U.S. Women’s National Soccer Team Settles Some Claims in Equal Pay Lawsuit

Players on the U.S. Women’s National Soccer team have settled some of the claims the group made in its Equal Pay Act lawsuit against U.S. Soccer Federation, the national governing body for the sport. The settlement resolves issues related to working conditions that are alleged to be less favorable than those made available or provided to members of the men’s national team.

The settlement does not address the overarching allegations of pay discrimination and unequal pay due to sex, claims that were dismissed in May 2020 by a federal district court judge and which will soon be appealed by the plaintiffs to 9th Circuit Court of Appeals. (The court, in effect, stayed the trial and appeal process due to the COVID-19 pandemic.) The women’s players had sought up to $67 million in alleged back pay.

The settlement resolves issues related to travel and hotel accommodations, playing conditions, and support services. U.S. Soccer and the USWNT Players Association intend to incorporate these changes into their collective bargaining agreement.

The players will play in “top-tier” stadiums and on grass “in nearly all circumstances.” The plaintiffs have argued that poorer playing conditions increase the risk of significant and potentially career-threatening injuries. A team of dedicated physicians, as well as nearly two dozen “operational and technical support service professionals.” will now be assigned to the women’s team pursuant to the terms of the settlement.

U.S. Soccer will also provide the women’s team an equal number of charter flights and a travel budget comparable to that of the men’s team and will assure the players stay in “top-quality hotels.”

The crux of the players’ claims is that the men’s national team players are paid more money than the women’s national team players. Both the men and the women players are paid in accordance with the collective bargaining agreements their respective unions negotiated with U.S. Soccer. The men are paid on a pay-for-play basis, factoring in appearances and performance, with no guaranteed player income. The women’s contract includes guaranteed salaries and other benefits, such as child care and severance.

U.S. Soccer has said it offered the USWNT Players Association a contract similar to that of the men’s, but the union has rejected the offer.

However, the pool of money that would be available to the women’s team – using the same formula as in the men’s contract – would yield lower pay to the women players compared with the men because the men’s revenue pool is filled with distributable funds derived from the men’s FIFA World Cup, which dwarfs the funds provided by the women’s World Cup.

That the union agreed to different compensation terms than the men was the principle reason the lawsuit was dismissed. The Equal Pay Act prohibits men and women from being paid differently “on the basis of sex” with exceptions that include “a differential based on any other factor other than sex.” The women’s collective bargaining agreement can be such a differential.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor and report on the status of this case and the 9th Circuit appeal during the weeks and months ahead. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

National Association of Basketball Coaches Advocates Playing of ‘Black National Anthem’ With ‘Star Spangled Banner’

The National Association of Basketball Coaches (NABC), the national organization of men’s basketball coaches, and its Committee on Racial Reconciliation has forwarded a letter to all of its member coaches encouraging basketball programs to play both “The Star Spangled Banner” and “Lift Every Voice and Sing” prior to games this season.

Craig Robinson, NABC Executive Director, acknowledged “the unique ability of sports to unite and bring us together in ways few other cultural phenomena can.” Robinson stressed that“Lift Every Voice and Sing” has served as an anthem for Black communities for over a century and that the song’s lyrics recognize the nation’s troubled history of race relations and celebrate hopes for a brighter race relations future.

His communication acknowledged the song is recognized as

one of the most cherished of the African American civil rights movement and is often referred to as the Black national anthem.

The letter contained an attachment, referred to as a “handbook,” with a specific explanation of the historical importance of the song and specific suggestions and guidance as to how the song should be presented and integrated as a complement to “The Star Spangled Banner” during pregame activities.

The handbook explained that “Lift Every Voice and Sing” is not being suggested as a replacement to the traditional national anthem but rather to accompany and to be played alongside it.

The handbook explains, “When played alongside the anthem, ‘Lift Every Voice and Sing’ delivers a powerful, unifying message that together acknowledges America’s struggle with equality, celebrates progress, and lays a vision for the future.”

The handbook outlines suggested protocol for integration of “Lift Every Voice and Sing” into pregame protocol for participating student-athletes and coaches, as well as for game officials, and suggested language for a public address announcement.

Robinson concluded his letter with his “hope” that all games played across the country during the upcoming season, from Division I level contests to small town high schools, will adopt the suggested protocol and “powerfully reinforce sports’ unifying message.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the NABC recommendation and its potential acceptance by college conferences and individual schools during the upcoming basketball season. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

 

NCAA Announces “March Madness” Modifications To Address COVID-19 Impact

As the NCAA Men’s Basketball 2020-2021 regular season schedule is about to begin in the midst of escalating coronavirus pandemic spikes and increasing hospitalizations around the country, the NCAA Division I Men’s Basketball Committee announced today the relocation of 13 predetermined preliminary round sites for the 2021 Division I Men’s Basketball Championship to one geographic area. The NCAA Division I Women’s Basketball Committee has also stated that they currently are considering their tournament options, with the potential relocation of that tournament to one site as well.

Seeking to create the most effective way to plan for its March Madness tournament to determine the 2021 National Champion, the NCAA’s Committee concluded that the conducting of the preliminary rounds of the championship at 13 different locations throughout the United States would be extremely difficult to safely conduct as the COVID-19 pandemic continues to surge. Despite cities like Boise, Dallas, Lexington and San Jose already scheduled to host first and second round games from March 18th through the 21st and Denver, Minneapolis, Brooklyn an Memphis on tap to host the Regional contests from March 25th through the 28th, the Committee concluded that all of the games in the championship should be held in a single geographic area to enhance the safe operation for all of the student-athlete participants. Mitch Barnhart, chair of the Division I Men’s Basketball Committee and University of Kentucky athletics director, commented on the decision,

My committee colleagues and I did not come lightly to the difficult decision to relocate the preliminary rounds of the 2021 tournament, as we understand the disappointment 13 communities will feel to miss out on being part of March Madness.

The NCAA announced that since Indianapolis was already slated to host the Men’s Final Four from April 3 through the 5th, it has already begun preliminary talks with the State of Indiana and the city of Indianapolis to host the entire 68 team tournament in multiple venues in and around the metropolitan area during the same previously scheduled dates for the event.

The Committee emphasized the importance of holding the championship in a “manageable geographic area” in order to limit travel and provide a safe competition environment which has the ability to provide adequate practice venues, medical resources and hotel accommodations for all teams and officials within close proximity to one another.

“We have learned so much from monitoring other successful sporting events in the last several months, and it became clear it’s not feasible to manage this complex championship in so many different states with the challenges presented by the pandemic,” said Dan Gavitt, NCAA Senior Vice President of Basketball. “However, we are developing a solid plan to present a safe, responsible and fantastic March Madness tournament unlike any other we’ve experienced.”

In a public statement on behalf of the NCAA, NCAA President concluded, “The Board of Governors and my top priorities are to protect the health and well-being of college athletes while also maintaining their opportunity to compete at the highest level. These principles have guided the decision-making process as we continue to assess how to have a fair and safe championship experience.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to 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.

 

Ivy League Announces Cancellation of Winter Sports In Continued Commitment to Student-Athlete Safety

Once again, the Ivy League has sent a loud and clear COVID-19 message to the collegiate sports community. After initially delaying the start of the winter sports schedule until January 2021, the Ivy League Counsel of Presidents has voted unanimously to cancel all intercollegiate sports until at least March, becoming the first Division I conference to officially suspend its winter sports schedule in the midst of escalating coronavirus pandemic spikes and increasing hospitalizations in the Northeast and around the country.

In addition, to the postponement of all sports until at least March 1st,  the conference also announced that it will no longer hold in abeyance its previous delay in deciding to allow fall sports to play in the spring by formally canceling fall sports competition during the 2021 spring semester.

The Ivy League announcement regarding winter sports follows its ongoing precautionary pattern of having been the first conference in the country to act in response to the pandemic by canceling its men’s and women’s conference basketball tournaments last March and its fall sports schedule in early July.

Despite broad criticism for overreacting from multiple professional leagues and other college conferences for its preemptive decision in March, within days the Ivy League and its Executive Director Harris were ultimately lauded for their decision to exercise extreme caution to protect their student-athletes. 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 basketball tournaments.

In response to the announcement of the cancellation of the league’s winter sports schedule,

Executive Director Harris commented, “We are heartbroken to be here again. This is definitely not a decision we want to make, but I know it’s the right decision for the Ivy League.”

Harris acknowledged that Ivy League coaches and athletic directors offered various options for conducting a season, including the elimination of overnight road trips and modification to travel meals. Unfortunately, the proposed alternatives were not deemed to be sufficient to diminish to potential risk of COVID-19 exposure to the athletes.

The Ivy Council of Presidents concluded that the risk of transmission of the virus far exceeded the goal of for the Ivy League athletes to compete. In a prepared statement, the Ivy Council of Presidents acknowledged the sacrifice of the League’s student-athletes, their families and coaches for public health purposes and stated, “While these decisions come with great disappointment and frustration, our commitment to the safety and lasting health of our student-athletes and wider communities must remain our highest priority.”

The league also announced that training opportunities and practices for enrolled student-athletes will be permitted, provided they are structured in accordance with each institution’s procedures and applicable state and local regulations. This approach is consistent with the plan implemented by the Ivy League for all sports in the fall 2020 term.

While this announcement may not be followed by similar announcements from other basketball dominant conferences, it will be interesting to see if other conferences once again 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 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.

 

 

 

 

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

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

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

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


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

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 CompensationThe 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

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.

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