In the great sitcom Blackadder Goes Forth , our eponymous “hero” finds himself facing a court martial, having unwittingly killed and eaten the beloved pet pigeon of his commanding officer, General Melchitt. Not to worry, as he says, “ any reasonably impartial judge is bound to let me off. ” Enter, as his judge, Colonel Melchitt himself, who immediately refers to Blackadder as “the Flanders pigeon murderer” and sentences him to death by firing squad. This week, NFL coach Brian Flores argued to the Second Circuit that he finds himself in a similar (if, granted, less life-threatening) situation. Broadly, Flores filed a lawsuit alleging that various NFL teams, and the NFL itself, engaged in discriminatory employment practices designed to keep him, and other minority coaches, from positions of power and authority in the NFL. One of the methods Flores alleges is that teams would bring him (and other plaintiffs, like Steve Wilks) for an interview purely to comply with the "Rooney Rule" ( i.e.  NFL teams must interview minority candidates for head coaching positions), but without any actual intent to hire. As readers may recall, Flores was alerted in part to this alleged chicanery because Bill Belichick accidentally sent a congratulatory text message to the wrong “Brian,” a timely reminder: (1) that Bill Belichick may be the only person watching the news this week and thinking “ well, that could happen to anyone ”; and (2) of the sheer, extraordinary number of NFL head coaches named Brian. Including Flores (who alleges if not for the NFL’s discriminatory practices, he would still be an NFL head coach), along with current head coach Brians Daboll, Callahan, and Schottenheimer, that would make an incredible 12.5% of NFL head coaches named “Brian,” a truly remarkable result for America’s 345th most popular boy’s name. Anyway, the NFL (and the NFL team defendants) are arguing that Flores’ case should be arbitrated – rather than litigated in the Southern District - because the various contracts Flores had with these teams contain arbitration clauses. This week, Flores argued to the Second Circuit that the NFL’s arbitration clauses are unenforceable because (a) they mandate that the NFL can choose the arbitrator; and (b) the NFL can choose NFL Commissioner Roger Goodell as the arbitrator (during argument Judge Lynch neatly summed up the position as “you have a dispute with  me, that will be arbitrated by  me”). Per Flores, this makes the clauses “unconscionable.” This case has huge implications not only for the NFL, but far beyond. It is estimated that more than 60 million American workers are bound by arbitration agreements, and more than 80% of America’s largest companies use arbitration agreements to determine employment disputes. Most serious arbitrating bodies (AAA, JAMS and so forth) will underscore that securing the right arbitrator is one of the most important parts of the process. Flores suggests that Goodell may possibly not be the most neutral arbitrator, what with his being “ professionally and financially beholden to the NFL and its teams, ” “ personally represented by the same attorneys representing ” the NFL, being paid “ tens of millions of dollars ” a year to protect the NFL’s interests, and having very publicly issued a statement the day that Flores’ case was filed calling it “ without merit. ” As Flores’s attorney stated during argument: “ without hyperbole, Mr. Goodell may be the most biased arbitrator of this case on the planet .” As argued in an amicus brief filed by various esteemed arbitration practitioners, the Second Circuit has the power with its decision to create a monumental shift, not only giving employers the power to unilaterally choose the arbitrator, but to pick one with a significant vested interest in the employer securing a favorable outcome. If the Second Circuit rules that the arbitration provision is enforceable, it opens the door for other employers to utilize similar clauses. When not offering a scathing assessment of the fortunately unidentified attorney who drafted the Pittsburgh Steelers’ arbitration clause (“a mess”), Judge Lynch seemed to pose the exact question raised by the amicus brief: what stops any employer in the United States doing this? Why wouldn’t every employer insist that the arbitrator of any complaint be the company CEO? If the Second Circuit rules in favor of the Defendants (if, indeed, the Second Circuit rules on the issue at all – the Defendants argue that while the clauses are not unconscionable, that question should be remanded to the District Court), the answer may well be “nothing.”               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 New York Metro “Rising Star” in the field of “Business Litigation” each year from 2020-2024, as a “Top Attorney In Westchester” by Westchester Magazine,  and in 2024 was recognized by Super Lawyers Magazine as one of the “Top Attorneys In America."

Like other lawsuits filed by former college athletes, Greg Brooks Jr. alleges LSU improperly used his name, image, and likeness. But the institution’s improper use has nothing to do with breached contracts or false promises. The former starting safety and Team Captain alleges LSU’s negligent conduct delayed a brain tumor diagnosis, resulting in a rushed brain surgery by an ill-qualified surgeon. Brooks suffered multiple strokes during the surgery, which rendered him severely disabled. The lawsuit provides a detailed description of how LSU ignored clear signs of neurological trauma, subjected Brooks to a major surgery without considering other treatment options, then, without permission, used Brooks’s NIL to garner positive publicity in the months following the disastrous surgery . [1]     Asserting liability for failure to diagnose is a novel concept in collegiate sports law. Typically, the alleged injury directly relates to the sport itself: the plaintiff in the landmark worker’s compensation case Waldrep v. Texas Emplrs. Ins. Assoc .  suffered severe injury to his spinal cord during a TCU football game; Jordan McNair collapsed during football conditioning at Maryland and ultimately died from heatstroke. [2]  Brooks’s harm resulted from delayed diagnosis of a medulloblastoma tumor causing adult-onset hydrocephalus: a rare condition in which a tumor on the brainstem blocks cerebral spinal fluid from properly flowing throughout his brain, causing neurological symptoms like migraine, dizziness, nausea, balance issues, etc. [3] Serious issues such as concussions and CTE are well-known risks for football players. Yet, LSU ignored clear warning signs of neurological issues and threatened to remove Brooks from its roster before seeking proper tests and treatment. [4] Thus, unlike precedent, Brooks’s harm directly ties to LSU’s failure to recognize and treat an ongoing medical issue, instead of the sport itself.     LSU instructed its players to defer to LSU coaches and/or athletic trainers on issues with their health or physical condition. [5]   Reliance on their advice proved detrimental for Brooks: LSU coaches and athletic trainers cleared Brooks for practice and games, even though he complained of dizziness, nausea, and headaches daily. [6]  LSU Athletic Trainer Owen Stanley responded to Brooks’s continued complaints of textbook neurological symptoms by evaluating him with C3 Logix: an iPad app LSU athletic trainers regularly used to evaluate athletes with suspected head injuries. [7]  Stanley cleared Brooks for practice once the app ruled out a concussion. [8]  The next week, Stanley responded to Brooks’s persistent complaints by saying he needed a Vertigo test. [9] LSU’s team doctor, Dr. Vincent Shaw, approved Stanley’s diagnoses without examining Brooks himself. [10]     Although given the “option” to sit out practice and/or a game, coaching staff warned Brooks if he chose to do so, someone else would take his place, thus risking forfeiting his starting position. [11]  So, Brooks continued practicing – and even starting in the first two games of the 2023 season – before LSU ordered an MRI 39 days after his initial complaint. It revealed Brooks’s symptoms were caused by hydrocephalus due to a malignant brain tumor. LSU arranged for emergent brain surgery the very next day  at an LSU affiliated hospital. [12]  LSU selected Dr. Brandon Gaynor to remove the cancerous tumor sitting on his brain stem, a delicate part of the brain that controls everything from balance to speech to mood. LSU’s rash decisions not only prevented the Brooks family from exploring other treatment options, but also directly contributed to the multiple, disabling seizures Brooks suffered during the surgery.   This is a tragic example of causation: but for LSU’s acts/omissions, Brooks, despite the severity of his diagnosis, likely would have lived a normal life, free of disability. In an interview with Good Morning America on February 3, 2025, Brooks’ father noted, “the disease is not the issue. He did wonderful with his radiation, with his chemo. This is the aftermath of injury from surgery." [13] Seizures and/or brain damage are not a guaranteed consequence of hydrocephalus – if that were true, I would not have graduated college, let alone law school. My benign brain tumor developed during elementary school. I suffered undiagnosed hydrocephalus symptoms most of my life, including issues with speech, memory, balance, direction, and processing information, as well as increasingly intense headaches, nausea, and dizziness. The pressure eventually reached my optic nerves, affecting my vision to the point of periodic 100% blindness by the time I was diagnosed as a college sophomore. Although doctors said I needed surgery immediately, my parents thoroughly researched my condition and options before we decided on treatment and the neurosurgeon to perform it. This informed decision has allowed me to live a relatively normal, healthy life in the five years since my surgery, culminating in my law school graduation this May. LSU robbed Brooks of such opportunity: not only to determine the objectively optimal treatment, but also to experience life as a normal, healthy man in his twenties. Today, Brooks remains wheelchair bond, struggling to speak and perform basic physical movements. [14] This easily could have been prevented.    Events following the disastrous surgery demonstrate a cold disposition. LSU advised Brooks after the surgery that St. Jude Children’s Research Hospital, an institution with ample experience in removing brain tumors, was ready, able, and willing to accept him as a patient. [15] The family later learned Brooks’ surgery is routinely performed by fellowship-trained pediatric neurosurgeons – and that Dr. Gaynor specializes in adult spinal surgery. [16] Further, LSU used Brooks’s NIL to protect its public image without accomplishing the good will it claimed. It created a fundraising page to raise money for Brooks’s treatment, yet the Brooks family has received none of it. [17] It repeatedly publicly disclosed confidential information about Brooks’s condition without consent. [18] LSU honored Dr. Gaynor with a “Geaux Tigers Hero” award for “heroic” efforts in treating Brooks. [19] Not only did LSU fail to consult the Brooks family before bestowing the award, but, according to Mr. Brooks, no one from LSU has contacted the family since the surgery. [20]     While the injustice of the situation is evident, liability for failure to diagnose is a novel cause of action in collegiate sports law. Prior cases like Waldrep  predict a grim likelihood of success: the concept of a “student-athlete” provided a nearly impenetrable liability shield for the NCAA and its member schools. [21] However, the recent, albeit unpredictable, direction of sports law litigation provides a glimmer of hope. Alston   and Johnson   hamstring the amateurism defense, opening the door for unprecedented rights afforded to student-athletes: Alston   demonstrated never-before-seen antitrust accountability against the NCAA; Johnson  fashioned a test that will likely grant student-athletes employment status – an idea once considered taboo. Brooks   may very well be the case that allows student-athletes to successfully assert liability for instances of gross misconduct by NCAA member schools. LSU’s actions before, during, and after Brooks’s disastrous surgery demonstrate the nightmarish consequences of a university not held accountable.         Keeton Cross is a 3L at Cumberland School of Law with majors in Marketing and English from the University of Alabama. You can find her on X (@keeton_cross) and on LinkedIn. Sources: [1]   See   Brooks v. Louisiana State University and Agricultural and Medical College, available at https://bloximages.newyork1.vip.townnews.com/theadvocate.com/content/tncms/assets/v3/editorial/a/1b/a1baadaf-da46-5a6c-833b-701fa2635866/6709796a3d52a.pdf.pdf   [2]  See Waldrep v. Tex. Emplrs. Ins. Ass'n , 21 S.W.3d 692 (Tex. App. 2000); https://www.nytimes.com/2021/01/17/sports/football/Jordan-McNair-death-settlement-Maryland.html   [3]  “Geaux Hero: LSU Football Star Greg Brooks Jr. Gets Expert Care for Rare Brain Cancer from Our Lady of the Lake,” available at https://health.fmolhs.org/about-us/team-member-spotlights/geaux-hero-greg-brooks-care-team/   [4]   See Brooks , Complaint at ¶ 14. [5]   See id , at ¶ 8. [6]   See id.  at ¶ 14. [7]   See id.  at ¶ 12. [8]   Id.   [9]   See id,  at ¶ 13. [10]   See id.  at ¶ 12. [11] See id.  at ¶ 14. [12]   See   id . at ¶ 18. [13]   See  “Greg Brooks Jr. speaks out about lawsuit against LSU, recovery from brain surgery,” available at  https://www.goodmorningamerica.com/news/story/greg-brooks-jr-speaks-lawsuit-lsu-recovery-brain-118372917   [14]  Id.   [15]   See Brooks , Complaint at ¶ 22. [16]   See Brooks , Complaint at ¶ 21; https://www.theneuromedicalcenter.com/physicians/brandon-gaynor-md/ ; [17]   See Brooks , Complaint at ¶ 27. [18]   See Brooks , Complaint at ¶ 26. [19]   See Brooks , Complaint at ¶¶ 24-25. [20]   See Brooks , Complaint at ¶¶ 23-24; Good Morning America Interview [21]   See   Waldrep , 21 S.W.3d at 700 (heavily relying on the NCAA’s “fundamental policy” of amateurism, the court reasoned Waldrep’s scholarship from TCU could not be considered “pay” or “income” sufficient to constitute any contract for hire because the NCAA manual at this time had a strict anti-pay-for-play policy, but considered scholarships or educational grants-in-aid as permissive payments for players (i.e. not payment for play)).

On March 19, 2025, The United Soccer League (USL) club owners voted to implement a promotion and relegation system (pro/rel), marking the first time this European-style system will be implemented in the United States.  Representing a seismic shift in American soccer, the USL confirmed plans to launch a Division One men’s professional league in 2027 to rival Major League Soccer (MLS) within the sanctioning standards of the U.S. Soccer Federation (USSF).  Like all other professional leagues in the United States, MLS operates as a closed-league model.  The move by USL aligns with global soccer norms by introducing a three-tiered structure culminating in a Division 1 league but raises complex antitrust questions and market uncertainties.  The legal ramifications of this system – particularly considering the recent North American Soccer League, LLC v. United States Soccer Federation, Inc. ( NASL v. USSF ) anti-trust verdict – and its potential to reshape soccer’s competitive and viewership landscape demand rigorous scrutiny. In February 2025, a federal jury ruled in favor of the USSF and MLS in a seven-year antitrust lawsuit by the defunct North American Soccer League (NASL).  The NASL alleged that USSF and MLS conspired to manipulate the Professional League Standards (PLS) – including stadium requirements, owner wealth thresholds, and market size criteria – to suppress competition.  The jury rejected these claims, citing the NASL’s mismanagement and failure to retain clubs as primary sources of its collapse.  From a legal standpoint, the case sets an important precedent as the USL charts its course.  It demonstrated how difficult it is for a rival league to win an antitrust suit in sports.  “Antitrust claims are notoriously hard to prove, particularly in the sports context,” observes sports attorney Chris Deubert.  Such cases require complex economic evidence and a clear showing that the alleged monopolists unreasonably restrained trade.  NASL could not meet that burden.  USSF argued NASL simply did not meet the PLS benchmarks and even pointed to NASL’s internal troubles (one NASL investor had been implemented in a FIFA corruption probe) as reasons for its demise. While the USL’s system promotes meritocratic competition, it faces antitrust scrutiny under the Sherman Act’s Section 1 (collusive restraint) and Section 2 (monopolization).  Key concerns include barriers to entry & vertical integration, market definition & monopoly power, and collusion & conflicts of interest.  The USSF’s PLS for Division 1 could create exclusionary hurdles.  The league is to be composed of a minimum of 12 clubs at launch, expanding to 14 by the third year of operation.  Stadiums must be enclosed and have a minimum seating capacity of 15,000.  At the time of writing, only four USL Championship clubs (Birmingham Legion FC, Oakland Roots SC, Louisville City FC, Miami FC) meet the stadium standards.  USSF also states that 75% of clubs must be in metropolitan areas with a population exceeding 1 million.  A club’s principal owner must have at least a 35% stake in his/her respective club, while his/her net worth must be at least $70 million.  Smaller markets like Northwest Arkansas (Future Ozark United FC) or New Mexico may struggle to finance upgrades, risking allegations that the PLS disproportionately favor wealthy owners, echoing NASL’s claims.  In addition, if the USL’s Division 1 gains sanctioning, it would compete with MLS for players, sponsors, and broadcasters.  Courts often narrowly define “relevant markets” in sports antitrust cases.  In the NASL  case, the jury rejected the league’s argument that Division 1 and 2 leagues constitute distinct markets.  The USL must demonstrate its system enhances consumer choice without coercively displacing MLS, which may prove difficult given MLS’s entrenched position.  Furthermore, the USSF’s dual role as regulator and commercial partner to MLS remains contentious.  While the NASL  case cleared USSF of conspiring with MLS, the USL’s rise could reignite scrutiny.  If USSF grants the USL Division 1 while maintaining MLS’s privileges, rival leagues might allege biased governance.  There is no explicit rule forbidding multiple Division 1 leagues, but it is unprecedented.  One legal question is whether USSF will apply the standards uniformly, as any whiff of favoritism could revive antitrust concerns.  Questions would arise if USSF were to raise the requirements suddenly to handicap the USL, as NASL alleged happened to them.  In a post-verdict statement, USSF said the decision of NASL  “validates U.S. Soccer’s commitment to fostering a broad and healthy ecosystem of professional soccer leagues across all divisions.”  For the federation, allowing an ambitious USL pyramid to coexist with MLS would be the ultimate proof of that “broad ecosystem” commitment – and a shield against future lawsuits. Not long ago, the USL and MLS were partners rather than rivals.  In 2013, MLS and what was then called USL Pro announced an affiliation agreement to collaborate on player development.  For much of the 2010s, the USL effectively served as MLS’s minor league.  The alliance started to fray as MLS grew and sought more control over its developmental pipeline.  By 2022, MLS launched MLS Next Pro as a separate third-division league.  MLS pulled virtually all its affiliated clubs out of the USL to play in MLS Next Pro.  By the start of 2023, the USL was fully independent from MLS’s influence.  The split freed USL to pursue “disruption and innovation” – such as an open league structure – because it no longer had to align with MLS’s closed model.  USL has been standing on its own impressively – expanding to new markets, attracting investment, and solidifying multiple leagues at a time when NASL collapsed.  That said, USL is not positioning itself as an immediate MLS substitute.  Its leadership acknowledges that MLS is wealthier and more established.  While USL alone “doesn’t have the clout” to truly rival MLS financially, it can “differentiate their product” and seize the mantle of innovation. Sponsorship and media partners might see USL’s growth potential.  If USL’s Division 1 launches successfully and pro/rel is in effect by 2028, the league’s broadcast deals (which expire around 2026-27) could be renegotiated at higher values with the promise of a “major league” product.  In contrast, MLS’s locked-in Apple TV deal, which began in 2023, runs through 2032, potentially giving USL a window to gain ground in TV exposure.  While the $2.5 billion deal injected cash into MLS, it also moved most matches behind a paywall.  The USL, on the other hand, has been pursuing a more traditional and accessible media strategy, which could pay dividends as it introduces pro/rel.  In 2024, USL struck a deal with CBS Sports to broadcast a select number of matches on national television, while continuing to stream others on ESPN + and YouTube internationally.  Crucially, the USL also encouraged all its clubs to sign local free-to-air TV deals.  In fact, this season “for the first time, all USL Championship clubs secured local television deals” to air matches in their markets over local stations.  The focus is on maximizing accessibility – making it easy for casual fans to stumble upon a USL match without an extra subscription.  The results have been promising: USL reports that these local and national broadcasts contributed to a 20% rise in average match audiences in 2024, with total viewership climbing 18% over the previous year.  Many clubs saw significant upticks in their home market TV viewership (25% increase) thanks to going on local channels. The 2024 USL Championship Final (Colorado Springs Switchbacks vs. Rhode Island FC), which was aired on the main CBS network on a Saturday afternoon, drew 431,000 live viewers.  Conversely, the 2024 MLS Cup Final (LA Galaxy vs. NY Red Bulls), which did air on Fox, drew only 468,000 viewers (English and Spanish combined), down nearly 50% from 890,000 on those channels the year prior.  On the streaming side, one reporter used Nielson data to estimate that merely around 65,000 viewers watched the match via Apple’s MLS Season Pass in real time.  Even if that estimate is low (Apple’s total global viewership might be a bit higher), the fact remains the league’s premiere event likely had around 500-533K total viewers.  For context, as recently as 2022 (pre-Apple deal), the MLS Cup Final on network TV drew over 2.1 million viewers.  This all serves as a reminder that fans will watch soccer when it is easy to find – and that compelling stories (like promotion fights or underdog runs) can capture eyeballs.  Competition for viewers in soccer may intensify with USL’s rise.  MLS, for its part, is confident in its long-term plan and global stars, but it may need to ensure it does not lose the narrative.  MLS commissioner, Don Garber, recently hinted that the league might seek more linear TV exposure even during the Apple deal, a sign that they recognize the need for visibility.  If so, one could argue that USL’s presence is already pushing MLS to adjust its approach. Right now, MLS remains the market leader in U.S. soccer by far – it has more resources, marquee players, and established fanbases in large markets.  The USL will not outdraw MLS overall in the near term.  However, USL’s open system could carve out a niche of authenticity and higher stakes that appeal to hardcore soccer purists and new fans in underserved markets.  It may also attract international interest; global fans used to the pro/rel system could find the experiment intriguing, whereas MLS’s closed model has sometimes been a turn-off for that segment.  While MLS’s national TV reach may be limited by streaming, it continues to pack large stadiums and generate local buzz (especially with the Messi effect at Inter Miami CF).  USL will aim to grow its attendance too, but one advantage of pro/rel is that it gives every club something to fight for, possibly boosting attendance even for mid-table clubs (since avoiding relegation or chasing promotion keeps fans invested).  USL’s community-based approach – with many clubs having deep local roots and now local broadcasts – might foster strong regional followings.  This grass-roots growth is something MLS had to forego when it centralized media rights.  Time will tell if USL can translate that into significant national viewership, but early returns suggest a growing appetite for what USL is serving. The USL’s implementation of pro/rel is a watershed moment in American sports, one with significant legal and market implications.  It tests the premise that an open system can thrive in a country that is so accustomed to closed leagues.  In terms of market impact, the USL’s gamble could inject fresh energy into U.S. club soccer.  Fans will soon have a choice between MLS’s franchise model – still expanding, star-driven, but somewhat predictable – and USL’s merit-based hierarchy, where every season could see new clubs rising and others falling.  MLS’s dominant position is not under threat yet, but it may no longer be able to ignore the clamor for some of the excitement that an open system brings.  As the 2026 World Cup approaches and soccer gains unprecedented attention in the United States, the timing of USL’s move could not be more intriguing.  Though MLS remains king for now, there may be a battle on the horizon for American soccer supremacy. Calvin Holle is a 2L at the University of Missouri-Kansas City School of Law.  He can be found on LinkedIn . Sources: https://www.espn.com/soccer/story/_/id/44315033/usl-votes-adopt-pro-rel-2027-division-one-launches https://www.insideworldfootball.com/2025/02/04/ussf-mls-dodge-375m-bullet-court-rules-nasl-anti-trust-case/   https://www.espn.com/soccer/story/_/id/43680111/jury-sides-mls-ussf-nasl-suit   https://www.sports.legal/2020/03/victory-for-opponents-of-the-pro-rel-model-the-court-of-arbitration-for-sport-determines-there-is-no-obligation-to-implement-pro-rel-in-the-united-states/ https://www.si.com/soccer/2020/02/07/promotion-relegation-lawsuit-cas-riccardo-silva-us-soccer-mls   https://terrybrennanlawyer.com/2020/03/24/pro-rel-goes-to-court-an-analysis-of-miami-fc-and-kingston-stockade-v-fifa/   https://www.usltactics.com/p/usl-division-one-mls-pro-rel https://www.transfermarkt.us/united-soccer-league-set-to-create-new-first-division-what-happens-next-/view/news/450217   https://www.constangy.com/pressroom-1120#:~:text=Finally%2C%20Chris%20emphasized%20the%20difficulty,faces%20in%20making%20its%20case   https://www.reuters.com/legal/litigation/us-soccer-defeats-failed-leagues-antitrust-lawsuit-2025-02-03/#:~:text=At%20trial%2C%20U,soccer%27s%20global%20governing%20body%20FIFA https://www.mlssoccer.com/news/2013-mls-reserve-league-schedule-announced#:~:text=MLSSoccer,Richmond%20Kickers%2C%20Sporting%20Kansas https://www.thestriker.com/2021/07/21/mls-usl-championship-league-one   https://www.uslchampionship.com/news_article/show/1325531#:~:text=For%20the%20first%20time%2C%20all,and%20commercial%20opportunities%20for%20clubs   https://www.goal.com/en-us/lists/promotion-and-relegation-is-a-move-usl-had-to-make-will-it-change-america-s-soccer-club-landscape/blt90219e7a7ecccc87   https://www.theguardian.com/football/2024/dec/18/mls-cup-tv-ratings-apple-broadcast#:~:text=In%20an%20era%20when%20ballooning,about%2065%2C000%20on%20Apple%20TV   https://www.sportsbusinessjournal.com/Daily/Issues/2022/10/21/Media/MLS-Viewership/#:~:text=In%20its%20last%20season%20before,across%20the%20Univision%20networks%20averaged   https://amp.theguardian.com/football/2025/feb/19/usl-mls-soccer-united-states#:~:text=US%20club%20soccer%20can%20struggle,%E2%80%98major%20league%E2%80%99%20play%20in%202027   https://worldsoccertalk.com/tv/apple-tvs-mls-gamble-backfires-record-low-final-viewership/

In October of last year, Judge Claudia Wilken of the Northern District of California granted preliminary approval of a settlement in House v. N.C.A.A .  While much has been covered about the sum of the settlement (roughly $2.8 billion) and how revenue sharing will work between the N.C.A.A. and college athletes, there are still ongoing discussions about the details of the settlement. One detail in particular will be the challenges presented to international athletes.   The Settlement   A quick refresher on the major points of the preliminary settlement:   · The settlement would establish $2.78 billion in retroactive payments for former college- athletes going back to 2016. These payments will not come from the school’s directly, but as part of the settlement process. · Collegiate athletic departments can opt into revenue sharing directly with past and present athletes beginning at over $20 million per school. · The N.C.A.A. and power conferences will be allowed to form a “designated enforcement agency” focused on eliminating booster led NIL collectives “pay-for-play” payments.   International Athletes   As noted by Amanda Christovich in Front Office Sports, if college-athletes on student visas accept House v. N.C.A.A. payments, they could be in violation of U.S. immigration laws.   In 2018, there were about 25,000  student-athletes from outside of the United States, with that number likely having grown since . Most students on visas are considered “F class.” They can be paid for work, but there are restrictions. For example, the work must be limited to a certain number of hours, be somehow connected to their study, and income must be considered passive income .   The House settlement would have schools hand out payments to the entire athletic department, making it difficult for international athletes  to avoid or reject them. These payments could then violate the worker regulations attached to student visas, risking the student-athletes visa entirely.   Schools involved may also become unintended victims to consequences caused by the settlement agreement. It is illegal to pay workers who are unauthorized to work in the United States under U.S. Immigration and Customs laws. Any payment by a school to an international athlete could violate these laws and hypothetically create a confrontation between I.C.E. and the school.     Possible Routes   While a clear-cut answer has yet to come to light, there are a few options for this sticky situation:   ·   International student-athletes on visas could attempt to refuse payments. · They can attempt work-arounds similar to former Kentucky Basketball player Oscar Tshiebwe, who participated in NIL payments while in the Bahamas and off U.S. soil . ·  They can try to attain a different type of visa, with less strict regulations around payments. · The school can establish a trust that doles out payments at an amount more in accord with visa regulations.   Schools and international athletes will also likely be awaiting guidance from the Department of Homeland Security or Congress, who can release guidelines on payments relating to student visas or create a law addressing the issue, respectively. Of course, a final approved settlement can also address this issue.   Still, without intervention or guidance on the issue, the House  settlement may ironically be setting up more legal challenges if international athletes begin losing their visa status because of these payments.   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’s thinking about the intersection of sports and law and when the Knicks or Rangers will finally win a championship.

Happy March Madness! As spring officially begins, warm weather sports are eager to be the main attraction, with many partnership deals being announced. And ski season comes to a close with some exciting news leaving all skiers and après-skiers excited for next winter. Alex Cooper's Unwell Hydration brand to be official partner of the NWSL. NWSL Delta becomes official airline partner of the PGA. Delta Churchill Downs extends partnership with Ford through 2029. Ford will remain as the exclusive automotive partner of the Kentucky Derby. Thoroughbred Daily News J.Crew signs multi-year partnership with U.S. Ski & Snowboard to create an après-ski lifestyle apparel brand. The partnership is set to last for three years. U.S. Ski & Snowboard Kirsten Flicker is a graduate of Fordham University School of Law from the class of 2021. She can be found on LinkedIn here .

The trial for Lucas Paqueta began last week, in what’s set to be one of the longest court proceedings in the English Football Association’s (FA) history. The West Ham midfielder has been charged with breaching betting rules and has been under investigation since last summer. The charges are related to four separate Premier League games when Paqueta is alleged to have been “booked deliberately for the improper purpose of affecting the betting market.” The investigation started after an unusually large number of bets were placed on Paqueta receiving yellow cards in different West Ham matches last year. The bets were reported to the International Betting Integrity Association, who alerted FIFA and the FA.   “It's alleged that he [Paqueta] directly sought to influence the progress, conduct, or any other aspect of, or occurrence in these matches by intentionally seeking to receive a card from the referee for the improper purpose of affecting the betting market in order for one or more persons to profit from betting,” the FA said in a statement. Though Paqueta is not accused of placing any bets, friends and family allegedly placed approximately 60 bets in relatively small amounts. Paqueta has also been charged with “two breaches of FA Rule F3 in respect of alleged failures to comply pursuant to FA Rule F2,” which relates to providing information and documents during an official inquiry.   Paqueta has denied any wrongdoing and previously stated: “I am extremely surprised and upset that the FA has decided to charge me. . . I deny the charges in their entirety and will fight with every breath to clear my name.” His defense team is arguing that Paqueta has “a poor disciplinary record that gamblers were aware of and that is why bets were placed on him to receive yellow cards,” and that he had asked not to play in one of the games in which the alleged deliberate booking occurred, “so there could not have been an organised conspiracy to be booked.” The FA, however, argues that the betting patterns and ways in which Paqueta received the bookings indicates deliberate misconduct.   Though there are few precedents for in-match game manipulation, the FA has sanctioned other players for betting on the outcome of games. Former Brentford striker Ivan Toney served an eight-month ban for betting violations, some of which involved his own team, though not in any matches in which he played. Newcastle midfielder Sandro Tonali was handed a suspended two-month ban after admitting to violations of FA betting rules, after previously serving a 10-month ban from the Italian Football Federation for breaching rules on betting on matches in Italy. If it’s determined that Paqueta committed the alleged offenses, he faces the possibility of a lifetime ban.   Cassandra Devaney is a graduate of the University of Connecticut School of Law.   Sources:   https://www.skysports.com/football/news/11685/13141950/lucas-paqueta-west-ham-midfielder-charged-by-fa-for-alleged-breaches-of-betting-rules   https://www.brazilreports.com/brazilian-soccer-star-lucas-paqueta-on-trial-in-england-over-betting-scandal/6910/

As Opening Day of the 2025 season is upon us, one of the longest running legal disputes between Major League Baseball owners appears to finally be over. MLB recently announced that the Baltimore Orioles and Washington Nationals have settled their media-rights disputes, ending a 20-year battle that has been in court for a decade and ultimately reaches back to 2005. As part of the settlement, the Nationals will remain on the Orioles-owned regional sports network MASN (Mid-Atlantic Sports Network) through the conclusion of the 2025 season but will then receive full control over their TV rights. According to a news release from MLB, the Nationals will be “free to explore alternatives for their television rights for the 2026 season and beyond.” This is significant news because it will mark the first time since the Nationals arrived in Washington D.C. that the team will be able to control where and how their games will be broadcasted. MASN was created in 2005 as a compromise to then-Orioles owner Peter Angelos, who forfeited territorial rights to the D.C. area in exchange for control of the Nationals' TV rights. To “protect the Orioles from any adverse effects caused by the relocation,” as MLB once described it, Nats games were broadcasted by the Orioles-owned TV network. Almost immediately after the arrangement was in place, disputes between the clubs over rights fee payments began. After more than a decade of litigation, this saga took another twist in January when an MLB committee announced the Orioles would pay the Nationals $320 million for rights between 2022 and 2026. While the terms were not disclosed, it would appear the final year of that agreement has been terminated given the most recent announcement. “As part of the settlement, all disputes related to past media rights between the Nationals, Orioles, and MASN have been resolved, and all litigation will be dismissed,” MLB said in its news release. Both Baltimore and Washington are run by different individuals than they were when the dispute started. David Rubenstein bought the team from the Angelos family last year. Ted Lerner, Mark Lerner’s father, died in 2023. The league itself owned the Nats when they moved from Montreal, selling to the Lerners in 2006. “We are excited to have this longstanding issue resolved and look forward to the season ahead,” David Rubenstein said in a statement. The Nationals declined to comment. While this is significant development in and of itself, it also has massive ramifications for the future of the Nationals franchise. In recent years, the Lerner Family has contemplated selling the franchise. However, Mark Lerner said his family decided against selling around this time last year. Whether or not the MASN dispute had anything to do with that decision is unknown, but if the family goes down that road again, the team’s “freedom” from the MASN relationship should help. That being said, like many teams across the league, the Nats’ TV rights are not worth as much as they were in the past. By settling now, the teams and the league essentially avoid further fighting in public over just how much the worth of those rights have fallen. It's no secret that TV rights are a particularly sensitive topic for baseball owners. The worth of most clubs’ rights has dipped in recent years amid the cord-cutting trend and decline of RSNs. While certain clubs like the Dodgers that own their own RSN have been somewhat immune from this dip, most clubs are coping with significant declines in TV revenues. One of Rob Manfred’s biggest priorities is to bundle all of the teams’ rights together and sell them to a streaming platform. While this will certainly be easier said than done, Manfred believes teams will be able to recoup some of their TV losses over the long haul if the league can reach new deals with streaming companies in coming years. Moving forward, it now bears close watching whether the Nationals will now align with the Ted Leonsis controlled Monumental Sports Network. Leonsis Monumental Sports Network broadcasts games for the Washington Capitals, Washington Wizards, and Washington Mystics. Leonsis is close to Mark Lerner, and Lerner is part of the ownership group at Monumental Sports & Entertainment. Leonsis, meanwhile, has expressed interest acquiring both baseball rights for his RSN, and potentially the Nationals franchise if the Lerner family goes back down the path of selling the team in the coming years. From an on-field perspective, the Nationals are trying to emerge from a long rebuild following their World Series title in 2019. Due to the COVID impacted season in 2020, the team was unable to enjoy the financial windfall that comes in the aftermath of winning the World Series. In addition, the team has been hamstrung by Stephen Strasburg’s $245 million contract and the key departures of Juan Soto, Trea Turner, and Max Scherzer. While the Nationals young talent appears promising, having the financial flexibility to spend on impactful free agents will certainly be important if the team wants to compete in the difficult National League East. The control over their TV rights along with a potential sale could help in that regard. Brendan Bell is a 2L at SMU Dedman School of Law. He can be followed on Twitter (X) @_bbell5

With three months remaining before the 2025 NHL playoffs, the Utah Hockey Club finds itself in an uphill battle for postseason positioning.  The club’s inaugural season has energized fans across Salt Lake City and beyond, despite beginning the season with an arena in need of renovations and a placeholder name.  However, the club was dealt a significant blow thanks to a recent decision by the United States Patent and Trademark Office (USPTO), that denied fans what would have undoubtedly been one of professional sports’ coolest and most unique club names: the “Utah Yetis.” On January 9, 2025, the USPTO rejected the Utah Hockey Club’s trademark application for “Utah Yetis,” citing a likelihood of confusion” with existing trademarks owned by YETI Holdings, Inc., the popular cooler and outdoor gear company.  The decision undoubtably dashed the dreams of club management, who had already begun imagining the merchandise opportunities and logo that would accompany the mythical mountain-dwelling namesake.  Much of the NHL fanbase widely expected the name to be chosen, with even the club’s forward and captain, Clayton Keller, saying “it sounds like it’s going to be the Yeti.” At the heart of this rejection lies the USPTO’s concern that consumers might confuse Utah Yetis hockey merchandise with products from YETI Holdings.  Part of the Lanham Act, 15 U.S.C. §1052(d), prohibits the registration of a trademark if it so resembles a mark already registered in the Patent and Trademark Office, or a mark or trade name previously used in the United States, that it is likely to cause confusion, mistake, or deception among consumers regarding the source of goods or services.  This provision is commonly referred to as a “likelihood of confusion” refusal.  In trademark law, the core concern is whether a proposed mark could potentially confuse consumers.  While Yeti Coolers is primarily known for its premium insulated drinkware and coolers, the company has expanded into apparel and accessories, holding numerous trademarks covering these categories in both standard and stylized formats.  The USPTO’s decision reflects an understanding that consumers encountering “Yeti” branded clothing might reasonably be confused about whether such items originated from the cooler company or the hockey club.  Despite representing different industries at a surface level – professional sports versus outdoor equipment – the overlap in merchandise categories created the legal conflict that led to the rejection. Furthermore, when evaluating the “Utah Yetis” application, the USPTO determined that the geographical descriptor “Utah” functioned as a generic element, making “YETIS” the dominant component of the proposed mark.  When evaluating trademarks the USPTO assesses whether a term is generic based on how it is perceived by the relevant public.  For geographic terms, this means that they are generally seen as describing where something is rather than what it is or who makes it.  In this case, the term “Utah” functions primarily to indicate that the team is based in the state of Utah, rather than providing distinctiveness that would differentiate it from other “Yeti” trademarks.  The USPTO explicitly noted in their ruling that even the singular form “Utah Yeti” would not resolve the conflict, as the “singular or plural form of a registered mark is essentially identical in sound, appearance, meaning, and commercial impression, and thus the marks are confusingly similar.” Following the USPTO’s refusal, the Utah Hockey Club attempted to negotiate a coexistence agreement with Yeti Coolers, which would have potentially allowed both entities to use their respective marks within defined parameters.  However, these negotiations proved unsuccessful.  Mike Maughan, an executive with the club’s parent organization, Smith Entertainment Group, acknowledged the strength of Yeti Coolers’ trademark position, stating, “They have a unique and strong trademark on anything published or used with Yeti.”  The rejection does not necessarily represent a final determination, as the USPTO issued what was described as a “nonfinal office action.”  The club had three months from the January 9 refusal date to present additional evidence and arguments or request an extension to keep the application alive.  However, it appears the organization has decided to move forward with alternative naming options.  On January 29, the club announced that the fans attending their following four home games in late January and early February could vote for a permanent identity.  The final three options voted on included the existing Utah Hockey Club, Utah Mammoth, and Utah Outlaws.  For now, fans will likely have to wait for the postseason to find out what was ultimately chosen for the club currently in branding limbo.  Bureaucratic red tape struck again and took away what would have been one of the most unique club names in professional sports.   Calvin Holle is a 2L at the University of Missouri-Kansas City School of Law.  He can be found on LinkedIn ( https://www.linkedin.com/in/calvinkyleholle/ ).   Sources ·      https://www.espn.com/nhl/story/_/id/43537901/trademark-office-rejects-utah-yetis-team-name ·      https://sports.yahoo.com/utah-hockey-club-scraps-permanent-yeti-nickname-due-to-copyright-dispute-with-cooler-company-233559308.html ·      https://sports.yahoo.com/utah-hockey-clubs-effort-to-make-yeti-permanent-team-name-denied-by-us-trademark-office-021340945.html ·      https://www.law.cornell.edu/uscode/text/15/1052 ·      https://www.jdsupra.com/legalnews/utah-yetis-the-road-to-naming-a-new-nhl-7346610/ ·      https://apnews.com/article/utah-hockey-club-trademark-yeti-69fa64ec98b5d00f1c11d38405b352a5 ·      https://www.ksl.com/article/51234156/utah-hockey-club-facing-trademark-hurdles-in-finding-permanent-name ·      https://bleacherreport.com/articles/10152152-utah-hockey-club-has-yetis-all-nhl-nickname-finalists-rejected-by-trademark-office ·      https://spyglass.org/utah-yeti/

Earlier this year, Nike filed a lawsuit against popular L.A. based sneaker customizer Dominic Ciambrone —better known as The Shoe Surgeon—alleging trademark infringement, counterfeiting, and unauthorized customization. Now, The Shoe Surgeon is fighting back with a 100-page response, asserting fourteen affirmative defenses and multiple counterclaims against Nike—including defamation and unjust enrichment.   After Nike's initial complaint was filed, The Shoe Surgeon released a statement on social media stating “It’s a dream to collaborate with legendary brands. Especially with the brand who’s messages for us to believe in something.” The Surgeon then expressed his confusion that “Nike has chosen litigation over a discussion.”   Nike responded with a statement of their own: “Our goal is to make sure consumers are not misled and have access to authentic NIKE, Inc. products that are authorized and created according to our high standards with the performance benefits they expect. It is unfortunate that after many attempts to resolve this matter privately, we’ve had to take legal action against the Shoe Surgeon for counterfeiting, mass customization and trademark infringement. In order to safeguard our brand and IP, and aligned with Nike’s commitment to protect the consumer from counterfeit Nike product, we are left with no choice but to seek a legal solution to address how the Shoe Surgeon is constructing counterfeit “Nike” footwear from scratch and selling it as officially branded product.”   In his response, The Shoe Surgeon argues that his use of Nike shoes for customization qualifies as non-commercial use and therefore serves as a defense against infringement. He states that his work is artistic, offering a service for individuals seeking customized shoes for their own personal use and enjoyment. However, this defense appears weak, as The Shoe Surgeon's entire business model seems inherently commercial—selling customized sneakers.   The Surgeon’s stronger defense lies in fair use and the first sale doctrine, which limits a trademark owner’s control over a product after its initial sale. In May 2022, the Ninth Circuit further clarified the first sale doctrine in Bluetooth SIG Inc. v. FCA US LLC , holding that the first sale doctrine defense applies in instances in which a trademarked product or a component is incorporated into a new end product so long as the seller adequately discloses to the public how the trademark product was used or modified in the new product. The court determined that the ultimate resolution of a case invoking the first sale doctrine defense will depend on an analysis of whether a purchasing consumer would likely be confused about the source(s) of the product.   The other defenses The Shoe Surgeon asserts are as follows: ●      Unjust Enrichment ●      Implied License ●      Trade Dress Invalidity – Functionality ●      Estoppel and Laches ●      Statute of Limitations ●      Failure to Mitigate ●      Consent/Acquiescence/Waiver ●      Good Faith (asserted twice) ●      Lack of Personal Jurisdiction ●      Improper Venue/Inconvenient Forum In his countersuit, The Shoe Surgeon accuses Nike of defamation, claiming that Nike knowingly made false statements that damaged his reputation and business. The key statement at issue is Nike’s claim that:   “The Shoe Surgeon is constructing counterfeit Nike footwear from scratch and selling it as officially branded product. Further, The Shoe Surgeon is teaching others to create counterfeit Nike sneakers.”   The Shoe Surgeon argues this statement is false and misleading, as he never creates Nike shoes “from scratch.” Instead, he claims that all of his work begins with authentic Nike shoes, which he then customizes into art—not a counterfeit Nike product.   Supporting his claim, The Shoe Surgeon points to a 2022 letter from Nike, which outlined how deconstructing and reconstructing a Nike shoe could be considered counterfeiting under Nike’s policies. However, he argues that the letter never accused him of making fake Nike products from scratch. His counterclaim asserts that Nike’s statement was not only false but also made with malice, intending to harm his business and relationships within the sneaker industry.   Beyond reputational damage, The Shoe Surgeon alleges that Nike’s statements caused financial harm by deterring potential business partners. He claims he had multiple near-final deals with partners who backed out after hearing Nike’s allegations, costing him significant revenue and opportunities.   The second counterclaim, unjust enrichment, centers on Nike allegedly profiting from The Shoe Surgeon’s work without properly compensating him. The Shoe Surgeon claims that Nike engaged him for multiple projects, including a Travis Scott collaboration and a custom LeBron James sneaker project, while failing to properly compensate him. He alleges that Nike strung him along with promises of future deals and payments that never materialized.   A key part of The Shoe Surgeon’s argument is that Nike has benefited from his expertise for years—even hiring him to teach customization classes. He points to a 2017 masterclass for Nike’s Jordan Brand division staff, where he led a workshop on customizing Jordan 13 sneakers, which he claims is no different than the classes he offers to the general public. According to The Shoe Surgeon, Nike took what they learned from him and later built their own competing customization programs, such as Nike By You.   The Shoe Surgeon further argues that Nike’s position on customization has been inconsistent. He highlights the fact that Nike allowed him to create high-profile custom sneakers in the past but is now trying to crack down on customization under the guise of brand protection, but only after leveraging his creativity and expertise for their own gain.   Nike, however, is pushing back. On January 23, 2025, Nike moved to dismiss the defamation claim, arguing that its statements are protected under absolute privilege because they are a fair and accurate summary of its legal complaint. Nike asserts that its use of terms like counterfeit and from scratch is directly tied to its legal argument and, therefore, cannot be considered defamatory.   The broader implications of this case remain uncertain. Nike maintains that it supports customization within its parameters, but not unauthorized mass customization. Meanwhile, The Shoe Surgeon’s countersuit raises significant legal questions about customization rights, fair use, and the first sale doctrine. Depending on the outcome, sneaker customizers may need to navigate stricter legal boundaries—or risk litigation. Andrew Gagnon is a rising 3L at the University of Kansas School of Law where he is a representative in the Student Bar Association and President of the Sports Law Society. He can be found on Twitter @A_Gagnon34 and LinkedIn as Andrew Gagnon.

It’s no secret that March is the most lucrative time of the year for the NCAA, which reported just over $1.38 billion in earnings for the 2024 fiscal year. The majority of that income can be traced back to two contracts— one with CBS and Turner to broadcast the men’s side of March Madness ( valuing the tournament at just over $1.1 billion annually) and one with ESPN that covers nearly every other major college championship tournament, including women’s March Madness ( valued at nearly $65 million annually). The landscape of college athletics, including the prominence of conference realignment and the transfer portal, has shaped both the men’s and women’s brackets and has ensured that more eyes than ever will be watching college basketball’s brightest stars take the court this spring. Demand is showing no signs of stopping, either, with advertising spaces for the tournament(s) nearly selling out. But this year’s NCAA Tournament will be notable for reasons beyond buzzer-beaters and Cinderella stories—it marks the death of amateurism as we know it.   Indeed, soon after the final buzzer sounds, the confetti settles, and “One Shining Moment” plays throughout the arena, all eyes will turn to Judge Claudia Wilken in the Northern District of California. On April 7, Wilken is expected to grant approval of the landmark settlement in the House v. NCAA antitrust case. The agreement (which was granted preliminary approval on October 7, 2024) promises to pay $2.576 billion in backpay damages to former college athletes who allege that their name, image, and likeness (NIL) was unfairly exploited as part of the NCAA’s multibillion-dollar business model. If Judge Wilken approves the settlement, NCAA institutions will also be able to “opt in” and begin paying their student athletes up to 22% of the average power conference athletic revenue—nearly $21 million per year—via revenue sharing, while an NCAA enforcement and oversight body will be able to review all NIL deals above $600. While some may view this as the final nail in the coffin of nonprofessional sports, the truth is that their grave has been under construction for some time, with everything from employment claims, NIL monetization, and ballooning recruitment benefits contributing to slowly weaken amateurism’s collegiate foundation.   Despite the recent withdrawal of employment status complaints by USC and Dartmouth athletes—echoing Northwestern’s failed NLRB bid in 2015—the rationale for labeling players as “student-athletes” instead of employees is eroding fast. Take Oregon, for example. After transferring into the Big Ten, its men’s basketball team  totaled  over 26,700 air miles this season (in other words, more than the distance around planet Earth)—the longest road trip in college sports history. Players crisscrossed the country for over 59 hours of flight time aboard Oregon’s 68-seat charter plane and took advantage of full schedules of remote classes to avoid on-campus obligations. While this may simply be the new reality of Power Four conferences that seemingly stretch from coast to coast, it hardly mirrors the athletes of old. Gone are the days of players who were unable to receive non-scholarship compensation of any sort, with mandatory on-campus attendance for classes and restrictions on snacks being athletes’ main concerns—now, players are more concerned with performance-diminishing  jet lag and securing their next sponsorship deal. Meanwhile, the four-factor test in Johnson v. NCAA remains a potentially viable benchmark to answer questions about student-athlete employment status, signaling that players pursuing labor law protections may still have reasonable claims.                                                   This new frontier isn’t just reshaping college athletes, either—Mater Dei High School basketball just  signed  a multimillion media and NIL deal with Playfly Sports, continuing to pave the way for high school athletes to sign massive sponsorship deals as well. Further, the proposed settlement of the  Tennessee vs. NCAA  case (started during the infamous recruitment process of  Nico Iamaleava ) has resulted in the NCAA  ceasing  to enforce NIL restrictions during recruitment—extending the practice that allowed Bryce  Underwood  and AJ  Dybantsa  to sign record-setting multi-million dollar contracts reported at $12 million and $7 million apiece to play their respective sports. It seems clear that the new NIL landscape will allow both high school and college stars alike to earn millions based on the value of their likeness while leaving their NCAA eligibility untarnished.     The effects of this new system can already be seen on both the men’s and women’s sides of the tournament. While there was no correlation between overall seed and basketball spending for the men’s teams, all of the schools seeded eighth or higher in this year’s tournament spent at least $8 million on basketball (with Saint Mary’s the lone exception at $6 million). Duke, the nation’s best men’s team for much of the season, spent nearly $22 million. On the women’s side, the link between dollars and dominance was far more defined: seven of the ten biggest spenders earned a top four seed in this year’s tournament. In addition, all teams seeded seventh or higher spent at least $5 million on women’s basketball (South Carolina led the way by spending $11 million). Furthermore, programs like Arizona and Arizona State have retained consulting services from major agencies like William Morris Endeavor, reflecting a growing trend of universities seeking professional guidance as they approach this new pay-to-win era.    While this year’s March Madness champions have yet to be crowned, one only needs to turn back the clock to this year’s College Football Playoff to see the power of financial muscle on team performance in this NIL space. Ohio State, allegedly wielding a $22 million NIL budget for their football roster (as part of their athletics spending that recently topped the nation at $274.9 million), rode their investment to a National Championship victory this January. Similarly, a number one seed has won eleven of the last twelve NCAA women’s basketball tournaments. In today’s NIL landscape, money talks—and both schools and fans alike now have unprecedented opportunities to invest in players, and by extension, their team’s success.   With NIL valuations skyrocketing, legal standards in constant evolution, and institutional spending at levels we’ve never seen, the NCAA Tournament of old appears to be a relic of the past. As revenue sharing becomes the new norm and recruiting transforms into high-stakes bidding wars, the romanticized ideal of the unpaid student athlete who plays exclusively for school pride and the dream of a professional career feels increasingly nonexistent. March Madness will continue to captivate, but the era of pure amateurism is over. The future of the Big Dance is here—and it is unmistakably pay-to-play.   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 .

The NFL season may be over, but Formula 1 is gearing up for its season (which opens the weekend of March 14th) - the motorsport welcomes a brand new brand name partner for its Monaco grand prix. And the NWSL ramps up its sponsorship deals as it also prepares to kick off its season the weekend of March 14th. Tom Brady buys 50% stake in CardVault. The Boston-based sports card and collectables company will now be called "CardVault by Tom Brady". The Athletic The official time partner of Formula 1, TAG Heuer, becomes the first ever title partner of the Monaco Grand Prix. Formula 1 Gotham FC partners with Dove to support girls in sports and promote ways for young female athletes to stay in sports. The Dove logo will be featured on the back of the Gotham FC kits. Gotham FC The NWSL partners with Overtime to produce Gen-Z focused content. NWSL The Portland Thorns sign a partnership deal with Ring. The Ring logo will be featured on the front of the Portland kits. This deal is reportedly the highest valued jersey deal in NWSL history. Sportico Lewis Hamilton signs with lululemon as brand ambassador. Hamilton will work with lululemon's innovation, design and development teams to assist with future product development. 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 .

Introduction The Third Circuit’s departure under Johnson’s economic realities test provides a more workable standard than Glatt’s test for determining a student-athlete’s status under the FLSA but is not the best way to determine whether athletes should be considered employees under the FLSA. While the Third Circuit's rationale for the economic realities factor test for student-athlete employment is a positive step towards judging if an athlete is an employee and therefore qualified for protection under the FLSA, it falls a step short by not distinguishing between athletes in revenue-generating, and non-revenue-generating sports. Background College athletics have existed since the 1850's, following the path of the country, starting on the East Coast, and eventually traversing the nation spanning from sea to shining sea. As collegiate sports began to increase in popularity, President Theodore Roosevelt called a meeting in 1906, leading to the creation of the NCAA, and enacting rules forbidding college athletes from receiving payment or financial consideration.1 This choice requiring college athletes to maintain their amateur status began a century of tension, with the NCAA remaining steadfast in requiring athletes to play as amateurs, and athletes continually pushing for compensation for their performance. There have been numerous scandals around paying athletes, including SMU football’s “Death Penalty” punishment, and Johnny Manziel’s ability to capitalize on his Name, Image, and Likeness. Other athletes fought in the courtroom, seeking compensatory rights for college athletes through the judicial system. O’Bannon v. NCAA from the Ninth Circuit held that the NCAA was not immune to antitrust scrutiny, a win for some in the athlete community, but a ruling that stopped short of granting athletes’ access to profiting from their Name, Image, and Likeness or other forms of compensation.2  Alston v. NCAA  would change that. Alston allowed athletes to be compensated for their Name, Image, and Likeness; a watershed moment in college athletes' rights as a legal path to compensation now existed.3 Following Alston , the Third Circuit Court of Appeals in Johnson v. NCAA , sought to determine if college athletes as amateurs, were precluded from bringing claims under the Fair Labor Standards Act (FLSA).4 The court found that they were not. The athletes brought their case under claims they were not paid minimum wage under the FLSA. The District Court applied Glatt’s economic factors test, but the Appeals Court was unsatisfied with this test and instead remanded the case with instructions to retry it under its new economic realities test “grounded in common law principles.”5 Johnson  Test The Third Circuit developed their economic factors from dissatisfaction with the Glatt test comparing athletes to unpaid interns.6 Unpaid interns are assumed to benefit from internships as they enter “the relationship with the expectation of receiving educational or vocational benefits that are not necessarily expected with all forms of employment”7  Johnson  held the test was incomplete when factoring in the “benefits” cited by the athletes which are more like those in a work environment. Instead of Glatt’s test, Johnson developed the economic realities factor test to determine if a student-athlete qualified for coverage under the FLSA. The four factors to consider are whether the athletes perform services for another party, whether the athlete’s services are necessarily and primarily for the other party’s benefit, whether the athletes are under the other party’s control or right of control, and whether the athletes perform their services in return for express or implied compensation or similar benefits.1 Analysis While the Third Circuit’s rationale for the development of the economic realities factor test was correct in ruling that collegiate student-athletes were protected by the FLSA, it fell one step short by not sub-dividing the group into athletes who participate in revenue-generating sports and athletes who do not participate in revenue-generating sports. This paper defines revenue-generating sports as football and men’s and women’s basketball. Some schools may have other sports which generate revenue, but those sports do not produce revenue with the same consistency a football or basketball program may. The revenue-generating sports are typically the sports that bring in the money for the athletic departments to operate the rest of the teams. In 2022, the average Division 1 football program brought in almost $32 million, and the average men’s basketball team brought in around $8 million.8 These revenue-generating athletes have a different set of opportunities than their non-revenue-generating colleagues, and because of that, separating them into two groups is the more appropriate legal framework. In general, collegiate student-athletes will meet at least two, often three of the Third Circuit’s economic realities factor test. Where cases will turn is on the facts. It can often be shown the athletes’ services are necessarily and primarily for the other party’s benefit. The categorization of athletes into revenue-generating and non-revenue-generating sports is important because of the final factor, where most cases will be decided, whether the athletes perform their services in return for express or implied compensation or similar benefits. While NIL compensation is permitted for athletes of all sports, most funds flow to athletes in revenue-generating sports as schools look to maximize their profiles, businesses hope to expand their brands, or athletes aim to maximize their value. There are certainly exceptions (the top NIL earner, Livvy Dunne, an LSU gymnast, participates in a traditional non-revenue-generating sport), but, in the first year of NIL, 95.7% of NIL funds were distributed to revenue-generating sports.9 This is understandable as research has found a correlation between athletic success and increased interest in a school, aka, the "Flutie Effect".10 By having such stratification in the groups, splitting the athletes into separate piles is necessary because their experiences around compensation likely will be so different. While a revenue-generating athlete might have the opportunity to engage with a collective or different entity around significant money tied to the athlete’s NIL rights, athletes in non-revenue-generating sports are much less likely to be afforded these opportunities, and typically the opportunities they do receive come in at significantly lower dollar amounts. The non-revenue-generating athletes will argue Johnson’s test in the acquisition of similar benefits or implied compensation, unlike the revenue-generating athletes who will have a greater likelihood of being able to bring evidence forward of express compensation. Revenue-generating athletes have access to fans on a much wider scale through television broadcasts and the media opportunities their sport provides them than non-revenue-generating athletes do. The television deals signed by football conferences or by the NCAA for their March Madness tournaments for basketball teams lead to most of the funding classifying these sports as revenue- generating. Conversely, non-revenue-generating sports are often held on regional sports networks, streaming services, or are only available behind a paywall, a barrier that limits the access these athletes could reach as their popularity is already starting with a severe disadvantage when compared to those athletes with nationally televised games. This is not to say a non-revenue-generating athlete cannot overcome this challenge, there are examples of those who have become wildly profitable by capitalizing on social media popularity, but even then, their athletic abilities are still only available to fans who put in the extra work to find these athletes and sports in the tucked away places, instead of the more prominently displayed platforms that the revenue-generating athletes often enjoy. On top of these classification challenges, courts also must consider policy concerns with applying the Johnson  test, including the optics of schools buying their players through bidding wars. Another question involves monitoring where this funding comes from. Private equity brings challenges and questions about the strings attached to the terms of the funding as returns on investments must be met.11 Other schools could opt for the “collective” approach, turning to donor networks to put funds into their players' pockets, but that blurs the lines between money from the outside and money being paid directly by the school to players, more like a pay-to-play model.12 Still others have taken on direct involvement adding a player tax to their tickets so fans can help offset the cost of acquiring top talent.13  Another concern is a sovereign fund looking to continue a sportswashing campaign by turning their attention to an American sports landscape with command over large swaths of the American public.14 These sovereign funds have deep enough pockets to bankroll any deal needed, but their ulterior motives will remain under scrutiny. Regardless of where funding comes from, other questions remain around the allocation of funds. If the football team brings in 95% of the revenue, should they get 95% of the funds, or should there be a more even distribution amongst the teams? Title IX and similar legislation will influence these decisions, as collectives push to fairly compensate players without causing more problems. In any instance where outside funding flows into a school, there will be a distinct advantage for revenue-generating athletes in receiving the funds, creating a need for splitting the group in two for proper analysis. Finally, especially in revenue-generating sports where budgets are typically significantly larger, this influx of money could impact the competitive landscape. There is a possibility of bigger, richer schools stashing players to keep their rosters deeper to the detriment of schools with smaller budgets, impacting the parity of college sports. Some courts believe that NIL will have the opposite effect, by allowing players to profit off their abilities, they will go where they can play and seen, grow their brand, and financially benefit.15 Ideally, this is correct, philosophically this is likely correct, but when a bigger school, with deeper pockets or more financial backing targets the same player as their rival, competitive nature could take over. There is a real possibility these funds could be used to pay players to remain on teams they would not otherwise stay with because of the financial resources available, constricting the competitive parity in college athletics instead of dispersing the talent to more schools. Professional sports teams engage in bidding wars to drive the price up on their rival or trade for a player to keep that player from joining another team, thereby strengthening their team, while also weakening another team. Is it unreasonable to think the same would not occur in college sports? These bidding wars are hypothetical, and could happen in any sport, but have a higher likelihood of occurring in sports with more money and funding, the revenue-generating sports, than in non-revenue-generating sports. Conclusion The Johnson ruling was an important piece in the discussion around student-athletes as employees under the FLSA, but without splitting athletes into the subcategories of revenue-generating sports versus non-revenue-generating sports, the economic factors test will cause further confusion and prove to be unworkable as the divide between groups continues to widen in college sports. 1  NCAA v. Alston , 594 U.S. 69, 76 (2021). 2  O'Bannon v. NCAA , 802 F.3d 1049 (9th Cir. 2015). 3  NCAA v. Alston , 594 U.S. 69, 107 (2021). 4  Johnson v. NCAA , 108 F.4th 163, 167 (3d Cir. 2024). 5  Id . at 167. 6  Id.  at 179, (quoting Glatt v. Fox Searchlight Pictures, Inc. , 811 F.3d 528, 535 (2d Cir. 2015)). 7  Glatt v. Fox Searchlight Pictures, Inc. , 811 F.3d 528, 535-536 (2d Cir. 2015). 8 George Malone, Which College Sports Make the Most Money? ,   Yahoo!Finance (March 21, 2022) https://finance.yahoo.com/news/college-sports-most-money-130012417.html . 9 Margaret Fleming, As NIL Turns Three, Collectives and Football Still Control the Industry , Front Office Sports (July 1, 2024, 5:31 PM), https://frontofficesports.com/as-nil-turns-three-collectives-and-football-still-control-the- industry/ . 10  Johnson 108 F.4th at 169 (speaking about Professor Doug Chung’s research and findings that athletic programs are “higher education’s primary form of mass media advertising.”) 11 Eben Novy-Williams, Daniel Libit, FSU’s ‘Project Osceola’ Private Equity Push Began in 2022: Docs , Sportico (January 30, 2024, 5:13 PM), https://www.sportico.com/leagues/college-sports/2024/fsu-project-osceola-private- equity-jp-morgan-1234764861/ . 12 Pete Nakos, What are NIL Collectives and how do they operate? , On3 (July 6, 2022), https://www.on3.com/nil/news/what-are-nil-collectives-and-how-do-they-operate/ . 13 Chris Low, Tennessee increases ticket prices by 10% to help pay athletes , ESPN (September 17, 2024, 2:56 PM), https://www.espn.com/college-football/story/_/id/41302985/tennessee-ups-season-ticket-prices-10-help-pay- athletes . 14 Jeff Hauser, Jason Jones, Former Colorado coach says he sought NIL funding from Saudi Arabia’s PIF in unprecedented move , Sports Illustrated (August 26, 2024), https://www.si.com/college/colorado/football/colorado- sought-nil-funding-from-saudi-arabia-pif-in-unpreceded-move . 15  Ohio v. NCAA , 706 F. Supp. 3d 583, 594 (2023).