American Indian Group Pushes for Name Change for Cleveland MLB Team

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(Editor’s Note: The following is a statement from the Cleveland American Indian Movement on tangible steps to be taken immediately in light of Cleveland Baseball team name change.)

Fifty years ago when Cleveland American Indian Movement began the movement to eliminate the Cleveland Baseball “Indians” team name and “Wahoo” logo, we were responding to the wishes of our local Native community, and our elders and leaders in the Nations, who saw causation between the dehumanizing aspects of these images and the abusive environment experienced by indigenous peoples. During this half-century of activism we have regularly demonstrated at various stadiums every opening day and throughout the season; we have sued the Cleveland Baseball franchise and the stadium on different occasions, on various grounds, including those of free speech; we filed a civil rights complaint and a federal trademark petition. Yet Cleveland Baseball failed to dialogue with the local Native community, failed to listen, and failed to act.

Roughly thirty years ago the National Congress of American Indians issued a resolution denouncing the “Use of any American Indian Name or Artifice Associated With Team Mascots by any Professional/Non-professional Sport Teams”. Yet Cleveland Baseball failed to dialogue, failed to listen, and failed to act.

Some twenty years ago, when the U.S. Commission on Civil Rights stated that sports mascots “encourage biases and prejudices that have a negative effect on contemporary Indian people”, the NCAA enacted regulation which effectively banned the tokenization of Native peoples at the collegiate level. At the professional level however, Major League Baseball and its Cleveland franchise failed to listen, failed to learn, failed to act.

In the last ten years, an increasing number of studies have indicated that sports mascots have adverse effects on self-esteem, feelings of community worth, and feelings of achievement related to “possible selves” for indigenous children. And still Cleveland Baseball failed to learn and failed to act.

This pattern of shameful and exploitative conduct on the part of Cleveland Baseball must not be overlooked. And due to its ignominious history of engagement with the local indigenous community, it is wise of us to question whether the decision to finally change its name and “advance social justice” is sincere or simply a public relations decision on the part of the franchise. Nor should it be lightly noted that even with continuous indigenous activism, it took the very public execution of a person of color and weeks of civil disobedience before Cleveland Baseball has become willing to reconsider its morally bankrupt decisions of the last half-century.

The time for Cleveland Baseball to act is now! Not next year. Not next month. Not next week. To that end, and in an effort to restore balance, Cleveland AIM has outlined actionable steps we believe Cleveland Baseball should implement immediately to stop the ongoing harm, resist further harmful action, and begin to repair the harm which has occurred as a result of the marketing of “Indians” and “Wahoo”, and public culture built around being part of “The Tribe”.

These steps are:

1) Immediately cease using the “Indians” and “Tribe” monikers, and choose instead to refer to the franchise as “Cleveland Baseball” until such time as a mechanism for re-branding has been formulated; ensure rebranding efforts do not reference indigenous peoples, our cultures, religions or cultural items in any way.

2) Immediately stop licensing the “Wahoo” logo, retract any licenses currently negotiated, and maintain the trademark so that it may not be further exploited.

3) Aggressively pursue through legal means those organizations which violate use of the “Wahoo” trademark; this action will show that that the franchise is taking an active approach to preventing further harm.

4) Apologize publicly to indigenous people for ignoring and marginalizing us for the last 5 decades, and for a century of a harmful decisions which were exploitative and dehumanizing.

5) Launch an educational media initiative which targets:

a) Ohio school system. To address the harm that has been caused by the subsequent adoption of American Indian mascots pervading Ohio school districts since 1915, and explain why American Indian mascots and tokenization of any ethnic group is divisive, harmful, and unacceptable;

b) General public. To show that Cleveland Baseball understands the magnitude of harm its 105 years of propaganda have caused indigenous people in particular and public consciousness in general, by deconstructing the true histories of the name and logo, their use and the history of indigenous dissent to their use, what the franchise did wrong, and why it is absolutely unacceptable to participate in culturally abusive behavior.

Dialogue-building with Cleveland AIM around the immediate implementation of these actionable steps, and discussions with the larger Native community around the future of the relationship between us and the franchise, will show that Cleveland Baseball understands its stated commitment to social justice and rejects exploitation of indigenous people and the legacy of White Supremacy.

With due respect, great humility, and in the spirit of cooperation.

Elders Council

Cindi Byron-Dixon (Mohawk)
Morning Dove (Eugene “Jean” Foggo Simon, Pequot)
Three Eagle Cloud (Taino)
Sundance (Muskogee), Executive Director

A look at recent student athlete name, image and likeness legislation

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By Bob Wallace, Jr. and Matthew Misichko of Thompson Coburn

Since at least 2015 and the decision by the 9th Circuit Court of Appeals, the question of student-athletes’ right to profit off his or her name, image and likeness (“NIL”) has been hotly debated, and part of the overarching discussion about student-athlete compensation. Student-athletes and advocacy groups working on their behalf have become more aggressive in confronting this issue.

Starting around 2018, the athletes and the advocacy groups drew the attention of the state and federal legislatures. These interested legislatures began demanding the NCAA address their concerns and started to take matters into their own hands. They were no longer accepting the NCAA’s rationalization on why they were not addressing and reforming student-athlete compensation issues. As a result, states initiated adoption of new state regulations.

This article will provide a preview of certain aspects of NIL bills, Florida’s in particular, that will require further interpretation and analysis once implemented.

State action

On June 12, 2020, Florida Governor Ron DeSantis signed into law SB 646 entitled “Intercollegiate Athlete Compensation and Rights” (the “Florida Bill”) which allows a college athlete to earn compensation for the use of his or her NIL.

The Florida Bill initially sets forth its broad objectives, including equality for all college athletes to earn compensation for use of his or her NIL, maintaining control as to how such NIL is used and protecting such athletes from “unauthorized appropriation” and “commercial exploitation.”

The Florida Bill applies to both public and private universities located in the State of Florida and goes into effect July 1, 2021. It will be the first NIL law implemented in the United States. Two additional states have also recently passed legislation that allows a college athlete to earn compensation for use of his or her NIL. On September 30, 2019, California Governor Gavin Newsom signed SB-206 entitled “Collegiate Athletics: Student Athlete Compensation and Representation.” California’s bill goes into effect January 1, 2023. On March 20, 2020, Colorado Governor Jared Polis signed SB-123 entitled “Compensation And Representation of Student Athletes.” Colorado’s bill also goes into effect January 1, 2023. Several other states have NIL bills pending or being drafted to address this issue.

Defining compensation and market value

The Florida Bill states that compensation earned by a college athlete “must be commensurate with the market value of the authorized use of” his or her NIL.

The California NIL bill does not define compensation nor include any wording to provide further context to the term, including the omission of the term “market value” or any similar term. Colorado’s NIL bill, however, does define compensation as “money or other remuneration or thing of value given to a student athlete in exchange for the use of the student athlete’s name, image or likeness.”

While it is natural to assume compensation means monetary compensation, the Florida Bill can be interpreted to be similar to Colorado’s bill and allow for a broader definition of compensation. Some could also argue that the Florida Bill would allow non-monetary compensation to be deemed compensation so long as it is commensurate with market value. So long as market value is being paid, use of a college athlete’s NIL could be compensated with products given to the college athlete, equity or ownership interests in the organization authorized to use his or her NIL or other non-monetary benefits.

Generally, market value is defined as the price currently offered for a certain type of asset in the marketplace. The term is most often referenced and defined as “fair market value.”

It is likely that the market value of using a college athlete’s NIL will be very dependent on the facts and circumstances of each case. In the context of television viewership, national exposure and overall popularity, a college football athlete at a well-known, highly visible school may argue that the authorized use of his NIL has more market value than a college wrestler at that same school. Furthermore, market value will be determined by the price that both parties in a contractual agreement believe is fair and accurate. This determination may be ripe for controversy, subject to Title IX arguments and fertile grounds for abuse.

Unaffiliated third party and supportive/beneficial entities

The Florida Bill states that compensation is only allowed to be provided “by a third party unaffiliated with” the college athlete’s public or private university that he or she attends in the state of Florida.

This provision seems very straightforward. Its purpose is to help prevent any type of conflict of interest between an already existing relationship between the university and a third party. For example, in 2019, the University of Northern Florida (“UNF”) signed a seven-year contract with Under Armour that makes the clothing company the official athletic apparel provider for UNF’s athletic programs. Thus, no college athlete at UNF would be able to enter into an agreement with Under Armour in which a UNF college athlete’s NIL would be used by Under Armour in exchange for compensation. Can a result of this restriction have consequences whereby a company realizes that it makes more economic sense to sponsor individual players as opposed to an entire college athletic program? Time may tell.

However, it may be argued that many third parties could be considered “affiliated” with a university. For example, if a company is a sponsor at the university’s annual Technology Fair, is the company considered an unaffiliated third party? Would that prevent the company from entering into an agreement to compensate a college athlete for the use or his or her NIL? Additionally, what if a married couple gives a donation to the school’s library through gifts designated in their estate planning documents? Can the company that either of them works at enter into an agreement to compensate the college athlete for use of his or her NIL? Those types of relationships will surely be examined,

Additionally, the Florida Bill also states that an entity “whose purpose includes supporting or benefitting the institution or its athletic programs or an officer, director or employee of such institution” cannot compensate a college athlete for the use of his or her NIL. Realistically, this provision in the Florida Bill is an indirect reference to preventing boosters and large donors of a university, a university’s athletic department or specific collegiate team from entering into agreements with college athletes to compensate the athlete for the use of his or her NIL.

Further interpretation will be needed to determine the breadth or narrowness regarding entities whose “purpose” is providing such support or benefit. Does this mean the entity’s sole purpose is to support or benefit an institution, such as an alumni association? The wording of the Florida Bill opens up an interpretation that any entity that supports or benefits the institution cannot enter into an agreement to compensate a college athlete for use of his or her NIL. It is possible that a company that purchases advertising space in a university’s college football stadium is considered a company whose purpose includes supporting or benefitting the athletic program. The determination about these type of relationships could change the college sponsorship landscape.

Additionally, because the Florida Bill includes an entity that supports only the institution itself, then if a non-exclusive purpose of an entity is to benefit the institution, many entities would be unable to enter into agreements with a college athlete for NIL purposes. Public universities have very large alumni bases and thousands of research contracts with various state and local entities. The inclusion of support and benefits to an institution may eventually be revisited, as those entities that a college athlete could engage for NIL compensation purposes may be severely limited.

How to differentiate supporting a university and benefitting a university is another area that will need further guidance. It is likely that supporting a university implies some sort of monetary donation while benefitting a university could mean a non-monetary donation of some kind such as donating professional services.

Professional assistance in receiving compensation

Under the Florida Bill a college athlete hoping to enter into an agreement to be compensated for the use of his or her NIL is able to receive representation from an attorney or an athlete agent. Only attorneys that are in good standing with the Florida Bar are able to assist a college athlete. It seems likely that other states looking at implementing similar legislation will also require “good standing” status in their jurisdiction.

Adherence to the team contract

A college athlete is prevented from entering into any agreement relating to compensation for his or her NIL if the contract would conflict with a term of his or her “team contract.” Of importance may the “entire agreement” provision included in a college athlete’s team contract. This provision may state that the college athlete’s team contract incorporates, the scholarship award documentation, the student athlete handbook, the university student handbook and other ancillary documents. These agreements incorporated into a student-team contract may further prevent a college athlete from contracting with certain entities or individuals to be compensated for use of his or her NIL. However, be mindful that reliance on the team contract argument may give rise to scrutiny regarding a potential employment relationship between the school and athlete. This unintended consequence may not benefit the institution or accomplish what the legislation intended.

Who is best situated to provide solutions?

Determining what organization is in the best position to provide solutions on this topic remains an unanswered question. Should determining the way for a college athlete to be compensated for the use of his or her NIL be a responsibility of each state legislature? If such a conclusion is reached it would not be surprising to see the NCAA revisit its 1993 strategy in Meyer v. NCAA when they invoked the Commerce Clause to argue that these independent state laws unduly impact commerce in other states. Ideally, guidance regarding any type of college athlete compensation should originate from the NCAA, and as a national governing body should be able to fashion a singular federal approach to this issue. However, because the NCAA has consistently reiterated its belief that college athletes are amateurs and unable to receive compensation, state legislatures are stepping in to address the problem of an unpaid labor market of college athletes, and appear less willing to accept the NCAA’s premise.

Conclusion

Nearly twelve additional states have proposed bills relating to the use of a college athlete’s NIL. Approximately six states have introduced a bill to its state legislature for review. The NCAA continues to plead with Congress to assist in creating legislation that will formalize, at the federal level, the use and compensation of a college athlete’s NIL. The use of a college athlete’s NIL is an area to continue monitoring in the near future as it will surely evolve over time.

Bob Wallace is the chair of Thompson Coburn’s Sports Law Group. Matthew Misichko is an associate in the Firm’s corporate & securities practice.

Louisville Sport Administration Doctoral Students Write About Youth Sport Concussion Legislation

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(Editor’s Note: University of Louisville Sport Administration Doctoral Students Jessica R. Murfree, M.A., Nicholas M. Swim, M.S., & Chelsea C. Police, M.S. recently wrote the following article for Hackney Publications. Entitled “Youth Sport Concussion Legislation: Nonstandard Standards of Care,” it appeared in Sports Litigation Alert and Concussion Litigation Reporter.)

In 2014, the Center for Disease Control (CDC) reported approximately 2.87 million concussion-related hospital visits including 837,000 cases involving children (CDC, 2019a). Additional estimates report between 1.1 and 1.9 million sport and recreation-related concussions occur annually for youth 18 and under in the United States (Bryan, Rowhani-Rahbar, Comstock, & Rivara, 2016). In 2017, 2.5 million high school students reported suffering at least one concussion, while 1.0 million students reported suffering at least two (DePadilla, Miller, Jones, Peterson, & Breiding, 2018). In 2019, a study found signs of chronic traumatic encephalopathy (CTE), the neurodegenerative disease stemming from repeated brain trauma, in 177 of 202 individuals who previously played high school, college, or professional football (Mez et al. 2017). These figures are particularly troublesome given youth who experience a concussion are one and half times more likely to experience a second concussion (Brody, 2015). Additionally, reported concussions and associated lawsuits, are on the rise in young male and female athletes participating in soccer, ice hockey, field hockey, lacrosse, and cheerleading (CNN, 2019; Bomgardner, 2019).

Youth concussions are more difficult to recognize, more severe, and require more recovery time as the brain is simultaneously growing and injured (Belson, 2017). Further, having an underdeveloped brain when a concussion occurs, can leave young athletes especially susceptible to impacts on their quality of life over time (Amberg, 2012). As a result, the CDC has identified traumatic brain injuries (TBIs) and concussions in sport as a national public health issue (CDC, 2019a).

Cultural Significance and Relevancy

Awareness and policy regarding the national concussion issue appears to parallel with waves of popular culture’s focus on these injuries. In 2012, the class action lawsuit of over 80 concussion-related claims filed on behalf of over 2,000 NFL players was shortly followed by PBS Frontline’s documentary film, League of Denial: The NFL’s Concussion Crisis in 2013, and the 2015 biographical-drama Concussion, chronicling research revealing the destructive relationship between NFL players and CTE. During this time, the NFL was largely denying any relationship between concussions suffered by NFL players and the diagnosis of CTE among retired players. Ultimately, the NFL settled litigation brought by several retired players in the amount of over $700 million (Dingus, 2020). The concussion issue has resurged in popular culture by means of a Netflix docu-series: Killer Inside: The Mind of Aaron Hernandez (2019), and Cheer (2020) which have focused more attention on the exposure to concussions by athletes early in their playing years including high school and college. Although the youth sport concussion issue has yet to be magnified in television and film, the documentation of younger athletes alludes to the importance of advocating for, and protecting young brains.

Legal Implications of Youth Sport Concussions

Legal protections for youth athletes related to concussions have been evolving since the mid- 2000s. The 2009 Zackery Lystedt Law (HB 1824), named for Zackery Lystedt, a young boy who suffered a catastrophic and life-altering concussion while playing football and was allowed to return to the game in 2006, triggered concussion education, removal of play policies, and return to practice or play restrictions in the state of Washington (Bompadre et al., 2014). With HB 1824, Washington became the first state to legally establish a concussion protocol for youth and high school athletes. Lystedt’s family filed a lawsuit on Zackery’s behalf against the Tahoma School District, receiving a $14.6 million settlement (Clarridge, 2009). Since 2014, all 50 states have followed Washington’s lead by passing some type of concussion legislation to include concussion awareness or education (Potteiger, Potteiger, Pitney, & Wright, 2018). Additionally, 37 new bills were introduced in 2018, reflecting both the fluidity and significance of youth sport concussions (Green, 2018).

Like the Lystedt case, negligence claims stemming from sport-related concussions in young athletes typically challenge the school or sport organization’s standards of care and return-to-play (RTP) guidelines. To date, there has been minimal focus on the athletes’ ability to return-to-learn (RTL) or return-to-school (RTS), which could lead to additional litigation should the child be denied the opportunity to succeed academically (Thompson, 2016).

Identifying Language Inconsistencies in Concussion Policies

Despite the national attention given to youth concussions catalyzed by the Zackery Lystedt Law, previous research shows policy variation in terms of enforcement, application, and requirements (SHAPE America, 2017; Amberg, 2012). Policy disparity in terms of lack of standardization and consistent language can lead to improper standards of care across state lines (Kim, Connaughton, Spengler, & Lee, 2017). Kim et al. (2017) explored these inconsistencies by examining concussion legislation enacted or amended in all 50 states and the District of Columbia (D.C.) between 2009-15, finding substantial nationwide discrepancies in policy scope and applicability, education and training requirements, and removal from play and RTP criteria. The severity and flexibility of concussion issues warrant regular medical and scholarly review. Therefore, the purpose of this study was to assess current nationwide youth concussion legislation to identify trending commonalities and updates, and discuss major gaps or differences between them.

Findings & Analysis

Researchers located, reviewed, and analyzed youth concussion legislation in all 50 U.S. states and the District of Columbia. This analysis revealed a wide range of inconsistencies in specific language primarily related to governing bodies for concussion management oversight, athlete removal, parent notification, RTP, and RTS/RTL, allowing youth athletes to be subject to a range of what is considered appropriate standards of care. Researchers discovered some states provided only minimal guidance for athletic administrators and have decentralized policies for enforcement and training. For example, Maine’s Department of Education organized a working group to manage youth concussion care, but the state’s legislation fails to delineate specific language on training and policies for coaches, players, and parents (Maine Legis. Assemb, 2012). Other states have expanded and improved on existing concussion legislation by providing clear decision making structures and standards. For example, Illinois amended its concussion law in 2018 to be one of the country’s strongest, and includes definitions of all parties involved (i.e., definition of an athletic trainer), designated parties for removal and return-to-play, concussion oversight teams, and return-to-learn protocols (Illinois Legis. Assemb., 2018).

There does appears to be a general positive trend toward comprehensive concussion protocols across the United States, as there have been 21 state legislation amendments since Kim et al.’s (2017) data collection. Thus, a good number of states do appear to realize that as we gain better medical and scientific knowledge related to concussions, the legal standards for protecting young athletes must be modified to reflect the current knowledge. While it is important to note states are including more language related to key themes identified by Kim et al. (2017), since then two additional themes were identified: protocols providing for a return-to-academics policy, and a 24-hour parent notification requirement when an athlete shows concussion symptoms.

24-Hour Parent Notification and Return-to-Academics

Language on mandating a communication time period with parents following a head injury was largely inconsistent, with only nine states requiring parents be notified within 24 hours of the incident. Amended in 2018, Arizona’s concussion protocol includes this window to involve parents in the decision-making process regarding their child’s injury and ability to return-to-play (Green, 2018). Under the umbrella of Return-to-Academics are RTL and RTS. Currently, only 10 states’ concussion protocols contain specific language on when an athlete may return to the classroom. RTL considers the educational endeavors outside of the class like extracurricular activities, tutoring, and reading, rarely accounted for by states. This is particularly worrisome because the CDC states concussions may hinder students’ learning abilities, cause prolonged headaches, and exaggerate difficulties with paying attention (CDC, 2019b).

Recommendations

The lack of consistency across state lines suggest a child’s treatment is determined by where they live and play, and the broad spectrum of protocols reveal certain athletes and their families would be severely disadvantaged over others. Standardized annual training and educational courses should be mandated for head coaches and athletic trainers, and every state should consider the academic-related cognitive impacts faced by young athletes. Regardless of state of residence or competition, concussion protocols should provide for the same designees for removing an injured athlete from the playing surface, and the amount of time in which a parent should be notified of injury. The compelling differences between states warrants the development of research partnerships to make continuous updates and monitor concussion protocol effectiveness.

Jessica R. Murfree is a Sport Administration doctoral student at the University of Louisville. Her research examines the relationships between sport and the natural environment.

Nicholas Swim is a Sport Administration doctoral student at the University of Louisville. His research examines gender and racial equity in intercollegiate sport, with an emphasis on student-athlete well-being.

Chelsea Police is a Sport Administration doctoral student at the University of Louisville. Her research interests include examining participation constraints in elite youth soccer development.

References

Amberg, P. A. (2012). Protecting kids’ melons: Potential liability and enforcement issues with     youth concussion laws. Marquette Sports Law Review, 23(1), 171-190.

Centers for Disease Control and Prevention (2019a). Surveillance Report of Traumatic Brain Injury-related Emergency Department Visits, Hospitalizations, and Deaths—United States, 2014. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services.

Center for Disease Control and Prevention. (2019b). Returning to school after a concussion: A fact sheet for school professionals. Retrieved from https://www.cdc.gov/headsup/pdfs/schools/tbi_returning_to_school-a.pdf

Clarridge, C. (2009, September). Tahoma schools settle football-injury claim for $14.6 million. The Seattle Times. Retrieved from https://www.seattletimes.com

CNN. (2019, August 15). NFL concussions fast facts. Retrieved from https://www.cnn.com

Bomgardner, R. (2019). Concussion litigation and the return-to-school plan. The Physical Educator, 76(5).

Bompadre, V., Jinguji, T. M., Yanez, N. D., Satchell, E. K., Gilbert, K., Burton, M., Conrad, E. U., & Herring, S. A. (2014). Washington State’s Lystedt law in concussion documentation in Seattle public high schools. Journal of Athletic Training, 49(4), 486-492.

Brody, J. (2015). Concussions can occur in all youth sports. The New York Times. Retrieved from https://well.blogs.nytimes.com/2015/08/24/concussions-can-occur-in-all-youth-sports/

Bryan, M. A., Rowhani-Rahbar, A., Comstock, R. D., & Rivara, F. (2016). Sports-and recreation-related concussions in US youth. Pediatrics, 138(1), e20154635.

DePadilla, L., Miller, G. F., Jones, S. E., Peterson, A. B., & Breiding, M. J. (2018). Self-reported concussions from playing a sport or being physically active among high school students- United States, 2017. CDC Morbidity and Mortality Weekly Report, 67(24), 682-685.

Dingus, S. (2020). Latest NFL concussion settlement reports reveal dementia claims still under siege. Advocacy for Fairness in Sport. Retrieved from https://advocacyforfair nessinsports.org/nfl-concussion-settlement/latest-nfl-concussion-settlement-reports-reveal-dementia-claims-still-under-siege/

Green, L. (2018, November 15). State legislatures continue to update concussion laws. National Federation of State High School Associations. Retrieved from https://www.nfhs.org/ articles/state-legislatures-continue-to-update-concussion-laws/

Illinois Legis. Assemb. Sec. 22-80. Reg. Sess. 2018-2019 (2018).

Kim, S., Connaughton, D. P., Spengler, J., & Lee, J. H. (2017). Legislative efforts to reduce concussions in youth sports: an analysis of state concussion statutes. Journanl of Legal Aspects Sport, 27, 162.

Maine Legislation Assembly. No. 98. Reg. Sess. 2011 (2011).

Mez, J., Daneshvar, D. H., Kiernan, P. T., Abdolmohammadi, B., Alvarez, V. E., Huber, B. R., Alosco, M.L., Solomon, T.L., Nowinski, C.J., McHale, L., Cormier, K.A., Kubilus, C.A., Martin, B.M., Murphy, L., Baugh, C.M., Montenegro, P.H., Chaisson, C.E., Tripodis, Y., Kowall, N.W.,… & McKee, A. C. (2017). Clinicopathological evaluation of chronic traumatic encephalopathy in players of American football. Journal of the American Medical Association, 318(4), 360-370.

Potteiger, K. L., Potteiger, A. J., Pitney, W., & Wright, P. M. (2018). An examination of concussion legislation in the United States. Internet Journal of Allied Health Sciences and Practice, 16(2), 1-9.

SHAPE America. (2019). Concussion: State legislation and policy. Society of Health and Physical Educators. Retrieved from https://www.shapeamerica.org/

Simpson-Wood, T., & Wood, R. H. (2018). When popular culture and the NFL collide: Fan responsibility is ending the concussion crisis. Marquette Sports Law Review, 29(1), 13-135.

Sports Law Professor Corinne Daprano Named Interim Dean at Dayton

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Dr. Corinne Daprano, a long-time sports law professor at the University of Dayton, has been promoted to Interim Associate Dean for the School of Education & Health Science.

The recognition was fitting, given that her “leadership has been a catalyst of change in the School of Education and Health Sciences,” according to the school.

Born and raised in Cleveland, Dr. Daprano earned her B.A. in English and M.Ed. in Sports Management and Exercise Science from Cleveland State University. She went on to earn her Ph.D. in Sports Management from Ohio State University, and began her University of Dayton career in 2001. Over the last two decades, Dr. Daprano has served as an Associate Professor, Department Chair, President of the Academic Senate and Interim Dean.

During her time as the Department Chair of Health and Sport Sciences, Dr. Daprano worked in collaboration with her colleagues to reorganize the academic majors and bring both the undergraduate nursing program and the masters of dietetics and nutrition to UD, according to the school. “This transformative time for the school required much collaboration across campus, spearheaded by Dr. Daprano. In her time as Academic Senate President, Dr. Daprano led, listened to, and cooperated with a diverse group composed of individuals all across campus on a weekly basis to fulfill all her responsibilities.”

Dr. Daprano the challenge of the new role.

“I like to see the opportunity in everything,” she said. “Particularly in situations when people often say ‘I don’t think this is going to happen’ or ‘We’re never going to figure this out’, I always like to say that there’s an opportunity–we just have to find it. I’m energized by challenges.”

Last year, Dr. Daprano was the 2019 recipient of the Lackner Award, an honor recognizing long-serving faculty and staff members at the University of Dayton.

Study Has Huge, and Positive, Implications for Restarting Sports – Move Forward!

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Move forward NBA, MLB, NFL, and NCAA.

A recent study suggested that herd immunity can be achieved with just 43 percent of the population having immunity. The implications are that you continue to protect the vulnerable. Sorry elderly and those with comorbidities. You are not attending mass gatherings such as a sporting contest until we have a vaccine. But5 the young and healthy should love forward.

This doesn’t mean the sporting world does not test, or take all precautions. Clearly, those actions continue. Knowledge about who is infected and immediate treatment is imperative. But move forward understanding that there is a light at the end of the tunnel.

And that light is based on science.

Study Shows herd Immunity Level Could be Lower
 
COVID-19: Herd immunity threshold could be lower, study finds
Date: June 23, 2020
Source: University of Nottingham
Summary: Herd immunity to COVID-19 could be achieved with fewer people being infected than previously estimated, according to new research.
 
Herd immunity to Covid-19 could be achieved with fewer people being infected than previously estimated, according to new research.
Mathematicians from the University of Nottingham and University of Stockholm devised a simple model categorising people into groups reflecting age and social activity level. When differences in age and social activity are incorporated in the model, the herd immunity level reduces from 60% to 43%. The figure of 43% should be interpreted as an illustration rather than an exact value or even a best estimate. The research has been published today in Science.
Herd immunity happens when so many people in a community become immune to an infectious disease that is stops the disease from spreading. This happens by people contracting the disease and building up natural immunity and by people receiving a vaccine. When a large percentage of the population becomes immune to a disease, the spread of that disease slows down or stops and the chain of transmission is broken.
This research takes a new mathematical approach to estimating the herd immunity figure for a population to an infectious disease, such as the current COVID-19 pandemic. The herd immunity level is defined as the fraction of the population that must become immune for disease spreading to decline and stop when all preventive measures, such as social distancing, are lifted. For COVID-19 it is often stated that this is around 60%, a figure derived from the fraction of the population that must be vaccinated (in advance of an epidemic) to prevent a large outbreak.
The figure of 60% assumes that each individual in the population is equally likely to be vaccinated, and hence immune. However, that is not the case if immunity arises as a result of disease spreading in a population consisting of people with many different behaviours.
Professor Frank Ball from the University of Nottingham participated in the research and explains: “By taking this new mathematical approach to estimating the level for herd immunity to be achieved we found it could potentially be reduced to 43% and that this reduction is mainly due to activity level rather than age structure. The more socially active individuals are then the more likely they are to get infected than less socially active ones, and they are also more likely to infect people if they become infected. Consequently, the herd immunity level is lower when immunity is caused by disease spreading than when immunity comes from vaccination.
Our findings have potential consequences for the current COVID-19 pandemic and the release of lockdown and suggests that individual variation (e.g. in activity level) is an important feature to include in models that guide policy.”

Drake Group: College Athletes Should Give U.S. Senate NIL Bill a Failing Grade

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The Drake Group has been critical of different Name, Image, and Likeness (NIL) bills currently being considered by state legislatures across the country, calling for a strong federal bill to protect college athletes’ outside employment rights. However, the Fairness in Collegiate Athletics Act, proposed by U.S. Senator Marco Rubio of Florida on June 18, should receive a failing grade.

The Drake Group shares four observations critical of the Fairness in Collegiate Athletics Act:

  • The Act does not protect the employment rights of all college athletes in that it is limited to those participating in National Collegiate Athletic Association (NCAA) programs.
  • While the Act permits college athletes to earn compensation from third parties for the use of their names, images, or likenesses (NILs), it gives the NCAA administrative control of such outside employment and allows it to restrict such employment for questionable purposes such as preserving “amateur status.” “Amateur status” is not defined and historically, the NCAA has used its changing definition to impose unfair employment restrictions on college athletes.
  • The Act specifies that the Federal Trade Commission enforce the Act, treating violations as unfair or deceptive acts or practices, a role wholly unsuited for a federal agency without the necessary resources or experience.
  • The Act fully exempts the NCAA and its member institutions from antitrust or other lawsuits brought by college athletes who believe NCAA NIL rules are unfair. This allows the NCAA and member schools to continue to exploit college athletes so they can earn billions in gate receipts, sponsorships, and television revenues from the college athletic events.

 

The Drake Group “does believe that a federal NIL bill is needed to prevent the chaos of 30 or 40 state bills, all with different NIL provisions. However, the federal bill needs to carefully separate and balance institutional and athletes’ individual rights to use athletes’ NILs.”

Starting Point Guard Had Enough, Transfers from Racist Environment

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(Editor’s Note: I’ve known Jalen Shead for more than 10 years. He is a highly respectful, quiet young man and a good student. He lets his play on the court do his talking. In this case, he had had enough. Shortly after Shead shared this, Texas State athletic director Larry Teis announced the school was opening an investigation into the allegations.)

With all this going on, let’s talk about what I and other players dealt with playing for Danny Kaspar at Texas State. Many asked why the starting PG on a 25 win, 1st place contender team would transfer before his senior season … well

 

 

Campus Health Project (CHP) Launches to Meet Collegiate Athletics’ Growing Demand COVID-19 Testing Capacity

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In response to surging demand for critical COVID-19 testing capacity among colleges and universities, the Campus Health Project (CHP), higher education’s trusted COVID-19 testing partner, has launched its national initiative dedicated to helping higher education institutions secure the COVID-19 testing capacity and logistical support they need to resume campus life for Fall 2020 and beyond.

Heeding universities’ calls for turnkey COVID-19 testing solutions and speedy test results, CHP is a first-of-its-kind resource tapping the expertise of healthcare professionals, higher education advisors and certified independent clinical lab owners. CHP offers COVID-19 testing solutions which enables university partners to execute a smooth process for their clinical testing needs, including receiving collection kits, sending specimens, and getting quick test results within 24 to 48 hours via dashboards, real-time alerts, and custom reporting. For time-sensitive and critical needs, CHP can provide test results within 24 hours.

“Higher education is in a race against time in ramping up preparations to combat the coronavirus pandemic before fall move in,” said Chuck Brady, CHP’s CEO and Chief Higher Education Advisor, a 22-year higher ed industry veteran. “To meet this unprecedented challenge, universities can count on Campus Health Project to super charge their current COVID-19 testing processes. By applying our turnkey solutions to smoothly integrate with existing sample collection processes, schools can access lab capacity and get quick results so that administrators and contact tracers have the critical tools they need to help control the spread of the virus.”

“Staggering Portion of Available Tests” Needed on Higher Education Campuses

The immediate need for COVID-19 testing capacity is particularly acute to reduce exposure and minimize risk among students, faculty, and staff at the approximately 4,100 higher education institutions across the United States.

Research firm EAB concluded “that even if global supply doubled or tripled, U.S. higher education would still require a staggering portion of available tests.” Based on the CHP’s analysis of projections from academic institutions, guidelines from agencies including the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention, current national laboratory infrastructure is not set up to handle the surge in demand for COVID-19 testing by universities and colleges.

The Campus Health Project was established to address the specific health and safety needs of higher education. It is partnering with academic institutions and a network of independent labs, matching testing capacity with universities and campuses who lack the internal expertise and resources to meet that demand by themselves.

CHP Leadership

The Campus Health Project brings together an array of experts with extensive experience in healthcare, clinical laboratories and a track record of innovation with higher education institutions. CHP’s leadership team is comprised of:

  • Thomas Huard, CHP’s Chief Clinical Laboratory Advisor and former Chairman of Best Practices at Quest Diagnostics. Dr. Huard oversaw these best practices for the largest molecular lab(s) in the world.
  • David Williams, CHP’s Chief Medical Advisor and CEO of Southside Medical Center works daily with COVID-19 patients, overseeing thousands of drive-up and drive-through Covid-19 tests in the Atlanta area. Dr. Williams is also the CEO of Ethizo, a healthcare automation platform that streamlines health and lab workflows.
  • Chuck Brady, CHP’s CEO and Chief Higher Education Advisor founded Apogee in 1998, successfully growing it to become the largest managed communications provider in higher education currently supporting over 420 Universities in the U.S. and Canada.
  • Lee Smith, CHP’s higher ed and legal advisor served as Associate Vice President for legal affairs at University of Texas at Austin for 33 Smith has extensive experience in issues related to regulatory compliance, information technology and security and campus safety and security.

“Coronavirus poses a serious challenge for colleges and universities left unprepared to handle the demand for COVID-19 testing capacity,” said Dr. Thomas Huard, CHP’s chief clinical lab advisor. “The return to the semblance of the traditional college experience requires an understanding of the magnitude of the health crisis and an innovative approach to systematically allocate testing resources where they are most needed.”

CHP Service Availability

Universities currently looking to bolster the reliability and speed of their COVID-19 testing capacity and capabilities can email info@campushealthproject.com.

Latest Issue of My Legal Bookie Chronicles Changing Landscape of Sports Betting

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Hackney Publications, the nation’s leading publisher of sports law periodicals, announced today the availability of the summer issue of My Legal Bookie (MLB).

Supported by Ifrah Law PLLC, the leading law firm in the legal sports betting industry, the latest issue features the following articles:

  • Professional Sports — Betting on Transparency
  • Barstool CEO Nardini Helps Legal Sports Betting Go Mainstream
  • Casinos Sue Pennsylvania’s Online Lottery for Unfair Competition
  • Cohen’s Privacy Expertise Leads to Gaming Industry Success
  • French Lawsuit Claims FIFA Ultimate Team Should be Classified as Gambling
  • State Regulation of Real-Time Betting, Particularly in the District of Columbia
  • Michigan Tribe Accused of Casino Contracts Breach
  • Chambers – Ifrah Law and Jeff Ifrah Again Earn Recognition from Chambers USA in Gaming & Licensing Law
  • Plaintiff Hits Lotto, Wins Reverse Domain Name Hijacking Case
  • Legal Sports Betting Still Faces Competition From Illegal Market, Low State Taxes Could Turn The Tide
  • Former Carolina Hurricanes GC Takes Top Legal Post at N.C. Education Lottery
  • Risk of Gaming Addiction Increases for Small, But Significant Number as Teens Become Adults

“This is a complete issue, exploring all aspects of this dynamic industry” said Editor in Chief Ellen Zavian, an Adjunct Professor at George Washington University and Professorial Lecturer in Sports Law at George Washington Law. “We are especially proud of the fact that we feature two women, who are true leaders in the space. Expect more such features in the future as we celebrate diversity.”

The profiles Zavian referred to are of Barstool CEO Erika Nardini and Ifrah Partner Michelle Cohen.

Subscriptions to MLB can be obtained here. Those who subscribe will receive the latest issue.

Managing Editor Holt Hackney noted that subscriptions to MLB have surged as more and more states embrace legal sports betting. “The legal side of the business will become even more important with the rush to satisfy the public’s insatiable interest in betting on sports,” he said.

About Hackney Publications

Hackney Publications (www.hackneypublications.com) is the nation’s leading publisher of Sports Law Periodicals. In total, Hackney Publications produces 12 such newsletters, including Sports Litigation Alert, Professional Sports and the Law, Legal Issues in High School Athletics, Legal Issues in Collegiate Athletics, Journal of NCAA Compliance, Concussion Litigation Reporter, and Sports Facilities and the Law. It produces five other publications that are complimentary and supported by sponsorship. These include Title IX Alert, Sports Medicine and the Law, Concussion Defense Reporter, Esports and the Law, and MyLegalBookie.

About Ellen M. Zavian, Esq.

One of the first female/attorney NFL agent, Ellen has represented the US Women’s soccer, softball, break dancers and extreme athletes, collectively, has been employed at the NFLPA, Autism Society of America, the ACC, Commissioner for the Central Atlantic Collegiate Conference (NCAA), to name a few. Today, her focus involves sports arbitrations, negotiations, leading the United Breakin Association (newly named Olympic Sport Paris 2024), advisor on player affairs for esports’ entities, and a professional corporate speaker on leadership and negotiation skills while teaching sports and entrepreneurship at George Washington University (Business and Law Schools).

About Ifrah Law PLLC

Ifrah Law has represented Online Gaming clients since the inception of the industry, and now represents many of the largest iGaming companies and industry associations around the world. We have been at the center of most of the important prosecutions and lawsuits in the Online Gaming industry, plus we were instrumental in the creation of the legislative and regulatory frameworks in three states which currently permit online gaming: Delaware, New Jersey, and Nevada.

Nationally ranked by Chambers USA in Gaming & Licensing Law, Jeff Ifrah and his firm bring decades of experience in betting and wagering law to advise startups in the eSports space, including both real money and skill-based p2p competition sites, on compliance with both state and federal law. Our clients in the sports betting arena include Kambi, Unikrn, Bet365, Playtech, WorldPay and the Stars Group. Jeff and his team have also gained a strong reputation in other innovative internet-based industries such as payment processing and money transmission.

The firm is a founding member of iDEA (iDevelopment and Economic Association), an association which seeks to grow jobs and expand online interactive entertainment business in the United States through advocacy and education. Its members include, Golden Nugget, 888, PaddyPowerBetfair, GVC, and Scientific Games, among others. On behalf of iDEA, Ifrah Law submitted an amicus brief to the Supreme Court in the seminal sports betting case Murphy v. NCAA, which was decided in favor of iDEA’s argument urging the rights of states to direct their own economies.

Two characteristics uniquely qualify Ifrah Law to represent iGaming companies:

  • Our substantial experience in both criminal defense and civil litigation. This is invaluable because even civil cases can expose iGaming companies to criminal prosecution. We are litigators who know the risks and how to avoid them.
  • Our knowledge of the Online Gaming industry and the people who work in it. We are a firm of lawyers who share a passion for understanding our clients and their businesses. Through our representation of iGaming businesses since the industry’s beginnings, we have acquired an in-depth understanding which is key to our ability to craft solutions that meet our clients’ goals.

Breaking News: NCAA Board of Governors Expands Confederate Flag Policy, Implicating States Where It Has a ‘Prominent Presence’

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The NCAA Board of Governors has expanded the Association’s Confederate flag policy to prevent any NCAA championship events from being played in states where the symbol has a prominent presence. 

The policy previously barred the awarding of sites determined in advance of a championship in states that displayed the Confederate flag. However, if a college or university team earned the right to host a championship game based on its tournament seeding or ranking — considered a non-predetermined award — the team could host on its college campus or in its home territory. 

Mississippi was the only state previously affected by the Association’s policy.

“There is no place in college athletics or the world for symbols or acts of discrimination and oppression,” said Michael V. Drake, chair of the board and president of the Ohio State University. “We must continually evaluate ways to protect and enhance the championship experience for college athletes. Expanding the Confederate flag policy to all championships is an important step by the NCAA to further provide a quality experience for all participants and fans.”

The NCAA Confederate flag policy was enacted in 2001 by the NCAA Executive Committee (now the Board of Governors) due to the flag’s prominence in various states.

“Competing in an NCAA championship is a special experience for college athletes who compete at the highest level and we are grateful for the college athlete voice leading to this decision,” said Mark Emmert, NCAA president. “We must do all we can to ensure that NCAA actions reflect our commitment to inclusion and support all our student-athletes. There can be no place within college sports where any student-athlete is demeaned or unwelcome.”

The Executive Committee reviewed the policy in 2014, per a request by the NCAA Minority Opportunities and Interests Committee.  The policy remained unchanged, which allowed schools competing in sports such as baseball, softball, lacrosse and later women’s basketball the opportunity to host preliminary non-determined championship events in their home state, which included Mississippi. That will no longer be allowed under the expanded flag policy.

The NCAA requires city and state officials bidding on its tournaments “to indicate how it expects the events to be safe, accessible, respectful and welcome to all.” The NCAA hosts 90 championships in 24 sports every year.