Mystery in the Metaverse: Examining Whether a Website Qualifies as a Place of Public Accommodation under the ADA

Photo by Christopher Gower on Unsplash

Lisa Rosenof, Associate Member, University of Cincinnati College of Law

I. Introduction

When Mark Zuckerburg announced in October 2021 that Facebook was rebranding itself as Meta, it created buzz surrounding the long-awaited concept of the “Metaverse.” Now, the Metaverse, a virtual reality-like online platform, is beginning to exert influence in all facets of the world, and the legal realm is no exception. This rise in virtual reality-like online platforms calls into question the rights of individuals with disabilities in accessing these platforms. Importantly, circuit courts are currently split on whether a website qualifies as a place of public accommodation under the Americans with Disabilities Act (“ADA”). If courts are to adopt the textualist majority approach and hold that a website does not qualify as a place of public accommodation, individuals with disabilities will be disproportionately affected by being denied accessibility to a venue in which a potentially large majority of their lives depends on.

Consequently, in Section II, this article will give context as to the circuit split and the differing courts opinions. Then, in Section III, this article will argue that websites should be considered places of public accommodation under the ADA. Finally, this article will conclude in Section IV by urging the U.S. Supreme Court and/or Congress to define “place of public accommodation” broadly as to include both physical and virtual venues.

II. Background

Pursuant to Congress, the purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”[1] Accordingly, the Act mandates that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”[2] Importantly, Title III of the Act provides twelve categories of private entities that qualify as “public accommodations,” such as hotels, restaurants, grocery stores, and many others, but it does not define the term “place of.”[3] Thus, Title III leaves the term “place of” a public accommodation open to interpretation by the courts. As a result, the circuit courts are split on whether a “place of public accommodation” is limited to a physical space.

The first step in examining whether websites are “places of public accommodation” requires consideration of the two canons of statutory interpretation. These two predominant theories are textualism and purposivism.[4] Generally, both theories share the same general goal of faithfully interpreting statutes enacted by Congress.[5] Textualists and purposivists, however, disagree about the best way to determine Congress’s objective intent.[6] Textualists focus on the words of the statute, emphasizing text over any unstated purpose, while purposivists argue that legislation is a purposive act, and judges should construe statutes to execute that legislative purpose.[7]

A. The Majority Textualist Approach

The majority textualist approach adopted by the Third, Fifth, Sixth, Ninth, and Eleventh Circuits interprets “places of public accommodation” to apply only to physical locations. Thus, in the majority of states, websites are not considered a “place of public accommodation” and not subject to the requirements of the ADA.  

i. Statutory Interpretation

The Third Circuit, in Ford v. Schering-Plough Corp., was the first to hold that the term public accommodation and the list of examples in the statute were not ambiguous and referred only to physical access.[8] The court further expressed that “the plain meaning of Title III is that a place of public accommodation is a place…”[9] Additionally, The Ninth Circuit, in Robles v. Domino’s Pizza, placed an emphasis on the language in the ADA detailing “services of any place of public accommodation,” as opposed to language stating “services in any place of public accommodation.”[10] Further, the court noted that “to limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.”[11]

Similarly, the Eleventh Circuit, in Gil v. Winn-Dixie Stores, used a strict textualist approach in its ruling, pointing to the extensive list of public accommodations within Title III.[12] The Eleventh Circuit was the only federal circuit court of appeals to explicitly hold that websites are not places of public accommodation, as the ADA defines the term.[13] The court noted that this list is limited to “actual, physical spaces.”[14] Intangible spaces, like websites, simply are not places of public accommodation under the ADA, according to the Eleventh Circuit.[15] However, the Eleventh Circuit recently vacated its April 2021 opinion on justiciability grounds.[16] The court held that because the injunction requiring Winn-Dixie to improve its website had expired in 2020, there was no active dispute for the court to resolve at the time of its April 2021 decision.[17]

ii. The Nexus Test

All circuits but the Eleventh Circuit require a sufficient nexus between the goods or services complained of and an actual physical place. By implementing this nexus test, the majority of circuits have held, with some variation in application, that a virtual space only avails itself of Title III requirements through its relationship to a corresponding physical space. Absent such a connection, the regulation does not reach the virtual space.

Applying the nexus test, the Ninth Circuit in Robles held that the alleged inaccessibility of Domino’s website impeded access to the goods and services of its physical pizza franchises, which are places of public accommodation.[18] Thus, Title III regulates the websites making them subject to the requirements of the ADA because they “connect customers to the goods and services of Domino’s physical restaurants.”[19]

Similarly, the Third Circuit in Ford, applied the nexus test but ultimately reached a different decision.[20] There, the employee sued her employer, Schering, and the carrier of Schering’s group insurance policy, MetLife.[21] According to the court, since the employee received her benefits via her employment at Schering, she had no nexus to MetLife’s “insurance office” and thus was not discriminated against in connection with a public accommodation.[22] Thus, the court found that benefits received via employment created no nexus with any physical office to the insurer.[23]

B. The Minority Puposivist Approach

The minority approach adopted by the First, Second, and Seventh Circuits, holds that a “place of public accommodation” is not limited to a physical place. Thus, websites can be places of accommodation independent of any connection to a physical space.

These courts opine that limiting the application of Title III to physical structures that consumers must enter to obtain goods and services would be contrary to the purposes of the ADA and Congress’ intent to ensure that individuals with disabilities fully enjoy the goods and services available to other members of the general public.

The First Circuit, in Carparts Distribution Center, Inc. v. Auto Wholesaler’s Association of New England, was the first to hold that a “place of public accommodation” is not limited to a physical place.[24] In support, the court first pointed to the inclusion of the words “travel service” and “service establishment” in the list of “public accommodations.”[25] According to the First Circuit, a “travel service” is not a physical place because “[m]any travel services conduct business by telephone or correspondence without requiring their customers to enter an office in order to obtain their services.”[26]  The court also noted that a “service establishment” includes providers of services that do not require a person to physically enter an actual physical structure.[27] Put differently, the court reasoned that a “place of public accommodation” is not limited to a physical place because the services of many entities, whose operations fall within one of the twelve “public accommodation” categories, are not limited to physical places.[28] The court found that to conclude otherwise “would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.”[29]

For similar reasons, the Seventh Circuit, in Morgan v. Joint Administration Board, held that “a place of public accommodation” is not limited to a physical place.[30] But unlike the First Circuit in Carparts, the court did not specifically reference any examples in the twelve “public accommodation” categories.[31] The court instead relied on the other two reasons mentioned in Carparts – the services of an entity and the ADA’s purpose – in stating that “the site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to sellers of goods and services.”[32] What matters is that the good or service is offered to the public.[33]

III. Discussion

A. Arguments for Not Considering Websites as Places of Public Accommodation

As with most cases, the issue here is one of statutory interpretation. The textualist argument follows that since websites are not explicitly defined in Title III of the ADA, they are not to be considered places of public accommodation.

Another prominent argument for not defining websites as places of public accommodation is the potential high cost of updating a website to make it accessible. Web accessibility applies to all disabilities that affect access to the web, including auditory, cognitive, neurological, physical, speech, and visual disabilities.[34] Further, providing web accessibility can take many forms, whether it be providing text captions for video and audio tracks for users who are deaf or hard-of-hearing, providing screen readers for users who are blind or visually impaired, or allowing users to enlarge font sizes for users with low vision.[35]

The cost of making a website accessible is based on a number of factors.[36] So many, in fact, it is nearly impossible to give a hard number.[37] However, the cost could range anywhere from a few thousand dollars to upwards of a million dollars.[38] This cost could disproportionately impose burdens on small businesses, many of which may be unable to fund these changes to their websites and thus would be limited in their virtual footprint.

B. Arguments for Considering Websites as Places of Public Accommodation

As expressed by the minority purposivist approach, defining websites as places of public accommodation is consistent with the purpose of the ADA which is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”[39]

Individuals with disabilities are currently paying the price for Congress’s omission of websites from the list of places of public accommodation. This is amplified when considered in light of the COVID-19 pandemic. While self-quarantining, Americans used online platforms to work, buy food, consume news and entertainment, attend school, and communicate with friends and family. Thus, individuals with disabilities may not be able to order food if websites lack accessible interfaces. After all, accessibility breeds inclusiveness.

Additionally, to make up for the hit on small businesses, a tax credit is available to employers with gross receipts not exceeding $1,000,000 or that had no more than 30 full-time employees when they provided reasonable accommodations to individuals with disabilities in the previous year.[40] An eligible small business may take a tax credit of up to $5,000 per year for accommodations made to comply with the ADA.[41]

In an entirely virtual world, the need for accommodations in compliance with federal statutes will be more pronounced than ever, making a narrow interpretation of “places of public accommodation” as only physical places not only dated but also harmful in a way that courts could not have imagined. The majority approach is flawed in that it fails to consider situations that have become increasingly prominent during the pandemic. Pursuant to Robles v. Domino’s Pizza, which held that websites could be places of public accommodation only if they connected customers to physical locations,[42] Domino’s could realistically evade the ADA by closing its physical restaurants and switching to a delivery-only ghost kitchen model. Additionally, since Netflix offers streaming video on a subscription basis and does not have retail stores, under the ruling of Robles, they would not be obliged to provide closed captioning or other accommodations. According to Robles, the same would apply for the Metaverse.

While the term has been floating around for the last few years, the word “metaverse” was coined by author Neal Stephenson in his 1992 sci-fi novel Snow Crash.[43] In his book, Stephenson referred to the metaverse as an all-encompassing digital world that exists parallel to the real world.[44] While we may not live in this sci-fi reality yet, technological advances are rapidly propelling daily life into the virtual world.

In a world that exists wholly virtually, with no links to physical locations, the current legal landscape allows the Metaverse to evade ADA requirements in the majority of states. The appeal of most virtual reality websites and applications is the user’s ability to escape into a different world and adopt a virtual persona. However, the Metaverse serves as an exact replica of the real world. Users can shop for real and virtual products, purchase real estate, attend concerts, and invest in digital artwork through NFTs.[45] Thus, the Metaverse should be required to provide accommodations in a similar manner to the real world. As programmers code the virtual universe of the future, accommodations under the ADA should be as prominent to them as they are to an architect designing a building. The right to accommodations does not and should not end at the edge of a physical space and Congress should take steps to codify this and adapt to the changing landscape of necessary accommodations.

IV. Conclusion

Given the lack of clear regulatory guidance or consensus among the federal courts, lawsuits challenging website accessibility are unlikely to end any time soon. Organizations are left to balance litigation risk against the potentially high cost of updating their websites and determine which standard they should follow. However, until the issue is resolved, many companies will neglect to make their online platforms accessible.

Because of the extreme split between the circuits, this issue is ripe to be addressed by the U.S. Supreme Court in the near future. The burden remains with Congress to pass meaningful legislation to clarify what is expected of businesses seeking ADA compliance. However, it behooves businesses to take proactive steps toward making their websites as accessible as possible. Congress should also step in and clarify the intent of the ADA in this application. If Congress fails to act, then the U.S. Supreme Court must resolve this circuit split before it leads to a sizeable discrepancy in the rights of individuals with disabilities that will only be further exacerbated by the rise of the Metaverse.


[1] 42 U.S.C.A. § 12101.

[2] 42 U.S.C.A. § 12182(a).

[3] 42 U.S.C.A. § 12181(7).

[4] Statutory Interpretation: Theories, Tools, and Trends, Congressional Research Service (Apr. 2018), https://www.everycrsreport.com/reports/R45153.html#_Toc510711644 [https://perma.cc/CUE9-5HX6].

[5] Id.

[6] Id.

[7] Id.

[8] Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998).

[9] Id. at 612; See also Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) (holding that the verbiage of the statute clearly implies that it implicates only physical spaces and that a disability policy not obtained in an office transaction, but instead offered solely to a business (employer), is not a service or good offered by a place of accommodation subject to the ADA); See also Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530 (5th Cir. 2016) (holding that vending machines were not places of public accommodation because the ADA definition of public accommodation only includes actual physical spaces open to the public).

[10] Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019).

[11] Id. at 905.

[12] Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), opinion vacated on reh’g, 21 F.4th 775 (11th Cir. 2021).

[13] Id.

[14] Id. at 1277.

[15] Id.

[16] Gil v. Winn-Dixie Stores, Inc., 21 F.4th 775 (11th Cir. 2021).

[17] Id.

[18] Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905-06 (9th Cir. 2019); See also Domino’s Pizza, LLC v. Robles, 140 S. Ct. 122 (2019) (noting Domino’s petition for review from the U.S. Supreme Court and the subsequent denial).

[19] Id. at 905.

[20] Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998).

[21] Id. at 603.

[22] Id. 

[23] Id. at 613.

[24] Carparts Distrib. Ctr., Inc. v. Automotive Wholesaler’s Ass’n of New Eng., Inc., 37 F.3d 12, 19 (1st Cir. 1994).

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id. at 20; See also Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32 (2d Cir. 1999), opinion amended on denial of reh’g, 204 F.3d 392 (2d Cir. 2000) (holding that Title III’s mandate that the disabled be accorded “full and equal enjoyment of the goods, [and] services…of any place of public accommodation,” suggests that the statute was meant to guarantee them more than mere physical access).

[30] Morgan v. Jt. Admin. Bd., Ret. Plan of Pillsbury Co. and Am. Fedn. of Grain Millers, AFL-CIO-CLC, 268 F.3d 456 (7th Cir. 2001).

[31] Id.

[32] Id. at 459.

[33] Id.

[34] Manish Dudharejia, 9 Ways You Can Make Your Website More Accessible, Search Engine Journal (Aug. 2020), https://www.searchenginejournal.com/make-website-more-accessible/347450/#close [https://perma.cc/V26W-EMRR].

[35] Id.

[36] Marc Avila, The Cost of Making Your Website Accessible, 3 Media Web (Jan. 30, 2020), https://www.3mediaweb.com/blog/the-cost-of-making-your-website-accessible/ [https://perma.cc/8R25-L2NZ].

[37] Id.

[38] Id.  

[39] 42 U.S.C.A. § 12101.

[40] What financial assistance is available to employers to help them make reasonable accommodations and comply with the ADA?, ADA National Network (Apr. 2022), https://adata.org/faq/what-financial-assistance-available-employers-help-them-make-reasonable-accommodations-and#:~:text=An%20eligible%20small%20business%20may,%24250%20but%20less%20than%20%2410%2C250 [https://perma.cc/H95T-EGFL].

[41] Id.

[42] Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019).

[43] Shamani Joshi, The Metaverse, Explained for People Who Still Don’t Get it, Vice (Mar. 15, 2022), https://www.vice.com/en/article/93bmyv/what-is-the-metaverse-internet-technology-vr [https://perma.cc/CBG7-YG5N].

[44] Id.  

[45] What Can You Do in the Metaverse, XR Today (Mar. 4, 2022), https://www.xrtoday.com/virtual-reality/what-can-you-do-in-the-metaverse/ [https://perma.cc/KR37-E2KM].

Effectuating Well Established Laws: Biden’s Ban on Workplace Raids

Photo by Scott 97006 on Flickr

Mallory Perazzo, Associate Member, University of Cincinnati College of Law

I. Introduction

It has long been illegal for employers to retaliate against undocumented workers that bring labor disputes by threatening to report their immigration status to Immigration and Customs Enforcement (“ICE”).[1]  Nevertheless, there are countless stories of just that.[2]  Several of the country’s primary labor agencies have created policies that aim to protect workers that bring labor violations, creating a safer and fairer workplace, but it is often ineffective for several reasons.  First, it is heavily dependent on the political climate, as the administration has broad authority to grant exceptions to the general rules.  Second, employers rarely face consequences for violations, in part because immigrants are often in too vulnerable of a position to bring lawsuits or may have already been deported. 

During the Trump administration, workplace raids were rampant, and employees reported increased levels of employer retaliatory behavior, including threats of calling ICE.[3]  In 2021, the Biden administration announced that the Department of Homeland Security (“DHS”) would halt workplace raids entirely.[4] 

Part II of this article discusses the various authorities that prohibit workplace retaliation against immigrants based on alien status.  Part III explains the shortcomings of the current laws but applauds the new administration for taking the step to prevent one common form of employment discrimination. 

II. Background

Several authorities signal employers that they may not retaliate against their workers by threatening immigration enforcement.  The National Labor Relations Act (“NLRA”) prohibits employers from using immigration status against their employees.[5]  For example, the National Labor Relations Board (“NLRB”) states that employers cannot threaten to call ICE because workers express interest in joining a union.[6]  The major labor agencies[7] as well as the DHS and ICE have also agreed and documented in a Memorandum of Understanding (“MOU”) that immigration enforcement should not take place in the workplace as a result of labor disputes.[8]   Among other things, ICE agreed not to frustrate the enforcement of labor laws and thwart attempts by other parties to manipulate its worksite enforcement activities for illicit or improper purposes.[9]  For example, the MOU could be triggered by an employer’s attempt to retaliate against workers for exercising their workplace rights through a surrogate, such as a lawyer or a police officer.[10]  Likewise, in an effort to prevent workplace retaliation against immigrants, in 2021, Homeland Security Secretary Alejandro Mayorkas banned the DHS from conducting mass workplace raids.[11] 

There are various remedies for victims, as well as legal consequences for violators of these laws.  Per the MOU, ICE agrees to consider requests to grant immigration relief for witnesses needed for a labor agency investigation.[12]  Labor agencies and ICE also retain the ability to seek visas for labor agency witnesses, such as victims of crimes for U-visas.[13]  In addition, a worker might choose to file a private suit against her employer for retaliating against her by calling ICE, which may be a violation of the Fair Labor Standards Act (“FLSA”).[14]  Finally, victims of labor abuse may be eligible for the exercise of prosecutorial discretion.[15]

III. Discussion

Notwithstanding several sources of law prohibiting it, it is easy to find stories where immigrants have been threatened and deported based on workplace retaliation. In 2005, a hotel owner called ICE to investigate twenty-one employees after the employees requested a living wage and other government-defined rights.[16]  In 2008, immigrants complained of dangerous working conditions following Hurricane Ike and were met with an ICE agent that arrested twelve laborers.[17]  Nearly one hundred immigration-related retaliation claims were filed in California in 2018, each of them detailing employers threatening to report workers to ICE.[18]  ICE has also been known to survey picket lines and other labor activities.[19]  These stories are not unique.  Stories of employers receiving consequences for the same activity, however, is less common. 

The goal of prohibiting retaliation is to create safer workplaces and to punish employers that exploit workers, rather than to punish immigrants for asserting workplace rights.  Unfortunately, largely unenforced laws provide little protection.  Remedies exist for violations of the MOU or NLRA, but they generally fall short.  One reason that they are inadequate is that they vary heavily depending on the presidential administration.  Another reason is that the laws do little to protect immigrants from deportation.  With the threat of deportation, immigrants are left vulnerable and therefore unequipped to speak against working conditions, unionize, and otherwise raise labor disputes. 

The MOU between the DHA and the labor agencies is cited as protecting workers, but it is not without shortcomings.[20]  The MOU is an interagency agreement but is not binding or enforceable.[21]  Therefore, changing administrations have the freedom to ignore or amend the terms of the agreement.[22]  The MOU also permits ICE to pursue a worksite enforcement action under certain circumstances, including when ICE leadership determines that enforcement is necessary due to national security concerns.  Furthermore, it grants the Secretary of the DHS broad authority to permit enforcement.  Unsurprisingly, this leads to different administrations creating more liberal or conservative standards for exceptions.  

Even the binding NLRA fails to meet its expectations, in part because immigrants continue to face deportation regardless of a violation.  The Board of Immigration Appeals has held that, although evidence was obtained through a raid initiated on a tip from the petitioner’s employer in furtherance of the employer’s unfair labor practices, the evidence of the petitioner’s alien status was properly admitted.[23]  That application effectively renders the prohibition of retaliation in the NLRA useless for an undocumented immigrant that fears deportation.  Therefore, immigrants are significantly less likely to assert their so-called rights.

The Biden administration’s controversial ban on workplace raids is a powerful step to diminish illegal discrimination.  The Trump administration increased the number of workplace raids, arguing it sent the message to stop illegal immigration and to discourage employers from hiring undocumented immigrants.[24]  The problem with this approach is that it allows employers to exploit workers without the fear of whistleblowing because workers are incapable or unwilling to demand their rights.  This negatively impacts all workers, including U.S. citizens, and it encourages unscrupulous employers to hire immigrants.  The new administration’s policy shifts the focus away from immigrant workers asserting their rights and instead calls for enforcement agencies to focus on employers that are intentionally exploiting vulnerable workers.[25]  The newly formed plan promises to provide overt protection for workers that report abusive workplaces.[26]

IV. Conclusion

It is hardly surprising that many immigrants are fearful to assert their workplace rights considering doing so has led to the deportation of many.  United States citizens as well as immigrant workers suffer when whistleblowers and union organizers are silenced.  The persisting practice of retaliating against immigrants in the workplace is highly problematic and worth preventing.  Unfortunately, the laws that have been in place for many years to prohibit this behavior are largely ineffective.  A more operative provision is Biden’s ban on workplace raids.  Nevertheless, the objective to end employer retaliation against immigrants is still a long way off.


[1] Immigrant Employee Rights Under the National Labor Relations Act, Nat’l Lab. Relations Bd., https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3024/immigrant_employee_rights_one_pager_english_pdf_21860.pdf.

[2] Andrew Khouri, More Workers Say Their Bosses Are Threatening to Have Them Deported, L.A. Times (Jan. 2, 2018), https://www.latimes.com/business/la-fi-immigration-retaliation-20180102-story.html. See also Rebecca Smith, ICED OUT: How Immigration Enforcement Has Interfered with Workers’ Rights, Nat’t Emp. L. Project (2009), https://s27147.pcdn.co/wp-content/uploads/2015/03/ICED_OUT.pdf.

[3] Elie Peltz, Giving Voice to the Silenced: The POWER Act as a Legislative Remedy to the Fears Facing Undocumented Employees Exercising Their Workplace Rights, 54 Colum. J.L. & Soc. Probs. 503 (2021). 

[4] The Biden Administration Announced the DHS Will Halt Workplace Raids, NPR (Oct. 17, 2021), https://www.npr.org/2021/10/17/1046850241/the-biden-administration-announced-the-dhs-will-halt-workplace-raids.  

[5] Immigrant Employee Rights Under the National Labor Relations Act, supra note 1.

[6] Id.

[7] “Major labor agencies” refers to the DHS, the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB”).

[8] Revised Memorandum of Understanding Between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites, DHS & DOL (Dec. 7, 2011), https://www.dol.gov/sites/dolgov/files/OASP/DHS-DOL-MOU_4.19.18.pdf [hereinafter Revised Memorandum].

[9] Id.

[10] Id.

[11] Bill Chappell, Homeland Security Secretary Orders ICE to Stop Mass Raids on Immigrants’ Workplaces, NPR (Oct. 12, 2021), https://www.npr.org/2021/10/12/1045295677/alejandro-mayorkas-ice-workplace-raids-dhs.

[12] Revised Memorandum, supra note 8.

[13] Id.

[14] See Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017) (holding an employee’s allegations state a claim against employer under the FLSA anti-retaliation provision when employer called ICE on employee for filing suit against employer). See also Contreras v. Corinthian Vigor Ins. Co., 25 F.Supp.2d 1053 (N.D. Cal. 1998) (demonstrating that employer’s threats to turn workers into immigration authorities violate the anti-retaliation provision of the FLSA). 

[15] Prosecutorial Discretion & Immigrant Workers Recommendations for Implementation, Nat. Immigration Law Ctr. (2012), https://www.nilc.org/issues/immigration-enforcement/pdimmworkers/.

[16] Smith, supra note 2, at 16.

[17] Id. at 18.

[18] Khouri, supra note 2.

[19] Smith, supra note 2, at 21.

[20] Peltz, supra note 3. 

[21] Id. at 523.

[22] Id.

[23] Montero v. INS, 124 F.3d 381 (2d Cir. 1997) (reaffirming the BIA’s decision). 

[24] Eileen Sullivan, Biden Ends Workplace Immigration Raids, Reversing Trump’s Policy, N.Y. Times (Oct. 12, 2021), https://www.nytimes.com/2021/10/12/us/politics/biden-workplace-immigration-raids.html.

[25] Id.

[26] Jasmine Aguilera, In ‘Transformational’ Immigration Shift, Biden Administration Wants to Target Employers, Not Undocumented Workers, Time (Oct. 13, 2021), https://time.com/6106554/biden-immigration-ice-workplace-raids/.

Analyzing Abuse of Prosecutorial Discretion in the RaDonda Vaught Verdict

Photo by Ante Samarzija on Unsplash

Gabriel Cripe, Associate Member, University of Cincinnati Law Review

I. Introduction

RaDonda Vaught, a former nurse at Vanderbilt University Medical Center (“VUMC”), faces several years in prison following her conviction on March 25th for gross neglect of an impaired adult and negligent homicide.[1] During the course of her employment at VUMC, Vaught made an enormous mistake—a mistake that ultimately led to the death of VUMC’s patient, Charlene Murphey.[2] However, Vaught was not the only one who made mistakes. Although Vaught disclosed her error to hospital staff, the neurologists from VUMC who reported her death failed to mention the error to the medical examiner.[3] Further, VUMC officials did not report the error to state and federal officials, as required by law.[4] VUMC then negotiated a settlement with Murphey’s family which included a non-disclosure agreement.[5]

This article will argue that the mistakes did not stop there. After laying out the events that led to Murphey’s death in Part II and the arguments at trial in Part III, this article will argue in Part IV that the Davidson County District Attorney’s Office erred by bringing charges against Vaught, and the jury erred when they convicted Vaught of gross neglect of an impaired adult and negligent homicide.

II. RaDonda Vaught’s Mistake

On December 26, 2016, RaDonda Vaught was working at VUMC.[6] She received a call from another nurse asking if she could assist with a patient, Murphey.[7] Murphey had recently been diagnosed with a brain bleed and was scheduled to receive a PET scan.[8] Murphey was highly claustrophobic, so prior to her PET scan, her doctor ordered a sedative, Versed, to be given to Murphey.[9] Vaught went to the automatic dispending cabinet (“ADC”) to retrieve the drug. ADCs are medication distribution systems that allow for computer-controlled store, dispensing, and tracking of medications.[10] At the ADC, Vaught typed either “versed” or “v-e”, unaware that the drug she was searching for was listed by its generic name “midazolam” in the system.[11] At this point, something popped up on the screen and Vaught tapped the “override” button. The ADC dispensed the medication.[12] Vaught later told investigators she thought it was odd that the medication was in powder form, so she turned the medication around to see instructions on how to reconstitute the medication,[13] meaning to dilute the medication into liquid form.[14]

Vaught next retrieved the necessary instruments to deliver the medication to Murphey and placed these instruments in a plastic bag. She wrote “versed 1 to 2” on the front of the plastic bag. Vaught then walked the medication to Murphey’s room with a new nurse she was training.[15] Prior to administering medication, nurses are supposed to scan the medication to make sure they have the correct drug for the specific patient; however, a scanner was not available to Vaught.[16] Vaught injected the saline into the powdered medication to reconstitute it.[17] She then injected the medication into Murphey.[18]

What Vaught failed to realize throughout this entire process is that the medication dispensed from the ADC was actually vecuronium bromide, not Versed.[19] Vecuronium bromide is a powerful paralyzing medication,[20] typically administered prior to surgery.[21] Vaught then left Murphey in the care of the PET scan technician.[22] Murphey became paralyzed, and her lungs started to depress causing difficulty breathing.[23] She suffered an anoxic brain injury due to the lack of oxygen.[24] Murphey was then resuscitated, but unfortunately, her family was eventually forced to remove her from life support.[25] She died in the early morning hours of December 27th.[26]

III. The Trial

Prosecutors from the Davidson County District Attorney’s Office charged Vaught with gross neglect of an impaired adult and reckless homicide. At the time of Vaught’s crime,[27] Tennessee law stated, “[i]t is an offense to knowingly, other than by accidental means, grossly neglect an impaired adult if the…neglect results in serious mental or physical harm.”[28] In closing arguments, the prosecutor told the jury that there were several ways Vaught’s conduct violated the statute. First, Vaught violated the statute when she failed to follow the “Five Rights of Medical Administration” prior to injecting Murphey with the vecuronium bromide.[29] Witnesses testified that when Vaught realized she did not have a scanner to scan the medication, she should have utilized the “Five Rights.”[30] This is used to ensure the nurse has “the right patient, the right drug, the right dose, the right route, and the right time.”[31] Second, the prosecutor argued Vaught violated the Tennessee statute by failing to assess Murphey’s vitals before and after administering what she believed to be Versed.[32] Finally, the prosecutor argued Vaught violated the statute when she failed to remain with the patient after administering the medication for proper monitoring.[33] The prosecutor argued that the unfortunate patient outcome was not an accident, and that Vaught made a knowing choice to disregard her training.[34]

A separate Tennessee statute defines reckless homicide as a “reckless killing of another.”[35] “Reckless” is defined under Tennessee law as “when the person is aware of, but consciously disregards a substantial and unjustifiable risk.”[36] Furthermore, the definition states that the disregard must “constitute[] a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint.”[37]

The prosecutor argued Vaught made a series of mistakes that constituted reckless homicide. First, Vaught violated her duty to verify the correct name of the medication.[38] Second, Vaught disregarded the red warning labels on the vecuronium vials[39] that read “Warning: Paralyzing Agent.”[40] Third, Vaught did not realize that the Versed she was supposed to administer was not a powder and, therefore, would not need to be reconstituted.[41] Fourth, she did not do a blind count of the medication inventory after receiving the medication from the ADC.[42] Prosecutors argued this would have alerted Vaught to her mistake.[43]  Fifth, by her own admission, Vaught allowed herself to be distracted when retrieving and administering the medication.[44] Sixth, Vaught consciously disregarded her education and training.[45] Her training should have put her on notice that her conduct put her patient at risk, prosecutors argued.[46]

In the defense’s closing, Vaught’s attorney emphasized her candor through the investigation.[47] She immediately admitted her mistake, was forthcoming throughout the investigation, and expressed concern for Murphey and her family.[48] Her attorney argued that others, including VUMC administration, doctors, and other hospital staff, shared blame for Murphey’s death, but Vaught was made out to be a scapegoat.[49] He argued that Vaught could not have consciously disregarded the risk because she was never aware that she had the wrong medication.[50] He told the jury that what happened was an accident and that under the gross neglect of an impaired adult statute, accidents are specifically exempted.[51]

The jury found Vaught guilty of gross neglect of an impaired adult, but not guilty of reckless homicide.[52] However, the jury found Vaught guilty of the lesser included offense[53] of negligent homicide.[54]  Tennessee defines negligent homicide as “negligent conduct that results in death.”[55] Negligence is defined as when a person acts “with criminal negligence with respect to the circumstances surrounding that person’s conduct or the result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.”[56] Therefore, the jury did not find that Vaught consciously disregarded the risk but did find that she should have been aware of the risk her conduct could cause.

IV. Discussion

Prosecutors in the Davidson County District Attorney’s Office should not have charged RaDonda Vaught with a crime. Prosecutors are given wide discretion when deciding whether to prosecute someone.[57] If the prosecutor decides not to bring charges, this decision is not reviewable by the court.[58] A prosecutor can choose not to bring charges for any number of reasons, including if the prosecutor does not believe prosecution would serve the broader “interests of justice.”[59] This means that even if the prosecutors believed Vaught’s conduct violated the statute, they could have decided not to prosecute her because the prosecution may have larger consequences outside of the effect on Vaught individually. This is exactly what should have been done.

Prosecutors should not have charged Vaught for three reasons. First, Vaught’s prosecution disincentives disclosure of medical errors. After Vaught made the enormous mistake, she made the correct and respectable decision to report her error to the hospital staff.[60] Throughout the investigation, she was forthcoming with investigators about what happened.[61] The lethal consequences of medical errors may be reversible if recognized in time. Criminalizing medical errors forces these errors into the shadows where they are unable to be corrected. A nursing and sociology professor at the University of Pennsylvania recently told National Public Radio (“NPR”) that “the only way you can really learn about errors is to have people say. ‘Oh, I almost gave the wrong drug because…’ Well, nobody is going to say that now.”[62] Following the verdict, the American Nurses Association (“ANA”) and the Tennessee Nurses Associations (“TNA”) released a statement, writing that “[t]here are more effective and just mechanisms to examine errors, establish system improvements and take corrective action. The non-intentional acts of Individual [sic] nurses like RaDonda Vaught should not be criminalized to ensure patient safety.”[63]

Second, the decision to prosecute further exacerbates the decline in morale among nurses and contributes to the nursing shortage at a time when nurses are needed most. During the ongoing COVID-19 pandemic, nurses were expected to work long hours with increased nurse-to-patient ratios.[64] Nurses were put at an increased risk of contracting the virus, especially in early March 2020 when personal protective equipment was scarce.[65] Now, nurses across the country express a sharp decline in morale.[66] The increased need for nurses and this decline in morale has led to a nursing shortage.[67] The U.S. Bureau of Labor Statistics estimates that nearly 200,000 average annual job openings for nurses over the next decade.[68] A recent survey of nurses showed that over 20% planned to retire within the next five years.[69] In their joint statement, the ANA and TNA wrote, “The nursing profession is already extremely short-staffed, strained and facing immense pressure . . . This ruling will have a long-lasting negative impact on the profession.”[70] The profession may already be experiencing this negative impact. Emma Moore, a nurse practitioner at a community health clinic, quit her job four days after the verdict. She told NPR that her job was “not worth the possibility . . . that this will happen if I’m in a situation where I’m set up to fail.”[71]

Finally, the decision to prosecute was incorrect because it misunderstands the nature of the nursing profession. Due to the increased nurse-to-patient ratio, the work of nurses is fast paced and hectic.[72] As Vaught’s defense attorney stated in closing, “I used to think that I operated under a lot of pressure running from court to court, having hearings, having trials… until I met RaDonda Vaught and the nurses that do the kind of work that she does.” To put it simply, attorneys cannot fully understand the nature of the work that nurses do. Prosecutors at trial emphasized that Vaught rushed off to care for another patient after administering the medication to Murphey and left Murphey with the technician. But Vaught had other patients that also needed her care. Vaught believed she administered the correct medication and that there was no reason to stay to monitor the patient. A reduction in nurse-to-patient ratio would have solved this problem, but this was not up to Vaught; it was up to the administration at VUMC. Further, prosecutors argued she was reckless by utilizing the ADC’s override function to obtain the medication. This function is used in emergency situations to option medications quickly.[73] However, experts have argued that the use of the override function is a daily event at many hospitals.[74] When Vaught testified before the nursing board, she stated that, “[o]verriding was something we did as part of our practice every day. You couldn’t get a bag of fluids for a patient without using an override function.”[75] At trial, a witness testified that the hospital was hampered with technical issues at the time of Murphey’s death.[76]

After prosecutors decided to charge and bring the case to trial, the jury was put in a difficult position. However, the jury should have found Vaught not guilty on both counts and not guilty on all lesser included offenses. As to count one, gross neglect of an impaired adult, Vaught’s conduct fell within the exemption “other than by accidental means.” When viewing Vaught’s conduct in the context of the fast-paced and stressful work environment, her actions can best be described as an enormous mistake—an accident that had disastrous and heart wrenching consequences, but an accident, nonetheless.

The jury correctly found Vaught not guilty of reckless homicide. As the defense argued, one cannot consciously disregard a risk that they were not even aware existed. Because of Vaught’s mistake, she was not aware that she had the wrong medication and, therefore, could not have consciously disregarded the risk that comes from administering that medication. The jury’s decision to find Vaught guilty of negligent homicide is defensible and reasonable minds can disagree over whether this was the correct decision. Under this verdict, the jury found that Vaught should have been aware of the risk that her conduct could lead to the death of Murphey. Vaught certainly made an enormous mistake and, after receiving the medication, overlooked opportunities to correct this mistake. But utilizing the override function on the ADC and rushing to administer the medication was part of the environment she was in. The jury made the incorrect decision but, for the reasons stated earlier, the charges should have never been brought to the jury to make this difficult decision.

V. Conclusion

In a perfect world, prosecutors never would have brought charges against Vaught. This decision disincentives disclosure of medical errors and reduces patient safety, exacerbates the already increasing nursing shortage, and misunderstands the nature of nursing. After this decision was erroneously made, the jury was put in a difficult position. They correctly found Vaught not guilty of reckless homicide and consciously disregarding a risk. However, the jury incorrectly found her guilty of gross neglect of an impaired adult, because Vaught’s conduct was an accident, and incorrectly found her guilty of negligent homicide because the environment Vaught was in contributed to this tragedy. Rather than criminalizing these mistakes, the legal system should leave these decisions to state nursing boards who can better understand and regulate the profession. Nursing boards can investigate and choose to rescind violators’ licenses or levy fines. This allows for accountability in the nursing profession and maintains patient safety without the negative consequences of criminal prosecution.


[1] Brett Kelman, Former Nurse Found Guilty in Accidental Injection Death Of 75-Year-Old Patient, Nat’l Pub. Radio (Mar. 25, 2022), https://www.npr.org/sections/health-shots/2022/03/25/1088902487/former-nurse-found-guilty-in-accidental-injection-death-of-75-year-old-patient.

[2] Criminal Conviction Following A Fatal Medication Error: The RaDonda Vaught Case, Hancock Daniel (Mar. 29, 2022), https://hancockdaniel.com/2022/03/criminal-conviction-following-a-fatal-medication-error-the-radonda-vaught-case/?utm_source=rss&utm_medium=rss&utm_campaign=criminal-conviction-following-a-fatal-medication-error-the-radonda-vaught-case.

[3] Brett Kelman, The RaDonda Vaught Trial Has Ended. This Timeline Will Help With The Confusing Case,Tennessean (Mar. 27, 2022), Https://www.tennessean.com/story/news/health/2020/03/03/vanderbilt-nurse-radonda-vaught-arrested-reckless-homicide-vecuronium-error/4826562002/.

[4] Id.

[5] Id.

[6] WKRN News 2, RaDonda Vaught Trial: State’s Closing Arguments, Youtube (Mar. 25, 2022), https://www.youtube.com/watch?v=IqBbyVjUFGw.

[7] Id.

[8] Id.

[9] Id.

[10] Matthew Grissinger, Safeguards for Using and Designing Automated Dispensing Cabinets, Nat’l Lib. of Med. (Sept. 2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3462599/.

[11] Katherin Oung, Former VUMC Nurse RaDonda Vaught Found Guilty for Death of Patient By Accidental Injection, Vanderbilt Hustler (Mar. 31, 2022), https://vanderbilthustler.com/47301/featured/former-vumc-nurse-radonda-vaught-found-guilty-for-death-of-patient-by-accidental-injection/.

[12] WKRN News 2, supra note 6.

[13] Id.

[14] Edyne Greenberg, Reconstituting Medications: How to Fluff Up Medications, Austin Community College, page 1, https://www.austincc.edu/rxsucces/pdf/reconstructionpdf.pdf (last visited Apr. 4, 2020).

[15] WKRN News 2, supra note 6.

[16] Criminal Conviction Following A Fatal Medication Error: The RaDonda Vaught Case, supra note 2.

[17] WKRN News 2, supra note 6.

[18] Id.

[19] Kelman, supra note 1.

[20] Kelman, supra note 3.

[21] Cerner Multum, Vecuronium, Drugs.com (July 19, 2021), https://www.drugs.com/mtm/vecuronium.html.

[22] WKRN News 2, supra note 6.

[23] Id.

[24] Id.

[25] Id.

[26] Kelman, supra note 3.

[27] This statute has since been repealed. Now, a separate statute titled “Neglect of an Elderly or Vulnerable Adult” states, “It is an offense for a caregiver to knowingly neglect an elderly or vulnerable adult, so as to adversely affect the person’s health or welfare.” Tenn. Code Ann. § 39-15-507.

[28] Tenn. Code Ann. § 71-6-19.

[29] WKRN News 2, supra note 6.

[30] Id.

[31] Frank Federico, The Five Rights of Medication Administration, Inst. for Healthcare Improvement, http://www.ihi.org/resources/Pages/ImprovementStories/FiveRightsofMedicationAdministration.aspx#:~:text=One%20of%20the%20recommendations%20to,route%2C%20and%20the%20right%20time (last visited Apr. 4, 2022).

[32] WKRN News 2, supra note 6.

[33] Id.

[34] Id.

[35] Tenn. Code Ann. § 39-13-215.

[36] Tenn. Code Ann. § 39-11-106.

[37] Id.

[38] WKRN News 2, supra note 6.

[39] Id.

[40] Kyle Cooke, Prosecutors: Former Vanderbilt Nurse Missed Multiple Warnings Before Giving Patient Deadly Drug, WVLT 8 (Mar. 22, 2022), https://www.wvlt.tv/2022/03/22/prosecutors-former-vanderbilt-nurse-missed-multiple-warnings-before-giving-patient-deadly-drug/.

[41] WKRN News 2, supra note 6.

[42] A blind count is when the nurse counts the inventory of the medication prior to removing the medication. Pyxis MedStation Controlled Substances, page 2, Santa Barbara County Dep’t of Behavioral Wellness, https://www.countyofsb.org/behavioral-wellness/policy/4666#:~:text=Blind%20Count%20%E2%80%93%20when%20a%20user,they%20are%20witnessing%20a%20discrepancy (last visited Apr. 4, 2022).

[43] WKRN News 2, supra note 6.

[44] Id.

[45] Id.

[46] Id.

[47] WKRN News 2, RaDonda Vaught Trial: Defense’s Closing Arguments, Youtube (Mar. 25, 2022), https://www.youtube.com/watch?v=tAjZrGsnB2o.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Kelman, supra note 1.

[53] A lesser included offense means a less serious offense that the defendant must have committed if they committed the more serious offense. LawInfo Writer, What Does ‘Lesser Included Offense’ Mean in Criminal Law?, LawInfo (Mar. 26, 2021), https://www.lawinfo.com/resources/criminal-defense/what-is-lesser-included-offense-criminal-law.html. In Tennessee, the judge may instruct the jury that if they find the defendant not guilty of the more serious charge (e.g. reckless homicide), they may find the defendant guilty of the less serious charge (negligent homicide). Tenn. Code Ann. § 40-18-110.

[54] Kelman, supra note 1.

[55] Tenn. Code Ann. § 39-13-212.

[56] Tenn. Code Ann. § 39-11-106.

[57] Jens David Ohlin, Adjudicative Criminal Procedure, 53, Wolters Kluwer (2020).

[58] Id.

[59] Id. at 54.

[60] Kelman, supra note 3.

[61] WKRN News 2, supra note 35.

[62] Brett Kelman, Why Nurses are Raging and Quitting After the RaDonda Vaught Verdict, Nat’l Pub. Radio (Apr. 5, 2022), https://www.npr.org/sections/health-shots/2022/04/05/1090915329/why-nurses-are-raging-and-quitting-after-the-radonda-vaught-verdict.

[63] ANA Enterprise, Statement in Response to the Conviction of Nurse RaDonda Vaught, NursingWorld (Mar. 25, 2022), https://www.nursingworld.org/news/news-releases/2022-news-releases/statement-in-response-to-the-conviction-of-nurse-radonda-vaught/.

[64] Paulina Firozi and Sarah Fowler, ‘Emotionally, Physically, Mentally Tired’: Nurses Say Morale Has Hit a Pandemic Low, Wash. Post (Oct. 15, 2021),https://www.washingtonpost.com/health/2021/10/15/nurses-covid-morale/.

[65] Beth Healy and Saurabh Data, ‘Health Care Heroes Really Got The Shaft’: Some Workers With COVID Had To Fight For Pay, WBUR (Jan. 19, 2022), https://www.wbur.org/news/2022/01/19/covid-workers-compensation-pandemic-massachusetts.

[66] Firozi and Fowler, supra note 49.

[67] American Nurses Associations, Nurses in the Workforce, NursingWorld, https://www.nursingworld.org/practice-policy/workforce/ (last visited Apr. 4, 2020).

[68] Id.

[69] Id.

[70] ANA Enterprise, supra note 48.

[71] Kelman, supra note 52.

[72] Laila Govasli, Betty-Ann Solvoll, Nurses’ Experience of Busyness in their Daily Work, Wiley Online Lib. (Mar. 4, 2020), https://onlinelibrary.wiley.com/doi/full/10.1111/nin.12350.

[73] Karla Miller, et al., Evaluation of Medications Removed from Automated Dispensing Machines Using the Override Function Leading to Multiple System Changes 1, https://www.ahrq.gov/downloads/pub/advances2/vol4/advances-miller_93.pdf.

[74] Brett Kelman, In Nurse’s Trial, Investigator Says Hospital Bears ‘Heavy’ Responsibility for Patient Death, KHN (Mar. 24, 2022), https://khn.org/news/article/radonda-vaught-fatal-drug-error-vanderbilt-hospital-responsibility/.

[75] Id.

[76] Id.

Claws Out: The Rise of Clawback Provisions in Legal Employment Contracts

Photo by Jossuha Théophile on Unsplash

Margot Tierney, Associate Member, University of Cincinnati Law Review

I. Introduction

When agreeing to an employment contract, new employees often find themselves parsing through dense and confusing lines of the contract’s various provisions before signing on the dotted line. While reading through the terms of these contracts, fledgling lawyers often find that their employment contracts contain clawback provisions. Clawback provisions have risen in popularity in recent years, increasing from being present in 3% of employment contracts to 85% between 2005 and 2010.[1] Law firms have participated in this phenomena in an attempt to keep new talent confined to the firm and, ultimately, to prevent lateral movement across firms.

II. Background

Clawback provisions are clauses in contracts typically used to protect the contracting organization’s interests.[2] The implementation of clawback provisions has its roots in agency law,[3] specifically in the faithless servant doctrine.[4] The faithless servant doctrine holds that “an agent is obliged to be loyal to his employer and is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost faith and loyalty in the performance of his duties.”[5] Under the faithless servant doctrine, however, the principal, or the employer, was entitled to refund all of the wages paid to the employee following the employee’s disloyalty, including wages earned while loyally performing assigned tasks.[6]

However, clawback provisions in modern contracts are less intense than the unfaithful servant doctrine. With the financial crisis of 2008 serving as an impetus, the Securities Exchange Commission (SEC) allowed clawback provisions in more situations in order to deter dishonest business practices.[7] In investment situations, investors are entitled to “claw back” or take back the money they invested should the situation go awry.[8] Clawback provisions can be used in the employment contracts to deter employees from taking unapproved actions.[9] Much like how an investor is able to have their investment returned to them through a clawback provision, employers can utilize clawback provisions in employment contracts to have signing bonuses and other benefits returned to them if the employee, for example, leaves the company prior to the end of the employee’s contract term.[10] However, not all forms of compensation are subject to clawback provisions, such as 401k plans and employee wages.[11] In situations where these provisions do apply, clawback provisions often require that the employee pay a fee in addition to returning the bonus or other benefit.[12] Therefore, because of the harsh consequences of breaching the contract that clawback provisions provide, these provisions are often used to ensure that valuable employees are retained.[13]

These provisions are used across various industries in all kinds of agreements.[14] The legal industry is just one professional field that implements clawback provisions in its employment contracts. Law firms have increasingly added clawback provisions to employment contracts for both their new associates as well as their partners.[15] Since January of 2022, three of the largest thirty law firms in the country have implemented clawback provisions into their partners’ employment contracts in an attempt to prevent these partners from seeking opportunities at other firms.[16] These provisions typically call for a return of yearly bonuses if the partners choose to leave the firm.[17] Therefore, these provisions essentially serve as a proxy for restrictive covenants, which are difficult to properly enforce in lawyers’ employment contracts.[18] While these clawback provisions have proven to save firms money by forcing departing partners to abandon their would be bonuses when seeking new opportunities, clawback provisions also pose various risks to these firms.  

III. Discussion

When implementing claw back provisions, employers must consider the pros and cons of applying such a policy. One major drawback to implementing clawback provisions in employment contracts is that potential new employees may seek employment at another firm. The sight of a clawback provision in a new associate’s contract may be daunting for these attorneys who fear being locked into the first job they accept. Approximately forty to fifty percent of attorneys stay at their first job for five years or less.[19] Many new attorneys follow an informal plan called “three years and out plan” where they put in three years at a large law firm and then switch to a different, perhaps less strenuous section of the legal field.[20] Therefore, a new attorney looking to go into “big law” out of law school may opt to work for a firm that does not utilize clawback provisions in its employment contracts.

Another drawback that an employer may face when writing clawback provisions into contracts is the cost of litigation. Because the payments that the employer is attempting to regain have already been paid out to the employee, the employer may need to file suit against the former employee to regain the bonuses or other incentives covered by the clawback provision.[21] Additionally, other legal issues may arise in attempting to regain these benefits from the former employee, such as whether the terms of the clawback provision are even enforceable against the employee.[22] Despite the fact that these individuals are attorneys, they still bear the monetary and temporal cost of potential litigation.

Despite the potential shortcomings of clawback provisions, there are also significant incentives to use these provisions in employment contracts. Perhaps the most obvious incentive is that these provisions keep the talent within the firm.[23] The perks of keeping the same employees versus having to constantly turn over new employees are numerous. First, hiring a new employee is expensive.[24] Firms have to use their financial resources, as well as devote a substantial amount of time to recruiting these employees.[25] Once the employee is recruited and hired, then the firm must spend additional money on training and managing them.[26] All of these costs, paired with the opportunity costs of losing a talented attorney to a potential competitor, provide law firms with incentive to retain their original hires via clawback provisions.

Additionally, maintaining a constant workforce composed of primarily the same people from year to year builds a better sense of community both within the firm and for the firm’s clients.[27] When employees remain with a firm for an extended period of time, those employees are able to build stronger relationships with their co-workers as well as their clients.[28] Firms that are able to retain employees are able to function more efficiently because employees are familiar with the ways in which the firm works as well as with the ways in which their coworkers work.[29] This, in turn, can lead to increased employee satisfaction.[30] Put simply, when an attorney knows who will be in the office next to them, who to ask about a particular legal issue, or even who to go to the next ballgame with, their job satisfaction increases. A key part of the community building is maintaining a stable work force, and clawback provisions serve as one means of achieving this.

IV. Conclusion

As the legal world becomes increasingly competitive, firms will take affirmative steps to ensure that they are able to perform optimally. Clawback provisions are just one of the mechanisms through which these firms are able to retain talented attorneys; however, this effort to preserve current talent and keep a consistent work environment may come at the cost of deterring new attorneys from seeking employment opportunities at these firms. These agreements will add a level of complexity to the legal field going forward. As the legal field becomes increasingly mobile, clawback provisions represent a potentially potent tool for firms to retain talented lawyers.


[1] The number of clawback provisions in contracts has increased from 3% to 85% from 2005 to 2010. Arnold and Clifford, What are Clawback Provisions?, Arnold and Clifford LLP (May 12, 2020), https://www.arnlaw.com/blog/2020/05/what-are-clawback-provisions/.

[2] Id.

[3] Neal H. Klausner, Keeping the Faith…less Servant Doctrine Alive, Davis and Gilbert Law (May 3, 2021), https://www.dglaw.com/keeping-the-faithless-servant-doctrine-alive/.

[4] Id.

[5] Id.

[6] Id.

[7] Gary Gensler, Statement on Rules Regarding Clawbacks of Erroneously Awarded Compensation, U.S. Securities and Exchange Commission (Oct. 14, 2021), https://www.sec.gov/news/public-statement/gensler-clawbacks-2021-10-14.

[8] Arnold and Clifford, supra note 1.

[9] Paycor, Clauses: Everything Your Business Needs to Know, Paycor (May 24, 2021), https://www.paycor.com/resource-center/articles/clawback-clauses/.

[10] Id.

[11] Arnold and Clifford, supra note 1.

[12] Id.

[13] Id.

[14] Id.

[15] Zack Needles, Law Firms Increasingly Using Clawback to Quell Lateral Departures, The Morning Minute (Mar. 23, 2022), https://www.law.com/2022/03/23/law-firms-increasingly-using-clawbacks-to-quell-lateral-departures-the-morning-minute/.

[16] Id.

[17] Id.

[18] Robert I. Steiner, Clawback Provisions as an Alternative to Traditional Restrictive Covenants – Enforcement and Practical Considerations, Kelly, Drye and Warran LLP (May 2015).

[19] Needles, supra note 15.

[20] Joshua Holt, The Three Years and Out Plan, Biglaw Investor (Oct. 20, 2021), https://www.biglawinvestor.com/the-three-years-and-out-plan/.

[21] Gretchen Harders, Bonus Compensation and Clawbacks: What Employers  Need to Know, Epstein, Becker, Green (Jun. 12, 2009), https://www.ebglaw.com/insights/bonus-compensation-and-clawbacks-what-employers-need-to-know/.

[22] Id.

[23] Needles, supra note 15.

[24] Marc Holliday, 10 Benefits of Employee Retention for Business, Oracle Netsuite (Feb. 23, 2021) https://www.netsuite.com/portal/resource/articles/human-resources/employee-retention-benefits.shtml.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

What’s in a Name? Class Struggle and “Employee” or “Independent Contractor” Status

Photo by Tim Mossholder on Unsplash

Jack Verner, Associate Member, University of Cincinnati Law Review

I. Introduction

“The history of all hitherto existing society is the history of class struggles…The bourgeoisie has stripped of its halo every occupation hitherto honoured and looked up to with reverent awe. It has converted the physician, the lawyer, the priest, the poet, the man of science, into its paid wage labourers.”[1] Certainly, the adversarial history of labor in America illustrates this thesis. Generations of workers in America have organized, picketed, boycotted, and physically fought for workplace protections and the right to unionize.[2] In turn, those protections and rights have been steadily eroded by the ruling class.[3] One such eroding force comes from the blunting of the National Labor Relations Act as legislatures and corporations press to reduce the class of “employees” afforded the Act’s protection.[4]

Section II of this note explores the erosion of the class of “employees” protected by American labor law. Section III argues for expanding the definition of “employees” as a necessary tool to protect workers. Section IV concludes with a possible pathway for extending the protection of the NLRA to more workers.

II. Background

The National Labor Relations Act of 1935 (“NLRA”) is the cornerstone of the rights of employers and employees.[5] Among other things, the NLRA confers to employees the right to organize, join unions, and bargain collectively.[6] However, the NLRA’s definition of “employee” does not include all workers.[7] At the time of passage, the NLRA’s definition of employee was broad, open-ended, and containing only a few enumerated exceptions (most notably, agricultural and domestic workers).[8] Therefore, in NLRB v. Hearst Publications, the Supreme Court initially interpreted the definition of “employee” under the NLRA to be as expansive as possible.[9] In Hearst, the Supreme Court rejected the traditional common law test of classifying workers based on factors such as to what extent the worker was a “servant of the master” and to what extent the “master controls the details of the servant’s work” and other similar factors.[10] Rather, the Supreme Court found that the purpose of the Act is best achieved by allowing the National Labor Relations Board (“the Board”) broad discretion in deciding whether a certain class of workers constitute “employees” and that the purpose of the act is to substitute “so far as its power could reach, the rights of workers to self-organization and collective bargaining for the industrial strife which prevails where these rights are not effectively established.”[11] The Supreme Court in Hearst adopted what came to be known as the “economic realities” test of determining employee status; a worker is an employee not if the worker’s employment conforms to the old common law system of “master-servant” analysis, but whether the “economic facts of the relation make it more nearly one of employment than of independent business enterprise with respect to the ends sought to be accomplished by the [Act].”[12]

Shortly after Hearst, Congress passed the Taft-Hartley Act of 1947 (“THA”).[13] Among other things, the THA amended the definition of “employee” in the NLRA to exclude “independent contractors” from coverage by the Act.[14] This amendment “legislatively overturned Hearst Publications’ adoption of the economic realities test and ordered the Board and courts to use the common-law test to define the employer-employee relationship.”[15] Therefore, the next definitive Supreme Court ruling on the matter, NLRB v. United Insurance Co., eschewed the economic realities test in favor of a multi-factor test reminiscent of the common-law factors; considering the agency workers have over their hours, their relationships with management, whether they own their own businesses, whether they have a permanent/impermanent working agreement, how their work is assigned, whether they can refuse work, to what extent the employer supervises and controls work, whether the workers have offices, whether they can be disciplined, and whether the workers have traditional benefits.[16] The Board has clarified in Roadway Package System Inc. that this multi-factor test “specifically permit[s] the consideration of other relevant factors as well, depending on the factual circumstances presented.”[17]

III. Discussion

The evolution of the legal distinction between employees and independent contractors may seem subtle but has important implications. The cynic may justifiably be concerned about this development; after all, the very purpose of the THA and rulings which follow seem designed to exclude a larger share of workers from the category of employee. When the Supreme Court in Hearst rejected the old distinction methodology and adopted a test designed to extend more protections, Congress struck back and specifically created a new class of workers to exclude from employee protection and functionally compelled the courts to return to the old test, affording protection to fewer workers.[18] Notably, the NLRA as originally passed and as amended contained very specific exclusions from the definition of “employee”; first agricultural and domestic workers and then independent contractors.

This shrinking of worker protections must be stymied wherever possible. The NLRA rights of employees to organize and collectively bargain are essential tools for protecting workers’ rights, promoting healthier and more democratic workspaces, and even for growing a stable economy.[19] Furthermore, the elephant in the room cannot be ignored: every statutory exception from NLRA coverage disproportionately impacts people of color.[20] Historically and presently, people of color have been disproportionately overrepresented in the excluded categories of agricultural and domestic workers and independent contractors.[21] Legal scholar Juan F. Perea asserts that these exceptions impermissibly discriminate against these workers based on race in violation of the Equal Protection Clause.[22]  

So what is the legal path forward toward ensuring more workers are protected by employee status? The easiest answer is simple legislative change: Congress could pass the PRO Act or similar legislation to amend the NLRA and THA with clear and expansive guidelines either categorizing a larger share of independent contractors as employees or extending NLRA employee rights to independent contractors.[23]

Legal professionals should also take a litigation approach to expanding employee rights coverage. Perea sets forth a constitutional framework to petition for judicial invalidations of the exceptions, demonstrating both racially discriminatory intent in the Act’s legislative history and a racially disproportionate impact. [24] Critics of the exceptions could also reconsider the framework set forth in United Insurance as a blessing in disguise. This note argues that courts following the multi-factor test could consider the matters of public policy discussed above in deciding whether to classify a group of workers as employees or independent contractors. Courts can clearly consider the relationship between the workers and their employers as a factor;[25] it is time that courts consider the relationship between the working class and employer class as whole entities. Similarly, courts evaluating this distinction should consider the racial impact their classifications could effectuate. If the racially disproportionate consequences of these exceptions do not render the exceptions facially unconstitutional, at the very least courts should consider the racial consequences as the most important factor in evaluating relevant factors in determining employee status. Certainly, the history of excluding workers (especially along racialized lines) from NLRA protection should be a “relevant factor” for courts to consider while still following the guidelines of Roadway Package System Inc. This consideration could bring about the broad interpretation of employee coverage that the Supreme Court set forth with the economic realities test in Hearst,[26] which would provide government protection for workers who need it without undoing the framework mandated by the THA and United Insurance.

IV. Conclusion

The history of the distinction between employees and independent contractors is not simply a legal curiosity; rather, the distinction illustrates the history of worker oppression and racial discrimination. Any legal analysis which fails to grapple with this history yields unjust conclusions which deny the essential rights of workers to organize free from retaliation and discrimination. While the legal evolution of distinguishing between employees and independent contractors seems to necessarily exclude an increasingly large share of workers, there is room for the legal community to consider our history and breathe life back into the laws protecting the rights of workers.


[1] Karl Marx and Frederick Engels, Manifesto of the Communist Party, 14-16 (Samuel Moore and Frederick Engels trans., 1888) (1848) https://www.marxists.org/archive/marx/works/download/pdf/Manifesto.pdf.

[2] Labor Wars in the U.S., PBS (last visited Apr. 1, 2022, 10:31 AM), https://www.pbs.org/wgbh/americanexperience/features/theminewars-labor-wars-us/.

[3] Steven Greenhouse, Beaten Down, Worked Up: The Past, Present, and Future of American Labor 153-166 (2019).

[4] For example, three companies spent over $200 million dollars in support of “Prop 22”, a California ballot measure classifying app-based drivers as independent contractors as opposed to employees. See Graham Rapier, Uber, Lyft, and DoorDash have now spent more than $200 million on Prop. 22 — but there’s still no guarantee it’ll pass, Business Insider (Oct. 30, 2020), https://www.businessinsider.com/uber-doordash-lyft-prop-22-spending-200-million-close-polling-2020-10.

[5] 29 U.S.C. §§ 151-166 [hereinafter “N.L.R.A.”].

[6] N.L.R.A. §7.

[7] National Labor Relations Act of 1935 (Wagner Act), Pub. L. No. 74-198.

[8] Seth Harris, Joeseph E. Slater, Anne Maire Lofaso, Charlotte Garden, and Richard F. Griffin, Jr., Modern Labor Law in the Private and Public Sectors 91 (Carolina Academic Press, eds., 3rd ed. 2021).

[9] N.L.R.B. v. Hearst Publs., 322 U.S. 111 (1944).

[10] Id. at 124-25.

[11] Id. at 125 (emphasis added).

[12] Id. at 128.

[13] 29 U.S.C. 7 §§ 141-197

[14] Ryan Vacca, Uncertainty in Employee Status Across Federal Law, 92 Temp. L. Rev. 121, 130 (2019).

[15] Harris et. al., supra note 8, at p. 95.

[16] N.L.R.B. v. United Ins. Co., 390 U.S. 254, 258-59 (1968).

[17] 326 N.L.R.B. 842, 850 [“Roadway Package System Inc.”].

[18] V.B. Duval, Wage Slave or Entrepreneur?: Contesting the Dualism of Legal Worker Identities, 105 Calif. L. Rev. 65, 72 (2017).

[19] Richard Freeman and James Medoff, What Do Unions Do? A Twenty-Year Perspective, 4 (James T. Bennett and Bruce E. Kaufman eds., 1st ed. 2007); Asha Banerjee, Margaret Poydock, Celine McNicholas, Ihna Mangundayao, and Ali Sait, Unions are not only good for workers, they’re good for communities and for democracy, (Econ. Policy Inst., 2021) (“Unionization has a range of positive economic impacts in addition to decreasing wage inequality and closing gender and race wage gaps…union membership yields a positive “net fiscal impact”) https://www.epi.org/publication/unions-and-well-being/#:~:text=Unionization%20has%20a%20range%20of,and%20therefore%20pay%20more%20taxes.

[20] Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 OHIO ST. L.J. l 95 (2011).

[21] Vanessa May, Domestic Workers in U.S. History, (Oxford Rsch. Encyclopedia of American Hist., 2017) https://doi.org/10.1093/acrefore/9780199329175.013.431.

[22] Perea, supra note 20, at 118-35; see also https://www.pbs.org/newshour/nation/labor-laws-left-farm-workers-behind-vulnerable-abuse.

[23] For a favorable view of this proposal, see Moshe Marvit, How the PRO Act Would Fix Labor Law’s Worker Classification Problem, The Century Foundation (May 27, 2021), https://tcf.org/content/commentary/pro-act-fix-labor-laws-worker-classification-problem/?agreed=1; for a critical view, see Sean P. Redmond, The PRO Act’s Attack on Independent Contracting, U.S. Chamber of Commerce (Mar. 19, 2021), https://www.uschamber.com/workforce/independent-contractors/the-pro-act-s-attack-independent-contracting.

[24] Perea, supra note 20, at 127-35.

[25] United Insurance, 390 U.S. 254, 258.

[26] Dubal, supra note 18, at 76.

Levitating the Importance of Copyright: Discussing the Dua Lipa Lawsuit

Photo by Sarah Le on Unsplash

Ben Martin, Associate Member, University of Cincinnati Law Review

I. Introduction

Dua Lipa released her hit song “Levitating” in 2020 which reached number 2 on The Billboard Hot 100 on May 22, 2021.[1] The song recently became the longest-charting song on the Hot 100 by a female artist.[2] Despite its massive commercial success, the song has been surrounded by controversy after Dua Lipa and her co-writers were sued by artists alleging that “Levitating” violated copyright law.[3] Filed in the Central District of California, Cope et al v. Warner Records, Inc. et al, will be dictated by precedent from the Ninth Circuit that has not always been consistent. 

This article first looks at the complaint in the case and then examines the applicable copyright law that will apply to the lawsuit. The article concludes by discussing what a court may consider during litigation.

II. Background

A. The Lawsuit

On March 1, 2022, Christopher Cope, Christopher Montague, Fabian Acuna, Adam Kampf, and Denton Bedward, collectively the members of the band Artikal Sound System, filed suit against Warner Records, Inc., Dua Lipa, Sarah Hudson, Stephen Kozmeniuk, Bosco Kante, and Clarence Coffee, Jr.[4] Artikal Sound System stated in its complaint that it released “Live Your Life” in 2017 which reached number 2 on the Billboard charts reggae section that year.[5] Artikal Soundsystem further alleged that Dua Lipa and her codefendants “listened to and copied” “Live Your Life” before and while writing “Levitating” in 2020.[6] Because of “Levitating’s” substantial similarity to “Live Your Life,” Artikal Sound System asserts that “it is highly unlikely that ‘Levitating’ was created independently from ‘Live Your Life.’”[7]

B. Copyright Law in the Ninth Circuit

The basic elements for a copyright infringement lawsuit appear straightforward, but closer inspection reveals cascading elements and tests. At the highest level, a plaintiff needs to prove that 1) they own the copyright in the infringed work, and 2) someone else copied protected elements of the copyrighted work.[8] However, to satisfy the second element, the Ninth Circuit requires that a plaintiff prove two additional elements: “copying” and “unlawful appropriation.”[9]

Showing that the defendant actually copied the plaintiff’s work is necessary because “independent creation is a complete defense to copyright infringement” regardless of how similar the two works may be.[10] Copying can either be shown by direct evidence (for example, a video of Dua Lipa jamming out to “Live Your Life” talking about how she loves the chorus) or by circumstantial evidence.[11] To show infringement based on circumstantial evidence, the plaintiff must show that the defendant had “access” to the infringed work, and the two works must “share similarities probative of copying.”[12] Before the internet, iTunes, Spotify, and YouTube, access may have been an important factor in a copyright infringement case; however, today “[g]iven the ubiquity of ways to access media online…access may be established by a trivial showing that the work is available on demand.”[13] The similarities between the two works do not need to be extensive; they only need to share “similarities one would not expect to arise” from independent creation.[14] These similarities can be found from both protected and unprotected elements in the work.[15]

Unlawful appropriation is proven by showing that there are “substantial similarities” between the two works.[16] This prong also has multiple elements. The Ninth Circuit applies a two-part test to determine substantial similarity: an extrinsic and intrinsic test.[17] The extrinsic test “considers whether two works share similarity of ideas and expression as measured by external, objective criteria.”[18] A party hoping to prevail on this prong will introduce expert testimony to assist the jury by analyzing individual elements of a work and comparing them against the substantial similarity standard.[19] This test only considers similarity as to protected elements of the work.[20] Unprotected elements include common elements or ideas such as simple chord progressions (II-V-I) or the major scale.[21] Despite this, multiple unprotectable elements can be combined and receive copyright protection provided that the unprotected elements are used in an original way.[22] The intrinsic test, reserved for the jury alone, looks at the similarity between the pieces based on the impression of a “reasonable observer, with no expert assistance.”[23]

III. Discussion

A. Artikal Sound Systems Complaint will Survive a Motion to Dismiss and Likely Summary Judgment, as well.

Looking at both the complaint and comparing the two songs side-by-side, it seems highly likely that, absent a settlement, this case would get to a jury. The complaint filed against Dua Lipa appears to satisfy all pleading requirements necessary to survive a motion to dismiss.[24] It also seems highly likely that the case can survive summary judgment under Rule 56 in the Ninth Circuit.[25] Though the defendants may try to make it an issue, access likely will be established: Dua Lipa probably had a Spotify account in 2017. The remaining requirement for copying, “similarities probative of copying,” is a much lower bar than the substantial similarity test and would likely be met, as well. Whether the court will find “substantial similarities” under the Ninth Circuit’s extrinsic test will depend in large part on the experts brought by both sides. As various musical commentators have noted, both songs are in the same key (b minor), are close to 100 beats per minute (“bpm”), and have similar chord progressions (“Levitating:” bm7, f#m7, em7, bm7; “Live Your Life:” bm7, f#m7, em7, em7).[26] Further the melodies of both songs are very similar; both emphaze the same rhythm and scale degrees and have similar rhyme schemes and word choices.[27] All of these similarities seem to verge on being “substantially” the same, or are at least close enough to create a factual issue for a jury to decide.

Though the songs may sound the same (and can be layered over each other without it even being particularly apparent)[28] the abundant commentators on the internet have noted that the elements making up the similarities are not particularly unique to begin with.[29] The exact chord progression from “Live Your Life” can be found in songs predating both.[30] The melody in both choruses use the “Charleston” rhythm, found in countless songs both modern and historic.[31] Many other songs combine these same elements, again predating both “Live Your Life” and “Levitating,” including Outkast’s “Rosa Parks” (1988) (the best of these songs, by the way).  As the internet commentators have noted, the same elements that could provide the basis for Dua Lipa’s liability would support Artikal Sound System’s liability, as well. All these facts are likely to come in as evidence at trial; the common usage of these elements is relevant evidence both that Dua Lipa did not copy Artikal Sound System and that the elements present in “Levitating” that Artikal Sound System alleges constitute infringement are not original protected elements.[32]

IV. Conclusion

Ultimately, absent a settlement, Dua Lipa’s liability will likely be determined by a jury of lay persons with minimal musical training or knowledge outside of what is provided by the experts in the case. This is not dissimilar, however, from any other area of the law requiring expert testimony and, in some sense, may be less problematic: even if a person wanted to, they could not be completely unaccustomed to music in some form.


[1] Gary Trust, Dua Lipa’s ‘Levitating” Makes History as the Longest-Charging Billboard Hot 100 Hit Ever Among Women, billboard (Mar. 14, 2022), https://www.billboard.com/music/chart-beat/dua-lipa-levitating-history-longest-charting-hot-100-1235043660/.

[2] Id.

[3] Jeremy Orosz, Dua Lipa’s ‘Levitating’ Plagiarism Lawsuit Could Change Music Forever, Slate(Mar. 17, 2022), https://slate.com/culture/2022/03/dua-lipa-levitating-copyright-infringement-plagiarism-case.html.

[4] Complaint at PageID 1­–3, Cope v. Warner Records, Inc., 1:22-cv-01384 (C.D. Cal.filed Mar. 1, 2022).

[5] Id. at PageID 3.

[6] Id. at PageID 4.

[7] Id.

[8] Williams v. Gaye, 895 F.3d 1106, 1119 (9th Cir. 2018).

[9]Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018), overruled on other grounds by Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020).

[10] Id.

[11] Williams, 895 F.3d at 1119.

[12] Rentmeester, 882 F.3d at 1117. The court in Rentmeester clarified that courts often use the term “substantial similarity” in reference to this prong and collapse the “copying” and “unlawful appropriation” tests altogether.

[13] Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1068 (9th Cir.), cert. denied sub nom. Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 141 S. Ct. 453, 208 L. Ed. 2d 145 (2020), reh’g denied, 141 S. Ct. 946, 208 L. Ed. 2d 482 (2020).

[14] Rentmeester, 882 F.3d at 1117.

[15] Skidmore, 952 F.3d at 1064.

[16] Id.

[17] Id.

[18] Williams, 895 F.3d at 1119.

[19] Id.

[20] Skidmore, 952 F.3d at 1064.

[21] Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004).

[22] Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003).

[23] Skidmore, 952 F.3d at 1064.

[24] Fed. R. Civ. P. 12. See Willaim F. Patry, 6 Patry on Copyright § 19:3-14. It alleges that Artikal Sound System owns the copyright to “Live Your Life,” that Dua Lipa had access, and that the songs share substantial similarities.

[25] Fed. R. Civ. P. 56.

[26] Adam Neely, Did Dua Lipa ACTUALLY Plagiarize Levitating? (Mar. 6, 2022), youtube.com/watch?v=HnA1QmZvSNs&t=228s.

[27] Id.

[28] Rick Beato, DUA LIPA VS REGGAE BAND LAWSUIT: Let’s Compare! (Mar. 3, 2022), https://www.youtube.com/watch?v=XT3DghWbk2A&t=189s.

[29] Neely, supra note 22.

[30] Neely, supra note 22 (discussing chord progression from Evil Woman (1975) by Electric Light Orchestra).

[31] Id.

[32] Patry, supra note 24, at §9:67 (“It is not enough to place two works back to back, if both track their ancestries back to Bach.” Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)).

If You Can’t Beat ‘Em, Join ‘Em: Professional Sports Leagues, Sports Betting Sponsorships, and How to Handle Players Who Bet On Games

Photo by Michał Parzuchowski on Unsplash

Bailey Wharton, Associate Member, University of Cincinnati Law Review

I. Introduction

Sports betting and professional sports leagues are no longer in two separate spheres. In the last half decade, all five of the major professional sports leagues – the National Hockey League, National Football League, National Basketball Association, Major League Baseball, and Major League Soccer – have gone all in on merging professional sports and sports betting. The Leagues themselves, individual teams, and even individual athletes are signing lucrative sponsorships and partnerships with sportsbooks and casinos. While betting on sports is as easy as ever, these Leagues have also run into issues with athletes betting on their own sport.

Part II details a brief history of the legalization of sports betting in both Canada and the United States. This Part also overviews each of the five Leagues’ relationships with sports betting and the gambling policies of each sport. Part III discusses how the various Leagues have handled recent incidents involving players betting on their sport, the discrepancies in discipline by different Leagues, and what the Leagues must do going forward to protect their sports and players in a world where sports betting is so easy.

II. Background

A. History of Legal Sports Betting in the U.S. and Canada

i. Sports Betting in Canada

On June 23, 2021, the Canadian Parliament passed Bill C-218, legalizing single-game sports betting.[1] While parlay betting, casino games, and lotteries have long been legal in Canada and run and regulated by provincial lottery commissions, this is the first time single-game wagering has been explicitly legalized.[2] With the passage of this bill, it is now up to each province to legalize and regulate single-game betting as they choose.[3] The first province to do so was Ontario with the introduction of PROLINE+ sportsbook on August 27, 2021, the day C-218 went into effect.[4] Quebec and British Colombia’s lottery commissions also began offering single-game betting on August 27, 2021.[5] The Western States Lottery Corporation, which operates in Alberta, Manitoba, and Saskatchewan, updated their sportsbook, SPORT SELECT, on November 1, 2021, to offer single-game betting.[6] New Brunswick, Prince Edward Island, and Newfoundland and Labrador were granted access to single-game wagering on the Atlantic Lottery Corporation’s (ALC) betting platform shortly after the law went into effect on August 27, 2021, while Nova Scotia is the most recent province to get access to single-game betting on ALC’s platform on February 11, 2022.[7]

ii. Sports Betting in the U.S.

When the Supreme Court overturned the Professional and Amateur Sports Protection Act of 1992 (PASPA), it “opened the floodgates to state-by-state legalization and regulation of sports betting.”[8] Prior to PASPA’s repeal, sports betting was banned everywhere except in Nevada.[9] However, the Court’s ruling in Murphy v. NCAA, the case in which PASPA was ultimately repealed, opened the door for individual states to legalize sports betting.[10] Since the end of PASPA, thirty-four states[11] have legalized sports betting.[12] Twenty-one states[13] offer both online and brick and mortar sportsbooks, while nine states[14] offer just brick and mortar sportsbooks and two states[15] offer just online sportsbooks.

B. Relationship Between Professional Sports and Sports Betting

i. National Hockey League (NHL)

Historically, the NHL’s stance has always been against sports betting.[16] In fact, Commissioner Gary Bettman has been on record stating that sports betting was “inconsistent” with “the atmosphere” the League seeks to create.[17] However, Commissioner Bettman’s view on the matter appeared to change after the death of PASPA in 2018, and the NHL announced their first betting sponsorship with MGM Resorts to be “an official betting partner.”[18] Since 2018, the NHL has partnered with ten betting entities, both in North America,[19] as well as several partnerships with European-based companies to operate in the Baltic region,[20] Russia,[21] and German and Austrian regions.[22] The NHL has also partnered with the American Gaming Association’s program to promote responsible gambling.[23]

Eight out of the thirty-two teams have one official sports betting partner,[24] while there are seven teams that have two or more sports betting partners.[25] The Washington Capitals and New Jersey Devils have in-arena sports books, while the United Center, where the Chicago Blackhawks play, has plans to build an in-arena sports book soon.[26] Bet99 is a home helmet sponsor of the Ottawa Senators[27] and starting in the 2022-2023 season, the Washington Capitals will have the Caesars casino logo on their jerseys.[28] The NHL also has two players with individual brand sponsorship deals with betting companies. Auston Matthews, of the Toronto Maple Leafs, was the first active NHL player to sign with a betting company when he partnered with Bet99,[29] and Connor McDavid, of the Edmonton Oilers, became the first professional athlete to become a brand ambassador for a betting company when he signed with BetMGM.[30]

Despite the influx of gambling money into the NHL and the multitude of partnerships between betting companies, the League, the teams, and the players, the CBA is particularly bare when it comes to its discussion on the rules for players when it comes to sports betting. In fact, the only mention of gambling in the entire CBA is its stance that “[g]ambling on any NHL Game is prohibited.”[31]

ii. National Football League (NFL)

Similarly to the NHL, the NFL’s long held view was that sports betting is “a threat to the integrity of [the] [L]eague and contrary to the public good.”[32] But also like the NHL, the NFL changed its tune after the end of PASPA. In 2021, the NFL announced partnerships with DraftKings, FanDuel, and Caesars to the tune of almost a billion dollars.[33] The NFL later added sponsorship deals with BetMGM, WynnBET, Fox Bet, and PointsBet.[34]

Thirteen of the thirty-two teams have one official sports betting partner,[35] and nine teams have two or more betting partners.[36] BetMGM and the Arizona Cardinals plan to have an in-stadium sportsbook up and running for the start of the 2022-2023 season[37] and Betfred USA Sports plans to open a sports betting lounge right outside the Denver Broncos stadium.[38]

The NFL’s CBA states that as part of an NFL player contract, a player “acknowledges his awareness that if he bets on an NFL game [or] knowingly associates with gamblers or gambling activity…the Commissioner will have the right…to fine…, to suspend…for a period certain or indefinitely, and/or to terminate [the player’s] contract.”[39]

Additionally, in 2018, the NFL distributed its Gambling Policy, emphasizing that “[g]ambling, particularly on NFL games or other sports, presents potential risks to the integrity of our competition and can negatively impact team cohesion.”[40] The policy further states that all NFL personnel are prohibited from betting on NFL games, practices, or events, and all NFL personnel other than players, are prohibited from betting on other sports.[41] Thus, NFL players are allowed to bet on sports, just not on football.     

iii. National Basketball Association (NBA)

Currently, the NBA has partnerships with six authorized gaming operators – FanDuel, DraftKings, MGM Resorts, The Stars Group, TheScore, and Bally’s.[42] Ten of the thirty teams have one official betting partner,[43] whereas six teams have two or more betting partners.[44] FanDuel has an in-arena sportsbook at Footprint Arena, home of the Phoenix Suns,[45] and the Chicago Bulls,[46] Cleveland Cavaliers,[47] and Houston Rockets[48] all have plans to open in-arena sportsbooks in the near future. While no active NBA players have individual brand deals with any sports betting entities, FanDuel has a partnership with a company called Boardroom, which is co-owned by Kevin Durant.[49]   

The NBA’s Constitution and By-Laws, which govern “all Players in the Association,” states that “[a]ny Player who, directly or indirectly, wagers money or anything of value on the outcome of any game played by a Team in the [L]eague operated by the Association shall, on being charged with such wagering, be given an opportunity to answer such charges after due notice, and the decision of the Commissioner shall be final, binding and conclusive and unappealable. The penalty for such offense shall be within the absolute and sole discretion of the Commissioner and may include a fine, suspension, expulsion and/or perpetual disqualification from further association with the Association or any of its Members.”[50]

In addition, the NBA’s CBA has a provision stating that “[a]ll players shall be required each Season to attend and participate in one (1) anti-gambling training session conducted by their Team and/or the NBA,” with failure to do so resulting in a $20,000 fine.[51]

iv. Major League Baseball (MLB)

The MLB has partnered with nine domestic gaming operators,[52] as well as with Betcris, which is the MLB’s wagering operator in Latin America.[53] While there are ten teams with one official sports betting partner,[54] there are only two teams which have two or more betting partnerships.[55] This means that fewer than half of all teams in the MLB have any sort of official sports betting partnerships.

Sports betting was an important topic discussed in the MLB and MLBPA’s recent CBA negotiation, as there are several new provisions included that relate directly to sports betting. First, “all clubs will be required to institute enhanced ballpark safety measures [and] a hotline will be developed for the purpose of reporting threats made against players or their families relating to sports betting.”[56] Second, “it shall be illegal for Major League Baseball and any club to sell and/or license a player’s confidential medical information, personal biometric data, or any nonpublic data used to evaluate player performance in practices or training sessions,” which seems to be a “pre-emptive strike at barring MLB or any team from selling such data to gambling-related companies.”[57] Third, players will now have the ability to sign endorsements or become brand ambassadors for sports betting companies.[58]

However, despite these new concessions in the 2022 CBA, there are still restrictions on MLB players’ ability to bet on sports. Rule 21 of the Official Professional Baseball Rules Book sets out the penalties for gambling misconduct. For example, an MLB player who bets on an MLB game for which they have “no duty to perform” will be suspended for one year, while an MLB player who bets on a game for which they do have “a duty to perform” will be permanently suspended.[59]

v. Major League Soccer (MLS)

As it stands, the MLS remains the least integrated professional league in the sports betting partnership world. MLS itself only has one official gaming partner, and only eight of the twenty-eight teams have sponsorships with sports betting companies, none of whom have more than one partnership at this time.[60] The Philadelphia Union is the first MLS team to discuss a stadium name deal with betting companies,[61] and the Seattle Sounders are the first MLS team to have a casino logo sponsorship on their jerseys.[62] Notably, the Chicago Fire is the first MLS team to “deliver problem gambling and gaming awareness sessions to teams throughout their organization.”[63]

The MLS’s CBA states that “the Commissioner may terminate an [Standard Player Agreement]…at any time…if the Player bets, or has offered or attempted to bet, money…on any game participated in by any Team which is a member of MLS, or by any MLS Players, or on games of any National Team…[or] if the Player is involved in the giving or offering of any bribe that involves, or gambles on, any MLS game.”[64]

III. Discussion

A. Penalized Players

Today, sports betting is easier than ever due to the ability to place bets online. As a result, the number of sports bettors has exploded in recent years.[65] Therefore, it is no surprise that professional sports leagues have run into issues of players making bets in violation of League CBAs and rules. Over the last ten years, there have been a number of professional athletes who have been investigated for gambling-related allegations or have faced gambling-related penalties from their respective Leagues.

Most recently, Atlanta Falcon’s player Calvin Ridley was suspended indefinitely, and at least through the entirety of the 2022-2023 NFL season, for placing bets on NFL games in violation of the NFL CBA and Gambling Policy.[66] In 2019, former Arizona Cardinals player Josh Shaw received an indefinite suspension by the League for “a three-team parlay bet involving the Arizona Cardinals.”[67] Although Shaw was officially reinstated in March of 2021, he does not currently have a contract with any NFL team.[68]

In October 2021, MLS’s Sporting Kansas City (SKC) player Felipe Hernandez was suspended “without pay for the remainder of 2021 due to violations of the [L]eague’s gambling integrity rules and standards of conduct” after it was discovered that he was “engaged in extensive and unlawful sports gambling while a member of [SKC] that included placing wagers on two MLS matches.”[69]

While it has been several decades since the last confirmed gambling scandal in the NHL,[70] in 2021, the League was forced to investigate allegations that former San Jose Sharks player Evander Kane was betting on NHL games, including allegations, made by his estranged wife, that he “bet on Sharks games ‘with bookies’ and threw games for gambling purposes.”[71] However, after a League investigation, Kane was ultimately cleared of all allegations.[72]

B. Discrepancy in Gambling Penalties Among the Leagues

Based on the severity of punishments dished out to those athletes caught betting on games, the Leagues take sports betting violations very seriously.[73] However, the Leagues clearly do not adhere to a uniform penalty scheme when it comes to disciplining players for betting on their sport. This is primarily due to the fact that each Commissioner has varying levels of authority to dish out penalties. For example, the NBA Commissioner has near absolute authority to determine the type and severity of penalties,[74] while the MLB Rules Book delineates specific penalties for certain types of gambling violations.[75] As a result, it would be nearly impossible for there to be any form of intra-sport guidelines on how to uniformly handle sports betting issues.         

C. Leagues’ Responsibilities to Protect Players

As professional sports leagues continue to entangle with sports betting companies and move teams to Las Vegas, the problem of players betting on sports is most likely going to get worse and more common because “[p]ro athletes are in the exact demographic outlets like FanDuel and Draft Kings covet the most – males in their 20s and 30s who have expendable income.”[76]

Therefore, it is the responsibility of each League to ensure that they are doing everything in their power to set their players up for success, whether that comes in the form of mandatory anti-gambling programs (like in the NBA), on-staff financial advisors to serve as a trusted resource for players to go to for advice on how to gamble responsibly, or robust player assistance programs for players needing additional addiction resources. It is in the best interest of the players to have access to these resources, and in the best interest of the Leagues to try at all costs to protect against a league-shattering gambling scandal that calls into question the integrity of sport.   

IV. Conclusion

As long as there are sports to bet on, people are going to bet on them, and as long as people are betting on sports, there is always a risk that a professional athlete will get caught up in the allure of gambling and threaten the integrity of professional sports. And while the threat of players betting on their sport is always looming, the windfall of revenue these professional sports leagues have seen since partnering with betting companies is just too great to ignore.


[1] Bill C-218, An Act to Amend the Criminal Code (Sports Betting) 2nd Session 43rd Parliament, 69-70 Elizabeth II (2020-2021); see Ted Dahlstrom, Canada Sports Betting – Legality, Launch Dates, And FAQ, Sports Handle (Feb. 25, 2022), https://bit.ly/3wJdlnm (C-218 “was a simple bill that would change the criminal code to make it explicitly lawful for provinces to administer and regulate single-game sports betting.”).

[2] Id.

[3] Id.  (“The federal government will not be regulating sports betting.”).

[4] See id. (starting April 4, 2022, “private gaming operators, registered with the AGCO and that have entered into an operating agreement with [iGaming Ontario], can start offering their games and services to players within the boundaries of Ontario.”); see also Geoff Zochodne, Single-Game Sports Betting is Legal in Canada. How Can You Wager?, Covers (Aug. 26, 2021, 9:48 AM), https://bit.ly/3ILtJWH.

[5] Dahlstrom, supra note 1.

[6] Geoff Zochodne, Single-Event Sports Betting Quietly Added to Lottery Game in Western Canada, Covers  (Nov. 9, 2021, 12:58 PM), https://bit.ly/3Dk3jKK.

[7] Greg Warren, Single-Game Sports Wagering To Launch Friday in Nova Scotia, Sports Handle (Feb. 10, 2022), https://bit.ly/3DrRSkk.

[8] Chris Altruda, Legal US Sports Betting Revenue, Handle And Tax Totals Since PASPA Repeal, Sports Handle (Mar. 25, 2022), https://bit.ly/3uB5XYv.

[9] Id.; see also Jill R. Dorson, What Is PASPA, The Federal Ban on Sports Betting?, Sports Handle (July 1, 2020), https://bit.ly/36U3XlQ (Delaware, Montana, and Oregon “had certain quasi-sports betting games grandfathered in, meaning they could continue them,” but “only Nevada was able to license and regulate sports bets of all kind.”)

[10] Dorson, supra note 9.

[11] Brett Smiley, Legal Sports Betting Bill Tracker, Sports Handle (Dec. 6, 2021), https://bit.ly/3iJqRiF (Arizona, Arkansas, Colorado, Connecticut, Delaware, DC, Florida, Illinois, Indiana, Iowa, Louisiana, Maryland, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Virginia, Washington, West Virginia, Wisconsin, and Wyoming).

[12] Id. (While legal, sports betting is not yet live in Nebraska, North Dakota, or Ohio).

[13] Id. (Arizona, Arkansas, Colorado, Connecticut, DC, Illinois, Indiana, Iowa, Louisiana, Maryland, Michigan, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Virginia, and West Virginia).

[14] Id. (Delaware, Mississippi, Montana, New Mexico, North Carolina, North Dakota, South Dakota, Washington, and Wisconsin).

[15] Id.  (Tennessee and Wyoming).

[16] Darren Rovell, NHL announces betting sponsorship deal with MGM Resorts, ESPN (Oct. 29, 2018), https://es.pn/3iHluAm.

[17] Id.

[18] Id.

[19] See id. (MGM Resorts); NHL Public Relations, NHL, Betway announce multiyear partnership, NHL.com (May 14, 2021), https://bit.ly/3DlfHKp  (Betway); NHL Public Relations, NHL announces official partner for sports betting, daily fantasy, NHL.com (Nov. 5, 2018), https://bit.ly/3IOSW2K (FanDuel); NHL Public Relations, NHL reaches sports betting partnership with PointsBet, NHL.com (Feb. 9, 2021), https://bit.ly/3JQMCJf (PointsBet); NHL Public Relations, NHL names Bally’s official sports betting partner, NHL.com (Feb. 18, 2021), https://bit.ly/3wKXOna (Bally’s); NHL Public Relations, NHL, William Hill announce multiyear partnership, NHL.com (Mar. 28, 2019), https://bit.ly/3wL8fXN (William Hill); NHL Public Relations, DraftKings agree to become sports betting, DFS, iGaming partner of NHL, NHL.com (Oct. 13, 2021), https://bit.ly/3tNlp4C (DraftKings).

[20] NHL Public Relations, NHL partners with betting brand OlyBet, NHL.com (June 3, 2021), https://bit.ly/3uz7Che (OlyBet).

[21] NHL Public Relations, NHL announces sports betting agreement with Liga Stavok, NHL.com (Sept. 22, 2021), https://bit.ly/36RDc1x (Liga Stavok).

[22] NHL Public Relations, NHL, Interwetten announce multiyear partnership, NHL.com (Jan. 25, 2022), https://bit.ly/3Di93ET (Interwetten).

[23] NHL Public Relations, NHL partners with AGA to promote responsible sports betting, NHL.com (Oct. 23, 2020), https://bit.ly/3JNfAtG.

[24] Chris Murphey, Anaheim Ducks expands partnership with San Manuel Casino, SBC Americas (Oct. 9, 2019), https://bit.ly/3iL4V6N (Anaheim Ducks and San Manuel Casino); Arizona Coyotes, SaharaBets Teams Up with Coyotes as Official Sports Betting Partner, NHL.com (Jan. 5, 2022), https://bit.ly/3wKGnD0 (Arizona Coyotes and Sahara Bets); Sabres Press Release, Sabres name FanDuel Group an official sports betting partner, NHL.com (Feb. 23, 2022), https://bit.ly/3LmrsmH (Buffalo Sabres and FanDuel); Kroenke Sports & Entertainment, PointsBet Partners with KSE as Official Gaming Partner of the Avalanche, NHL.com (Aug. 7, 2020), https://bit.ly/3wQND0e (Colorado Avalanche and PointsBet); Chris Murphy, Betway agrees six high-profile partnerships across NBA and NHL, SBC Americas (Mar. 25, 2021), https://bit.ly/3JTFMmc (Los Angeles Kings and Betway); Murphy, supra (New York Islanders and Betway); Cort Smith, NHL Ottawa Senators Strike Sponsorship Deal With Ontario, Canada Casino, Casino.org (Oct. 10, 2018, 4:15 PM), https://bit.ly/3Lrw62C (Ottawa Senators and Rideau Carleton Raceway Casino); Greg Warren, BCLC Targeting Canucks Fans With Prize-Loaded Promotion, Sports Handle (Jan. 10, 2022), https://bit.ly/3tOaeZu (Vancouver Canucks and British Columbia Lottery Corporation).

[25] The Detroit Red Wings have partnerships with BetMGM, DetroitRedWings.com, Detroit Red Wings renew and expand BetMGM strategic partnership, NHL.com (Oct. 28, 2020), https://bit.ly/3wIBQRL, FanDuel, Cole Rush, FanDuel Inks Sports Betting Partnerships with Detroit Tigers and Red Wings, Michigan Sharp (April 6, 2021), https://bit.ly/36woAoF, and Motor City Casino, Chris Murphy, FanDuel and MotorCity Casino agree gaming partnerships with Detroit’s Tigers and Red Wings, SBC Americas (April 6, 2021), https://bit.ly/3IQA2bM. The Nashville Predators have partnerships with Bally’s, Nashville Predators, Predators, Bally’s Corporation Announce Sports Betting Partnership, NHL.com (Oct. 21, 2021), https://bit.ly/3LpG4l8, and DraftKings, NashvillePredators.com, Predators Announce Partnership with Sports Betting Operator DraftKings, NHL.com (Dec. 10, 2020), https://bit.ly/3NHvFDF. The New Jersey Devils have partnerships with William Hill USA, New Jersey Devils, William Hill partners with New Jersey Devils and Prudential Center, NHL.com (Oct. 25, 2018), https://bit.ly/3uzNdsl, FanDuel, New Jersey Devils, NHL and the New Jersey Devils Enter Into Partnerships with FanDuel, NHL.com (Nov. 5, 2018), https://bit.ly/35q8TPi, and PlayUp, New Jersey Devils PR, RELEASE: Devils Announce Major Partnership with PlayUp, NHL.com (Jan. 14, 2021), https://bit.ly/3IQA838. The New York Rangers has partnerships with BetMGM, Jill R. Dorson, Caesars Partners with Knicks, Rangers, and Madison Square Garden, Sports Handle (Nov. 18, 2021), https://bit.ly/3qK2Zjw, Caesars, Dorson, supra, and DraftKings, Andrew Cohen, DraftKings Renews Deal to Continue As Rangers and Knicks Fantasy and Betting Partner, Sport Techie (Jan. 6, 2020), https://bit.ly/3JOVoaQ. The Philadelphia Flyers have partnerships with Betway, Philadelphia Flyers, Flyers announce new partnership with Super Group owned Betway, NHL.com (Nov. 9, 2021), https://bit.ly/371DIKE, and SugarHorse Casino, Philadelphia Flyers, Flyers and Wells Fargo Center Announce Official Sportsbook Partner, NHL.com (Sept. 4, 2019), https://bit.ly/36TlwCH. The Pittsburgh Penguins have partnerships with BetRivers.com and Rivers Casino. Pittsburgh Penguins, Rivers Casino Pittsburgh, BetRivers.com to Build Sportsbook-Style Lounge, NHL.com (Sept. 23, 2020), https://bit.ly/3qK1TUy. The Vegas Golden Knights have partnerships with BetMGM, Vegas Golden Knights, Vegas Golden Knights Renew And Extend Team Partnership with BetMGM, NHL.com (Dec. 2, 2021), https://bit.ly/3LrwFtg, William Hill USA, Vegas Golden Knights, William Hill US & VGK Form 1st Partnership Between Sports Book & NHL Team, NHL.com (Sept. 18, 2018), https://bit.ly/3qLfxXM, and Caesars, Vegas Golden Knights, Vegas Golden Knights Extend Team Partnership With Caesars Entertainment, NHL.com (Mar. 4, 2022), https://bit.ly/3JVvDFJ.

[26] Elliotte Friedman, 32 Thoughts: Unafraid Auston Matthews takes big off-ice step, Sportsnet (Feb. 1, 2022, 11:43 AM), https://sprtsnt.ca/3Ll5kcm.

[27] Senators make Bet99 first gambling company on helmets, Sports Business Journal (Dec. 8, 2021), https://bit.ly/36EXNq1.

[28] Washington Capitals, Caps Announce Caesars Entertainment as First-Ever Jersey Patch Partner, NHL.com (Sept. 24, 2021), https://bit.ly/3DgMrod.

[29] See Auston Matthews first active NHL player to sign with betting company, Sports Business Journal (Feb. 2, 2022), https://bit.ly/3uDH3r5; see also Friedman, supra note 26.

[30] See Sam Profeta, BetMGM Partners With Edmonton Oilers Star Connor McDavid, Legal Sports Betting (Mar. 7, 2022, 1:07 PM), https://bit.ly/3iH6bI3.

[31] Nat’l Hockey League Players’ Ass’n, Collective Bargaining Agreement Between Nat’l Hockey League & Nat’l Hockey League Players’ Ass’n: Sept. 16, 2012 – Sept. 15, 2022 342 (Feb. 15, 2013), https://bit.ly/3iFzXgq.

[32] Bryan Armen Graham, The NFL doesn’t want players gambling but is happy to gorge on the proceeds, The Guardian (Mar. 10, 2022, 1:46 PM), https://bit.ly/3DiSKYi (internal citations omitted).

[33] Id.

[34] Id.

[35] Chris Murphy, Harrah’s Cherokee Casino appointed as Carolina Panthers official sponsor, SBC Americas (Nov. 6, 2019), https://bit.ly/3wMS2Bp (Carolina Panthers and Harrah’s Cherokee Casino); Tim Daniels, Cowboys Become 1st NFL Team to Have Official Casino Partnership, Bleacher Report (Sept. 6, 2018), https://bit.ly/37YEHvl (Dallas Cowboys and WinStar World Casino); Devin O’Connor, Green Bay Packers Name Oneida Casino Official Gaming Sponsor, Expands Longtime Partnership, Casino.org (Aug. 29, 2019, 8:21 AM), https://bit.ly/3DzQRqx (Green Bay Packers and Oneida Casino); Aaron Wilson, Houston Texans Announce Deal With ‘Official Casino Partner’ Caesars, Sports Illustrated: Texans Daily Fan Nation (Aug. 12, 2021), https://bit.ly/3K61LXv (Houston Texans and Caesars Casino); BetMGM Named First Official Sports Betting Partner of Las Vegas Raiders, Cision PR Newswire (Sept. 17, 2020, 4:10 PM), https://prn.to/3Dpmu62 (Las Vegas Raiders and BetMGM); Devin O’Connor, California Tribe Becomes Official Casino Partner of SoFi Stadium and Los Angeles Rams, Chargers, Casino.org (Dec. 17, 2019, 8:18 AM), https://bit.ly/3DmO43R (Los Angeles Chargers and Pechanga Resort Casino); O’Connor, supra (Los Angeles Rams and Pechanga Resort Casino); Wes Burns, Harrah’s Louisiana: New Orleans Saints and Pelicans Join Forces, Betting USA (Dec. 20, 2018), https://bit.ly/36TrfZd (New Orleans Saints and Harrah’s New Orleans); Giants.com, DraftKings and New York Giants Announce Official, Exclusive Sports Betting Deal, NFL.com (Sept. 16, 2020, 10:00 AM), https://bit.ly/35jrZq2 (New York Giants and DraftKings); Carter Lee, NFL Casino Sponsor List Grows with San Francisco 49ers Deal, Top US Casinos (Sept. 20, 2019, 11:23 AM), https://bit.ly/3NyxvX2 (San Francisco 49ers and Cache Creek Casino); Ceysun Dixon, Seattle Seahawks sign ‘transformative’ casino deal, Sports Pro Media (Nov. 30, 2018), https://bit.ly/3wLUMPr (Seattle Seahawks and Snoqualmi Casino); Titans Announce BetMGM as First Official Sports Betting Partner, NFL.com (Sept. 28, 2020, 9:10 AM), https://bit.ly/3JLppYW (Tennessee Titans and BetMGM); FanDuel Group Brings America’s #1 Sportsbook To Virginia With Multi-Year Partnership With Washington Football Team, Washington Commanders (Jan. 26, 2021, 8:44 AM), https://bit.ly/371J8Fu (Washington Commanders and FanDuel).

[36] The Baltimore Ravens have partnerships with DraftKings, Ravens Name DraftKings Official Daily Fantasy, Sports Betting and Free-to-Play Partner, NFL.com (Aug. 18, 2021, 7:29 AM), https://bit.ly/3LuiBQ5, Caesars, Baltimore Ravens, Caesars Sportsbook, Horseshoe Baltimore and Ravens Announce Premier Sports Betting Partnership, NFL.com (Sept. 8, 2021, 7:59 AM), https://bit.ly/3iNuUL0, and Horseshoe Baltimore, Baltimore Ravens, supra. The Buffalo Bills have partnerships with Caesars, Bills welcome Caesars Sportsbook as an official mobile sports betting partner, NFL.com (Jan. 15, 2022, 8:00 AM), https://bit.ly/38bcCkK, and FanDuel, Buffalo Bills, Buffalo Bills name FanDuel Group as Official Mobile Sports Betting Partner, NFL.com (Jan. 6, 2022, 2:00 PM), https://bit.ly/3uEzII4. The Chicago Bears have partnerships with BetRivers, Mark Potash, Bears partner with Rivers Casino on sponsorship deal, Chicago Sun Times (June 22, 2021, 9:55 AM), https://bit.ly/3tOR6e0, and Rush Street Interactive, Christina Monroe, The Chicago Bears Partner With Sportsbook Rush Street Interactive, Legal Sports Betting (June 24, 2021, 10:18 AM), https://bit.ly/3wJ3oGA. The Denver Broncos have partnerships with BetMGM, Broncos & BetMGM agree to multi-year sports betting partnership, which includes premium lounge at Empower Field at Mile High, NFL.com (July 9, 2020, 10:34 AM), https://bit.ly/3DnsWdq, Betfred USA, Denver Broncos and Betfred USA Sports announce multi-year partnership ahead of Betfred launching a Colorado presence, NFL.com (June 16, 2020, 11:30 AM), https://bit.ly/3x2J2Zd, and FanDuel, Denver Broncos and FanDuel Group announce multi-year legalized sports betting & daily fantasy partnership, NFL.com (June 15, 2020, 11:30 AM), https://bit.ly/3uGR9b3. The Detroit Lions have partnerships with BetMGM, Lions name BetMGM first official sports betting partner, NFL.com (Sept. 3, 2020, 8:53 AM), https://bit.ly/3DmKuqj, and WynnBET, Bryce Derouin, Detroit Lions, WynnBet Announce Sports Betting Partnership, bookies.com (July 15, 2021), https://bit.ly/3tMSmxX. The Indianapolis Colts have partnerships with Caesars, Colts Communications, Caesars Entertainment Named Sports Betting Partner and Official Casino Partner of the Indianapolis Colts, NFL.com (Sept. 16, 2021, 1:00 PM), https://bit.ly/3uFK76j, and WynnBET, Conor Porter, WynnBET becomes sportsbook partner of Indianapolis Colts, SBC Americas (Sept. 20, 2021), https://bit.ly/3JUVXzO. The New York Jets have partnerships with WynnBET, Jets Team Up with WynnBET for A New Sports Betting Partnership, NFL.com (Sept. 14 ,2021, 8:59 AM), https://bit.ly/3Nyy1UY, and Fubo Sportsbook, Jets Announce Multi-Year Partnership with Fubo Sportsbook, New York Jets (Sept. 8, 2021, 8:45 AM), https://bit.ly/3qHsLF2. The Philadelphia Ravens have partnerships with DraftKings, Eagles make DraftKings team’s official daily fantasy sports partner and official sports betting partner, NFL.com (Oct. 1, 2020, 7:31 AM), https://bit.ly/36VTdn2, Genius Sports Limited, Genius Sports Press, Genius Sports to activate in-stadia sports betting partnerships with Philadelphia Eagles, Genius Sports (Oct. 5, 2021), https://bit.ly/3j2RXBH, Fox Bets, Jill R. Dorson, For Eagles, Count ‘Em: Three Sports Betting Partners Is the Charm, Penn Bets (Mar. 10, 2021), https://bit.ly/3IQXKV4, and UniBet, Dorson, supra. The Pittsburgh Steelers have partnerships with BetMGM, Luka Vasic, Pittsburgh Steelers Sign Sports Betting Deal With BetMGM, Sport Techie (Nov. 25, 2020), https://bit.ly/3NzSx82, and UniBet, Austin Bechtold, Steelers Team with Unibet as Official Sportsbook Partner, SteelersNow (Aug. 14, 2021), https://bit.ly/3qKbnPK.

[37] Wayne Parry, Pro teams bring betting to the game with stadium sportsbooks, AP News (Feb. 2, 2022), https://bit.ly/3iNpu2C.

[38] Denver Broncos and Betfred USA Sports announce multi-year partnership ahead of Betfred launching a Colorado presence, NFL.com (June 16, 2020, 11:30 AM), https://bit.ly/3x2J2Zd.

[39] Nat’l Football League Players’ Ass’n, Collective Bargaining Agreement 340 (2020), https://bit.ly/3LhFi9K.

[40] Nat’l Football League, Gambling Pol’y for NFL Pers. 1 (2018), https://bit.ly/3tLo0fk.

[41] Nat’l Football League, Gambling Pol’y for NFL Pers. 2 (2018), https://bit.ly/3tLo0fk.

[42] Sam Carp, NBA Brings in Bally’s as latest authorised sports betting operator, SportsPro Media (Mar. 5, 2021), https://bit.ly/3NyfVmg.

[43] Murphy, supra note 24 (Brooklyn Nets and Betway); Murphy, supra note 24 (Chicago Bulls and Betway); Kroenke Sports & Entertainment, supra note 24 (Denver Nuggets and PointsBet); Murphy, supra note 24 (Golden State Warriors and Betway); Murphy, supra note 24 (Los Angeles Clippers and Betway); Memphis Grizzlies, Memphis Grizzlies and FanDuel Group announce strategic sports betting and fantasy sports partnership, NBA.com (Nov. 2, 2020), https://on.nba.com/3uFcOQQ (Memphis Grizzlies and FanDuel); Conor Porter, Betway becomes official gaming partner of Milwaukee Bucks, SBC Americas (Feb. 14, 2022), https://bit.ly/3JRZWgA (Milwaukee Bucks and Betway); Dominic Marius-Markham, Betway and Timberwolves ink sponsorship deal, Gambling Insider (Oct. 25, 2021), https://bit.ly/3ITqA7k (Minnesota Timberwolves and Betway); Thunder Announces Expanded Partnership with Riverwind, Newcastle Gaming Center, NBA.com (Aug. 19, 2010, 11:09 AM), https://on.nba.com/3tOflsu (Oklahoma City Thunder and Riverwind Casino); William Hill And Monumental Sports & Entertainment Form Innovative Partnership And Launch New Era Of Sports Betting, Monumental Sports (Oct. 3, 2019), https://bit.ly/3iOaNMu (Washington Wizards and William Hill).

[44] The Cleveland Cavaliers have partnerships with Betway, Murphy, supra note 24, and Caesars, Cleveland Cavaliers, Caesars Sportsbook Teas Up with the Cleveland Cavaliers Ahead of Sports Betting’s Launch in Ohio, NBA.com (Feb. 24, 2022), https://on.nba.com/35m27dl. The Detroit Pistons have partnerships with FanDuel, Pistons.com, Detroit Pistons Enter Multi-Year Sports Betting Partnerships With FanDuel Group and DraftKings, NBA.com (Nov. 30, 2020, 10:42 AM), https://on.nba.com/3wNzkd4, DraftKings, Pistons.com, supra, BetRivers, Stan Fox, Detroit Pistons Names BetRivers its Official Sports Betting Partner, Lets Gamble USA (Jan. 26, 2021), https://bit.ly/3DpQiiH, and PointsBet, PointsBet Becomes Proud Sports Betting Partner of Detroit Pistons, Add NBA Legend Rip Hamilton to Team, Cision PR Newswire (Jan. 5, 2021, 10:00 AM), https://prn.to/3wMSXlb. The Indiana Pacers have partnerships with DraftKings, Andrew Cohen, DraftKings Signs Deals With Indiana Pacers, Philadelphia 76ers and Boston Celtics, Sport techie (Feb. 14, 2020), https://bit.ly/3NzLlbJ, and PointsBet, Pacers, PointsBet Announce Multi-Year Partnership, NBA.com (Aug. 4, 2020), https://on.nba.com/3NsIzoK. The New Orleans Pelicans have partnerships with Harrah’s New Orleans, Burns, supra note 35, and BetRivers, Rush Street Interactive’s BetRivers Sportsbook is the Official Partner of the NBA’s New Orleans Pelicans, Cision PR Newswire (Feb. 8, 2022, 8:30 AM), https://prn.to/3Dk65jc. The New York Knicks have partnerships with BetMGM, Dorson, supra note 25, Caesars, Dorson, supra note 25, and DraftKings, Cohen, supra note 25. The Philadelphia 76ers have partnerships with DraftKings, Cohen, supra, Betway, 76ers Name Betway Official Partner in Multi-Year Partnership, NBA.com (Oct. 25, 2021), https://on.nba.com/3DtArQf, BetMGM, Team Announces BetMGM as an Official Sports Betting Partner, NBA.com (Dec. 22, 2020), https://on.nba.com/3wJIsze, and Fox Bet, Andrew Cohen, Philadelphia 76ers and Fox Bet Form Sponsorship Partnership, Sport Techie (Nov. 26, 2019), https://bit.ly/3JT1PJY.

[45] Wayne Parry, Pro teams bring betting to the game with stadium sportsbooks, AP News (Feb. 2, 2022), https://bit.ly/3JY4sdC.

[46] Bulls.com, FanDuel Group and United Center Announce Plans to Open In-Area Sportsbook, NBA.com (Jan. 31, 2022), https://on.nba.com/3wN6eKM.

[47] Cleveland Cavaliers, supra note 44.

[48] Ben DuBose, In $1.6B deal, DraftKings to partner with Tilman Fertitta, Houston Rockets, USA Today Sports: Rockets Wire (Aug. 9, 2021, 1:25 PM), https://bit.ly/3uEpOG9.

[49] Otwain Flanders, FanDuel Partners Firm Co-Founded by NBA Star Kevin Durant, Vegas Slots Online (Jan. 18, 2022), https://bit.ly/3Nv2tiU.

[50] Nat’l Basketball Ass’n, Nat’l Basketball Ass’n Const. & By-Laws 47 (Oct. 2018), https://on.nba.com/3tMrWwx.

[51] Nat’l Basketball Players’ Ass’n, Collective Bargaining Agreement 117 (Jan. 19, 2017), https://bit.ly/3Dj8sCC.

[52] See Andrew Cohen, TheScore Becomes Seventh MLB Authorized Gaming Operator, Sport Techie (June 30, 2020), https://bit.ly/37278IA (The MLB has sports betting partnerships with TheScore, DraftKings, FanDuel, BetMGM, Fox Bet, Bet365, and Intralot); Zoe Strozewski, MLB Authorizes Bally’s as a Sports Betting Partner, Sport Techie (Mar. 19, 2021), https://bit.ly/3qKN2tn (MLB also has official betting partnership with Bally’s); Andrew Cohen, Arizona Diamondbacks Partner With Caesars to Open Sportsbook Outside Chase Field, Sport Techie (May 7, 2021) [hereinafter Arizona Diamondbacks], https://bit.ly/3tOEWSg (MLB also has partnership with Caesars).

[53] Steve Bittenbender, MLB Deal with Betcris is League’s First Wagering Partnership in Latin America, Casino.org (July 20, 2020, 9:10 AM), https://bit.ly/3DlmFPy.

[54] Arizona Diamondbacks, supra note 52 (Arizona Diamondbacks and Caesars); Jordan Bianchi, Boston Red Sox Announce Partnership with MGM International, Bookies.com (Mar. 11, 2019), https://bit.ly/3wNi1IX (Boston Red Sox and MGM International); Darren Rovell, DraftKings Signs Massive Deal with Cubs, Plans for Wrigleyville Sportsbook, Action Network (Sept. 23, 2021, 1:56 PM), https://bit.ly/3Dnh37F (Chicago Cubs and DraftKings); Ted Orme-Claye, Hard Rock Casino gains exposure via White Sox and ESPN deal, Insider Sport (Aug. 27, 2021), https://bit.ly/3DkoM6n  (Chicago White Sox and Hard Rock Casino Northern Indiana); Brian Pempus, WynnBET, Cincinnati Reds Announce Partnership For Online Sports Gambling, Hoosier State Bets (June 16, 2021), https://bit.ly/3Llw4ti (Cincinnati Reds and WynnBETS); Margaret Naczek, Milwaukee Brewers and Potawatomi sign multi-year partnership, Milwaukee Business Journal (Mar. 16, 2022, 10:57 AM), https://bit.ly/3NstZxw (Milwaukee Brewers and Potawatomi Casino); Lou Monaco, BetMGM Announces Partnership with MLB’s Pittsburgh Pirates, Bookies.com (July 15, 2021), https://bit.ly/3Dkp1OP (Pittsburgh Pirates and BetMGM); Ezra Amacher, Circa Resort & Casino partners with San Diego Padres, Gaming America (Mar. 31, 2021), https://bit.ly/3iLG1nK (San Diego Padres and Circa Resort & Casino); Chris Murphy, Multi-Year partnership for Texas Rangers and Choctaw, SBC Americas (June 4, 2019), https://bit.ly/380n9Ps (Texas Rangers and Choctaw Casino & Resorts); BetMGM Partners with Washington Nationals to Debut BetMGM Sports Betting App at Nationals Park, Cision PR Newswire (June 10, 2021, 4:45 PM), https://prn.to/3Dnd1vV (Washington Nationals and BetMGM).

[55] The Colorado Rockies have partnerships with WynnBET, Chris Murphy, WynnBET becomes official sports betting partner of MLB’s Colorado Rockies, SBC Americas (July 8, 2021), https://bit.ly/3qKxmWG, DraftKings, DraftKings Deepens its Presence in Colorado with New Colorado Rockies Deal and Opening of Sportsbook at Mardi Gras Casino in Black Hawk, DraftKings (Sept. 24, 2020), https://bit.ly/3Ny1RJi, and Betfred Sports, Colorado Rockies and Betfred Sports Sign Multi-Year Marketing Agreement, MLB.com (Mar. 3, 2021), https://atmlb.com/3iP0JTD. The Detroit Tigers have partnerships with PointsBet, Darren Rovell, Tigers Ink Deal With PointsBet, Become First MLB Team to Sign Official Betting Partner, Action Network (Sept. 24, 2021, 4:29 AM), https://bit.ly/3uK243M, BetMGM, Detroit Tigers Announce Sponsorship Agreement with BetMGM in Gaming Category, MGM Resorts International (Mar. 31, 2021), https://bit.ly/3uFkn9Y, FanDuel, Rush, supra note 25, and Motor City Casino, Murphy, supra note 25.

[56] Mark Saxon, Breaking: MLB Players Coax Three Gambling-Related Concessions From Owners, US Bets (Mar. 15, 2022), https://bit.ly/3uF68Cl.

[57] Id.

[58] Sam Profeta, MLB Players Allowed to Endorse Sportsbooks Per New CBA Agreement, Legal Sports Betting (Mar. 15, 2022, 11:59 AM), https://bit.ly/3iLGwOC.

[59] Major League Baseball, The Off. Pro. Baseball Rules Book 136 (2021), https://bit.ly/3JNWB1T; see also id. (If a player bets with an illegal bookmaker, the Commissioner will have discretion in determining the penalty, however, if the player operates an illegal book, the penalty will be a minimum one year suspension.); see also Memorandum from Comm’r Robert D. Manfred, Jr. on MLB Pol’y on Sports Betting 2 (Feb. 15, 2019), https://atmlb.com/3uxtNVb (This 2019 memorandum on the MLB’s policy on sports betting states that that MLB players “may not bet on any professional or amateur baseball or softball games…or events,” but players “may place legal bets on sports other than baseball or softball.”)(emphasis added).

[60] Dan Holmes, PointsBet Named Sports Betting Partner with MLS’s Austin FC, Gaming Today (Sept. 16, 2021), https://bit.ly/3LmTNcz (Austin FC and PointsBet); Colorado Rapids Announce Tipico Sportsbook as the Official Presenting Sponsor of the Club’s 2021 Playoffs Run, Colorado Rapids (Nov. 23, 2021, 6:02 PM), https://bit.ly/3JT5tDv (Colorado Rapids and Tipico); FanDuel Group and D.C. United Announce Exclusive, Long-Term Partnership, Our Sports Central (Oct. 27, 2020), https://bit.ly/35oIkde (DC United and FanDuel); CF Montreal (@cfmontreal), Twitter (Mar. 1, 2021, 9:00 AM), https://bit.ly/3Dj3GFr (CF Montreal and Bet99); New York City FC pens strategic deal with Mohegan Sun, iGB (Mar. 7, 2019), https://bit.ly/3qKgPCo (New York City FC and Mohegan Sun Casino); Philadelphia Union Announce New Partnership With Parx Casino, Philadelphia Union (Aug. 22, 2019, 9:00 AM), https://bit.ly/3qNl545 (Philadelphia Union and Parx Casino); Julie Moraine, Luckii.com Named the Timebrs’ Official Online Gaming Partner, Gambling News (April 16, 2021), https://bit.ly/3uvF7RC (Portland and Luckii.com); Ian Nicholas Quillen, Have Seattle Sounders, Native American Tribe Opened New Door To MLS Sports Betting Partnerships, Forbes (Mar. 23, 2021, 4:00 PM), https://bit.ly/36QYn3P (Seattle Sounders and Emerald Queen Casino).

[61] Ian Thomas, MLS Opens Jersey Sponsorship Category to Sports Betting Brands, Front Office Sports (June 26, 2019), https://bit.ly/3NpcqOO.

[62] Quillen, supra note 60.

[63] Chicago Fire FC becomes first MLS Club to launch gambling awareness sessions, Yogonet Gaming News (April 13, 2021), https://bit.ly/35jRCqK.

[64] Major League Soccer Players’ Ass’n, Collective Bargaining Agreement Between Major League Soccer & Major League Soccer Players Union: Feb. 1, 2015 – Jan. 31, 2020 60-61 (Feb. 1, 2015), https://bit.ly/35jPi3d.

[65] Andrew Marquardt, Legalized sports betting in the U.S. doubled in 2021. Here’s why that will continue after ‘the greatest weekend in NFL playoff history.’, Fortune (Jan. 24, 2022, 5:44 PM), https://bit.ly/3iPjyGh (“The market for legalized sports betting in the U.S. exploded in 2021, doubling in size as Americans wagered more than $52.7 billion throughout the year.”).

[66] Becky Sullivan, NFL receiver Calvin Ridley suspended for 2022 season after gambling on games, NPR (Mar. 7, 2022, 6:27 PM),https://n.pr/3tMDfof.

[67] Brian Pempus, Opinion: Josh Shaw’s NFL Gambling Suspension Was Too Severe, US Bets (Mar. 31, 2021), https://bit.ly/3wIgXGh.

[68] Id.

[69] Felipe Hernandez suspended for betting on MLS matches, MLS.com (Oct. 8, 2021, 4:00 PM), https://bit.ly/3tNTbXt.

[70] Tocchet pleads guilty, may avoid jail, ESPN (May 25, 2007), https://es.pn/3wLQHuB (Rick Tocchet, former NHL player and, at the time, assistant coach of the then-Phoenix Coyotes, plead guilty to running a sports gambling ring in 2007. While Tocchet denied ever placing bets on hockey or fixing games, the gambling ring “handled $1.7 million in wagers during a 40-day stretch…and included college football games and the Super Bowl.”).

[71] Greg Wyshynski & David Purdum, Evander Kane betting allegations; What we know and what we don’t, ESPN (Aug. 2, 2021),https://es.pn/3tKni1X; see id. (Evander Kane has a public history with gambling. In November 2019, a Las Vegas casino brought suit against Kane for failing to pay a $500,000 marker and in January 2021, Kane filed for Chapter 7 bankruptcy, in which he claimed he lost $1.5 million gambling “at casinos and via bookie.”)(internal citations omitted).

[72] NHL Public Relations, NHL investigation regarding Evander Kane completed, NHL.com (Sept. 22, 2021), https://bit.ly/3JOzp3J.

[73] Jacob Camenker, List of NFL players suspended for gambling: Calvin Ridley joins Josh Shaw, others busted for betting, Sporting News (Mar. 8, 2022), https://bit.ly/37YAIin (NFL Commissioner Roger Goodell stated that Calvin Ridley’s “actions put the integrity of the game at risk, threatened to damage public confidence in professional football, and potentially undermined the reputations of [his] fellow players throughout the NFL.”).

[74] Nat’l Basketball Ass’n, Nat’l Basketball Ass’n Const. & By-Laws 47 (Oct. 2018), https://on.nba.com/3tMrWwx.

[75] Major League Baseball, The Off. Pro. Baseball Rules Book 136 (2021), https://bit.ly/3JNWB1T.

[76] Evan Macy, More pro athletes are betting on sports, Calvin Ridley is just the first to get caught, Philly Voice (Mar. 8, 2022), https://bit.ly/3DkSIPC.

Ohio House Bill 454: The Legal Case Against Bans on Gender-Affirming Medical Care

Photo by Mercedes Mehling on Unsplash

Silver Flight, Associate Member, University of Cincinnati Law Review

I. Introduction

Transgender youth are facing a wave of anti-transgender bills,[1] including many that prohibit gender-affirming medical care.[2] Ohio House Bill 454[3] is one of these, mandating that “[n]o physician or other medical health care professional shall provide gender transition procedures to any person under eighteen years of age”[4] and “[a]ny provision of gender transition procedures to a person under eighteen years of age shall be considered unprofessional conduct and shall be subject to discipline by the licensing entity with jurisdiction over the physician, mental health provider, or other medical care professional.”[5] The bill prohibits “puberty blocking drugs” and “cross-sex hormones” for minors whose gender identity differs from their sex assigned at birth,[6] but explicitly allows the same procedures used on intersex[7] individuals or those with “a disorder of sexual development.”[8]

The bill states that the “state has a compelling government interest in protecting the health and safety of its citizens, especially vulnerable children,”[9] that puberty blockers are being prescribed “despite the lack of any long-term longitudinal studies evaluating the risks and benefits”[10] of using them for treatment of gender dysphoria, and that “cross-sex hormones” are being prescribed “despite the fact that no randomized clinical trials have been conducted on the efficacy or safety” of hormones used for this purpose.[11]

A very similar law, Act 626 (“the Act”) was passed in Arkansas in 2021.[12] The lawsuit in response to that Act provides insight into how the Ohio bill might be challenged if it becomes law. In 2021, the District Court of the Eastern District of Arkansas issued a preliminary injunction against the Act, based on Equal Protection, Due Process, and First Amendment claims.[13] The case is currently on appeal to the Eighth Circuit Court of Appeals.

II. Equal Protection Clause Argument

A. Discrimination Based on Sex

The plaintiffs in the Arkansas lawsuit, Brandt v. Rutledge, argued that, under the Equal Protection Clause,[14] heightened scrutiny applied to the Act because it discriminated based on sex and because it discriminated based on transgender status.[15]

In Bostock v. Clayton Cty., Georgia, the Supreme Court held that, under Title VII,[16] “it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex.”[17] The Court gave an example: if an employer fires an employee who was assigned male at birth but now identifies as female, but doesn’t fire an employee who was assigned female at birth and now identifies as female, “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”[18]

Similarly, the plaintiffs in Brandt argued that the Act discriminated on the basis of sex because it “would permit a girl to receive testosterone suppressants to help align her physical characteristics with her gender identity if her assigned sex at birth was female but not if her assigned sex at birth was male.”[19] Because the ban on medical care turns on the minor’s sex assigned at birth, it discriminates based on sex under the same logic used in Bostock.

B. Discrimination Based on Transgender Status

The plaintiffs also argued that the Act was subject to heightened scrutiny because transgender is at least a quasi-suspect class. As of today, the Ninth Circuit[20] and the Fourth Circuit[21] have held that transgender people constitute a quasi-suspect class. The plaintiffs applied the traditional framework for identifying a quasi-suspect class: “(1) transgender people have historically been subject to discrimination; (2) they have a defining characteristic that bears no relation to a person’s ability to contribute to society; (3) they may be defined as a discrete group by obvious, immutable, or distinguishing characteristics; and (4) they are a minority group lacking political power.”[22]

Following arguments from the defendants that gender identity was not actually immutable,[23] the plaintiffs added that “[c]ourts have explained that the ‘immutability’ consideration is not about whether the trait is strictly immutable but rather whether it is a characteristic one could or should have to change.”[24] The plaintiffs also addressed the defendants’ questioning of the “political powerlessness” prong of the test by showing that the question is not “solely about representation among elected officials, but rather about whether transgender people are ‘in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.’”[25]

The District Court agreed with the plaintiffs that the Act was subject to heightened scrutiny under the Equal Protection Clause because it discriminated based on sex and because transgender people constituted a quasi-suspect class.[26] The Act failed heightened scrutiny because although the stated objective for the medical care restrictions was to protect children from experimental procedures, the state only banned the procedures for transgender minors, while allowing the use of the same procedures for non-transgender minors.[27]

III. Due Process Clause Argument

The plaintiffs argued that the Act violated the Due Process Clause[28] by interfering with parental autonomy[29] and infringing on their “fundamental right to make decisions regarding the ‘care, custody, and control’ of their children,” including “the right to seek and to follow medical advice to protect the health and well-being of their minor children.”[30]

Although the defendants attempted to frame this as a “fundamental right to access experimental gender-transition procedures,”[31] the District Court agreed with the plaintiffs and held that the parents had “a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary.”[32]

Because the Act violated a fundamental right, it was subject to strict scrutiny. However, the court held that it would not even survive rational basis review, because it allowed “the same treatments for cisgender minors that [were] banned for transgender minors as long as the desired results conform[ed] with the stereotype of the minor’s biological sex.”[33]

IV. First Amendment Argument

Finally, the plaintiffs argued that the Act violated the First Amendment right to Free Speech by violating doctors’ rights to refer patients, restricting physicians’ speech, and being neither viewpoint nor content neutral.[34] The District Court agreed, explaining that “‘the creation and dissemination of information are speech’”[35] and that the “ban on referrals by healthcare providers [was] a regulation of speech.”[36] Additionally, the court found that the Act was “a content and viewpoint-based regulation because it restrict[ed] healthcare professionals only from making referrals for ‘gender transition procedures,’ not for other purposes,”[37] and therefore was subject to strict scrutiny.[38]

Finding that the plaintiffs were likely to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims, and that plaintiffs would suffer irreparable harm if the Act was not enjoined, the District Court entered a preliminary injunction against the Act, preventing its enforcement until the litigation of the case is over. The defendants have appealed to the Eighth Circuit, writing that the District Court created a new suspect class and a new fundamental right.[39]

The Eighth Circuit should take this opportunity to follow the trends in the law toward recognizing transgender people’s rights to be free from discrimination,[40] and to help put a stop to the hundreds of anti-transgender bills being introduced in the U.S.

V. Conclusion

Like Arkansas’ Act 626, Ohio House Bill 454 may violate the Fourteenth and First Amendments. It prohibits certain medical procedures only when they are used for affirming the gender of transgender minors, while specifically allowing the procedures to affirm the genders of cisgender minors. This undermines the legislature’s stated purpose of protecting children from unsafe procedures. If the legislature really believed these procedures were too dangerous to be used, they would prohibit them for all minors, and not just for transgender minors.

The bill also violates parents’ rights to care for their children by prohibiting medical treatment even when the treatment is supported by the child, the parent, and the child’s doctors. This is an improper intrusion by the state into the parents’ right to care for their child. Finally, the bill infringes on the free speech of the doctors by prohibiting referrals for treatment, and it is a content-based and viewpoint-based restriction of speech. Ohio House bill 454 faces strong constitutional challenges.

The bill also faces challenges from medical professionals, LGBTQ+ organizations, and the U.S. Department of Justice. Medical professionals agree that gender-affirming care is necessary for transgender youth.[41] Transgender youth face disproportionate mental health challenges, and a recent survey by the Trevor Project found that 85% of transgender and nonbinary youth reported that their mental health has been negatively impacted by recent news about issues that impact the transgender community and the wave of anti-transgender legislation.[42] Additionally, on Transgender Day of Visibility 2022, the U.S. Department of Justice issued a letter to all state attorneys general, writing that prohibiting gender-affirming medical care to transgender youth may infringe on both Equal Protection and Due Process rights.[43] With all of these challenges, if Ohio House Bill 454 becomes law, it will face strong opposition and will likely be struck down as unconstitutional.


[1] Meredith Deliso, “Catastrophic” Number of State Bills Target Transgender Youth, Advocates Say, ABC News (Mar. 7, 2021), https://abcnews.go.com/US/catastrophic-number-state-bills-target-transgender-youth-advocates/story?id=76138305 (“[a]t least two dozen” bills covering sports bans, and sixteen states that had considered or were considering  prohibiting gender-affirming health care for trans youth); Britni de la Cretaz, Hate Groups Are Making It Easier Than Ever to Introduce Anti-Trans Bills, them. (Feb. 25, 2021), https://www.them.us/story/hate-groups-easily-introducing-anti-trans-bills (writing that hate groups are making templates for anti-trans legislation); Matt Lavietes & Elliott Ramos, Nearly 240 Anti-LGBTQ Bills Filed in 2022 So Far, Most of Them Targeting Trans People, NBC News (Mar. 20, 2022).

[2] Kerith J. Conron, Kathryn K. O’Neill, Luis A. Vasquez & Christy Mallory, Prohibiting Gender-Affirming Medical Care for Youth, Williams Institute (March 2022), https://williamsinstitute.law.ucla.edu/publications/bans-trans-youth-health-care/ (covering 15 states that have passed or are currently considering bills denying gender-affirming medical care to transgender youth). On March 30, 2022, Arizona also passed a bill prohibiting gender-affirming medical care to trans youth. Devan Cole, Arizona Governor Signs Bill Outlawing Gender-Affirming Care for Transgender Youth and Approves Anti-trans Sprots Ban, CNN (March 30, 2022), https://www.cnn.com/2022/03/30/politics/arizona-transgender-health-care-ban-sports-ban/index.html.

[3] H.B. 454, 134th Gen. Assemb., Reg. Sess. (Oh. 2021) https://ohiohouse.gov/legislation/134/hb454.

[4] Id. at 8-9.

[5] Id. at 10.

[6] Id. at 6.

[7] “Intersex” refers to individuals who are born with sex characteristics that differ from typical binary notions of male and female bodies.

[8] H.B. 454, 134th Gen. Assemb., Reg. Sess., at 8 (Oh. 2021). The bill also prohibits gender-affirming surgeries for minors.

[9] Id. at 1.

[10] Id. at 2.

[11] Id. at 2-3. Note that the criticism is that there have been no randomized clinical trials on the use of these hormones for the treatment of gender dysphoria, while the bill allows the same hormones to be used to treat other conditions. Facing similar language in an Arkansas Act, the plaintiffs in Brandt v. Rutledge pointed out that a lot of medicine is developed without randomized clinical trials because it may be unethical to use them. For example, randomized clinical trials are used when it is not known whether the treatment is better than a control of no treatment, and because health care providers already know that this treatment is better than no treatment, it would be unethical to knowingly give some transgender youth worse treatment or withhold treatment from them. Complaint for Declaratory and Injunctive Relief at 35, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. May 25, 2021) (No. 4:21-cv-00450-JM). Additionally, the plaintiffs in Brandt highlighted that there are no randomized clinical trials of surgery on intersex children, and yet the Act, like Ohio’s bill, explicitly allows them, despite “significant ethical concerns raised by performing such procedures on infants too young to participate in the decision-making process.” Id. at 36.

[12] Ark. Code Ann. § 20-9-1501 to § 20-9-1504 (West).

[13] Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. 2021).

[14] U.S. Const. amend. XIV, § 1. “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”  Supreme Court case law has held that laws that discriminate based on sex are subject to a heightened, intermediate level of scrutiny.

[15] Complaint for Declaratory and Injunctive Relief at 41, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. May 25, 2021) (No. 4:21-cv-00450-JM).

[16] 42 U.S.C.A. § 2000e-2 (West). Title VII of the Civil Rights Act of 1964 is a federal statute that prohibits employment discrimination on the basis of an “individual’s race, color, religion, sex, or national origin.” Id.

[17] Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1741 (2020). Because Bostock involved a federal statute, it is not yet clear whether the Court will use this same logic for discrimination based on sex under the Fourteenth Amendment of the U.S. Constitution.

[18] Id.

[19] Opposition to Defendants’ Motion to Dismiss at 23, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 30, 2021) (No. 4:21-cv-00450-JM).

[20] Karnoski v. Trump, 926 F.3d 1180, 1200 (9th Cir. 2019).

[21] Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 610 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied, 141 S. Ct. 2878 (2021).

[22] Opposition to Defendants’ Motion to Dismiss at 17, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. July 16, 2021) (No. 4:21-cv-00450-JM).

[23]  Defendants’ Combined Brief in Opposition to Plaintiffs’ Motion for Preliminary Injunction; and Reply in Support of Defendants’ Motion to Dismiss at 4-7, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. July 9, 2021) (No. 4:21-cv-00450-JM).

[24] Reply Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction at 39, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 30, 2021) (No. 4:21-cv-00450-JM). But see, Jessica A. Clarke, Against Immutability, 125 Yale L.J. 1, 32-33 (2015) (illustrating objections to this type of immutability, including that it “masks questionable moral judgments about the blameworthiness of traits” and “reinforces stereotypes about the identities it protects.” Id.); Silver Flight, Comment, Gender: The Issue of Immutability, Univ. Cin. L. Rev., Nov. 12, 2021, https://uclawreview.org/2021/11/12/gender-the-issue-of-immutability/ (arguing that transgender equality should not depend on the mutability or immutability of gender and that immutability is not a requirement for suspect class categorization). 

[25] Reply Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction at 41, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 30, 2021) (No. 4:21-cv-00450-JM) (quoting Windsor v. U.S., 699 F.3d 169, 185 (2d Cir. 2012), aff’d sub nom. United States v. Windsor, 570 U.S. 744, 770 (2013)).

[26] Brandt v. Rutledge, 551 F. Supp. 3d 882, 889 (E.D. Ark. 2021).

[27] Id. at 891.

[28] U.S. Const. amend. XIV, § 1. “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”

[29] Complaint for Declaratory and Injunctive Relief at 4, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. May 25, 2021) (No. 4:21-cv-00450-JM).

[30] Opposition to Defendants’ Motion to Dismiss at 34, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 30, 2021) (No. 4:21-cv-00450-JM) (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)).

[31] Brief in Support of Motion to Dismiss at 33, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 16, 2021) (No. 4:21-cv-00450-JM).

[32] Brandt v. Rutledge, 551 F. Supp. 3d 882, 892 (E.D. Ark. 2021).

[33] Id. at 893. “Cisgender” refers to someone whose gender identity matches their sex assigned at birth.

[34] Complaint for Declaratory and Injunctive Relief at 44-45, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. May 25, 2021) (No. 4:21-cv-00450-JM).

[35] Brandt v. Rutledge, 551 F. Supp. 3d 882, 893 (E.D. Ark. 2021) (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011)).

[36] Id.

[37] Id.

[38] Id.

[39] Brief of Defendants-Appellants at i, Brandt v. Rutledge, No. 21-02875 (8th Cir. Nov. 15, 2021). They also wrote that the court “subjected any state law to strict scrutiny that regulates the treatments for which medical pactitioners may provide referrals.” Id. They defined the substantive due process right as a “fundamental right to unsafe, experimental gender-transition procedures.” Id. at 22.

[40] See, Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 607 (4th Cir. 2020) (holding that school bathroom policy prohibiting transgender male student from using the boys’ bathroom was unconstitutional sex-based discrimination and holding that “transgender people constitute at least a quasi-suspect class”); Karnoski v. Trump, 926 F.3d 1180, 1200-01 (9th Cir. 2019) (holding that transgender people constitute at least a quasi-suspect class and classification based on transgender status should receive intermediate scrutiny); Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. Of Educ., 858 F.3d 1034, 1048 (7th Cir. 2017) (holding that transgender students can bring sex-discrimination claims under both Title IX and Equal Protection Clause because “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth”), abrogated on other grounds as recognized by Ill. Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (holding that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination”); Smith v. City of Salem, 378 F.3d 566, 577 (6th Cir. 2004) (holding that a transgender plaintiff could support a claim of sex discrimination under the sex stereotyping theory under both Title VII and the Equal Protection Clause).

[41] Trisha Korioth, Pediatricians Say State Bills Would Harm Transgender Youths, American Academy of Pediatrics News (Mar. 9, 2021), https://publications.aap.org/aapnews/news/12780/Pediatricians-say-state-bills-would-harm; AMA to States: Stop Interfering in Health Care of Transgender Children, American Medical Association (Apr. 26, 2021), https://www.ama-assn.org/press-center/press-releases/ama-states-stop-interfering-health-care-transgender-children; APA Resolution on Supporting Sexual/Gender Diverse Children and Adolescents in Schools, American Psychological Association (Feb. 2020), https://www.apa.org/about/policy/resolution-supporting-gender-diverse-children.pdf.

[42] Victoria A. Brownworth, New Poll Shows LGBTQ Youth Mental Health Negatively Impacted by Anti-Trans Bills, Philadelphia Gay News (Jan. 10, 2022), https://epgn.com/2022/01/12/new-poll-shows-lgbtq-youth-mental-health-negatively-impacted-by-anti-trans-bills/; Issues Impacting LGBTQ Youth, The Trevor Project (Jan. 2022), https://www.thetrevorproject.org/wp-content/uploads/2022/01/TrevorProject_Public1.pdf.

[43] Justice Department Reinforces Federal Nondiscrimination Obligations in Letter to State Officials Regarding Transgender Youth, The United States Department of Justice (Mar. 31, 2022), https://www.justice.gov/opa/pr/justice-department-reinforces-federal-nondiscrimination-obligations-letter-state-officials. View the letter at https://www.justice.gov/opa/press-release/file/1489066/download.

Ohio’s “Constitutional Carry” Law: Context, Clarification, and Considerations

Photo by Marten Bjork on Unsplash

Leah Bartlam, Associate Member, University of Cincinnati Law Review

I. Introduction

On March 14, 2022, Ohio Governor Mike DeWine signed Substitute Senate Bill 215, which will update Ohio’s concealed carry law effective June 13, 2022.[1] Ohio is the twenty-third state in the United States to enact a law allowing people to carry concealed handguns without a permit (“permitless carry”).[2] The term “Vermont carry” is also sometimes used to reference this practice because Vermont was the first state to allow it.[3] Senate Bill 215 has been the subject of much debate, drawing support from Second Amendment enthusiasts and criticism from law enforcement, public safety policy groups, and firearms instructors.[4] This article first endeavors to explain exactly how Ohio’s current concealed carry laws will change on June 13, then describes common arguments for and against Senate Bill 215.

II. Background

While Ohio’s new concealed carry law does allow permitless carry of handguns, it retains many of the restrictions present in the current version of the law, such as age and location. Rather than completely reworking Ohio’s current concealed carry law, Senate Bill 215 will add one new section to the Ohio Revised Code and update other related sections.[5] The Background section of this article discusses the new addition to the Revised Code, describes restrictions on permitless carry, and explains the changes in law enforcement stop procedures.[6]

A. Ohio Revised Code § 2923.111

In short, Ohio Revised Code § 2923.111, which will take effect on June 13, 2022, allows qualified adults to carry concealed handguns without obtaining a license.[7] A qualifying adult is a person who meets the requirements of O.R.C. § 2923.111(A)(2)(a) and O.R.C. § 2923.125(D)(1)(a)-(j), (m), (p), (q), and (s).[8] First, a person must be at least twenty-one years old and legally reside in the United States.[9] Further, a person must not be a fugitive from justice and must not be under indictment for, been charged with, pleaded guilty to, or been convicted of a violent misdemeanor, an offense involving an illegal drug, or a crime punishable by imprisonment for more than one year.[10] Certain misdemeanors do not prevent a person from qualifying, provided that the person did not plead guilty or was not convicted within a specified period before carrying a handgun.[11] Additionally, a person must not have been committed to a mental institution or anything similar as defined in O.R.C. § 2923.125(D)(1)(i). A person must also not have a suspended concealed carry license or be subject to any civil protection or temporary restraining orders.[12] Finally, a person must not have been dishonorably discharged from the United States military.[13]

In addition to satisfying the requirements above, to be a qualifying adult, a person must also not be prohibited from possessing firearms under O.R.C. § 2923.13 or 18 U.S.C. § 922(g)(1)-(9). These statues have many of the same prohibitions as above but include a few additional disqualifications. To legally possess a firearm, a person must not be an unlawful user of or addicted to any federally controlled substance, be in danger of drug dependence, or be a chronic alcoholic.[14] A person must also not have renounced their United States citizenship or been convicted of a misdemeanor crime of domestic violence, no matter how long ago.[15] Basically, if a person would be barred from obtaining a concealed carry license or possessing a firearm under existing Ohio or federal law, that person cannot carry a concealed handgun under Ohio’s new permitless carry law.[16]

Under O.R.C. § 2923.111(B)(1)-(3), a qualifying adult may carry a concealed handgun, provided that it is not a restricted firearm, without a license, but must still comply with all the regulations that govern those with concealed carry licenses. Further, § 2923.111 applies to all other sections of the Ohio Revised Code concerning concealed carry permits and regulations, such that a qualifying person is deemed to have been issued a valid concealed carry license for the purposes of those sections, unless the context indicates otherwise.[17]

B. Restrictions and Exceptions

Ohio’s new permitless carry law retains the same restrictions as the current law concerning where people can carry concealed handguns. When applicable, under the new law, the exceptions to these limitations extend to qualifying persons who are carrying concealed handguns without licenses.[18] First, O.R.C. § 1547.69 prohibits people from transporting loaded firearms in vessels (watercraft), unless the firearms are not accessible to the operator or passengers, and unloaded firearms, unless they are in a closed case or in plain sight with the actions open.[19] The only exceptions to this rule are people with valid concealed handgun licenses and active-duty members of the military who have proper identification.[20] Senate Bill 215 does not change this requirement; rather, it updates the language in the exception from “a person who […] is carrying a valid concealed handgun license” to “a person […] who has been issued a concealed handgun license that is valid at the time of that transportation or possession.”[21]  This alteration means that, under the updated law, a person will no longer need to have a valid concealed carry license to meet the exception as long as they are a “qualifying person” under O.R.C. § 2923.111(A)(2). If a person does have a concealed carry license, they will not need to carry the license on their person to qualify for the exception.[22]

Second, under O.R.C. § 2923.121, a person may not carry a firearm in a place that has been issued a D permit (liquor permit) under O.R.C. § 4303 if any individual on the premises is consuming alcohol.[23] An individual with a concealed carry license may carry a firearm in such a place so long as they are not consuming alcohol or under the influence of alcohol or drugs.[24] Effective June 13, qualifying persons carrying concealed handguns without concealed carry licenses will also be able to take advantage of this exception.[25]

Similarly, O.R.C. § 2923.122 prohibits people from conveying firearms into school safety zones.[26] However, an individual who has a concealed carry license may carry a handgun into a school safety zone if they do not enter school buildings or attend any school activities.[27] They may also keep a handgun in a locked motor vehicle inside the school safety zone.[28] Under Ohio’s new law, these exceptions will also apply to qualifying adults without concealed carry licenses.[29]

Fourth, as outlined in O.R.C. § 2923.123, people may not carry firearms into courthouses or other buildings with courtrooms, regardless of whether they have been issued a concealed carry license. However, if the location offers such a service, a person with a concealed carry license may transfer their handgun to an officer in charge of the courthouse or building while the person is on the premises.[30] As with the other sections discussed above, this exemption will apply to qualifying persons when Ohio’s new law goes into effect.[31]

Ohio Revised Code § 2923.126 imposes further restrictions that apply to licensed, unlicensed, qualifying, and non-qualifying persons. This section prohibits people from carrying concealed handguns in police stations, detention facilities, secured areas of airport terminals, and other related institutions.[32] These prohibitions will not be altered by Senate Bill 215.[33] Additionally, every person carrying a concealed handgun must comply with the policies established by institutions of higher education, places of worship, and government facilities not otherwise regulated by the Revised Code.[34]

Finally, O.R.C. § 2923.16 prohibits all people from knowingly discharging handguns while in or on motor vehicles.[35] This section also regulates how people may transport firearms in motor vehicles but provides exceptions to those rules for people with concealed carry licenses.[36] Effective June 13, qualifying adults may also take advantage of these exemptions. One part of this section, O.R.C. § 2923.16(D), forbids individuals from transporting or possessing loaded handguns in motor vehicles while under the influence of alcohol or drugs and contains no exceptions.

C. Law Enforcement Stops

The main Ohio Revised Code section that regulates the actions of people who are carrying concealed handguns is § 2923.12. Senate Bill 215 changes this section in three significant ways.[37] First, under current Ohio law, if a person who has been issued a concealed carry license and is carrying a concealed handgun is stopped by a police officer, that individual must immediately inform the officer that they have a concealed carry license and a handgun, unless the firearm is in their home or vehicle but not on their person.[38] This requirement places the burden of notification on the person with the handgun. However, effective June 13, that burden will shift to law enforcement. The new language of O.R.C. § 2923.12(B)(1) only requires a person with a concealed handgun to disclose the existence of the firearm to one officer during a stop.[39] Further, a person does not need to notify an officer until the officer first specifically asks about the presence of a concealed handgun.[40] If no officer performing the stop inquires about a concealed firearm, then the person being stopped need not disclose any information about their weapon.[41] If a person was convicted of or pleaded guilty to a violation of O.R.C. § 2923.12(B)(1) before Senate Bill 215 takes effect, then that person may apply to request expungement of their record.[42]

The second major change to the current version of the Ohio Revised Code also involves O.R.C. § 2923.12(B)(1). Right now, failure to inform an officer of a concealed handgun during a stop is a first-degree misdemeanor and results in the suspension of the person’s concealed carry license.[43] Effective June 13, refusal to disclose a concealed handgun during a stop if an officer asks about concealed firearms will be a second-degree misdemeanor and will not cause the person’s concealed carry license to be suspended.[44]

Third, under current Ohio law, a person carrying a concealed handgun may be arrested if they are not also carrying a concealed carry license.[45] Even if that individual produces a valid concealed carry license within ten days of the arrest, they are still guilty of a minor misdemeanor.[46] Effective June 13, individuals will no longer need to produce a concealed carry license if they are stopped while carrying a handgun.[47] However, they may still face penalties if they are arrested for carrying a concealed handgun and are convicted or plead guilty to the violation.[48] This is most likely to happen if a person is barred from carrying a concealed weapon under the restrictions outlined by O.R.C. § 2923.111(A).

III. Discussion

A. Benefits to Enacting a “Constitutional Carry” Law

Several firearms groups, such as the Buckeye Firearms Association and the Firearms Policy Coalition, testified in front of the Ohio Legislature as proponents for Senate Bill 215.[49] They offered an array of arguments for loosening Ohio’s current concealed carry law. John Weber, state director of the National Rifle Association (NRA) Institute for Legislative Action, offered testimony on behalf of the NRA.[50] First, Mr. Weber emphasized the fact that over twenty other states already allow permitless concealed carry, so Senate Bill 215 is not an unusual piece of legislation.[51] Additionally, Mr. Weber pointed out that many of the existing restrictions on carrying concealed handguns are retained by Senate Bill 215.[52] Ohio’s new law also does not change the restrictions on purchasing firearms.[53] Third, according to Mr. Weber, FBI crime data shows that in five states with constitutional carry laws, public safety was not negatively impacted by laws allowing permitless carry.[54] Interestingly, in several states, after constitutional carry laws were passed, applications for concealed carry permits actually increased.[55] Finally, Mr. Weber argued that the purpose of Senate Bill 215 is to put law-abiding citizens on “equal footing” with those who already carry concealed firearms illegally and eliminate unnecessary costs and regulations.[56]

Rob Sexton, who testified on behalf of the Buckeye Firearms Association, offered many of the same arguments that Mr. Weber presented.[57] Additionally, Mr. Sexton emphasized the fact that Senate Bill 215 does not alter current use-of-force regulations.[58] Under Ohio’s new law, people still need to meet the same standard to use deadly force. Mr. Sexton articulated the standard in this way: “You may use lethal force for self-defense when you have a reasonable and honest belief that you are in danger of immediate and unavoidable death or great bodily harm.”[59]

Terry Johnson, an Ohio senator from the 14th Senate District, sponsored Senate Bill 215.[60] In his testimony, he invoked Section 4 of the Ohio Constitution’s Bill of Rights: “The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.”[61]

B. Problems Arising Under a “Constitutional Carry” Law

Both police officers and firearms instructors have expressed concerns that Ohio’s new law will result in more accidents and increased gun violence.[62] On February 17, 2022, Michael Weinman, a retired police officer from Columbus, testified before the Ohio House of Representatives on behalf of the Fraternal Order of Police of Ohio.[63] Mr. Weinman expressed strong opposition to Senate Bill 215 based on concerns about officer safety.[64] In particular, Mr. Weinman presented statistics showing that the number of police officers killed by gunfire per year has been steadily increasing since 2018.[65] Further, in 2020, police suspended or revoked 2,047 concealed handgun licenses and denied 1,777 license applications.[66] Mr. Weinman argued that under Ohio’s new law, these people would have no incentive to obtain or maintain licenses and would instead carry firearms without considering restrictions.[67] Finally, Mr. Weinman noted that police officers may encounter any number of situations in which they need to stop people without being able to access LEADS (Law Enforcement Automated Data System) first.[68] According to Mr. Weinman, this problem will become more pronounced when people are no longer required to carry concealed carry licenses while carrying handguns.[69]

Tom Austin, executive director of the Ohio Patrolmen’s Benevolent Association, testified concerning the updates to the duty to notify police officers during stops.[70] Mr. Austin contended that “[w]hile it is hopeful that most people carrying a concealed weapon will tell an officer they have one, there is no guarantee they will. As a responsible gun owner, the onus should always be on that person to advise law enforcement that they are carrying. Those in legal possession of firearms should have no reason to fear notifying the police.”[71] Due to these concerns, the Ohio Patrolmen’s Benevolent Association is opposed to Senate Bill 215.[72]

The Ohio Legislature also considered statistics compiled by GVPedia, a gun violence research project, showing that gun violence tends to increase after permitless carry laws are enacted.[73] According to GVPedia’s research, “[s]tates that pass a Permitless Carry law suffer from a 22% increase in gun homicide for the three years after the law’s passage, more than doubling the 10% increase for the country overall in the same time period.”[74] To support this conclusion, GVPedia analyzed the thirty-five national level academic studies on concealed carry laws published since 2005.[75] The majority of these studies also found that violent crime tends to increase after concealed carry laws become more permissive.[76]

Currently, to obtain a concealed carry license in Ohio, a person must complete eight hours of training, including classroom time and time spent at a gun range learning how to properly fire a handgun.[77] Most of the classroom time is dedicated to understanding the legal responsibilities and limitations of owning and using a firearm.[78] Firearms instructors in the Akron, Ohio area have expressed concern that people will be able to carry concealed handguns without completing any of this training.[79] One instructor, Adam Kusicki, told the Akron Beacon Journal that although he supports the Second Amendment, he also believes that the new law disregards the phrase “well-regulated militia.”[80]

IV. Conclusion

Although Senate Bill 215 allows people to carry concealed handguns with licenses, it does not substantially change current regulations governing firearms. People who would be barred from obtaining concealed carry licenses will still be prohibited from carrying handguns on June 13, and restrictions regarding where firearms may be carried will still apply. The most significant change applies to law enforcement stops. Unless an officer specifically asks about concealed weapons, a person who is stopped will no longer have a duty to inform the police that they are carrying a handgun. Proponents of Senate Bill 215 emphasize the idea that law-abiding citizens should be able to carry concealed handguns more easily for self-defense. Several law enforcement groups in Ohio are adamantly opposed to Ohio’s new law because of the risks it may pose to the safety of police officers and the public at large. However, the true effects of Senate Bill 215 remain to be seen.


[1] Cameron Knight, What to know about Ohio’s new permitless concealed carry law, Cincinnati Enquirer (Mar. 15, 2022)(last updated Mar. 19, 2022), https://www.cincinnati.com/story/news/2022/03/15/what-know-ohios-new-permitless-concealed-carry-law/7046104001/; Eric Marotta, Akron-area police, firearms instructors react to Ohio’s new ‘constitutional carry’ gun law, Akron Beacon Journal (Mar. 19, 2022), https://www.beaconjournal.com/story/news/2022/03/19/akron-police-firearms-instructors-react-constitutional-carry-gun-law-ccw-no-permit-required/7051914001/.

[2] Constitutional Carry/Unrestricted/Permitless Carry, U. S. Concealed Carry Association (last visited Mar. 26, 2022), https://www.usconcealedcarry.com/resources/terminology/types-of-concealed-carry-licensurepermitting-policies/unrestricted/.

[3] [The] Story Behind Constitutional Carry / Permitless Carry, U. S. Law Shield (Mar. 31, 2021), https://www.uslawshield.com/constitutional-carry-2021/. Virginia has allowed this practice from its founding.

[4] Eric Marotta, supra note 1.

[5] Sub. S.B. 215, 134th Gen. Assemb. § 1 (Ohio 2022) (altering O.R.C. §§ 1547.69, 2923.12, 2923.121, 2923.122, 2923.123, 2923.126, 2923.128, 2923.16, 2953.37, and enacting § 2923.111).

[6] This article only covers the significant changes made to the Revised Code. Refer to Sub. S.B. 215, 134th Gen. Assemb. § 1 (Ohio 2022) for details about minor alterations.

[7] O.R.C. § 2923.111(B)(1).

[8] O.R.C. § 2923.111(B)(2)(a)-(c).

[9] O.R.C.§ 2923.125(D)(1)(a)-(b).

[10] O.R.C. § 2923.125(D)(1)(c)-(e). Some juvenile offenses are also included in these provisions.

[11] O.R.C. § 2923.125(D)(1)(f)-(h).

[12] O.R.C. § 2923.125(D)(1)(j), (m).

[13] O.R.C. § 2923.125(D)(1)(q).

[14] 18 U.S.C. § 922(g)(3); O.R.C. § 2923.13(A)(4).

[15] 18 U.S.C. § 922(g)(7), (9).

[16] Currently, to obtain a concealed carry license, a person must undergo a background check. To carry a concealed handgun under Ohio’s new law, a person will not need to have a background check performed. See Eric Marotta, supra note 1.

[17] O.R.C. § 2923.111(C).

[18] Other specific exceptions, such as for law enforcement officers, are also included in these sections.

[19] O.R.C. § 1547.69(B)-(D).

[20] O.R.C. § 1547.69(H)(2).

[21] Sub. S.B. 215, 134th Gen. Assemb. § 1 at Sec. 1547.69(H)(2) (Ohio 2022).

[22] Ohio Legislative Services Commission, Bill Analysis, Sub. S.B. 215, 134th Gen. Assemb., at 1 (2022). This change applies to all the exceptions listed in this article.

[23] O.R.C. § 2923.121(A). Under O.R.C. § 2923.121(E), it is a felony to violate this restriction.

[24] O.R.C. § 2923.121(B)(1)(e).

[25] Sub. S.B. 215 § 1 at Sec. 2923.121(B)(e).

[26] Objects that are visually indistinguishable from real firearms are also prohibited.

[27] O.R.C. § 2923.122(D)(3).

[28] O.R.C. § 2923.122(D)(4).

[29] Sub. S.B. 215 § 1 at Sec. 2923.122(D).

[30] O.R.C. § 2923.123(C)(6).

[31] Sub. S.B. 215 § 1 at Sec. 2923.123(C)(6).

[32] O.R.C. § 2923.126(B)(1).

[33] Sub. S.B. 215 § 1 at Sec. 2923.126(B)(1).

[34] O.R.C. § 2923.126(B)(5)-(7).

[35] O.R.C. § 2923.16(A). Extremely limited exceptions, which will not be altered by Senate Bill 215, apply. See O.R.C. § 2923.16(F).

[36] O.R.C. § 2923.16(B)-(C).

[37] Interestingly, the original language of Sub. S.B. 215 would have prohibited law enforcement from stopping individuals solely based on their possession of a handgun. See Sub. S.B. 215, 134th Gen. Assemb. (Ohio 2021) (as introduced), https://search-prod.lis.state.oh.us/solarapi/v1/general_assembly_134/bills/sb215/IN/00/sb215_00_IN?format=pdf. This language was passed by the Senate but rejected by the House of Representatives.

[38] O.R.C. § 2923.12(B)(1), (C)(1)(c)-(d). Other restrictions also apply to people carrying concealed handguns during stops. For example, they must always keep their hands in clear sight and cannot make any contact with their handguns, unless expressly directed to do so by law enforcement. See O.R.C. § 2923.12(B)(2)-(4).

[39] Sub. S.B. 215 § 1 at Sec. 2923.12(B).

[40] Id. Once an officer inquires about a concealed handgun, a person must truthfully answer about any firearms.

[41] Id.

[42] Sub. S.B. 215 § 1 at Sec. 2923.12(E)(2).

[43] O.R.C. § 2923.12(F)(3). If the officer performing the stop has actual knowledge of the person’s concealed carry license, then the person is only guilty of a minor misdemeanor and the person’s concealed carry license is not suspended.

[44] Sub. S.B. 215 § 1 at Sec. 2923.12(F)(3).

[45] O.R.C. § 2923.12(F)(2).

[46] O.R.C. § 2923.12(F)(2)(a). Depending on the status of the license, other penalties may also apply under O.R.C. § 2923.12(F)(2)(a)-(c) and 2923.12(F)(7).

[47] Sub. S.B. 215 § 1 at Sec. 2923.12(F)(2).

[48] Id.

[49] Senate Committees, The Ohio Legislature (last visited Apr. 20, 2022), https://www.legislature.ohio.gov/legislation/legislation-committee-documents?id=GA134-SB-215. Some of the testimony offered for and against Senate Bill 215 was delivered before the legislation reached its current version.

[50] National Rile Ass’n of Am., Testimony on Substitute Senate Bill 215, S. 134th Gen. Assemb., at 1 (2022).

[51] Id.

[52] Id.

[53] Id. at 1-2.

[54] Id. at 2.

[55] Id.

[56] Id.

[57] Buckeye Firearms Association, Testimony of Rob Sexton, S. 134th Gen. Assemb., at 1-2 (2022).

[58] Id. at 2.

[59] Id.

[60] Terry Johnson, Sponsor Testimony, S. 134th Gen. Assemb., at 1 (2022).

[61] Id. at 2.

[62] Eric Marotta, supra note 1. Medical experts, policy groups, and other individuals have also opposed Substitute Senate Bill 215. See Senate Committees, The Ohio Legislature (last visited Apr. 20, 2022), https://www.legislature.ohio.gov/legislation/legislation-committee-documents?id=GA134-SB-215.

[63] Fraternal Order of Police of Ohio, Testimony on Substitute Senate Bill 215, H. R. 134th Gen. Assemb., at 1 (2022).

[64] Id.

[65] Id. at 2.

[66] Id. at 3.

[67] Id.

[68] Id. at 2.

[69] Id.

[70] Ohio Patrolmen’s Benevolent Ass’n, Testimony on Substitute Senate Bill 215, H. R. 134th Gen. Assemb. at 1 (2022).

[71] Id. at 2. The validity of this statement is questionable. In 2016, Minnesota police officer Jeronimo Yanez shot Philando Castile seven times after Mr. Castile informed Officer Yanez that he had a concealed carry license and a handgun in his car. See Mitch Smith, Minnesota Officer Acquitted in Killing of Philando Castile, New York Times (Jun. 16, 2017), https://www.nytimes.com/2017/06/16/us/police-shooting-trial-philando-castile.html.

[72] Ohio Patrolmen’s Benevolent Ass’n, supra note 62, at 1.

[73] GVPedia, GVPedia’s Permitless Carry Factsheet, H. R. 134th Gen. Assemb. at 1 (2022) (presented by Ohio Coalition Against Gun Violence).

[74] Id.

[75] Id. at 2.

[76] Id.

[77] Eric Marotta, supra note 1.

[78] Id.

[79] Id.

[80] Id.

La France Est Le Capitaine Maintenant: An Analysis of Neutrality Concerns Raised by France’s Seizure of Russian Vessel

Photo by François Genon on Unsplash

Lisa Rosenof, Associate Member, University of Cincinnati Law Review

I. Introduction

Amid the international response to Russia’s invasion of Ukraine, French warships recently relied on sanctions measures to intercept and seize a Russian merchant vessel at sea.[1] The vessel (the “Baltic Leader”) was suspected of belonging to a Russian company that is currently on the sanctions list by both the U.S. and the E.U.[2] The cargo ship, transporting cars, left Rouen bound for St. Petersburg.[3] However, on February 19, 2022, French sea police boarded, inspected, and redirected the vessel to the port of Boulogne-Sur-Mer in northern France.[4] Reports indicate that the Baltic Leader has cooperated with the authorities while Russia has objected to the detention.[5]

Generally, the law of neutrality defines the legal relationship between nations engaging in an armed conflict (belligerents) and nations not taking part in such hostilities (neutrals).[6] Thus, the French detention raises an important question to consider as nations continue to impose costs on Russia: during armed conflict, can neutral countries seize belligerent merchant vessels on international waters and retain their neutral status? This article summarizes the sanctions regime as well as the law of neutrality and argues that France did not meet the impartiality and abstention obligations expected in an international armed conflict.

II. Background: Sanctions

Sanctions are a civil means to coerce, deter, punish, or shame entities that endanger other nations’ interests or violate international norms of behavior.[7] As part of its enforcement efforts, the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) publishes a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries.[8] It also lists individuals, groups, and entities, such as terrorists and narcotic traffickers designated under programs that are not country specific.[9] Collectively, such individuals and companies are termed Specially Designated Nationals (“SDN”).[10] Their assets are blocked, and U.S. persons are generally prohibited from dealing with them.[11]

On February 22, 2022, OFAC added the Baltic Leader, reportedly owned by a Promsvyazbank subsidiary, to the SDN sanctions list.[12] The EU added Promsvyazbank to its sanctions list as well.[13]  The bank’s CEO, Pyotr Fradkov, is the son of Mikhail Fradkov, a former head of Russia’s foreign intelligence service, who also served as prime minister under Russian President Vladimir Putin.[14] It was under this determination that France concluded that the ship was an asset subject to seizure under the EU program.[15] However, in a comment sent to Reuters, Promsvyazbank stated that its subsidiary no longer owned the Baltic Leader, and that it was bought by a different entity before the sanctions were imposed.[16]

III. Background: Law of Neutrality

The law of neutrality regulates the relationship between belligerents and neutrals in situations of international armed conflict.[17] The law of neutrality serves to localize war, to limit the conduct of war on both land and sea, and to lessen the impact of war on international commerce.[18] A principal purpose of the law of neutrality is the regulation of belligerent activities with respect to neutral commerce.[19] Neutral commerce comprises all commerce between one neutral nation and another not involving materials of war or armaments destined for a belligerent nation.[20] Furthermore, neutral commerce encompasses all commerce between a neutral nation and a belligerent that does not involve the carriage of contraband or otherwise contribute to the belligerent’s war-fighting/war-sustaining capability.[21] Neutral merchant vessels engaged in legitimate neutral commerce are subject to visit and search but may not be captured or destroyed by belligerent forces.[22]

The traditional law of neutrality is codified in Hague Conventions V and XIII, two of a series of international treaties established to govern the laws of war.[23] Under the Hague Conventions, neutral nations have obligations to ensure inviolability of neutral territory which includes impartiality and abstention obligations, detailed below:[24]

Impartiality: neutral nations must apply every measure of restriction or prohibition in exercising their neutral rights or in fulfilling their duties in an impartial and non-discriminatory manner toward all the belligerents.[25] This obligation includes the conditions, restrictions, or prohibitions in regard to the admission into their ports, roadsteads, or territorial waters, of belligerent war-ships.[26]

Abstention: neutral nations are obliged to abstain from providing belligerents with direct or indirect support with certain goods and services in the prosecution of hostilities.[27]

Accordingly, the law of neutrality serves to both protect neutral commerce and to impose impartiality and abstention obligations on neutral nations.

IV. Discussion

The law of neutrality does not prohibit commerce between a belligerent and a neutral nation.[28] Rather, because maritime commerce is essential, even in times of war, the law states that neutral and belligerent nations are free to engage in commerce if it does not involve the carriage of contraband or contribute to the belligerent’s war-sustaining capability.[29] The law attempts to protect “neutral commerce” from unreasonable interference without promoting the flow of war materials.[30] Here, the Baltic Leader was transporting cars, not war materials.  Additionally, France had an obligation of impartiality and abstention in the Russian/Ukrainian conflict under the Hague Conventions which was violated when France boarded, inspected, and redirected the Russian vessel. In seizing the vessel, France specifically assisted Ukraine and thus impinged on the principle of neutrality.

While neutral nations and communities are never truly politically impartial or evenhanded in their response to military conflict, France’s seizure of the Baltic Leader highlights the importance of precluding neutral nations from assisting belligerent nations and retaining their neutral status. First, if we grant neutral status to nations assisting belligerent nations, so-called neutral nations could assist belligerents and reap the benefits of being a neutral nation, e.g., avoiding damage to their population and infrastructure. If we do not stand for belligerent nations directly attacking us, we should not stand for so-called neutral nations assisting those who do attack. Second, neutrality helps wars stay localized and limited, preventing them from turning into major conflicts involving more of the militarized world.

V. Conclusion

Looking at these facts through a neutrality lens, the seizure of Baltic Leader leaves room for claims that the detention was an “unneutral act” that aided one side in the conflict and was inconsistent with international neutrality obligations. In detaining the Baltic Leader, France did not meet the impartiality and abstention obligations expected in an international armed conflict.


[1] Matt Clinch, Russian cargo ship seized in the English Channel, CNBC (Feb. 26 2022), https://www.cnbc.com/2022/02/26/russian-vessel-reportedly-seized-in-the-english-channel.html [https://perma.cc/JLW8-YQPX].

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] A.R. Thomas & James C. Duncan, The Law of Neutrality, 73 International Law Studies 365 (1999), https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1558&context=ils#:~:text=The%20law%20of%20neutrality%20defines,the%20impact%20of%20war%20on [https://perma.cc/RZG9-SVAN].

[7] Jonathan Masters, What Are Economic Sanctions, Council on Foreign Relations (Aug. 12, 2019), https://www.cfr.org/backgrounder/what-are-economic-sanctions [https://perma.cc/WU9G-VW5H].

[8] U.S. Department of the Treasury, Specially Designated Nationals and Blocked Persons List (SDN) Human Readable Lists (Mar. 25, 2022), https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists [https://perma.cc/3P24-UV5P].

[9] Id.

[10] Id.

[11] Id.

[12] U.S. Department of the Treasury, Russia-related Designations; Issuance of Russia-related Directive 1A and General Licenses; Publication of New and Updated Frequently Asked Questions (Feb. 22, 2022), https://home.treasury.gov/policy-issues/financial-sanctions/recent-actions/20220222 [https://perma.cc/98RC-TQJT].

[13] EU Sanctions Map (Mar. 14, 2022), https://sanctionsmap.eu/#/main/details/26/lists?search=%7B%22value%22:%22%22,%22searchType%22:%7B%7D%7D [https://perma.cc/538N-BJK8].

[14] News Wires, France Seizes Cargo Vessel Targeting by US Sanctions on Russia, France 24 (Feb. 26, 2022), https://www.france24.com/en/europe/20220226-france-seizes-cargo-vessel-targeted-by-us-sanctions-on-russia [https://perma.cc/J64X-65Q9].

[15] Id.

[16] Id.

[17] Thomas, supra note 6 at 365.

[18] Id.

[19] Id. at 380.

[20] Id. at 381.

[21] Id.

[22] Id.

[23] Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, 36 Stat. 2310, T.S. No. 540 [hereinafter Hague Convention V]; Convention No. XIII Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415, T.S. No. 545 [hereinafter Hague Convention XIII].

[24] Thomas, supra note 6 at 367.

[25] Hague Convention V art. 9.

[26] Hague Convention XII art. 9.

[27] Hague Convention V arts. 2-4; Hague Convention XIII art. 6.

[28] Thomas, supra note 6 at 381.

[29] Id.

[30] Id.