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Collegiate & Professional Sports Law Blog

Ohio State Fires Band Director For Alleged Environment Of Ongoing Sexual Harassment

Ohio State University (“University”) fired the director of its marching band following a two month investigation into an alleged culture of sexual harassment and alcohol abuse in which student band members were told to participate in numerous hazing activities, including mimicking sexual acts and marching on the football field in their underwear in a ritual called “Midnight Ramp.”

In a statement released by the University, the school acknowledged that after a thorough investigation by the Office of University of Compliance and Integrity, serious cultural issues and an environment conducive to sexual harassment within the Marching Band was revealed. The 23-page investigation report, prompted by a formal complaint under the University’s Sexual Harassment Policy and Title IX from the parent of a band member, concluded that a pervasive culture of sexual harassment existed within the marching band and that the band’s director should have done more to stop the offensive behavior. Specifically, the investigation found traditions within the band of assigning new members sexually explicit nicknames and requiring them to march down the aisle of a bus while other band members tried to pull their clothes off were allowed to continue unabated and that the band director “failed to eliminate the sexual harassment, prevent its reoccurrence and address its effects.”

The Office of Civil Rights (OCR) of  the United States Department of Education is responsible for enforcing Title IX, which states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” In a series of communications, the OCR has highlighted that sexual harassment of students is a form of sexual discrimination prohibited by Title IX and that acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping are forbidden. (OCR April 4, 2011, Dear Colleague Letter).

In discussing the investigation’s findings, University President Michael Drake stated,

“Nothing is more important than the safety of our students. We expect every member of our community to live up to a common standard of decency and mutual respect and to adhere to university policies.” President Drake added that there would be a zero tolerance policy applicable to  the entire campus community for any behavior that creates a hostile culture at Ohio State.

The University has also announced the appointment of Betty Montgomery, former Ohio Attorney General, to lead an independent task force to review this matter in its entirety and report back to President Drake and the Board of Trustees.

The disciplinary action taken by the University comes at a time when the enforcement of sexual harassment and assault allegations is at an increased level of scrutiny by the federal government. The United States Department of Education has announced that investigators were examining whether 55 colleges and universities, including Ohio State University, improperly handles sexual violence and harassment complaints. The University’s clear and immediate response to its investigation’s findings may be a model that other colleges and universities seek to follow.

NCAA’s New Concussion Guidelines Concentrate on Athlete Contact Practices, Health Monitoring

In an effort to reduce head injuries in college football, the NCAA has released new concussion safety guidelines calling for limits on the number of contact practices and new measures for monitoring player health. The NCAA’s guidelines come after the adoption of PAC-12 and Ivy League legislation in 2013 establishing restrictions on the number of contact practices throughout the year.

The NCAA’s recommendations follow a six-month process that began in January 2014, when the College Athletic Trainers’ Society and the NCAA Sport Science Institute hosted a summit about college football safety in Atlanta. Since then, NCAA officials have worked with the College Athletic Trainers’ Society, several medical organizations, team physicians, the American Football Coaches Association and representatives from each of its conferences to draft these guidelines for improving player safety.

The guidelines include suggestions to limit the number of “live contact practices” during the spring, preseason, regular season and playoffs. A “live contact practice” is “any practice that involves live tackling to the ground and/or full-speed blocking.” The recommendations for each phase of the season are as follows:

Spring Practices

  • 8 of the 15 allowed practices may be live contact practices

Preseason

  • Maximum of 4 live contact practices per week, with a maximum of 12 live contact practices before the season

In Season, Postseason & Bowl Season

  • Maximum of 2 live contact practices per week

Additionally, the guidelines recommend best practices for diagnosing and managing concussions. These best practices have been endorsed by medical organizations such as the American Academy of Neurology, the American College of Sports Medicine and the NCAA Concussion Task Force. The guidelines emphasize the presence of independent doctors to evaluate injuries after an athlete has been diagnosed with a concussion, and that schools designate a licensed physician as medical director to oversee the medical care provided to athletes. Furthermore, the NCAA encourages schools to make their concussion management plans publicly available.

In a statement to ESPN.com, Chris Nowinski, Executive Director of The Sports Legacy Institute, said , even though the NCAA protocol  is non-binding, it is  a step in the right direction. “I think for what it was intended to do, it addresses a lot of the gaps that existed that left college athletes at risk,” said Nowinski. “I think it was an impressive effort by a lot of people to put it together quickly with so many organizations involved. Now it needs to be monitored if it’s actually implemented and adopted by individual schools.”

The NCAA is defending a federal class action lawsuit brought on behalf of current and former NCAA football players who sustained a concussion(s) or suffered concussion-like symptoms while playing football at an NCAA school that alleges it has failed to take sufficient steps to prevent student athletes from concussion related injuries. For more information about this suit, see this post: http://www.collegeandprosportslaw.com/collegiate-sports/ncaa-hit-with-class-action-concussion-lawsuit/.

 

Indiana University May Start Trend with ‘Student-Athlete Bill of Rights’

Indiana University (IU) has created the first prominent “Student-Athlete Bill of Rights,” which formally identifies rights guaranteed by IU to its student-athletes during their time at the university and beyond. Indiana University’s Bill of Rights addresses concerns held by current student-athletes and encourages prospective student-athletes to attend IU by expanding its commitment in numerous phases of student-athlete well-being and development.

The Bill of Rights, comprised of ten guaranteed rights, features these key provisions: (1) Four Year Scholarship Commitment-the guarantee of four-year scholarships to all student-athletes in “head count” sports; (2) Lifetime Degree Guarantee-the creation of a program under which IU will pay the tuition of student-athletes who leave the University before graduating, but return later to complete their degree; (3) Collective Voice-Student-athletes will be given a guaranteed voice through the Student-Athlete Advisory Committee, including input on searches for new head coaches; (4) Comprehensive Health Safety and Wellness-Comprehensive physical exam, including screening echocardiogram and baseline concussion testing before beginning competition and all medically related services for any injuries or illnesses suffered during competition are provided free of charge to the student-athlete. (5)Cutting Edge Technology-the promise of a tablet, such as an iPad, to all student-athletes as well as internal internship opportunities.

As Fred Glass, IU Vice President and Director of Intercollegiate Athletics stated,

“We are proud to be the first higher education institution ever to publish a Student-Athlete Bill of Rights. We have committed to this extensive set of benefits and set it out transparently in writing, so we can be held accountable for them…”

This Bill of Rights likely is responding, at least in part, to the unionization efforts of Northwestern University football players earlier this year. It explicitly addresses two issues raised by the Northwestern football players: student-athletes’ role in athletic governance and medical treatment for student-athletes. IU, by stating its commitment to providing a “voice” to student-athletes and protecting their health and safety, may be hoping to make student-athletes focus on the benefits already being provided to them by IU instead of  thinking about the possibility of using a union to express their concerns and issues.

The school claims it is the first institution to create a bill of rights for student-athletes, but it is unlikely to be the last. Other institutions may create their own bills of rights to address student-athlete concerns, dissuade student-athletes from engaging in labor organizing campaigns, and encourage prospective student-athletes to attend the institution. However, despite the benefits of a student-athlete bill of rights, institutions must be careful in drafting such a document.

Institutions should keep in mind compliance with NCAA regulations and possible contract claims that may be created. It is critical that all provisions within the bill of rights comply with NCAA regulations. IU’s promise of a tablet, such as an iPad, to all student-athletes likely is permissible under NCAA Bylaw 16.3.1, which allows institutions to finance academic support for students. Institutions interested in providing similar accessories to student-athletes must be certain that doing so would be likewise permissible under NCAA regulations and would not constitute an impermissible benefit. For example, while institutions likely can provide student-athletes with iPads, the issuance of iPhones probably would be impermissible and a violation of NCAA regulations.

Courts may deem a student-athlete bill of rights an enforceable contract between the institution and its student-athletes. Therefore, institutions must be certain they can follow through with any promises made in their bill of rights. Institutions must carefully consider both the financial and logistical ramifications of any provision.

Colleges and universities interested in following IU’s lead must be pragmatic in doing so and consider seeking outside guidance.

FEDERAL JUDGE APPROVES PRELIMINARY SETTLEMENT OF CLASS ACTION FILED BY NFL RETIREES

Judge Anita Brody of the United States District Court for the Eastern District of Pennsylvania has approved a preliminary settlement of a class action filed by former National Football League players claiming the League failed to take reasonable actions to protect players from the risks created by head injuries and attempted to conceal those risks from players.  The N.F.L. does not admit to wrongdoing in the settlement.

Judge Brody had rejected an earlier $765 million proposed settlement because she was concerned that the cap on damages might be insufficient to cover all of the retirees’ claims.

The accord approved by Judge Brody on July 7 eliminates the cap on damages.  Unlike the rejected version, this settlement permits the N.F.L. to challenge an unlimited number of claims to prevent fraud.  The payment to each retiree diagnosed with an eligible condition will depend on his age and the length of his career.

The settlement now will be explained to the approximately 20,000 former players covered by the class action.  A retiree who opts out of the settlement will not be bound by, or entitled to, the agreed upon terms.  Any player who does not opt out will be deemed to have accepted it.  A retiree also may file objections to the new settlement.  Such objections were filed on July 2 by seven former players, just prior to Judge Brody’s approval of the settlement.

Judge Brody scheduled a hearing for November 19, after the former players have had an opportunity to respond, to determine whether the retirees have been fairly represented.  If the retirees who filed objections disagree with Judge Brody’s decision, they can file an appeal.

 

 

NCAA Board Endorses More Autonomy For Five Largest Conferences

In an effort to restructure the Division I legislative system, the NCAA Board of Directors has endorsed a proposal that would give more power to schools in the five largest conferences in the NCAA.

The endorsement was presented as Northwestern University’s 76 voting eligible scholarship members of the football team prepared to participate in a historic election to determine whether to form the first union in the history of college athletics. In response to the unionizing effort, NCAA President Mark Emmert has suggested that changes within the NCAA will address some of the issues raised by those backing and advocating that the players vote for creating a football players union at Northwestern University.

The 57-page NCAA draft proposal calls for a substantial empowering of the 65 school members of the ACC, Big Ten, Big 12, Pac-12 and SEC. It includes more autonomy for these conferences to implement their own rules and to have increased voting power on legislation that would affect every NCAA member school.

Details of the plan propose allowing the Big Five conferences to independently address issues in areas known as “permissive legislation.” This category includes several increasingly hot button issues for NCAA athletes, such as:

  • continuing education and medical care;
  • expanded insurance coverage, including policies that protect future earnings;
  • increased academic support, particularly for at-risk student-athletes;
  • compensation for expenses associated with practices and competition; and
  • other support, such as free travel for family members and free tickets to athletics events.

According to the plan, the Big Five conferences would have the ability to enact rules in the categories defined as “permissive legislation” with a two-thirds majority vote; the other Division I conferences or schools could determine whether to adopt the rules, as well.

Other categories in the proposal, known as “actionable legislation,” were tabled for discussion and include more complicated issues, such as:

  • lessening time demands on athletes;
  • allowing athletes to pursue careers other than their sport; and
  • imposing new limitations in the areas of recruiting and staff size.

This move signals the beginning of a shift in power to the Big Five conferences. However, the Chair of the NCAA Board and NCAA Steering Committee, Nathan Hatch, emphasized that more discussion on the proposal will take place in the coming months.

“The model we sent to the membership today is not a final product,” said Hatch, who is also the current President of Wake Forest University. “Some aspects of the model remain under discussion, and we hope the membership will provide us further input.”

Hatch added that the steering committee plans to meet again in July to solidify a final proposal. A formal vote on the recommendations is tentatively scheduled for the board’s August meeting. If it passes, the transition could begin this fall.

 

 

 

 

NLRB Grants Review in Northwestern Case; Election to Be Held and Ballots Impounded

As expected, the National Labor Relations Board has granted Northwestern University’s Request for Review of the Regional Director’s March 26, 2014 decision finding the scholarship football players at the University to be “employees” within the meaning of the National Labor Relations Act “as it raises substantial issues meriting review.” While, the election will take place as scheduled on April 25, 2014, the ballots will be impounded until the Board issues a decision affirming, modifying or reversing the Regional Director’s decision. The Board will set a schedule for the filing of briefs by the parties and others so they have the opportunity to address issues raised in this case.

Of course, we will keep you up-to-date on further developments.

Recommendations for Ensuring Academic Integrity in Athletic Programs

That academic misconduct often does not result in punitive action from the NCAA has always been a complicated matter for the NCAA enforcement staff and Committee on Infractions (COI).  This is in part due to legitimate claims of academic freedom and the NCAA membership’s view that member institutions should have autonomy and responsibility to determine whether academic misconduct occurred. Nevertheless, the potential reputational damages and significant financial costs involved in the investigation should have schools considering how they can protect their academic integrity.

In early April, the NCAA Legislative Council approved an interpretation clarifying NCAA policy and an accompanying educational column on academic misconduct. Those will be announced by the NCAA shortly. Gene Marsh, Of Counsel with Jackson Lewis and former chair of the NCAA Division I Committee on Infractions, will be speaking on this subject in June at the annual conference of the National Association of College and University Attorneys. Here are a few of those recommendations for ensuring athletic academic integrity in athletics:

  • Have a written academic misconduct policy that includes procedures for adjudication. Apply standards, policies, and procedures consistently for all students, including student-athletes. Investigate all assertions of academic misconduct in accordance with established policies and procedures.
  • Enforce a clear, written policy regarding contacts between athletic departments staff members and admissions office staff members. Your admissions policy and corresponding data for special admissions may become the subject of intense scrutiny.
  • Enforce a clear written policy regarding communications between coaches and instructors. Make it known to coaches, instructors, and student-athletes.
  • Educate your admissions staff and faculty regarding the contact policy. Don’t just educate the athletic department staff.
  • Involve the FAR in all matters relating to academic integrity with a nexus to athletics. The COI expects FAR involvement. However, expand faculty involvement. Include faculty in the examination of admissions and retention policies as well as academic misconduct inquiries relating to athletes.
  • Revisit your manuals that define rules and policies for the delivery of tutorial and other academic support services. Enforce the rules. Manuals should address relevant NCAA rules, standards for hiring, evaluation and dismissal of tutors, the institution’s Code of Conduct for students and other matters that have an impact on the delivery of academic support for athletes.
  • Even though the NCAA has decided against bringing allegations of academic misconduct, don’t stop your inquiry until all involved are satisfied that all due diligence has occurred and document the process.

If NCAA Scholarship Football Players Are Employees, What Are Coaches?…Supervisors?

The decision of the Regional Director of Region 13 of the National Labor Relations Board (“NLRB”) that scholarship football players at Northwestern University are “employees” under the National Labor Relations Act (“NLRA”) has created an interesting question for all colleges and universities: Are members of coaching staffs now considered to be supervisors under the NLRA? The answer is likely “yes.” This would mean that members of athletic department coaching staffs must be trained to foster their understanding that the NLRB has changed the rules relating to scholarship athletes.

A Section 2(11) “supervisor” under the NLRA is one who possesses the authority, in the employer’s interest,  ”to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

Supervisory status requires an extensive analysis turning on the facts in each case. However, based upon the defined role and generally accepted responsibilities of most college football coaches, it is likely that the NLRB will conclude in almost all cases that coaches are statutory supervisors, if their players are employees.

If this is so, coaches’ actions and statements can legally bind their university and constitute unfair labor practices (“ULP”) in violation of the NLRA. The NLRA prohibits employers from making statements or engaging in conduct that “interferes with, restrains or coerces” employees in their right to join a union or to band together to improve working conditions. It also prohibits employers from discriminating against employees because of their union activities or sympathies, or because they band together to improve working conditions.

An NLRB Regional Office’s investigation of a ULP charge will decide whether the athlete is an employee under the NLRA, and whether the coach who engaged in the complained-of conduct or made the allegedly unlawful statement is a “supervisor.” If the Region decides that the answer to both questions is yes, it will then decide whether the coach’s conduct/statement violated the NLRA.

The remedies that potentially can be imposed against a college or university by the NLRB depend on when the ULP occurs:

  1. The potential remedy for a ULP committed at any time is the posting (for 60 days) of an official  “Notice to Employees” in the workplace (conspicuously placed wherever other notices to employees, now including  student-athletes, are posted) stating that the institution violated federal law, with a description of the specific illegal acts found to have been committed.  In certain cases, the NLRB even has required a senior member of the management team involved in the ULP to read the Notice to the affected employees.  Further, if an employee has been unlawfully suspended or terminated (improperly benched, suspended or kicked off the team), the NLRB can order reinstatement (placement back on the team’s roster) and back pay (reinstatement of the athlete’s scholarship and all of its benefits).
  2. If the ULP occurs after the union has filed a petition with the NLRB to conduct a representation election, remedies could include overturning any election that the institution may have won and requiring a rerun election.  The college or university also would have to post a Notice to Employees. Again, if an employee has been unlawfully suspended or terminated, the NLRB also can order reinstatement and back pay, with rapidly accumulating interest.
  3. If the ULP occurs while there is active union organizing underway and after the union had obtained signed union authorization cards from a majority of the “employees” in the proposed unit, presumably including scholarship football or basketball players, the NLRB would require the posting of a Notice.

    If the ULP involved what the NLRB refers to as “outrageous” and “pervasive” violations, or those tending to undermine the union’s majority strength and impede the election process, and where the possibility of erasing the effects of that conduct and ensuring a fair election is slight, the NLRB also could impose a more drastic remedy of issuing a “bargaining order.”

    This would require a college or university to recognize the union as the representative of the players and begin the process of negotiating a collective bargaining agreement.  This could occur in the absence of an election or after an election in which the union lost.  Examples of such “hallmark”  violations of the NLRA include conduct such as terminating key union supporters (e.g., cutting union supporters from the team), providing benefits to players to discourage their interest in the union or threatening plant closure (e.g., shutting down the program or taking away all scholarships) to discourage union organizing.

The impact of the NLRB’s finding that scholarship football players at Northwestern University are “employees” provides potential ramifications in addition to the change in status for these scholarship athletes. It requires the further education of athletic department coaching staffs to ensure their understanding that the NLRB has changed the rules. All coaches must be aware of their likely status as legal supervisors and the potential legal ramifications of their actions under the NLRA.

 

 

 

 

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.