NCAA Takes Additional Steps Toward Ratification Of Name, Image, and Likeness Legislation

By Gregg E. Clifton and Iciss R. Tillis on

The NCAA has taken a further step toward the finalization of specific provisions which would allow student-athletes the opportunity to pursue endorsement opportunities for the use of their name, image and likeness. The NCAA Division I Council has approved an updated draft of proposed student-athlete name, image, and likeness rights (NIL) legislation. This revised proposal, which is still subject to further recommendations and modifications, will be presented for final approval in January 2021. It is expected that any finalized proposal will take effect on or about August 1, 2021.

The Division I Council has indicated that the organization’s Legislative Solutions Group may make additional recommendations to the Division I Council on pre-enrollment, permissible booster involvement, and institutional assistance versus institutional involvement. Additionally, the Council supports breaking the proposed concepts into separate legislative proposals based on topic area in order to vote on each element separately during the January 2021 vote.

While NIL laws have already been passed in five states (California, Colorado, Florida, New Jersey, and Nebraska with more than two dozen states currently considering similar legislation) and bipartisan legislation has already been introduced in Congress, the NCAA’s proposed NIL rule modifications still appear to be more restrictive that the current state laws, including the Florida law which has an effective date of July 1, 2021. In an effort to avoid the impending conflict between the anticipated enactment of an increasing number of state NIL laws and the NCAA’s potential legislative modifications, the NCAA is urging Congress to expeditiously create legislation that would preempt state NIL laws which potentially create an advantage for a group of schools over others in recruiting future student-athletes.

The NCAA Division I Name, Image and Likeness Legislative Solutions Group’s 22-page proposal, “Amateurism-Use of a Student-Athletes Name, Image and Likeness,” details specific changes to current NCAA NIL restrictions. According to the proposal, student-athletes would have the right to use their NIL for compensation as follows:

  • Promote private lessons and business activities and operate their own camps and clinics, as long as they do not use school marks.
  • Profit from endorsing products through commercials and other ventures, as long as they do not use any school marks or reveal the school in which they attend. They are allowed only to refer to “their involvement in intercollegiate athletics generally.”
  • Be compensated for autograph sessions, as long as they do not occur during an institution event or competition and no school marks or apparel is used during the sale of the material.
  • Solicit funds through crowdfunding, such as GoFundMe, for non-profits or charities, catastrophic events, family hardships, and educational experiences, such as internships.
  • Enter deals with agents only for (1) advice on NIL ventures, (2) assistance in contract negotiations, and (3) marketing of NIL ventures. Student-athletes must disclose all NIL ventures, relationships, and contracts with agents to their schools and a third-party administrator to be named.

Despite being described by NCAA Division I Chair M. Grace Calhoun as an “important milestone,” the NCAA proposal makes significant policy changes but still contains numerous restrictions on student-athlete NIL use.

Student-athletes would be prohibited from participating in certain activities, including engaging in commercial activities in conflict with NCAA legislation” (i.e., sports wagering and banned substances) or existing institutional sponsorship arrangements or other school “values.”

Meanwhile, multiple members of Congress have introduced legislation seeking to create specific student-athlete NIL rights as well as law preventing unfair practices in college sports that goes beyond the NIL rights addressed in the NCAA’s Proposal. The “Student Athlete Level Playing Field Act,” co-introduced by Representative Anthony Gonzalez (R-Ohio), a former Ohio State University and NFL player, and Representative Emanuel Cleaver (D-Mo.), has received initial bipartisan support from three Republican and three Democratic representatives co-sponsoring the bill.

The Gonzalez-Cleaver bill follows Republican Senator Marco Rubio’s “The Fairness In Collegiate Athletics Act” (introduced earlier this summer), which would require the NCAA to implement rules that would allow student-athletes to be compensated for their NIL by June 30, 2021, one day before the effective date of the Florida NIL law (which has the earliest effective date of any current NIL state law). In exchange for the mandate to the NCAA, the Rubio bill would provide the NCAA a protective legal shield against legal challenges from any rule changes implemented to allow student-athletes to earn money for endorsement deals and personal appearances.

The key components of the Gonzalez-Cleaver legislation would authorize student-athlete use of representatives to solicit or negotiate endorsement opportunities. The potential endorsements permitted include money-making opportunities that could conflict with existing school sponsorship agreements. The student status of any student-athlete who enters into an endorsement agreement will remain the same and would not make them a school employee.

The Gonzalez-Cleaver bill also would eliminate student-athlete endorsements of companies associated with alcohol, tobacco, or vaping, marijuana, or drug dispensaries or sellers, casinos and gambling facilities, and adult entertainment. Student-athletes also would be prohibited from “wearing any item of clothing or gear with the insignia of any entity during athletic competition or a university sponsored event.”

New Jersey Senator Cory Booker and Connecticut Senator Chris Murphy have also announced plans to introduce a “College Athletes Bill of Rights.” Commenting on the legislation, Senator Booker said, “[I]f federal lawmakers are going to help the NCAA by providing NIL legislation, they should also use the opportunity to enforce rules that improve health and safety standards for college athletes and give them a bigger voice in future decisions.” That bill would guarantee student-athletes monetary compensation, long-term healthcare, lifetime educational scholarships, and more eligibility freedoms as follows:

  • Allow student-athletes to enter group licensing deals and revenue-sharing agreements with athletic associations, conferences, and their respective schools.
  • Allow student-athletes to transfer schools without restriction or penalty.

While the NCAA transfer rule requires student-athletes to miss a year of eligibility when transferring to another program, the transfer rule is expected to be amended in January 2021 to allow players to transfer once without penalty.

  • Require each school to provide detailed annual public reporting of their revenue and expenses.

While the NCAA has taken steps to address the NIL issue, the potential collision course between the potential NCAA legislative modifications and the impact of the Florida law containing broader based NIL rights in July 2021 appears to be unavoidable unless Congress acts.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor  ongoing NIL issues on the federal and state level, as well as the NCAA’s introduction of the final NIL rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

NAIA Grants Name, Image, Likeness Rights to Collegiate Student-Athletes

By Gregg E. Clifton on

While the collegiate sports world awaits the NCAA’s final position on the issue of student-athlete name, image, and likeness (NIL) rights, another college athletic governing body has stepped forward and made the initial legislative enactment authorizing student-athletes to profit from the use of their name, image, and likeness.

The National Association of Intercollegiate Athletics (NAIA) has become the nation’s first college sports organization to enact specific NIL rights for its student-athletes.

The NAIA serves as the governing body for more than 77,000 student-athletes who play college sports for 250 smaller school members spread among 21 NAIA conference members throughout the United States.

An additional amendment to existing language in the NAIA Amateur Code, which had been previously expanded to allow student-athlete compensation for NIL rights provided that neither the student’s school nor student-athlete status was referenced, now authorizes a student-athlete to receive compensation for promoting any commercial product, enterprise, or for any public or media appearance. Additionally, it is now permissible for a student-athlete to reference their intercollegiate athletic participation in such promotions or appearances.

Announcing the legislation, NAIA President and CEO Jim Carr proclaimed,

“This is a landmark day for the NAIA, and we are happy to lead the way in providing additional opportunities for our student-athletes.”

Carr further explained, “The time was right for the NAIA to ensure our student-athletes can use their name, image and likeness in the same ways as all other college students.”

While making the formal announcement, the NAIA clarified specific areas of prior concern and noted specific scenarios in which student-athletes can now be compensated. The scenarios included:

  • Individual or team participation in a movie, show, commercial in their sport which identifies the student-athlete’s sport and college and permits the student-athlete to wear their school uniform.
  • Student-athletes can utilize their status as a student-athlete to promote and sell supplements.
  • Student-athletes can be a member of a music group and reference the school in a poster to promote the group.
  • Student-athletes can offer sport lessons to youth for an hourly fee and advertise on social media and flyers, including action shots of the student-athlete in their college uniform.
  • Student-athletes can publish a memoir about their life story and reference their position as a student-athlete and their specific institution.
  • Student-athletes can receive compensation for appearing in a local commercial, even if they reference their status as a student-athlete or their institution.
  • Student-athletes can monetize their influence on social media, with Instagram influencer status or a YouTube channel, even if they reference their status as a student-athlete or their institution.

While the collegiate sports world has watched five states (California, Colorado, Florida, Nebraska, and New Jersey) lead the legislative way for student-athletes with specific state law enactment of NIL legislation and the introduction of multiple proposed federal NIL legislation, the NAIA has taken the first official step to authorize student-athlete NIL rights. While awaiting the next phase of the NCAA’s proposed NIL legislation, with an anticipated January 2021 effective date, the pressure to enact legislation similar to the current state laws and the NAIA’s legislative enactment will continue to build.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the NAIA new student-athlete NIL rights, the ongoing NIL issues on the federal and state level, as well as the NCAA’s anticipated final NIL rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Bipartisan Name, Image, Likeness Bill Introduced In Congress

By Gregg E. Clifton on

Legislation that would protect the rights of student-athletes to receive financial benefits from the commercial use of their name, image, and likeness (NIL), while prohibiting athletic associations, like the NCAA and colleges and universities, from preventing student-athletes from participating in intercollegiate athletics as a result of entering into endorsement contracts has been introduced in the House of Representatives.

The “Student Athlete Level Playing Field Act,” co-introduced by Representative Anthony Gonzalez (R-Ohio), a former Ohio State University and NFL player, and Representative Emanuel Cleaver (D-Mo.), has received initial bipartisan support from three Republican and three Democratic representatives co-sponsoring the bill.

The Gonzalez-Cleaver bill follows Republican Senator Marco Rubio’s proposed “The Fairness In Collegiate Athletics Act,” which was introduced earlier this summer. Senator Rubio’s bill would require the National Collegiate Athletic Association (NCAA) to implement rules that would allow student-athletes to be compensated for their NIL by June 30, 2021, one day before the effective date of the Florida NIL law, which has the earliest formal effective date of any current NIL state laws. In exchange for the mandate to the NCAA, the Rubio bill would provide a protective legal shield to prevent the NCAA from being legally challenged as a result of any rule changes they implement to allow student-athletes to earn money for endorsement deals and personal appearances.

In addition to the Rubio legislation, the Gonzalez-Cleaver bill is expected to be joined by another piece of partisan legislation from Senators Cory Booker and Richard Blumenthal. The highly anticipated “College Athletes Bill of Rights” is expected to propose similar NIL rights, as well as additional healthcare coverage and educational benefits for college athletes.

The key components of the Gonzalez-Cleaver legislation would authorize student-athlete use of representatives to solicit or negotiate endorsement opportunities.

The potential endorsements would be able to include money-making opportunities that could conflict with existing school sponsorship agreements.

The student status of any student-athlete who enters into an endorsement agreement will remain the same and would not make them a school employee.

However, specific restrictions in the bill would prevent “boosters” (defined as individuals not related to an athlete or sponsors of school athletic programs who provide substantial financial assistance or services to schools) from providing any funds or things of value as an inducement for a student-athlete to enroll or remain at a school.

The bill also would eliminate student-athlete endorsements of companies associated with alcohol, tobacco, or vaping, marijuana, or drug dispensaries or sellers, casinos and gambling facilities, and adult entertainment.

Student-athletes would also be prohibited from “wearing any item of clothing or gear with the insignia of any entity during athletic competition or a university sponsored event.”

In addition to protecting student-athlete NIL rights, the Gonzalez-Cleaver bill attempts to appease certain concerns raised by NCAA. The bill contains language that would expressly preempt the impact of the laws of states that have already passed NIL legislation (California, Colorado, Florida, Nebraska and New Jersey) and attempt to dissuade other states from proceeding with impending votes on similar NIL laws.

The Federal Trade Commission would be tasked with oversight and enforcement of the NIL bill. Congress will establish and appoint a 13-person Covered Athletic Organization Commission made up of a combination of athletic directors, coaches, former student-athletes, athletic administrators, sports marketing professionals, and individuals with corporate governance experience. The Commission would be responsible during a three-year period to monitor the bill and make recommendations by reporting to Congress on an annual basis.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing name, image, and likeness issues on the federal and state level, as well as the NCAA’s introduction of its anticipated final rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

New Jersey Grants Name, Image, Likeness Rights to Collegiate Student-Athletes

By Gregg E. Clifton and Nicholas A. Plinio on

New Jersey Governor Phil Murphy’s signature on the New Jersey Fair Play Act (S-971/A-2106) will allow New Jersey student-athletes to earn financial compensation from the use of their name, image, and likeness and authorize their hiring and use of attorneys and agents without affecting their scholarship eligibility. New Jersey joins the states of California, Colorado, Florida, and Nebraska who have passed similar laws protecting the rights of student-athletes to be paid for name, image, and likeness rights.

The New Jersey law received final legislative approval in late July, passing the full Assembly 56-16-2, and the full Senate 30-9.

While Congress continues to debate potential federal name, image and likeness legislation, the finalization of the NCAA’s formal rule changes permitting student-athletes legal opportunities to benefit from the use of their name, image, and likeness is still on hold.

The New Jersey Fair Play Act would first be applicable in the fifth academic year following its enactment.

Under the Act, a four-year institution would be prohibited from upholding any rule, requirement, standard, or other limitation that prevents college athletes from monetizing the use of their name, image, or likeness.

In addition, a four-year institution would be prohibited from joining the NCAA or any athletic association, conference, or other group or organization with control over intercollegiate athletics if college athletes are prohibited from earning compensation from their name, image, or likeness; the institution prevented a student-athlete from obtaining professional representation in relation to contracts or legal matters; or the institution interfered with compensation reaching a student-athlete.

While granting the student-athletes the right to profit from the use of their name, image, and likeness, the law places certain obligations upon the student-athlete. The student-athlete must disclose the contract to a university-designated official of the four-year institution of higher education. In addition,

the student-athlete endorsers will be prohibited from earning compensation in connection with certain industries: adult entertainment, alcohol, gambling of any kind (including sports betting, lottery, or betting connected to video games, online games, and mobile devices), tobacco and electronic smoking, pharmaceuticals, controlled dangerous substances, and firearms. If a student-athlete earns compensation from any of these prohibited areas, their scholarship eligibility will be revoked.

State Senator Joe Lagana, who co-sponsored the bill, commented following the Governor’s announcement of his signing the bill into law, “For too long, collegiate athletes have been barred from seeking compensation for endorsements while their skill and labor fuels profits for the NCAA and its corporate partners.” He added, “These amazing young people deserve the right to share in the economic opportunity created by their talent. Today, we put an end to that inequity and allow New Jersey’s student athletes to play by the same rules as everyone else.”

The bill’s co-sponsor, State Senator Loretta Weinberg, further commented, “These elite athletes spend well over 40 hours a week practicing, training and performing with no guarantee of a professional career, or even a complete education. This is not only unfair, it is exploitation. While the NCAA drags its feet, I’m glad this bill will give student-athletes new rights to compensation, at least in New Jersey.”

In September 2019, California became the first state to allow college athletes to sign endorsement deals despite specific NCAA rules prohibiting student-athletes this right. The California law is effective July 1, 2023.

The Florida legislation, signed in June, has gained significant attention because of its effective date: July 1, 2021.

Nebraska, the most recent state prior to New Jersey to a pass a law covering name, image and likeness rights,  enacted the Nebraska Fair Pay to Play Act, with an effective date of July 1, 2023. However, the law states that “each postsecondary institution shall determine a date on or before July 1, 2023″ to begin applying the law. To date, no school has exercised this legal right to apply the new state law and risk violating current NCAA bylaws and the potential eligibility of their student-athletes.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing name, image, and likeness issues on the federal and state level, as well as the NCAA’s anticipated final rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Senators to Introduce Additional Federal Legislation Regarding Collegiate Student-Athletes

By Gregg E. Clifton and Doriyon C. Glass on

For the second time in a little more than a month, Connecticut Senator Richard Blumenthal and New Jersey Senator Cory Booker have announced plans to introduce additional federal legislation impacting collegiate student-athletes “in the coming months.”

This follows the Senators’ previous introduction of the “College Athlete Pandemic Safety Act,” which would eliminate the ability of colleges and universities to use liability waivers as a basis for student-athletes to return to campus and resume training activities.

The framework of the proposed “College Athletes Bill of Rights” legislation was announced by Booker and Blumenthal, and they were joined by eight other U.S. Senators, including Bernie Sanders and Kamala Harris. The proposed legislation would cover the following specific areas:

Fair and Equitable Compensation– The proposed bill would allow student-athletes to market their name, image, and likeness (NIL) as an individual and as a member of a group of student-athletes with minimal restrictions. It would authorize athletes to enter into revenue-sharing agreements with athletic associations, conferences and member schools. Without providing any specificity, the Senators stated the goal of the bill is to allow student-athletes to retain authority and have a voice in determining and establishing fair NIL agreements.

Development of Health, Safety and Wellness Standards- The bill would mandate the development and aggressive enforcement of health, safety, and wellness standards to ensure college athletes are kept healthy and protected from undue risk related to their participation in sports and the COVID-19 pandemic.

Additionally, the Senators intend their legislation to make coaches “accountable for dangerous and abusive decision-making.”

Improve Educational Opportunities- The proposal intends to provide student-athletes with lifetime scholarships to allow them to complete their degrees.

Comprehensive Healthcare Coverage- Schools would be required to provide healthcare coverage and support with regard to sport-related injuries. The general outline of the legislation states that increased financial assistance will be mandated to assist current and former college athletes with medical bills and out-of-pocket expenses from sport-related injuries and illnesses from COVID-19.

University Financial Disclosure Requirements- The bill would require all schools to provide a detailed annual report that would publicly release the total sources of athletic department revenues and expenditures, including compensation for athletic department personnel and booster donations, as well as mandatory reporting on the number of hours all student-athletes commit to athletic activities in their individual sports.

Freedom of University Choice- The Senators proposed bill would eliminate restrictions and penalties that currently prevent college athletes from attending the institution of their choice,

including the removal of current penalties associated with transferring schools and student movement following their execution of National Letters of Intent.

Creation of Oversight Commission- Finally, the proposed legislation would create a commission of current and former athletes, policy experts, as well as academic and administration officials to guarantee student-athletes an opportunity to be involved in the rules governing a college sports oversight panel.

Several Senators involved in the proposed legislation commented on their support for the bill. Senator Booker stated, “The NCAA has failed generations of young men and women even when it comes to their most basic responsibility—keeping the athletes under their charge healthy and safe.” Senator Bernie Sanders, advocating collective bargaining rights for student-athletes who have not been determined to be employees by the National Labor Relations Board, commented on his support, “These athletes are workers. That means safe working conditions, health care, collective bargaining rights, and fair wages for their labor.”

If introduced, this bill will join Senator Marco Rubio’s bill, the Fairness in Collegiate Athletics Act, which was introduced in June. That bill would require the NCAA to implement rules to allow student-athletes to market their name, image, and likeness and receive compensation for their use without any potential impact to their student-athlete status.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the development and implementation of this proposed federal legislation and the status of Senator Rubio’s bill. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Compliance Considerations for Colleges and Universities Prior To Eliminating Sports in the COVID-19 Era

By John G. Long and Gregg E. Clifton on

One of the worst developments of the COVID-19 pandemic has been its impact to college sports and the unfortunate sacrifice of athletics programs across the country affecting all levels of NCAA and NAIA competition.

Since March, hundreds of collegiate varsity programs have been discontinued, with more cuts likely coming.

Eliminating a varsity sport is never an easy decision for college administrators. However, the current economic reality caused by the pandemic has forced many institutions to make this difficult decision. Although the elimination of sports is typically economic-motivated, the potential impact of these decisions on federal law compliance must be considered prior to taking an action.

Prior to finalizing the decision to eliminate a sport, administrators should appropriately calculate the impact that reclassifying or eliminating a sport will have on the institution’s compliance with Title IX.

Title IX requires each institution to appropriately provide athletic opportunities accommodating the interest and athletic abilities of its students. To comply with the Interests and Abilities component of Title IX, institutions must provide competition opportunities at the appropriate competition level while meeting at least one part of the “three-part test” for competitive opportunities. Both aspects are critical.

Competition Level. Institutions should look to the two-part test in assessing whether their school would still be providing competition at the appropriate competition level after elimination or reclassification of a program. A school should be able to demonstrate that it is still providing competition at the appropriate level, even after elimination or reclassification of a program, by meeting one of the two tests offered.

The first test requires institutions to assess information related to the competitive level of scheduled competition for its remaining varsity programs. A close proportionality of the percentage of events scheduled at the equivalent competition level for men’s and women’s sports is indicative of compliance with the first test for competition levels.

The second test for competition levels involves a demonstration that the institution has a history of and is continuing to upgrade the competition level for the underrepresented sex. Declassification of sports participated in by the underrepresented sex on campus will present an issue for institutions who rely on the second test to demonstrate that they are providing the equivalent quality of competitive opportunities for men’s and women’s sports.

Competition Opportunities. In addition to assessing the competitive levels of men’s and women’s sports, schools must ensure that they continue to provide equivalent competitive opportunities for men and women student-athletes after reclassifying or eliminating varsity sports. This assessment involves an analysis of the three-part test for competitive opportunities. To comply, institutions will need to demonstrate that they accommodate interests and abilities under at least one of the following three parts:

Part I:            Proportional participation of male and female athletes in varsity  athletics program; or

Part II:          A history of program expansion for the under-represented sex; or

Part III:        Present accommodation of interests and abilities.

While cutting the over-represented sex’s (often, men’s) sports opportunities has been supported by some courts as a legal method to comply with Part I – Proportionality, the reclassification or elimination of a sport may jeopardize an institution’s ability to demonstrate compliance with Part II or Part III. Institutions cutting sports should take care in ensuring they will be able to manage the rosters of its remaining sports to stay within an appropriate threshold of proportionality.

Institutions unable to demonstrate equitable proportionality under Part I will be left with either Part II or Part III of the three-part test to demonstrate compliance. Part II of the competition opportunity test assesses whether the institution has a continued history of program expansion for the underrepresented sex. Part III of the three-part test for participation opportunities is the most complex. The reclassification or elimination of a varsity sport will not help an institution demonstrate that it is actively and fully accommodating the interests and abilities of students on campus, as the existence of a varsity sport carries with it a presumption that there is sufficient interest and ability to sponsor the sport at the varsity level. Therefore, institutions will have to intensively evaluate all aspects of Part III in order to demonstrate that the university is still adequately accommodating for interests or abilities under Part III, even though the school cut or reclassified sports programs.

Attorneys in Jackson Lewis’ Collegiate and Professional Sports Practice Group and Higher Education Group are available to assist and answer any questions that may arise relating to the elimination of athletic programs while maintaining Title IX compliance.

NCAA Division III Approves Blanket Student-Athlete COVID-19 Waivers for 2020-21 Seasons

By Bernard G. Dennis III and Gregg E. Clifton on

A week after the NCAA Division III Membership Committee encouraged institutions to make the best decisions for their student-athletes’ “happiness, health and safety,” the Division’s Administrative Committee has provided some administrative relief for institutions should the ongoing impact of  COVID-19 affect 2020-21 seasons of athletic competition.

Two blanket waivers have been approved for all Division III sports:

  1. All student-athletes whose sports fail to complete more than 50% of their maximum contests/dates of competition due to COVID-19 will receive a season-of-competition waiver to ensure they can have an opportunity for four meaningful seasons of participation.
  2. Any student-athlete who is unable to participate due to COVID-19 or their team fails to complete more than 50% of their maximum contests/dates of competition due to COVID-19 and the student-athlete is otherwise eligible for the 2020-21 season is eligible for a two-semester/three-quarter extension of eligibility to extend their 10 semester/15 quarter eligibility clock and alleviate an institution’s need to file an additional extension of eligibility waiver if the student-athlete seeks to maintain full-time enrollment.

These waivers will eliminate eligibility concerns as institutions face competition decisions as the 2020-21 year progresses and alleviate the administrative burden should seasons need to be cancelled after they begin.

The waivers also permit student-athletes to make more informed enrollment decisions prior to the upcoming academic year.

For teams that complete more than 50% of their maximum contests/dates of competition, individual waivers may still be pursued on a case-by-case basis through the regular waiver process. Waivers typically require circumstances beyond a student-athlete’s control, hardship, or other extenuating circumstances. The extent to which other COIVD-19-related circumstances will satisfy these typical waiver requirements remains to be seen.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the NCAA in its ongoing response to COVID-19. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Ivy League Reinforces Its Commitment to Student-Athlete Safety With Cancellation of Fall Sports Amid COVID-19 Spikes

By Gregg E. Clifton on

Once again, the Ivy League has sent a loud and clear message regarding COVID-19 to the college community. The Ivy League presidents have cancelled all intercollegiate sports until at least January, becoming the first Division I conference to officially suspend its fall semester football schedule in the midst of the coronavirus pandemic.

The league has reserved its decision on the potential impact of the pandemic on winter and spring sports schedules, except it has confirmed that no intercollegiate sports activity would begin until at least January 1, 2021. Ivy League Executive Director Robin Harris stated that even though a decision on potentially moving fall sports to the spring has not been made, “there won’t be basketball games or hockey games or other sports in the fall.” This delayed start date would essentially eliminate the non-conference schedule for all Ivy League men’s and women’s basketball programs even if health and safety concerns regarding COVID-19 are reduced and the sports programs are able to resume.

The league’s announcement of the fall sports cancellation follows its controversial decision on March 10th to become the first NCAA conference to cancel its men’s and women’s basketball tournaments. Despite broad criticism for overreacting from multiple professional leagues and other college conferences for its preemptive decision, within days

the Ivy League and its Executive Director Harris were lauded for her decision to exercise extreme caution to protect the league’s student-athletes from COVID-19.

Approximately two days after the Ivy League’s decision all professional sports leagues were shut down following the COVID-19 diagnosis of NBA player Rudy Gobert and the NCAA was forced to cancel the men’s and women’s NCAA tournaments.

The decision to cancel fall sports followed weeks of discussion in an effort to make a potential schedule of competition work for all of the Ivy League schools and their student-athletes.. Following Harvard, Yale and Princeton’s decision to limit the number of undergraduate students on campus for the fall semester, it made the opportunity to continue this fall’s athletic schedules more impractical. Princeton President Christopher Eisgruber commented that

“athletics is part of the broader educational mission and not treated differently from the rest of the academic enterprise. Our athletes are first and foremost students.”

Executive Director Harris added that the league had considered numerous options to try and make athletic competition work, but school restrictions and state rules on the size of gathering prevailed, resulting in this “sad decision.”

While this announcement may not be followed by similar announcements from larger Power 5 football conferences, other mid-major conferences may follow the Ivy League’s lead as the Coronavirus continues to spike across the country.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the COVID-19 pandemic and its impact on collegiate and professional sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Senators Plan to Introduce Federal Legislation to Eliminate Use of COVID-19 Student-Athlete Liability Waivers

By Gregg E. Clifton and Andrew M. Gaggin on

Connecticut Senator Richard Blumenthal and New Jersey Senator Cory Booker plan to formally introduce legislation, the “College Athlete Pandemic Safety Act,” to eliminate the ability of colleges and universities to use liability waivers as a basis for student-athletes to return to campus and resume training activities.

Reacting to the growing number of schools, including Ohio State, SMU, Indiana, and Iowa, requiring student-athletes to sign liability waivers or “pledges,” the Senators have expressed concern that student-athletes are being asked to waive their legal rights in order to avoid being barred from practice and training facilities without the benefit of legal counsel. Senator Blumenthal summed up the proposed legislation, stating that

student-athlete’s health and safety is a “non-negotiable priority”

and that “forcing college athletes to sign away their rights … in the middle of a pandemic is just the latest in a litany of unacceptable actions schools have taken to exploit these young people.”

A proposed draft of the legislation includes the following stipulations:

  • A college or university cannot allow an individual to agree to a waiver of liability regarding COVID-19.
  • A college or university may not cancel a scholarship or financial aid for a student-athlete who refuses to participate because of concerns regarding COVID-19.
  • A college or university must inform all student-athletes at the school when an athlete or staff member tests positive for COVID-19. The person who tests positive will not be identified.
  • The Centers for Disease Control and Prevention will  be asked to develop specific health and safety guidelines related to COVID-19 for student-athletes.
  • The college or university will make sure the athletic department adheres to all COVID-19 health and safety guidelines.

Reaction and criticism of the NCAA regarding its lack of a uniform health and safety policy has been swift. Nevada Senator Jacky Rosen criticized the NCAA for publishing guidelines relating to the restarting of college sports but leaving “it up to individual schools to decide how to implement health and safety policies.” Senator Rosen also commented during Senate committee hearings that the lack of a uniformed NCAA response could result in 1,100 NCAA member schools reacting differently, which could result in wide-ranging and inconsistent protocols for testing, social distancing, and the quarantining of athletes.

NCAA Board of Governors Chairman Michael Drake responded to the criticism of the NCAA by asserting that he supports universal coronavirus guidelines and that “this is under discussion actively on a daily basis.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the development and implementation of this proposed federal legislation and the student athlete waiver issue. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Universities and Professional Sports Franchises Face Potential Of Unintended Legal Exposure For Well-Intentioned Employment Decisions

By Gregg E. Clifton and Andrew M. Gaggin on

Despite the ongoing changes to the workplace in response to the COVID-19 pandemic, one thing remains unchanged: federal EEO laws and their role in the workplace.

As colleges and universities and professional sports organizations make plans for the resumption of play in the next couple of months, university presidents and league officials must address their athletes’ ongoing safety concerns as they return to training environments in anticipation of resuming play. The need to protect the health and safety of current coaching and administrative staff members who may be older is another challenge. They may be at an even higher risk for a severe case of COVID-19 because of their age or underlying health conditions.

The perceived need to protect this group of potentially vulnerable employees has raised many questions. One question is how to balance protecting high-risk individuals – especially older workers – while respecting their individual rights under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).

Attempts to protect older employees may actually expose employers to charges of discrimination and lawsuits.

The Centers for Disease Control and Prevention (CDC) has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus. Therefore, the CDC has encouraged employers to offer maximum flexibilities to this group. These employees retain their protections under the federal employment discrimination laws even during the COVID-19 pandemic. For academic institutions and their athletic departments and professional franchises, this means an extra step when considering policies specifically designed to protect older employees, including coaches and support staff.

The Equal Employment Opportunity Commission (EEOC) has asserted that employers should not enact policies or procedures that disfavor older employees, even one intended to protect older employees from COVID-19.

In its Frequently Asked Questions series, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, the EEOC warned that, under the ADEA, a covered employer cannot exclude an individual from the workplace based on being 65 or older, even if the employer acted for benevolent reasons, such as protecting the employee due to higher risk of severe illness from COVID-19. Forcing employees age 65 and older to stay home while allowing other, younger employees to return to work violates the ADEA. Instead, the EEOC suggests that employers apply restrictive precautionary measures uniformly to all employees. Employers should not single out older employees to work from home, work in a separate area of the office or facility, take breaks at different times, undergo extra screening or testing, or any other COVID-19-related precautions not required of all employees.

However, employers may provide additional flexibility to workers age 65 and older. The ADEA does not prohibit treating higher-risk individuals more favorably, even if it results in younger workers (including workers ages 40-64 otherwise protected by the ADEA) being treated less favorably based on age in comparison. For example, providing employees age 65 and older the choice to work remotely would not violate the ADEA, even if the same choice is not offered to younger employees.

Professional sports leagues are already attempting to deal with this challenge. For example, NBA Commissioner Adam Silver suggested that older coaches would not be forced to stay home but may not be able to sit with their teams on the sidelines during games. Such a policy likely would violate EEOC guidance and prevent some high-profile coaches (including the San Antonio Spurs’ Gregg Popovich, 71, and the Houston Rockets’ Mike D’Antoni, 69) from coaching their players up close.

However, several NBA coaches (including New Orleans Pelicans coach Alvin Gentry, 65, and Dallas Mavericks coach and president of the NBA Coaches Association Rick Carlisle, 60) were critical of Silver’s suggestion. Gentry, for example, told ESPN he does not think older coaches should be “singled out,” and Carlisle noted it is possible for an older NBA coach to be healthier than a younger coach, and “the conversation should never be solely about a person’s age.” Their reactions, and the EEOC’s new guidance, illustrate how complicated these policy decisions can be for employers, especially when dealing with athletes and competitors at any age.

While the push to resume sporting events during an ongoing pandemic is understandable (including the significant financial considerations and returning to some normalcy for athletes, coaches, and fans), employers should avoid using age or other protected characteristics as considerations when returning coaches, staff, and other employees to work, as even the intent to protect older employees can inadvertently result in violations of the ADEA.

Jackson Lewis’ Collegiate and Professional Sports Practice Group is available to provide guidance with regard to these challenging legal issues. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

 

 

 

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