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Collegiate & Professional Sports Law Blog

NCAA Changes Course, Proposes Rule Allowing Players to Reject NBA and Return to School

The NCAA men’s basketball oversight committee has proposed a significant rule change that would allow undergraduate basketball players to return to school and resume their playing careers after initialing declaring their eligibility for the NBA draft. This proposed amendment is a drastic change from existing NCAA rules which prevent a student-athlete from returning to school and resuming his collegiate basketball career once he has filed for NBA draft eligibility.

Under the proposed rule change, underclassmen who have initially elected to make themselves eligible for the NBA draft would be permitted to attend the NBA’s pre-draft combine in May and receive a personal evaluation of their projected draft status by NBA personnel. The player then would be able to review and assess the feedback he received and potentially withdraw from NBA draft consideration and protect their remaining collegiate eligibility. If adopted, the NCAA will establish a withdrawal deadline date consistent with the proposal.

The NBA still would maintain an early draft entry deadline for underclassmen in late-April and a projected withdrawal date from draft consideration of 10 days before the draft, consistent with the terms of the current collective bargaining agreement before the NBA and its Players Association.

The NBA and the NCAA worked together on this proposal to address the increasing number of underclassmen who have elected to make themselves eligible for the NBA draft. Currently, 47 of the players who have elected early eligibility for the NBA draft are from college programs. Since the NBA draft allows a team to select a total of 60 players during its two-round draft process, a number of players who elected to leave college early likely will not be drafted. These undrafted players have limited options to continue their careers overseas or in the NBA’s development league. However, they do not have the option of returning to college and resuming their careers.

UCLA athletic director Dan Guerrero, chairperson of the NCAA’s men’s basketball oversight committee that drafted the proposed rule change, explained that the change will be in place for the 2016 NBA draft if it is adopted by the NCAA during a scheduled vote expected to occur in a January 2016 meeting.

 

New York’s ‘Enough is Enough’ to Become Law

Legislation to curb sexual assault on college campuses in New York is set to become law. Governor Andrew Cuomo had introduced the bill in January 2015.

The “Enough is Enough” bill encourages victims of sexual assault on campus to report the incident and bolsters support services for victims. Significantly, the legislation adopts a statewide affirmative consent definition for college campuses. Following in California’s footsteps, the New York legislation defines consent as a:

“knowing, voluntary, and mutual decision among all participants to engage in sexual activity” and specifies that “consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.”

The bill also includes:

  • A statewide amnesty policy to ensure students reporting incidents of sexual assault will not face discipline for otherwise violating the college’s code of conduct, including any drug or alcohol policy;
  • A Students’ Bill of Rights, which must be distributed to all students, identifying students’ rights, including the right to report such incidents to outside law enforcement, and how students may access resources;
  • Comprehensive training requirements for students, faculty, staff, and administration; and
  • Reporting requirements for secondary institutions to report annually data on the number of reported sexual assaults along with their adjudication.

The bill also creates a new unit within the New York State police department: the “sexual assault victims unit.” The unit would specialize in handling sexual assault and providing assistance to campus police. Finally, a commitment of $10 million has been pledged in the legislation to help combat campus sexual assault.

Except for the affirmative consent definition included in the bill, much of the legislation builds upon the requirements of the Campus SaVE Act, which was part of the Violence Against Women Reauthorization Act signed into law by President Barack Obama in 2013. Secondary schools have until July 1, 2015, to finalize policies and procedures to comply with Campus SaVE. Now, secondary schools in New York State also must revise their policies to comply with “Enough is Enough.”

The NCAA And Transgender Student-Athlete Participation

“Transgender” is an umbrella term for a person whose gender identity presentation is outside stereotypical gender norms and who may seek to change his or her physical characteristics through hormones, gender reassignment surgery, or other actions. Specifically, one’s internal psychological identification as a boy/man or girl/woman does not match the person’s sex at birth. For example, a male-to-female (MTF) transgender person is someone who was born with a male body, but who identifies as a girl or a woman. A female-to-male (FTM) transgender person is someone who was born with a female body, but who identifies as a boy or a man.

There is no federal anti-discrimination law based on gender identity or expression; however, federal courts and the EEOC have concluded that transgender discrimination is discrimination “based on … sex” and violates Title VII and some state courts and human rights agencies have ruled transgender employees are protected by their state anti-discrimination laws. Many states have also explicitly included gender identity and/or gender expression in their employment non-discrimination statutes. In addition, many employers, including schools, are adding gender identity or expression to their non-discrimination policies. Many parents and student-athletes are insisting that athletic programs accommodate transgender students and requiring educational leaders to ensure these students have access to equal opportunities in all academic and extracurricular activities (including athletics) in a safe and respectful school environment.

The National Collegiate Athletic Association (NCAA), which organizes athletic competition at over 1,000 colleges and universities, does not require gender confirming surgery or legal recognition of a player’s transitioned sex in order for transgender players to participate on a team which matches their identity. However, the issue of transgender athletic participation becomes more complicated when the athlete’s use of hormone treatments is at issue.

In 2011, the NCAA’s Office of Inclusion, “to provide guidance to NCAA athletic programs about how to ensure transgender student-athletes fair, respectful, and legal access to collegiate sports teams based on current medical and legal knowledge,” provided best practices and policy recommendations for member institutions, as well as guidance for implementing those policies.

Any transgender student-athlete who is not taking hormone treatment related to gender transition may participate in sex-separated sports activities in accordance with his or her assigned birth gender.

  • A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team.
  • A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.

The participation of FTM and MTF student-athletes who are currently undergoing hormone treatments is treated differently.

  • A FTM student-athlete who has received a medical exception for treatment with testosterone for diagnosed Gender Identity Disorder or gender dysphoria and/or Transsexualism may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing the team status to a mixed team. A mixed team is only eligible to compete for men’s championships.
  • A MTF student-athlete being treated with testosterone suppression medication for Gender Identity Disorder or gender dysphoria and/or Transsexualism may continue to compete on a men’s team, but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of documented testosterone-suppression treatment.

The use of banned substances, like testosterone, by student-athletes further complicates the issues for FTM and MTF student-athletes. Specifically, NCAA Bylaw 31.2.3 identifies testosterone as a banned substance, and provides for a medical exception review for demonstrated need for use of a banned medication. It is the responsibility of the NCAA institution to submit the request for a medical exception for testosterone treatment prior to the student-athlete competing while undergoing treatment. In the case of testosterone suppression, the institution must submit written documentation to the NCAA of the year of treatment and ongoing monitoring of testosterone suppression.

Another NCAA regulation that can be impacted by transgender student-athlete participation is mixed team status. A mixed team is a varsity intercollegiate sports team on which at least one individual of each gender competes. A mixed team shall be counted as one team. NCAA rules state that a male participating in competition on a female team makes the team a “mixed team.” Such a team is ineligible for a women’s NCAA championship but is eligible for a men’s NCAA championship. However, when a female competes on a men’s team, the team remains eligible for a men’s NCAA championship. Once a team is classified as a mixed team, it retains that status through the remainder of the academic year without exception.

Though the number of transgender students is small, research indicates that the number is growing. As the number of people who assert their status as transgender as teenagers and children increases, support for their specific transgender rights has also increased. In response to these societal demands, college leaders must be prepared to accommodate the educational needs and protect the rights of transgender students. To respond to these realities, athletics conferences and individual universities/colleges are well advised to ensure their policies and procedures on the inclusion of transgender student-athletes are in line with the NCAA Inclusion of Transgender Student-Athletes best practices and policies to provide fair, respectful, and legal access to collegiate sports for all student-athletes.

 

 

Is ‘Loss of Value’ Insurance Worth The Price For Student-Athletes, Universities??

Disability insurance policies are frequently secured by college football players, especially those who expect to be selected in the early rounds of the NFL draft. These policies are typically secured by the player in one or two forms. One option allows players to secure coverage to protect against “total permanent disability”. Such coverage would only pay the athlete in the event of a catastrophic, career ending injury. Alternative policies can protect the athlete against the potential “loss of value” tied to the player’s projected draft position. This type of insurance coverage provides a player protection in the event his projected draft position drops because of injury. Typically, the policy would make up the difference the projected bonus money and the actual contract amount secured by the player. Unfortunately, ‘loss of value’ insurance policies, may not be as easy to collect on as initially thought.

High-profile players, including 2015 NFL Draft’s No. 1 pick Jameis Winston, have secured the insurance expecting that if an injury causes their draft stock to fall, thus resulting in a lesser contract, they can collect on the policy to recoup some of the lost earnings. Jameis Winston’s premium for “loss of value” insurance was reportedly paid out of the Florida State University’s Student Assistance Fund (SAF). The SAF allows schools to “assist student-athletes in meeting financial needs that arise in conjunction with participation in intercollegiate athletics, enrollment in an academic curriculum or that recognize academic achievement.”

In addition to schools using the NCAA authorized Student Assistance Fund to pay insurance premiums for star athletes, the NCAA issued a waiver after the start of the 2014 football season creating a new avenue for college football players to secure loss of value insurance. While student-athletes had previously been able to secure the loss of value insurance only with their own funds or the use of SAF, purchasing the insurance became easier in October, when the NCAA began granting waivers to student-athletes, allowing them to purchase the insurance by borrowing against their future earnings to secure a loan from an established, accredited commercial lending institution, for the purpose of purchasing loss-of-value insurance. However, despite the increasing popularity of the loss of value insurance, no collegiate student-athlete has been able to collect on a policy, according to ESPN’s Darren Rovell. Former University of Southern California wide receiver Marqise Lee is currently experiencing the challenges of trying to collect on his policy.

Lee, once projected as a first round pick, purchased loss of value insurance in August 2013. He paid a $94,600 premium for $9.6 million in coverage. Lee believed that the coverage protected him if his draft position dropped and he signed a rookie contract worth significantly less than that the projected $9.6 million amount. Lee injured his left knee just two games into the 2013 season. As a result of the injury, Lee’s draft position dropped to the 39th overall pick in the 2014 NFL draft. Ultimately, he signed a contract with the Jacksonville Jaguars for $5.17 million. Lee filed an insurance claim and attempted to collect on the policy, but was unable to do as the insurance company raised a defense that Lee had misled with regard to pertinent medical information. In March 2015, Lee, along with a former USC teammate facing a similar issue, sued the insurance company over their failure to honor the policy.

Lee’s lawsuit highlights the potential challenges of collecting on loss of value policies. While the securing of insurance policies for student-athletes has indeed become a tool for universities to help keep star players remain in school and to temporarily forego the NFL, the possible issues related to collection are apparent. The University of Oregon utilized its SAF to purchase policies for its players, including cornerback Ifo Ekpre-Olomu. Ekpre-Olomu, once projected as a first round pick, likely will attempt to collect on his policy after an ACL injury in December 2014 caused him to fall to the seventh round of the 2015 Draft. The cornerback’s policy, which cost the University of Oregon $40,000, calls for a $3 million payout since Ekpre-Olomu late round selection was well after the coverage threshold of the first picks of the third round of the 2015 Draft.

All athletes that utilize the NCAA waiver to purchase insurance or universities that allocate SAF to purchase loss of value insurance will need to monitor Lee’s lawsuit and Ekpre-Olomu’s attempt to collect on his policy. If student-athletes continue to face difficulties collecting on their policies, both student-athletes and their universities will need to reconsider whether such policies are worth the cost.

Department of Education Issues New Guidance on Title IX Coordinators

The Department of Education’s Office of Civil Rights (“OCR”) has issued a Dear Colleague Letter (“DCL”) to superintendents, presidents, and other senior officials of educational institutions reminding them of their obligation to designate a Title IX coordinator and to support the coordinator fully in efforts to ensure the institution is in compliance with Title IX.

Recognizing that “some of the most egregious and harmful Title IX violations occur when a recipient fails to designate a Title IX coordinator or when a Title IX coordinator has not been sufficiently trained or given the appropriate level of authority to oversee the recipient’s compliance with Title IX,” the DCL reminds institutions that a Title IX coordinator is essential. Also released with the DCL, dated April 24, 2015, is a letter to Title IX coordinators as well as a Resource Guide for them, outlining considerations in selecting a coordinator, describing the coordinator’s duties, responsibilities, and authority, and reminding institutions of the importance of supporting coordinators by ensuring that they are visible in the educational community and receive appropriate training.

Regarding the selection of a Title IX coordinator, the OCR urges recipients to avoid designating an employee whose other job responsibilities may create a conflict of interest, such as a disciplinary board member or the institution’s general counsel, dean of students, superintendent, principal, or athletics director. The DCL states the coordinator’s role should be independent of other roles within the educational community to avoid any potential conflicts of interest. Rather, the coordinator should have a direct reporting line to the institution’s senior leadership.

Although not required by Title IX, OCR suggests, particularly for larger institutions, designating multiple coordinators – one for each building, school, or campus – with a “lead coordinator” who has ultimate oversight responsibility.

Also, emphasizing that the Title IX coordinator’s primary responsibility is to coordinate the recipient’s compliance with Title IX, the DCL and accompanying Resource Guide specifically outline the coordinator’s responsibilities, duties, and authority. Finally, regarding the need for visibility and training, the DCL and Resource Guide recommend that the contact information for the Title IX coordinator be given in title form with a reference to a general email address to avoid the necessity and expense of updating materials every time a new coordinator is appointed. However, the DCL notes that electronic resources should specify the name and specific contact information for the current Title IX coordinator. Should an institution choose to designate multiple coordinators, the contact information for all coordinators, as well as any instructions for reporting to a specific coordinator, should be included on the notices.

Additionally, recognizing that many students turn to electronic resources for information, the DCL suggests that institutions have a separate webpage, linked from the main website, which includes specific contact information for the Title IX coordinator(s), policies and procedures for filing Title IX complaints, and resources available for complainants. Also, because of the increased use of social media for information, OCR suggests institutions make contact information for the Title IX coordinator(s) available on social media to the extent that social media is used by the institution.

Tampa Bay Buccaneers to Settle Cheerleaders’ Wage-and-Hour Class Action

The Tampa Bay Buccaneers have agreed to settle a class action lawsuit brought by its cheerleaders on May 19, 2014. Pierre-Val v. Buccaneers Ltd. Partnership, No. 14-cv-01182 (M.D. Fla.). The Buccaneers agreed to pay $825,000, with $264,000 of the settlement allocated to attorney’s fees. As a class action, the settlement awaits Court approval after a “fairness hearing,” which likely will take place this summer. The potential class includes approximately 94 current and former cheerleaders who worked for the Buccaneers between June 3, 2009, and May 9, 2014. If the settlement is approved, class members will receive a portion of the $561,000, depending upon how many weeks and hours worked, so long as they do not opt out to pursue their own individual action.

Plaintiffs alleged violations of federal and state wage laws for failure to pay cheerleaders minimum wage. They were paid $100 per home game, as well as additional compensation for corporate events. The Complaint alleged the cheerleaders were required to work unpaid hours including practice time, charity events, clinics, posing for calendars, and for other work performed. Indeed, the Complaint notes the Buccaneers’ website explicitly says that cheerleaders were “consistently busy rehearsing, performing and volunteering for community events and appearances.”

Similar lawsuits have been brought against the other teams, including the Oakland Raiders, Cincinnati Bengals, Buffalo Bills, and New York Jets. The Oakland Raiders settled its lawsuit this past fall for $1.25 million. The Raiders’ cheerleaders had earned $125 per game. The other lawsuits are pending.

The lawsuit against the Buffalo Bills has the most at stake. The Bills’ cheerleaders were classified as independent contractors and received no compensation beyond a ticket to the game and a parking pass. They allege that they were misclassified and that they are entitled to compensation at minimum wage for working 20 hours per week. The Bills’ cheerleaders also claim they were subjected to a harassing work environment because, among other allegations, the Bills provided the cheerleaders with a handbook that addressed feminine hygiene and other inappropriate issues.

The Bills’ cheerleaders have even added the NFL to the lawsuit, arguing that NFL Commissioner Roger Goodell approved broadcast rights contracts that required them to sign agreements misclassifying them as independent contractors. Moreover, they argue that the NFL was unjustly enriched by the Bills’ wage violations because of the league’s revenue-sharing arrangement. The NFL is seeking dismissal of the Complaint as against them.

Professional sports organizations that employ cheerleaders are now on notice of potential wage and hour violations. This past season, even before it settled its lawsuit, the Oakland Raiders began paying cheerleaders minimum wage. A number of organizations already pay their cheerleaders minimum wage. The Bills, on the other hand, “suspended operations” of its cheerleading squad.

To lower the risk of being sued for wage-and-hour violations, employers should review their treatment of independent contractors, full-time and part-time employees, and interns and ensure the individuals are properly classified and compensated.

Massachusetts Interscholastic Athletic Association To Implement Background Checks For Officials

Closing one of the last gaps in ensuring the safety of students from school workers in Massachusetts, the Massachusetts Interscholastic Athletic Association (MIAA) has approved an initiative requiring all high school referees to undergo criminal background checks by a unanimous vote of the board of the directors on February 25, 2015. The MIAA has indicated that the plan, which may be amended further, would require all 8,000 officials and umpires to go through an extensive screening process by the spring of 2016. Massachusetts is the 28th state to pass such a requirement.

The MIAA plans to cover the expenses for the new system, estimated at $280,000 to $320,000 for the first year, by charging officials $35 to $40 per screening. Requirements of the new initiative include:

  • An official who is charged with a crime while working in the system may be suspended immediately until the case is resolved;
  • An official who is suspended or disqualified may appeal twice to separate MIAA review panels;
  • Officials will be rescreened every five years.

Athletic Directors across the state have lauded the decision, saying it adds an important level of safety for all student-athletes. “This is a big step in terms of becoming more actively engaged with a group of people who have been working with our kids,” MIAA associate executive director Richard Pearson told the Boston Globe.

Some groups, however, have voiced caution in subjecting Massachusetts officials to excessive screening. The president of the Eastern Massachusetts Soccer Officials Association, Tom Stagliano, told the Boston Globe that a comprehensive system that tracks which officials have already undergone the screening process is needed. “We will support the efforts of the MIAA to conduct across-the-board CORI [Criminal Offender Record Information] checks on all sports officials. However, since well over 40 percent of sports officials are currently school teachers and administrators who are already subjected to a CORI, we believe that the MIAA should work with the school superintendents to arrive at one CORI database for all teachers, administrators, workers, school volunteers, and sports officials across the entire commonwealth. An individual should only be subjected to one CORI process, which is the most cost-effective and efficient method.”

Please contact a Jackson Lewis attorney with any questions about the new requirements.

 

Employers Cannot Apply Tougher Policies Retroactively to Employee Covered by CBA

Sending employers a strong message, a federal court in Minnesota has ruled that even an arbitrator’s award may be overturned where the employer seeks to enforce a disciplinary policy that was not in place when the employee’s alleged misconduct took place. National Football League Players Association (on behalf of Adrian Peterson) v. the National Football League, No. 14-4990 (DSD/JSM) (D. Minn., Feb. 26, 2015).

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The Top Five Immigration Mistakes Made By Foreign Athletes

In 2014, opening day rosters in the National Basketball Association listed 101 players born outside the United States, Major League Baseball boasted 224 players from countries such as Japan, Korea, Dominican Republic, Venezuela, Japan, Cuba, and Mexico, not to mention the many players from other countries in the National Hockey League, Major League Soccer, and the developmental leagues of all of these major sports. As the world of sports continues to become more global, immigration has become even more essential to our professional sports leagues.

The five most common misunderstandings foreign professional athletes have about their immigration status include:

1) Careers are Short and So Are Grounds for Permanent Residence : Players who no longer compete at the highest level in their sports will be unable to obtain permanent residence based upon their abilities. Players no longer playing in their sport will be denied permanent residence for failure to demonstrate the continued ability in their area of extraordinary ability. Similarly, players often are only one bad season or injury away from losing their ability to remain in the U.S. on temporary visas. Therefore, they should consider filing for permanent residence early in their careers.

2) Family Matters, but Working is Another Matter: Families of foreign professional athletes cannot work in the United States unless they have their own basis for work authorization. By filing for permanent residence, however, the families of players can start businesses, seek employment, and have greater travel flexibility. Also, players who eventually become citizens can immediately petition to have parents join them in the United States.

3) Income Flexibility is Not Player’s Lot: Immigrant athletes generally can work only for a single employer. Other active business interests fall outside their authorized status. However, by obtaining permanent residence, the player is free to pursue business and employment opportunities like any other U.S. citizen.

4) Traveling with Ease May Have to Wait : U.S. immigration works on a series of complicated visas categories that often require several filings with the USCIS and DOS Visa limitations cause confusion and delay. Permanent residence, however, frees players from the burden of those filings and allows them to enter the United States faster and with less inspection by border officers.

5) Higher Standard of Behavior Is Expected: Immigration is a civil, rather than criminal, issue. Minor criminal issues or immigration violations can result in the denial of a visa or permanent residence for a player or family member. Immigrants are held to a higher standard. Issues that might result in a monetary fine for a U.S. citizen or permanent resident could mean a permanent bar or removal from the United States for an immigrant.

Working with experience immigration counsel can help players reduce the risks.

Law Professors Raise Concerns With Title IX Procedures

Do certain Title IX procedures abridge the due process rights of the accused for the sake of Title IX compliance? The University of Pennsylvania Law School has become the second law school in recent months to provoke a public response from law professors arguing the University’s new procedures for investigating and adjudicating complaints of sexual assault disregard the due process rights of the accused. In October, a group of Harvard Law School Professors published an open letter pointing out overreach by Harvard University in adopting new procedures for investigations and adjudications which, they argued, “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” Harvard Law School has since drafted its own procedures for investigating and adjudicating Title IX complaints.

Both open letters cited similar concerns regarding the rights of the accused during the investigative process. In particular, both sets of professors argued that their respective universities’ procedures for investigating complaints prevent effective cross-examination of the complainant or other witnesses. They also expressed concern with vesting the power to investigate, make findings of fact, and reach an ultimate decision on responsibility with the same “investigative team” (comprised of a Title IX investigator and another individual from the university), arguing that a more independent body should be used.

While Harvard’s policy provides for a finding of responsibility by the Investigative Unit without a hearing, UPenn’s procedures allow a hearing panel to review the findings of the investigators. In their letter, however, the UPenn professors argued the hearing process lacked fundamental fairness. They highlighted four concerns with the new policy:

(1) the inability of the accused student’s attorney or representative to cross-examine the witnesses against the accused;

(2) the inability of the accused’s representative or attorney to challenge the findings of the investigative report submitted to the hearing panel;

(3) that a finding of responsibility by the panel need only be by majority vote, not unanimous; and

(4) the lack of safeguards to protect the accused’s rights against self-incrimination where there may be criminal prosecution.

Harvard Law School has attempted to address some of the concerns by providing legal representation to students who cannot afford to hire an attorney, incorporating into the procedure a hearing overseen by a panel of individuals who are not affiliated with the Law School or University, and allowing cross-examination of witnesses during the hearing, while still protecting the complainant from direct examination by the accused.

The letters also highlighted the pressure schools face from the DOJ’s Office of Civil Rights, which can levy fines or withhold federal funding if a school is not in compliance with Title IX, and noted such pressure can lead to procedures that compromise due process rights for involved individuals.

Schools’ Title IX policies must comply with Department of Education regulations while preserving due process rights for accused individuals, who ultimately could pursue any perceived violation of such rights in court.