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Collegiate & Professional Sports Law Blog

NCAA Initiates Formal Changes to Student-Athlete Well-Being Rules

The NCAA Legislative Council has approved proposals for “student-athlete well-being rules.”

One proposed rule change would provide Division I student-athletes (both scholarship athletes and walk-ons) with unlimited meals and snacks in conjunction with their athletics participation.  Under current NCAA rules, schools can provide three meals per day or a stipend for those meals to scholarship athletes.  Non-scholarship student-athletes cannot receive the meal allowances.  This proposal signals  a dramatic  shift from the Association’s previous position on meal allowances, which not only limited the number of meals for student-athletics, but also told schools what food and snacks could be provided.  For example, an NCAA bylaw allows schools to offer bagels, fruits and nuts to student-athletes at any time.  However, according to an NCAA interpretation, spreads or toppings such as cream cheese were prohibited.  The NCAA removed that interpretation last year.

This proposed change occurs one week after Shabazz Napier of the University of Connecticut (UConn), and Most Outstanding Player of the 2014 NCAA men’s basketball tournament, told reporters that sometimes he goes to bed “starving” because he cannot afford food.  Napier’s comments, which came on the heels of a  National Labor Relations Board (NLRB) Regional Director’s decision that college football players on full scholarship at Northwestern University are university employees, has brought student-athletes’ well-being and the debate over compensating student-athletes back into mainstream conversation.  (See Northwestern Scholarship Football Players Found To Be Employees Eligible for Union Representation.)

The NCAA Legislative Council also voted to: (1) require strength and conditioning coaches to be certified by a nationally accredited certification body; (2) require a school staff member certified in CPR, first aid and arterial external defibrillation to be present at all physical, countable athletics activities; (3) reduce the penalty for a first positive test for street drugs during championships; and (4) require football players to rest for at least three hours between practices during the preseason (film review and team meetings will be allowed during this period).  (See NCAA News Article on New Well-Being Rules.)

The Council’s action is not considered final until the Division I Board of Directors meets on April 24.  Once adopted, the changes are effective August 1; however, the strength and conditioning coach certification requirement will go into effect August 1, 2015, to allow coaches time to achieve their certification.

Put ‘Trust, But Verify’ To Work In Employment Relationships

Employers should ensure all job applicants are fully (and lawfully) vetted and job applicants should ensure their resumes are accurate. Recent events in college basketball underscore the importance of the “trust, but verify” course.

Steve Masiello was an assistant coach at the University of Louisville under head coach and mentor Rick Pitino until he was hired as the head coach at Manhattan College on April 11, 2011. In just three seasons, the 36-year-old Masiello established himself as a rising star in the college coaching ranks. After his team was narrowly defeated by Pitino’s defending national champion Louisville Cardinals in the first (full) round of the 2014 NCAA college basketball tournament, Pitino touted his protégé to be the next head coach for the University of South Florida men’s basketball team.  Masiello and USF agreed in principle to a multi-year contract reportedly worth $5 million. Like so many employment offers, though, the agreement was contingent on USF’s verification of Masiello’s credentials.  (See http://www.cbssports.com/collegebasketball/eye-on-college-basketball/24499847/manhattans-masiello-expected-to-accept-offer-to-be-usfs-coach.)

Now, amid a discrepancy discovered during a routine background check, not only has USF decided not to hire Masiello, but it appears his current job may be in jeopardy.

In a statement released March 26, 2014, USF announced that Masiello’s credentials could not be substantiated, and therefore he “did not meet the requirements of the position.” Multiple media outlets reported that Masiello did not graduate from the University of Kentucky as he had indicated on his resume. Later that day, Manhattan College announced it had placed Masiello on leave over a “question of the validity of … Masiello’s undergraduate degree … .” A Manhattan spokesperson later confirmed that a bachelor’s degree is a requirement for the head coaching job at the College.

USF did not cite the apparent falsification as the reason it withdrew its offer. Instead, the University relied on the fact that without the required degree, Masiello could not meet the qualifications for the position. Manhattan College appears to be taking a similar approach.

Courts and administrative agencies tend to have little sympathy with persons misrepresenting their credentials for a job. They have routinely held that resume fraud or the falsification of company documents constitutes a legitimate, non-discriminatory reason not to hire an applicant or to terminate an existing employee. This is true regardless of when the falsification is discovered (i.e., pre- or post-hire). Similarly, arbitrators have found such falsification to meet the higher, “just cause” standard contained in many individual employment contracts and collective bargaining agreements.

Major League Baseball And Its Players Association Reach Agreement On Amended Drug Accord

Major League Baseball and the Major League Baseball Players Association have negotiated changes to its current Joint Drug Treatment and Prevention Program to create the most stringent drug program in baseball history.

In an effort to eradicate performance enhancing drugs from the game, the revised drug protocol contains a significant increase in penalties for violations of the Joint Drug Program and changes in the number and type of tests that will be administered to major league players.

The increased penalties for violations of the drug agreement are as follows:

1st Violation-increased from a 50 game suspension to an 80 game suspension

2nd Violation-increased from a 100 game suspension to a 162 game suspension

3rd Violation-the penalty remains a permanent suspension

The increase in the penalties marks the first significant change to the Joint Drug Program’s penalty provisions since 2006. At that time, disciplinary suspensions for a positive drug test were increased to 50 games from the  baseline suspension of 10 games that was originally introduced in 2004.

In addition, the parties have added a provision which prohibits a player who has tested positive for use of a performance enhancing drug from participating in the postseason during the season the player was suspended, even if the suspension has been served in its entirety.

Players who are suspended will also be ineligible for automatic postseason money shares guaranteed to players through the collective bargaining agreement, unless their teammates elect to include them in the distribution of shares.

Commenting on the postseason ban, Major League Baseball Players Association Executive Director Tony Clark stated that the union membership wanted to make sure “a player is not coming back and effecting a change in the postseason as a result of the decision that particular player made earlier in the year.”

The amendments to the Joint Drug Program also raise markedly the number of in-season random urine tests. The number of permitted tests has been more than doubled from 1400 to 3200. These additional 1800 random tests during the season are in addition to the minimum two tests that each player already receives during each season.

In an effort to eliminate off-season performance enhancing drug use Major League Baseball and the  union have increased the number of offseason tests from a total of 250 to 350. The amendments reached by the parties also introduce 400 random blood collections that will be used to detect human growth hormone. These tests will be used in addition to the one mandatory blood collection that is already taken from each player during spring training.

Assessing the overall changes to the Joint Drug Program, Executive Director Clark concluded, Make no mistake, this agreement underscores the undisputed reality that the players put forward many of the most significant changes reached in these negotiations because they (the players) want a fair and clean game.”

Northwestern Scholarship Football Players Found To Be Employees Eligible for Union Representation

Peter Sung Ohr, the Regional Director for Region 13 of the National Labor Relations Board issued a Decision and Direction of Election pertaining to the effort of the Northwestern University football players to unionize. The Regional Director found that scholarship football players at Northwestern University are “employees” within the meaning of the National Labor Relations Act and eligible for union representation. The Regional Director found appropriate a bargaining unit composed of “all football players receiving a grant-in-aid football scholarship and not having exhausted their playing eligibility.”

The Regional Director used the common law definition of employee in reaching his decision. Under the common law test, a person is an employee if he performs a service for another, under a contract of hire, for compensation, and is subject to the other’s right of control. He found the following:

  • The scholarship football players perform a service (playing football) for compensation (a scholarship)
  • The scholarship players’ commitments to play football in exchange for the scholarship constitutes a contract for hire
  • The scholarship players are under the control of the University for the entire year, including in-season and out-of-season workouts, restrictions on their entire personal life and detailed regulations players must follow at the risk of losing their scholarship

The Regional Director decided the NLRB’s 2004 Brown University decision, in which the NLRB found graduate assistants not to be employees of the university, to be inapplicable here because playing football is not part of the players’ academic degree program. However, he wrote that even if the Brown University test was applied, the scholarship football players would be found to be employees. He noted:

  • The scholarship players are not primarily students due to the 50-60 hours a week during the season that they devote to football
  • The scholarship players’ football “duties” do not constitute a part of their academic degree requirements
  • The academic faculty does not supervise the players’ football duties; rather, coaches who are not part of the faculty do so
  • The grant-in-aid football scholarship is not need-based like the financial aid other students receive but is given solely in exchange for playing football

The Regional Director rejected two additional arguments made by the University:

  • He decided the scholarship football players are not “temporary employees” (who are generally ineligible to participate in collective bargaining) because they work more than 40 hours a week during the season, work year round, expect to work for 4-5 years and play football as their prime consideration
  • He did not include the “walk-on” players in the bargaining unit. He found that they are not employees within the meaning of the NLRA because they do not receive a scholarship and are not subject to the conditions for its receipt

The University now has until April 9, 2014 to file a Request for Review to appeal the Regional Director’s ruling to the NLRB in Washington, D.C



New Antitrust Suit Takes Aim at NCAA Model

The NCAA’s amateurism model is once again under fire — this time in an antitrust lawsuit filed by sports labor attorney Jeffrey Kessler. Kessler, on behalf of four named current men’s basketball and football players (Clemson football player Martin Jenkins, Rutgers basketball player Johnathan Moore, Texas El-Paso football player Kevin Perry, and University of California basketball player William Tyndall), alleges the NCAA and the five major conferences (the Atlantic Coast Conference, the Big 12 Conference, the Big Ten Conference, the Pac-12 Conference, and the Southeastern Conference; these conferences currently include 62 member institutions) have entered into “cartel agreements” that unlawfully cap the compensation paid to student-athletes.

The suit seeks to eliminate current NCAA and conference amateurism regulations and  create a market where institutions compete for the services of men’s basketball and football players in a less regulated way. This would be a major shift from the NCAA’s current amateur model to one similar to free agency in professional sports that would permit student-athletes to attend the highest bidding institution.

“We believe that the business has grown so big in Division I men’s basketball and in the football championship series system that we believe that judges, jurors, the public, the media and many in college sports themselves recognize that change has to come,” Kessler told The Wall Street Journal.

Currently, student-athletes are eligible only to receive tuition, room and board, and course-related books from the institutions they attend. The suit refers to these limitations as “an artificial and unlawful ceiling.”

The current restrictions on student-athlete compensation also are characterized in the suit as a “patently unlawful price-fixing and group boycott arrangement.” The suit alleges the NCAA and its member institutions “have lost their way far down the road of commercialism, signing multi-billion dollar contracts wholly disconnected from the interests of ‘student athletes,’ who are barred from receiving the benefits of competitive markets for their services even though their services generate these massive revenues.”

Valuing the current broadcast rights for the NCAA Tournament at $11 billion and the College Football Playoff at $5.64 billion, the suit alleges student-athletes are not sufficiently rewarded for the financial success of men’s basketball and football.

“The main objective is to strike down permanently the restrictions that prevent athletes in Division I basketball and the top tier of college football from being fairly compensated for the billions of dollars in revenues that they help generate,” Kessler told ESPN. “In no other business — and college sports is big business — would it ever be suggested that the people who are providing the essential services work for free. Only in big-time college sports is that line drawn.”

The suit questions why coaches, and not student-athletes, should benefit from the massive, and growing, revenues of college football and men’s basketball. It says that, “flush with cash and unable to compete for athletes on the basis of financial remuneration, colleges have directed their resources and competitive efforts to, among other things, the hiring of head coaches, instead of players.”

The suit seeks to permanently enjoin the alleged antitrust violations and to recover individual damages for the named plaintiffs.



College Athletes: Students or Employees?

In an unprecedented legal step, the College Athletes Players Association (CAPA) has filed a petition with the Chicago-based regional office of the National Labor Relations Board (NLRB), Region 13, seeking to organize the 85 football players receiving athletic scholarships at Northwestern University for purposes of representing them in collective bargaining.

Backed by the United Steelworkers Union, CAPA filed union cards with the NLRB from an unknown number of the football team’s members. In order for the NLRB to process the petition and proceed with an election to determine whether a majority of the players actually want to be represented by the union, at least 30 percent of the potential members from an appropriate unit for bargaining currently working for the employer must sign union authorization cards. In the case of the Northwestern football team, a minimum of 26 of the 85 scholarship players must have signed union cards to meet the 30-percent requirement.

Before an election can be scheduled by the NLRB, several important questions will likely be raised by Northwestern University that must be addressed. The first is whether college athletes, like the members of the Northwestern football team, are actually employees with a legal right to join a union under the terms of the National Labor Relations Act (NLRA). The Board could conclude that the athletes are either employees or simply college student-athletes participating in varsity college athletics as part of their college educational experience. Ramogi Huma, a former college football player at UCLA and current President of CAPA, believes that the athletes are clearly employees. He stated, “[I]f college athletes are students they should not devote 40 hours each week to training, traveling and practicing when their graduation rates are only 50 percent.”

Should the Board conclude that the football players are employees of Northwestern University, a second issue that could be raised by the university will require a determination as to whether the 85 members of the University football team constitute an “appropriate bargaining unit” for purposes of collective bargaining. For example, the NLRB could accept the petitioned-for unit as an appropriate unit for union representation or it could conclude that the appropriate unit should include all Northwestern University scholarship athletes or perhaps all varsity athletes at the University, even those not receiving the formal grant-in-aid athletic scholarship.

The NLRB will conduct a thorough analysis of the facts presented by the parties during an informational hearing before rendering its decision. The initial determination will be made by the Regional Director of Region 13 of the NLRB. Either party at the hearing may seek review of the initial regional determination by formally requesting a review of the decision to the five members of the NLRB in Washington, D.C. Ultimately, this matter may be appealed to the U.S. Court of Appeals and, ultimately, the Supreme Court before a final determination will be reached.

In a news conference announcing the filing of the petition, Huma was joined by Kain Colter, Northwestern’s starting quarterback last season, and Leo W. Gerard, the president of the United Steelworkers Union, to explain the rationale behind the unionization effort. “The same medical issues that professional athletes face are the same medical issues collegiate athletes face, except we’re left unprotected,” Colter stated. “The N.F.L. has the N.F.L.P.A., the N.B.A. has the N.B.A.P.A. and now college athletes have the College Athletes Players Association.” Colter, who has completed his college athletic career, described the NCAA as resembling a dictatorship and specifically endorsed the relaxation of transfer restrictions for college athletes and the introduction of guaranteed scholarships that cannot be modified or revoked by a university as a result of an on-field injury suffered while playing for that university.

NCAA Chief Legal Officer Donald Remy issued a response underscoring the NCAA’s opposition to the union proposal. “This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education,” Remy said in the statement. “Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize.” Remy’s full statement can be found here: http://www.ncaa.org/about/resources.

Northwestern University also released a statement emphasizing its opposition to any effort to unionize its players. “Northwestern believes that our student-athletes are not employees and collective bargaining is therefore not the appropriate method to address these concerns,” athletic director Jim Phillips stated. “However, we agree that the health and academic issues being raised by our student-athletes and others are important ones that deserve further consideration.” A link to the full statement from Jim Philips can be found here: http://www.nusports.com/genrel/012814aaa.html.


Concussion Injuries Controversy Not Restricted to Professional Athletics

The recent high-profile lawsuits by former players of the National Football League (NFL) and National Hockey League (NHL) have brought to the forefront the issue of long-term, concussion-related injuries in athletes, which is not limited to the world of high-contact professional sports.

A report by the Institute of Medicine (“IOM”) and the National Research Council of The National Academies (“NRC”) concludes that youth sports, such as field hockey, wrestling, women’s lacrosse and soccer, provide as much, if not more, danger of concussion than football and ice hockey.  Other studies appear to indicate that female athletes may be at a greater risk of head injury.

Over the past two years, both the Ivy League and the PAC-12 have instituted rules to limit contact during football practices in order to reduce the exposure of head trauma to their athletes.  Other conferences are considering similar restrictions.  Recently, the NCAA was hit with a flurry of lawsuits—some of them class actions—alleging that the NCAA was negligent in its care of its student athletes, suggesting that the NCAA should have been aware of the long-term effects of concussions and that it failed to protect its athletes.  While most of the suits allege injury by former college football players, there also are similar allegations by men’s and women’s soccer and ice hockey players.

The IOM Committee Report suggests that more research is needed and urged the NCAA to “develop, implement, and evaluate the effectiveness of large-scale efforts to increase knowledge about concussions and change the culture-social norms, attitudes, and behaviors surrounding concussions among elementary school through college-aged youth and their parents, coaches, sports officials, educators, trainers, and health care professionals.”

The Report also states that sweeping changes may be required in the areas of protective equipment, rules enforcement, and the negative perception by athletes for self-reporting concussion symptoms.

It should come as no surprise that the wave of concussion-related lawsuits has reached high school sports, as well. In Mississippi, the father of an 11th-grade football player filed a class action lawsuit on behalf of all current high school football players in the country.  The complaint in Jobe v. NCAA, et al., alleges that it is the responsibility of the NCAA and the National Federation of State High School Associations (NFHS) to provide high schools with current concussion-risk information and require schools to implement concussion-management plans.  It seems only a matter of time before similar lawsuits are filed against elite travel programs, Amateur Athletic Union (AAU) programs, and other youth sports organizations.   

Colleges and universities, high schools and youth organizations should continue to closely monitor these developments, and remain proactive in protecting the health and safety of their student-athletes.


California’s Transgender Rights Law

As public school students in California return to school from winter break, school administrators must be prepared to allow students to participate in school activities in accordance with their gender identity under California’s new Transgender Rights law, which took effect on January 1, 2014. The new law, AB 1266 or the Success and Opportunity Act, revises Education Code 221.5 and requires public schools to respect students’ gender identity for purposes of all activities, including sports participation, and facilities, such as restrooms and locker rooms.  The new law is applicable to all public primary and secondary schools, as well as private schools that receive or benefit from state financial assistance or enroll students who receive state financial aid.

Prior to the passage of AB 1266, Education Code 221.5 prohibited schools from discriminating against students based on their gender identity.  Now, the rights of transgender students have been expanded such that each student must be allowed to participate in sex-segregated school programs consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records. AB 1266 marks the first time any state in the U.S. has mandated such treatment by statute.

On its face, the revised law does not indicate any particular process a student or parent must go through to declare his or her gender identity.  Nor does the law give any guidance on the process school administrators must use when a transgender student requests to be treated in accordance with his or her gender identity.  Opponents of the law, such as Frank Schubert, President of Mission Public Affairs, have argued that among the bill’s “many problems,” it is poorly drafted, lacks safeguards and balance, eliminates parental involvement, and employs a “one size fits all” approach that prevents educators from choosing less-invasive solutions.  Mission Public Affairs is seeking to repeal the law.

While the effect of AB 1266 on athletic competition at the secondary school level is not yet known, the new law requires a student be given the opportunity to participate in accordance with his or her gender identity.


NHL To Defend Players’ Suit for Head Injuries

Ten former players have filed a class action lawsuit against the National Hockey League over injuries caused by concussions sustained during their professional careers.

The lawsuit, filed  in federal court in Washington D.C., comes six months after another civil action in May accused the NHL of failing to warn former player/enforcer Derek Boogard about the long-term health risks of head injuries. The ten named plaintiffs, including former Toronto Maple Leaf Gary Leeman, filed suit on behalf of themselves and all former players who retired on or before February 14, 2013, and have suffered concussion and related injuries as a result of playing in the NHL.

The plaintiffs allege the NHL took insufficient action to protect its players from unnecessary harm. This inaction, they argue, occurred although the league knew or should have known of scientific evidence showing that players who sustain repeated head injuries are at a greater risk for disabilities during and after their hockey careers.

The lawsuit contends that because the NHL sets the league’s rules and regulations, it influences the risks to which players are exposed. As a result, the suit asserts, the NHL unilaterally assumed a duty to act in the best interests of the health and safety of the players and to provide truthful information regarding risks to their health. According to the complaint, “The NHL’s active and purposeful concealment of the severe risks of brain injuries exposed players to unnecessary dangers they could have avoided had the NHL provided them with truthful and accurate information and taken appropriate action to prevent needless harm.”

The complaint further states that because of the NHL’s failure to warn, “many of the players, including plaintiffs, sustained repetitive brain injuries while in the NHL and now suffer from latent or manifest neurodegenerative disorders and diseases, all of which, in whole or in part were caused by the NHL’s acts and/or omissions.”

The complaint also accuses the NHL of “promoting a culture of violence” that lauds players for their fighting skills. This culture, the players argue, continues to contribute to injuries today, as the league has refused to ban fighting and body-checking and has permitted the use of “enforcers,” players whose main job is to fight or body-check opponents.

As increasing attention is being paid to head injuries sustained in sports, this lawsuit comes just three months after the NFL faced a similar suit over its handling of concussions. In August, the NFL reached a $765-million settlement with thousands of formers players over the long-term effects of head trauma suffered during their careers. That agreement included compensation for cognitive injuries, the funding of medical exams for retirees, a research program and the payment of attorney’s fees.

The former NHL players are seeking more than $5 million in damages, an NHL-sponsored medical monitoring program for the players’ brain trauma or injuries, and attorney’s fees and costs.  According to initial media report, the NHL intends to vigorously defend this action and refute its claims.


Proposal Would Leave NCAA Governance to Athletic Directors

Athletic directors would take control of the NCAA’s day-to-day operations under a new plan presented to the organization’s Board of Directors.

Calling for athletic directors to be “essential leaders of the new governance system,” the plan attempts to shift the power structure of the NCAA from university presidents to athletic directors. Currently, the Board of Directors is made up exclusively of university presidents. Under the proposed plan, athletic directors would have an increased amount of access and representation at the NCAA’s decision-making level.

Purdue Athletic Director Morgan Burke and Missouri Athletic Director Mike Alden were in Indianapolis to present the plan on behalf of Division I athletic directors. A document containing the general scope of the plan is available at Yahoo Sports (http://sports.yahoo.com/).

While athletic directors would play a leading role in the proposed system, university presidents would continue to focus on “broad policies, approving budgets, selecting the CEO, and selecting experienced ADs for the governance system.” The current Board of Directors includes university presidents from all 11 Football Bowl Subdivision conferences and the addition of athletic directors would mean the selection of a similarly representative group.

At the heart of the proposal is a demand that the NCAA’s governance structure be “simple” and feature “fair, timely, and efficient compliance and enforcement standards and practices.” Such language is telling at a time when the NCAA’s compliance and enforcement mechanisms face growing criticisms.

Mishandled NCAA investigations (notably, at the University of Miami) have raised questions about the clarity of the NCAA’s bylaws as well as the efficiency of their enforcement. The NCAA also has been charged with lacking transparent procedures and sanctioning member universities in an inconsistent manner.

Even if the Board declines to act on the plan, it has become clear that the level of frustration with the current governance structure has reached a tipping point. The athletic directors’ proposal is just the latest contribution to an ongoing debate over who is best to govern intercollegiate athletics. In the wake of increased conference realignment and the formation of more consolidated and powerful conferences, some feel that conference commissioners should lead.

However, the athletic directors’ plan “supports” Division I as currently set up and recent speculation about the formation of a “superdivision” consisting of the nation’s big-time football programs has been shot down by the NCAA.