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Collegiate & Professional Sports Law Blog

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.

Proposed Connecticut Law Would Empower Certain Student-Athletes to Unionize

A bill has been introduced in the Connecticut General Assembly that would define certain collegiate athletes at public colleges and universities within the state as employees. The proposed law would permit eligible student-athlete employees to join unions and bargain collectively. If the bill is enacted into law, Connecticut would become the first state in the country to permit student-athletes at public universities to unionize.

The bill (No. 5485), introduced by State Representative Matthew Lesser (D-Middletown), has been referred to the state’s Higher Education and Employment Advancement Committee for further consideration.

The bill provides that a student-athlete will be considered an employee when the student-athlete:

(1)   receives a scholarship of not less than 90% of the cost of tuition,

(2)   the scholarship is materially related to the student’s expected participation in intercollegiate athletics, and

(3)   revenues generated in the prior academic year for the athletic program in which the student is expected to participate, when divided by the total number of students expected to participate in such athletic program, exceeds 400% of the value of such scholarship.

Representative Lesser explained that he believes a union would “at least get students a seat at the table.” Inspired by former Connecticut basketball player Shabazz Napier’s complaint that he and some of his teammates had gone to bed hungry, Lesser said that “this is a big industry…we’ve heard from students at UConn and around the country that they feel exploited…so the question is, do we want to give those students the right to negotiate with the schools and the NCAA?”

In March 2014, the Regional Director of the National Labor Relations Board in Chicago ruled that scholarship football players at a private university were “employees” defined by the National Labor Relations Act. He ordered an election to determine if the football players at Northwestern University wanted to be represented by a union. The result of the election has been held in abeyance while the Board reviews the initial determination that the football players were employees of the University.

Representative Lesser also said, “Student athletes in revenue sports are part of a major industry….The NCAA has tried to create a climate of exploitation. The NCAA shouldn’t be able to exploit young, talented athletes who risk career-ending injuries on a daily basis.”

Lesser concluded, “the bill will ensure that, at least in Connecticut, athletes’ voices are heard and their rights respected—that they’re not just used as free labor.”

Women’s World Cup Turf-War Is Over

This summer’s Women’s World Cup will be played on artificial surfaces, rather than natural grass, after a group of international women’s soccer stars withdrew their gender discrimination lawsuit against FIFA and the Canadian Soccer Association.

The players’ lawsuit, filed in the Human Rights Tribunal of Ontario, accused FIFA and the CSA of gender discrimination, arguing that elite men’s teams would never be forced to play on artificial turf.  Every Men’s World Cup since 1930 has been played on natural grass.  The players also noted that artificial turf will increase injury risk and change how games are played

Fighting FIFA was always an uphill battle for the more than 80 players, including U.S. star and all-time international scorer Abby Wambach, who originally brought the legal action.  Beyond having access to greater resources, FIFA and CSA tactics against the players allegedly included threatening players with suspension. A judge found FIFA’s alleged threats credible enough to allow the lawsuit to be amended to add reprisals against FIFA to the complaint.  However, the tribunal refused to expedite the players’ suit and FIFA appeared unwilling to compromise

In order to allow all teams ample time to prepare for the surfaces, the players dropped the lawsuit.  Playing on soccer’s biggest stage apparently outweighed the risks, and, therefore, they never seriously considered a boycott.

A lawyer for the players, Hampton Dellinger, said the case “highlighted continuing gender inequity in sports and lessened the chance that such wrongdoing will occur in the future.”
“The players’ united, international effort to protest discrimination has had a positive impact,” Dellinger stated. “The deplorable artificial surface at BC Place, the site of the final, will be replaced. Goal-line technology will be used for the first time in a Women’s World Cup and we know that the 2019 World Cup will be held on grass.”

“Our legal action has ended,” Abby Wambach said in a statement. “I am hopeful that the players’ willingness to contest the unequal playing fields — and the tremendous public support we received during the effort — marks the start of even greater activism to ensure fair treatment when it comes to women’s sports.”

The tournament is scheduled to kick off on June 6.


Major League Baseball Players Association Amends Agent Regulations To Require Written Exams For Applicants

For the first time since October 1, 2010, the Major League Baseball Players Association (MLBPA) has enacted a series of amendments to its regulations governing player agents. Approved during the MLBPA’s recent annual Executive Board meeting in Orlando, the amendments address the union’s ongoing effort to improve the quality and knowledge of agent applicants. Each applicant must possess basic knowledge about the terms and conditions in the Basic Agreement (the collective bargaining agreement), the Major League Rules, the Joint Drug Agreement, and the MLBPA Agent Regulations prior to being approved to become a member of the MLBPA’s certified agent pool.

All agent applicants must pass a written exam before they can be certified. In addition, agent applicants will be subject to a detailed background check. The background investigation will focus on the applicant’s conduct relevant to the fiduciary duties of an Agent and the additional responsibilities required by the MLBPA to bargain on behalf of players. The MLBPA’s introduction of the written testing procedure prior to certification is similar to the process utilized by the National Football League Players Association (NFLPA).

The MLBPA has stated that it will offer a preparatory course for the test. Applicants will be able to take the certification test in either January or August of each year, depending upon when the applicant’s formal application is submitted.

Additionally, the MLBPA Executive Board adopted stricter reporting requirements and increased fees for both agent applicants and current MLBPA-certified agents. Current certified agents will be exempt from the written exam requirement and will not be subject to a background check as long as they maintain their certification. However, an annual fee of $1,500 will be imposed on current certified agents, a drastic increase from the current bi-annual fee of $250.  The MLBPA also increased fees for new applicants seeking certification to $2,000 (a $1,500 increase). The increased fees will offset the new anticipated costs to perform background checks on each applicant and the costs of administration for all certified agents.

The amendments also created a Certification as an Expert Agent Advisor. Previously, an individual could be certified as an agent with General Certification or Limited Certification.

A General Certified Agent may represent, assist, or advise a Player in negotiating terms to be included in a Major League contract or “side letter” concerning terms to be included in a Major League contract, and represent that Player in dealings with any Major League Club or the Commissioner’s Office concerning the administration or enforcement of that Player’s Uniform Player’s Contract, the Basic Agreement or the Major League Rules. A Limited Certified Agent is permitted to recruit or provide client maintenance services on behalf of a General Certified Agent, but may not communicate with a Major League Club on behalf of a Player. The new certification of Expert Agent Advisor may represent, assist, and advise a General Certified Agent on behalf of a Player.

An Expert Agent Advisor is an individual designated by at least one General Certified Agent to engage in the representation, assistance, or advising of that Agent, on behalf of a Player, in the negotiations of terms to be included in a Major League Uniform Player Contract or in any other agreement. An Expert Agent Advisor is prohibited from engaging in recruiting or Client Maintenance Services, as defined by the Agent Regulations.  

An individual is eligible to be certified as an Expert Agent Advisor if he or she (i) is a member, partner or employee of a business entity that is not a sports agency and does not include other General or Limited Certified Agents, (ii) has not been designated on a Player Agent Designation form from a Player who satisfies the definition in §2(B) of the regulations, and (iii) has an undergraduate degree from an accredited four-year college or university, and either a post-graduate degree from an accredited college or university or at least four years of appropriate negotiating experience.


UPDATE-Michigan Excludes Student-Athletes from Unions

Michigan has become the first state to exclude intercollegiate student-athletes at its public universities from the definition of a “public employee,” and therefore, the right to bargain collectively through a union.

An amendment to Michigan’s Public Employee Relations Act signed by Governor Rick Snyder excludes from the definition of “public employee” :

(1) “a student participating in intercollegiate athletics on behalf of a [Michigan] public university”;

(2) “a graduate student research assistant or [those serving] in an equivalent position”; and

(3) “any individual whose position does to have sufficient indicia of an employer-employee relations using the 20-factor test announced by the [I]nternal [R]evenue [S]ervice.”

The action came in response to a decision by the Regional Director of the National Labor Relations Board in Chicago that the scholarship football players at Northwestern University were “employees” within the meaning of the National Labor Relations Act and therefore eligible to be represented by a labor union. (See NLRB Grants Review in Northwestern Case; Election to Be Held and Ballots Impounded.) The Northwestern decision is on review before the five-member NLRB in Washington. A decision is expected at any time.

The state law has no applicability to student-athletes, graduate assistants and others attending private colleges and universities or to such individuals attending public universities in other states.

New Class Action Alleges NCAA and 11 Conferences Formed ‘“Monopsony’” Over College Athletes

Three former college athletes are the latest to file a class action lawsuit against the National Collegiate Athletic Association (NCAA), asserting the NCAA and its 11 conferences collectively share “monopsony” over college athletes.

Kenyata Johnson, Barry Brunetti, and D.J. Stephens filed their class action complaint  in the U.S. District Court for the Northern District of California just three months after the landmark ruling from U.S. District Judge Claudia Wilken. Judge Wilken ruled in favor of a group of college student-athletes led by retired professional basketball player Ed O’Bannon against the NCAA. In OBannon v. NCAA, Judge Wilken struck down NCAA regulations prohibiting student-athletes from receiving compensation beyond scholarships for use of their names, images and likenesses.

The new class action accuses the NCAA and its members of unlawfully agreeing that no college will pay an athlete any amount that exceeds the value of an athletic scholarship. This agreement, the plaintiffs argue, violates the Sherman Act and limits the value of athletic scholarships at an amount substantially below what an athlete could earn for his or her services in a competitive market. As a result, the arbitrary cap imposes a lower standard of living and significant hardships on college athletes.

They assert that because the NCAA and its members are the “only game in town” in  providing compensation to college athletes, such a restriction creates an unlawful restraint of trade in (1) the market for NCAA Division 1 football player services; and (2) the market for NCAA Division 1 men’s basketball player services. Plaintiffs conclude that through these restraints, the NCAA and its members have created a “take it or leave it market” for college athletes.

“In enacting the challenged restraint, the NCAA and its members have ultimate power to artificially depress compensation to college athletes. If a top-tier athlete doesn’t like it, he or she essentially has no reasonably close alternative. That is the nature of a monopsony,” identifies the complaint.

Other allegations in the complaint against the NCAA include:

  • The cap is simply a “cost containment mechanism” to preserve more of the benefits of a lucrative enterprise for the NCAA and its member institutions
  • Depriving consumers of the potential opportunity of seeing numerous players remain in the college system for longer periods of time

The plaintiffs’ complaint also offers an alternative to the NCAA’s current regulations – to create an open market with no restriction on the amount of scholarship money a school can provide to an athlete. The plaintiffs contend such a change would allow NCAA member conferences to compete among themselves as to the financial aid terms that will be made available to college athletes.

Michigan Bill Would Bar Student-Athlete Unionization

With a National Labor Relations Board decision on whether football players at Northwestern may proceed with their unionization efforts looming, Michigan is considering a bill that would prevent student-athletes from similarly attempting to unionize.

The bill, sponsored by Rep. Al Pscholka, would prevent student-athletes at Michigan’s public universities from exercising collective bargaining rights based on their participation in a university sports team. It states, “a student participating in intercollegiate athletics on behalf of a public university in [Michigan]…is not a public employee entitled to representation or collective bargaining rights….”

Michigan has seven public universities competing at the Division I level. The bill would bar student-athletes at these universities from engaging in unionization efforts similar to the ones undertaken by the football players at Northwestern.

While none of the seven universities has faced a union organizing campaign from any of its student-athletes, prompting one opponent of the bill, Rep. Andy Shor, to describe the bill as a solution to a nonexistent problem.

“I don’t understand the tremendous rush on this,” Shor said. “We’re taking an action that addresses something that’s happening in Evanston, Illinois.”

However, if the Board finds in favor of the football players at Northwestern, universities across the country likely will face similar unionization efforts from other student-athletes. Michigan’s may be an attempt to get out in front of such efforts. 

According to Ramogi Huma, the president of the organization spearheading the unionization campaign at Northwestern, the College Athletes Players Association, Michigan’s bill is “backhanded confirmation that student-athletes are state employees by including them in a list of workers who can’t bargain effectively.” However, the bill does not categorize student-athletes as employees and, indeed, it states that “individuals whose position does not have sufficient indicia of an employer-employee relationship” are also prevented under the bill from engaging in collective bargaining.

Huma also warned that if the bill passes, it would have a negative impact on the ability of Michigan’s public universities to recruit student-athletes because prospective student-athletes interested in being part of a union could elect instead to go to either private universities in Michigan or universities in states with no restrictions on their unionization efforts.

Thus far, none of the seven Division I public universities in Michigan have commented publicly on the bill. However, the bill likely is being closely followed by them as well as public universities in other states and major athletic conferences, such as the Big Ten, home to Northwestern, Michigan, Michigan State, and Ohio State.

Turf War: Female Soccer Stars Sue FIFA and the Canadian Soccer Association

More than 60 of the top female soccer players, including U.S. stars Abby Wambach and Alex Morgan, have brought a lawsuit against the Canadian Soccer Association and FIFA, the international governing body of football, asserting that the organizations’ decision to play the 2015 Women’s World Cup on artificial turf constitutes gender discrimination.  A men’s World Cup has never been played on artificial turf and the men will play the 2018 and 2022 World Cup tournaments on grass.

According to the players’ filing with the Human Rights Tribunal of Ontario in Toronto, World Cup organizers are violating Section 1 of Ontario’s Human Rights Code.  The Code states, “every person has a right to equal treatment with respect to services, goods and facilities, without discrimination.”  The Code is a broad civil rights law that prohibits discrimination on the basis of gender and has been interpreted to protect athletes from discrimination.

The players argue that artificial turf “fundamentally alters” the way soccer is played and exposes them to increased risk of serious injury. Morgan had commented that she decided to become involved in the lawsuit for health reasons. “Not only are they long lasting injuries, but there are long-term effects of playing on turf,” the forward for the U.S. national team says. “The achiness, taking longer to recover than on natural grass, the tendons and ligaments are, for me at least, I feel more sore after turf. It takes longer to recover from a turf field than natural grass.”

Artificial turf has been blamed for increased rates of sprained ankles, concussions, and turf burns. Moreover, a NBC Nightly News report presented evidence that the black beads embedded in artificial turf, called crumb rubber, may cause cancer.

The Women’s World Cup is seven months away and FIFA appears unmoved. The players have petitioned the Tribunal to expedite its review process, which typically takes at least one year.

The national and international debate on gender discrimination in athletics continues.  If international soccer stars Lionel Messi and Cristiano Ronaldo threatened to join a lawsuit against FIFA over artificial turf, it is hard to imagine that FIFA, an organization projected to bring in $5 billion in revenue over the next four years, would not immediately spend the estimated $3 million it would cost to replace the turf fields with natural grass.

NLRB Student-Athlete Decision Could Be Issued Soon

As National Labor Relations Board Member Nancy Schiffer’s term ends on December 16, 2014, the expectation is that a flurry of important NLRB decisions will be issued before then, including on whether scholarship student-athletes are employees under the NLRA (Northwestern University, Case 13-RC-121359). This expectation is based on what occurred prior to the expiration of former-NLRB Member Brian Hayes’s term on December 16, 2012. In the six days preceding his departure, the Board issued at least seven notable decisions. See “Expect NLRB Whirlwind before Schiffer Leaves”.

Most commentators, including this one, believe the NLRB will decide the student-athletes are employees covered by the National Labor Relations Act.

Former Soccer Player Seeks Minimum Wage for Student-Athletes, Sues NCAA, 352 Division I Schools

A former collegiate soccer player has claimed in a class action lawsuit filed on behalf of herself and all student-athletes who have participated recently in Division I women’s and men’s sports that the NCAA and Division I colleges and universities are violating the minimum wage provisions of the Fair Labor Standards Act (the “FLSA”). Samantha Sackos, a former women’s soccer player for the University of Houston, contends that she and other student-athletes are entitled to at least the federal minimum wage for their athletic time commitments.

Student-athletes are “employees” of their universities under the FLSA, Sackos contends, and student-athletes at Division I schools are comparable to students who participate in work-study programs.  She claims that they, too, perform non-academic functions for no academic credit, are supervised by full-time college staff in the normal course of staff duties, and confer benefits on their college.  But, unlike work-study participants, student-athletes are not paid for the time they spend performing their duties, the suit alleges.

Although Sackos attended only one Division I school, all 352 Division I institutions are named as defendants in the lawsuit, along with the NCAA.  Sackos accuses the NCAA and the schools of conspiring to violate the FLSA because the NCAA’s bylaws “prohibit recognition of student athletes as temporary employees under the FLSA and the lawful payment of modest wages to student athletes ….”  Sackos also alleges that the NCAA compels member schools to comply “under the threat of competition and financial penalties.”  The member schools, in turn, adopt the NCAA’s bylaws and its bylaw enforcement program.

The suit was filed in federal court in Indianapolis, where the NCAA is headquartered.

The suit raises related questions, as well. For example:  If student-athletes are “employees,” who is their “employer” – the NCAA, the college, and/or the college athletic department?  It also remains to be seen whether Sackos may proceed with a lawsuit against all 352 Division I schools, or only the one she attended .  Similarly, schools outside of Indiana who are named as defendants may argue that the court lacks jurisdiction over them.

The suit follows a recent attempt by football players at Northwestern University to unionize under the National Labor Relations Act.  An NLRB Regional Director in Chicago found some of the players were employees and could form a union.  That case is currently on review before the NLRB in Washington.  Absent Congressional action or a Supreme Court decision providing uniformity in the treatment of college student athletes, the asserted  “employee” status of these individuals  and the applicability of workplace laws to their college sports activity  likely will continue to be the subject of litigation.