Update: Minnesota Football Team Ends Bowl Boycott

The University of Minnesota football team ended their boycott of the Holiday Bowl after attempting to overturn the suspension of 10 players for alleged acts of sexual assault and agreed to participate in the upcoming December 27th game against Washington State University.

After lengthy meetings with University President Eric Kaler and Athletic Director Mark Coyle, the team’s senior wide receiver Drew Wolitarsky read a statement on behalf of his teammates. In the statement,

the team acknowledged that their demand to have the suspensions of the 10 players overturned was “not going to happen”.

However, Wolitarsky also stated that during the course of the meetings an agreement was reached that assured each of the suspended players a “fair hearing” before a diverse review panel. The hearings will most likely be heard in January.

In addition, the team agreed that the players would use their status as “public figures to bring more exposure to the issue of sexual harassment and violence against women.” Wolitarsky comments further acknowledged how difficult and stressful the situation had been for everyone involved and he specifically recognized that

“there is only one way to treat all women, and that is with the utmost respect at all times.”

President Kaler reacted to the statement issued by the team and stated. “I think the statement by the students today around support for victims of sexual assault is important. I will continue to amplify the fact that the football team’s action in support of their teammates was not in support of sexual violence.”





Players To Boycott Football Activities, Bowl Game, Over Suspensions Of Teammates

University of Minnesota football players announced on December 15 that they are boycotting all football activities, including their December 27 Holiday Bowl game against the Washington State Cougars, to protest the University’s decision to suspend 10 teammates over a sexual assault allegation, according to the Minnesota Star Tribune. The University adopted an affirmative sexual consent policy in September 2015.

According to senior wide receiver Drew Wolitarsky, the University’s Athletic Director Mark Coyle failed to provide satisfactory answers to questions about why the 10 players had been suspended. Wolitarsky said that

“the boycott will remain in effect until due process is followed and the suspensions for all 10 players involved are lifted.”

The suspensions were handed down based on recommendations of the University’s Office of Equal Opportunity and Affirmative Action following a Title IX investigation into an alleged incident that occurred on September 2. Initially, four players were suspended, but were reinstated when the Hennepin County prosecutor declined to press charges. (None of the players were arrested.) Thereafter, the EOAA conducted its own investigation, resulting in the 10 suspensions.

Responding to the announced boycott, Coyle and Minnesota President Eric Kaler said in a joint statement:

We understand that a lot of confusion and frustration exists as a result of this week’s suspension of 10 Gopher football players from all team activities. The reality is that not everyone can have all of the facts, and unfortunately the University cannot share more information due to federal laws regarding student privacy.

We fully support our Gopher football players and all of our student-athletes. Situations like this are always difficult, and the decision was made in consultation with and has the full support of President Eric Kaler.

The decision was based on facts and is reflective of the University’s values. We want to continue an open dialogue with our players and will work to do that over the coming days.

It’s important that we continue to work together as we move through this difficult time.

Some of the suspended 10 players  may be expelled while others may be suspended or put on probation for a year. The suspensions can be appealed, but a hearing may not occur before the Bowl game. Northern Illinois University, which finished with a 5-7 record but won four of its last five games, is next in line for a bowl game and could replace the University if the boycott continues.

The Potential Trump Effect On The Sports World

While the nation and the world react to the victory of President-elect Donald Trump and theorize what his impending presidency will mean for national policy, the world of sports is not immune from similar meditation.

The international nature of professional and collegiate sports has continued to grow during the early portion of this millennium and the momentum from international events such as NFL contests in London, NBA games, and NCAA contests in China and potential Major League Baseball contests in Cuba and Mexico might be affected by a Trump presidency.

As world leaders react to the new order in American politics, numerous international events and the awarding of the cities to host those events are under consideration.

The early portion of the Trump presidency and its initial policy decisions on immigration issues and the proposed revamping of trade policy could directly affect the International Olympic Committee’s decision the United States’ bid to host the 2024 Summer Olympics in Los Angeles.

While the bid is receiving strong competition from rival Paris, Los Angeles Mayor Eric Garcetti has acknowledged that IOC members have concerns about Trump. Garcetti stated, “An America that turns inward,…isn’t good for world peace, isn’t good for progress and isn’t good for all of us.” The 2024 Olympic Games decision will be made in September 2017.

The awarding of the 2026 World Cup for soccer is also approaching. While FIFA, the international governing body, has discussed potential expansion of the World Cup competition to 40 or 48 countries, many have stated that the United States either may host or co-host the event with Canada or Mexico. Will President-elect Trump’s campaign pledge to erect a wall along the U.S.- Mexico border and deport illegal immigrants affect international relations? Will FIFA’s leadership to avoid potential international reaction to awarding the United States the event? The President-elect said on election night, “We [the United States] will get along with all other countries, willing to get along with us.”

Additionally, President-elect Trump’s forthcoming trade initiatives may also affect professional sports leagues and their franchises.

Will President-elect Trump revoke many of the trade agreements that exist under the current administration? Will he enact severe tariffs on internationally manufactured goods that are imported in the United States? The answers could directly affect the global ambitions of the NFL, the NBA, and Major League Baseball.

While the commissioners of these major American sports have plans for the expansion of their sports overseas, with potential international franchises and more international games being held in cities such as London, Barcelona, Mexico City, Berlin and Shanghai, the potential imposition of proposed 45% tariffs affect how willing the international community would allow United States professional sports franchises to benefit at their expense.

Like the world’s leaders, the world of sports is waiting to see what impact a Trump presidency will have on their future goals and objectives.



Labor Board Reviews Northwestern Student-Athlete Policies

The National Labor Relations Board (NLRB), in a recent Advice Memorandum (NLRB Case No. 13-CA-157467), has effectively ended the closely-watched enforcement action against Northwestern University on whether certain intercollegiate student-athletes are statutory employees for purposes of the National Labor Relations Act.

The NLRB had declined in August 2015 to assert jurisdiction over a representation petition filed by the College Athletes Players Association to represent the grant-in-aid scholarship student-athletes at Northwestern, Northwestern University, 362 NLRB No. 67 (2015). In that decision, the NLRB, while assuming without deciding that scholarship student-athletes were statutory employees, determined that asserting jurisdiction over the student-athletes “would not promote stability in labor relations.” The decision, in large part, was based on the fact that “of the roughly 125 colleges and universities that participate in FBS football, all but 17 are state-run institutions.” By statute, the NLRB does not have jurisdiction over government entities. The NLRB also noted that “Northwestern is the only private school that is a member of the Big Ten” athletic conference.

The NLRB might decide differently if those “stability of labor relations” considerations are not present in an unfair labor practice case at a private college or university where considerations of collective bargaining and a possible competitive imbalance with public institutions playing in the same league may not be present.

Still an open question, however, is whether the University had engaged in unfair labor practices for policies that restricted student-athlete social media postings. An October 2016 memorandum by the Division of Advice of the Office of the General Counsel – the NLRB’s prosecutorial arm – recommended that the General Counsel not issue an unfair labor practice complaint against Northwestern University or the NCAA over the restrictions, which, it was argued, interfered with the ability of student-athletes to communicate regarding safety concerns and other issues relevant to collective bargaining. The recommendation was based on several factors: the policies had been revised and the revisions communicated to the players, the University had no history of prior similar unfair labor practices, and there was no likelihood of repetition of the rules.

However, as the NLRB again did not decide if scholarship student-athletes are statutory employees subject to its jurisdiction, the question remains whether the NLRB might find grant-in-aid scholarship students-athletes to be statutory employees and assert jurisdiction over them in another unfair labor practice case.

In the Advice Memorandum, the Division also “assume[d], for purposes of this memorandum, that Northwestern’s scholarship football players are statutory employees.”

It is not currently clear whether the October 2016 memorandum will affect how the NLRB might approach a future petition for representation of intercollegiate student-athletes. In an unfair labor practice case, the allegations and, more importantly, any remedy are typically limited to one employer. In another unfair labor practice case involving a private college or university, perhaps one that has not revised allegedly unlawful policies or has taken disciplinary action against a scholarship student-athlete allegedly in retaliation for the player having engaged in protected concerted activity under Sec. 7 of the NLRA (such as advocating for player safety measures), the NLRB may determine that any remedy would not have a negative impact on the “stability of labor relations” because there may not be a spillover effect to the competitive playing field.

The chief consideration relied upon by the NLRB in not asserting jurisdiction in Northwestern Univ. would be absent, and NLRB may feel free to consider the fundamental question whether scholarship-athletes are statutory employees and decide to assert jurisdiction. (The NLRB may also consider doing so in a representation case in which all the members of the league are private institutions, such as the Big East conference in basketball.)

The General Counsel of the NLRB is the office that decides which unfair labor practice cases to litigate. There is no indication the General Counsel has decided that scholarship student-athletes are not statutory employees.

In fact, by referring the Northwestern case to the Division of Advice, it might suggest that whether a scholarship student-athlete is an employee is very much in play for the General Counsel.

In a different case—at Northwestern or another private college or university—the General Counsel may decide to issue an unfair labor practice complaint and urge the NLRB to decide the core issue. The NLRB, for its part and recognizing that less than 7% of private sector employees are represented by a labor union, may be receptive. Until the NLRB decides that scholarship student-athletes at private institutions are not statutory employees, the possibility that it may do so in an appropriate case remains.

Supreme Court Declines To Consider Antitrust Case Against NCAA

The U.S. Supreme Court has declined to review a decision holding that NCAA athletes did not have to be paid beyond the cost of attending college. NCAA v. O’Bannon, Nos. 14-16601, 14-17068 (9th Cir. Sept. 30, 2015), cert. denied, No. 15-1167 (Oct. 3, 2016).

A U.S. district court had decided the NCAA’s use of the names, images, and likenesses of college athletes without compensation violated antitrust laws. It ruled schools could (but are not required to) pay college players up to $5,000 per year. That amount, placed in a trust, would be available to the athletes after leaving college. A panel of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, overruled the $5,000 holding, but upheld the lower court’s antitrust finding.

The Ninth Circuit said compensation for athletes should be limited to funds related to their education. While the NCAA is not above the antitrust laws, it continued, “the difference between offering athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor.”

Appealing to the Supreme Court, the NCAA claimed the Ninth Circuit antitrust ruling misapplied a 1984 Supreme Court decision, NCAA v. Board of Regents of Univ. of Oklahoma, 468 U.S. 85. It said part of that decision acknowledged that “in order to preserve the character and quality of the (NCAA’s) ‘product,’ athletes must not be paid, must be required to attend class and the like.” Groups advocating for student-athletes wanted the Court to affirm the Ninth Circuit’s refusal “to confer categorical antitrust immunity on the NCAA for what in any other industry would be an unreasonable restraint of trade.”

The effect of the Supreme Court’s denial of review leaves the NCAA susceptible to other ongoing legal challenges, but it also gives the Association time to make changes to blunt such threats. A Supreme Court review of O’Bannon could have further clarified if and to what extent college athletes should be compensated for the commercial use of their names, images, and likenesses and provided guidance on how such compensation could affect Title IX and the federal mandate that male and female college athletes be treated equally. Without such Supreme Court clarification, the Ninth Circuit’s decision stands as favorable precedent for other legal challenges to NCAA amateurism rules, such as the case pending on behalf of former Clemson University football player Martin Jenkins.

In 2014, Jenkins sued the NCAA, alleging the NCAA and its universities and conferences have violated federal antitrust law by conspiring to limit the value of athletic scholarships to tuition, room, board, books, and fees.

The Jenkins action seeks a proposed remedy that would allow schools to compete for star athletes in a “free agent” type system by bidding for the services of those athletes. Student athletes with superior athletic talent would be able to require schools vying for their enrollment to enter into a financial bidding war to convince them to attend their university.

This would be more reflective of a free agency system at the professional sports level than the current amateur athlete recruiting process that provides athletic scholarships.

The Jenkins case is being heard in the U.S. District Court for the Northern District of California, the same court that heard the O’Bannon case. In addition, the ruling federal district court judge in O’Bannon also is presiding over this litigation.

While O’Bannon may have reached its ending after seven years of protracted litigation, other potential actions can still be brought by student-athletes outside of the Ninth Circuit. Different legal interpretations among the circuit courts could bring the issue to the Supreme Court once again.


Sports Events Move Out Over North Carolina ‘Bathroom Bill’

First it was the National Basketball Association. Then, the National Collegiate Athletic Association joined in. Now, the Atlantic Coast Conference has followed the other governing bodies in taking punitive action against North Carolina in response to a state law that curbs anti-discrimination protection for those who are lesbian, gay, bisexual, or transgender

The ACC, headquartered in Greensboro, N.C., has announced it will move this academic year’s neutral-site championship games to other venues, dealing what is certain to be a large-scale loss of revenue and prestige for a state that thrives on its status as a top-tier destination for college athletics. The ACC’s decision follows closely the NCAA’s announcement that it will move this year’s championship games out of North Carolina. Earlier, the NBA announced that it would play its 2017 All-Star Game in New Orleans, rather than Charlotte, N.C., as previously planned, in reaction to the “bathroom bill” that has touched off wide-ranging and emotional debate. 

The ACC’s decision finishes what the NCAA started, virtually cleaning the slate of all title games that were to be decided in the Tar Heel State. Of significance in the ACC decision are the removal of the conference’s football title game in December and the women’s basketball tournament in March. On the NCAA side, six games in the Division I men’s basketball tournament had been scheduled for North Carolina.

Six other championships, including those for men’s golf, baseball, and men’s and women’s swimming and diving, will remain at in-state venues. In addition, championships hosted by specific universities, such as the men’s and women’s cross-country championships at North Carolina State, also are not affected.

With a strike at the heart of the state’s cultural and entertainment livelihood, the ACC has weighed in on the contentious debate over North Carolina House Bill 2 (H.B. 2). The law invalidated municipal ordinances that establish anti-discrimination protection for lesbian, gay, bisexual, or transgender individuals. The law also requires that, when in publicly owned buildings, people use the restroom that corresponds with the gender listed on their birth certificates.

While criticized by some for stepping from the athletic to the political arena, the ACC defended its decision as a principled reaction to what it sees as a form of discrimination that runs contrary to the league’s core values. Athletic directors from the ACC’s four in-state member universities – the University of North Carolina at Chapel Hill, Duke University, North Carolina State University, and Wake Forest University – preceded the ACC’s pronouncement with statements critical of the legislation. The chancellors of North Carolina and North Carolina State, however, were more reserved, issuing a joint statement that praised the ACC for reaffirming a league-wide commitment to inclusion and diversity, but also expressed concern for potential unintended adverse consequences for the state’s fan base and the host communities.

The ACC has stated that it will announce new sites for the relocated events, the first of which is fast approaching. The women’s soccer championship was set to begin October 30 in Cary, N.C. 

With its action, the ACC has taken a page from the playbook of the National Football League, which in 1990 moved Super Bowl XXVII from Sun Devil Stadium in Tempe to the Rose Bowl in Pasadena, Calif., because Arizona did not recognize Martin Luther King, Jr. Day.


Moving Your Infractions Case Along and Avoiding the Next One

In the nine years I served on the NCAA Division I Committee on Infractions (COI), we processed roughly 120 major infractions cases. Most were handled through in-person hearings, but a few were handled on paper, through the summary disposition process.

To the extent university presidents and other institutional staff members felt bold enough to voice their complaints regarding the process, one of the most common was the time it took to resolve a case from the start of the investigation. That complaint was understandable and, in some cases, well deserved. The cloud that hangs over a school under investigation takes a toll on the institution and all the people involved.

On August 1, 2016, the NCAA reported some good news – the time it takes to process cases has been reduced, even with an increasing caseload.

The reasons stated for the improvement include more options available to process a case short of the costly and dramatic in-person hearing, different approaches taken by the NCAA enforcement staff, and a focus on not allowing cases to drag on.

My personal observation is that the current staff is more focused on what are considered to be the major violations and supporting proof and more determined to avoid prolonging cases based on “what else might be out there.” Everyone in this line of work knows that on any campus, if you keep on digging, you’ll likely find more, although the additional violations may be nit. At some point, NCAA enforcement need to exercise discretion and good judgment and bring the investigative stage to a close based on diminishing returns. I have found in recent years that certain staff members would close investigative proceedings before they wind up finding just nit.

How can an institution move cases along and, of equal importance, make sure a first NCAA infractions case does not turn into a second a year or so down the road?

Many athletic compliance offices are thinly staffed, barely able to keep up with the day-to-day monitoring, educational, and reporting obligations.

If you get involved in an NCAA infractions case and the school receives a document-and-record request from the NCAA, make sure the athletic compliance office has all the help it needs collecting and responding to the document request while getting the regular, daily compliance job done.

This may mean temporary staffing help in the compliance office to handle the NCAA production schedule or interview schedule.

In my nine years on the COI, we had more than a few cases where the first major infractions case was followed by another only a year or two later. Ask the compliance officer at a hearing, “How did this happen?” Too often we heard the compliance office had insufficient staffing and resources to handle the burdens brought on by the first case while trying to run the compliance office. An additional investment of people and resources can help avoid being a two-timer in the process and can move the first case along.

When an NCAA investigation starts, the athletic director and general counsel should initiate a candid conversation with the athletic compliance office to see what help is needed and can be provided. Many eager compliance folks are reluctant to ask for help. A small additional investment of resources handling the first matter, however, will dwarf the costs of handling a second major case and may shorten the length of the first case.


MLB Looks For A Strike Out In Stadium Safety Case

Major League Baseball has asked a California federal court to dismiss a proposed class action claim that accuses the league of failing to sufficiently protect spectators with safety netting. Brought in the U.S. District Court for the Northern District of California, Gail Payne et al. v. Office of the Commissioner of Baseball et al., 4:15-cv-03229, names the MLB, Commissioner Rob Manfred, and all 30 teams as defendants.

The plaintiffs argue that the defendants are engaging in negligence, misrepresentations, and exposing the spectators of the sport to personal injury  . The claim also states that the putative class is afraid for their safety and, as a result, cannot enjoy the games as much. The class points to a Ninth Circuit decision holding that fear or anxiety of future harm is enough to establish injury-in-fact.

Thus far, the plaintiffs have failed to demonstrate standing to bring these claims because they are struggling to prove imminent danger of injury.

In response, MLB argued that the injury rate per ticket is far below one percent and, therefore, the chance of injury is extremely small. MLB argued that fear is not enough to establish standing because the putative class members have failed to demonstrate an imminent danger of injury. Additionally, all fans have the option to purchase seats behind foul ball nets or a seat that is not in the range of foul balls. Either way, MLB argued, the plaintiffs cannot demonstrate a certain impending injury.

The issue of spectator safety at professional sporting events is not a new one for litigation. Previous litigation, however, has set the bar for spectator recovery for injury extremely high. For example, in 2002 a 13-year-old girl was struck and killed by a puck while attending a hockey game. Even in such an extreme case, the team and the NHL were not held liable for her injury or death.

Since fans at sporting events are aware that they could be injured, this knowledge generally absolves the teams, arenas, and leagues of any legal liability.

More often than not, arenas will announce prior to a game starting, provide warnings on tickets, and put up nets to warn spectators about errant balls, pucks, bats, and the like. It appears that so long as teams, arenas, and leagues continue to warn spectators, they will not be found liable for spectator injury anytime soon.

Georgia Court to Unseal USA Gymnastics Complaint Records, Testimony in Negligence Lawsuit

Saying the court would “err on the side of the sun,” Georgia Judge Ronald K. Thompson has granted the Indianapolis Star newspaper’s motion to unseal 54 sexual-abuse complaint files and 12 deposition transcripts related to a lawsuit filed by former gymnast Kelly Cutright against USA Gymnastics, the sport’s national governing body.

The Star, not a party to the lawsuit, filed a motion to intervene after it investigated allegations that USA Gymnastics executives perpetually failed to forward sexual-abuse allegations made by gymnasts to law enforcement authorities.

According to the Star, USA Gymnastics disregarded sexual-abuse complaints unless they were signed by the alleged victim or victim’s family and ignored any reports of alleged sexual-abuse filed by third parties.

USA Gymnastics vehemently opposed the newspaper’s motion, arguing that the Star did not have a right to intervene in the lawsuit under Georgia law, that there was no public interest in releasing the information, and that the privacy of its members and coaches would be violated irrevocably if the records were unsealed.

Judge Thompson disagreed with USA Gymnastics, however, ruling that all of the information “is of public interest” and that the court would “err on the side of the sun.”

Cutright alleged that USA Gymnastics was negligent because it ignored four previous sexual-abuse complaints about her coach, which resulted in him abusing Cutright in 1999. Cutright supported the Star’s motion to unseal the records.

Judge Thompson said he will review the complaint files and depositions prior to unsealing them to ensure that sensitive information about alleged victims or their families is not inadvertently produced. Additionally, he said that victim names, medical records, and names of coaches who were not convicted of a crime also will be redacted to protect the privacy of innocent parties.

The records are scheduled to be unsealed by September 30, 2016. USA Gymnastics has indicated that it intends to appeal Judge Thompson’s ruling, which could delay or prevent their release.


Court Dismisses NCAA from Lawsuit Related to UNC’s Academic Fraud Scandal

District Court Judge Loretta Biggs has dismissed the NCAA from the putative class action filed by former UNC-Chapel Hill women’s basketball player Rashanda McCants and former UNC football player Devon Ramsay alleging state law claims against the NCAA and UNC. McCants, et al. v. NCAA, et al., No. 1:15-cv-176 (M.D. N.C. Aug. 12, 2016).

The plaintiffs asserted claims of negligence and breach of fiduciary duty against the NCAA, alleging that from 1989 to 2011, UNC enrolled students in the African and Afro-American Studies Department (“AFAM”) independent studies classes that involved no instruction or no faculty supervision and required no class attendance. Student-athletes accounted for a disproportionately high percentage of enrollments in these classes.

The plaintiffs alleged that the NCAA:

  1. “voluntarily assumed a duty to protect the education and educational opportunities of student-athletes (including the provision of academically sound courses) participating in NCAA-sponsored athletic programs at NCAA member institutions”; and
  2.  “voluntarily assumed a fiduciary duty — which includes duties of loyalty, cooperation, honesty, good faith and fair dealing, and the     exercise of due care — to protect the education and educational opportunities of student-athletes (including the provision of academically sound courses) participating in NCAA-sponsored athletic programs at NCAA member institutions.”

The NCAA argued the plaintiffs have not plausibly alleged that it has assumed such a duty to protect or the existence of a fiduciary relationship or a fiduciary duty between them and the NCAA. The court agreed with the NCAA.

With respect to the negligence claim, Plaintiffs alleged that the NCAA has a duty of reasonable care in safeguarding the provision of “academically sound classes” at UNC the court found the plaintiffs’ 259-paragraph, 100-page complaint contained “generalized, sweeping assertions.” The court said, “public statements by NCAA officials, as well as general, gratuitous statements contained in NCAA governing documents and on its website . . . are insufficient as a matter of law to support imposition of a legal duty upon the NCAA premised on the voluntary undertaking doctrine under North Carolina law.” Similarly, “Plaintiffs’ reliance on the NCAA’s adoption of rules and regulations, including the administration of its eligibility requirements, fails as a matter of law to support Plaintiffs’ claim that the NCAA assumed a duty to ensure the ‘academic soundness’ of classes offered at UNC-Chapel Hill.”

With respect to the breach of fiduciary duty claim, the court stated,

“The breadth of [Plaintiffs’] allegations would seem to suggest that Plaintiffs seek to impose a fiduciary duty on the NCAA to safeguard the ‘academic soundness’ of classes to the ‘more than 170,000 college athletes [that] compete in [Division I] NCAA-sanctioned sports each year.’”

North Carolina courts have consistently declined to recognize a fiduciary relationship in the academic setting, such as between a university and its students, and the court found no basis to conclude the NCAA assume such a duty in this case.

The court “recognized that the public has a strong interest in the myriad of policy concerns surrounding the NCAA’s role in intercollegiate athletics and in connection with the alleged academic improprieties that took place at UNC Chapel Hill; however, the scope of [its] authority is limited to a determination of whether Plaintiffs have alleged a plausible claim for relief against the NCAA under North Carolina law.” The court concluded the plaintiffs failed as a matter of law to state a plausible claim against the NCAA based on either negligence or breach of fiduciary duty.

Claims against UNC remain, but are stayed pending resolution of whether UNC can assert sovereign immunity.