2021 Preview: Litigation

In this second installment of previewing 2021, I take a look at some of the compelling storylines to follow in the world of sports litigation. As trials now occur virtually, several ongoing disputes are expected to reach resolutions this year, including a six year-old lawsuit against the National Collegiate Athletic Association (NCAA), which will fundamentally rearrange the way college athletes are “defined” and compensated. Let’s take a look at what is on the docket to be decided this year.

NCAA v. Alston
For fans of EA Sports’ NCAA Football, the dream of the beloved video game making a comeback has become a reality following a surprise announcement last week. O’Bannon v. NCAA, a class action lawsuit against the NCAA, Collegiate Licensing Company, and video game publisher Electronic Arts, brought an end to the game franchise in 2014 when college players sued over the unauthorized use of their name, image, and likeness (NIL). A $60 million settlement ended the dispute and with it any NIL-related profit opportunities for college players, such as broadcast rights and merchandising. Rather than simply license NIL rights with college athletes, all profiting parties were forced to abandon these lucrative areas of college sports, stemming from the NCAA regulations prohibiting athletes receiving outside compensation. This concept had become known as amateurism. Amateurism has prevented college athletes from profiting from their NIL.

This is just a snippet of the NCAA’s long battle against its athletes and their authority over NIL rights, however a new chapter may be on the horizon. The relevant lawsuit, NCAA v. Alston, is a years-old case that will be making its way to the Supreme Court. Following the Ninth Circuit’s decision in favor of the plaintiffs, the NCAA’s petition for certiorari was granted, meaning the Supreme Court will hear the case and make a final ruling. If the Supreme Court affirms the Ninth Circuit’s judgment, the NCAA rules restricting education-related pay and benefits for college athletes will be stricken down. However, if the Supreme Court goes a different route, a win for the NCAA may essentially grant antitrust immunity to the organization, which would allow it generous latitude in terms of what changes if any the NCAA would make to its current compensation structure. The debate over amateurism will take place on March 31st, and regardless of outcome, will have permanent, far-reaching consequences for the future of college sports.

Jeffery Kessler, head attorney at Winston Strawn LLP, will be arguing on behalf of Alston and college athletes as a whole, while the NCAA and its athletic conferences will be represented by a plethora of law firms.

Bryant v. Island Express Helicopters Inc.
Little more than a year ago, the helicopter carrying Kobe Bryant, his daughter Gianna, and seven other passengers crashed, tragically resulting in the deaths of everyone on board. Many of the details are well-known at this point: despite traveling the same route to a girl’s basketball tournament 24 hours earlier, pilot Ara Zobayan became disoriented in the heavy fog that hung over the Calabasas hillside that day and misperceived the helicopter’s final plunge, apparently believing that they were climbing to four-thousand feet shortly before impact. However, what still remains to be determined is the outcome of the litigation against Island Express, Zobayan’s employer and the owner of the helicopter.

Vanessa Bryant, the widow of the Lakers’ legend, brought suit against the helicopter company and Zobayan on twenty-eight counts alleging negligence resulting in the wrongful deaths of the passengers. Island Express attempted to cross-claim the Federal Aviation Administration, alleging that the air traffic controllers had negligently handled a shift change that occurred during the flight, according to Law360. Both Bryant and the federal government have filed a motion to dismiss, which if granted would remand the case from federal court to Los Angeles Superior Court, where Bryant is more likely to find a favorable verdict if the case goes to trial. However, both sides must first await the investigation results of the National Transportation Safety Board (NTSB). These findings will determine if the crash was due to a mechanical failure or human error, as previously suspected. The NTSB is expected to announce the release of its report tomorrow on Tuesday, February 9th via livestream.

Vanessa Bryant is represented by Munger, Tolles & Olsen LLP and Robb & Robb LLC. Island Express is represented by Cunningham Swaim LLP and Worthe Hanson & Worthe. The federal government is represented by the U.S. Attorney’s Office for the Central District of California and U.S. Department of Justice

Senne v. Office of the Commissioner of Baseball
The Minor League (MiLB) system of Major League Baseball (MLB) has been a lightning rod of controversy over the past year following the MLB’s decision to cut the number of minor league teams from 162 to 120 or one affiliate per MLB team for each of the four “levels” of MiLB. Commissioner Rob Manfred has faced backlash from minor league team executives and Congress alike. However, it seems that the MLB’s 120 Plan” not-so-coincidentally comes at a time where the league awaits a verdict on a class action lawsuit that would make the operation of the Minors Leagues exponentially more expensive. Enter Senne v. Royals.

Seven years ago, former minor leaguer Aaron Senne filed a lawsuit against the Kansas City Royals. The litigation has since expanded to include thousands of players past and present who are alleging that they have received unlawfully low wages from MLB for their services. These claims include zero compensation for spring training as well as its fall counterpart, both of which are reportedly “strongly implied” to be mandatory. Further, some players even claim to have made as little as $1,100 per month during the five-month regular season, which, assuming a minimum forty-hour workweek, would make their hourly wage $6.875. Of course, this figure falls well below the $7.25 federal minimum wage; however the MLB may already be shielded from this apparent discrepancy.

Hidden on page 1,967 (of 2,232 total) of Congress’s 2018 $1.3 trillion spending bill, the “Save America’s Pastime Act” essentially exempts minor league players from the protections of the Fair Labor Standards Act (FLSA). This legislation meant that minor league players could no longer receive overtime, nor payment for spring training, rendering minor leaguers “seasonal employees” by default. There are many other considerations that fill out this complicated picture, but in short, the MLB’s lobbying for these provisions may signal that the MLB is not expecting the court to rule in its favor. Hence, why eliminating 42 teams – or roughly one-thousand players – will mitigate some of the blow the MLB will face if it loses this case.

The MLB petitioned the Supreme Court to reject the class action on the basis that the claims lacked commonality; however the land’s highest court declined to hear the case. Therefore, the lawsuit will proceed in the Ninth Circuit where Judge Joseph C. Spero has tentatively scheduled a trial for June 2022. However, allowing such an expensive (and contentious) lawsuit to reach trial may threaten the MLB’s most valuable commodity: its antitrust exemption. While a settlement appears unlikely, all eyes are on the league as it prepares for its next move.

The minor league class is represented by law firms Korein Tillery LLC and Pearson, Simon & Warshaw, LLP. MLB is represented by Elise Bloom of Proskauer Rose LLP.

NCAA Publishes Proposal For Name, Image, & Likeness Rights

Blurred Lines

The NCAA has shifted its stance on college athlete compensation and is restructuring collegiate sports to allow Division I student-athletes to earn money from endorsements and sponsorship deals as early as 2021. However, while this landmark consideration seems to indicate a step forward for college athlete rights, there are already signs that limitations potentially exist on the NCAA’s ability to ensure that this plan is effectively introduced.

The NCAA Board of Governors met on Monday and Tuesday last week to review recommended rule changes that would allow its athletes to profit off of their names, images and likeness (NIL).

Bubble Watch

Among the proposed rule adjustments, some changes made the cut while other rumored additions were left out. As established, the NCAA would allow collegiate athletes to profit from NIL. However, the recommendations did not include any specific procedures for doing so. What is known however, is that the NCAA hopes to establish a system that does not favor a particular individual, school or conference. In turn, the multi-billion dollar organization is calling on Congress to help standardize this emerging niche in college sports across all states.

Another omission involved the absence of group licensing, which means that the rumors of a return of EA’s popular video game NCAA Football are dead, for now at least. The NCAA stated that group licensing is “unworkable” given that there is no players association-type body to bargain on the players’ behalf. More so, group licensing could even open the door for players to classify themselves as employees of the NCAA, which would deteriorate the “amateurism” shield that has protected the association from employee designations.

Last 4 In, First 4 Out

Below is a quick run down of how athletes can and cannot be paid.


–  Third party endorsements such as promoting a product or service through advertisement

– Social media influencing, i.e., Twitter, Instagram, TikTok, Facebook etc.

– Own work products and/or business, i.e., podcasts, Youtube videos, video game streaming, athletic lessons, etc.

– Personal promotion such as autograph signings, meet and greets, etc.


– Use of intellectual property from schools or conferences in endorsements

– Endorsement payments made from schools or conferences

– Facilitation of endorsements from schools or conferences

– Endorsement payments and/or booster payments as compensation for participation in collegiate athletics

“Back in my day…”

NIL rights fly in the face of the organization’s “amateurism” designation. NCAA.org features an entire page on amateurism and the organization requires all participating DI and DII athletes to be amateurism-certified before competing. The concept of amateurism dates all the way back to the NCAA’s 1906 inception. While the institution has done a remarkable job legitimizing and codifying amateurism in professional-grade sport, that foundation may face a potential threat.

Blue-chip high school basketball prospects have somewhat forced the NCAA’s hand. Over the course of the last year, the NCAA has witnessed some top-tier talent go to non-college program alternatives. The projected #1 overall pick in the 2020 draft, Lamelo Ball, elected to play overseas in Australia this past season, while the 23rd overall selection in the 2019 draft, Darius Bazley, took on a $1 million internship with New Balance. However, everything truly changed when the NBA G-League launched its professional pathway program at the end of 2018, which provided NBA prospects with a more “conventional” alternative to skill development than the aforementioned options.

The program has seen its popularity take off in recent weeks, welcoming three of the top 20 high school recruits in the country, who would have otherwise played for college programs. Jalen Green (#1) was reportedly considering Auburn and Memphis before announcing his G League decision. Meanwhile, Isaiah Todd (#14) and Daishen Nix (#20) spurned commitments to Michigan and UCLA respectively for the pathway alternative.

Moreover, others are expected to follow and for good reason – the program pays prospects $125,000 (at a minimum, top prospects like Green can make up to $1 million) and offers prospects a full scholarship to Arizona State University, which partnered with the program. However, these only outline the explicit benefits. Prospects who elect for this program (or any NCAA alternative) can already receive endorsement deals, market their own image, amongst other NIL rights, which the NCAA is currently working to introduce next season.

Sudden Death

The NCAA is on the clock and may consider instituting these changes even sooner or run the risk of losing other top high school prospects. Further, other states are already looking to follow the footsteps of California and Florida, which have already passed their own laws permitting NIL rights. The first of those agreements (Florida) goes into effect July of 2021 and will not wait for the NCAA. The consequences of having different systems of NIL compensation in place at different times across all 50 states are certain to be wide-reaching, but at a minimum will create vast disparities in compensation. For example, if Florida is indeed the first to implement its bill, it is reasonable to expect a surge of high school talent to Florida’s Division I schools, which would tip the competitive balance in the NCAA.

There are endless considerations for the NCAA to take into account as it moves forward. It looks as though Congress will have its hands full until 2021 between dealing with the pandemic the fact that it is an election year. For those reasons, the NCAA may largely be on its own in finding an equitable solution to implement NIL rights in all 50 states. As for now however, the ball is in the NCAA’s court.