California Senate Bill 206-The Immediate National Impact

While California Governor Gavin Newsom considers placing his signature on Senate Bill 206 and making his state the first state in the country to allow college student-athletes to market and profit from their name, image and likeness without affecting their student-athlete status, the legislation is already having an impact nationally. In response to the unanimous support for Senate Bill 206,

two South Carolina State Legislators intend to make South Carolina the second state to recognize the rights of student-athletes to profit from their name, image and likeness.

South Carolina State Senator Marlon Kimpson and Representative Justin Bamberg have announced that they intend to introduce a bill similar to California SB 206 when the South Carolina General Assembly reconvenes in January. Their proposal would allow the state’s largest schools to pay $5,000 a year in stipends to athletes in profitable sports like football and basketball. It would also allow other student-athletes who would be eligible to receive athletic scholarships benefits, but not the stipend, an opportunity to earn money from potential sponsorships and sales of their personal autograph.

In response to questions about introducing his proposed legislation, Senator Kimpson said, “The legislation passed in California is a sign of the time. The NCAA is not an amateur sports league. This is a multibillion dollar sports empire where everyone involved makes money except the players on the field who earn it.”

In an interesting twist to current law, Senator Kimpson also said his bill would compensate players for their hourly work, allow them to make money from using their likeness to sell merchandise, and establish a fund to assist players who suffer from sports-related injuries later in life.

Despite California’s success is achieving unanimous support from its Legislature for its bill, it is thought that South Carolina Legislators will voice strong opposition to Kimpson and Bamberg’s bill. Prior efforts put forth by South Carolina legislators, including legislation introduced by Senator Kimpson in 2015, to allow student-athletes to receive compensation beyond their athletic scholarships have failed to gain support.

University of South Carolina Athletic Director Ray Tanner has already expressed opposition stating that any such proposal “gives him angst.’ In addition, Clemson Head Football Coach Dabo Swinney, who recently signed a multi-year contract extension making him the highest paid college football in the nation, has already publically stated that if college players are paid, “I’ll go do something else because there’s enough entitlement in this world as it is.”

Despite anticipated opposition, South Carolina Senate Education Committee Chairman Greg Hembree, the head of the committee that will initially consider the bill when it is introduced, said he is open to the idea, comparing the NCAA student-athlete to Olympic participants and their rights to benefit from their name, image and likeness.

Representative Bamberg expressed his feelings as to why he believes the bill is an important measure for South Carolina to consider. “Our job is to take care of our citizens, our schools, our players. If another state wants to continue the proverbial football farm, that’s their problem.” He added,

That extra money — even just a few thousand dollars a semester — could go a long way for underprivileged athletes and their families.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed legislation and any additional state proposals that are presented in response to Senate Bill 206. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions about this bill or any other proposed state initiatives.

The California Legislature Has Spoken-Will Governor Newsom Make Senate Bill 206 Law?

The California State Senate has unanimously passed the amendments to Senate Bill 206 in a concurrence vote making California the first state to allow college student-athletes to market and profit from their name, image and likeness without affecting their student-athlete status. The bill will now be placed before Governor Newsom for his consideration. The Governor will have thirty (30) days to either the sign the bill and make it law, to veto the bill, or to ignore the bill and allow it to become law by his lack of action.

Prior to the Senate vote, the NCAA anticipated the potential for the Senate approval of the legislation in the concurrence vote and forwarded a letter directly to Governor Newsom. The NCAA publically released the letter that urged him to veto the bill. Specifically,

the letter from the Board of Governors reminded the Governor that nearly half a million student-athletes in more than 1100 schools in all 50 states compete under the same rules.

The NCAA asserted that this bill would “remove that essential element of fairness and equal treatment that forms the bedrock of college sports.” The letter ended with a specific directive to the Governor urging him to reconsider this “harmful” and what they believe to be “unconstitutional” bill.

Current NCAA bylaws state that any student-athletes who accept money or benefits from outside sources are in violation of NCAA amateurism rules. As a result, any student-athletes who would benefit from the California legislation would be subject to NCAA Bylaws that could result in the loss of their personal eligibility as well as the loss of their school’s team ability to compete for the NCAA Championship.

Whatever decision Governor Newsom makes, the bill primary sponsor, State Senator Nancy Skinner has consistently maintained that

the 2023 effective date for the legislation was created for the purpose of giving the NCAA and their other member schools adequate time to adjust to the California law

and either update or amend their current bylaws to address the ability of student-athletes to benefit from the use of their name, image and likeness.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed legislation as Governor Newsom considers his options and decides if he will make this controversial legislation into law. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

California Assembly Passes SB 206 –Next Stop, Governor Newsom’s Desk

The California State Assembly has unanimously passed Senate Bill 206, formerly known as the Fair Pay To Play Act, prior to the scheduled end of the California legislative session on Friday, September 13th. The bill would allow California college student-athletes to earn compensation for the use of their name, image and likeness without affecting the student-athlete’s scholarship eligibility.

Since the bill was amended by the Assembly to restrict a student-athlete from entering into shoe and apparel contracts that conflict with current university agreements, it must be returned to the California State Senate for an additional concurrence vote. In what is viewed as a formality, since the bill’s amendments do not impact the original bill’s basic premise of protecting California student-athletes right to personally market their name, image and likeness, it is anticipated that the State Senate will offer similar support to its original 31-5 vote when they consider the proposed legislation for a second time. The vote may take place as soon as later today, Tuesday, September 10th.

Assuming the Senate supports the bill in a similar fashion,

the legislation will be forwarded to California Governor Gavin Newsom for his execution.

He will have thirty (30) days to consider signing the legislation or to exercise his veto authority. He also has the option to ignore the legislation and take no action, which would allow the bill to become law. It is anticipated that Governor Newsom will be subject to strong efforts by the NCAA, California public and private universities and athletic conference leaders to veto the bill in its current form.

NCAA President Mark Emmert has already lobbied the chairs of two Assembly Committees via letter in June to delay consideration of the legislation and allow the NCAA’s current working group, led by Big East Commissioner Val Ackerman, to present potential changes to the NCAA’s current legislation regarding the ability of student-athletes to market their name, image and likeness.

It is anticipated that those proposals will be forthcoming in a formal report to the NCAA’s Board of Governors in October.

In his letters, President Emmert cautioned the California legislature that if the bill becomes law the NCAA would strongly consider prohibiting California schools from participating in NCAA Championship competition.

If the bill becomes law, the NCAA must decide if it intends to move forward with President Emmert’s potential ban of California schools for complying with California state law and risk the anticipated legal reaction to such a decision or accept the California law and make modest changes to current NCAA regulations. With a delayed effective date of January 1, 2023 for the California law, the proposal arising from the NCAA’s current working group will be of great interest and importance to this crucial issue and should provide sufficient time for the NCAA’s voluntary, non-litigious response to this potential new California law.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed legislation as it is presented to Governor Newsom for his consideration and signature. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

UPDATE: California Senate Bill 206 Moves Closer To Becoming Law

California Senate Bill 206, formerly known as The Fair Pay To Play Act, which would allow college student-athletes within the state to profit from the use of their name, image and likeness without interfering with their eligibility to continue to participate in collegiate athletics, has moved one step closer to becoming law.

The bill past another hurdle as it received near unanimous approval (15-1 in favor) from the California Assembly Appropriations Committee. According to the bill’s sponsor, Senator Nancy Skinner, the bill will now go before the full Assembly for consideration and potential approval next week. As Senator Skinner explained,

California college athletes are one step closer to getting the same rights to their name, image and likeness that all other Californians enjoy.

In its current, amended form, the legislation would now prohibit California postsecondary educational institutions except community colleges, and every athletic association, conference, or any other organization with authority over intercollegiate athletics, from preventing student-athletes from earning compensation in connection with the use of the student-athlete’s name, image, or likeness.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed legislation as it moves to the state assembly and potentially to Governor Newsom for his signature. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

Running Backs NLRB Petition Seeks To “Stiff Arm” NFL Players Association With New Bargaining Unit

An upstart labor organization, the International Brotherhood of Professional Running Backs (IBPRB), has filed a petition with Region 13, the Chicago office of the National Labor Relations Board (NLRB), seeking to form a separate union for the National Football League’s running backs. The unit clarification petition, NLRB Case No. 13-UC-246227, seeks to sever and create a separate running back bargaining unit from the National Football League Players Association (NFLPA), which has historically represented all NFL players regardless of position.

A unit clarification or “UC” petition generally is used to resolve disputes regarding the unit placement of disputed positions, typically newly created positions, in a process referred to as an accretion. However, a UC petition also can be used as a method to affect the subdivision of an existing bargaining unit, as the IBPRB seeks to do here. A severance effort is most often undertaken when some changed circumstances have occurred that have negated any “community of interest” (similarity of terms and conditions of employment) that may have previously existed among the bargaining unit and raise uncertainty regarding the continued appropriateness of the existing bargaining unit.

The petition filed by the IBPRB cited “the unique career structures” of running backs as its basis for the loss of the necessary community of interest between the running backs and the other NFL player members of the NFLPA.

For a successful UC petition, the petitioner must show “recent, substantial changes in their operations, or that other compelling circumstances exist which would warrant disregarding the long-existing bargaining history” of the parties. In Batesville Casket Company, Inc., 283 NLRB 795 (1987), the NLRB relied upon the standard established in Rock-Tenn Co., 274 NLRB 772 (1985), and dismissed a UC petition because the employer-petitioners did not show any “recent, substantial changes in their operations, or that other compelling circumstances which would warrant disregarding the long-existing bargaining history” of the parties.

It may be difficult for the IBPRB to meet the “recent, substantial changes” test.

While the role of a running back has evolved over recent years as the passing game has become the dominant force in offensive schemes, the basic mission of the position– to carry the ball, catch passes, and block – is unchanged. Whatever may be the unique career structures to which the IBPRB referred in the petition (the average career of an NFL running back is 2.5 years compared to 3.3 years for all positions), it may be difficult for the union to show that there have been “recent, substantial changes” in the running back position to satisfy the Batesville Casket threshold for unit clarification.

In representation cases such as this, the regional office of the NLRB conducts an initial investigation and holds a hearing if appropriate. A notice of hearing has not yet been issued. The NLRB may still be in a huddle.

As the ongoing negotiation of a potential extension to the current collective bargaining agreement between the NFL and its players continues, Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing status of this NLRB petition and its potential impact to the collective bargaining process. Please feel free to reach out to any member of the Jackson Lewis Collegiate and Professional Sports Practice Group or our Labor Practice Group with any questions that you may have regarding this issue or the UC process.

 

 

Title IX Alert Fall 2019

To assist collegiate sports administrators in assessing emerging Title IX issues, we are pleased to provide the fall 2019 issue of the Title IX Alert. This publication highlights topical issues such as proposed regulations, coaching obligations, and prominent court cases, among others. This issue covers the following topics:

  • Private college denied due process to football player
  • Court dismissed Title IX case over cutting women’s hockey
  • Circuit split on student’s due process right to cross-examination

Download the Report

 

NCAA Adds, Then Modifies, Certification Requirements for Agents

In 2018, in response to a federal investigation into alleged corruption, the NCAA established the Commission on College Basketball to fully examine critical aspects of Division I men’s basketball.

Among its recommendations, the Commission said student-athletes should be permitted to declare for the NBA draft but maintain their college eligibility if not drafted. This rule modification would replace the draconian rule that required student-athletes to remove their names from consideration for the NBA draft within 10 days of participating in the NBA combine or lose their remaining NCAA eligibility.

The Commission also recommended that student-athletes be permitted to receive “meaningful assessments of their professional prospects earlier” with the assistance of NCAA-certified agents.

In line with the recommendations, in August 2018, the NCAA announced a series of rule changes allowing male student-athletes to declare for the draft then return to college basketball if not drafted, as well as allowing them to be represented by National Basketball Players Association (NBPA) and NCAA certified agents.

The process and criteria for NCAA agent certification was not yet established, therefore, NBPA-certified agents were permitted to represent these athletes in the 2019 draft. The NCAA noted that the agents were required to become NCAA-certified no later than August 1, 2020.

However, on August 5, 2019, the NCAA launched its Agent Certification System and issued a memo to NBPA-certified agents explaining that they must become NCAA-certified to represent male athletes who wish to maintain their college eligibility. Available only through September 30, 2019, the NCAA certification was in addition to the NBPA certification program and accordingly has its own requirements.

Initially, to be eligible to become an NCAA-certified agent, candidates were required to meet the following criteria:

  • Have a bachelor’s degree or are currently certified and in good standing with the NBPA;
  • Have NBPA certification for a minimum of three consecutive years;
  • Maintain professional liability insurance;
  • Complete the NCAA qualification exam; and
  • Pay the required fees ($250 application fee and $1,250 annual certification fee).

Following the announcement of these criteria, the NCAA faced immediate criticism, especially in relation to the first requirement — led by LeBron James and his reference to the NCAA rule requiring a bachelor’s degree for NCAA certification as the “Rich Paul Rule,” after his agent who does not have a bachelor’s degree. The NCAA amended its rule within a week, noting that it had been “made aware of several current agents who have appropriately represented former student-athletes in their professional quest and whom the National Basketball Players Association has granted waivers of its bachelor’s degree requirement.”

Although the bachelor’s degree requirements received most of the attention, agents also voiced concerns about requiring three years of NBPA certification as a basis for the NCAA certification. The NCAA did not make any amendments to this requirement and there is only one exception to the three-year NBPA certification requirement. The exception applies only to agents who represented a student-athlete in the 2019 draft who subsequently returned to college. They may continue to represent that same student-athlete, even if they have not been NBPA-certified for three years, so long as they meet all other requirements.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor developments in the NCAA-certified agent rule. Please feel free to reach out to a member of the Group with any questions regarding the certification process or its requirements.

 

 

 

 

Will Student-Athletes on F-1 Visas be Affected by the Fair Pay to Play Act ?

The Fair Pay to Play Act, California SB 206, would allow college-level student-athletes in California to market their name, image, and likeness without affecting their amateur status. How may the new law, which is in the final phases of approval, affect international student-athletes?

Foreign students enter the United States on F-1 student visas. The terms of this type of visa drastically restrict the ability of each individual to earn money while studying in the United States as an international student.

The F-1 visa is a non-immigrant student visa that allows foreign-born individuals to pursue academic studies in the United States. International students must meet the following criteria in order to qualify:

  • The student must be enrolled in an “academic educational program”
  • The specific school must be approved by the Student and Exchange Visitors Program, which is administered by Immigration & Customs Enforcement
  • The student must be enrolled as a full-time student at the proposed school
  • The student must be proficient in English or enrolled in courses leading to English proficiency
  • The student must have sufficient funds to be able to support themselves during the entire length of their proposed course of study and stay in the United States.
  • The student must maintain a residence abroad that the student has no intention of abandoning
  • The F-1 student cannot work, except in specific circumstances regulated under federal law

The terms of the F-1 visa restrict the student from working off-campus during their first academic year.

F-1 students may engage only in three types of off-campus employment: Curricular Practical Training, Optional Practical Training, and Science, Technology, Engineering, and Mathematics Optional Practical Training Extension. All off-campus employment for F-1 students must be related to their area of study and authorized by the Designated School Official before starting any work. An F-1 visa does not authorize any other type of work activity and clearly does not authorize international student-athletes to enter into endorsement agreements to secure remuneration for their name, image, and likeness.

In fact, an international student found to have been working illegally while on an F-1 visa is deemed to have committed a serious violation of the regulations and could result in the student being deported.

The proposed California legislation authorizes student-athletes at all 24 California public and private colleges and universities to market their name, image, and likeness and restricts the ability of the NCAA to prevent student-athletes from participating in any such marketing opportunities.

SB 206 fails to address the predicament of the international student-athlete.

How will the hundreds of international student-athletes participating on California colleges and universities teams benefit from the new legislation? Will the California legislature address this apparent loophole that would restrict an international student-athlete from benefiting from the value of their name, image, and likeness before the bill can be signed into law by Governor Gavin Newsom?

Jackson Lewis’ Collegiate and Professional Sports Practice Group is prepared to counsel colleges and universities on any of the issues that may arise if the SB 206 becomes law. The Practice Group will continue to monitor the status of this proposed legislation and similar legislation that has been introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

MLB Appears Ready To Dive into Uniform Patch Advertising

After observing the success of the NBA’s uniform patch program, Major League Baseball appears ready to utilize similar uniform advertising.

According to MLB’s Executive and Vice President of Business and Sales Noah Garden, the MLB is considering advertising patches for players’ uniforms. Although the patches cover only a small portion of uniform space (approximately 6.25 square inches), they have been profitable for the NBA.

The NBA’s three-year pilot program to sell a corporate logo space on game day jerseys began in 2017. The program was estimated to be worth about $100 million a year. It has generated more than $150 million thus far. The NBA considers the program “an overwhelming success” and predicts new deals and renewals to be even more profitable (potentially, 20%-30% increase). Currently, NBA team deals range from $5 million to $20 million annually. The Boston Celtics, for example, was able to secure a deal worth more than $7 million with General Electric. The Golden State Warriors and Rakuten, a Japanese technology company, have a $20-million deal.

Although MLB’s Garden describes the patches on MLB jerseys as “inevitable,” he also notes that “there are lots of things to take into consideration.” This make sense, as it took the NBA more than three years to sort out the details of its program. MLB will have to work out the aesthetics (size and placement) and economics, as well as a revenue-sharing formula and exposure opportunities.

While MLB plays almost double the number of games played by the NBA, there is less movement in baseball allowing potentially more views of a patch. However, most of the value of the NBA patch is not coming from television views. Around 75% of the value of the NBA patch comes for content shared digitally and on social media. Therefore, Lebron James’ 43.2 million Twitter followers as compared to Mike Trout’s 2.6 million followers may be a necessary consideration in valuing the cost of uniform advertising for MLB.

Other considerations may include whether all teams will participate in the program and what types of advertisements will be permitted. Some MLB licensees predict “resistance from MLB’s richest and most tradition-bound teams” (the Yankees, Red Sox, and Cubs may not jump at this opportunity). As of March 2019, all 30 NBA teams participate in patch advertising.

The MLB likely will have to follow the NBA’s lead in at least one of its advertisement prohibitions. The NBA prohibits advertisements by competitors of Nike, which provides the NBA’s uniforms and will provide the MLB’s uniforms beginning next year. The NBA also prohibits advertisements from companies promoting liquor, tobacco, gambling, media concerns, and political ads.

One of the largest concerns for MLB players is how the revenue generated from a patch program would benefit them. The players would have to approve the patches and related terms as part of the collective bargaining agreement between the 30 Major League Clubs and the Major League Baseball Players Association. The current agreement will remain in effect until December 1, 2021.

This gives the MLB some time to iron out all the details of a patch program, but is it enough time? MLB Senior Vice President Jim Small stated,

“[E]ach sports league has a unique set of circumstances, so there is not a one-size-fits-all approach.”

 

 

Sports Venues and the Americans with Disabilities Act

Throughout the country, sports teams and their venues have been hit with an uptick of public accommodation lawsuits under Title III of the Americans with Disabilities Act (ADA), along with its state and local counterparts. The ability to obtain attorney’s fees makes these cases attractive to plaintiffs’ firms.

Plaintiffs include fans, who team up with firms to travel around facilities or sign onto websites to “test” ADA compliance, and others who felt aggrieved after attending an event.

The claims range from not removing physical barriers to access, restricting fans with dietary restrictions from bringing outside food, forbidding service animals to enter, as well as operating websites that are inaccessible to those who are visually impaired or blind.

Title III of the ADA was passed in 1990. It provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). The law has requires sports teams to make reasonable modifications to policies, practices, and procedures to make their goods and services available to people with disabilities. Plaintiffs argue that this applies to physical locations as well as commerce-driven websites despite differing court rulings.

While some companies opt to settle claims early to avoid the cost of litigation, others are taking a hard stance and defending their ADA compliance in court. For example, this past June, in Nevarez v. Forty Niners Football Co. LLC, No. 5:16-cv-07013 (N.D. Cal.), the San Francisco 49ers moved for the court to deny the plaintiffs’ claims and declare that the team’s stadium complies with all federal and state public accommodation laws. The plaintiffs include a class of wheelchair-bound fans and their family members who assist them. They allege the property does not comply with accessibility standards for wheelchair use in and around the stadium.

The lawsuit seeks to correct hundreds of supposed claims including, for example, barriers between satellite parking lots and the stadium, a lack of accessible seating at all price levels, restrictions to disabled and non-disabled groups purchasing tickets together, and physical obstacles within the stadium. Along with requesting the defendants to make repairs, the plaintiffs are seeking statutory damages and attorneys’ fees.

The defendants argue that certain parking lot accessibility issues have already been corrected and the remaining allegations do not violate disability laws.

If the case proceeds to trial, it will be interesting to see how a jury rules, as the court has already decided that it will review only a sampling of barriers to determine whether the stadium met accessibility standards.

This case is only one recent reminder of the ongoing Title III disability-related litigation, generally occurring in California, Florida, and New York. There does not appear to be an end of these claims in sight. Sports leagues, teams, and stadium operators should consider reviewing their policies and websites with counsel before being hit with litigation.

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