NFL and Players Union Agree to New Game Day Concussion Protocol Enforcement Policy

In the latest efforts to improve player safety, the NFL and National Football League Players Association (NFLPA) have announced an agreement to implement specific penalties for violations of the league’s game-day concussion protocol. The agreement calls for greater mandates on player protection and higher penalties for non-compliance.

Player concussions in the NFL increased by an alarming 32% during the 2015 season.

In one specific instance, it is alleged that the St. Louis Rams permitted quarterback Case Keenum to remain in the game despite Keenum having suffered a concussion and being unable to stand without assistance after being sacked in a 2015 contest against the Baltimore Ravens.

The new policy marks further collaboration between the league and the union regarding player health and safety. The concussion protocol policy adds to previously agreed upon sharing of injury data to see if specific game rules needed to be changed to improve player safety and the implementation of an infectious disease prevention and response program for all 32 teams.

As detailed in the joint announcement, the league and the players association will each choose one representative to monitor compliance with the game-day concussion protocol and investigate possible violations. If a potential violation takes place, the representatives will conduct an investigation to determine whether the protocol was followed. The NFL and NFLPA then will review the findings to determine if a violation occurred and, if one had occurred, recommend a disciplinary response. If the NFL and NFLPA are unable to reach an agreement, a third-party arbitrator will issue a report to Commissioner Roger Goodell, NFLPA Executive Director DeMaurice Smith, and the involved parties.

Although the NFL and NFLPA may recommend disciplinary action, Commissioner Goodell will retain absolute discretion to determine the extent of any disciplinary action against the violating team(s).

The potential for disciplinary action and substantial fines show that both parties are serious about following previously established game-day concussion protocol. Any team that violates the protocol can be penalized as follows:

  • A first violation requires team employees or medical team members to attend remedial education; and/or result in a maximum fine of $150,000 against the team;
  • Second and subsequent violations will result in a minimum fine of $100,000;
  • If the parties agree that the violation involved aggravating circumstances, the team shall be subject, in the first instance, to a fine of no less than $50,000. The Commissioner retains authority to determine appropriate discipline for subsequent violations involving aggravating circumstances; and
  • If the Commissioner determines that the violating team’s medical team failed to follow the game-day concussion protocol for competitive reasons, the Commissioner may require the team to forfeit draft pick(s) and impose additional fines.

The new enforcement policy builds on the NFL’s previous efforts to address concussion-related issues and creates repercussions for teams that attempt to skirt the game-day concussion protocol. The new policy provides Commissioner Goodell with significant authority to impose penalties on violating teams.

While players such as Tom Brady, Adrian Peterson, and Ray Rice have challenged the Commissioner’s power under the collective bargaining agreement, it will be worth watching whether penalized teams will raise similar complaints and challenges to the Commissioner’s ultimate authority and unlimited power once the new enforcement policy is implemented.

 

…And The Judge Taketh Away: Minor League Baseball Players Strike Out In Bid To Have FLSA, State Wage Claims Against MLB Certified As Collective And Class Actions

A federal Magistrate judge in San Francisco has sided with Major League Baseball against former minor league players in an effort to have their lawsuit claiming minimum wage and overtime violations under the Fair Labor Standards Act certified as a collective action and their state wage and hour claims certified as a class action.

Chief Magistrate Judge Joseph C. Spero of the U.S. District Court for the Northern District of California had conditionally certified the plaintiffs’ proposed collective action under the FLSA on October 20, 2015.

However, in his latest ruling, the Judge granted MLB’s motion to decertify the collective of former minor league baseball players against MLB, the Commissioner, and several MLB franchises alleging they were not paid the minimum wage and overtime  in violation of the FLSA.

The Judge also denied the plaintiffs’ request to certify their state law wage and hour claims as a class action. Senne, et al. v. Kansas City Royals Baseball Corp., et al, Case No. 14-CV-00608-JCS (July 21, 2016).

The decision has been heralded as a significant victory for MLB.

Insofar as they involve groups of plaintiffs joining together in a lawsuit, collective actions and class actions are quite similar. However, there are differences. The most important is that plaintiffs who want to be involved in a collective action must “opt in” , whereas individuals covered by a class action must “opt out” to avoid being bound by any judgment.

The plaintiffs in Senne contended that MLB and its clubs violated the FLSA, as well as similar state wage and hour laws, by paying them a total of only $3000-$7000 over a five-month season, despite their working from 50 to 70 hours per week. The former players also alleged the franchises have been paying them less than minimum wage, denying them overtime pay, and requiring them to train during the off-season without pay.

In his July 21, 2016 Order, the Magistrate Judge denied plaintiffs’ motion that their state wage and hour claims be certified as a class action for failing to meet certain legal requirements. He found that (1) there would be no simple way to determine who is a member of the class in each of the states; (2) plaintiffs had not demonstrated that the “typicality” requirement was met because the court could not determine whether the proposed class representatives for each state class collectively had presented claims that were typical of the class; and (3) the common questions raised by the state law claims did not predominate over individual issues – those individual issues “will overwhelm the common questions…and … the class mechanism is not superior because adjudicating plaintiffs’ claims on a classwide basis will not be manageable.”  So, even though he found there were a sufficient number of plaintiffs to meet the “numerosity” requirement; the existence of shared legal issues met the “commonality” requirement; and the class representatives could “fairly and adequately protect the interests of the class,” he refused to certify the class.

On October 20, 2015, the Magistrate Judge granted (on a conditional basis) the former minor league players’ request to certify their proposed collective — all minor league players who worked for the MLB or any MLB franchise since February 7, 2011, but who had not spent time in the major leagues at the time of performing work as a minor leaguer — under the FLSA. However, on July 21, 2016, after additional evidence relevant to the maintenance of a collective action had been gathered, Magistrate Judge Spero decertified it, using a similar analysis to that which he applied to the class action question.

The Judge found that the plaintiffs were not “similarly situated” because of “disparate factual and employment settings of the class members [that] make collective adjudication of Plaintiffs’ FLSA claims unmanageable and potentially unfair to Defendants.”

It is likely the minor league players will appeal the Magistrate Judge’s Order. However, if the Order stands, it will be much more difficult for the minor league players to pressure MLB to change its pay practices. Minor league players will have to sue individually, but even if they prevail, the resulting damages may not be enough to sway MLB to make changes.

University of Tennessee Settles Title IX Lawsuit For $2.48 Million

The University of Tennessee announced on July 5, 2016, that it had settled a Title IX lawsuit filed against it by eight female plaintiffs for $2.48 million. The women alleged that the University fostered a culture of indifference by ignoring sexual assaults committed by athletes, which, in turn, created a hostile environment for females on the 27,845-student campus.

The civil suit, filed on February 9, 2016, included allegations dating back to 1995. The Complaint asserts that the plaintiffs sustained damages as a result of the University’s deliberate indifference to actions before and unreasonable responses after the rapes of female students by four athletes and one non-athlete, in violation of Title IX of the Education Amendments of 1972 (Title IX), 42 U.S.C. § 1983 and the U.S. Constitution.

The plaintiffs claimed that the University directly supported a student-athlete environment that encouraged underage drinking, drug use and rape, interfered with the disciplinary process in favor of male athletes charged with sexual assault, failed to promptly investigate and remediate allegations of sexual assault on campus, and discriminated against victims of sexual assault by one-sided misuse of the Tennessee Uniform Administrative Procedures Act.

Notably, the plaintiffs attacked the University for its alleged inaction despite what they claimed was notice of a harassing and violent atmosphere, as well as its response to the students’ complaints. The plaintiffs sought both monetary and injunctive relief.

The University asserted that settlement discussions have been ongoing since the Complaint was initially filed, and that current negotiations began in April. With respect to payment of the settlement, no taxpayer dollars, donor funds, student tuition, or fees will be used; rather, the University’s Athletics Department and Central Administration will split equally the payment of the settlement.

Following news of the settlement, the plaintiffs’ attorney reflected that in the wake of the litigation, he believed the University made significant progress in the way it educated staff and the student body about sexual assaults and responded to such allegations. Similarly, counsel and head officials for the University of Tennessee indicated that, while the settlement was in no way an admission of guilt or liability, the University took the complaints seriously and intends to address aggressively future sexual assault incidents.

In fact, new initiatives aimed at combating and responding to sexual assault are being introduced and increased funding will be allocated to issues such as handling sexual assaults, student conduct, educational programming, and student well-being.

In addition, Joe DiPietro, president of the University of Tennessee system, announced that he plans to appoint an independent commission to review and make recommendations to existing programs relating to Title IX issues.

This settlement adds to a growing list of large universities that, in the past couple of years, have similarly settled lawsuits alleging Title IX violations.

 

NFL v. Brady: Headed for the Supreme Court?

The U.S. Court of Appeals for the Second Circuit in New York has denied New England Patriots quarterback Tom Brady’s petition for a hearing en banc over his suspension for allegedly taking part in a plot to deflate footballs. As Patriots fans prepare for the first four games of the 2016 season without their perennial All-Pro leader, Brady has one remaining “Hail Mary” maneuver at his disposal before his suspension becomes unalterable: petition the U.S. Supreme Court for a stay of the Second Circuit’s decision and effectively hold Brady’s suspension in abeyance until the Supreme Court decides whether to grant review of the entire Brady case. Brady must file his petition by October 13.

The 13 active judges of the Second Circuit found no legal basis to interfere with the 2-1 decision of the Circuit’s three-judge panel’s previous ruling in favor of the NFL upholding NFL Commissioner Roger Goodell’s four-game suspension for Brady.

The decision reaffirmed the Commissioner’s unbridled powers under Article 46 of the collective bargaining agreement as Commissioner of the NFL and concluded that Goodell’s decision as an arbitrator properly confirmed his prior decision to suspend Brady in his role as Commissioner.

The Second Circuit decision moves the NFL closer to concluding its lengthy legal battle with Brady regarding his alleged knowledge of the use of footballs with reduced air pressure for the AFC Championship Game in January 2015.

Procedurally, Brady must petition the Second Circuit to stay its own decision, which likely will be refused. Following this likely step by the Second Circuit, Brady’s next option is to apply to Justice Ruth Bader Ginsburg for a stay and to petition all of the justices for a writ of certiorari. Judge Ginsburg, as the designated justice to handle requests for stays in cases arising from the Second Circuit, alone has the power to accept or deny Brady’s request or ask the NFL to file a response to Brady’s request for a stay. Justice Ginsburg also may seek the input of the other seven justices. If Brady were granted a stay by Justice Ginsburg, all aspects of the cases would be on hold until the Supreme Court renders its decision on Brady’s petition seeking a full review by the court.

If a stay is granted, and if four of the justices grant Brady’s petition seeking certiorari, the case likely will not be heard until the spring of 2017…preserving Brady’s ability to play during the 2016 season.

Unfortunately for Brady and his quest to avoid a four-game suspension to start the 2016 season, his chances of being granted a stay or having his petition for certiorari granted are both long shots at best. In order for Brady to succeed in his efforts, his lawyers must argue successfully that a legal basis exists for the country’s highest court’s consideration and that he will suffer irreparable harm if the stay is not granted.

While Brady’s lawyers prepare his best legal arguments and he and his teammates prepare for the 2016 season, Brady’s position behind center on opening day is extremely doubtful.

Proposal in Congress Would Prevent Overtime Pay for Minor Leaguers

Representatives Cheri Bustos (D-IL) and Brett Guthrie (R-KY) have introduced the Save America’s Pastime Act  (SAPA) to preserve the decades-old minor league pay structure which prevents players from receiving overtime compensation under the Fair Labor Standards Act (FLSA) (Bustos withdrew her support for the legislation almost immediately after its introduction following her constituency’s negative reaction, “several concerns about the bill have been brought to my attention that have led me to immediately withdraw my support of the legislation”). SAPA, proposed in response to a wage and hour class-action lawsuit filed on behalf of nearly 2,300 minor league players seeking compensation in accordance with the FLSA, would create a new FLSA exemption for minor league players and permit the current minor league pay structure to continue.

Currently, minor league players are paid a monthly salary and are deemed ineligible for overtime compensation by their employers.

The players in Senne v. Major League Baseball seek a declaratory judgment mandating that Major League Baseball (MLB), which pays the salaries of minor-league players, pay them in accordance with FLSA overtime provisions.

The suit also requests back pay for those retired players who were compensated below minimum wage.

The minor league players claim that some of them are paid as little as $3,000 to $7,500 per season, despite working 50-70 hours a week and being required to train year-round to maintain team-mandated conditioning levels. In addition, they are required to continually work on improving their skills, including during unpaid spring training. While many minor league players were former high-draft picks who received large signing bonuses and now are legitimate major league prospects, most work under minor league contracts paid by the major league affiliates of the minor league teams. Minor league players are not represented by the Major League Baseball Players Association, and therefore are not protected by the minimum salary mandated in the MLB Collective Bargaining Agreement.

MLB argues that the players’ claims are moot because the nature of the players’ work is akin to a FLSA-exempted “seasonal apprenticeship” and that playing minor league baseball is not a primary occupation.

MLB also argues that the wage and hour laws were not intended to apply to professional athletes such as minor-league baseball players and that requiring baseball players to maintain time sheets and submit requests for overtime when they want extra-batting practice is both impractical and nonsensical.

Additionally, MLB asserts that the players should be forced to submit their disputes to arbitration, as stipulated in their contracts.

SAPA, aimed at minor-league baseball players, would exclude “any employee who has entered into a contract to play baseball at the minor league level” from the minimum wage and overtime protections of the FLSA. The bill also states that the fact that minor league players are excluded should not be read to imply that Major League players are themselves in fact covered by the minimum wages and overtime laws.

Backers of the proposed legislation argue that requiring MLB to comply with the federal and state wage and hour laws would mean awarding the players in Senne more than $100 million in back pay. The potential award could require minor league clubs to assist in the payment of their players, possibly forcing many of the smaller, less stable franchises into bankruptcy and eliminating jobs. Opponents of the legislation argue that minor league baseball has evolved and can no longer be characterized as an apprenticeship or a seasonal occupation and that federal wage and hour laws must apply.

We will continue to monitor the bill and the suit and report on significant developments.

 

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 12.3.2.1 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 12.3.2.1. 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.)

Background

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.

Takeaways

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.

U.S. SOCCER FEDERATION SETTLES YOUTH CONCUSSION LAWSUIT

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.

 

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