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.

 

 

 

 

Florida Senator Rubio Introduces Federal Name, Image, and Likeness Legislation

By Gregg E. Clifton on

Although Florida Governor Ron DeSantis has just signed into law Florida’s state name, image and likeness legislation, Florida U.S. Senator Marco Rubio has introduced proposed federal legislation to address concerns regarding the ever increasing number of states introducing legislation addressing the name, image and likeness rights for student-athletes within their states. Sen. Rubio’s proposed legislation,

The Fairness In Collegiate Athletics Act, would require the National Collegiate Athletic Association (NCAA) to implement rules that will allow student athletes to be compensated for their name, image, and likeness (NIL) by June 30, 2021, one day before the effective date of the Florida state law.

The bill would also provide a protective legal shield to prevent the NCAA from being challenged in court as long as the association changes its rules to allow athletes to earn money for endorsement deals and personal appearances.

The Fairness in Collegiate Athletics Act would:

  1. Require the NCAA to implement rules for student athletes to be compensated for their NIL by third parties by June 30, 2021. The NCAA must set forth, processes that, at a minimum:
  • Allow student athletes to obtain professional representation in matters related to NIL, subject to protections under the Sports Agent Responsibility and Trust Act;
  • Require student disclosure, at the time of agreement and payment, to both their university and the NCAA in a clear, uniform way;
  • Preserves amateur status;
  • Ensures appropriate recruitment of prospective student athletes;
  • Prevent  “Boosters” from recruiting or retaining students.
  1. Authorize Federal Trade Commission enforcement under unfair or deceptive practices statutes.
  2. Provide safe harbor for implementing policies set forth.
  3. Provide preemption of state laws based on NIL.

Under the bill, the NCAA would have the latitude to make rules “as are deemed necessary” to:

  • preserve the amateur status of student athletes
  • ensure appropriate recruitment of prospective student athlete
  • prevent illegitimate activity with respect to any third party seeking to recruit or retain student athletes … including any third party” that has “a prior or existing association, either formally or informally” with a school or that has “a prior or existing financial involvement with respect to” college sports.

To provide the shield to protect the NCAA and schools from lawsuits, the bill says “no cause of action shall lie or be maintained in any court” against the NCAA or university member of the NCAA for adopting and enforcing rules under the proposed legislation.

Commenting on the bill, Sen. Rubio, stated,

As states continue to pass laws determining how college athletes can be compensated for their name, image, and likeness, it is clear that a patchwork of 50 state laws would be devastating to college sports. The Fairness in Collegiate Athletics Act is an effort to ensure the NCAA implements policies for NIL and even the playing field.”

The legislation has received initial support from several conferences including the Atlantic Coast Conference (ACC) and the Southeastern Conference (SEC). Big 12 Commissioner Bob Bowlsby commented, “…we are committed to working with policymakers to craft a system that permits student-athletes to profit from their name, image and likeness while also maintaining our uniquely American, education-based collegiate athletics model.”

Despite its supporters, the proposed legislation was criticized by Ramogi Huma, executive director of the National College Players Association, who stated, “Senator Rubio’s bill undermines the rights and protections guaranteed to Florida athletes that the Florida state legislature and governor adopted as law just days ago. It undermines economic freedom, states’ rights, and gives the NCAA immunity for illegal activities. We encourage him to change course on this issue,”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the development and implementation of this proposed federal legislation and the proposed NCAA’s changes to name, image, and likeness rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Ohio State University Requires COVID-19 Risk Waiver Execution Before Allowing Return to Voluntary Workouts

By Gregg E. Clifton on

The ongoing COVID-19 pandemic is requiring athletic departments at all NCAA levels to plan for their fall 2020 athletic schedules while taking all necessary steps to keep their athletes safe. In addition to requiring its returning football players to submit to a COVID-19 test, Ohio State University has asked all the players on their football roster, and their parents, to execute an acknowledgment of risk waiver regarding the COVID-19 pandemic before being allowed to return to campus for voluntary summer workouts.

The “Buckeye Pledge” document specifically requests that players take personal responsibility for their own health and “help stop the spread of COVID-19.” It asks players to acknowledge and accept, “I may be exposed to COVID-19 and other infections.”

The two-page pledge, which every Buckeye football player has signed, requires players to agree to testing and potential self-quarantining, monitoring for coronavirus symptoms, including reporting a fever of 100.4 or higher, reporting any potential exposure in a timely manner, and practicing and following Centers for Disease Control and Prevention (CDC) guidelines, including the wearing of masks and practicing social distancing.

Although failure to comply with the agreed upon terms in the Buckeye Pledge will not affect any individual student-athlete’s scholarship, it may lead to “the immediate removal of athletic participation privileges” and the potential loss of access and use of athletic facilities for the athlete.

Ohio State Athletic Director Gene Smith explained that the Buckeye Pledge allows coaches, trainers, strength coaches, and athletic administrators to remind student-athletes of the commitment that each of them and their parents has made to the University and their teammates if they are observed not wearing a mask or utilizing proper social distancing.

Although Smith explained that the University “does not view the pledge as a legal document,” the Buckeye Pledge contains specific waiver language.

It reinforces that athletes and their parents:

“understand COVID-19 is a highly contagious virus and it is possible to develop and contract the COVID-19 disease, even if I follow all of the safety precautions above and those recommended by the CDC, local health department, and others. I understand that although the university is following the coronavirus guidelines issued by the CDC and other experts to reduce the spread of infection, I can never be completely shielded from all risk of illness caused by COVID-19 or other infections.”

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

Administration Offers Exemption from Restrictions on Entry to Foreign Professional Athletes

By Amy L. Peck and Gregg E. Clifton on

To support the Trump Administration’s COVID-19 reopening policies, Chad F. Wolf, the Acting Secretary of Homeland Security, signed an order exempting some foreign professional athletes (and their staff and dependents) who compete in certain leagues, from the COVID-19 travel restrictions that are in place for 30 countries: China, Iran, Ireland, the U.K, and the 26 Schengen Zone countries.

Please find the rest of this article on our Immigration Blog.

Women’s National Team Misses Goal in Equal Pay Act Claims

By Patrick L. Egan on

A federal judge has dismissed the Equal Pay Act (EPA) claims filed by 28 members of the U.S. Senior Women’s National Soccer Team (WNT) against the United States Soccer Federation (USSF),

finding the WNT players were actually paid more than their males counterparts on the Men’s National Team (MNT)

and the pay differences of which they complained were a result of the application of the collective bargaining agreement (CBA) between the U.S. Women’s National Soccer Team Players Association (WNTPA) and the USSF. Alex Morgan et al. v. United States Soccer Federation, Inc., No. 2:19-cv-01717-RGK-AGE (C.D. Cal. May 1, 2020).

The court granted the USSF’s motion for summary judgment on the EPA claims, by far the most important part of the lawsuit in which the players sought $67 million in back pay and compensation, but allowed the WNT’s claims of alleged sex discrimination in violation of Title VII of the Civil Rights Act related to charter flights, travel conditions, and support services to continue.

The WNT players alleged that during the class certification period (Feb. 2015 through Nov. 2019), the USSF discriminated against them in terms of compensation and working conditions due to their sex in violation of the EPA. The EPA prohibits such wage discrimination:

for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.

The WNT players must prove that, as compared to the MNT players, they (1) perform substantially equal work, (2) under similar working conditions, and (3) are paid less. If the WNT players did this, the USSF would need to prove the difference in wages (“wages” is interpreted broadly to include all remuneration for employment) is the result of one of the four factors listed above. The court did not get that far.

The court’s analysis began with the third factor, whether the MNT players were paid more than the WNT players during the 2015-19 comparative period (“the class period”). The court noted the USSF has a separate CBA with the players’ representative of each team. The MNT CBA has a “pay for pay” arrangement; meaning, players are not paid unless they are invited to a training camp or play in a game. The WNT CBA includes lower per game bonuses compared to those in the MNT CBA, but that CBA includes guaranteed salaries and minimum number of players under contract, various insurances, severance pay, and child care assistance.

The WNT player’s core allegation was that the bonus amounts available to them were less than the bonuses available to MNT players for identical events, such as winning a “friendly” (an exhibition or non-competitive game) against a national team with a certain international rank. The USSF countered that during the 2015-19 class period, the total compensation of WNT players was higher than that of MNT players on both a per game and cumulative basis. The record showed that during the class period, (1) the WNT averaged compensation of $220,747 per game, compared to $212,639 for the MNT; (2) the WNT players was paid $24.5 million cumulatively over the class period, while the MNT players received $18.5 million; and (3) the four highest paid WNT players averaged more pay per game than the four highest paid MNT players. The court acknowledged that the bonus amounts available to WNT players were lower than those paid to MNT players for the same type of game (a friendly, World Cup, and the like), but that the WNTPA bargained for those lower bonus amounts in a CBA that also included salary and roster guarantees that are not included in the MNT CBA. The court decided it would be wrong to find an EPA violation based on just one element of a compensation package, when the EPA definition of wages is broad. Rather, total compensation, including all of the economic provisions in the CBA, must be compared.

The WNT players also argued that they would have been paid more than the MNT players had the MNT CBA, including its higher bonus provisions, applied to them. The court rejected the argument, noting the CBAs for the WNT and the MNT contain different provisions that reflected the different priorities each had during contract negotiations. The court stated that the different benefits in the WNT CBA have distinct economic value, even if that value cannot be quantified exactly to yield a neat, apples- to-apples comparison of the compensation the two CBAs yielded. The judge also noted that during the negotiations leading to the WNT CBA, the USSF offered the WNTPA the same pay-for-play structure in the MNT CBA and the union rejected the proposal. Consequently, the judge decided the WNT players could not now argue the CBA to which its union could have agreed is better than the one to which the WNTPA did agree.

The WNT players have said they will appeal the judge’s decision, and the portion of the lawsuit that alleges Title VII claims will continue, with trial scheduled for June 16.

Perhaps signaling a settlement is possible on the Title VII claims (particularly if an appeal of the EPA claim is unsuccessful), the USSF was conciliatory after the decision, stating “[W]e are committed to continuing [to] work to ensure our Women’s National Team remains the best in the world and sets the standard for women’s soccer.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor any developments regarding this matter and the potential appeal of this decision by the WNT. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

NCAA Announces Response to Expanding State Name, Image, and Likeness Legislation with Proposed Changes to Bylaws

By Nicholas A. Plinio and Gregg E. Clifton on

Following the cancelation of the winter sports championships and the calendar of spring athletic events due to the COVID-19 pandemic, the NCAA is hoping to reset for the 2020-2021 academic year with a full slate of college football and other fall sports in September. While the NCAA and its members have been focused on student-athlete issues arising from the impact of pandemic, the NCAA has continued to address the issue of student-athlete name, image, and likeness issues—a topic at the forefront of conversation before the pandemic. In October, the NCAA Board of Governors approved a policy “permit[ting] students participating in athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model.” During virtual meetings this week, the NCAA Board of Governors approved significant changes to the current NCAA Bylaws, allowing student-athletes’ ability to now profit from use of their name, image, and likeness.

Brief History of Name, Image, and Likeness Developments

In September, California passed SB 206, the first law to allow college student-athletes to market and profit from their name, image and likeness without affecting their student-athlete status with an effective date of July 1, 2023. Numerous other states followed by introducing similar bills, including New Jersey, New York, and Virginia. While Colorado is the most recent state to enact formal legislation with an effective date of January 1, 2023, Florida’s name, image and likeness rights for student-athletes will begin on July 1, 2021 following Governor DeSantis’ anticipated signature.

The National Football League Players Association (NFLPA) also became involved, partnering with the National College Players Association (NCPA) to support efforts to develop marketing and licensing for college athletes. Thereafter, the NCAA approved the policy permitting college athletes to benefit from use of their name, image, and likeness. The underlying goal of the NCAA’s policy was to limit the legislative issues generated by state-by-state rules regarding name, image and likeness rights. At the time, the NCAA indicated that further regulations and changes to its Bylaws would be forthcoming. To that end, the NCAA developed an internal Federal and State Legislation Working Group (FSLWG), tasked with gathering data and exploring solutions to name, image, and likeness issues.

On April 29, 2020, the FSLWG presented a long anticipated, comprehensive 31 page report to the NCAA Board of Governors proposing significant changes to the NCAA Bylaws regarding name, image, and likeness.

These changes—which range from general guidance to rules aimed at specific scenarios—allow student-athletes to use their name, image, and likeness to profit in a variety of way both related and unrelated to athletics. After approving the FSLWG’s recommendations, the NCAA Board of Governors directed all NCAA divisions to consider appropriate rules changes based on additional recommendations from the FSLWG. The divisions are expected to adopt new name, image and likeness rules by January to take effect at the start of the 2021-22 academic year.

Potential Changes to Student-Athlete Activities, Including Advertising and Promotion

The proposed recommendations revise the NCAA’s name, image, and likeness rules to permit a student-athlete to benefit in several areas with regard to personal business actions. For example,

  • Fees for lessons as well as the right to use their name, image and likeness to run their camps and clinics.
  • The use of their name, image and likeness to promote a personal athletic or non-athletic related business.
  • Social Media content creation and distribution.
  • Permit student-athletes to be paid for the sale of their autograph.
  • Permit student-athletes to develop and model athletic and non-athletic clothing apparel.
  • Allow a student-athlete to use and be compensated for use of their name, image or likeness to promote commercial products and services. The student-athlete would not be allowed to use their school’s institutional marks or apparel.
  • Permit student-athletes to be compensated for personal appearances, including those at commercial locations and/or charitable, educational or nonprofit agencies. The student-athlete would not be permitted to use their school’s institutional marks or wear university apparel in such appearances.

However, these areas of potential expansion of student-athlete rights would contain overriding limitations which will restrict the ability of member institutions to be involved in these student-athletes business activities, prohibit the use of university marks, including uniforms, in any student business activity, and restrict the university from arranging the commercial opportunity or purchasing the student-athlete’s product or service.

Limitations Tied to Expanded Name, Image and Likeness Rights

Despite these expanded rights, the current recommendation still allows the NCAA and each university the right prohibit a student-athlete from engaging in name, image and likeness activities involving a commercial product or service that conflicts with NCAA legislation, for example sports wagering and banned substances. In addition, an institution would have the discretion to prohibit a student-athlete’s involvement in particular name, image and likeness activities, as defined by the institution (e.g., areas that conflict with institutional values or conflict with institutional arrangements).

The recommended NIL changes would also require a student-athlete to disclose information to the university’s athletics department related to the use of his or her name, image or likeness, including compensation arrangements and details of relationships with an involved individual, commercial entity and any third parties.

The proposal would also guarantee student-athlete representation to pursue these specific opportunities by amending the definition of an agent to permit a student-athlete to receive advice, assistance in contract negotiations and marketing of his or her athletics ability for purposes of name, image and likeness activities, provided the professional service provider does not market the student-athlete’s athletics reputation for professional sports opportunities.

 The FSLWG is continuing to develop parameters for the name, image, and likeness rule changes and will likely issue further guidance as the NCAA holds Division I conferences and counsel meetings again in June. The NCAA still opposes compensating student-athletes outright for participation in college sports (“pay-for-play”). Thus, any additional recommendations will likely involve safeguards to avoid undermining this position.

 Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the development and implementation of the NCAA’s changes to name, image, and likeness rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

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