UPDATE: New York Student-Athlete Name, Image, and Likeness Bill Amended (Again)

New York State Senator Kevin S. Parker recently introduced his bill, the New York Collegiate Athletic Participation Compensation Act, to provide New York college student-athletes an opportunity to market their name, image, and likeness for economic benefit without affecting either their scholarship benefits or amateur status. Now, he has amended the bill a second time.

Initially introduced to mirror the recently passed California Senate Bill 206 (formerly known as the Fair Pay to Play Act), Parker’s initial amendment to his legislation would have created direct financial costs to New York colleges and universities by providing student-athletes a proposed 15% share of the annual ticket revenue generated from each school’s sporting events.

The second amendment to the proposed measure would modify this requirement that each college create an injury fund and share 15% of revenue earned from ticket sales on an annual basis with its student-athletes.

While the second amendment would still require colleges and universities to distribute 15% of ticket revenue, it would reduce the direct student-athlete distributable share by 50% to allow the remaining portion of the 15% mandated ticket revenue distribution to be used to fund the injury fund.

The important terms of the amendment are as follows:

  • Each college must establish a sports injury health savings account and a wage fund. These will be funded by each college and university with 15% of the revenue each school derives from ticket sales from its athletics programs’ events. Half of such revenue will be deposited into such sports injury health savings account and the other half will be deposited into such wage fund; and
  • Each college’s sports injury health savings account will be established to provide a student-athlete who suffers a career-ending or serious injury during a game or practice with compensation upon his or her graduation. The amount of such compensation and qualifying injuries will be determined by the department, in this case, the State Education Department (SED). A qualifying injury will be verified by an independent health care provider not affiliated with such student-athlete’s college; and
  • At the conclusion of each school year, each college’s wage fund will be divided evenly and paid to all student-athletes attending such college.

Senator Parker commented on his amended proposal, “It’s unfair for students to struggle financially while their athletic ability is a source of income solely for the NCAA and the colleges and universities they attend.”

Unlike the California measure, whose advocates argued would not add any specific costs to university athletic budgets or cause universities to suffer any financial hardships, the second amendment to the New York legislation confirms Senator Parker’s intention to create specific and direct university costs to fund his plan.

While authorizing student-athletes to use their unique position to secure financial rewards from their name, image, and likeness while still performing at an amateur level, the loss of 15% in ticket revenues could have a substantial impact on New York schools’ ability to maintain all of their intercollegiate sport offerings.

If passed, the amended legislation would become effective January 1, 2023.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed New York legislation, as well as similar legislation being discussed or introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

National Basketball Players Association Opposes NCAA’s Amended Agent Certification Requirements

 

In a recently published letter, the agents of the National Basketball Players Association (NBPA) wrote, “[T]he NCAA Agent Certification process and the rules, regulations, and guidelines surrounding it are needlessly invasive and onerous and are completely counterproductive to meeting the NCAA’s stated purpose in attempting to certify and regulate NBA agents: to protect men’s basketball student-athletes by ensuring that they receive the best possible advice, guidance, and feedback from the most experienced and competent agents in the NBA Pre-Draft process.” The letter continued,

[T]he process itself undermines the ability of student-athletes to truly receive the most competent representation when they are ‘testing the waters.

For years, men’s basketball student-athletes must decide whether to remain in school and continue their education or enter the NBA Draft. Such student-athletes have vastly different agendas and needs from their agents, the NCAA, the NBPA, and the NBA.

The amended agent certification process creates an unnecessary hurdle in a student’s decision-making process and potentially violates agents’ rights.

The new process unreasonably allows the NCAA to obtain the “personal and private information of certified agents.”

For example, during the application process, an agent is required to complete a background check. This, agents contend, “amounts to subpoena power to embark upon investigations that are wholly unrelated to protecting the interests of men’s basketball student-athletes,” dismissing “basic due process rights” and “singl[ing] NBA agents out in a manner that lacks rational justification.”

Such requirements, agents contend, reach beyond protecting “the interests of men’s basketball student-athletes in deciding whether to remain in school or to enter the NBA draft.” Rather, these measures “ignore the realities of the world that student-athletes with professional prospects live in[,] … entrenching an ecosystem that cultivates and fosters an atmosphere of distrust among the student-athletes whom the NCAA is supposed to protect.” Further, many argue, the NCAA does not have the right to make such requirements in the first instance. As Alabama-based attorney Don Jackson stated, “[T]he entity that actually has the responsibility of certifying contract advisers in basketball would be the National Basketball Players Association, not the NCAA.”

The agents end the letter with the following:

  1. NBA agents are not required to adhere to additional certification requirements beyond those imposed by the NBPA.
  2. NBA agents will participate in biannual online seminars centered on preserving the amateur eligibility rights of men’s basketball student-athletes.
  3. NBPA will not agree to the stipulation that an agent can only pay for transportation and lodging when meeting with a student-athlete after that athlete has signed with them, as this requirement harms the ability of men’s basketball student-athletes to thoroughly weigh potential options in making their decision.

Finally, the agents wrote, “the NCAA does not regulate, and has not attempted to regulate, agents in any other sport in this manner.”

In August, the NCAA removed the bachelor’s degree requirement for all prospective agents from its amended agent certification requirements after much backlash. Jackson Lewis attorneys will report on how the NCAA responds to the latest pushback. Please contact us with any questions.

University of Wisconsin-Madison Expands Student-Athlete Discipline Policy

The University of Wisconsin Athletic Board has approved significant changes to its student-athlete discipline policy. The decision comes shortly after a Wisconsin jury acquitted one of the school’s football players of sexual assault charges.

Wide receiver Quintez Cephus was expelled from the University in August 2018, then, following the jury’s not guilty verdict, he was reinstated and allowed to rejoin the football team.

The amended policy mandates suspensions of any student-athlete who is believed to be imminently facing an arrest or the filing of certain criminal charges. According UW-Madison Vice Chancellor for Legal Affairs Ray Taffora,

suspension is automatic as soon as it is believed that “something is happening soon.”

The offenses triggering suspension under the new policy are as follows:

  • Causing serious physical injury to another person;
  • Creating a serious danger to the physical safety of another person;
  • Making a credible threat of serious physical injury to another person;
  • Sexual assault;
  • Delivering or possessing with the intent to deliver a controlled substance as defined by Wisconsin law;
  • Felony theft or felony criminal damage to property;
  • “Stalking” as defined by Wisconsin law; and
  • Repeated criminal violations deemed to raise the concerns addressed by the student-athlete discipline policy.

Significantly, the University Athletic Board also added campus discipline as a possible trigger for mandatory suspension. However, what type of campus discipline will mandate suspension remains unclear. Also unclear is the point at which criminal charges or an arrest become “imminent.” The Wisconsin Athletic Board did not say whether suspension could result from mere accusations of criminal conduct or whether a certain quantity or quality of information is necessary before the policy is enforced. To address these and other “grey areas,” the policy provides that the Athletic Director, in consultation with the Chair of the Athletic Board, has the authority to decide good-faith questions about whether the policy applies.

Once an athlete is suspended, the University undertakes a factual inquiry into the incident. During this time, the athlete continues to receive financial aid and athletic training services and opportunities, but is barred from competition and team activities. Ultimately, the punishment to be imposed is decided by a committee consisting of the Athletic Director, Chair of the Athletic Board, a member of the Athletic Board, and a designee of the Chancellor. Punishment can range from reprimand to dismissal from the team.

In addition, although the student-athlete discipline policy is separate from the University’s student disciplinary policy, athletes remain subject to discipline under the general academic and non-academic misconduct rules applicable to all students.

Wisconsin appears to be the only major NCAA Division I school to implement a policy of this kind. At this time, the University has not reported whether any of its student-athletes has been disciplined under the new policy.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the application of Wisconsin’s revised Student Athlete Discipline Policy and whether similar policy changes are adopted among other NCAA schools. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

New York Senate Bill To Require Student Athletes To Share In University Ticket Revenue

The New York Collegiate Athletic Participation Compensation Act, introduced earlier this week by State Senator Kevin S. Parker, has already been amended to provide student-athletes a proposed 15% share of the annual ticket revenue generated from each school’s sporting events. The bill, initially described as legislation comparable to the California legislation formerly known as the Fair Pay To Play Act, now makes New York the first state to propose legislation that would create direct financial costs to colleges and universities in addition to providing student-athletes the opportunity to benefit from the marketing of their name, image and likeness without impacting their ability to continuing participating in college athletics.

Unlike the California legislation, which received unanimous support from the California Assembly and Senate and currently awaits Governor Newsom’s potential signature, the New York bill contains two additional proposals that are not contained in the California legislation. The two additional proposals are:

  • Each college shall establish an injured athlete fund to provide a student-athlete who suffers a career ending or long-term injury during a game or practice with compensation upon his or her graduation. The amount of such compensation shall be determined by the department. Such qualifying injury shall be verified by a health care provider.
  • At the conclusion of each school year, each college shall take Fifteen percent of the revenue earned from ticket sales to all athletic events and divide and pay such amount to all student-athletes.

Senator Parker commented on his proposal, “It’s about equity. These young people are adding their skill, talent and labor to these universities. … You don’t need the shortcuts and the end-arounds because now we’re providing some real support for these student-athletes.”

Unlike the California measure, whose advocates argued would not add any specific costs to university athletic budgets or cause universities to suffer any financial hardships, the New York proposal does create very specific and direct university costs.

While authorizing student athletes to use their unique position to secure financial rewards from their name, image and likeness while still performing at an amateur level,

the direct costs to colleges and universities could be substantial.

In fact, the proposed legislation would require financial contribution of some undefined amount to provide direct financial compensation to student-athletes upon graduation for career ending or long-term injury as well as requiring 15% of the annual gross revenue received by schools from ticket sales to be shared by all athletes. According to Senator Parker, this additional pool of revenue would be split equally among all student-athletes who compete. Similarly, with the State of California, the proposed legislation would not become effective until January 1, 2023.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed New York legislation as well as other legislation that is either discussed or introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Running Backs Union Unit Clarification Petition Efforts Shutout By NLRB

Acting National Labor Relations Board (NLRB) Regional Director Daniel Nelson has rejected the efforts of the International Brotherhood of Professional Running Backs (IBPRB) to sever and form a new union and bargaining unit for the National Football League’s (NFL) running backs separate and distinct from the current National Football League Players Association (NFLPA).

The Unit Clarification Petition (UC petition), which was filed with the NLRB’s Region 13 in Chicago, was dismissed as the NLRB found no legal basis for the running back position to be carved out from the current, longstanding configuration of the NFLPA to include all NFL players regardless of position.

Nelson rejected efforts by Veronica Patton, who filed the petition on behalf of the IBPRB, seeking the ability to negotiate a separate contract for the league’s running backs, separate and distinct from the current collective bargaining agreement between the league and its players. In issuing his dismissal letter, Nelson rejected the need for any additional NLRB proceedings since there was no evidence of any substantial changes to the established relationship between the running back position and the NFLPA. He stated,

[R]unning backs are not a newly established classification nor has the classification undergone any recent, substantial changes in their duties and responsibilities.

Nelson determined that the NFL and the running backs have an established collective bargaining relationship as part of an established unit that includes all employees in the bargaining unit. He also determined that no facts were presented in relation to the running back position to form a basis to proceed with a unit clarification petition. As we discussed in our blog dated August 29, the IBPRB’s petition failed to satisfy the NLRB test of showing “recent, substantial changes in their operations, or that other compelling circumstances exist which would warrant disregarding the long-existing bargaining history” of the parties to establish a successful basis to proceed with a Unit Clarification filing. In Batesville Casket Company, Inc., 283 NLRB 795 (1987), the NLRB relied on the standard established in Rock-Tenn Co., 274 NLRB 772 (1985), and dismissed a UC petition because the employer-petitioners did not show any “recent, substantial changes in their operations, or that other compelling circumstances which would warrant disregarding the long-existing bargaining history” of the parties.

Despite the lack of support from any NFL players, Patton has challenged the NLRB’s conclusions and vowed to continue to move forward with her efforts. Please contact a Jackson Lewis attorney if you have any questions.

 

 

 

California Senate Bill 206-The Immediate National Impact

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

Assuming the Senate supports the bill in a similar fashion,

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

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

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

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

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

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

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

UPDATE: California Senate Bill 206 Moves Closer To Becoming Law

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

 

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