Sports Law Topics to Follow in 2016

*For a stellar review on all of 2015's exciting happenings in the legal world of sports, check out my friend Ian's article on The Sports Esquires blog here. For what I predict to be some of 2016's hot topics, read on!*



The year flew by like LeBron James in his Camero,

But we must finish the final stretch like American Pharoah.

From FIFA's corrupt Achilles to Brady's deflated ball,

I bet you thought you've seen it all.

The law never rests, in the court or on the field,

So you know many cases have yet to be sealed.

but since 2015 had stories that became routine,

We can prep and glance ahead at 2016!

1. Fantasy Sports

Fantasy sports will continue to receive a great deal of attention, but it can be for more than the FanDuel and DraftKings lawsuits. Yes, daily fantasy sports (DFS) is under legal attack across the nation and will continue to be so through 2016 as many writers have been chronicling. Because of the gray area DFS has found, do not be surprised if new forms of fantasy sports emerge to fill the void (a) that DFS may leave altogether if deemed illegal, or (b) that the participants create by leaving due to the legal uncertainty.

For example, FourPlay Football puts a fresh take on what is considered "fantasy sports." In traditional Roto, fantasy football, and fantasy hockey, league members draft individual players to fill the roster spots that the league commissioner sets up. Under the Unlawful Internet Gambling Enforcement Act and the court holding in Humphrey v. Viacom, Inc. (which I elaborated on here), this style of fantasy sports is legal pretty much because the federal government said so. Keeping this in mind, FourPlay Football says, "Fantasy Football has taken away everything we love about the sport. Lets get back to cheering for our favorite teams, and not just a few all-star players." You create a league ("college" or pro), invite friends, and set four picks among all the match ups that week. This is more like a pick-em since you work with the points and must get all four selections correct to win, and then all the losers pay all the winners.

Who knows, a new take on what can constitute fantasy sports may or may not catch on, and it may even have its own legal challenges (though I believe this take is legal after seeing how it operates). Regardless, it will be exciting to follow and see how the industry evolves in the upcoming year.

2. Transgender Participation in Athletics

"Stepping into the spotlight, Caitlyn Jenner (formally Bruce Jenner) was honored with the Arthur Ashe Courage Award for transcending sports during the ESPY Awards ceremony in Los Angeles. Her speech called out for respect of people within the transgender community."

In her inspirational ESPY award speech, Caitlyn Jenner said, "There have been so many who have traveled this road before me... I also want to acknowledge all the young trans athletes who are out there - given the chance to play sports as who they really are." There is a minor issue with that, regrettably. Here are some facts that expose the reality of the matter:

  • In 2010, the NCAA adopted the "NCAA Inclusion of Transgender Student-Athletes" that denotes "Policy Recommendations for Including Transgender Student-Athletes" and "Best Practices Recommendations for Implementing Transgender Student-Athletes Inclusion Policies" to help member institutions reform their practices.
  • One of the NCAA's policy recommendations states the following: "A trans female (MTF) student-athlete being treated with testosterone suppression medication ... for the purposes of NCAA competition may continue to compete on a men's team but may not compete on a women's team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment."
  • Another one states that a trans male (FTM) student-athlete not taking testosterone related to transitioning can participate in either a men's or women's team, but a trans female (MTF) cannot participate in a women's team if she is not taking hormone treatments.
  • USAToday Sports conducted a survey asking 75 Division I programs whether they had adopted the NCAA's recommendations. Only 50 responded. Of those 50 member institutions, 10 have enacted formal policies that specifically address inclusion of transgender student-athletes. Of the other 40, 21 claim to be still reviewing the NCAA recommendations. One institution admitted "they were not aware of a current policy on the topic and to their knowledge, have never discussed the topic."
  • High school policies and the resulting levels of discrimination vary immensely, as depicted in the image below.

Right now, many trans athletes still do not have the chance to play sports as who they really are because the guidelines and procedures implemented, if at all, have not done as much as they could to advance where we are with equality. Yes, even the NCAA recommendations could use improvements, but at least the association collaborated with activists to create the final policy. Many member institutions, on the other hand, are electing to wait until they are forced to act on the issue. This reactive approach, rather than a proactive approach, unreasonably places the burden of equality onto the students who may not want to go through the drama of being a poster-child for the trans community and just want to play sports.

  • The University of Richmond is one example of a university with a formal policy on the matter.
  • The Michigan High School Athletic Association is one example of a state high school association that has a policy, but it could use reform: "The MHSAA executive director will determine the eligibility of transgender students in MHSAA tournaments ... The document is to be provided to schools when requested on a case-by-case basis."

Hopefully Jenner's speech will have her desired effect. Personally, I hope it does. Check out the story in Nebraska. Check out this college athlete's personal experience, who participated a decade ago but highlights how treatment has not really progressed despite enacted NCAA "guidelines". What about when professional sports come across these situations? Are we really concerned about anticompetitive threats at the recreational level?

The law leaves so much untapped potential to accomplish justice in the very near future if administrators begin to step up and collaborate with activists to directly attack the questions and sift out the fears. In the meantime, the issues accompanying transgender athletes such as locker rooms/restrooms, Title IX, the faux "competitive advantage," personal legal changes, and hormonal requirements will likely be all the rage in 2016.

3. NFL Rules & Officiating

  • Deflategate, violence on and off the field, and the integrity of the game - the 2013-2014 season's hangover still lingers?
  • What is the clear interaction between all the agreements between the NFL and the NFLPA/players and the agreements each parties have with the teams and other third parties?
  • Can the commissioner wear two hats - judiciary and executive?
  • What is a "catch"? Who can participate in the discussion to determine the definition?
  • What is "pass interference"?
  • Is that thing in the referees' pockets a flag or a handkerchief? 
  • Is getting removed from calling Sunday Night Football and being reassigned to a "lesser" New England Patriots game a real punishment?
  • Is Roger Goodell a person? A dalek? A guinea pirate?

All joking aside, the NFL is a precious product that will only succeed so long as it maintains its integrity and order. Football is king in America, and it is gathering an international following apart from its yearly Super Bowl production. The controversy only makes it exciting to observe temporarily until it becomes utterly out-of-hand. It is nearing that brink. What is listed above are only a few of the questions dancing around the NFL and its constituents this season... and last season... and will continue to do so through the off-season... and these could be settled for next season if approached prudently. The NFL shenanigans are sports media's favorite thing to fixate on. Thus, there is zero doubt we will hear about every little detail and every little move (forward or backward) that takes place, even if it is only when the NFL wants us to hear about them be they true or false.

4. O'Bannon & the Student-Athlete Definition

In 2015, the NCAA got a significant win in at the appellate level where the court struck down the portion of the district court ruling that would have given student-athletes deferred cash payments of up to $5,000 per year for their right of publicity. The student-athlete lives to fight another year. For greater detail on the Ninth Circuit holding, read this. Additionally, the Ninth Circuit denied O'Bannon's petition for a rehearing, placing a delay on reaching the end of the legal battle.

The next step the player plaintiffs can take is to seek a writ of certiorari. While the chances of the Supreme Court of the United States (SCOTUS) hearing any case is small (approximately 1% of cases asking for review get accepted), one study recognizes that the Ninth Circuit, which is the court that ruled on the O'Bannon appeal, has the most cases heard in our judicial system's highest court. One reason SCOTUS may elect to hear it, if appealed up, is because SCOTUS is likely to take cases where circuits take different sides on a law (i.e., there is a circuit split). Here, the Ninth Circuit conceded in a way that it was splitting away from Seventh Circuit law. In 2016, we will see whether that happens and, furthermore, what this legal precedent means for the future of the amateur student-athlete ideal.

5. Olympics Anti-Doping Reform

Earlier this year, after the World Anti-Doping Agency (WADA) exposed "widespread, systematic and allegedly state-sanctioned doping," the International Association of Athletics Federations (IAAF) banned Russia indefinitely for the crazy amounts of doping the team's athletes were doing and for the government's program that allowed them to receive such chemical advantages. Earlier today, the European Athletics president admitted that he "cannot really see them competing in Rio" because of the short time they have to comply with the verification criteria and because of the cultural change and house cleaning that would have to take place.

Doping surely is not a problem specific to the Olympic Games, for each professional league has their own regulations and systematic procedures to ensure what each defines to be clean, fair competition. What makes the Olympics' problem noteworthy, however, is that the International Olympic Committee (IOC) wants a brand new restructured and independent anti-doping agency. The IOC recommended in its October meeting that it wants this system created in time for the October 2018 Games. This would require an amazingly rapid schedule to implement (the estimate for a new agency to take over is "three to five years") in addition to high costs, but considering the IOC made this recommendation only one month after WADA's report and also after the FIFA Scandal, maintaining confidence in sports administrators is a welcomed main priority.

How is this different from the current structure? Well, there are multiple federations per sport that manage chemical testing and results for its athletes (e.g., the International Tennis Federation, International Association of Athletics Federations), and WADA plays no more than the oversight role. Moreover, the federations have not had to pay for the testing because as part of the agreement of hosting an international competition like the Olympics, the host fronts the bill. IOC's idea is to centralize the process with WADA taking on both the testing and the oversight role and also absorbing the testing costs.

With 2016 being an Olympic Games year and with the 2018 Games being only two years away, the hasty desire to accomplish this will receive a good deal of attention. Hopefully the hasty nature will not interfere with the quality of progression toward the finalized structure. Either way, this is unmarked territory that will be interesting to follow.