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

By Patrick L. Egan on May 5, 2020

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 May 1, 2020

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.

UPDATE: NCAA Rejects Blanket Waiver of Minimum Sports Requirement in Midst of COVID-19

By Gregg E. Clifton on April 27, 2020

The NCAA Division I Council has rejected the efforts of the leaders of five Division I Conferences (the American Athletic, Mountain West, Mid-American, Sun Belt, and Conference USA conferences) who collectively had asked the NCAA for a blanket waiver on behalf of 27 of the 32 NCAA Division I conferences to eliminate its current requirement that a university sponsor a minimum of 16 intercollegiate varsity sports to remain a member of the Football Bowl Subdivision. However, despite the rejection of the waiver request, the NCAA Division I Council Coordination Committee and the Division I Council have agreed continue to review the request and its specific components during their May meetings.

In an effort to have the challenges that universities face during the current COVID-19 environment, the commissioners’ letter pointed out that the “financial challenges being faced include significant decreases in state appropriations, substantial losses in endowment valuation, and a downturn in philanthropic activity.”

The blanket waivers of current NCAA legislation sought to allow each Division I conference and institution autonomy and flexibility to determine any necessary financial adjustments unique to their individual needs.

Division I Council chairwoman Grace Calhoun, the athletic director at the University of Pennsylvania commented with regard to the Council’s rejection of the blanket waiver as follows, “Higher education is facing unique challenges, and the Division I leadership believes it’s appropriate to examine areas in which rules can be relaxed or amended to provide flexibility for schools and conferences,” She continued, “We will prioritize student-athlete well-being and opportunities balanced with reducing costs associated with administering college sports,

but a blanket waiver of sport sponsorship requirements is not in keeping with our values and will not be considered.

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.

Lost Revenue from COVID-19 Crisis Prompts Colleges, Universities to Urge NCAA Waiver

By Gregg E. Clifton on April 17, 2020

Even as some states claim the immediate effect of the COVID-19 pandemic is starting to plateau, the potential financial impact of the pandemic on college athletics is just starting to emerge.

As college and universities assess potential budget shortfalls as a result of the $375-million loss of their portion of revenue distribution following the cancellation of the men’s and women’s basketball national championship tournaments and the elimination of all NCAA spring sports competitions, university presidents and athletic directors are being forced to analyze operating budgets, seek solutions, and make hard decisions regarding their sports programs for the 2020-21 academic year.

In a joint letter submitted to NCAA President Mark Emmert, the commissioners of five Division I conferences, asked the NCAA to waive certain NCAA requirements and provide waivers from compliance for a four-year period. The leaders of the American Athletic, Mountain West, Mid-American, Sun Belt, and Conference USA conferences have collectively asked the NCAA to eliminate its current requirement that a university sponsor a minimum of 16 intercollegiate varsity sports to remain a member of the Football Bowl Subdivision. The group of five commissioners also seeks to change current mandates that require schools to:

Offer a minimum number of athletic scholarships per year
Average at least 15,000 in attendance for home football games
Play a minimum number of total and home games in sports such as football, basketball and baseball

Acknowledging the challenges that universities face during the current COVID-19 environment, the commissioners’ letter pointed out that the

“financial challenges being faced include significant decreases in state appropriations, substantial losses in endowment valuation, and a downturn in philanthropic activity.”

Mountain West Commissioner Craig Thompson stated, “Other conferences are engaged in the same process and this collaborative request from the Group of Five is intended as the sort of creative alternative these unprecedented times demand. The waivers of NCAA legislation would create a permissive environment, allowing each institution and conference across the Division I landscape the necessary flexibility to determine how best to proceed in making financial adjustments which are intended to preserve sports and opportunities for student-athletes.”

The letter from the five conference leaders indicates that schools are assessing the potential for additional revenue loss from the delay or cancellation of part or all of the 2020 college football as that is becoming more realistic with each passing day.

The potential loss of football-related revenue could eliminate revenue currently utilized to balance costs for non-revenue generating sports on a temporary basis.

This reality has already been felt. The University of Cincinnati has announced the elimination of its men’s soccer program and Old Dominion has confirmed that its wrestling program is being eliminated.

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.

#UnitedAsOne Campaign: NCAA and Its Member Schools Create Resource for COVID-19 Information, Updates

By Bernard G. Dennis III and Gregg E. Clifton on April 3, 2020

Out of the uncertainty and chaos of the cancellation of the NCAA Winter championships and Spring seasons caused by the coronavirus (COVID-19) pandemic, digital and social media leaders at a small group of 50 schools came together to launch the #UnitedAsOne campaign to show unity and support for all student-athletes in college sports.

In less than two weeks,

more than 1,1000 member institutions across all three NCAA divisions have joined the campaign using social media hashtags and postings.

Individual athletic departments have also used the campaign to promote the importance of social distancing on campus and to thank first responders.

The campaign was used as a rallying point in a March 29 open letter to student-athletes from NCAA Student-Athlete Advisory Committee leaders in advance of the NCAA Division I Council vote on additional eligibility for student-athletes impacted by COVID-19. On March 30, the NCAA Division I Council voted to allow additional eligibility to spring athletes who had their 2020 canceled.

The NCAA now has a #UnitedAsOne webpage, providing links to COVID-19 resources and the latest NCAA updates.

These resources include need-to-know information for member institutions, NCAA COVID-19 FAQs, information about the NCAA COVID-19 Advisory Panel and its recommendations, mental health resources, and healthy tips for athletes, athletics personnel, and fans. The site also provides links to additional COVID-19 information and travel guidance from the Centers for Disease Control and Prevention (CDC).

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.

NBA May Reduce Players’ Salaries Due to COVID-19 Shutdown

By Nicholas A. Plinio and Gregg E. Clifton on April 2, 2020

On March 11, 2020, the National Basketball Association (NBA) suspended its season due to the coronavirus (COVID-19) pandemic. Now, the League is considering reducing or withholding players’ salaries after the April 1, 2020, payday.

The NBA originally hoped to resume its season at some point in June, possibly without fans in attendance. However, as COVID-19 cases escalate in cities across the country, it is unclear whether resumption of the season is viable. The NBA is preparing for the more likely scenario that the 2020 season will be canceled. As the financial impact of the shutdown to the NBA and its member teams increases with each day, NBA officials have begun to look for other ways to stabilize the League financially.

If the season is canceled, the NBA is entitled to reduce players’ salaries under Article XXXIX of the collective bargaining agreement (CBA) between the NBA and the NBA Players Association (NBPA).

Article XXXIX’s “Force Majeure” clause permits reducing players’ salaries by 1/92.6 per canceled game because of events that make it impossible for the League to perform it obligations under the CBA.

Such events include:

wars or war-like action (whether actual or threatened and whether conventional or other, including, but not limited to, chemical or biological wars or war-like action); sabotage, terrorism or threats of sabotage or terrorism; explosions; epidemics; weather or natural disasters, including, but not limited to, fires, floods, droughts, hurricanes, tornadoes, storms or earthquakes; and any governmental order or action (civil or military); provided, however, that none of the foregoing enumerated events or conditions is within the reasonable control of the NBA or an NBA Team.

The COVID-19 pandemic likely would meet the definition of a Force Majeure event under the CBA. Thus, cancellation of the 2020 season would automatically invoke Article XXXIX.

An official decision has yet to be made. However, if players continue to receive their full salaries and games are eventually canceled, the CBA provides that the players would have to pay back the money they received. In order to avoid this scenario,

the League and the NBPA are attempting to reach an agreement and are negotiating the possibility of holding 25 percent of players’ remaining salaries for this season in an escrow account.

Other leagues have already agreed to reduced compensation plans. For example, Major League Baseball agreed to a pro-rata distribution of performance bonuses if the 2020 season is delayed and to pay all players on a 2020 major league contract $5,000 a day ($150,000 a month) if the season is canceled.

The NBA informed teams and players that it would provide “additional guidance” regarding player salaries in the near future. The League and the NBAPA are expected to find a way to split revenue losses from missed games as evenly as possible among both sides.

NCAA Grants Additional Eligibility to Spring Athletes Affected by COVID-19

By Gregg E. Clifton on March 31, 2020

The NCAA Division I Council has voted to allow schools to permit spring sport student-athletes an additional season of competition and an extension of their five-year period of athletic eligibility on account of the coronavirus (COVID-19) pandemic.

While it had previously announced that it would consider and potentially adopt modifications, changes, or waivers to current NCAA legislation in response to student-athletes affected COVID-19,

the NCAA rejected efforts by winter sport athletes, including men’s and women’s basketball student-athletes,

to return to competition during the 2020-2021 academic year since they were denied a potential March Madness experience in 2020. Winter sports athletes were not granted an additional season of competition because all or much of their regular seasons were completed.

The NCAA also announced adjusted financial aid rules to allow collegiate teams to carry more student-athletes on scholarship to permit and account for additional incoming athlete recruits, as well as student-athletes who elect their right to enjoy an extra year of eligibility. The Council also increased the current roster size limitations in baseball to account for the return of student-athletes affected by the COVID-19 pandemic.

While the Division Council vote provided schools the flexibility to give students the opportunity to return for 2020-21,

it also provided schools the flexibility to provide scholarships for each student-athlete at the same level or at reduced level from the scholarships provided during the 2019-2020 academic year.

This scholarship flexibility applies only to student-athletes who would have exhausted eligibility in 2019-20. With regard to the scholarship issue, Division I Council Chair M. Grace Calhoun and University of Pennsylvania Athletics Director commented, “At the end of the day, each institution is going to have to figure out what it can do.”

Division I rules limit student-athletes to four seasons of competition in a five-year period.

The Division Council’s decision allows schools to exercise individual waivers to restore one of those seasons of competition for student-athletes who competed during the COVID-19-shortened 2020 spring season.

The Council also voted to allow schools to self-apply a one-year extension of eligibility for spring-sport student-athletes who never had an opportunity to compete during the 2020 spring season. This decision essentially allows each student-athlete to extend their five-year competition window by a year.

Division I Council Chair Calhoun commented, “The Board of Governors encouraged conferences and schools to take action in the best interest of student-athletes and their communities, and now schools have the opportunity to do that.” She concluded, “The Council’s decision gives individual schools the flexibility to make decisions at a campus level.”

MLB and Its Players Agree to Terms for Potential Resumption of Play Amid COVID-19 Pandemic

By Gregg E. Clifton on March 30, 2020

The coronavirus (COVID-19) pandemic has silenced all major sports leagues. Instead of the anticipated opening of the 2020 Major League Baseball (MLB) season during the last week of March, MLB and the Major League Baseball Players Association (MLBPA) announced agreement on the specific terms governing the potential beginning of a coronavirus delayed start to the 2020 season.

The parties have reached agreement on several subjects, including the following:

Resumption of Play/Scheduling of Games

MLB and its players agreed to certain safety measures prerequisite to the return to the field. With the goal of playing the most games in the regular season and postseason, both sides agreed to the following conditions:

– No bans on mass gatherings that would limit the ability to play in front of fans.

However, the Commissioner Manfred is authorized to consider the resumption of games in alternate neutral sites “where economically feasible”;

– No travel restrictions throughout the United State and Canada;

– Medical experts must determine that there would be no health risks for players, staff, or fans, with the Commissioner and MLBPA still able to consider the possibility of playing games in empty stadiums.

The parties also agreed on the potential of playing games in neutral sites, in lieu of home stadiums, and that the option of playing in empty stadiums may provide an earlier return to games in COVID-19-free zones as the nation recovers at different speeds around the country.

Service Time/2020 Salaries

A crucial component of the MLB/MLBPA agreement was reaching agreement was the issue of lost pay from lost games and service time. Service time is crucial for all players as each day spent on the major league roster determines when a player is eligible for free agency, arbitration and individual player pension credits.

MLB agreed to grant a full year of service time in 2020 for all players who played in the major leagues for the entire 2019 season. If the 2020 season is played, all players will be able to receive a full season of service even if the cancellation of games results in a season less than the typical 172 days.

While receiving a full service time is still possible, the major league salaries and performance bonuses in player contracts for 2020 will be prorated. If the season consists of 100 games, players will receive approximately 62% of their contracted salary.

An interesting aspect of the agreement involves the possibility of a full season cancellation.

If COVID-19 causes the entire 2020 to be lost, the total financial liability for the owners is limited to a $170-million advance guaranteed to be distributed to players in April and May.

The money will be distributed at $5,000 a day ($150,000 a month) for all players on a 2020 major league contract. Other players will receive distributions varying from $1,000 a day ($30,000 a month), $500 a day, and $275 a day, based upon their status and 2020 salary.

The Amateur Player Draft

Without a significant voice in this negotiation between MLB and the MLBPA (amateur players are not represented by the MLBPA and are not unionized), several modifications have been made to the draft process. MLB has negotiated numerous changes to the draft process, including the following:

– The original date of the 2020 draft can be moved from June 10th to July 20^th

– The number of players to be selected will decrease as the number of rounds to select players has been reduced from 40, to as few as 5. The 2021 draft can also be reduced to as few as 20 rounds. Players undrafted as a result of the reduction of rounds would be only be eligible to receive only a $20,000 maximum signing bonus.

– Payment of signing bonuses will be delayed and the bulk of the bonus will be paid over a two-year period, without interest.

Jackson Lewis’ Collegiate and Professional Sports Practice Group continue to follow MLB and other professional sports as they try to plan for a resumption of competition. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

NCAA Compliance Best Practices for Institutions During COVID-19 Pandemic

By John G. Long and Doriyon C. Glass on March 29, 2020

The coronavirus (COVID-19) pandemic has severely affected the world of college sports. Division I conferences canceled their conference tournaments and the NCAA announced it would not be holding NCAA basketball championships this season, ending March Madness.

COVID-19’s impact, however, did not stop there. The NCAA issued a division-wide “dead period” on recruiting through April 15, 2020. Additionally, athletic conferences have been tasked with determining whether Countable Athletically Related Activity (CARA) is permitted during the pandemic and, if so, to what extent. Currently, all Division I conferences have imposed limitations on interaction with current student-athletes. Conference regulations on CARA range from allowing limited CARA to not allowing any activities at all.

The restrictions on in-person team activities and recruiting have Division I coaches utilizing videoconferencing software for virtual interaction with student-athletes and prospective student-athletes. For compliance officers, this change poses unique challenges for rules education and monitoring. Institutions must determine how to appropriately monitor countable and voluntary activities taking place by virtual media.

Institutions should consider implementing the following best practices:

Adopt and distribute policies and procedures governing utilization of video and teleconferencing software for communicating with student-athletes.
Consider requiring that coaching staff members declare the software platforms they intend to use to communicate with prospective student-athletes during the Division-wide dead period.
Continue to issue CARA logs to coaches and student-athletes for sign-off.
Have compliance officers request communication logs for the devices coaches choose to use for communications with student-athletes and prospective student-athletes.
Provide questionnaires to student-athletes to ensure that voluntary activities conform with Bylaw 17 legislation (Playing and Practice Seasons) and recently issued secondary guidance.
Provide student-athletes rules education materials highlighting the differences between VARA and CARA, with an emphasis on virtual communications. For instance, while the provision of workout plans and/or playbooks would not be considered CARA, obligations to follow-up or report on tasks related to the distribution of those materials would make the activities CARA.
Have compliance officers attend virtual conferences when possible for the purpose of conducting spot checks.
Finally, if possible, check with the IT department or teleconferencing vendors to see if their software includes the functionality to hide attendees from coaching staff members during virtual voluntary meetings.

NCAA enforcement and membership will not be sympathetic to staff members who choose to take advantage of the COVID-19 pandemic to gain a competitive advantage. It is imperative that institutions proactively provide rules education and monitor virtual activities to minimize the risk of allegations involving potential violations.

In addition, institutions should consider checking with insurance carriers and appropriate counsel to determine if workouts occurring or monitored by virtual coaching are covered under their policies.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor how athletic conferences and the NCAA responds to COVID-19, including developments related to CARA. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

The Force Majeure Clause-The New Relevance of the Forgotten Contract Clause

By Gregg E. Clifton on March 16, 2020

The recent surge of the COVID-19 pandemic and its catastrophic effect on worldwide events has put the standard contract clause, “force majeure,” in new light.

A force majeure clause, French for “superior force,” is a negotiated contract provision that allows either party to a contract to suspend or terminate the performance of its personal contractual obligations when certain circumstances beyond their control suddenly occur — making that party’s inability to render its performance inadvisable, impractical, impossible, or potentially illegal.

To determine whether a force majeure clause applies and if it can be used as a basis for non-performance, most state courts generally will review and analyze certain factors, including:

The precise language in the clause;
Specific evidence to establish the force majeure event was unforeseeable;
A causation analysis between the force majeure event being relied upon and its connection to the party’s non-performance of its contractual obligations;
Evidence that the impact of the force majeure was so severe that the contractual obligations are incapable of being performed.

Typically, a force majeure clause will include a standard, specific list of events or occurrences that have been agreed on as a basis for either party’s non-performance and deemed unforeseeable. Standard events include “acts of God” (including fire, earthquakes, hurricanes, floods, and tornados), war, riots, strikes, lockouts, specific federal, state, or local governmental actions prohibiting or affecting either party from performing their contractual obligations.

However, as with any contract,

it is important to review this clause at the time the contract is drafted, and, even more importantly, that a careful review of the specific language is conducted before a party attempts to use this “performance escape” promise in today’s pandemic environment.

For example,

if the list of unforeseeable events does not include the phrase epidemic or pandemic, will COVID-19 be considered an excusable “act of God” to forgive performance?

Will a state or local government’s current enactment of temporary attendance limitations still be in place and affect an event in June or July to allow use of a force majeure clause as an excuse for performance in either of those months?

As parties review existing agreements for the potential application of the force majeure clause as a legal basis for non-performance in our current environment, consider the following:

What relevant state law application is in the contract?
- What are the specific state law enforcement requirements on enforcement of force majeure provisions?
What is the timing of the event in question and can the force majeure clause be used to excuse responsibility for an event that will not occur in the very near future? How close in time is the qualifying force majeure event to the mandated date of performance, 30 days, 60 days, 90 days, or more? Will the qualifying force majeure event no longer have an impact at the time of the scheduled contractual performance?
Does the agreement contain any specific notice requirements? When and to whom must notice be given to the other party regarding the qualifying force majeure event for it to be effective and for the party to be legally excused from performance of its contractual obligations?
How will an unresolved dispute over the interpretation of the force majeure clause be handled?
- Is there an arbitration provision in the contract or will an unresolved dispute result in litigation?
- Burden of proof: Typically, the party attempting to use the force majeure clause has the burden to establish that a force majeure has occurred.

While we all focus on the continued safety and health of individuals around the world and efforts to limit the impact of COVID-19, the need to assess the continued feasibility of hosting scheduled events become clearer. Jackson Lewis’ Collegiate and Professional Sports Practice Group is available to assist you in the review and interpretation of any existing contracts that contain force majeure provisions for relevancy as a result of the COVID-19 crisis. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.