Reviewing My "2018 Sports Law Hot Topics to Watch" Predictions
Congratulations, y'all. We made it through 2018! Per our usual routine here on the Sports Law Blonde blog, let’s review the 2018 sports law hot topic predictions I made back in January to (a) see whether there has been any ground made, & (b) if not, speculate on why that might be the case. So, I straight up copy-and-pasted my previous blog post and added my new comments and wisdom at the end of each section in this type style.
LET'S DO THIS.
Per usual, I would like to make my predictions regarding what topics I believe will be extra sizzlin' in 2018, but I will do so in a slightly different way. Here are brief descriptions of what each topic is, some insight as to why I have it on my predictions list, and who you can pay attention to for the latest news, updates, and analysis throughout the upcoming year:
1. SPORTS BETTING
What It Is: In a nutshell, the Professional and Amateur Sports Protection Act passed in 1992 to make sports betting illegal nationwide, save for a handful of grandfathered exceptions that had long been established prior to the law. Christie v. NCAA, informally known and reported on as the "New Jersey Sports Betting Case," is in the Supreme Court of the United States' hands now after oral arguments took place in December. Five sports leagues - the NCAA, the NFL, the NHL, the MLB, and the NBA - sued New Jersey under PASPA to enjoin a passed law that would allow sports gambling. The State defends itself by arguing that PASPA is unconstitutional under the anti-commandeering doctrine. The major issue this case analyzes is whether a federal statute that prohibits modification/repeal of state-law prohibitions on private conduct impermissibly commandeers the states' regulatory power. I know that sounds like a mouthful, and the arguments get pretty deep, but it all comes down to whether the federal government should be allowed to forbid state-sanctioned sports betting.
Why It Will Be HOT: One massive question is sweeping across the nation as the Supreme Court of the United States sits with a lawsuit & various facts presented in its hands: Should sports betting be legal? It is more likely than not that some changes to the law's current approach to sports betting will take place. What we are waiting to see are whether those changes will have a narrow or broad affect. If SCOTUS decides to have a narrow ruling, it may only affect New Jersey as it is the specific party to the lawsuit. On the other hand, if SCOTUS takes a broad ruling approach in ruling PASPA unconstitutional, other states may grab the reigns and give permitting and regulating sports betting a shot should voters approve it.
Who To Follow: Legal Sports Report (Follow @LegalSportsReport) and its main creator Dustin Gouker (Follow @DustinGouker), Dan Wallach (Follow @WALLACHLEGAL), and David Payne Purdum (Follow @DavidPurdum).
In my opinion, this was the hottest sports law topic of the year. SCOTUS published its opinion on May 14, which affected every single one of us whether we like it or not. The Court held that the Professional and Amateur Sports Protection Act unconstitutionally commandeered states' regulatory power with respect to the private conduct of sports betting. Furthermore, SCOTUS notably took this broad approach in ruling the entire act unconstitutional so that each state - not just the plaintiff’s jurisdiction, the State of New Jersey - can grab the reigns and determine for themselves whether they would like to permit and regulate sports betting. In other words, SCOTUS did NOT say that sports betting is legal, but it did say that Congress cannot take away the opportunity for states to say that sports betting is legal within their individual jurisdictions.
Seven states have legal sports betting industries that the state regulates right now: Delaware, Mississippi, Nevada, New Jersey, Pennsylvania, Rhode Island, and West Virginia. Additionally, a tribal group opened a sports book in its casino, and Arkansas voters passed a ballot measure to legalize sports betting in November. Other states are putting together pieces of legislation or considering sports betting bills as we speak, too.
This swift action is intentionally and intelligently done, in my opinion. As you can imagine, the “Big Four” (NBA, NFL, NHL, and MLB), the NCAA, and the federal government are not the biggest fans of the state-regulated sports betting concept because (a) it could make things more complicated for them and (b) they may not have as much control as they could with a federally regulated system. So, there is a bill floating around Congress that, if passed, would have minimum standards for the sports gambling industry and, more significantly, make every state law legalizing sports gambling subject to the federal government’s approval before it is enacted. You can read the drafted bill (as of December 4) here.
In just over half a year, the landscape of the sports betting industry and its real-world potential has changed drastically, which is rare in many respects because, traditionally, the law is not a fast-paced thing. This is different. This is special.
2. ATHLETE SAFETY
What It Is: It is no surprise that injury can accompany the physicality that participating in sports demands whether it is a contact or non-contact sport. Athletes are stronger than ever before, and the awareness surrounding the resulting injuries from stronger than ever contact is higher than ever before, too. Truths about Chronic Traumatic Encephalopathy (CTE), the progressive degenerative brain disease resulting from repetitive brain trauma overtime, are scary, but we are trying to understand how prevalent it can be at different life stages so we can reform sports. There is a lot of demand to reform sports to be safer, but there is also a lot of demand to keep the products on the field, court, etc. as-is. Finding that delicate balance is proving more challenging than we may have initially anticipated.
Why It Will Be HOT: The NFL is no longer alone in its fight against former players who are bringing lawsuits against the professional league they used to play. Moreover, although the highlight of athlete safety is concerning concussion/brain injury awareness, education, and prevention, the issue extends to other areas of the body as well as the overall mental well-being of athletes that, in turn, could produce physical effects. We are seeing concussion protocols fail on live television. We are seeing near-record lows of young kids entering into football programs. We are seeing high schools test out the latest technology like helmets that can help us better understand and prevent head injury. We are seeing major motion pictures, special sports news segments on shows like Dateline and Outside the Lines, opinion articles in local newspapers, and increased criticisms across social media platforms regarding serious athlete injuries. We even saw what could be the first diagnosis of CTE in a live human being. As a society, we are starting to demand more from our athletic and medical communities when it comes to athlete safety. With all the crazy stuff going on in the world right now, we are learning to voice our displeasure and do what is necessary to keep sports thriving so we can continue to enjoy participating in, cheering for, and patroning them.
Accurate. This was probably the second or third hottest topic of the year. Pretty much every contact sport had some kind of “concussion” discussion story in 2018:
The NHL and over 300 retired players reached a tentative settlement just under $19 million in the “NHL Concussion Litigation”. Similar to the concussion litigation the NFL faced a couple years ago, the former players sued the league, arguing that the league failed to protect them against head injuries or warn them of such risks involved in the game. In contrast, the settlement value itself is significantly smaller compared to that reached in the NFL litigation. Here, each player who opts in will get $22,000 and may be eligible to receive up to $75,000 in medical treatment, which hopefully can help those players get neuropsychological tests and monitor signs of CTE presently or in the future. While this finally ends the actual litigation in these cases and allows for payouts to the players and attorneys, it leaves the main question unanswered - causation. It is near impossible to prove that a player’s time specifically in the NHL caused neurological trauma. Regardless, each side had its reasons to settle, and the big takeaway is that the NHL avoided having to take any responsibility or admit fault.
Before the 2018-2019 season began, the NFL declared a three-part “call to action” plan to address the various concussion concerns: (1) increasing the use of “safer helmets”; (2) pointing out concussion warning signs to the teams to decreasing preseason concussions; & (3) working with operations to hone style of play. The plan includes concussion education and training for teams’ staff, a “targeted intervention” with seven teams that had concussion percentages during practices higher than the norm, a 107-page medical playbook for players to learn details on “concussion prevention, detection and recovery,” and a variety of rule changes to the game itself. After reviewing videos and injury data, a couple trends led to two well-known rule changes - the kickoff rule and the lowering of the helmet rule. It is now a 15-yard penalty for any player to initiate contact with an opposing player by lowering his head. Whether you like it or not, the NFL began its desperate move to keep its inherently violent game in the public opinion’s good graces, and there is no turning back.
The NBA was not able to completely avoid the concussion discussion, either. For example, the Cleveland Cavaliers’ Kevin Love was pulled per the league’s concussion protocol and missed Game 7 of the Eastern Conference finals against the Boston Celtics. He almost missed Game 1 in the Finals against the Golden State Warriors, too, but he completed the NBA’s protocol just in time. What is different about how the NBA handles concussions relative to other leagues is that, accoring to Dr. Kutcher, “the frequency of concussions has remained about the same” in the past handful of years he has been working with the league, and the league seems to more efficiently and effectively look to slightly tweak its protocol from year-to-year.
2018 saw the very first concussion lawsuit to go before a jury, too! Ploetz v. NCAA somehow made its way through the system and went to trial in June, but the trial only lasted three days before the parties reached a settlement. The settlement terms remain undisclosed, to my knowledge. Akin to the NHL Concussion Litigation settlement, the NCAA did not have to admit fault, and the NCAA’s attorney Chris Watt went as far as casting doubt on CTE during his opening statement, focusing on how the condition is still not even accepted in medical literature… *insert my eye roll here*.
Different high school athletic associations, high school institutions, and states are started to see their fair share of concussion claims this year as well. All 50 states do have laws in place for youth/high school athletics, many of which contain strong language on education, training, and removal & return-to-play criteria. You can refer the state-by-state relevant laws here.
Aside from concussions, college medical protocols received some spotlight. Notably, the University of Maryland’s actions surrounding football player Jordan McNair’s death in June. Investigations found that the coaching staff, who is supposed to look after the health and safety of the athletes, undoubtedly failed to follow the university’s protocol. This was an extreme case that had a very infrequent result, but it brought to the forefront the kinds of environments these kids work in daily. As an attorney who advocates on behalf of college athletes in all sports, I know this is not an issue exclusive to football or revenue sports, and although it is due to the saddest of circumstances, I am glad this issue is finally getting mainstream attention.
3. NCAA STUDENT-ATHLETE RIGHTS AWARENESS & ADVOCACY
What It Is: College students who participate in athletics are not classified as professionals but rather as amateurs. According to [dictionary], an "amateur" is "a person who engages in a study, sport, or other activity for pleasure rather than for financial benefit or professional reasons." The NCAA, the governing organization that dedicates itself to "the well-being and lifelong success of college athletes," operates within the spirit of its own interpretation of "amateurism", which requires student-athletes not to take part in or receive (a) contracts with professional teams; (b) salaries from participating in sports; (c) prize money greater than necessary expenditures; (d) tryouts, practice or competition, or playing with the professionals; (e) any benefits from prospective agents; (f) retaining an agent; or (g) putting off enrolling in full-time classes to participate in organized competitions. This concept is the self-proclaimed "bedrock" of college athletics because, as the NCAA preaches loud for all to hear, student-athletes are students first and athletes second.
Why It Will Be HOT: There is no way the NCAA's twisted interpretation of amateurism can hold together much longer. This has been a long time in the making, but for the past 30 years or so, college athletics has increasingly become a business. In my lifetime (note: I was a 1989 baby), colleges have made millions each year courtesy of the athletic products on the fields, courts, ice, tracks, greens, and mats (did I leave anything out?) brought to you by "amateurs". One lawsuit is continuing to move forward that y'all should pay close attention to - Jenkins v. NCAA - because it has the potential to go steps further than O'Bannon v. NCAA was able to accomplish. Similar to the above topic, with all the crazy stuff going on in the world right now, we are learning to voice our displeasure and do what is necessary and morally right to keep college sports thriving so we can continue to enjoy participating in, cheering for, and patroning them.
Who To Follow: Jenkins plaintiff counsel Jeffrey Kessler (aka "the NCAA's Worst Nightmare"), Marc Edelman (Follow @MarcEdelman), Andy Schwarz (Follow @andyhre), and the National College Players Association.
I would say this prediction totally held up as the second or third biggest sports law hot topic in 2018, and it is only gaining steam as we move from season to season, from sport to sport, and from trial toward a ruling. As I expected, former Clemson football player Martin Jenkins’ case is a must-follow. Judge Claudia Wilken, the same judge who heard O’Bannon v. NCAA in 2014, heard the oral arguments this year for “In Re: NCAA Grant-in-Aid Cap Antitrust Litigation v. NCAA”, which involves a number of cases merged together and includes lawsuits brought by former West Virginia football player Shawne Alston and Jenkins. She has not issued her opinion yet, but once she does, I know Derek Helling will be writing an article for the SLB Blog shortly thereafter! I have a feeling that she will rule in favor of the plaintiffs in some fashion. For now, y’all can check out the summary Andy Schwarz wrote on the final day of arguments in court on December 18.
In the wake of the college basketball corruption scandal, the NCAA decided 2018 was the year to slightly alter a policy concerning student-athlete rights and allow college basketball players to attain advisory agents. There are a couple important details in this policy change, though: (1) the player must request an evaluation from the NBA Undergraduate Advisory Committee, and (2) the agent must be certified by the NCAA, though until August 1, 2020. NBPA-certified agents will be automatically considered NCAA-certified to help with the transition. Unfortunately, for now at least, agents will not be able to negotiate licensing deals for those elite basketball players despite them having market value and despite how much the schools’ make off their name, image, and likeness because “amateurism”…
Additionally, to round out 2018, we saw a much higher number of college football players sitting out of bowl games. Whether it was to nurse injuries or focus on getting healthy for the draft, a lot of players decided not to gamble with their health and play in a game that may not have as much meaning attached to it because it could significantly affect their draft stock, i.e., the value they could see in the very near future in the NFL Draft.
Side Note: This subject is my bread and butter, and I am so looking forward to where this goes in 2019. It will remain a goodie for sure.
4. STATUS OF COLLEGIATE ESPORTS
What It Is: Esports is competitive multiplayer gaming with spectators and the potential to win quite a bit of money along with the bragging rights. There are multiple games organized on multiple levels among different schools and conferences that are overseen by different university departments. As it currently stands, there is not a lot of consistency from school to school, but a few esports organizations dedicated to competition at the collegiate level act in a similar way to the NCAA and are trying to bring that consistency, popularity, and highest level of "amateur" competition to the games.
Why It Will Be HOT: The NCAA is weighing the pros and cons of bringing esports under its large governance umbrella, but a lot of the competitions already work with one of a handful of the different organizations dedicated to organizing esports at the collegiate level. In a particular case, Riot works directly with the schools in its highly publicized Collegiate League of Legends matches and championship tournament. Is the NCAA necessary for the growth of esports? At the very least, is it preferable to attempt to join together for consistency's sake to have one governing body despite the fact that it may or may not know some of the intricate details of the industry that its brushed off in the past?
2018 showed us that there is a huge potential market for collegiate esports. As of 2016, only seven colleges had a varsity esports program. Now, there is a varsity esports program at 63 college institutions. Esports is a hot topic, in general, and what I initially thought would be the story of the year was gossipped about for a while, but this subject took a more intriguing path than anticipated. Word on the street was that the NCAA was curious about getting esports under its governance. In fact, it does have “significant interest" in having an esports championship, but perhaps because of the super strong opposing sentiments regarding the NCAA’s governing body structure and its “amateurism” mantra, the NCAA has not made many public moves on the subject.
At the Board of Governors’ October meeting, they focused on a few subjects: (1) sponsoring esports competitions, (2) esports programs’ placement in the institutional structure (i.e., athletic departments or another department like student affairs), and (3) what in the world an NCAA Championship would look like for esports. The NCAA stated that it “will continue to evaluate how it can best support its members as they pursue and adopt esports programs.” As many esports competitions stand, the players would not fit into the amateurism model because the cash prizes received in most instances would make them ineligible, and the demographics of participation levels based on factors like gender and region raise a number of Title IX questions. For those reasons, among others, I believe the NCAA is not acting as quickly as it would like to because of amateurism’s delicate status and the fact that it truly does not understand the esports industry. It wants as many pieces of the esports revenue pie as it can get, but it simply cannot do so if it applies the rules that it applies to every other athletic activity it governs. So, luckily, the status of collegiate esports increase its position with respect to the college institutions themselves while it remains relatively unchanged with respect to the NCAA’s involvement through 2018.
5. FIFA CORRUPTION
What It Is: Last year, officials pled guilty to corruption charges after a long ongoing investigation into the ethics held at numerous levels of the organization. Admittedly, I am not totally well-informed on this topic. Much like how I payed special attention to esports last year and turned it into one of my specialties, hopefully, I will be able to expand my horizons a little bit to become somewhat more educated on the soccer world.
Why It Will Be HOT: The entity is a hot mess. People are dropping like flies, and no one knows what the future holds for the juggernaut. Soccer is the most popular sport worldwide, and the corruption is starting to show its effects in different areas [e.g., referees making bets on goals and taking bribes, people allegedly fixing matches with hot and cold balls (sound familiar?), executives engaging in wire fraud and racketeering, World Cup vote fraud].
Who To Follow: International sports lawyers and organizations like Law In Sport (Follow @LawInSport) could be your reliable quick sources. Some of the writers with The Sports Esquires (Follow @SportsEsqBlog) like Sean Dotson (Follow @seandots) and Justin Fielkow (Follow @JFielkow) are knowledgeable American sources on soccer-related legal information, too.