversation). However, an interesting scenario arises in cases such as broadcasts, as in some cases, the companies that film and distribute the media don’t ultimately own the rights. There are three potential explanations for this. One possibility is that teams assign all broadcast rights to their respective leagues. Assignment means granting another entity permanent control over intellectual property, allowing them to use and distribute it as they see fit. This is permissible as these rights can be assigned. Assignment transfers permanent ownership, whereas a license grants temporary usage rights. In this scenario, the League would be the outright owner of the rights and free to license, distribute, or do what they please with the media. This seems to be the case in the NFL and NBA. An assignment is different from a license, which is a temporary right to use, manipulate, and distribute the media within reason/as the licensor sees fit. In the case of a license, technically, the leagues and broadcast networks are not the owners of the rights but instead have the right to use it and distribute it. This seems to be the case in the MLB. Another perspective/scenario of this, however, could be that the broadcasts are “work-for-hire.” A work-for-hire is produced when the artistic product was made by an individual, however, the product was specifically commissioned or was otherwise created in the scope of an employee’s duties. In such cases, the commissioner of the work would be the owner of the rights to the product. (In these cases, the commissioners would be the leagues, not Adam Silver (NBA), Roger Goodell (NFL), or Rob Manfred (MLB) in their individual capacities. In this alternative scenario, the league then licenses the rights to the teams to use for highlights and other content associated with the team’s own pre- and post-game coverage. Now, whether this is the case would ultimately depend on an in-depth review of the agreements between the teams and leagues. Turning now to examples in professional sports, the MLB seems to be a league that does not already have the license to broadcast every team’s games and is pushing to get those rights. The MLB’s broadcast structure is different than that of the NBA and MLB in that the MLB is an expansive network of regional broadcast networks. For example, the Mid-Atlantic Sports Network (MASN) is the broadcast network carrying Washington Nationals and Baltimore Orioles games. This network is team owned, being owned 77% by the Orioles, and 23% by the Nationals. MASN is a network that then distributes the games to various cable and network providers that carry the channel (and therefor the games). In some cases, these regional networks can be owned by larger companies, such as NBC Sports Philadelphia, which is owned largely by Comcast, the ultimate owner of the NBC network, and a minority interest owned by the Philadelphia Phillies. The MLB may carry a few games here and there, but that at best implies licensing for individual games, rather than a team giving full season rights to the League. In any event, the teams are the owners of the rights to these broadcasts and then license them out to other networks and distributors. The NFL broadcasts are likely copyrighted material belonging to the League itself as the rights were likely assigned by the individual teams in connection with joining the League. Worth noting is that the NFL owns the rights to regular and post-season games, not preseason, nor pregame post-game coverage per se. Individual teams also have the right to produce their own pre- and post-game coverage, as seen most recently with the Pittsburgh Steelers and KDKA-TV’s recent media deal that runs through 2027. The NFL has the rights to negotiate it’s tv rights and these rights affect ALL teams. Games are still broadcast regionally across the country; however, the League licensed the rights to the broadcast to the regional markets depending on market analytics (i.e. the East-Coast playing the Bills-Patriots game while the West-Coast watched the 49’ers play the Dolphins (even though it was played in Miami). As it relates to the regular and postseason game coverage, the NFL licenses the rights to networks such as Amazon, Fox, Disney (which owns ESPN and ABC), Comcast (which owns NBC), Netflix, and even Nickelodeon. For example, in 2022, the NFL and Amazon struck a licensing agreement where Amazon would have exclusive license to broadcast all Thursday Night Football games for 10 years, beginning in 2023, a deal that is worth approximately $10 billion dollars. This makes the argument of assignment of certain rights all the more compelling. The NBA is no different, the NBA licensed the rights to its games to Disney, Comcast, and Amazon for 11 years, a deal worth $76 billion dollars. Being able to make such agreements strongly implies but is not indicative of the existence of an assignment. There is a one-off argument that could be made that the broadcasts of these games are work-for-hire commissioned by the Leagues, as the League “hires” these teams to perform and compete. In such an instance, the Leagues are the owners of the copyrights to the broadcast. However, the more likely scenario is that the teams own their rights, but by way of a collective bargaining or some other agreement to be involved with the Leagues, certain rights had to be assigned to the Leagues and the Leagues, with full rights, license to other networks and distributors. Of course, this is speculative and in order to truly know, one would need to see the paperwork, but still, it’s something that makes you think! While things such a broadcast may seem so simple and direct, there are a lot of moving pieces that come to making such a production possible. As new streaming platforms emerge, existing licensing agreements may face challenges. It remains to be seen whether these platforms can enter the market or if incumbents will maintain dominance.   Stephon Burton is a DC and PA licensed attorney with Sneakers & Streetwear Legal Services, a Business and Intellectual Property law firm focusing on Fashion, Sports, and Entertainment based in NYC. He can be contacted on LinkedIn  and X (formerly Twitter) .

Navigating NIL Demands and Revenue Sharing in College Athletics Athletic programs across the country are grappling with growing NIL-related demands and the looming implementation of the revenue sharing model expected to take effect next year following final approval of the House settlement.  Concerns of big donor burnout have pushed programs to solicit donations directly from fans and experiment with innovative solutions to fund NIL, such as Tennessee’s “ talent fee ” applied to season tickets and South Carolina’s subscription-based membership  for exclusive access to Gamecock content.   Universities are already adjusting budgets in anticipation of the new revenue-sharing landscape.  One option for savings could come through reducing the amount of funds allocated to a school’s coaching staff—particularly the compensation to its head football coach.  In recent years, coaching compensation has ballooned, with some athletic departments dedicating nearly 20%  of their annual revenue to coaching salaries and benefits.    Last season, former Michigan head coach Jim Harbaugh boldly advocated  for reduced coaching salaries so players could receive a greater share of the revenue.  That sentiment came to fruition last week when Oklahoma State restructured  the contract of long-time football coach Mike Gundy to redistribute the savings to players as revenue sharing.  In a similar vein, Virginia Tech athletic director Whit Babcock recently signaled  a shift in focus, prioritizing resources for athletes over inflated coaching pay.   The Cost of Retaining and Replacing Head Coaches   Increased NIL-related expenses could also increase the tolerance for underperforming head coaches.  While retaining an elite head coach certainly consumes a significant portion of an athletic department’s budget, firing one without cause can be financially crippling.  Historically, frustrated programs have paid exorbitant buyouts  to terminate contracts prematurely when a coach failed to meet the expectations of the program or its fanbase.  The cost of such buyouts—which do not even include the expense of hiring a new head coach—can quickly drain an athletic department’s resources.   As of the end of the 2024 regular season, schools had paid over $36 million in buyout fees to fire 15 head coaches.  But buyouts for high-profile coaches on the hot seat at premier programs, such as Ryan Day at Ohio State ( $37 million ) or Mike Norvell at FSU ( $63 million ), climb into the tens of millions.  Staring down the financial demands necessary to build and retain a competitive roster in the NIL-era, athletic departments and their donors will likely be less willing to absorb these hefty buyouts.   Mitigation Clauses in Coaching Contracts   For programs that elect to terminate a head coach despite the financial burden of doing so, including a robust mitigation clause in coaching contracts can be an important and effective way to limit excess liability.   Under basic principles of contract law, a non-breaching party has a “duty to mitigate” damages, meaning the non-breaching party must make reasonable efforts to minimize the losses suffered from a breach.  Put more simply, a terminated coach must make reasonable efforts to try to find a comparable job, and the payments from that job will reduce the amount the coach’s former program owes.  Despite this general rule, ambiguity surrounding mitigation requirements can lead to disputes.  Universities can protect themselves from unnecessary disputes by including a comprehensive mitigation clause in coaching contracts that defines the respective parties’ obligations and ensures enforceability.    A well-crafted mitigation clause should include, at a minimum, the following key elements:   Clear obligation to mitigate : explicitly state that the non-breaching party has an obligation to reduce his damages, and that the right to receive any liquidated damages under the contract is contingent on his fulfilling that obligation.   Reasonableness standard : state that the actions taken to mitigate should be reasonable, preventing either party from being required to take excessive or impractical steps.   Definition of “comparable employment” : specify what constitutes comparable employment and provide examples of acceptable mitigation actions.   Notification requirement : require the non-breaching party to promptly notify the breaching party upon acceptance of new employment, including compensation details.   Offset provision : clarify that the breaching party’s obligations will be reduced by any compensation the non-breaching party receives from a future employer as a result of his mitigation efforts.   Even the most carefully drafted mitigation clause can be difficult to enforce in practice.  As a result, programs may alternatively consider negotiating a reduced amount of liquidated damages to be paid to the coach in the event of termination without cause, in exchange for waiving the obligation to mitigate damages.  Regardless of the chosen approach, it is crucial for schools to take proactive steps to safeguard their financial interests.   As athletic programs navigate the financial pressures of the NIL-era, strategic approaches to budgeting and contract management, including detailed mitigation clauses or negotiated reductions of liquidated damages, will play a pivotal role in safeguarding their financial health.   Alec McNiff, an attorney licensed to practice in California, is an Associate at a global law firm.  He earned his J.D. from University of Michigan Law School and holds a business degree from University of Southern California.  (Twitter: @Alec_McNiff)

Attention New Yorkers - it's time to hang up those American football jerseys for the season (sorry Jets and Giants fans, you know it's true) and break out the football kits. The first ever soccer-specific stadium in NYC is being built in Willets Point, Queens. And NYCFC isn't the only team using the off-season to pursue new stadium sponsors - the Astros replace long-time sponsor Minute Maid. Houston Astros sign 15-year exclusive stadium naming rights deal with Daikin. Coca-Cola's Minute Maid was the prior sponsor. Financial terms have not been disclosed. Sportico Michael Jordan to become Courtside Ventures' newest investor. Sportico Philadelphia Flyers sign Chevrolet as helmet sponsor. Chevy will also receive signage inside the Wells Fargo Center, and a car display on the concourse outside the arena. NHL NYCFC signs stadium naming rights deal with Etihad Airways. Etihad Park will be NYC's first ever soccer-specific stadium. NYCFC currently plays its home games at Yankee Stadium. The stadium will be entirely privately financed, and will be fully electric. NYCFC Giannis Antetokounmpo launches VC fund Build Your Legacy Ventures. The fund will focus on sports, entertainment and technology, and has already invested in women's 3-on-3 basketball league Unrivaled. ESPN Formula 1 to add General Motors / Cadillac team in 2026. F1 Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

Among the many questions regarding what the world will look like under a second Trump presidency, the simplest one to answer is whether the sports world will be impacted (spoiler alert: it will be). There is no doubt that after four years of little interconnectedness between the sports world and the Biden administration (aside from the usual championship team’s visit), the next Trump administration presents an opportunity to mix sports and politics again, for better or worse.   During the first Trump administration the sports world was vocal about his administration, but otherwise untouched by the White House. We saw teams decline invitations to visit the White House (the 2016 UNC Men’s basketball team for example), while many others were not invited entirely (the 2017 Minnesota Lynx, 2017 and 2018 Golden State Warriors). Athletes were more vocal about their political beliefs, leading to a viral Fox News host’s rejection of LeBron James, suggesting he “shut up and dribble.” Like many workplaces with their employees, certain teams embraced their athletes speaking out, while others tried to persuade their athletes to focus on the game and leave politics aside.   We can expect more of the same for the next four years as athletes continue to use social media as their soap box to sound off against a political figure they may disagree with and his policies. We can also expect supporters of Trump in sports to become more vocal following an election in which he not only won the electoral college, but also the popular vote for the first time in his three campaigns. Broncos strong safety T.J. Ward tweeted in support of Trump immediately after Fox News announced Trump was projected to win the election. Harrison Butker was also supportive of Trump during his campaign and Bryson DeChambeau and Dana White appeared with Trump onstage at his rallies.   However, a second Trump administration is also likely to have a more direct impact on the sports world. Rory McIlroy, announced he thought Trump had the ability to help finalize a deal between LIV Golf and the PGA that has been pending since mid-2023. Trump himself has stated that he was interested in seeing one tour with all the top players and has close connections with both the PGA and LIV Golf.   The NCAA will likely be the biggest sports winner of Trump’s second term and Republican’s control of the Senate. The NCAA has been trying for years to get Congress to pass a law that will prevent student-athletes from being deemed employees as well as giving the NCAA antitrust exemption . Ted Cruz, one of the NCAA’s biggest supporters in D.C., will likely head the Senate Commerce Committee next year. He has said college sports are a major priority for him.   Yet to be seen is how Trump’s deportation initiatives will impact other nation’s participation in the upcoming 2026 World Cup, where the United States will host alongside Mexico and Canada. Will we see Mexico or other Latin-American countries protest? Will they refuse to play entirely?   Lastly, a major topic of the race for the White House was Trans-rights. The next four years will be dominated by a Republican Executive branch, Legislative branch, and a Conservative majority in the Supreme Court. Will we see more laws focused on gender-identity and sports? Will the courts be packed with fights over incoming legislation in states that mirror Florida’s Transgender Athlete Bill?   One thing is clear. If you believe the next four years will be a turning point for many parts of our society, you can certainly include sports in the conversation.   Michael Moore is a graduate of New York Law School and former member of the school’s Sports Law Society. When he’s not working at the New York Law Department he is thinking about the intersection of sports and law and when the Knicks or Rangers will finally win a championship.

Everybody clear your Intuit Dome-style sneaker shelves - sneaker deals are on the rise, from the pros to college athletes.  School is officially back in session and NIL deals are booming, and MLB players aren't the only ones getting a helmet make-over this fall - the New York Islanders land a new helmet sponsor while concurrently upgrading their arena technology.  Fanatics partners with lululemon to create licensed NHL logowear. Sportico University of Miami QB Cam Ward signs NIL deal with ADIDAS. The deal is said to cover both footwear and apparel. Bleacher Report Angel Reese extends her partnership with Reebok. The extension includes a signature shoe, targeted for release in 2026. Sports Illustrated The New York Islanders and UBS Arena name Viam the "official AI technology partner" of the team and arena. Viam also became the Islanders' hemet sponsor as part of the deal. Sportico Rutgers basketball guard Dylan Harper signs NIL deal with Red Bull. Sports Illustrated Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

After the Supreme Court loosened the NCAA’s restrictions on student-athlete compensation, [1] college boosters created a billion-dollar industry centered around compensating student-athletes for the use of their name, image, and likeness (“NIL”) in endorsements and advertisements. [2]  Boosters accomplished this feat using “NIL collectives”—“entities affiliated with, yet independent from, a college or university” who ostensibly seek to “support NIL opportunities for student athletes.” [3]  In essence, NIL collectives accumulate “donations [that they then] distribute to college athletes” [4] through “upfront amounts, monthly payments, and other incentives” in exchange for the athlete’s name, image, and likeness. [5]  Since 2021, NIL collectives have secured “upwards of millions of dollars” for some athletes through these NIL agreements. [6]  Key to this swift success is that “many [NIL collectives] apply for, and easily receive, [501(c)(3)] tax-exempt status from the IRS” in order “[t]o encourage donations to collectives.” [7]   How NIL Collectives Justify and Use 501(c)(3) Status   NIL collectives justify their 501(c)(3) tax-exempt status on the basis that they are charitably driven. Specifically, tax-exempt NIL collectives insist that they compensate athletes only so that the athletes’ NILs can be used for charitable purposes. [8]  For example, athletes might autograph merchandise or appear in promotional content for charities with which the NIL collective partnered. [9]  In this sense, tax-exempt NIL collectives maintain that they primarily support charities, not the student-athlete or the NIL collective’s own financial gain. [10]  Although NIL collectives use their charitable status to attract large contributions from wealthy donors, who in turn can take a charitable tax deduction on such contributions, tax-exempt NIL collectives insist that they “promote philanthropy.” [11] That these large, tax deducted contributions from donors all, or substantially all, get paid to athletes—after the NIL collective takes a cut [12] —is beside the point to these booster-led organizations. But in reality, “collectives are simply collecting the funds and passing them through to the student-athletes.” [13] The supposed charitable purpose claimed by the NIL collective is secondary to “getting actual funds into the hands of student-athletes who compete[,] [which is] the ultimate goal.” [14] Thus, NIL collectives have to reckon with the question, “What is charitable about paying college players?” [15] Framed in this manner, it becomes clear that “the collective model is a roundabout way for schools and their boosters to get money into athletes’ hands without handing the cash directly to them.” [16]  Far from fulfilling a non-exempt purpose, NIL collectives “are all money laundering” and acting as “legal buffer[s]” against the NCAA and IRS. [17] As one commentator bluntly surmised, “[Collectives] ae using [non-profit status] to get tax writeoffs to pay student-athletes. Unless you are OK with money laundering, you can’t pay athletes $20–30,000 a year through a non-profit.” [18]   Response from the IRS   The IRS agrees. In a memo from the Deputy Associate Chief Counsel, the IRS took the position that many supposedly tax-exempt NIL collectives are “operating for a substantial nonexempt purpose—serving the private interests of student-athletes.” [19] The memo emphasizes that a valid non-profit organization “engages primarily in activities that further an exempt purpose” and in “public rather than private interests.” [20] Noting that the student-athlete’s private compensation “is not a byproduct but is rather a fundamental part of a nonprofit NIL collective’s activities,” the memo declares that “helping student-athletes monetize their NIL is a substantial nonexempt purpose of many nonprofit NIL collectives.” [21] The IRS has echoed such conclusions in several subsequent private letter rulings that have denied 501(c)(3) status to NIL collectives. [22] Some tax-exempt NIL collectives have shut down since the memo’s release and the IRS’s sporadic denial of 501(c)(3) applications, even as others still purport to operate as non-profits. [23] The result is a “complicated, often murky” [24] legal landscape that has left the NIL industry in a no-man’s land. [25]  Clearly, binding law is needed to prevent continued abuse of tax-exempt status while providing unambiguous tax structuring guidance for NIL collectives.   A Path Forward In 2022, Senators John Thune and Ben Cardin introduced the bipartisan Athlete Opportunity and Taxpayer Integrity Act, which would bar 501(c)(3) tax exemptions for NIL collectives nationwide. [26] Passing this law would expedite the process of bringing outstanding nonprofit NIL collectives to heel in light of the NCAA’s hesitation to clarify its guidelines. The bill eschews the IRS’s tedious case-by-case testing of each NIL collective and strips tax-exempt status from organizations that primarily exist to shunt money to college athletes—as all NIL collectives do. As summarized by Senator Thune, “[t]his common-sense legislation would prohibit these entities from inappropriately using NIL agreements to reduce their own tax obligations.” [27] The NIL industry has emerged as a highly lucrative and unregulated enterprise. NIL collectives have successfully gamed the NCAA’s and IRS’s insufficient guidelines to undeservedly claim non-profit status for the purpose of paying college athletes with tax-free dollars. To prevent continued abuse and provide legal clarity for this burgeoning industry going forward, Congress should pass the Athlete Opportunity and Taxpayer Integrity Act and deny tax-exempt status to all NIL collectives.     Michael Wahl is a third-year honors student at Regent University School of Law. He is a Senior Editor of the Regent University Law Review and an Executive Board member of the Alternative Dispute Resolution Board. You can find him on LinkedIn here .             References: [1]   See NCAA v. Alston, 594 U.S. 69 (2021). [2]  Cheyanne Mumphrey et al., Money in NCAA Sports Has Changed Life For a Few. For Many Athletes, College Degree Remains the Prize , Assoc. Press (Nov. 8, 2024), https://apnews.com/article/ncaa-sports-nil-athlete-pay-882646e1cfab9b093e1f2f1ab6f15d7f . [3]  Tim Shaw, The Long Read: Tax Implications of College Collectives, NIL Deals , Thomas Reuters (Oct. 6, 2022),   https://tax.thomsonreuters.com/news/the-long-read-tax-implications-of-college-collectives-nil-deals/ . [4]  Ross Dellenger, IRS Says Donations Made to Nonprofit NIL Collectives Are Not Tax Exempt , Sports Illustrated (June 9, 2023), https://www.si.com/college/2023/06/10/irs-name-image-likeness-collectives-not-tax-exempt . [5]  Shaw, supra note 3. [6]   Id . [7]   Id .; see I.R.C. § 501(c)(3). [8]  James Beavers, Most NIL Collectives Do Not Further a Sec. 501(c)(3) Exempt Purpose , Tax Adviser (Sep. 1, 2023), https://www.thetaxadviser.com/issues/2023/sep/most-nil-collectives-do-not-further-a-sec-501c3-exempt-purpose.html . [9]  Thalia Beaty, Unintended Consequences: How NIL in College Sports Has Raised Questions About Nonprofits , Assoc. Press (July 29, 2022), https://www.ap.org/news-highlights/spotlights/2024/unintended-consequences-how-nil-in-college-sports-has-raised-questions-about-nonprofits/ .   [10]   See id . [11]   Id .; see I.R.C. § 170. [12]  Beaty, supra  note 9. [13]  Shaw, supra note 3. [14]   Id . [15]  Beaty,  supra note   9. [16]  Ross Dellenger, Inside the NIL Battle That is Splintering the SEC: ‘We’re All Money Laundering’ , Sports Illustrated (May 30, 2023), https://www.si.com/college/2023/05/30/sec-meetings-nil-athlete-employment-collectives-hot-topics . [17]   Id . [18]   Id . [19]  Memorandum from Lynne A. Camillo, Deputy Assoc. Chief Couns., to Stephen A. Martin & Lynn Brinkley, Whether Operation of an NIL Collective Furthers an Exempt Purpose Under Section 501(c)(3) (May 23, 2023). [20]   Id . [21]   Id . [22]   See John McKinley, NIL Organization Denied Tax-Exempt Status , J. Accountancy (Nov. 1, 2024), https://www.journalofaccountancy.com/issues/2024/nov/nil-organization-denied-tax-exempt-status.html (citing PLR 202428008). [23]  Beaty, supra  note 9. [24]   Id . [25]  Dellenger, supra note 11. [26]  S.4969, 117th Cong. (2022). [27]  Shaw, supra  note 3.

With the House settlement being granted preliminary approval [i] earlier this month, many have begun to speculate about what name, image, and likeness (or NIL) rights will look like in practice for college athletes across the country. [ii] With the proposed settlement poised to shape the future of NIL in college athletics, it still faces several hurdles before becoming official, including a deadline for athletes to object or opt-out in January 2025 and a fairness hearing to be held by Judge Wilken in April 2025. [iii] In the meantime, some unlikely candidates have highlighted areas of concern within the NIL space that could potentially undermine the system as a whole: an NBA superstar and a two-star recruit who became an overnight sensation. While the players’ backgrounds could not be more different, their stories expose a common truth: an NIL system that does not offer athletes significant safeguards and protections is one that fails to adequately empower players.   Just last week, San Antonio Spurs star Victor Wembanyama sued a man in Texas for the unapproved use of his NIL to sell a wide variety of goods. [iv] According to the complaint, the defendant filed trademark applications for “El Wemby” and “Wemby’s World” in August of 2023. The defendant also registered a website in the name of the French talent, which sells items involving Wembanyama’s name, image, and likeness. Wembanyama requested a jury trial and monetary damages that reflect the harm to his NIL as part of his complaint.   These issues are not unique to the NBA, either. Fresh off a stunning upset of Alabama, Vanderbilt quarterback Diego Pavia, a former two-star recruit and juco transfer, took to X to tell potential partners to “hit [his] [a]gent” for NIL inquiries, ending his message with his now-famous line, “Vandy we turnt.” [v] Then, after a company named BreakingT quoted his tweet to promote their shirts, which bear Pavia’s image and viral quote, Pavia responded in a now-deleted tweet that dissuaded fans from ordering merchandise from BreakingT, claiming they did not have a deal in place. The company replied, stating that their shirts were approved and licensed by both Pavia and Vanderbilt via OneTeam Partners. OneTeam offers partner schools (and their players) the ability to enter into “Group Licensing Agreements,” which allow OneTeam to grant other entities and persons the ability to use a player’s NIL, negotiating “directly with brands on behalf of athletes to optimize collective value.” [vi] According to sources close to the situation, Pavia had signed such a deal. [vii] But Pavia is far from alone - OneTeam’s site boasts over 11,000 athlete opt-ins as part of their initiative with EA College Football, which offered players $600 and a copy of the game to sign their NIL rights over to EA Sports. [viii]   Assume for a second that (as in Wembanyama’s suit) Pavia was correct and BreakingT was improperly using his NIL to promote their products. As will likely be shown in the case of the Spurs superstar (should it proceed to trial), the calculation of damages to a celebrity’s NIL primarily involves questions as to the fair market value of their NIL, treating the parties as if they were in a hypothetical negotiation. [ix] However, a jury may also look at similar transactions involving the person in question in order to determine the fair market value of their NIL. [x] This may not be a problem for Wembanyama, who has been viewed as a superstar since entering the NBA and has signed sponsorships accordingly, with his reported total income sitting at over $901 million across 72 deals. [xi] But how will it impact lesser-known athletes, especially those who, like Pavia, signed group licensing agreements? It is easy to see how juries could be swayed by smaller group licensing deals (like the $600 EA Sports agreement) in determining the fair market value of a given athlete’s NIL, ultimately leaving players with a smaller amount of recoverable damages if they were to bring a claim of illegal NIL use against a company. This could pose a huge problem for group licensing agreement athletes, as their smaller NIL deals now could serve to dilute the fair market value of damages claims down the line when they have a viral moment that accelerates their fame.   So how do players, particularly college athletes, protect themselves in this unmarked landscape? First and foremost, athletes should meet with an attorney before signing any agreement, particularly a group licensing agreement. Consulting with someone who has contractual expertise will aid players in understanding the rights they are signing away and the potential outcomes of a given agreement. While some schools check in with their athletes before a given NIL product goes live, [xii] players at other programs may not be so lucky. A lack of clarity around the extent of a player’s NIL licensing leads to situations like Pavia’s, where athletes are unaware that their rights are in use on an item and act to impede its sale, undermining the NIL system entirely. Second, prominent players should seek to negotiate group licensing agreements or avoid them entirely, as opposed to signing them under the assumption that they are fair deals. While group licensing may advantage players who lack name recognition (as they offer a flat rate to all members of a given partner institution), more famous players can spurn these deals in favor of pricier agreements, as was seen when Arch Manning was paid nearly $60,000 to appear in EA’s “College Football 25.” [xiii] Wembanyama’s case offers further insight into the advantages of athletes holding out for larger NIL deals, as his luxurious sponsorships will help to buoy the Frenchman’s damages claim. Thus, it appears that adequate representation and fierce negotiation will be required for players to successfully traverse the current NIL space. It will be fascinating to see whether a finalized House settlement (or future NIL litigation) chooses to address issues with group licensing agreements or if they continue to leave them up to players to navigate.   Oliver Canning is a 2L at the University of Miami School of Law. He can be followed on Twitter (X) @OCanning and found on LinkedIn .   [i] House v. NCAA , "Revised Order Granting Plaintiffs' Motion for Preliminary Settlement Approval as Modified" (Oct. 7, 2024) . [ii] Justin Williams, "House v. NCAA Settlement Granted Preliminary Approval, Bringing New Financial Model Closer" The Athletic (Oct. 7, 2024) .  [iii] Michael McCann, "NCAA House Settlement Preliminarily Approved" Sportico (Oct. 7, 2024) .  [iv] Michael McCann, "Wembanyama Sues Texas Man for Illegally Profiting From His NIL" Sportico (Oct. 16, 2024) .  [v] X , Diego Pavia . [vi] "College Group Licensing Program" OneTeam Partners . [vii] Margaret Fleming, "Vanderbilt QB Disputes Licensed NIL Apparel: ‘This Is Not Me’" Front Office Sports (Oct. 15, 2024) . [viii]   Levi Strange, "OneTeam x EA College Football" OneTeam Partners (May 8, 2024) . [ix] On Davis v. The Gap, Inc. , 246 F.3d 152, 167 (2d Cir. 2001). [x] Safka Holdings, LLC v. iPlay, Inc. , 42 F. Supp. 3d 488, 493 (S.D.N.Y 2013). [xi] Tom Subak-Sharpe, "The Commercial Potential of Victor Wembanyama" SportCal (Sept. 5, 2023) . [xii] X , Ben Chase . [xiii] James Parks "How Much Arch Manning Was Paid to Promote College Football 25, Per Report" SI (Jul. 10, 2024) .

If you're anything like me, sports logos are burned into your brain. You see certain colors, a design, or even a single letter, and you immediately know the team. That’s how powerful sports branding can be. But have you ever wondered if those logos are actually famous outside the sports world? I thought certain sports teams and logos were common knowledge until University of Miami v. Caneup LLP. The University of Miami (Miami) has a trademark registration for their orange and green “U” symbol and the word “Canes.” Caneup, a Florida based company started in 2014 and applied to register the mark in 2021.  Miami sued for trademark infringement because they felt that CaneUp was trying to confuse people into thinking their products were associated with the school. (McCann, 2024). Miami also said, Caneup’s CEO admitted in “prior communications” that he had spent “years” working on the Caneup design with the university in mind, a point the school says shows an intentional attempt to infringe. (McCann, 2024). Due to the similarity with the phrase “Canes” and Caneup, the court stated, Caneup appearing on products “is likely to cause consumer confusion” given that the word “Canes” and “Caneup” are “predominantly made up of the word ‘Cane’ which to sports fans at least is heavily and instantly associated with the university. (McCann,2024). Caneup was held liable for trademark infringement. What’s really interesting, though, is that Miami also argued their logo was being diluted.  The court found Caneup was NOT liable for the dilution claim. Turns out, just because team’s logo is famous for sports fans, doesn’t mean it’s "famous enough" in the eyes of the law. Let’s dive in and figure out what exactly trademark dilution is, how to know if you are famous enough, and why Miami lost the trademark dilution part of the case. WHAT IS TRADEMARK DILUTION ANYWAY? A trademark is a word, symbol, or design that identifies and distinguishes the source of goods or services from others. It helps protect brand names and logos used in commerce from being copied or misused. This way consumers are not confused between products or services. Typically, courts will look at whether there is a “likelihood of confusion” between your trademark and the other mark. That is, whether the consumer would likely be confused as to who is the source of the goods or services. Trademark dilution is not just confusion; it’s about protecting the most famous brands’ distinctiveness. The brands do not want a lesser brand tarnishing their trademark. Think of it like this, trademark dilution is when a famous mark, like Barbie, loses its distinctiveness because other brands start to use a similar name, even if no one is confused about who’s who. If another brand starts to use the name Barbie for computers, toys and computers are so unrelated that consumers are unlikely to believe Barbie computers come from the toy brand. The Barbie mark would then become less special, less unique, and less recognizable over time. Trademark dilution protects marks that are so well-known, highly reputable, or famous that jurisdictions have decided they deserve protection whether their unauthorized use is likely to cause consumer confusion. There are two types of trademark dilution: Blurring : This happens when the distinctiveness of a famous mark is impaired by association with another similar mark or trade name. Imagine if a small company started using a swoosh-like logo. Even if you know it's not Nike, it still takes away from the swoosh’s uniqueness. See 15 U.S.C. § 1125(c)(2)(B). Tarnishment : This occurs when the reputation of a famous mark is harmed through association with another similar mark or trade name. For example, if a company were to use a famous logo in a negative or inappropriate context, it could tarnish the original brand’s image. See 15 U.S.C. § 1125(c)(2)(C). WHY NO DILUTION FOR MIAMI? Take the University of Texas’ longhorn logo, for example. It’s just as iconic or possibly more iconic than Miami’s logo in college football. In a 2008 case, a federal judge in Texas ruled the logo had niche fame but not wide recognition by the American consuming public. Texas football is practically a religion in some parts of the county and commonly plays on national television. Still, it still was not enough recognition. Judge Marty Fulgueira Elfenbein, who presided over the case here, followed the same route as the University of Texas’ case. Judge Elfenbein made it clear that for a mark to claim dilution protection, it needs to be famous among the general public, not just within a niche community like sports. She felt Miami’s "U" was not similar to brands like Kodak and Buick where they are recognizable even to people who could care less about photography or cars. (McCann, 2024). And while Miami’s logo is beloved by college football fans, it doesn’t have that same level of universal fame.   HOW TO TRULY KNOW WHAT “FAME” IS? So why didn’t Miami’s logo qualify as “famous enough” for dilution? The answer lies in trademark law itself. According to the Federal Trademark Dilution Act (FTDA) dilution only applies to marks that are truly famous across the general population. To establish a claim of dilution, the mark must have become famous before use of the allegedly diluting mark or trade name began. The law, as explained in Section 1125(c) of the FTDA, sets a high bar for what counts as a famous mark. To be eligible for dilution protection, a mark must be widely recognized by the general public. Factors for determining whether a mark possesses the necessary degree of recognition include: 1.     The duration, extent, and geographic reach of advertising and publicity of the mark 2.     The amount, volume, and geographic extent of sales of goods or services offered under the mark and 3.     Extent of actual recognition of the mark. See 15 U.S.C. § 1125(c)(2)(A). All the factors are based on judicial discretion. There is no exact number a brand needs to reach that will automatically give them the ultimate fame title. Courts must gather and weigh all relevant evidence. The findings will vary case to case. There are key findings that can be shown in each factor that could help their case. For the first factor, it would be helpful for brands to show the times where they had nationwide advertising in magazines, billboards, television, etc. The longer and more extensive the advertising efforts, the more likely the mark will be deemed famous. If a brand can establish that it publicized its mark through press releases, conferences, and sponsorships that could help as well. The second factor is most likely the best to visually see how famous they are. Numbers never lie and to see the sales and volume of downloads of an app or visitors to a website could be eye opening. As one district court has explained, “courts generally have limited famous marks to those that receive multimillion-dollar advertising budgets, generate hundreds of millions of dollars in sales annually, and are almost universally recognized by the general public.” (Jacobs-Meadway, 2019). The numbers pertaining to a brand are not everything when it comes to fame, but it can bolster their cause. The court wants to know how widely known the brand is to the general public. This is done in two ways; (1) third party publicity and (2) consumer surveys. Third party publicity is unsolicited and extensive media attention such as associations of a mark with celebrities, industry specific awards, television shows referencing the brand. The court looks at three potential issues with fame consumer surveys. (1) Survey universe (who constitutes the general consuming public?) (2) Level of recognition (what percentage of recognition is necessary for a mark to be widely recognized?) (3) Timing of survey (during what time period must fame be measured?). (Jacobs-Meadway, 2019). Consumer surveys are not required but based on the numbers can help or even hurt the evidence for fame. Miami’s logo didn’t qualify as "famous enough" for dilution purposes because the Federal Trademark Dilution Act (FTDA), reserves this protection for marks that are widely recognized by the general public, not just a niche audience like sports fans. To establish a dilution claim, the mark must have achieved fame before the use of the allegedly infringing mark, and courts must consider several factors. There’s no magic number that guarantees a mark is famous, instead courts must weigh all the evidence, making it challenging to predict whether a brand is truly famous enough for dilution protection. WHAT UNIVERSITIES CAN LEARN FROM THIS? At the end of the day, the University of Miami v. Caneup case shows us that fame in sports doesn’t always translate to real fame. As much as we love our teams, and as instantly recognizable as their logos may seem on game day, they might not be famous enough to win a trademark dilution case. It’s a reminder that the sports world is tiny compared to the world where goliath companies have branded themselves. When it comes to trademark dilution it’s not just about being known in your community; it’s about being famous everywhere. Cited Jacobs-Meadway, R. (2019, August 26). Proving Fame for Trademark Dilution Claims . Retrieved from Lexis Nexis : https://www.lexisnexis.com/community/insights/legal/practical-guidance-journal/b/pa/posts/proving-fame-for-trademark-dilution-claims?srsltid=AfmBOopIcrkuvv_DtUsWMW4aBePLBX4L_4zJUtX6fNV6xPaYB5UzfrFT McCann, M. (2024, October 20). HOW FAMOUS IS MIAMI’S CANE AND U? JUDGE SAYS NOT NATIONALLY SO . Retrieved from Sportico : https://www.sportico.com/law/analysis/2024/miami-sacks-caneup-1234801775/   Chris D'Avanzo can be followed on (X) @chrisdavanzo

In the five days between the NLCS and World Series, it would have been fair to assume that MLB superstar Shohei Ohtani would finally be out of the spotlight for a few days amidst his historic first season with the Dodgers. However, that couldn’t be further from the truth as Ohtani shattered yet another record this past Tuesday. The baseball from Ohtani’s 50th home run (which made him the first MLB player ever with 50 stolen bases and 50 home runs in the same season) was sold by Goldin Auctions for $4.392 million, breaking the previous record price for any sports ball sold at auction. [i] Founder Ken Goldin noted that the auction house “received bids from around the world, a testament to the significance of this iconic collectible and Ohtani's impact on sports.” [ii] Before Ohtani, the previous top sale was Mark McGwire’s 70th home run ball from 1998 (which also broke an MLB record for most home runs in a season), purchased by Todd McFarlane for $3 million in 1999. [iii] Perhaps even more notably, the profits from this historic auction cannot be given to their rightful seller, as the true owner of the 50/50 ball is yet to be determined.   Indeed, a Florida judge is now trying to decide the proper owner of Ohtani’s 50/50 baseball. After Ohtani hit his record-setting home run, eighteen-year-old Max Matus filed a lawsuit against Christian Zacek (who left the stadium with the ball), claiming that Matus was first to “firmly and completely grab the ball . . . while it was on the ground, successfully obtaining possession of the 50/50 ball.” [iv] Matus further alleged that Zacek (who was identified as Chris Belanski in initial filings) “trapped [Matus’] arm in between his legs and wrangled the 50/50 Ball out of [Matus’] left hand. . . . wrongfully and forcefully obtain[ing] control of the ball.” While a third fan, Joseph Davidov, also filed a suit claiming ownership, video evidence shows him congratulating Zacek once he had possession of the ball. [v] As it is unlikely that a court will look kindly upon such clear evidence of non-possession, it does not appear that Davidov has a strong claim in this case, meaning the judge will ultimately be deciding whether Matus or Zacek owns the ball.    But if ownership of the baseball was challenged, how could it be auctioned? The early stages of litigation over the 50/50 ball highlighted the complications that can arise when an item that is subject to an ongoing ownership dispute is slated to be sold. Zacek initially secured a deal with Goldin Auctions to sell the memorabilia, but Matus asked the court for a temporary injunction in his lawsuit, claiming that he wanted to keep the ball as a keepsake and would suffer irreparable harm if the item were to be sold (as it is a unique and one-of-a-kind piece of history). [vi] The court declined to grant the temporary injunction but set an October 10th date for an evidentiary hearing and ordered that the ball could not be sold before that day. [vii] Then, on October 7th, the parties told the court that they had an agreement in place to allow the auction of the baseball to occur prior to the conclusion of litigation, resulting in the cancellation of the evidentiary hearing. [viii] Goldin Auctions released a statement that the parties "have agreed to convey any and all of their ownership interests in the 50/50 ball to the winner of the auction, giving the winner full assurance that they will receive free and clear title to the 50/50 ball." [ix]   So, who will ultimately collect this record-setting sale price for Ohtani’s historic ball? While the case is still ongoing, prior litigation in this area may be insightful. In Popov v. Hayashi , a famed property law case surrounding the ownership of Barry Bonds’ record-setting 73rd home run in a single season, the court found that initial possession of an item (or otherwise completing a significant portion of the steps to obtain possession of an item) will give a party a legitimate claim of pre-possessory interest in the item, even if it is later torn away in a scrum due to the unlawful conduct of another person. [x] The court in Popov ultimately decided that both parties had an equal interest in the baseball, dictating a 50/50 revenue split of the proceeds from the ball’s sale. Applying these arguments to the Ohtani case, Matus will likely say that Zacek wrongfully interfered with him by wrestling the ball away. Matus may also argue that Zacek wrongfully converted the Ohtani ball into his own property and that Zacek will be unjustly enriched if he is found to be entitled to the auction proceeds. These premises are supported by law, as stadium rules (in this case, Miami’s LoanDepot Park) apply, and Florida tort law recognizes claims of wrongful interference with personal property.   On the other side, Zacek will likely argue that Matus never had full possession of the ball or, in the alternative, that Zacek was the party who had continuous possession of the item. This argument is mainly rooted in logic, as someone who touches a ball hit into the stands (a common occurrence at baseball games) is not automatically entitled to ownership. In Ohtani’s home country of Japan, another one of his home run balls (albeit one of less historical significance) was even passed around the entire stadium from fan to fan. [xi] Zacek could also attempt to argue that a decision in favor of Matus would mean that the court is disrupting the norm of balls hit into the stands at games, where the fan who comes up with the ball is commonly the owner. However, other fans often give baseballs to young children sitting nearby, potentially disputing this notion. [xii] Further, while the Popov court noted the uncertainty of defining clear possession in a scrum, this case may be different, as there is clear video evidence of the fight over Ohtani’s home run ball (unlike the scramble in Popov ). [xiii] Despite potential arguments by Zacek to the contrary, actual dispossession should be considered as distinct from a common scrum. If prior case law is to dictate the outcome of the dispute here, the ball may be the only thing that is 50/50 – not the auction revenue split between the plaintiffs. Under Popov standards, it seems that Matus is the rightful owner of the ball and should recover the auction proceeds. However, the court may also decide in line with the Popov outcome and direct the parties to split the profits. In either event, given his attempt to stop the auction in favor of retaining ownership of the ball, it is unclear if Matus will be fully satisfied with this outcome, even with the hefty award.   Fans may also wonder why these parties didn’t try to return the ball to Ohtani, as has been done with other record-breaking baseballs (like the baseballs used for the 3000th hits of both Derek Jeter and Alex Rodriguez). [xiv] In those instances, MLB teams have been quick to make deals with fans to return historical balls to the player associated with a given achievement, but the Dodgers were unsuccessful in doing the same here. According to one report, the Dodgers offered Zacek $300,000 for the ball while he was still in the stadium, a price that he declined. [xv] In essence, this was Zacek exercising his finder’s rights, as Popov viewed baseballs as being owned by the MLB prior to the time that they were hit but intentionally abandoned property once batted into the stands, making the new possessor of the ball its rightful owner. [xvi] While initial reports speculated that the ball would lose its value once Zacek left the stadium, as he could have switched the ball out for a fake, the MLB placed special markings on baseballs pitched to Ohtani once he hit his 49th home run, removing any doubt over the true identity of the historic ball. [xvii] Since Zacek declined the team’s offer for the ball, the Dodgers (and Ohtani by extension) had no claim over this piece of history, which was easily authenticated and ultimately sold at auction. Additionally, Matus’ potential claim on the baseball (discussed above) would have potentially invalidated any deal brokered between Zacek and the Dodgers, as Matus never had the chance to consent to such an offer.   While the lost profits from the record-breaking sale (or the sentimental value of the baseball) may potentially not mean much to a $700 million superstar, [xviii] fans (and the parties) will eagerly await the outcome of this case to see who collects the profits from Ohtani’s historic baseball. In the meantime, the Japanese slugger will look to lead the Dodgers to their second World Series title in four seasons as his team faces off against the Yankees in Ohtani’s first Fall Classic. But if Ohtani is to continue his season of big moments (and bigger home runs), this may not be the last time we see his name in headlines involving auctions and property litigation.   Oliver Canning is a 2L at the University of Miami School of Law. He can be followed on Twitter (X) @OCanning and found on LinkedIn . [i] Dan Hajducky, "Dodgers Star Shohei Ohtani's 50/50 Ball Fetches $4.39M at Auction" ESPN (Oct. 23, 2024) .   [ii] Id . [iii] Id . [iv] Associated Press, "Ohtani's Historic 50-50 Ball Sells at Auction for Nearly $4.4M Amid Ongoing Dispute Over Ownership" US News (Oct. 23, 2024) .   [v] Chuck Schilken, "Who Does Shohei Ohtani’s 50th Home Run Ball Belong to? Another Fan Files a Lawsuit Over It" LA Times (Sept. 30, 2024) ;  Dan Hajducky, "Who Owns Ohtani 50/50 Home Run Ball? Legal Experts Weigh In" ESPN (Oct. 3, 2024) .   [vi] Associated Press, "Online Bidding for Ohtani's Historic 50-50 Ball Up to $1.8M as Litigation for Proceeds Continues" The Score (Oct. 18, 2024) ; Dan Hajducky, "Judge Denies Attempt to Halt Auction of Ohtani 50/50 Ball" ESPN (Sept. 26, 2024) .   [vii] Id . [viii] Dan Hajducky, "Auction of Shohei Ohtani 50/50 Ball to Proceed Amid Legal Dispute" ESPN (Oct. 7, 2024) .   [ix] Id. [x] Popov v. Hayashi , 2002 Cal. Super. LEXIS 5206 (Ca. Sup. Ct. 2002). [xi] Michael Clair, "Japanese Fans -- Politely! -- Pass Around Ohtani HR Ball" MLB.com (Mar. 12, 2023) . [xii] "Phillies Fan Catches Foul Ball, Gives it to Young Fan" MLB.com (Oct. 24, 2024) .   [xiii] Popov , 2002 Cal. Super. LEXIS 5206 at *5–8; ABC News, "Fans Scramble to Grab Shohei Ohtani's History-Making 50th Home-Run Ball" YouTube (Sept. 20, 2024) . [xiv] Grace Raynor, "Fan Presents 3,000th Hit Ball to A-Rod" MLB.com (Jul. 3, 2015) ; John Goff, "Jeter Fan Spurns $250K Collectible, Gives Back Milestone Ball" Investment News (May 31, 2011) . [xv] Andy Slater, X (Sept. 20, 2024) . [xvi] Popov , 2002 Cal. Super. LEXIS 5206 at *8. [xvii] Darren Rovell, "As Buyer of Ohtani's 50th HR Ball Waits to Come Forward, Value Plummets by Hour" Cllct (Oct. 24, 2024) . [xviii] Travis Schlepp, "Shohei Ohtani Signs Historic $700M Deal with the Dodgers" KTLA (Dec. 9, 2023) .