Sports Law

“Football Is a Microcosm of America”

Emily Moss, MJLST Staffer

Sunday’s Super Bowl LV had a notably different tone than in any other year. Cardboard cutouts and masked fans filled the stadium, there was no audience on the field during The Weeknd’s halftime performance, and the NFL aired an anti-racism commercial that opened with the line “football is a microcosm of America.” This commercial, which NPR dubbed the “worst hypocrisy from a sports league,” is the most recent in the NFL’s string of racial justice focused actions. Yet the league where Colin Kaepernick has not played since he knelt in protest of police brutality and racial inequality is unwilling to reckon with its own racial injustices. Days before this year’s atypical Super Bowl aired, ABC News reported on emails it obtained, suggesting that clinicians doing evaluations as part of the NFL’s concussion settlement program were required to use different cognitive scales for Black and White players.

Th ABC News report stemmed from a long line of litigation over NFL players’ head injuries. In 2014, faced with growing research about the effects of professional football on players’ brains and a long list of players who committed suicide in a pattern related to brain injuries, the NFL and a class of “roughly 18,000 retired players and their beneficiaries” entered into a settlement agreement. Plaintiffs’ attorneys Sol Weiss and Christopher Seeger stated that the agreement was “an extraordinary settlement for retired NFL players and their families—from those who suffer with neurocognitive illnesses today, to those who are currently healthy but fear they may develop symptoms decades into the future.” Some plaintiffs, however, expressed concern, calling the settlement a “lousy deal” for players whose symptoms would not meet the compensation requirements.

On August 25, 2020, Black NFL retirees Kevin Henry and Najeh Davenport, on behalf of themselves and all others similarly situated, sued the NFL. The complaint claims that “the [NFL concussion] Settlement Agreement is marred by an unacceptable flaw: the National Football League and NFL Properties, LLC (collectively, ‘the NFL’) have been avoiding paying head-injury claims under the Settlement Agreement based on a formula for identifying qualifying diagnoses that explicitly and deliberately discriminates on the basis of race.” Pursuant to the settlement, in order to establish a player’s cognitive function decline, clinicians compare players to a baseline. When determining the baseline, doctors can consider a number of factors, including age, education, and, significantly, race. A scale that uses such “race-norming” assumes that Black players start out with a lower cognitive function baseline than White players. The result is that a Black player may be denied compensation for the same cognitive function that would trigger compensation for a White player. This scheme “is particularly insidious because it presumes Black retirees to be less intelligent than their non-Black fellow retirees.” The complaint thus alleges deprivation of equal rights under 42 U.S.C. § 1981.

The NFL moved to dismiss for failure to state a claim on November 2, 2020. The motion argues that (1) the use of “race-norming” is contemplated by the 2014 judicially-approved settlement to which the plaintiffs were given notice and an opportunity to object, (2) the plaintiffs failed to establish intent to discriminate as required by § 1981, and (3) the plaintiffs failed to establish but-for causation as required by § 1981. The plaintiffs filed a reply in December but the judge has yet not ruled.

In a statement responding to Henry and Davenport’s suit, NFL commissioner Roger Goodell claimed that “[t]he federal court is overseeing the operation and implementation of that settlement, and we are not part of selecting the clinicians, the medical experts, who are making decisions on a day-to-day basis.” However, when Davenport applied for compensation based on a determination from a clinician who did not apply race-norming standards, the NFL appealed his application, claiming “his neuropsychological test scores may have been calculated with improper demographic norm adjustments.” And while the NFL maintains that the settlement program does not require race-norming, according to a recent ABC News report, a neuropsychologist who evaluated NFL players for the settlement program claimed that, in his experience, “when clinicians deviate from the algorithm, there are multiple inquiries levied at them.” Another clinician stated that assessment was “right on target.”

The ABC News investigation supports the lawsuit’s claim that the NFL compensates White and Black players based on different standards. As one clinician put it “[b]ottom line is that the norms do discriminate against Black players . . . [s]o now what? In this time of reckoning, like many professions, I think we need to look closely at the expected and unexpected ramifications of our practices.” While the NFL has not released its settlement statistics, the ramifications of this practice is clear. Black retirees will be denied compensation more than White retirees. In a country where medical racism is prevalent, the NFL is indeed a “microcosm of America.”


#ChonkyBois: When It Comes to Running Shoes, How Thicc Is Too Thicc?

Molly Woodford, MJLST Staffer

Early last November, I wrote a blog post about the developing controversy surrounding the Nike Vaporfly NEXT%. At that time, the IAAF (track and field’s world governing body, which has now rebranded itself as “World Athletics”) had just announced that it was assembling a working group to examine the Vaporfly controversy and “find the right balance in the technical rules between encouraging the development and use of new technologies in athletics and the preservation of the fundamental characteristics of the sport: accessibility, universality and fairness.” The IAAF also announced that it expected the working group “to report back by the end of the year.”

True to its word, on January 31, 2020, the IAAF promulgated new rules governing footwear. Among other things, the new rules stated that all racing shoes could have a sole no thicker than 40mm and contain no more than one carbon plate. In addition, in order to prevent athletes from racing in prototypes that might otherwise comply with the rules, “any shoe that is first introduced after [April 30,] 2020 may not be used in competition unless and until it has been available for purchase by any athlete on the open retail market (i.e. either in store or online) for at least four months prior to that competition.” Since the first day of Olympic track and field is, for now, scheduled to begin on July 31, 2020, and the Olympics marathons are scheduled to take place on August 8 and 9, any racing shoe used in the Olympics must, therefore, be released for sale to the general public by the end of April.

The IAAF president, Sebastian Coe, stated that:

As we enter the Olympic year, we don’t believe we can rule out shoes that have been generally available for a considerable period of time, but we can draw a line by prohibiting the use of shoes that go further than what is currently on the market while we investigate further.

True to Coe’s words, under the new rules, the Nike Vaporfly NEXT% is legal, as is its successor, the AlphaFly Next%, which was announced by Nike on February 5, 2020, less than a week after the new IAAF rules. The “stack height,” or “the amount of material between your foot and the ground” of the AlphaFly is 39.5mm, versus 37mm in the Vaporfly Next%. By way of comparison, the stack height of the Nike Zoon Streak 7, a conventional marathon racing flat, is 26mm. Thus, the Next% line features a sole that is approximately 50% thicker than its traditional counterparts. “Running twitter” has taken to referring to the Alphafly as #ChonkyBois.

Nike made a limited number of Alphaflys available to Nike Plus members on February 29, 2020, to coincide with the United States Olympic Marathon Trials. In a genius marketing coup, Nike made the Alphafly available, for free, to all athletes competing in the Olympic Marathon Trials. According to Runner’s World, about 25% of competitors opted to wear the Alphafly, even though those who are not sponsored by Nike had just received the shoes days before the race (you generally do not want to try new things during a marathon, like shoes or nutrition). Runners were willing to take this risk because, while the Vaporfly boosts performances by ~4%, the Alphafly may help twice as much.  The previously-unheralded Jacob Riley intentionally chose to forgo pursuing sponsorship until after the Olympic Trials so that he could race in the Alphafly. His gamble paid off, with a personal best and an Olympic berth.

Nike’s competitors are working to match the effectiveness of the Alphafly, but they’re not there yet. With its legality no longer in doubt, the Alphafly is here to stay, for better or for worse.


When It Comes to Running Shoes, How Fast Is Too Fast?

Molly Woodford, MJLST Staffer

On October 12, 2019, Eliud Kipchoge made headlines for running a marathon in 1:59:41 in Vienna. A day later, Brigid Kosgei broke Paula Radcliffe’s long-standing women’s marathon world record by over a minute, recording a time of 2:14:04 at the Chicago Marathon. Nike sponsors both athletes. Kipchoge’s run does not count as an official world record for a number of reasons, including a rotating phalanx of pacemakers and a pace car, but he holds the official world record of 2:01:39 set at the Berlin Marathon in 2018. Two weeks before Kipchoge’s historic sub-two-hour run, Kenenisa Bekele, the world record holder at 5000m and 10,000m, missed Kipchoge’s world record by a mere two seconds at the 2019 Berlin Marathon. Nike also sponsors Bekele. All of these record-setting athletes wore some version of the Nike VaporFly during their races.

This spate of record-setting performances has reinvigorated a debate in the running community about whether these shoes confer an unfair advantage to competitors who wear them and should, therefore, be banned. The first iteration of the Nike VaporFly, later dubbed the 4%, first appeared on the feet of elite athletes in early 2016, at the U.S. Olympic Marathon Trials. The shoe became available to the public in July 2017, retailing at $250. Several studies (1, 2) have shown that, true to its name, the Nike VaporFly 4% makes wearers approximately 4% more efficient compared to other racing shoes (which make the wearers ~1.9% faster). Nike has since released an updated version, the Next%, which was worn by Kosgei in Chicago and Bekele in Berlin, as well as by Kipchoge’s entire rotating phalanx of pacers in his sub-2 attempt. Next%, now also available to the public for $250, is certainly intended to, and based on recent performances may actually, confer a benefit of more than 4% to its wearers. But is that fair? Other companies are racing to compete, but none appear to have caught up to Nike just yet. And, whether or not it is fair, is it legal?

In April 2017, the IAAF significantly modified its rule regarding shoes, apparently due to “speculation and the increased interest in the development” of the 4% and other shoes. Before the rule change, “[a]ll types of competition shoes [had to] be approved by IAAF.” After the change IAAF appears to approve the shoes post hoc, and only “[w]here evidence is provided to the IAAF that a type of shoe being used in competition does not comply with the Rules or the spirit of them” at which point “it may refer the shoe for study and if there is non-compliance may prohibit such shoes from being used in competition.” In response to the advantage conferred by the Nike VaporFly, IAAF released a statement in mid-October stating that its technical committee had established a working group to look into the issue.

Even if IAAF eventually determines that Nike’s technological advances are too advantageous, Nike seems to be the main beneficiary, thus far, of IAAF’s rule change. Nike has received an enormous amount of free press, this blog included, because of the recent spate of record-breaking performances, and the surrounding controversy. However, a group that could benefit are up-and-coming, innovative, shoe manufacturers. In the late aughts, a company called Spira built a marketing campaign around being banned by USATF and IAAF because of springs in their shoes. Whether or not Spira was ever actually banned appears to be an open question—USATF repeatedly stated that Spira was not banned, and three runners wore Spira shoes in the 2008 Olympics. However, Spira filed a lawsuit against USATF and IAAF, alleging that the organizations had violated antitrust laws. Spira voluntarily dismissed the suit. Although there is other evidence that USATF believed that Spira did not comply with the IAAF shoe rules.

Spira still exists today, though they never took off as a serious running shoe brand. Whether the Spira controversy was completely authentic or drummed up for publicity, the next Spira could benefit from IAAF’s rule change. Instead of worrying about when and if they’ll receive IAAF approval, a new company and its shoe will only be scrutinized by IAAF if “evidence is provided to the IAAF that a type of shoe being used in competition does not comply with the Rules or the spirit of them.”


Delay of Game: How the MLB’s Baseball Exemption Has Stood the Test of Time

Alex Karnopp, MJLST Staffer 

Rushing home after a long day at law school, I eagerly anticipated tuning in to the Milwaukee Brewers match-up with their division rivals, the St. Louis Cardinals. With the two teams vying for a spot in the upcoming playoffs, the game’s broadcast was, expectedly, upgraded to a national broadcast on ESPN. But as I tuned in, I couldn’t find the broadcast. I checked online, and sure enough, my Minneapolis cable provider had blocked the broadcast. They incorrectly determined I was within viewing territory of the local Fox Sports Wisconsin broadcast of the game. On top of that, my MLB.tv internet streaming subscription was blocked because of their policy of not airing national broadcasts. Despite my numerous subscriptions to ensure I could view all Milwaukee Brewers game throughout the season, I was prevented from watching one of their biggest games of the year.

To MLB fans, my situation comes to no surprise – the “black-box” broadcasting policies of the league leaves many viewers without choices, since MLB-determined blackout territories usually outreach local broadcasting territories. Cities like Cedar Rapids, Iowa, or Las Vegas, Nevada, fall outside any local viewing broadcast territories, yet sit between six overlapping MLB blackout areas. Complaining fans have caught the attention of the legal system. A couple recent class action lawsuits seek to challenge the MLB’s policy of entering these lucrative contracts with local broadcasting networks. However, they face difficult legal hurdles, specifically the established Baseball Exemption.  

The Baseball Exemption has been the cornerstone of the MLB’s antitrust defense since its establishment in 1922 by the Supreme Court in Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs. Courts have routinely upheld the exemption, most recently in Flood v. Kuhn. They noted in this opinion, however, this exemption should be modified by “congressional, and no judicial, action.”

The two lawsuits, Laumann v. NHL and Garber v. Office of the Comm’r of Baseball, were consolidated, and sought to singlehandedly dismantle these television contracts as violations of the Sherman Act. Legal scholars expressed optimism this would end the Baseball Exemption defense as applied to broadcasting. As these scholars expected, the United States District Court for the Southern District of New York, on denying MLB’s motion for Summary Judgment, rejected their argument that the Baseball Exemption applied to televised broadcasting. Sensing danger, the MLB settled with the class minutes before the trial began. While conceding marginally better access to their MLB.tv proprietary internet streaming service, they preserved their blackout policy.

With their deep pockets, the MLB will continue this pattern of deferring judicial adjudication of the blackout policy by settling these class action lawsuits. If classes want to dismantle the MLB’s suspect blackout policies, they need to take the Supreme Court’s advice in Kuhn and resolve the problem via legislation. In 2015, Congress introduced the FANS Act to ensure antitrust laws applied equally among all American professional sports teams. There has been no movement since. Perhaps the lawsuit signals to Congress of the social and legal momentum to end the MLB’s blackout policies. However, these class action lawsuits will likely have no more effect than that. It will be interesting to see if Congress does anything with the introduced bill, as it appears the best route to fix this current problem.