The Sports Law Review: USA
Organisation of sports clubs and sports governing bodies
The three major professional sports in the United States (the National Football League (NFL), Major League Baseball (MLB) and National Basketball Association (NBA)) are each organised into a league that coordinates activity between separate franchises, with each franchise under separate ownership.2 These leagues have rules limiting the number of partners who can own a franchise, and requiring that one individual have sufficient ownership to be the decision-maker.3 While the franchises themselves are typically organised as partnerships, some are themselves owned by corporations, which may be publicly traded.4 Some leagues, such as the NBA, are beginning to allow limited private equity investments into the ownership of franchises.5 Major League Soccer (MLS) notably instead consists of a single entity that owns and operates each of the separate teams.6
Many amateur sports leagues are organised as tax-exempt non-profits, whether corporations or partnerships.7 Several professional sports leagues, including the National Hockey League (NHL) and the Professional Golfers' Association (PGA), are also organised as non-profits under Section 501(c)(6) of the Internal Revenue Code, which covers trade associations.8 The NFL and MLB each fairly recently renounced this status.9 College athletic organisations (conferences) are also organised as non-profits, even though many conferences have signed licensing deals worth billions of dollars.10
Sports organisations follow the same general rules for liability as other organisations. If organised as partnerships, the partners are held jointly and severally liable for any illegal actions by the other partners, though this rule does not include limited partners who only have a monetary stake.11 Investors in a corporation are only liable to the extent of their investment.12 Federal law does not single out owners or managers of sports leagues for special liability.
The dispute resolution system
Dispute resolution in professional sports is governed by various contracts: the constitutions of the leagues, the collective bargaining agreements (CBAs) between the player unions and the owners, and the standard player contracts (SPCs) signed by players.13
The major sports leagues have different dispute resolution rules that are each the result of the collective bargaining negotiation process. For example, the NFL's personal conduct policy forbids both criminal conduct and behaviour that undermines or risks the NFL's integrity or reputation, stating players are held to a 'higher standard'.14 Discipline is automatic upon a criminal disposition, but if there is no criminal disposition, the commissioner must conduct an investigation, notify the player and allow a response.15 The policy specifies that violations involving violence call for an automatic suspension from play, and that two such offences will result in permanent banishment from the league.16 Otherwise, the nature of the discipline is determined by a neutral disciplinary officer agreed upon by both parties, though either the player or the NFL can appeal that decision.17 The NBA CBA provides highly detailed rules for handling suspensions of fewer, or more, than 12 games.18 Players may appeal suspensions of fewer than 12 games and fines of less than US$50,000 only if they would cause a detrimental financial impact, but may appeal longer suspensions and larger fines by right.19
The constitutions and CBAs of each league provide detailed guidance for when arbitration is available.20 Occasionally, these arbitrations have overturned commissioners' decisions, including, in the MLB, reinstatement of players the commissioner had banned for life.21
Judicial review of disciplinary matters is rare, though it is not impossible. The parties to arbitration may appeal the decision to federal court under the Labour Management Relations Act (LMRA)22 and Federal Arbitration Act (FAA).23 This review is extremely deferential, as the courts have no authority to overturn an arbitration on the merits, but only if the arbitrator's decision was baseless or dishonest in light of the language of the disputed contract.24 NFL quarterback Tom Brady of the New England Patriots lost under this standard when he appealed his suspension for deflating footballs, a scandal known as 'Deflategate', to federal court under the LMRA. Brady argued there were numerous problems with the arbitration, including lack of notice under the CBA, but the Second Circuit upheld the suspension because 'this case is not an exceptional one that warrants vacatur' given the deferential standard.25
Organisation of sports events
The 'assumption of the risk' doctrine limits the liability sports organisers face for injuries to spectators in the US. This doctrine, which is accepted in most US jurisdictions, allows organisers or venue owners to assert as an affirmative defence that spectators assume the normal risks attendant to the sport. In the case of Sciarota v. Global Spectrum, the court held that this normal risk encompassed the danger that a hockey puck could fly off the ice and cause injury.26 To assert this affirmative defence, the organiser must show the participant was subjectively aware of the risk, that it was obvious to a reasonable and prudent person, or that the venue provided protected seating the participant did not use.27 Many sports leagues, such as the NHL and MLB, require mandatory screening in areas where the puck or ball is likely to fly into the stands.28
Participants in the sport are also deemed to assume the risk of the dangers inherent to that particular sport. In McKichan v. St. Louis Hockey Club, LP, a court held that professional hockey is a sport where rough play and even violence between players is 'part of the game', so a player could not sue for a 'rough check' that might have been too aggressive in another sport or at an amateur level.29
Similarly, athletes themselves cannot be held liable, and cannot face criminal charges, for physical contact that is a reasonably foreseeable part of the sport, on the theory that players have consented to that contact.30 Physical assault that is beyond the normal hazards of the sport, such as, in State v. Shelley, a jaw-breaking punch during a game of basketball, may still be illegal.31
The organisers of sports often require liability releases.32 These releases are especially common in individual sports such as biking, skiing and scuba-diving. Courts will invalidate these waivers if they violate public policy under a six-factor test from Tunkl v. Regents of the University of California that asks whether a contract concerns essential services and examines the relative power of the parties, among other questions.33 Overturning liability waivers pertaining to sports is rare owing to their voluntary nature, though courts will do so if the waiver is written so broadly as to cover activity from which the organiser should not be able to escape liability.34
A separate area of concern for venue owners is protecting the gameplay and patrons from other fans. Police officers are often present at games to assist with crowd control, though their presence has also led to controversial incidents such as the infamous use of a taser on a fan charging the field during a Philadelphia Phillies baseball game.35 The concern does not end when the athletes leave the field, or even when the fans leave the venue; it is estimated that approximately 8 per cent of fans depart professional American football and baseball games legally drunk.36 Post-event drunk driving continues to be a major liability concern for venue owners and a continuing burden on police.37 Profits from the sale of alcohol at sporting events38 and the significant number of fans in the US who consider tailgating parties part of the ritual of attending a sporting event39 continue to ensure that venue owners' safety obligations remain a subject of potential litigation.
Commercialisation of sports events
i Types of and ownership in rights
Professional sports are undoubtedly big business in the United States. US professional sports' total market size of over $70 billion in 2021 consisted of revenue from four main streams: ticket sales, media rights, sponsorships and merchandising.40 The NFL, MLB and NBA are the three most profitable sports leagues in the world and the NHL ranks sixth.41 Most property rights are treated identically in sports as they are in other fields.
The largest single source of revenue in US sports is media rights.42 The leagues are the holders of these rights under the Copyright Act of 1976, which grants copyright protection to the live broadcasts of sporting events.43 Ownership of these valuable rights have allowed US sports leagues to negotiate multibillion-dollar broadcasting rights with television networks.44
For individual athletes, sponsorships provide a method of making profit off the field. Forbes magazine estimated that in 2021 the top-five paid American athletes – Dak Prescott, LeBron James, Tom Brady, Kevin Durant and Stephen Curry – had endorsement deals worth a collective US$190 million.45 Individual athletes, franchises and leagues can earn additional revenue through endorsing or licensing gear such as shoes, jerseys and sports equipment, a market valued at over US$6 billion.46
ii Contractual provisions for exploitation of rights
The SPCs of each professional sports league in the US require athletes to assign the right to their image to the league or team. A typical example is the NFL's SPC, which requires athletes to license their image for the promotion of NFL football or specific organisations within it, and grants the NFL the exclusive right to the image of groups of players, while reserving the athlete's right to seek outside endorsements as an individual.47 These contracts may also restrict players from endorsing or even wearing certain brands; the NFL has fined players for wearing brands such as Under Armour and Beats by Dre on the field when the league has entered endorsement deals with their rivals.48
Professional sports and labour law
i Mandatory provisions
The employment relationship between sports teams and players is governed by the same US law as other industries. For example, the leagues must recognise player unions under the federal National Labor Relations Act,49 and must comply with federal labour laws such as regulations published by the Occupational Safety and Health Administration. Some labour laws are actually less protective of athletes than other workers. While professional players have the leverage to negotiate lucrative compensation packages, minor league baseball teams can pay players less than the minimum wage because of a 2018 federal provision designed to defuse a class action wage lawsuit.50
The labour relationship between athletes and leagues in the US primarily comes down to the language of their contract. These contracts typically incorporate the league's constitution and by-laws, as well as the CBA. Most players can negotiate only financial provisions such as overall pay, signing bonuses, the length of the contract and guarantees in case of injuries.51 Elite players such as Michael Jordan may have such exceptional talent that franchises are willing to accommodate special requests.52 Jordan's first professional contract included a 'Love of the Game' clause that allowed him to play basketball competitively during the off-season, allowing him to compete in the Olympics and for a University of North Carolina's alumni game.53
ii Free movement of athletes
Clubs are generally able to trade players subject to regulations by their respective leagues. These rules are often extremely complex and the subject of negotiation between the leagues and the players unions.54 In the NFL, for instance, after players are drafted they cannot sign contracts independently for three years unless released by their team. After three years, the players earn limited rights to negotiate their contracts, and after four years they become free agents.55 Clubs may still trade players under contract, however. Given the short lifespan of an NFL career, many athletes never become free agents.
Some athletes are able to negotiate a no-trade clause, giving them the right to refuse a trade. A player might want a no-trade clause if he or she has substantial ties to the location of the signing team, such as LeBron James, who signed a contract with the Los Angeles Lakers guaranteed to last the two years needed for his son to finish high school.56 The MLB has codified no-trade clauses in its CBA by providing that a player with five years on one team and 10 years of experience can veto a proposed trade.57
There are no US laws capping the number of foreign athletes who may play on American teams. Major League Soccer is unique among the large American leagues in having a cap on the number of international players allowed in the league; each team is assigned eight slots for international players, and may trade slots to other teams.58
iii Application of employment rules of sports governing bodies
Athletes and their employers may incorporate the regulations of international sports governing bodies into their contracts. One common example is the incorporation of standards promulgated by the International Olympic Committee (IOC) into the contracts governing performance of athletes who compete internationally.59
Sports and antitrust law
Antitrust law in the United States governs professional sports primarily through the Sherman Act, which bans unreasonable coordination and monopolisation, and through laws that govern labour.
The Sherman Act60 outlaws 'every contract, combination, or conspiracy in restraint of trade', and any 'monopolization, attempted monopolization, or conspiracy or combination to monopolize'.61 The Supreme Court views coordination under two standards of review to determine if it is unreasonable: the per se rule, and the rule of reason.62 Some types of coordination, such as price-fixing, are so inherently monopolistic that they are per se unreasonable and thus banned.63 All other types of coordination are reviewed under the rule of reason, which requires the plaintiff and defendant to each present evidence that the coordination is pro- or anticompetitive in a defined market, with the court weighing the balance.64
The other major US antitrust rules governing sports concern labour relations. The Clayton Act of 1914 exempted labour unions from the reach of the antitrust laws,65 allowing a single union to monopolise an industry, as is the case with most sports unions. The Norris-LaGuardia Act of 1932 built on the Clayton Act by allowing workers to bargain collectively and banning 'yellow-dog contracts' with anti-union clauses.66 Finally, the National Labor Relations Act of 1935 created the National Labor Relations Board to oversee labour disputes and guaranteed private workers the right to form unions and strike, but also gave employers the right to shut down and 'lock out' unionised employees.67
The Supreme Court has held that these laws together create a statutory exemption from antitrust scrutiny for agreements that are the result of collective bargaining between labour unions and employers.68 It has also allowed the owners to coordinate between themselves when negotiating with player unions as an implicit (or nonstatutory) exemption to the antitrust laws, when that coordination grows out of and relates to the collective bargaining process.69
Many flashpoints of antitrust conflict in professional sports concern the framework created by negotiated agreements. In Mackey v. NFL, the Supreme Court invalidated the NFL's 'Rozelle Rule', which required the new team to compensate the old team when a player switched teams.70 The Court ruled this restriction constituted an antitrust violation, and was subject to scrutiny because the CBA did not address it.71 Conversely, in 2011 the NFL players temporarily disclaimed their players' union (the NFLPA) in order to attempt to render a 'lockout' by the owners illegal.72 After the Eighth Circuit stayed a temporary injunction that would have ended the lockout, the players re-certified the NFLPA as a union and came to terms on the CBA.73
Licensing rights are another major area of antitrust conflict, particularly given the amount of money at stake from broadcasting and licensing rights. The Sports Broadcasting Act of 1961 grants the major professional leagues the ability to negotiate television broadcasting deals collectively, a type of coordination that would otherwise face antitrust scrutiny.74 Members of the US Congress have criticised the NFL for abusing these privileges, but so far have not removed the exemption.75 The exemption protection does not extend beyond television rights, however; in American Needle v. NFL, the Supreme Court held the courts could scrutinise the NFL's licensing of its intellectual property for merchandise because the individual teams in the league were not a single entity for purposes of the Sherman Act.76
US sports law will undoubtedly continue to see major developments in antitrust jurisprudence, as pressure on the NCAA continues. The most recent US Supreme Court term saw the most robust challenge yet to 1984's Board of Regents ruling, which contained much-cited language endorsing the NCAA's overall regulation of college athletics and promotion of amateurism.77 The NCAA relied upon this language for decades to fend off challenges to its rules governing student compensation.78 However, in June 2021, the Supreme Court in Alston v. NCAA invalidated some NCAA regulations on athletic compensation applying the rule of reason standard.79 Specifically, it upheld a lower court ruling that regulations barring schools from compensating athletes with educational benefits were anticompetitive, and that the NCAA's desire to protect the amateurism of college athletics was not sufficiently pro-competitive to justify its rule.80 In a blistering concurrence, Justice Kavanaugh posited that the NCAA's other rules limiting compensation to student athletes could be next.81
Sports and taxation
Athletes and sports leagues in the United States are subject to both state and federal taxation, as are visiting foreign athletes. Each individual and organisation has a 'domicile' or home state, and the home state has the right to collect taxes from the individual or organisation wherever they go in the world.82 A separate state where the individual or organisation earns income also has the right to collect taxes. As a result, many states, and even cities, collect taxes on the income that athletes earn while visiting, though some states have signed compacts not to tax each other's residents.83 Determining where an organisation owes its taxes can be extremely complex, though the pain is offset somewhat by the general rule in the United States that taxes paid to one state offset the taxes owed to another jurisdiction, preventing double-taxation.84
The rules are similar for international athletes playing in the United States.85 Federal law allows the deduction of any taxes paid to state, local, and foreign jurisdictions, preventing double taxation.86 However, the United States requires foreign athletes playing within its borders to withhold 30 per cent of their earned income to ensure it has the ability to tax that income.87 Unlike many other countries, the United States aggressively pursues income earned abroad, so citizens working abroad (even if domiciled there) must file and pay US taxes on all of their income, less the taxes they have paid abroad.88
Specific sports issues
The United States has a long history of sports scandals involving the use of performance-enhancing drugs (PED). Most efforts to combat doping are handled by the individual leagues.
The most relevant US federal law concerning doping is the Controlled Substances Act, which makes the unlicensed use or possession of anabolic steroids a criminal offence.89 In 2005, the US Congress held hearings on anti-doping measures in professional sports and found them insufficient compared to Olympic standards,90 but has not legislated a solution.
Major League Baseball was at the centre of the largest US doping scandal. This scandal broke into the public eye in 1998 when a reporter spotted steroids in the locker of Mark McGwire, who was on the way to breaking the MLB record for home runs.91 In 2006, the commissioner of the MLB, Bud Selig, hired former US Senator George Mitchell to investigate allegations of widespread steroid use. The explosive Mitchell Report identified numerous stars who had used steroids and a history of abuse throughout the league.92 The MLB has since made its testing rules much stricter.93
The NFL also has a significant history of PED use. The NFL has tested for steroids since 198794 and for human-growth-hormone since 2014,95 with the details of the testing regime negotiated between the league and the NFLPA through collective bargaining.96 This drug testing led to 13 suspensions for PED use in 2018, for example,97 though this use was likely even more widespread in prior decades.98
The United States regulates doping in international competition through the US Anti-Doping Agency (USADA). The USADA is a private non-profit organisation with official congressional recognition.99 It manages the anti-doping programmes for international US teams, including the Olympic team, as a signatory to the World Anti-Doping Code.100 The USADA has some ability to enforce these rules. In 2012, a federal court upheld the USADA's attempt to force cycling star Lance Armstrong into arbitration over doping violations because he had submitted to the rules for USA cycling, which incorporated the USADA's standards and included an arbitration provision.101
The highest-profile recent controversy in the US regarding doping involves a drug that is not considered performance-enhancing. American sprinter Sha'Carri Richardson, who won first place in the US Olympic trials for the 100 metres, and was banned from participating in the Tokyo Olympics after testing positive for marijuana on the eve of the Games.102 This ban drew an immediate outcry because of the lack of evidence that marijuana enhances athletic performance, and because it is legal in many US states.103 US professional sports leagues have recently loosened restrictions on marijuana use,104 but the USADA, which handled the suspension, was enforcing international and Olympic standards that still contain provisions instituting suspensions for use of non-performance-enhancing banned substances.105
Legal sports betting has fully arrived in the United States. The American Gaming Association reported that a record 23.2 million Americans planned to bet on the 2021 NFL Super Bowl between the Kansas City Chiefs and Tampa Bay Buccaneers, placing bets totalling US$4.3 billion, a pandemic number that actually represents a decrease from the US$6.8 billion bet in 2020.106 Revenue from all legal sports betting in the United States is estimated to exceed over US$3 billion in 2021, and may reach US$10 billion in the very near future.107
The explosion in legal gambling is due to the Supreme Court's 2018 decision in Murphy v. National Collegiate Athletic Association108 invalidating the US federal statute known as PASPA (Professional and Amateur Sports Protection Act).109 That law had banned state governments from legalising sports gambling, but the US Supreme Court ruled this was a violation of the constitutional principles of federalism.110 This ruling not only devolved the power to regulate sports betting to the individual states, it also invalidated federal prohibitions that prevented states from promoting, managing and advertising sports gambling.111
Prior to Murphy, the only state to allow widespread legalised sports gambling was Nevada, where gambling was already legal when PASPA went into effect.112 Nevada thereby captured the lion's share of legal, and therefore taxable, gambling in the United States. In the three years since Murphy, 21 states and the District of Columbia have legalised sports betting, and another 10 states have passed or are in the process of passing bills that would legalise it.113 Most of these states have also passed excise taxes allowing them to capture a portion of the betting revenue.114 Many states have also legalised online betting through mobile apps that could provide even more revenue, but may also encourage gambling addiction.115
The spread of legal gambling has led to new deals for the sports leagues and the media. The Chicago Cubs, for example, recently signed a deal with Draftkings, which operates fantasy sports leagues and online betting, to act as their exclusive partner.116 NBC sports has also partnered up, making the Australian company PointsBet its provider of betting-related information across all of its platforms.117 These types of deals will become more commonplace as the legalised US gambling market continues to grow.
iii Match fixing
Match fixing is not per se illegal in the United States at the federal level, though the Sports Bribery Act makes the payment of a bribe for the purpose of fixing a match illegal.118 The Sports Bribery Act came about after a series of match-fixing scandals in college basketball in the 1940s, 1950s and 1960s.119 Federal enforcement of this act has been rare; there have been only 18 publicised prosecutions since its passage, none of which involved professional sports leagues.120 Many states also criminalise bribery in the sports context, and some additionally criminalise 'tampering' with sports contests more generally.121 Enforcement of these laws is also extremely rare.122
One weakness of the federal Sports Bribery Act is that it only pertains to bribery, not other forms of manipulation. Prosecutors have had to rely on other federal statutes to combat other forms of match-fixing and cheating. For example, an NBA referee who provided inside information to gamblers about games he was refereeing pled guilty to conspiracy to commit wire fraud and conspiracy to transmit wagering information, but not to any violations of the Sports Bribery Act.123 As the size of the legal sports gambling market grows, however, the limitations of these laws to ensure the integrity of matches may come into more focus.
iv Grey market sales
In the US, individual states control the legality of reselling tickets to sporting events, or 'scalping'. Some states ban ticket resales entirely, while others, such as New York, limit the reseller's profit to 10 per cent of the ticket price.124 The rise of online ticket sales has made reselling tickets far easier than it was before, and enforcement of state resale laws even more lax.125
The one area that is governed by federal legislation is the use of automated software, or 'bots', to buy tickets en masse. The Better Online Ticket Sales (BOTS) Act of 2016 prohibited the circumvention of technological measures on a website used to prevent mass purchases, or the sale of tickets bought through these measures.126 The Federal Trade Commission and Department of Justice achieved the first judgment under the act in 2021, a penalty of US$31 million against three ticket resellers.127
The year in review
i Covid-19: vaccine mandates and force majeure clauses in sports
As covid-19 spread across the world in 2020, US sports leagues faced the question of how and whether to continue playing while keeping players and fans safe.128 In 2021, leagues and schools faced the questions of how to handle vaccines and the continued legal fallout from the pandemic.
One of the biggest flashpoints for both colleges and professional leagues during the covid-19 pandemic has been vaccine mandates. During the 2020 season, leagues were often forced to reschedule games because of positive covid tests, and the NFL announced on 22 July 2021 that teams would have to forfeit games if they could not play, which would effectively force players to receive the vaccine.129 This came after the NFL and NFLPA agreed on health protocols that subjected unvaccinated players to testing, mask mandates and travel restrictions.130 While the vaccination rate for NFL players is much higher than the general public, some players have been outspoken in opposing what they see as forced vaccinations.131 Other leagues have been able achieve vaccination targets with less controversy; the MLB announced in June that over three-quarters of its teams had reached an 85 per cent threshold for full vaccination.132
College athletics have been particularly impacted by covid. Though many US colleges reopened for the 2020–2021 school year, the NCAA moved most autumn sport championships to the spring to avoid the worst of the pandemic.133 Even so, the school-year athletic calendar was marked by cancellation and rescheduling because of positive covid tests.134 Colleges also face the potential risk of legal liability if athletes contract covid-19 while playing, particularly as the NCAA has banned them from requiring players to sign a liability waiver.135
To protect against the virus, many US colleges have announced they will only allow vaccinated students back onto campus in autumn 2021. In July 2021, a US federal judge ruled that vaccination mandates were legal for public universities, denying the request for an injunction brought by students at Indiana University who argued the vaccination mandate infringed their right to liberty under the Fourteenth Amendment.136 In a lengthy opinion, the judge ruled that the government still had the authority to require public health measures such as vaccinations under the century-old Jacobson framework, though these measures must still pass constitutional muster.137 The judge explained the vaccine mandate must be evaluated under a rational basis review. This is the type of review applied to US laws that do not impair a fundamental right, and though the judge recognised the students had a valid liberty interest in refusing unwanted medical care, he held that this interest was not a 'fundamental' right.138 Because the mandate was rationally connected to the protection of public health, it survived review.139 This is the first ruling directly addressing the constitutionality of these university vaccine mandates, but it will likely influence future rulings and the decision-making of publicly funded universities and similar entities.140
Covid-19 also resulted in significant litigation over the applicability of force majeure clauses in contracts. A force majeure clause determines the obligations of the parties to a contract that is interrupted by some outside disaster such as a pandemic. To be effective, these clauses typically must define the anticipated breach that requires excusal, the type of disruptive events, a causal connection between the event and the breach, and what will happen if performance is excused.141 Invocation of force majeure clauses increased during the pandemic for obvious reasons. Courts adjudicating these clauses have interpreted them strictly,142 but several US judges have found force majeure clauses to apply to covid specifically, particularly clauses that are written broadly or that named pandemics as a contemplated risk.143
Force majeure clauses offered sports leagues a means of escaping liability after they were forced to cancel games at the beginning of the pandemic.144 In some cases, these clauses facilitated the postponement of ticket refunds, and in some cases enabled teams or leagues to avoid repayment entirely.145 Force majeure clauses also significantly impacted covid-driven negotiations between players and leagues. Several CBAs, including that of the NBA, contain clauses that allow leagues to renegotiate player salaries under force majeure. The NBA and National Basketball Players Association renegotiated the CBA throughout 2020 under this provision after NBA revenue for the year collapsed.146 On 29 December 2020, MLS also invoked force majeure to force renegotiation of its CBA owing to the slower than expected vaccine rollout.147 MLS and the Players Association eventually reached a deal that avoided salary cuts for the players, but also postponed increases in compensation.148
ii Athlete protests against racial injustice
Athlete protests against racial discrimination spread from the United States to the world stage with the start of the 2021 Olympics in Tokyo. Over the past five years, many American athletes have protested against racism by 'taking the knee' during the national anthem, a gesture that started with NFL quarterback Colin Kaepernick in 2016.149 In 2020 and 2021, players outside the United States, including in European football leagues, started taking the knee when mass protests sprung up in the US following the death of George Floyd, often to hostility from fans.150
The International Olympics Committee announced just before the start of the games that it would loosen restrictions on protests.151 The beginning of the Olympics was therefore marked by athletes from not only the United States, but also Britain, Chile, Sweden and other countries kneeling to protest racial injustice.152
US sports teams continued their move away from racially offensive team names. Following the lead of the Washington Redskins, who have adopted the temporary moniker Washington Football Team, the Cleveland Indians in July 2021 announced their new name as the Cleveland Guardians.153
The prevalence of protests at sporting events in the United States suggests that we can continue to expect litigation based on the efforts of teams and stadium owners to police speech by players or fans. Some stadiums have ejected particularly disruptive protesters, such as fans at a Red Sox game who hung a banner stating 'Racism is as American as Baseball'.154 In 2017, President Trump even called on teams to fire players who protested during the national anthem (none did so).155
The First Amendment to the Constitution of the United States, which protects against government impositions on speech, normally does not apply to private organisations such as sports clubs. However, there are several cases holding that some franchises are so intertwined with public ownership that they may effectively be acting as arms of the government. In 2018, the Chicago Bears suspended the season tickets of a fan for wearing a rival team's jersey, and the fan sued for violation of his First Amendment rights.156 The judge denied the team's motion to dismiss because the fan sufficiently alleged that the stadium itself was publicly financed, which made his claim viable under the 'state action' doctrine, a 'fact-intensive' inquiry into the extent to which the government was responsible.157 Similarly, a 1978 case held that the Yankees could be subject to a Fourteenth Amendment claim for discrimination because they leased Yankee Stadium from New York City.158 Theses case suggests other owners or stadiums facing free speech lawsuits that follow restrictions on protestors may not be able to dismiss them out of hand, and we expect this area of law to develop in the near future.
iii Equal pay
Women playing professional sports continue to be paid far, far less than men.159 The US Woman's soccer team has been leading the fight to reduce this gap, with a group of players pursuing a suit against the US Soccer Federation alleging violations of the Equal Pay Act and Civil Rights Act of 1964.160 The female soccer players claim that men were eligible for much larger performance bonuses for successful seasons than the women, even though the women's team were far more successful with four World Cup wins.161 The pay disparity in international soccer is notably large; the prize pool for the men's 2018 FIFA tournament was US$400 million, and for the women's tournament in 2019 it was US$30 million.162
The judge at the district court level granted summary judgment to the Soccer Federation in 2020, reasoning that the differences in pay structure were due to different CBAs signed by the men's and women's unions, and that the women actually received more payment per game than the men.163 At the time of writing, the players were in the process of appealing the ruling to the Ninth Circuit, arguing the decision did not take into account their greater success on the field.164 This comes after the players and the Federation settled claims that they were subject to unequal working conditions.165
The soccer players' quest for equal pay has taken them as far as the White House. Megan Rapinoe and Margaret Purce of the women's team met with President Joe Biden to speak on the topic of equal pay on 24 March 2021. The date was significant as 'Equal Pay Day', the date past the New Year the average woman must work in order to earn as much as a man in the same field would make in one year.166
While the soccer players are the first to file a major lawsuit for equal pay, women in other sports have secured increased compensation for women through collective action. In 2020, the Women's National Basketball Association players' union negotiated a dramatic increase in salaries and benefits after players renounced their previous CBA because of inequity between pay for men and women.167 Similarly, in 2017, the USA women's national hockey team won better pay after threatening to boycott the championship.168
Women in tennis, beginning with the activism of Billie Jean King and other professionals in the 1970s, have been able to secure equal prize payouts in the four Grand Slam tournaments.169 Pay for other tournaments remains unequal, however, and there are many more major tournaments for men each year than for women. As a result, there is still a significant pay gap between the genders overall.170
It is likely the soccer players will not be the last to file lawsuits to close the gender-based pay gap that persists in every major sport. The district court ruled in favour of the Soccer Federation based on the specific facts of that case, which means that, despite the players' earlier loss, the lawsuit can provide a framework for future litigation regardless of the outcome of the appeal.
iv Name, image and likeness
Giving into pressure from state legislatures and the courts, on 1 July 2021, the NCAA officially suspended rules that prevented student athletes from profiting from their 'name, image and likeness' (NIL).171 This suspension will allow student athletes to accept endorsement deals, market their own brands directly and monetise their social media accounts, all of which were previously banned.172
The foundation for this change dates back to the case of O'Bannon v. NCAA in 2015. The plaintiffs were Ed O'Bannon and Sam Keller, former college athletes who learned their images were being used without their knowledge in sports video games produced by Electronic Arts.173 Electronic Arts had licensed their images from the NCAA, which banned the athletes themselves from profiting off their NILs in order to protect the tradition of amateurism.174 The plaintiffs challenged this restriction as an illegal restraint on trade under the Sherman Act. The Ninth Circuit agreed, holding that under the rule of reason it was more restrictive than necessary, though the court stopped short of allowing payment from schools to students for their NIL rights.175
Next, individual US states began to take action in the absence of an NCAA rule change. In 2019, California was the first state to pass a law that would overrule NCAA restrictions preventing athletes from profiting from their NIL.176 The NCAA strongly opposed the measure and threatened to bar California schools from competing (though it eventually backed off).177 By July 2021, 22 other states had passed laws freeing athletes from NIL restrictions.178 Many of those states had marked 1 July 2021 as the effective date of the new legislation, which helps explain the timing of the NCAA's capitulation.179
The NCAA's decision will allow the most elite college athletes to earn major profits. These athletes could earn six-figure sums while still in school through revenue streams such as Instagram advertising and direct endorsements.180 And even average athletes could stand to earn $1,000 or more per year as payment from Electronic Arts Sports and other game publishers that want to license the NIL of entire teams.181
v Non-fungible tokens
Professional sports leagues, led by the NBA, are building on their old business of selling collectible trading cards with new digital cards using non-fungible token (NFT) technology. NFTs are a type of digital asset with a unique signature anchored by blockchain, which allows every copy of the asset to be tracked and traded.182 While digital assets can easily be copied, the unique signature cannot, which creates scarcity and, hence, collectability.183
Since 2019, the NBA has published NFTs called Top Shot Moments that depict gameplay and players.184 The NBA publishes limited print runs of many of these Moments, causing rare copies to be worth thousands of dollars or more.185 A video of LeBron James dunking has sold for over US$210,000, for instance.186 While soccer NFTs have drawn even higher prices in Europe, the NBA Top Shots remain well ahead of other sport NFTs in popularity in the United States, at least for now.187
Outlook and conclusions
Adjustment to and recovery from covid-19 remains a near-term focus, but as both professional and college sports slowly and hopefully return to full form, we expect to see continued developments in each of these areas of US sports law. Athletes and teams remain eager to compete, fans remain as enthusiastic and outspoken as ever, and sports continue to provide the context for a vibrant and wide spectrum of legal disputes.
1 Tara Lee is a partner and Nathan Swire is an associate at White & Case, LLP.
2 Usman Shaikh, 'Is Major League Soccer's Corporate Structure the Future of Sports Leagues?', US Law Group (last visited 27 July 2021), https://uslawgroupinc.com/is-major-league-soccers-corporate-structure-the-future-of-sports-leagues/.
3 Anthony Effinger, 'Thinking of Buying a Pro Sports Team? 10 Things Successful Owners Think You Should Know', Robb Report, 1 May 2021, https://robbreport.com/lifestyle/sports-leisure/buying-sports-team- owners-1234608432/.
4 Weston Blasi, 'Here are the public sports teams you can invest in', MarketWatch, 12 February 2021, www.marketwatch.com/story/the-boston-red-sox-will-no-longer-be-taken-public-here-are-the-sports- franchises-you-can-invest-in-11613070621.
5 Jabari Young, 'The NBA's private equity plan is in motion and it's betting on the allure of sports ownership', CNBC, 25 January 2021, www.cnbc.com/2021/01/25/the-nbas-private-equity-plan-is-in-motion-and- its-betting-on-the-allure-spownership.html.
6 Shaikh, footnote 2.
7 Emily Chan, 'Amateur Athletic Organisations', Nonprofit Law Blog, 21 February 2009, https://nonprofitlawblog.com/amateur-athletic-organisations/.
8 Alec Fornwalt, 'Should Congress Reconsider the Tax Exemption of Pro Sports Organisations?', Tax Foundation, 20 July 2018, https://taxfoundation.org/congress-reconsider-tax-exemption-pro-sports-organisations/.
10 Nick Greene, 'The Big Ten's Big Business', Slate, May 10, 2018, https://slate.com/business/2018/05/ the-big-ten-ncaa-pac-12-and-other-conferences-are-insanely-lucrative.html.
11 Glenn M Wong, Essentials of Sports Law, 746, 747-48 (4th ed., 2010).
13 Walter T Champion, Jr, Fundamentals of Sports Law, Section 14:4 (2d ed., 2016).
14 National Football League, Personal Conduct Policy: League Policies for Players 2016 at 2 (2016), https://static.nfl.com/static/content/public/photo/2017/08/11/0ap3000000828506.pdf.
15 ibid. at 3-4.
16 id at 5-7.
17 NFL & NFLPA, Collective Bargaining Agreement 2020 Article 46 1(e), 5 March 2020, https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf.
18 NBA, Collective Bargaining Agreement Article XXXI Section 9 (2017), https://cosmic-s3.imgix.net/ 3c7a0a50-8e11-11e9-875d-3d44e94ae33f-2017-NBA-NBPA-Collective-Bargaining-Agreement.pdf.
19 ibid. at 5(b), (b).
20 See, e.g, NBA CBA, footnote 18, at Article XXXI Section 6.
21 Adriano Pacifici, 'Scope and Authority of Sports League Commissioner Disciplinary Power: Bounty and Beyond', 3 Berkeley J Ent & Sports L, 93, 153 (2014).
22 29 USC Section 141 et seq.
23 9 USC Section 1 et seq.
24 United Paperworkers Int'l Union v. Misco, Inc, 484 US 29, 38 (1987).
25 NFL Mgmt Council v. NFL Players Ass'n, 820 F.3d 527, 532 (2d Cir 2016).
26 944 A.2d 630, 641 (NJ 2008).
27 20 COA2d Section 361 (2017).
28 Brett Celedonia, 'Flying Objects: Arena Liability for Fan Injuries in Hockey and Other Sports', 15 Sports Law J, 115, 117 (2008).
29 967 SW2d 209, 213 (Mo Ct App 1998).
30 State v. Shelley, 929 P2d 489, 491 (Wash App 1997).
31 ibid. at 494.
32 Roberts v. THE Ins Co, 2016 WI 20 (Wis 2016).
33 383 P.2d 441 (Cal 1963).
34 Mario R Arango and William R Trueba Jr, 'The Sports Chamber: Exculpatory Agreements Under Pressure', 14 U Miami Ent & Sports L Rev 1, 12-16 (1997).
35 Troy Graham, 'Phils Security Puts Police on Sideline', Philadelphia Inquirer, 6 May 2010, www.inquirer.com/philly/news/homepage/20100506_Phils_security_puts_police_on_sideline.html.
36 Peter Funt, 'Limit Alcohol in Stadiums', Monterey County Herald, 25 May 2011, www.montereyherald.com/2011/05/25/peter-funt-limit-alcohol-in-stadiums/.
37 Ari Bloomekatz, 'Citing Adenhart case, police promise to swarm Angels Stadium in drunk driving crackdown', LA Times, 19 October 2009, https://latimesblogs.latimes.com/lanow/2009/10/police-to- swarm-angels-stadium-in-drunk-driving-crackdown-citing-adenhart-case.html.
38 Matthew Impelli, 'LSU Generates Over $2 Million In Alcohol Sales During 2019 Football Season', Newsweek, 9 December 2019, www.newsweek.com/lsu-generates-over-2-million-alcohol-sales-during- 2019-football-season-1476312.
39 Paul Steinbach, 'How Tailgating Policies Help Schools Control Game Day Alcohol Abuse', Athletic Business, July 2003, www.athleticbusiness.com/event-security/party-lines.html.
40 'North America sports market size from 2009 to 2023 (in billion US dollars)', Statista, 1 March 2021, www.statista.com/statistics/214960/revenue-of-the-north-american-sports-market/.
41 Zack Willis, 'America Only Has 4 of the Most Profitable Sports Leagues in the World', Sportscasting.com, 11 April 2020, www.sportscasting.com/america-only-has-4-of-the-most-profitable-sports-leagues-in-the-world/.
42 Statista, footnote 40.
43 17 USC Section 101 et seq.
44 John Wolohan, 'Sports broadcasting rights in the United States', Int'l Sports L J (2007), https://go.gale.com/ps/i.do?id=GALE%7CA213032954&sid=googleScholar&v=2.1&it=r& linkaccess=abs&issn=15677559&p=AONE&sw=w&userGroupName=nysl_oweb&isGeoAuthType=true.
46 'Licensed Sports Apparel Stores in the US - Market Size 2002–2026', Ibis World, 30 November 2020, www.ibisworld.com/industry-statistics/market-size/licensed-sports-apparel-stores-united-states/.
47 See NFL CBA, footnote 26, Appendix A: NFL Player Contract.
48 Jenna Mullins, '14 Crazy and Ridiculous Fines NFL Players Have Received', E! Online, 28 January 2015, www.eonline.com/news/619325/14-crazy-and-ridiculous-fines-nfl-players-have-received.
49 29 USC Section 151 et seq.
50 Uncertain Hour staff, 'What is the “Save America's Pastime Act”?', Marketplace, 17 March 2021, www.marketplace.org/2021/03/17/what-is-the-save-americas-pastime-act/.
51 Fundamentals, footnote 13, Section 16:2.
52 ibid. Section 16:3.
53 'Love of the Game', Nike News, 16 June 2017, https://news.nike.com/news/jordan-converse-love-of- the-game.
54 See, e.g., NFL CBA Article 9.
55 ibid. at Sections 1, 2.
56 Dave McMenamin, 'Agent: LeBron James, Lakers agree to two-year, $85 million extension', ESPN, 2 December 2020, www.espn.com/nba/story/_/id/30436210/agent-lebron-james-lakers-agree-two-year-85-million-extension.
57 Anthony Castrovince, 'The “Santo Clause”: No-trade provisions reshape market', MLB.com, 10 December 2016, www.mlb.com/news/mlb-no-trade-clauses-stop-deals-alter-market-c210842280.
59 See Armstrong v. Tygart, 886 F Supp 2d 572, 574-75 (WD Tex 2012).
60 15 USC Section 1 et seq.
61 ibid. Section 1.
62 See Copperweld Corp v. Independence Tube Corp, 467 US 752, 768 (1984).
64 ibid. (citing Continental TV, Inc v. GTE Sylvania Inc, 433 US 36 (1977); Chicago Board of Trade v. United States, 246 US 231 (1918)).
65 15 USC Section 17; 29 USC Section 20.
66 29 USC Section 101 et. seq.
67 Betts Cadillac Olds, Inc, 96 NLRB 268, 286 (1951).
68 United States v. Hutcheson, 312 US 219 (1941).
69 Brown v. Pro Football, Inc, 518 US 231 (1996).
70 543 F.2d 606 (8th Cir 1976).
71 ibid. at 610-11.
72 See Brady v. NFL, 640 F.3d 785, 788 (8th Cir) (per curiam).
73 ibid. at 794; 'NFL Clubs Approve Comprehensive Agreement', NFL.Com, 21 July 2011, www.nfl.com/news/nfl-clubs-approve-comprehensive-agreement-09000d5d820e6311.
74 See Steven Malanga, 'Bench the NFL', City-Journal.org, 28 September 2017, www.city-journal.org/html/bench-nfl-15465.html?wallit_nosession=1.
76 560 US 183 (2010).
77 468 US 85, 102, 104, 120 (1984).
78 See, e.g., Smith v. NCAA, 139 F.3d 180 (3rd Cir 1998); Banks v. National Collegiate Athletic Ass'n, 977 F.2d 1081 (7th Cir 1992); McCormack v. National Collegiate Athletic Asso, 845 F.2d 1338 (5th Cir 1988).
79 594 US ___ (2021) (slip op. at 19).
80 ibid. at 27.
81 594 US ___ (2021) (slip op.) (Kavanaugh, concurring).
82 Alan Pogroszewski, 'When is a CPA as Important as your ERA? A Comprehensive Evaluation and Examination of State Tax Issues on Professional Athletes', 19 Marq Sports L Rev 395, 397 (2009) (citing Cohn v. Graves, 300 US 312-13 (1920)).
83 ibid. at 406-407.
84 Comptroller of the Treasury v. Wynne, 135 S. Ct. 1787 (2015).
85 Internal Revenue Service, Taxation of Foreign Athletes and Entertainers, 16 February 2021, www.irs.gov/individuals/international-taxpayers/taxation-of-foreign-athletes-and-entertainers.
86 26 USC Section 164(3).
87 Internal Revenue Service, Help for Foreign Athletes and Entertainers, 16 February 2021, www.irs.gov/businesses/international-businesses/help-for-foreign-athletes-and-entertainers.
88 Athena P Constantinou, 'Athletes With International Sports Careers – A Tax Perspective', Sports Financial Literacy Academy, 6 November 2019, https://moneysmartathlete.com/2019/11/06/athletes-with- international-sports-careers-a-tax-perspective/.
89 21 USC Section 844; see US Department of Justice, Drug Enforcement Administration, Lists of: Scheduling Actions Controlled Substances Regulated Chemicals, July 2021, www.deadiversion.usdoj.gov/schedules/orangebook/orangebook.pdf.
90 L Elaine Halchin, Cong Research Serv, RL32894, Anti-Doping Policies: The Olympics and Selected Professional Sports (2007).
91 Cliff Corcoran, 'Fifteen years ago today, Steve Wilstein first shed light on the Steroid Era', Sports Illustrated, 22 August 2013, www.si.com/mlb/2013/08/22/steve-wilstein-mark-mcgwire-1998-steroid-era.
93 Craig Calcaterra, 'MLB, MLBPA announce stronger testing, harsher penalties for PEDs', NBC Sports, 28 March 2014, https://mlb.nbcsports.com/2014/03/28/mlb-mlbpa-announce-stronger-testing- harsher-penalties-for-peds/.
94 Nancy Gay, 'Steroids spotlight turns to football', SF Gate, 27 October 2006, www.sfgate.com/sports/article/Steroids-spotlight-turns-to-football-2548741.php.
95 Andy Clayton, 'NFL for first time says HGH testing has resulted in positive tests', NY Daily News, 15 September 2017, www.nydailynews.com/sports/football/nfl-1st-time-hgh-testing-resulted-positive- tests-article-1.3498095.
96 John Maakaron, 'New NFL CBA Makes Changes to Drug Policy', Sports Illustrated, 15 March 2020, www.si.com/nfl/lions/news/new-nfl-cba-makes-changes-to-drug-policy.
97 Nick O'Malley, 'NFL suspensions 2018: How many players have been punished for PEDs, drugs and domestic violence?', Mass Live, 17 September 2019, www.masslive.com/sports/erry-2018/09/8db0e43a226314/nfl-suspensions-2018-how-many.html.
98 Gay, footnote 94.
99 See Public Law 107-67, 107th Cong Section 644.
101 See Armstrong, 886 F Supp 2d at 575-76, 587, 591.
102 'Sha'Carri Richardson won't run at Tokyo Olympics after being left off US relay list', ESPN, 6 July 2021, www.espn.com/olympics/story/_/id/31772245/shacarri-richardson-run-tokyo-olympics-being-left-us- relay-list.
103 Ivan Pereira, Haley Yamada, 'Sha'Carri Richardson's Olympic suspension turns to heated debate on cannabis', ABC News, 8 July 2021, https://abcnews.go.com/Sports/shacarri-richardsons-dashed-olympic- hopes-ignite-debate-cannabis/story?id=78635258.
104 Emily Kaplan, 'How weed became “whatever”: Leagues are ditching old policies', ESPN, 30 April 2020, www.espn.com/nfl/story/_/id/29114415/future-marijuana-drug-policy-nfl-pro-sports.
105 US Track & Field Athlete Sha'Carri Richardson Accepts Sanction for Anti-Doping Rule Violation, United States Anti-Doping Agency, 2 July 2021, www.usada.org/sanction/shacarri-richardson-accepts-doping-sanction/.
106 Press Release, '23.2 Million Americans to Wager on Super Bowl LV', American Gaming Association, 2 February 2021, www.americangaming.org/new/23-2-million-americans-to-wager-on-super-bowl-lv/.
107 Wayne Perry, 'US Sports Bet Revenue Could Hit $3B in 2021; NY Backs Mobile', Associated Press, 6 January 2021, https://apnews.com/article/new-york-legislation-coronavirus-pandemic-sports- betting-79a9dfd8394371e2e3f0b66c3d7a34e4.
108 138 S Ct 1461 (2018).
109 28 USCS Section 3702(1).
110 Murphy, 138 S Ct at 1478.
111 ibid. at 1482-85.
112 See Troy Lambert, 'Supreme Gamble: The Professional and Amateur Sports Protection Act', Huffington Post, 18 July 2017, www.huffpost.com/entry/supreme-gamble-the-professional-and-amateur-sports_b_596e31b6e4b05561da5a5ae6.
114 Ulrik Boesen, 'States Continue to Bet on Sports', Tax Foundation, 17 June 2021, https://taxfoundation.org/states-sports-betting-tax/.
115 Jackson Brainerd, 'The Early Bets Are In: Is Sports Betting Paying Off?', National Conference of State Legislatures, 1 March 2021, www.ncsl.org/research/fiscal-policy/the-early-bets-are-in-is-sports- betting-paying-off.aspx.
116 Michael Long, 'Chicago Cubs and DraftKings pen 'US$100m' betting deal', Sports Pro Media, 4 September 2020, www.sportspromedia.com/news/chicago-cubs-draftkings-betting-mlb-sponsorship.
117 Sam Carp, 'NBC and PointsBet go all in on 'US$500m' sports betting partnership', Sports Pro Media, 28 August 2020, www.sportspromedia.com/news/nbc-pointsbet-sports-betting-partnership- olympics-golf-nfl-nhl.
118 18 USC Section 224.
119 Jodi Balsam, 'Criminalizing Match-Fixing as America Legalizes Sports Gambling', 31 Marquette Sports L Rev 1, 10-11 (2020).
120 ibid. at 12.
121 ibid. at 20.
123 United States v. Donaghy, 570 F Supp 2d 411, 415-416 (EDNY 2008).
124 Amy Feldman, 'Ticket Scalping Laws Vary From State To State', CBS Philly, 8 April 2015, https://philadelphia.cbslocal.com/2015/04/08/ticket-scalping-laws-vary-from-state-to-state/.
125 Zack Guzman, 'The surreptitious rise of the online scalper', CNBC, Mar. 4, 2015, www.cnbc.com/2015/03/04/online-ticket-resellers-the-surreptitious-rise-of-the-online-scalper.html.
126 S.3183 – BOTS Act of 2016, 114th Congress (2016).
127 Federal Trade Commission, FTC Brings First-Ever Cases Under the BOTS Act, 22 January 2021, www.ftc.gov/news-events/press-releases/2021/01/ftc-brings-first-ever-cases-under-bots-act.
128 See Steve Silton, Samuel Mogensen, The Sports Law Review: USA, The L Revs (2000).
129 Kevin Patra, 'NFL informs clubs that COVID-19 outbreaks among unvaccinated players could lead to forfeited games', NFL, 22July 2021, www.nfl.com/news/nfl-covid-19-outbreaks-unvaccinated-players- forfeit-cancelled-game.
130 Grant Gordon, 'NFL, NFLPA agree to updated COVID-19 protocols for training camp, preseason', NFL, 16 June 2021, www.nfl.com/news/nfl-nflpa-agree-to-updated-covid-19-protocols-for-training- camp-preseason.
131 Dan Cancian, 'NFL COVID Vaccine Plans for 2021 Season Criticized by DeAndre Hopkins, Jalen Ramsey', Newsweek, 25 July 2021, www.newsweek.com/nfl-covid-19-vaccine-plans-criticized-deandre-hopkins-jalen-ramsey-1612441.
132 '23rd MLB team reaches 85% COVID vaccinations as shots slow', Associated Press, 25 June 2021, https://apnews.com/article/nyc-state-wire-health-coronavirus-pandemic-baseball-mlb- a954e214d615070e9593e72e140cd158.
133 Greg Johnson, 'NCAA DI Council approves moving fall championships to the spring', NCAA, 4 November 2020, www.ncaa.com/news/ncaa/article/2020-09-16/ncaa-di-council-approves-moving- fall-championships-spring.
134 'The coronavirus and NCAA sports: NCAA reopening plans, program cuts, more', ESPN, 18 November 2020, www.espn.com/college-football/story/_/id/29036650/the-coronavirus-college- sports-ncaa-reopening-plans-latest-news-program-cuts-more.
135 Markian Hawyluk, 'How post-COVID-19 risks might change sports as we know them', ESPN, 2 April 2021, www.espn.com/college-sports/story/_/id/31177428/how-post-covid-19-risks-change- sports-know-them.
136 Klaassen v. Trs of Ind Univ, 2021 US Dist LEXIS 133300, 21-cv-238 (ND Ind 18 July 2021).
137 ibid. at *43-58 (citing Jacobson v. Commonwealth of Massachusetts, 197 US 11, 24-25, (1905)).
138 ibid. at *58-67.
139 ibid. at *103-04.
140 Elizabeth Redden, 'Judge Sides With Indiana U in Vaccine Mandate Case', Inside Higher Ed, 20 July 2021, www.insidehighered.com/news/2021/07/20/federal-judge-upholds-indiana-universitys-covid-19-vaccine-requirement.
141 Paula Bagger, 'The Importance of Force Majeure Clauses in the COVID-19 Era', American Bar Association, 25 March 2021, www.americanbar.org/groups/litigation/committees/commercial-business/boilerplate-contracts/force-majeure-clauses-contracts-covid-19/.
142 ibid. (citing Gibson v. Lynn University, No. 20-cv-81173 (SD Fla 29 November 2020); NetOne, Inc v. Panache Destination Management, Inc, No. 20-cv-00150-DKW-WRP (D Haw 5 June 2020)).
143 ibid. (citing JN Contemporary Art LLC v. Phillips Auctioneers LLC, No. 20-cv-4370 (SDNY 16 December 2020); Zhao v. CIEE, Inc, No. 2:20-cv-00240-LEW (D Me 31 August 2020)).
144 Jasper Wauters, Alexandre Mazuranic, 'COVID-19 and Cancellations of Sports Events: A Story of Force Majeure and the Search for Compensation', White & Case, 2 April 2020, www.whitecase.com/publications/alert/covid-19-and-cancellations-sports-events-story-force-majeure-and-search.
145 Liliane Cooper, 'No Fans Needed – An Exploration of the Long-Term Implications of the Coronavirus on Seasonal Ticket Sales by Sports Teams', Jeffrey S Moorad Sports L J, Villanova University, 12 April 2021, www1.villanova.edu/villanova/law/academics/sportslaw/commentary/mslj_blog/2021/NoFansNeeded.html.
146 Blake Schuster, 'NBA, NBPA Reportedly Extend CBA Termination Deadline to Monday', Bleacher Report, 6 November 2020, https://bleacherreport.com/articles/2916882-nba-nbpa-reportedly-extend-cba- termination-deadline-to-monday.
147 Jeff Carlisle, 'MLS players reach tentative CBA deal with league pending vote', ESPN, 5 February 2021, www.espn.com/soccer/major-league-soccer/story/4308245/mls-players-reach-tentative-cba-deal-with- league-pending-vote.
149 'NFL player protests sweep league after President Donald Trump's hostile remarks', USA Today, 25 September 2017, www.usatoday.com/story/sports/nfl/2017/09/24/donald-trump-nfl-player-protests-national-anthem-week-3-response/697609001/.
150 John Sinnott, 'Football's coming home, but taking a knee divides England fans', CNN, 9 June 2021, www.cnn.com/2021/06/05/football/euro-2020-england-taking-a-knee-spt-intl/index.html.
151 Graham Dunbar, 'IOC gives athletes more scope for protest at Tokyo Olympics', Associated Press, 2 July 2021, https://apnews.com/article/tokyo-olympic-games-2020-tokyo-olympics-race-and- ethnicity-sports-3f8d420b7e94bbafa037d22327efb38b.
152 Bill Chappell, 'Olympians Take A Knee Against Racism, Under New Policy Allowing Protests', NPR, 21 July 2021, www.npr.org/sections/tokyo-olympics-live-updates/2021/07/21/1018811516/players-take- a-knee-at-tokyo-olympics-as-the-first-competitions-kick-off.
153 'Cleveland changing name from Indians to Guardians after 2021 season', ESPN, 23 July 2021, www.espn.com/mlb/story/_/id/31868331/cleveland-changing-name-indians-guardians.
154 'Fans removed from Fenway Park after lowering “Racism is as American as baseball” sign', ESPN, 13 September 2017, www.espn.com/mlb/story/_/id/20697346/fans-removed-fenway-park-seats- racism-american-baseball-sign.
155 USA Today, footnote 149.
156 Beckman v. Chi Bear Football Club, 2018 US Dist LEXIS 240853, No. 17-cv-04551 (ND Ill 11 December 2018).
157 ibid. at *16.
158 Ludtke v. Kuhn, 461 F Supp 86, 93 (2d Cir 1978).
160 Emily Kaplan, 'US women's soccer equal pay fight: What's the latest, and what's next?', ESPN, www.espn.com/sports/soccer/story/_/id/27175927/us-women-soccer-equal-pay-fight-latest-next.
163 Morgan v. United States Soccer Fed'n, Inc, 445 F Supp 3d 635, 656 (CD Cal 2020).
164 'US women soccer players appeal decision against equal pay', Associated Press, 14 April 2021, https://apnews.com/article/international-soccer-soccer-womens-soccer-lawsuits-court-decisions-d1af156f3a00671287079416c200b779.
166 Josh Boak, 'Women's soccer stars join Biden to promote closing pay gap', Associated Press, https://apnews.com/article/rapinoe-purce-join-biden-equal-pay-day-322a49a0573cab9135bbafa34900b065.
167 Peter Keating, 'Analysis: What equal pay in sports really means, as the fight goes on for US women's soccer', ESPN, 14 May 2020, www.espn.com/espnw/story/_/id/28971949/analysis-equal-pay-sports-really-means- fight-goes-us-women-soccer.
168 Stephen Whyno, 'USA Hockey, women's players reach agreement to avoid boycott', Associated Press, 28 March 2017, https://apnews.com/article/b246920103b04859b6006a9acd8f2103.
169 Jesse Campigotto, '50 years after Billie Jean King's rebellion, is tennis pay really equal?', CBC Sports, 23 September 2020, www.cbc.ca/sports/the-buzzer-tennis-billie-jean-king-pay-equity-1.5736169.
171 Dan Murphy, 'NCAA clears student-athletes to pursue name, image and likeness deals', ESPN, 30 June 2021, www.espn.com/college-sports/story/_/id/31737039/ncaa-clears-student-athletes- pursue-name-image-likeness-deals.
172 802 F 3d 1049 (9th Cir 2015).
173 ibid. at 1055.
175 ibid. at 1079.
176 Alan Blinder, 'NCAA Athletes Could Be Paid Under New California Law', New York Times, 21 June 2021, www.nytimes.com/2019/09/30/sports/college-athletes-paid-california.html.
178 'Tracker: Name, Image and Likeness Legislation by State, Business of College Sports', 14 July 2021, https://businessofcollegesports.com/tracker-name-image-and-likeness-legislation-by-state/.
180 AJ Maestas, Jason Belzer, 'How Much Is NIL Worth To Student Athletes?', Athletic Director U (last visited 24 July 2021), www.athleticdirectoru.com/articles/how-much-is-nil-really-worth-to-student-athletes/.
182 Rakesh Sharma, 'Non-Fungible Token (NFT) Definition', Investopedia, 8 March 2021, www.investopedia.com/non-fungible-tokens-nft-5115211.
184 Jabari Young, 'People have spent more than $230 million buying and trading digital collectibles of NBA highlights', CNBC, 2 March 2021, www.cnbc.com/2021/02/28/230-million-dollars-spent- on-nba-top-shot.html.
186 Andrew Buller-Russ, 'The 10 most expensive NBA Top Shot digital cards right now', SportsNaut, 23 July 2021, https://sportsnaut.com/10-most-expensive-nba-top-shot-digital-cards-now/.
187 Fang Block, 'Sports NFTs Are Becoming a Hot Commodity', Barrons, 21 July 2021, www.barrons.com/articles/sports-nfts-are-becoming-a-hot-commodity-01626902423.