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

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

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

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

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

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

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

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

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

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


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

OCR Decision

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

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

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

Alternatives Not Acceptable

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

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

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

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

Privacy Concerns Unavailing

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

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

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

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

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


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

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

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

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


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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Minor League Players Granted Conditional Class Certification in Wage Suit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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











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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let the NFL Season Begin: Judge Overturns Arbitration Award Suspending Tom Brady

Tom Brady will begin the 2015 NFL season as the starting quarterback of the New England Patriots for the 14th consecutive season following U.S. District Court Judge Richard Berman’s grant of the National Football League Players Association’s motion to vacate NFL Commissioner Roger Goodell’s July 28, 2015, arbitration award imposing a four-game suspension on Brady. This forestalled the suspension before it was scheduled to take effect on September 5.

Judge Berman found the NFL failed to show it applied Article 46 of its collective bargaining agreement with the NFLPA fairly and consistently.

This decision is the fourth time a legal authority has challenged the NFL’s application of Article 46, following U.S. District Judge David Doty in the Adrian Peterson case, former Federal Judge Barbara Jones in the Ray Rice arbitration, and former NFL commissioner Paul Tagliabue in his opinion regarding the Saints players in Bountygate.

While judges rarely vacate arbitration awards, Judge Berman identified specific problems with the Brady arbitration hearing held by Goodell, including denial of access to key witnesses, which can be grounds to vacate an arbitration award. He found problematic the denial of NFLPA attorneys’ request to question NFL general counsel Jeffrey Pash, who edited the Wells Report before its release.

In addition, Judge Berman criticized Goodell for using the League’s collectively bargained steroid punishment policy to justify the suspension. Recognizing that the policy’s procedures are irrelevant to the allegations made against Brady, Judge Berman wrote that the steroid policy “cannot reasonably be used as a comparator for Brady’s four-game suspension for alleged ball deflation by others.”

Judge Berman also found decisions cited by the NFL to support confirming the arbitration award to be distinguishable. While Article 46 authorizes the League to use Goodell as the arbitrator for player appeals, Judge Berman concluded the “law of the shop,” requiring fairness and consistency, prohibits Goodell from rendering a decision that may have been compromised by bias.

The next phase of this litigation has already begun. The NFL recognizes that a motion seeking a stay of Judge Berman’s decision would require a showing of “irreparable harm,” and its argument would fall short on this score.

The NFL filed a Notice of Appeal with the U.S. Court of Appeals for the Second Circuit within hours of Judge Berman’s decision.

Therefore, the immediate impact of Judge Berman’s decision is that Tom Brady can play in the first four games of the upcoming NFL season. Indeed, because of the Notice of Appeal, Judge Berman’s decision does not yet have precedential authority. However, the long-term effect of Judge Berman’s decision is far-reaching and considerable for the NFL, the NFLPA, and any private arbitral process governed by a collective bargaining agreement.

The NFL’s appeal faces the burden of convincing two appellate judges that Judge Berman misapplied the law.

Although each case presents unique issues and facts, appellate courts typically do not reverse district court judges on their orders to vacate or confirm arbitration awards. The NFL likely will rely on strong legal precedent discouraging federal judges from interfering with a private arbitrator’s decision. In his 40-page decision, Judge Berman reasoned that the NFL failed to provide notice to Brady that being aware of deflated footballs and obstructing an investigation were misconduct justifying a four-game suspension. The NFL will undoubtedly argue that the “lack of notice” argument is irrelevant where the collective bargaining agreement gives the Commissioner complete authority to evaluate the definition of “conduct detrimental” to the League and to issue punishments based upon that determination. This is the authority provided by the NFLPA to the Commissioner under the current collective bargaining agreement and the NFL will argue it was not required to provide such “notice.” The NFL likely will also stress that Judge Berman’s decision to vacate Brady’s suspension reflects a complete disregard of judicial precedents confirming arbitration awards.

Clearly, this matter is not about Tom Brady, deflated footballs, or even NFL’s investigation. Rather, the appeal is about the NFL seeking to protect its internal arbitral process. Indeed, 38-year-old Tom Brady may even be retired by the time the appeals are ultimately resolved and a final determination is made.

Should the Second Circuit affirms Judge Berman’s decision, it will create a stronger precedent for the NFLPA to challenge future discipline issued through the NFL’s arbitral process. The Second Circuit’s precedent also will have potential far-reaching implications on all employers who utilize a private arbitration governed by a collective bargaining agreement, especially in light of the broad authority afforded to the Commissioner in the NFL’s collective bargaining agreement.


NLRB’s Decision Roadblocks Union Effort – What’s Next for Student-Athletes?

After holding the potential “employee” status of Northwestern University’s grant-in-aid scholarship football players in abeyance for 16 months, the National Labor Relations Board’s decision not to assert jurisdiction left the parties still waiting for a “real” decision from the Board on the merits of whether college football players may someday be considered “employees” who can unionize under the National Labor Relations Act. The Board dismissed the representation petition filed by the College Athletes Players Association and declared “it would not promote stability in labor relations” if the football players from only one privately operated school had the ability to unionize, while many others who played for state-run schools that were not subject to NLRB jurisdiction, did not.

The ballots cast by the Northwestern football players and impounded by the Board will never be opened and counted to determine if the players had voted for or against union representation.

The Board’s refusal to act on the legal issue placed before it successfully avoided a formal answer to the question of whether the scholarship athletes are employees capable of forming a union that may be certified under federal labor law. The Board’s decision creates a roadblock on the path toward student-athlete unionization but it may not be permanent.

Does the student-athlete effort to unionize end at Northwestern?

According to Ramogi Huma, lead organizer of the Northwestern effort and President of the College Athletes Players Association, the effort to unionize student-athletes will continue. Huma stated, “This decision does not set a precedent. We still have an opportunity to unionize college sports.” Huma’s comments echo the language from the Board’s unanimous opinion.

The Board acknowledged its decision would not preclude a reconsideration of the issue regarding student-athletes as statutory employees.

Eschewing specific guidance or examples, the Board asserted that changed circumstances relating to Northwestern’s players or FBS (Football Bowl Subdivision) football could result in future action. It also contrasted Northwestern with its prior decisions in cases involving professional sports, where it was “able to regulate all, or at least most, of the teams in the relevant league or association.” The Board stated that it would be unable to promote stability in labor relations in a league or association in which only one team was attempting to organize and seek Board involvement. Clearly, the Board’s decision left open the distinct possibility of future student-athlete representation petitions being filed on behalf of all FBS football players or those playing at private colleges and universities.

Commentators have suggested that more positive results for student-athletes may be achieved through specific litigation in the federal courts. As former Board Chairman William Gould asserted when asked about the Board’s decision,

“The action is going to shift to anti-trust.”

He refers to a pending class action anti-trust claim that seeks injunctive relief to end all NCAA restrictions on student-athlete compensation. Attorney Jeffrey Kessler, who filed the claim said, “The anti-trust cases are really…the only legal road that players have to try to vindicate their rights.”

Gould acknowledged the impediment created by the Board, concluding, “The Northwestern decision is a major setback for college athletes. But this is just the beginning of this sort of litigation.”

NLRB Declines to Exercise Jurisdiction Over Student-Athletes’ Attempt to Unionize – For Now

Concluding that its assertion of jurisdiction “would not serve to promote stability in labor relations,” the National Labor Relations Board has declined to exercise authority over the College Athletes Players Association’s (CAPA’s) petition to represent scholarship football players at Northwestern University. Northwestern University, 362 NLRB No. 167 (Aug. 17, 2015). Without deciding if the players meet the statutory definition of “employee” under the National Labor Relations Act, the unanimous Board stated “it would not effectuate the policies of the Act to assert jurisdiction” here. However, the Board expressly left open the possibility it would assert jurisdiction “in another case involving grant-in-aid scholarship players (or other types of scholarship athletes).”

The Board’s conclusion, it said, reflected the reality that colleges and universities playing intercollegiate athletics band together to enact and enforce common rules for recruiting, practicing and competition by means of the National Collegiate Athletic Association (NCAA) and conferences. “As a result,” the agency reasoned, “labor issues directly involving only an individual team and its players would also affect the NCAA, the Big Ten, and other member institutions. Many terms applied to one team therefore would likely have ramifications for other teams. Consequently, ‘it would be difficult to imagine any degree of stability in labor relations’ if we were to assert jurisdiction in this single-team case.”

The Board also recognized the difficulty resulting from the fact that 108 of the 125 colleges and universities playing in the NCAA Division 1 Football Bowl Subdivision (FBS) are state-run institutions. Therefore, “the Board cannot assert jurisdiction over the vast majority of FBS teams because they are not operated by ‘employers’ within the meaning of…the Act.” Indeed, in the Big Ten Conference, Northwestern is the only private institution. These facts distinguished the Northwestern case from those involving professional sports leagues, the NLRB said, noting that “in all of our past cases involving professional sports, the Board was able to regulate all, or at least most, of the teams in the relevant league or association.”

The Board stressed the “novel and unique circumstances” of this matter.

It had never before been asked to assert jurisdiction in a case involving college athletes or football players. Neither had a petition for representation for a single college team unit or a group of college teams ever been filed or considered by the Board previously. Rejecting a potential analogy to graduate student assistants or student janitorial workers and cafeteria workers, the Board ruled the Northwestern football players are students as well as athletes who receive a scholarship to participate in an extracurricular activity. Northwestern players were different from other determinations in prior Board decisions involving students. Whether these student-athletes were employees under the NLRA was hardly free from doubt.

Despite the broad underpinnings of its ruling, the Board did not foreclose applying different standards later. For example, the Board noted its decision did “not address what the Board’s approach might be to a petition for all FBS scholarship football players (or at least those at private colleges and universities).” (Emphasis added.)

Thus, the Board’s explanation that it was declining jurisdiction because the union’s petition did not cover the entire FBS suggests it may be open to the possibility of countenancing a petition covering players at all private institutions in the FBS.

Union proponent and former Northwestern quarterback Kain Colter tried to justify his organizational attempts despite the Board’s decision. He stated, “We are obviously disappointed. Still the unionization effort has already helped players with additional stipends, guaranteed scholarship and protocols to protect players who suffer concussions.” This is paradoxical, since the Board strongly suggested that improving treatment of NCAA scholarship players played a part in its decision to decline jurisdiction.

The Board’s decision will make it difficult for CAPA or another labor organization to organize scholarship football players at FBS schools. Some leagues have few private institutions, if any. Even in leagues with many private institutions, those schools are still in the minority, and so “labor stability” would not offer a firm rationale for Board jurisdiction. The Board may take jurisdiction in other sports, at least where private institutions predominate.

Further, the Board’s decision does not mean it will not take jurisdiction for other purposes, such as to remedy unfair labor practices. It cautioned: “. . . we are unwilling to find that a labor dispute involving an FBS football team would not have a ‘sufficiently substantial’ effect on commerce to warrant declining to assert jurisdiction.”

The Northwestern University decision is limited by its terms, and may afford school athletic programs only passing protection. The current NLRB may yet seek to tackle college and university sports for organized labor. The game is a long way from over.