Brain Trauma Concerns Have Ivy League Football Coaches Eliminating In-Season Practice Contact. A New Trend?

Reacting to growing concerns about brain trauma, the eight Ivy League football coaches have added to the Ivy League’s restrictive rules limiting contact during spring and preseason practice by unanimously voting to eliminate all full contact drills from regular season practices. The formal adoption of the decision is anticipated during an upcoming vote of the Ivy League’s athletic directors, policy committee members, and university presidents.  

The Ivy League’s new “no-contact practice rule” was introduced to the world of college football by Dartmouth College Head Coach Buddy Teevens in 2010.

Despite initial hesitancy by his coaching staff and players, Teevens eliminated player vs. player contact by forcing his players to hit pads and tackling dummies, instead of each other. Teevens, defending his plan and responding to criticism of his new policy, said, “At this stage of their careers, these guys know how to hit and take a hit. People look at it and say we’re nuts. But it’s kept my guys healthy.”

The effect of Teevens’ restrictions on full contact practices has been dramatic. The number of concussions sustained by the Dartmouth team has been reduced to a minimal number, from approximately 20 concussions per season before the full contact practices were eliminated. Noting that other injuries also have been reduced, Teevens stated, “[T]he number of neck, back and shoulder injuries has also declined noticeably.”

Stressing that his team still practices tackling between 500 and 800 times a year with its drills, Teevens observed his squad has actually improved its tackling skills by focusing on the art of tackling to avoid head collisions. “Our level of play hasn’t been hurt….[I]t’s actually made us a better team,” Teevens said. Dartmouth’s recent performance supports this opinion. In the past three seasons, Dartmouth has finished third and second in 2013 and 2014. The team earned a 9-1 record and shared the Ivy League football championship with perennial champion Harvard and Pennsylvania in 2015. 

While the collective bargaining relationship between the NFL and its players has resulted in the forced limit of only14 full contact practices during the leagues schedules 17 game schedule and the NCAA has limited full contact practices to two per week during the season, neither has reached the protection levels established by the Ivy League.

The Ivy League’s eight members, Brown, Columbia, Cornell, Dartmouth, Harvard, Pennsylvania, Princeton, and Yale, are clearly trendsetters in the standard for player safety.

As Robin Harris, Executive Director of the Ivy League, concluded, “We’re not trying to change the nature of the game, we’re just trying to make it safer.”


USCIS Proposal Clarifies Criteria for Athletes

The U.S. Citizenship and Immigration Services (USCIS) has proposed new guidance for adjudicating O-1 visa petitions for athletes and other individuals of extraordinary ability in certain fields. If the proposal becomes effective, athletes will have greater flexibility in satisfying the O-1 visa criteria.

Under current USCIS regulations, an athlete may qualify for an O-1 visa by demonstrating extraordinary ability in his or her field in one of three ways: (A) by reason of a nomination or receipt of a significant national or international award; (B) by meeting a certain number of listed criteria; or (C) by submitting “comparable evidence” when the listed criteria in part (B) do not readily apply.

Part (A) is fairly straightforward. For example, winning a Gold Glove award could qualify the athlete. The same goes for league MVP or an Olympic gold medal. If an athlete does not meet Part (A), Part (B) requires meeting at least three of the USCIS criteria,  such as receiving lesser but still nationally or internationally recognized prizes or awards, membership in associations requiring outstanding achievements, being written about in major media, making athletic contributions of major significance, being employed in a critical capacity for a prestigious organization, and commanding a high salary.

If an athlete does not meet Part (B), then Part (C), the catch-all “comparable evidence,” aka “alternate but equivalent,” should be considered. But here’s the rub: the regulatory text is not clear as to exactly when comparable evidence may be considered. Can applicants go directly to Part (C) or must they meet a certain number of the Part (B) criteria before comparable evidence could be considered? Moreover, must an athlete show that all or a majority of the Part (B) criteria do not readily apply?

The proposed guidance attempts to clarify this ambiguity, stating that comparable evidence can be considered on a criterion-by-criterion basis.

That is, an athlete need not first satisfy a minimum number of the Part (B) criterion before moving on to Part (C). An athlete must show only that any single criterion does not readily apply to his or her field before offering comparable evidence as to that criterion, as well as why the submitted evidence is “comparable” to the Part (B) criterion listed in the regulations. In addition, a petitioner relying upon comparable evidence still must establish the beneficiary’s eligibility by satisfying at least three separate evidentiary criteria, as required under the regulations.

According to the proposal, even if awards aren’t given for the league’s best on-base percentage or for singlehandedly increasing ticket sales, athletes will have greater clarity as to when comparable evidence is acceptable. It’s time to start thinking outside the batter’s box. The proposed guidance would make the path to an O-1 visa a little clearer.

NCAA Changes Course: High School Baseball Draftees Allowed To Hire Agents

The NCAA has voted to modify its existing rules dramatically to permit high school baseball players drafted in the Major League Baseball (MLB) amateur draft to hire agents to negotiate contracts with the Major League teams that drafted the players, without sacrificing college eligibility should they fail to successfully negotiate a professional contract.

The NCAA’s authorized use of an agent will not affect the high school player’s college eligibility. He will still be able to begin his career as a collegiate athlete in the event that the agent fails to negotiate an agreement with the team on the player’s behalf.

The new NCAA rule will begin immediately, applying to potential freshman baseball players in the Atlantic Coast Conference, the Big 12, the Big Ten, the Pac 12 and the Southeastern Conference. Other conferences are expected to follow the lead of the “Big Five” by adopting the same agent rules.

According to the new rules, in order to receive the benefit of an agent, the drafted high school player will be required to pay the agent his standard fee for services. However, a student athlete is not permitted to receive any other benefits from the agent beyond negotiating services. In addition,

if the student athlete decides to forego a professional baseball career and retain his college eligibility, he must sever all ties with the agent before formally enrolling and beginning his college academic and athletic experience.

While this NCAA rule modification provides clarity to high school student athletes and their families, the question still remains how college baseball players can receive adequate advice and counsel on a possible professional baseball contract while retaining their remaining college eligibility. Unfortunately, the current NCAA agent prohibition for college players will continue in its present form. Any college baseball player with remaining eligibility will not be able to take benefit from the new high school agent rule. They will still be prohibited from having the benefit of an agent and must rely upon the current “advisor” system.

The NCAA allows student-athletes to hire an “advisor” to receive the advice and counsel of a lawyer concerning a professional sports contract. The NCAA has said receiving such advice is not considered to be entering into an agent contract. Unfortunately, the effectiveness of the “advisor” has been curtailed by NCAA Bylaw which states, “a lawyer may not be present during discussions of a contract offer with a professional organization or have any direct contact (i.e., in person, by telephone or by mail) with a professional sports organization on behalf of the individual. A lawyer’s presence during such discussions is considered representation by an agent and a violation of NCAA bylaws.”

These confusing and inconsistent rules have resulted in several noteworthy litigations involving the NCAA in recent years. Perhaps the most well-known matter involved Oklahoma State University pitcher Andy Oliver. Oliver was drafted by the Minnesota Twins after his senior year in high school but decided to forego a professional career to attend Oklahoma State University. Near the end of his sophomore season, the NCAA ruled Oliver to be indefinitely ineligible to participate as a college athlete based upon his violation of the NCAA’s no-agent rule because of assistance he received from his representatives while considering the Twins offer.

Oliver sued the NCAA in Ohio, seeking an injunction to restore his collegiate eligibility, in addition to seeking compensatory and punitive damages. The court granted Oliver a temporary restraining order and immediately reinstated his eligibility. In addition, the Court held that the NCAA was prohibited from dictating to an attorney where, what, how or when he can and should represent his client. The ruling essentially abolished Bylaw Unfortunately, the impact of the court’s order was only temporary as it was vacated when the NCAA decided to pay Oliver $750,000 to settle his claims and effectively preserve their limitation on the athlete’s ability to secure proper and adequate counsel.

As Oliver’s attorney, Rick Johnson, asserted at the time of the settlement, “…the NCAA can continue to act with its typical arrogance and try to continue to deny student-athletes the right to counsel…no court is going to allow the NCAA to regulate lawyers or prohibit nonmember student-athletes from retaining counsel.”

While the NCAA has finally addressed the agent issue for high school baseball players, its failure to address the same issue on the collegiate level will only perpetuate the decades-long charade of requiring certified agents to work as “advisors” for their clients in order to appear to be in NCAA compliance. The NCAA has created an uneven playing field. All drafted baseball players should be able to receive the same level of advice and counsel as they consider the option of becoming a professional baseball player.


Transgender Locker Room Policy Eludes School District Facing Government Sanctions Under Title IX

An Illinois school district has violated anti-discrimination laws by not allowing a transgender student who identifies as female and is on her high school’s girls’ sports team to change and shower in the girls’ locker room, the United States Department of Education Office of Civil Rights (“OCR”) has held.

The OCR released its findings on November 2, 2015, after completing an extensive investigation of a complaint for unlawful discrimination under Title IX of the Education Amendments of 1972 filed by a transgender female high school student against the Township High School District 211 in Palatine, Illinois. Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. An entity in violation of Title IX may lose some or all of its Title IX funding.

Schools districts, colleges, and private employers are increasingly at risk of transgender discrimination charges or complaints under laws enforced by the OCR, the Equal Employment Opportunity Commission, the Department of Labor, the Department of Justice, and the Occupational Safety and Health Administration as these agencies develop their policies on transgender issues.

The EEOC, the DOL, and the DOJ have interpreted Title VII of the Civil Right Act’s prohibitions on sex discrimination to bar employment discrimination based on gender identity.

On the employment front, in the seven months between October 2014 and April 2015, EEOC received 505 charges based on sexual orientation discrimination and 112 charges based on gender identity. Moreover, the EEOC’s Strategic Enforcement Plan for 2012-2016 includes the investigation and enforcement of LGBT (lesbian, gay, bisexual, and transgender) sex stereotyping claims. (See our articles,

EEOC Releases Aggressive Strategic Enforcement Plan Focused on Discrimination in Hiring and Recruitment and Title VII Prohibits Discrimination against Transgender Workers, EEOC Decides.)

Further, effective April 2015, the DOL’s Office of Federal Contract Compliance Programs requires federal contractors subject to Executive Law 11246 to allow transgender employees to use the restroom and other facilities consistent with their gender identity. (See our article, DOL Releases Regulations Extending Protections to Lesbian, Gay, Bisexual, and Transgender Employees, Applicants.)

Finally, the OSHA guidelines require all employers under its jurisdiction to provide a “safe and healthy working environment for all employees” and transgender employees “should have access to restrooms that correspond to their gender identity.”

OSHA recommends that companies should implement written policies to ensure that all employees have “prompt access to appropriate sanitary facilities.” The agency’s best practices guide also recommends providing options from which a transgender employee may choose. These can include single-occupancy gender-neutral facilities and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls. (See our article, Restroom Access Should Be Consistent with Employee’s Gender Identity, OSHA Says in Workplace Safety and Health Update – Week of June 22, 2015.)


The Township High School District 211 denied a transgender female student access to three separate girls’ locker rooms (“LR”) (including the Physical Education (“PE”) LR, the PE Swim LR, and the Athletics LR). The Student alleged the District discriminated against her based on sex by denying her access to the girls’ locker rooms because of her gender identity and gender non-conformity.

OCR Decision

The OCR found the District violated Title IX for excluding the Student from participation in and denying her the benefits of its education program, providing services to her in a different manner, subjecting her to different rules of behavior, and subjecting her to different treatment on the basis of sex.

“The evidence shows that as a result of the District’s denial of access to the girls LRs, Student A has not only received an unequal opportunity to benefit from the District’s educational program, but also has experienced an ongoing sense of isolation and ostracism throughout her high school enrollment.”

Other than access to the female locker rooms, the OCR found the District treated the Student consistently with her gender identity, including identifying her by her female name and with female pronouns, providing her with full access to girls’ restrooms and allowing her to participate in girls’ sports.

Alternatives Not Acceptable

The District argued it offered the Student alternative changing options, such as permitting her to change with several female friends in an alternative restroom closer to the PE gym and offering her another restroom near the Swim LR.

The OCR found that the alternatives “continued or would continue to exclude [the Student] from the girls’ locker rooms and set her apart from her female classmates and teammates,” particularly as some of the proposed alternative facilities were not comparable to those provided for other girls.

For example, unlike the other female students who used the PE class swim unit, the Student had access only to a rinse shower and was not able to dry her hair because there was no electrical outlet. Furthermore, by not having access to the PE locker room, she was subjected to stigma and different treatment, OCR said, because she occasionally had been late to class or missed class announcements that were made in the girls’ locker room.

Finally, as a result of being denied access to the girls Athletics LR, the Student felt excluded from the team because she missed the informal huddle in the LR before matches, locker room “girl talk,” and the female bonding in the LR. According, the OCR concluded the District denied the Student’s Title IX rights.

Privacy Concerns Unavailing

While acknowledging that it denied the Student access to the female locker rooms, the District argued that it had to balance the Student’s rights and interests with two distinct privacy concerns of other female students:

  • the need to protect female students from “being observed in a state of undress by a biologically male individual,” and
  • the “inappropriateness of allowing young female students to view a biologically naked male in the locker room in a state of undress.”

The OCR found both of these arguments unpersuasive as the District had installed five showers with privacy curtains and five restroom stalls in the girls PE LR, but had not provided private changing areas in the other two LRs.

“The District’s installation and maintenance of privacy curtains in one locker room go a long distance toward achieving such a nondiscriminatory alternative because providing sufficient privacy curtain access to accommodate any students who wish to be assured of privacy while changing would allow for protection of all students’ rights in this context. Those female students wishing to protect their own private bodies from exposure to being observed in a state of undress by other girls in the locker rooms, including transgender girls, could change behind a privacy curtain.”

Given the Student’s willingness to change privately, the OCR said, the District could have provided equal access to all three LRs if it installed additional privacy curtains for any student that wanted privacy.


Federal government agencies are increasingly examining the purported protections afforded to transgender students and employees, in both the public and private sectors. How to handle transgender issues is still a work-in-progress for the agencies and the entities they regulate. In this case, despite the District’s accommodations and options to provide equal treatment to the Student in all respects other than access to the Locker Room, the OCR nevertheless held its efforts were insufficient. Moreover, states also have laws protecting LGBT individuals. (See our article, Utah Governor Signs Landmark LGBT and Religious Expression Anti-Discrimination Bill.)

The following steps can help lower the risk of being under government scrutiny:

  1. closely review and revise EEO (equal employment opportunity), harassment, and transgender policies;
  2. ensure proper sensitivity training of administrators, faculty, and students to foster diverse and inclusive primary, secondary school, and campus environments to avoid stigmatizing transgender students;
  3. ensure that accommodations for transgender students and employees provide equal access in all respects, as well as balance privacy concerns; and
  4. view our free webinar, Sexual Stereotyping & Gender Identity in the Workplace: Recent Developments.

Because of the complexities involved in this area, school districts, colleges, and private sector employers would be well-served to regularly review their policies and practices with counsel to ensure they address specific organizational needs effectively and comply with applicable law. Jackson Lewis attorneys are available to answer inquiries regarding this and other developments.


The United States Soccer Federation released new guidelines banning the practice of heading a soccer ball by children under the age of 10. The new guidelines also prohibit children between the ages of 11 and 13 from heading soccer balls in practice, but permit it in games.

The guidelines are part of a resolution reached in the Mehr class action concussion lawsuit that began in August of 2014. The case involved a group of parents and players who filed a class action suit in a United States District Court in California charging FIFA, the U.S. Soccer Federation and the American Youth Soccer Organization with negligence in handling head injuries of its participants. A judge ruled earlier that the claims against FIFA had no standing, but that the case against U.S. Soccer could continue.

The class action suit sought only rules changes, not financial damages.

The new U.S. Soccer guidelines were announced in a joint press release with the plaintiffs, and bring the litigation to a close.

The issue of head injuries in youth sports has taken on an increased urgency in recent years with the high-profile lawsuits brought against the National Football League (NFL) and the National Hockey League (NHL). A report by the Institute of Medicine and the National Research Council of The National Academies concluded that youth sports, such as field hockey, wrestling, women’s lacrosse and soccer, provide as much, if not more, danger of concussion as football and ice hockey.

In addition, a 2012 study reported by the Head Case Co. determined that while soccer has fewer concussions per year than football, the severity of concussions is significantly higher.

As part of the settlement, the U.S. Soccer Federation also agreed to modify substitution rules in games to allow players who may have suffered a concussion to be evaluated without penalty. The guidelines also call for more education for players, parents, coaches and referees, and for more uniform practices for handling youth concussions. While the U.S. Soccer Federation guidelines will be mandatory for their youth teams and academies, they represent only recommendations for other youth soccer programs and leagues across the country.

Steve Berman, lead attorney for the plaintiffs, said, “This is a tremendous victory that will affect millions of young soccer players across the country.” He added, “We believe this decision sends a strong message to coaches and lays down paramount regulations to finally bring safety management to soccer.”

While this matter has been resolved for the U.S. Soccer Federation, the hot-button topic of head injuries in youth sports will likely continue to generate intense debate and no shortage of litigation.


Former Player Brings Antitrust Lawsuit against NCAA Transfer Rules and Scholarship Limits

Former Weber State football player Devin Pugh has filed a class action lawsuit in Indianapolis federal court challenging the NCAA transfer rule restrictions and the limit on the number of scholarships that can be offered by NCAA member institutions.

The lawsuit claims that current NCAA mandates, requiring football players to sit out a year before resuming their careers after transferring to another member school, capping the number of scholarships that can be offered at 85, and prohibiting multi-year scholarships, are anti-competitive and violate federal anti-trust laws.

Pugh claims he rejected several scholarships opportunities following his senior high school in Oklahoma in favor of a scholarship proposal from Weber State University Head Coach Ron McBride. He claims McBride made specific verbal assurances to him that his scholarship would be renewed each year as long as he remained academically eligible for NCAA competition. Pugh asserts that Coach McBride assured him these commitments would be honored by any future coaching staffs even if McBride leaves the school.

However, when Jody Sears replaced McBride as head coach following his retirement, Pugh asserts his scholarship was not renewed. Despite receiving scholarship offers from other schools, including Colorado State and the University of Colorado, the offers were contingent upon Pugh retaining two years of eligibility at the time of transfer.

Unfortunately, since Pugh had agreed to “red shirt” (not compete against outside competition) during his freshman year at Weber State and the NCAA transfer rules require a mandatory one-year delay in athletic eligibility following transfer, Pugh was unable to accept any scholarship offers because he had only one year of athletic eligibility remaining. The NCAA rejected Pugh’s appeal for a hardship waiver to continue his career immediately upon transferring, which would preserve two additional years of athletic eligibility. Ultimately, the non-renewal of Pugh’s Weber State scholarship led to Pugh’s transfer to Division II Colorado State-Pueblo. As a result, Pugh alleged, the monetary value of his scholarship decreased from when he attended Weber State and nearly doubling his loan payments.

The lawsuit claims the transfer rules are anti-competitive and “restrain players’ abilities to make the best choice for themselves, including ones based on financial considerations, academic considerations, athletic considerations and personal circumstances.”

The action asserts that by requiring transferring players to sit out a year, the NCAA and its member schools have “contracted, combined and conspired to fix, depress or stabilize the amount, terms and conditions” of scholarship aid and “the NCAA cannot justify its conduct as necessary to preserve education or amateurism.”

Pugh’s attorney, Steve Berman, summarized the action as follows, “We believe that the NCAA and many other sports-governing bodies are in a period of change, but if the NCAA refuses to make these changes willingly, we intend to fight tenaciously for the rights of student-athletes against what we see as patently unlawful antitrust behavior.”

Pugh’s action seeks a formal determination that the NCAA’s practices relating to scholarships and transfer rules are unlawful, damages, including mandatory trebling of actual damages as well as punitive damages, and reasonable attorney’s fees.

Minor League Players Granted Conditional Class Certification in Wage Suit

A group of former minor league baseball players alleging they were not paid the minimum wage in violation of the Fair Labor Standards Act has been granted conditional class certification in a suit brought in California federal court against Major League Baseball teams. Now, both current and former minor league players will have the opportunity to participate in the lawsuit and potentially recover minimum wage and overtime compensation.

U.S. Magistrate Judge Joseph Spero, in San Francisco, on October 20 granted the former minor league players’ motion to certify a class of all minor league players who worked for the MLB or any MLB franchise since February 7, 2011, but had not spent time in the major leagues at the time.

The former players allege the franchises have been paying them less than minimum wage, denying them overtime pay, and requiring them to train during off-season without any pay.

They also contend the MLB and its clubs violated the FLSA, as well as similar state wage and hour laws in eight states, by paying them a total of only $3,000 to $7,000 over a five-month season despite their working from 50 hours to 70 hours each week.

This is the latest victory for this group of former players. In July, the U.S. District Court for the Northern District of California denied a motion by MLB franchises to dismiss the suit and allowed the case to proceed to pre-trial discovery “to determine whether certification is appropriate and whether the proposed class representatives have standing to represent the various proposed classes.” Senne v. Kansas City Royals Baseball Corp., No. 3:14-cv-00608 (N.D. Cal. July 13, 2015). See the Jackson Lewis Collegiate and Professional Sports Blog post on this decision:

Judge Spero rejected Major League Baseball’s argument that the class should not be certified because minor league players are required to perform different tasks during the season versus the off-season:

In particular, all [current minor leaguers] are bound by the [same standard player contract], which requires players to work for a fixed salary regardless of the number of hours worked, resulting in compensation that falls below the minimum wage because of the long hours they are required to work during the championship season. The Court finds that Plaintiffs’ allegations that they are subject to a uniform policy that results in failure to meet the minimum wage requirements of the FLSA are substantial . . . Therefore, conditional certification is warranted as to this claim.

The victory comes weeks after California’s U.S. District Judge Haywood S. Gilliam dismissed a separate suit brought by minor league players against MLB and Commissioner Bud Selig alleging that both parties violated federal antitrust law by conspiring to restrict the salaries of minor league players. See the Jackson Lewis Collegiate and Professional Sports Blog post on this case, Miranda et al. v. Office of the Commissioner of Baseball et al., No. 14-cv-05349 (N.D. Cal. Sept. 14, 2015):

Ninth Circuit Holds NCAA Subject To Antitrust Scrutiny, But Vacates Injunction Allowing Up To $5,000 Per Year Deferred Compensation To College Athletes

The U.S. Ninth Circuit Court of Appeals has affirmed in part and reversed in part District Court Judge Claudia Wilken’s August 2014 decision in the O’Bannon v. NCAA. No. 14-16601 (9th Cir. Sept. 30, 2015). The Appeals Court found the NCAA’s compensation rules restricting payment to collegiate athletes violated antitrust laws, but found Judge Wilken decision erroneously allowed college athletes to be paid up to $5,000 per year in deferred compensation.

The Ninth Circuit’s decision will have a significant impact on the NCAA, the O’Bannon plaintiffs, related lawsuits and the future of collegiate athletics.

The opinion, written by Judge Jay Bybee, found that the NCAA is not exempt from antitrust scrutiny and that a rule of reason analysis must be utilized on a case-by-case basis to evaluate the impact of the alleged restraint at issue. This aspect of the holding will significantly affect the NCAA. There is now Ninth Circuit precedent that the NCAA’s compensation rules are a restraint of trade and the NCAA will have to re-evaluate its rules and policies.

In evaluating the pro-competitive purposes of the NCAA’s compensation rules, the Appeals Court found the district court “underestimated the NCAA’s commitment to amateurism” and concluded the compensation rules serve two pro-competitive purposes identified by the district court: (1) integrating academics with athletics; and (2) preserving the popularity of the NCAA’s product by promoting its current understanding of amateurism. The issue then became whether the cost-of-attendance-stipends or deferred-compensation model constituted appropriate alternatives.

The Court found the NCAA must permit its member schools to provide up to the cost of attendance to student athletes, but it noted that the rule of reason analysis “does not require more.” In January, the five major conferences adopted a rule allowing cost of attendance stipends.

On the other hand, the Court found Judge Wilken erred in allowing college athletes to be paid up to $5,000 in deferred compensation and vacated the ordered injunction and giving the NCAA a significant victory.

The deferred compensation model was not a reasonable alternative in light of the pro-competitive purposes of the compensation rules.

The decision noted the $5,000-limit was an “offhand comment” by an NCAA witness (that the amount would trouble him less than a million dollars) and constituted the “sole support” for the figure. The Court found Judge Wilken “clearly erred” in finding the deferred compensation model to be a viable alternative.

The opinion included support of the NCAA’s principles of amateurism. For example, Judge Bybee noted that the “district court ignored that not paying student-athletes is precisely what makes them amateurs.” Judge Bybee also distinguished the cost of attendance ruling and the deferred compensation ruling:

“The difference between offering student-athletes education related compensation and offering them cash sums untethered to education expenses is not minor; it is a quantum leap.”

According to Judge Bybee, crossing such a line would effectively eliminate amateurism because future plaintiffs would challenge the arbitrary limits until they have the full value of their names, images and likenesses.

The Court was careful to emphasize the limited scope of its decision. The NCAA remains subject to antitrust scrutiny. Regardless, the decision will undoubtedly have an impact on related litigation and the NCAA generally. The most significant case, Jenkins v. NCAA, is pending before Judge Wilken. Jenkins seeks a free market for college football and men’s basketball players to be paid. The plaintiffs’ attorneys even filed an amicus brief in the O’Bannon appeal. Originally emboldened by the district court’s August 2014 decision, the Jenkins plaintiffs will now have to address the Ninth Circuit’s holdings and dicta related to amateurism and the payment of sums “untethered to education expenses.” Alternatively, the Jenkins plaintiffs can use the new Ninth Circuit precedent that the NCAA is subject to antitrust scrutiny and argue that their efforts to obtain a free market by injunction is a distinguishable and appropriate alternative to the NCAA’s compensation rules. The Jenkins parties are set to appear for a class certification hearing.

The mixed nature of the decision may cause both the O’Bannon plaintiffs and the NCAA to appeal the decision, even to the Supreme Court. The NCAA will likely be compelled to appeal the holding that its compensation rules constitute a restraint a trade because of its position on amateurism and pending lawsuits throughout the country. The O’Bannon plaintiffs will have to evaluate whether they are satisfied with the cost-of-attendance ruling or if they take issue with the holding on the deferred-compensation model. Either way, the Ninth Circuit’s decision is significant, provides some clarity, but we are far from finding the appropriate balance between amateurism and the NCAA’s compensation rules.











DECISION ALERT-Ninth Circuit Rules NCAA Violates Antitrust Law-Strikes Down Proposed Remedy

A three-judge panel of the Ninth Circuit Court of Appeals, in San Francisco, affirmed in part and reversed in part Judge Claudia Wilken’s August 2014 district court decision that NCAA rules restricting payment to athletes violate antitrust laws.

The Ninth Circuit agreed with Judge Wilken’s conclusion that NCAA rules restricting payment to athletes violated antitrust laws and authorized NCAA schools to provide athletic scholarships that cover the full cost of attendance. However, the Ninth Circuit rejected a key component of Judge Wilken’s decision which authorized the payment of $5,000 per year in deferred compensation for the use of individual athletes’ names, images and likenesses.

The opinion, written on behalf of the panel by Judge Jay Bybee, stated,

“NCAA is not above the antitrust laws, and courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules….In this case, the NCAA’s rules have been more restrictive than necessary to maintain its tradition of amateurism in support of the college sports market.”

A more detailed analysis of the decision and its potential impact will be posted shortly.

Minor League Players Strike Out in Effort to Bring Antitrust Class Action against Major League Baseball

A California federal judge has dismissed a putative class action alleging Major League Baseball and Commissioner Bud Selig violated federal antitrust law by conspiring to restrict the salaries of minor league players. Miranda et al. v. Office of the Commissioner of Baseball et al., No. 14-cv-05349 (N.D. Cal. Sept. 14, 2015).

The plaintiffs accused all 30 Major League teams and Commissioner Selig of colluding to limit minor league players’ salaries at below-market rates by agreeing to a uniform, league-wide salary scale for minor league players and artificially reducing the size of signing bonuses that entry-level players receive under MLB’s domestic and international signing bonus pool rules. They also challenged the legality of the “reserve clauses,” a common contractual provision that prevents a player from signing with another team for a period of time after the expiration of the player’s contract, asserting such mechanisms deny minor league players “the freedom of movement available to players in virtually all other professional sports.”

U.S. District Judge Haywood S. Gilliam, Jr., dismissed the suit, finding the antitrust exemption, which has been applied to MLB in several cases, also applies to the employment of minor league players.

MLB has historically been granted a unique exemption from federal antitrust law, created by the U.S. Supreme Court in 1922, Federal Baseball Club v. National League. Chief Justice Oliver Wendell Holmes ruled that baseball was not interstate commerce, but were exhibitions exempt from antitrust laws. The Supreme Court confirmed the antitrust exemption for MLB in 1972 and followed by other courts since. (Most recently, the Ninth Circuit affirmed the exemption in City of San Jose et al. v. Office of the Commissioner of Baseball.)

To distinguish their case from similar suits against MLB, the Miranda plaintiffs’ complaint emphasizes that their suit is the first to allege antitrust allegations with respect to the pay scale for minor league players.

Judge Gilliam rejected that argument and granted MLB’s motion to dismiss, holding that “baseball’s historic antitrust exemption bars antitrust claims arising from Plaintiffs’ employment as minor league baseball players.”

Judge Gilliam concluded MLB’s minor league pay practices were clearly encompassed by the antitrust exemption:

There can be no reasonable dispute that the alleged restrictions on the pay and mobility of minor league baseball players fall into the articulation of the antitrust exemption recognized in City of San Jose, which applies broadly to the ‘business of providing public baseball games for profit between clubs of professional baseball players.’

Judge Gilliam pointed out that change of the plaintiffs’ economic circumstances must come from the Supreme Court or Congress.

In short, Plaintiffs have a persuasive policy argument that the Defendants should not be afforded carte blanche to restrict the pay and mobility of minor league players without answering to the federal antitrust laws that apply to the employment of major league baseball players and, for that matter, all other professional sports leagues. But that policy argument must be made to Congress or the Supreme Court.

As of this writing, it is unknown whether the Miranda plaintiffs will appeal Judge Gilliam’s decision.