The fast-changing world of college athletics is about to collide with the ever-changing doctrine of joint employment.

In January 2022, on behalf of football and basketball athletes at the University of Southern California (USC), the National College Players Association (NCPA) filed an unfair labor practice charge with the National Labor Relations Board (NLRB) against USC, the Pac-12, and the NCAA. In the charge, the NCPA argued that college athletes should be considered employees and not student-athletes. On December 15, 2022, the NLRB’s Los Angeles Region agreed. NLRB General Counsel Jennifer Abruzzo said in a statement that USC, the Pac-12, and the NCAA have together “maintained unlawful rules and unlawfully misclassified scholarship basketball and football players as mere ‘student-athletes’ rather than employees entitled to protection under our law.” In September 2021, Abruzzo issued a memo (GC 21-08) making clear that some college athletes should be considered employees.

Thus, while the General Counsel’s stance on student-athletes is not altogether surprising, this is the first time the General Counsel has formally argued that not only is USC an employer, but also, the Pac-12 and the NCAA should be considered “joint employers.” This finding, if it stands, means that other athletes in other NCAA Division I Football Bowl Subdivision schools could argue they are also employees with the right to bargain directly with a conference. Furthermore, while many publicly funded schools are likely exempt from coverage under the National Labor Relations Act (NLRA), the affiliated conference may be subject to the NLRA. If the NLRB finds a joint-employment relationship exists, those conferences could be forced to bargain. It also opens the door to potential unions that would consist of athletes from more than one school.

This high-profile case, therefore, has the potential to change long-standing NLRB precedent on joint-employment (which is already a hotly contested issue before the NLRB), student-athletes, and NLRA jurisdiction that could affect employment practices at every college institution — with every college sports fan watching.

The NCPA’s Executive Director, Ramogi Huma, expressed his satisfaction with the NLRB’s Los Angeles Region’s ruling, saying, “Gaining employee status and the right to organize is an important part in ending NCAA sports business practices that illegally exploit college athletes’ labor ….” However, the NCAA continues to hold firm that “college athletes are not employees of the NCAA, regardless of sport or division” and “the NCAA’s commitment is to student-athletes, and it will continue to vigorously defend any attempts to divide them based on arbitrary standards, as it demeans the hard work and sacrifice of all who participate in college sports.” USC issued a similar statement, vowing to present “all the relevant facts … along with 75 years of favorable legal precedent” at the appropriate time.

The next step is settlement or a hearing with an administrative law judge. The latter is the more likely path, followed by significant appellate litigation.

While there are still multiple hurdles ahead for college athletes and institutions, these pressing labor law issues present a significant challenge to the incoming-NCAA President Charlie Baker, who will take over from Mark Emmert as of March 1, 2023, as well as all collegiate institutions.

Please contact a Jackson Lewis attorney with any questions.

The NCAA Division I Board of Directors has adopted key changes to the way in which NCAA infractions matters will investigated and processed in the future. The changes, which take effect on January 1, 2023, are intended to modernize and enhance the process, while focusing resources on the most serious violations. Another objective is to reduce the time needed to process and resolve violation proceedings.

President of the University of Georgia and Chair of the Division I Board of Directors Jere Morehead said in August that NCAA members are “committed to resolving cases fairly and in a timely fashion, thus holding those responsible for violations accountable and avoiding penalizing those who were not involved in rule-breaking.”

Among the key changes are the following:

Enhanced duty to cooperate: Institutions, staff, and student-athletes, upon learning of potential violations, will be required to preserve information, to provide immediate access to all electronic devices, and to encourage family members, spouses, boosters, and others to cooperate in the investigation. The number of aggravating and mitigating factors in the Bylaws has been expanded to reward prompt and full cooperation and deter efforts to hinder or impede investigations.

New head coach responsibility standard: Head coaches will be held responsible for serious violations committed by those who report to them directly or indirectly. Only in determining the appropriate penalty will the Committee on Infractions (COI) consider whether the head coach promoted compliance and monitored the program. The previous infractions approach, which included a rebuttable presumption of responsibility on the part of a head coach, has been abandoned.

Additional method for resolution: A new alternative for resolving infractions cases has been added, with the aim of providing the COI greater flexibility and reserving full hearings for only the most serious cases. The new method, known as a “Written Record Hearing,” will be employed in cases in which the facts are largely undisputed and the alleged violations not numerous or significant.

Clarification of appeal standard and limitation of appeals: Findings and penalties by the COI will be affirmed by the Infractions Appeals Committee (IAC) if there is information in the record that supports the decision. Findings and penalties will not be set aside unless no reasonable person could have made the ruling given the factual record. Appeals to the IAC as to the penalties imposed will be limited to those sanctions that fall outside legislated penalty guidelines, or “core penalties.” The majority of appeals will be decided based on the written record without the need for oral argument. Finally, and as is also the case with the revised COI process, extensions of time will be granted only in extreme and clearly defined circumstances.

Aggravating and mitigating factors: The new guidelines clarify which factors apply to institutions and which apply to involved individuals. Previously, this was unclear and often debated. New aggravating factors have been added, including hindering an investigation or inhibiting the COI’s processing of a case. New mitigating factors also have been added, including a demonstration of exemplary cooperation by, for example, securing meaningful cooperation from an outside party.

Name, image and likeness (NIL): In this rapidly evolving area, the bylaws provide that if available information indicates that behaviors surrounding an NIL offer or agreement is contrary to NCAA legislation, it shall be presumed that a violation occurred.  The charged institution or involved individual will then be required to rebut this presumption with credible and sufficient information that a violation did not occur.

In addition to the above changes, the new infractions construct eliminates the Independent Accountability Resolution Process (IARP), which had been created at the recommendation of the Commission on College Basketball chaired by Condoleezza Rice. While acknowledging the panel’s thoroughness in deciding the several cases referred to the IARP, it was concluded that this new process prolonged case timelines and required substantial additional resources to bring cases to resolution.

Finally, the Board of Directors announced that it will consider additional future changes that may help to deliver timely and fair outcomes in infractions matters. Among the subjects under further consideration are (i) requiring increased documentation of recruiting efforts, (ii) adjusting the size and composition of the COI, (iii) modification of penalty ranges (including alternatives to post-season bans), and (iv) enhancing confidentiality rules for involved parties during investigation by the NCAA enforcement staff.

The Collegiate and Professional Sports group at Jackson Lewis has represented Division I institutions in infractions cases and stands ready to assist colleges and universities facing such issues in 2023 and beyond.

The “New York Collegiate Athletic Participation Compensation Act” (S.5891-F/A.5115-E) allows New York college athletes to receive compensation for their name, image, and likeness (NIL) without losing their scholarships or eligibility. It also allows these players to use an attorney or agent for business deals without punishment.

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The NCAA Division I Board of Directors has approved new guidance clarifying how schools can engage with student-athletes in the constantly evolving name, image, and likeness (NIL) arena on their campuses.

The NCAA first implemented the Interim NIL Policy on July 1, 2021. In November 2021, the NCAA released a Q&A document, which declared that schools could not use NIL transactions to compensate student-athletes nor dictate how students use their compensation. In May 2022, the Board released additional guidance specifying that institutional coaches and staff may not arrange a meeting between an NIL entity and a prospective student-athlete nor communicate with a prospective student-athlete on behalf of the NIL entity. The May 2022 guidance did not specifically extend this prohibition to involvement with NIL activities for currently enrolled student-athletes.

The latest guidance, approved on October 26, 2022, clarifies how schools can interact and support enrolled student-athletes’ NIL activities. Schools are encouraged to provide educational training to current student-athletes on such topics as financial literacy, taxes, entrepreneurship, and social media practices. According to the guidance, these educational programs also can be provided to collectives, boosters, and prospective student-athletes.

With respect to supporting student-athlete activities:

  • Schools are allowed to: administer a marketplace that matches student-athletes with NIL opportunities; arrange space for NIL entities and student-athletes to meet on campus or in school facilities; and promote student-athlete NIL activity on paid platforms, provided that the student-athlete or NIL entity is paying the going rate for the advertisement.
  • Schools are not allowed to: communicate with NIL entities regarding specific student-athlete requests or demands for compensation; assist proactively in the implementation of a specific student-athlete’s NIL activity; and provide a student-athlete access to equipment, unless the same benefit is generally available to the institution’s students.

With respect to supporting NIL entities and collectives:

  • Schools are allowed to: assist NIL entities in raising money for those entities; provide assets (e.g., tickets) to NIL entities under sponsorship agreements if those assets are available to other sponsors; encourage donors to provide funding to NIL entities if they are not directed to a specific sport or student-athlete; and facilitate meetings between donors and NIL entities.
  • Schools are not allowed to: subscribe to nor donate cash to the NIL entity; provide assets to a donor as an incentive for providing funds to the NIL entity; and allow athletics department staff members to be employed by an NIL entity.

Further, schools are not allowed to engage in certain negotiating, revenue sharing, and compensating activities, including:

  • Allow staff members to represent enrolled student-athletes for NIL deals; enter into contracts with the student-athletes for the sale of products related to NIL deals; engage in student-athlete revenue sharing; and allow coaches to compensate student-athletes to promote the coach’s camp.

Any violations that occurred prior to this guidance will be reviewed by the Board and be pursued only if the infractions are clearly contrary to the Interim Policy.

The Jackson Lewis Collegiate and Professional Sports practice group is well-versed in NCAA issues and continues to analyze ongoing developments in the area. Please contact a Jackson Lewis attorney with any questions regarding NCAA and any other collegiate and professional sports developments.

The National Labor Relations Board (NLRB) has released a Notice of Proposed Rulemaking to change the standard for determining if two employers may be joint employers under the National Labor Relations Act (NLRA). The proposed rule, expected to become effective sometime in 2023, could make it more likely that professional and collegiate leagues would be found to be joint employers of any unionized professional players or collegiate student-athletes who play for teams that are members of those leagues.

As a joint employer of unionized players of member teams, a league could be jointly responsible for unfair labor practices committed by the teams or the team’s supervisors or managers (i.e., coaches and administrators), be required to participate in collective bargaining negotiations with the teams concerning the wages and other terms and conditions of employment of the players, and picketing directed at the league would be considered primary and therefore permissible (rather than secondary and subject to injunction).

Currently, the NLRB will find two or more employers to be joint employers if there is evidence that one employer has actually exercised direct and regular control over essential employment terms of another employer’s employees. An employer that merely reserves the right to exercise control or that has exercised control only indirectly will not be found to be a joint employer. The NLRB has proposed that the Browning Ferris standard be restored. Under the proposed rule, two or more employers will be found to be joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment.” Importantly – and the critical import of the proposed rule – the NLRB will consider both evidence that direct control has been exercised and that the right to control has been reserved (or exercised indirectly) over these essential terms and conditions of employment when reviewing two or more employers for status as joint employers.

Professional athletes are employees under Sec. 2(3) of the NLRA, of course. As for collegiate student-athletes, NLRB General Counsel Jennifer Abruzzo issued a memorandum, GC 21-08, announcing the intention to consider scholarship athletes at private colleges and universities to be employees because, as she wrote, they “perform services for their colleges and the NCAA, in return for compensation, and subject to their control.” Stating in summation “that this memo will notify the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, that [she] will be taking that legal position in future investigations and litigation” under the NLRA, Abruzzo signaled that conferences, leagues, and the NCAA will face joint-employer analysis in an appropriate case.

The “essential terms and conditions of employment” will translate to the sports workplace in the nature of game, practice and meeting times, travel and accommodation standards, equipment and safety standards, conduct rules and disciplinary proceedings, the length of a season, the number of games and playoff terms, and numerous other areas. Professional leagues may already coordinate with their member teams on a number of employment terms for players. For collegiate conferences and leagues, this may be new. Under the current standard, a league could better insulate itself from the decisions made by its members’ coaches and administrators by not exercising direct involvement in those matters. Under the proposed rule, a league or conference that merely has the power (even if reserved and unexercised) to make decisions affecting the “work” conditions for student-athletes could be jointly liable along with the institution for decisions made solely by the institution’s agents.

Consequently, conferences and leagues should consider training managers on their responsibility under the NLRA to private sector employees. They should also consider the role they want to play in collective bargaining should any of the student-athletes at their member institutions unionize.

The U.S. Supreme Court has held in favor of a former high school football coach in western Washington who lost his job after kneeling to pray on the 50-yard line after games. Kennedy v. Bremerton School Dist., No. 21–418 (June 27, 2022).

In reversing the Ninth Circuit, the Court held the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in personal religious observance from government reprisal. It held that the Constitution neither mandates nor permits the government to suppress such religious expression.
The matter involved Joseph Kennedy, a former Bremerton High School assistant football coach, who would kneel to pray, by himself, at the 50-yard line at the completion of football games.

The Court leaned on its holding in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), that the First Amendment’s protections extend to “teachers and students,” neither of whom “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But, as the Court held, teachers and coaches are also government employees paid, in part, to speak on the government’s behalf and to convey its intended messages. Accordingly, the Court held that, to account for the complexity associated with the interplay between free speech rights and government employment, a two-step inquiry must occur.

The first step, the Court explained, involves an inquiry into the nature of the speech at issue. Here, did Kennedy offer his prayers in his capacity as a private citizen, or did his prayers amount to government speech attributable to the District? Kennedy was not instructing players, discussing strategy, or any other actual work that the District paid him to produce as a coach, the Court noted. The Court held that the timing and circumstances of his prayers, during the postgame period when coaches were free to attend brief personal matters and students were engaged in other activities, confirms that Kennedy did not offer his prayers while acting within the scope of his duties as a coach.

The Court said the second step requires that the government must prove its interests as an employer outweigh an employee’s private speech on a matter of public concern. The District, like the Ninth Circuit below, insisted that Kennedy’s right to religious exercise and free speech must yield to the District’s interest in avoiding an Establishment Clause violation. The District admitted that it sought to restrict Kennedy’s actions, at least in part, because of their religious character. The District explained that it could not allow an on-duty employee to engage in religious conduct, even though it allowed other on-duty employees to engage in personal, secular conduct. The District’s performance evaluation after the 2015 football season advised against hiring Kennedy on the ground that he failed to supervise student-athletes after games, but any sort of postgame supervisory requirement from the District was not applied in an evenhanded way. The Court held that the District thus conceded its policies were neither neutral nor generally applicable.

Thus, the Court held, “Respect for religious expressions is indispensable to life in a free and diverse Republic.” Here, the Court noted, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances, even as it allows comparable secular speech. The Court held, “The Constitution neither mandates nor tolerates that kind of discrimination.”

If you have any questions or need assistance, please reach out to a member of our Sports group the Jackson Lewis attorney with whom you regularly work.

Joining a host of states implementing laws prohibiting transgender athletes from competing in sports of their gender identity, Indiana has enacted legislation, over the governor’s veto, banning transgender girls from competing on their schools’ girls’ sports teams.

The issue of whether transgender athletes should be allowed to compete in the sport of their gender identity has been labeled as one of competitive fairness and science. This year, a transgender woman won the NCAA swimming title, becoming the first openly transgender woman to win a championship. Politicians and sports sanctioning groups have failed to address how to respectfully allow transgender athletes to compete. This issue has spilled over into the courts.

In addition to Indiana, states that have laws banning transgender students from participating in sports of their gender identity include:

  • Alabama
  • Arkansas
  • Florida
  • Georgia
  • Idaho
  • Iowa
  • Mississippi
  • Montana
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • West Virginia
  • Utah

Other states have passed similar legislation, but they have not yet become law or have been vetoed by the state’s governor. These states include:

  • Arizona
  • Kansas
  • Louisiana
  • Missouri
  • North Dakota
  • Oklahoma

As states continue to push this type of legislation, humans’ rights groups, such as the American Civil Liberties Union (ACLU), have initiated lawsuits to test the constitutionality of such laws. For example, since Indiana legislation passed, the Indiana ACLU has brought a federal lawsuit advocating that a 10-year-old transgender girl be allowed to compete on her school’s girls’ softball team. In West Virginia, a federal court blocked the state from enforcing a law banning transgender girls and women from participating in school sports, ruling in favor of a 11-year-old transgender girl wanting to compete for her school’s girls’ cross-country and track teams.

The U.S. Supreme Court has yet to hear a case specifically regarding transgender student athletes. However, the Court ruled, in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the term “sex” includes a person’s “gender identity” in discrimination cases covered by Title VII of the Civil Rights Act. The Court went on to hold “Title VII’s prohibition against sex discrimination includes a prohibition against discrimination based on sexual orientation and gender identity.” The Supreme Court made it clear this language applied only to Title VII and not to Title IX of the Education Amendments and school sports.

K-12 institutions and universities will need to monitor this litigation as it continues to unfold. As courts across the United States rule either for or against the student-athletes, it is important for schools to update their policies regarding transgender athletes. Jackson Lewis attorneys are available to assist with monitoring and updating student athlete policies.

If you have any questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work.

The U.S. Soccer Federation (USSF), the governing body for international soccer in the United States, and the unions representing the women’s and men’s national soccer teams, U.S. Women’s National Team Players Association, and the U.S. National Soccer Team Players Association have reached a pair of collective bargaining agreements (CBAs) with identical economic terms. For the first time, equal pay to the players of each team will be provided.

The historic agreements also resolve the long-running equal pay lawsuit women players had brought against USSF. The labor contracts run through 2028.

The key driver in pay disparity between the compensation for the Men’s and Women’s National Teams (USMNT and USWNT, respectively) had been the World Cup prize money received by them from FIFA, the international soccer governing body. The prize money for the men’s World Cup has been about 10 times as large as that of the women’s World Cup. While that disparity, though smaller, will continue, the Men’s and Women’s National Teams and USSF have agreed to pool the prize money received from FIFA for the next two pairs of men’s and women’s World Cup tournaments and divide the players’ share of the pool equally between the players on the two teams. No other country’s soccer federation pools prize money and divides it equally to its men’s and women’s national teams.

USSF will sign separate labor contracts with each union, but the economic terms of each will be the same. These include appearance fees (for participating in a training camp) and game bonuses (for being named to a gameday roster), other prize money, and commercial revenue share. Single game payments can amount to $18,000 for matches, while tournament prize money can reach as much as $24,000 per game. This will ensure that the USMNT and USWNT will both be among the highest paid national teams throughout the world.

USSF has issued a fact sheet providing an overview of the terms reached in both CBAs. Generally, prize money from non-World Cup FIFA tournaments, regional tournaments, and other official tournaments in which both the USWNT and USMNT participate also will be pooled. For the first time, the contracts provide that USSF will share a portion of broadcast, apparel, and sponsorship revenue with the players’ share divided equally between USWNT and USMNT. Ticket revenue and game sellout bonuses also will be equal for the USWNT and USMNT. Further, non-economic conditions are being equalized. Playing surfaces, travel, accommodations, and national team training staffs (allowing for the unique needs of each team) will be the same. Guaranteed salaries and other benefits enjoyed by the USWNT are no longer needed as the various domestic women’s league continue to prosper.

While certain claims from the USWNT lawsuit settled in 2020, these labor negotiations will end litigation that commenced six years ago, which had an impact on sponsorship along with ongoing amassing legal fees. Part of the settlement included a $24 million pool of money that would be paid out upon reaching an agreement on these CBAs that provided the formal terms for equal pay between both teams. Now, the class members can seek a court order to certify the settlement so the payments can be issued to players.

For the first time since the NCAA issued its Interim Name, Image and Likeness (NIL) Policy on July 1, 2021, the NCAA Board of Directors issued new guidance in an attempt to place some limits on the involvement of boosters in the rapidly growing NIL landscape.

The new guidance, issued on May 9, 2022, provides clarity on the limited role of boosters in the recruitment process of a prospective or enrolled student-athlete. The guidance defines a “booster” as an individual, independent agency, corporate entity, or other organization that promotes an institution’s intercollegiate athletics program, who assists with providing benefits to recruits, enrolled student-athletes, or their family members. The definition could also include “collectives,” which are set up to funnel NIL deals to prospective or enrolled student-athletes to encourage them to attend a certain university or leave their current university for another based upon an NIL deal.

Through this guidance, the NCAA is instructing universities that any entity or person who falls under the definition of a booster, including a collective, is not allowed to make NIL deals with prospective or enrolled student-athletes.

With the football and basketball off-season in full swing and the transfer portal rapidly growing, the NCAA believes this guidance helps to establish a common set of expectations for schools as they navigate the NIL world, while maintaining NCAA compliance.

In its directive, the NCAA also noted that the emphasis of the new guidance is on the boosters in the recruiting process and is not intended to question the eligibility of prospective and enrolled student-athletes involved in NIL deals. This seems to be the NCAA’s way of showing its continued support for student-athletes to be able to benefit from NIL deals, while limiting those who are involved in those deals.

Notably, the NCAA stated that while the guidance is effective immediately, the enforcement staff may review potential violations that occurred prior to May 9, 2022. The NCAA added, however, that it will only pursue those actions that are clearly contrary to the interim policy, including the most severe violations of recruiting rules or payment for athletics performance.

The Jackson Lewis Collegiate and Professional Sports practice group is well-versed in NCAA issues and continues to analyze ongoing developments in this area. Please contact a Jackson Lewis attorney with any questions regarding NCAA and any other collegiate and professional sports developments.

In the wake of a recent trial court decision finding that minor league baseball players are year-round employees, California State Senator Josh Becker has introduced legislation proposing that California enact the Minor League Baseball Players’ Bill of Rights.

Click here to read more on the California Workplace Law Blog.