Will Acting General Counsel Ohr’s Appointment Lead To NCAA Athletes Becoming Eligible To Unionize?

President Joe Biden has named Peter Sung Ohr to serve as Acting General Counsel of the National Labor Relations Board (NLRB or Board). Ohr has served as the Regional Director of the NLRB Chicago office for nearly a decade.

While the Regional Director, Ohr is best remembered in the world of collegiate sports for his 2014 landmark decision finding scholarship football players at Northwestern University to be “employees” under the National Labor Relations Act (NLRA or Act), and thus eligible for union membership.

Ohr concluded the amateur scholarship-players performed services under the control of, and for the benefit of, their “employer” (Northwestern University) and the value of the football scholarship was compensation.

As a result,

Ohr ruled “all grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are ‘employees’ under the National Labor Relations Act.”

Northwestern appealed Regional Director Ohr’s ruling. The election was held, but the ballots were impounded and never counted. The five-member NLRB unanimously rejected Ohr’s finding and ended the unionization effort. Northwestern University, 362 NLRB 1350 (2015).

The Board declined to assert jurisdiction of the Act over the players, but avoided the ultimate question of whether the college football players were “employees” under the law.

The Board dismissed the case; the ballots were never counted.

The Board concluded that allowing the football players to unionize could lead to competitive imbalance by creating different standards at schools regarding terms of negotiated compensation and mandatory practice requirements.

The Board’s dismissal of the case left open the “employee” status of college football players (and collegiate athletes in general). On January 31, 2017, Richard Griffin, Jr., NLRB General Counsel and President Barack Obama appointee, issued a memorandum clarifying his position on the employee status of scholarship football players. Griffin contended that scholarship football players at Northwestern were employees and opined that other student-athletes could be considered employees.

The NLRB General Counsel is the Board’s top lawyer and acts as “prosecutor” for the NLRB. General Counsel opinions are not the law. General Counsel Griffin’s position did not last long, as he was replaced in due course by Peter Robb, a President Donald Trump appointee. In December 2017, Robb expressly rescinded the Griffin memorandum.

Has the question come full circle?

With Ohr being named Acting NLRB General Counsel, will he reinstate Griffin’s 2017 memo in an effort to confirm his Northwestern ruling?

It seems likely that advocates of this position will be encouraged by Ohr’s appointment. We expect an increase in union representation petitions for student-athletes, not just in football, but also other Division I scholarship sports such as basketball, baseball, soccer, and hockey. Additionally, if Ohr reverts back to GC-17-01, expect an increase in unfair labor practice charges from student-athletes claiming colleges, including their coaching staffs, have infringed upon their protected concerted activity rights under the Act.

In light of Ohr’s appointment at a time when numerous legal issues relating to name, image, and likeness rights for student-athletes and antitrust issues surround the NCAA and college sports, the potential of employee status for scholarship athletes is significant.

While President Biden acted quickly to fire General Counsel Robb and appoint Ohr as his personal selection to serve as Acting General Counsel, one open question is whether Ohr will assert his authority while serving as the Acting General Counsel to repeat his landmark regional decision on a national level.

Jackson Lewis’ Labor Relations Practice and Collegiate and Professional Sports Industry Groups will continue to monitor Acting General Counsel Ohr and any actions he takes while serving in this role. Please feel free to reach out to any to the Jackson Lewis attorneys with whom you work for more information.

UPDATE: NCAA President Recommends Delay In Name, Image and Likeness Vote

Following receipt of a letter from the United State Department of Justice-Antitrust Division expressing concern about the NCAA’s anticipated vote, NCAA President Mark Emmert has “strongly recommended” to his membership that the NCAA vote currently scheduled for Monday to potentially ratify name, image and likeness (NIL) rights for collegiate student-athletes be delayed.

The much anticipated NIL NCAA legislative vote, expected to be successful and authorize student-athletes to benefit from the commercial use of their name, image and likeness in coordination with the start of the 2021-22 school year, has been the subject of extensive discussion and deliberation throughout most of 2020.

It has been reported that the letter to NCAA President Emmert expressed concern regarding the NCAA’s policies pertaining to collegiate athlete transfers and NIL rules. The Justice Department informed the NCAA that it has been monitoring the NCAA’s ongoing efforts to review and revise the rules in both areas. It is expected that President Emmert’s recommended voting delay will be supported by NCAA membership and further dialogue between NCAA leadership and the Department of Justice will be scheduled and commence in the near future.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing legal issues relating to NCAA’s effort to pass NIL legislation, as well as continued NIL activity on the federal and state level. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.


UPDATE: Michigan Joins Growing Number of States Granting Name, Image, Likeness Rights to Collegiate Student-Athletes

Michigan Governor Gretchen Whitmer’s signature on House Bill 5217 and House Bill 5218 will allow Michigan student-athletes to earn financial compensation from the use of their name, image, and likeness and authorize the hiring and use of attorneys and agents without affecting student-athlete scholarship eligibility.

Michigan now joins California, Florida, New Jersey Colorado, and Nebraska as the sixth state to pass a law protecting the rights of student-athletes to be paid for the commercial use of their name, image, and likeness rights. As with every state name, image and likeness law that has been enacted to date, except the Florida law which will become effective on July 1, 2021, the Michigan law will also have a significantly delayed effective date. The Michigan law will not become effective until December 31, 2022.

Senator Whitmer commented on the new law, “For years we have all enjoyed the incredible talent of young athletes across the state. This legislation will change the lives of young men and women for years to come.” She concluded, “I am hopeful that the NCAA will set a national standard so that all players across the country are afforded the same opportunities.”

Sponsored by State Representative Brandt Iden, a former college tennis player at Kalamazoo College,

House Bill 5217 specifically prohibits post-secondary educational institutions as well as any athletic association, including the NCAA, from enforcing any rules that limit or prohibit student-athletes from profiting from endorsement or promotional agreements.

In addition, the bill protects student-athletes and their ability to play intercollegiate sports and continue to earn athletic scholarships while earning fees for the use of their name, image and likeness.

House Bill 5218, sponsored by State Representative Joe Tate, a former offensive lineman at Michigan State, and signed by Governor Whitmer along with House Bill 5217, specifically repeals a section of the Michigan penal law which prohibits sports agents from inducing student-athletes from entering into contracts while they still have remaining eligibility to participate in college athletics.

While granting the student-athletes the right to profit from the use of their name, image, and likeness and to hire agents to assist in the identification and negotiation of these endorsement opportunities, the Michigan law places certain limitations and obligations upon student-athletes. Prior to entering into any endorsement agreement, the student-athlete must disclose the proposed opportunity to a university-designated official at least seven (7) days prior to committing to the opportunity or contract.

In addition, student-athlete endorsers will be prohibited from entering into an apparel contract and earning compensation if that contract or promotional relationship would be in conflict with any provision of their post-secondary school’s existing apparel contract.

One other limitation placed upon Michigan student-athletes restricts the use of the name, trademarks, service marks, logos, symbols, or other intellectual property of their university in conjunction with the student-athletes use of their name, image or likeness.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing name, image, and likeness issues on the federal and state level, as well as the NCAA’s anticipated passing of final rules on name, and likeness later this month. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Major League Soccer To Exercise Force Majeure Clause To Reopen Negotiations With Its Players To Address COVID-19 Financial Realities

Major League Soccer (MLS) has informed the MLS Players Association that it intends to exercise the force majeure clause that was recently added to the parties’ collective bargaining agreement (CBA) to negotiate additional contract modifications in good faith for 30 days. If a new agreement is not reached during the 30 day period, the league will be permitted to consider terminating the current agreement and initiating a lockout of its players.

Following the league’s notification to the MLS Players Association, the union responded by strongly criticizing the league’s decision to exercise the force majeure clause. Echoing MLS Players Association Executive Director Bob Fosse’s statement from earlier this month that the league’s decision to exercise the force majeure clause “would be a mistake,” the union issued the following strongly word statement:

After a 2020 season of extreme sacrifice, immeasurable risk to personal health, and a remarkable league-wide effort to successfully return to play, this tone-deaf action by the league discredits the previous sacrifices made by players and the enormous challenges they overcame in 2020.

MLS and its players association had reached an agreement in principle on the terms of a new collective bargaining agreement on January 31, 2020. However, the five year agreement which was negotiated between the parties and scheduled to run through the 2025 season was never ratified as a result of the COVID-19 pandemic.

Lacking formal ratification, MLS was able to reach agreement on a renegotiated CBA with the MLS Players Association in June. The renegotiated agreement included substantial economic concessions from the union following a near three month COVID-19 delay to the start of the 2020 season. While the agreement that was originally negotiated between the parties included more liberal free agency rights for the league’s players and drastic increases in minimum salary levels for veteran players, the modified CBA delayed the effective date of those modifications.

According to Executive Director Fosse, the modified CBA provided player economic concessions in excess of $100 million, including a 5% reduction in player wages, in addition to a $5 million cap on performance and individual bonuses.

The alterations to the CBA also involved the introduction for the first time of a force majeure clause, which allowed MLS to opt out of the revised agreement in the event of a catastrophic event, such as the continuation of the pandemic or its reoccurrence.

While MLS reportedly attempted to negotiate a force majeure escape provision based upon specific attendance numbers in the event of a second wave of COVID-19, the players refused to agree to any type of attendance language in the clause. Rather, the final version, agreed upon by the parties, allowed the league to potentially opt out of  the contract with 30 days’ notice if an event made the CBA economically unfeasible.

According to published reports, the force majeure clause specifically authorizes MLS to terminate the CBA with 30 days’ notice “if an event or condition makes it impossible for the league to perform its obligations under the CBA, frustrates the underlying purpose of the CBA or makes the CBA economically impracticable.”

The league now seeks to utilize the force majeure clause to conduct further negotiations with its players union and to seek additional concessions to lower costs as the financial realities of the pandemic continue to impact the league. While projected financial losses for the 2021 season have not been released, MLS Commissioner Don Garber has reported that MLS lost nearly $1 billion in revenue in 2020.

While the parties begin plans to initiate another round of negotiations for the third time in less than a year, the ongoing economic impact of COVID-19 and the anticipated restrictions on attendance at sporting events, such as professional soccer, will continue to have a drastic financial impact on MLS and other professional sports leagues well into 2021.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the economic impact of COVID-19 throughout professional and collegiate sports. We will also closely follow the ongoing MLS collective bargaining issues arising from the league’s exercising of the force majeure clause in the CBA. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.



The Proposed “College Athletes Bill of Rights” Joins Growing Number Of Federal Bills On Student-Athlete Rights

Shortly after the Supreme Court granted certiorari to consider the Ninth Circuit’s ruling that the NCAA violated federal anti-trust laws by illegally limiting the value of athletic scholarships, new federal legislation has been introduced that could drastically change the world of college athletics and drastically limit the NCAA’s current authoritative stronghold on student-athletes.

Senators Corey Booker (NJ) and Richard Blumenthal (CT) have formally introduced the “College Athletes Bill of Rights.”

In August, they announced their intention to draft this legislation and foreshadowed its anticipated framework, which was endorsed by several other senators, including Vice President-elect Kamala Harris. The proposed 61 page legislation joins an ever expanding number of proposed federal bills regarding college student-athlete name image and likeness rights (NIL).

Similar to other recently introduced college athlete federal legislation proposals, the Booker-Blumenthal bill seeks to enact NIL rights for student-athletes, including the ability to market themselves individually and as a group to potentially share revenue generated from the lucrative video game marketplace.

The bill also bars schools from interfering with these NIL rights by prohibiting schools from preventing athletes from wearing the shoes of their choice during mandatory team activities, which may open the door endorsement deals in conflict with school contracts. However, the broad based language contained in the bill goes well beyond NIL rights and includes provisions that could change college athletics forever. Specifically, Booker and Blumenthal have proposed that student-athletes receive direct money from the athletic revenue they help to generate for their schools.

Commenting on his bill, Senator Booker stated,

t]he NCAA has failed generations of young men and women even when it comes to their most basic responsibility—keeping the athletes under their charge healthy and safe.”

Accordingly, the bill seeks to establish a nine-member “Commission on College Athletics,” appointed by the President and including at least five former college athletes with legal expertise, that would take a majority of the responsibility of overseeing college athletics away from the NCAA. The commission will regulate athlete endorsement contracts, certify athlete agents, monitor Title IX compliance, and establish health, wellness and safety standards for college athletes. It would also be responsible for enforcing rules laid out in the law and given subpoena power to investigate violations, along with the authority to impose penalties against institutions, conferences, and the NCAA. These penalties may range from financial penalties in excess of $10 million to the suspension of officials from working at a school or in college sports at all.

In addition to impacting the NCAA, the bill would have a significant impact on universities and their athletic departments. The Bill of Rights is the most comprehensive proposal to overhaul of college sports, addressing not just the economic rights of athletes, but their health and safety and educational opportunities.The bill’s sweeping provisions would provide the following:

  • Schools would be required to share the profit from revenue generating sports with the athletes who play those sports, after deducting the cost of scholarships
  • Student-athletes would be guaranteed a scholarship for as many years as it takes the student-athlete to obtain an undergraduate degree
  • A medical trust fund that would provide broad healthcare coverage for student athletes and be accessible to them up to five years following the end of their athletic eligibility
  • A wide range of health and safety guidelines set by the Centers for Disease Control and Prevention
  • A requirement that athletic trainers, team medical personnel, academic advisors and tutors operate and provide services to student athletes “independently from the athletic department”
  • A ban against coaches and staff influencing academic decisions like the selection of academic majors and courses
  • A prohibition against schools imposing restrictions on student athletes’ speech beyond those imposed on other students
  • The elimination of restrictions and penalties related to student-athletes for transferring from one institution to another or breaking a national letter of intent
  • The ability for student-athletes to enter a professional draft and return to college athletics, so long as they do not get paid by a professional team and inform the school of their return within seven days after the completion of that draft
  • A requirement that athletic department annually disclose revenues and expenditures, including department personnel salaries
  • A requirement that a school cannot cut a team “unless all other options for reducing the expenses of the athletic program, including reducing coach salaries and administrative and facility expenses, are not feasible”
  • A requirement that schools have academic credit courses related to financial literacy and life skills consistent with the school’s guidelines

Although other year-end spending bills and COVID-19 relief measures are expected to take precedence in Congress during the final days of the year, it is expected that this bill along with other college athlete-related legislation will likely be reintroduced in January when the new session of Congress commences.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the progress of this bill and related legislation and their potential impact on college sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.


Supreme Court Grants Certiorari To Consider NCAA’s Request To Review Ninth Circuit Anti-Trust Ruling

While the legal focus on college athletics has been on the impending expansion of name, image, and likeness rights for NCAA student athletes, prompted in part by State and Federal legislative proposals, the Supreme Court has shifted that focus to the courts after agreeing to intercede and rule on what will prove to be a landmark sports law decision.

The United States Supreme Court granted certiorari and accepted the petition filed by the NCAA to review the decision of the U.S. Court of Appeals for the Ninth Circuit, which affirmed U.S. District Court Judge Claudia Wilken’s decision in Alston v. NCAA. The Ninth Circuit concluded in May that the NCAA violated federal anti-trust laws by illegally limiting the value of athletic scholarships. The NCAA argued that Supreme Court intervention is necessary to correct the Ninth Circuit’s improper application of federal antitrust law. The oral argument, which should take place in March or April of 2021, will review the Ninth Circuit’s decision and in effect determine whether it is legal for the NCAA and its individual school members to limit grants-in-aid to tuition, fees, room, board and books up to the full value and cost of attending the school.

The NCAA has long maintained that anti-trust laws do not prohibit the association and its member schools from maintaining limitations on student-athletes’ ability to be compensated for their athletic performance.

At issue is whether the NCAA’s rules which limit compensation to scholarships is a violation of federal anti-trust law.

While the court has found the NCAA to be in violation of federal anti-trust law, the remedy provided by the Ninth Circuit fell short of what the plaintiffs in Alston v. NCAA sought. The Ninth Circuit authorized unlimited compensation to student-athletes for “educationally related” activities, but it failed to create the open market system which would have allowed high school student-athletes to seek unlimited financial compensation from the “highest bidder” for their services as a collegiate athlete.

According to the remedy imposed by the Ninth Circuit, schools are permitted to offer student-athletes the opportunity to be reimbursed for expenses pertaining to educationally related items such “computers, science equipment, musical instruments and other tangible items not included in the cost of attendance calculation but nonetheless related to the pursuit of academic studies.” Additionally, the Ninth Circuit’s ruling also permits institutions to awards scholarships to student-athletes so that they may complete their undergraduate or graduate degrees after their NCAA eligibility expires.

While some have argued that the NCAA should be pleased with the limited remedy imposed by Judge Wilken and confirmed by the Ninth Circuit,

the NCAA believes that the Supreme Court’s 1984 decision in NCAA v. Board of Regents should be used as the guidepost for its ability to limit compensation to student-athletes.

Although the Ninth Circuit rejected the ideals espoused by the Court as non-binding dicta, the NCAA will argue that Justice John Paul Stevens’s acknowledgment in his majority opinion that “athletes must not be paid” supports the continued Supreme Court “latitude” toward the NCAA’s unique amateurism model.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the progress of this landmark case and its potential impact on college sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Federal Name, Image, and Likeness Options Increase With New Senate Bill Proposal

As additional states move closer to joining the five states (California, Florida, New Jersey, Colorado and Nebraska) which have already enacted legislation granting name, image and likeness (NIL) rights to student-athletes and the NCAA moves closer to its anticipated January vote NIL rights, the number of proposed federal NIL’s bills continues to grow as well.

Senator Roger Wicker (R-Miss.), the current chair of the Senate Commerce, Science and Transportation Committee, has joined several other federal legislators by introducing a NIL bill.

While Senator Wicker’s “Collegiate Athlete and Compensatory Rights Act” would parallel other legislative efforts by permitting college athletes to earn compensation through commercial and endorsements deals, it follows fellow Republican Senator Marco Rubio’s proposed legislation by offering the NCAA the anti-trust protection that it seeks in any potential federal NIL legislation.

Commenting on his legislation, Senator Wicker stated, “A nationwide framework governing student athlete name, image, and likeness compensation is necessary to preserve competition, protect student athletes, and maintain the academic integrity of collegiate institutions. My legislation would achieve this standard, and I am eager to see it advance.”

Senator Wicker’s bill would join current NIL proposals,  the “Student Athlete Level Playing Field Act,” co-introduced by Representative Anthony Gonzalez (R-Ohio), a former Ohio State University and NFL player, and Representative Emanuel Cleaver (D-Mo.) and Republican Senator Marco Rubio’s “The Fairness In Collegiate Athletics Act.” However, as chairman of the Senate Commerce Committee, Senator Wicker may have a significant impact on any federal NIL legislation as it is assumed that any potential NIL bill will need to pass through his committee before it could ever become law.

In addition to the Rubio legislation and the Gonzalez-Cleaver bill, Senator Wicker’s bill is expected to be joined by long anticipated partisan NIL legislation from Democratic Senators Cory Booker and Richard Blumenthal. The “College Athletes Bill of Rights” is expected to propose similar NIL rights, as well as additional healthcare coverage and educational benefits for college athletes while directly opposing Senator Wicker’s bill by refusing to provide any type of anti-trust protection for the NCAA.

According to Senator Wicker, the highlights of his Collegiate Athlete and Compensatory Rights Act proposal, which would preempt all state NIL laws, would:

  • Permit student athletes to earn compensation for the use of their name, image, or likeness, while restricting student-athletes from entering endorsement deals with several companies, including those associated with alcohol, tobacco, gambling or drugs.
  • Provide a mechanism for schools to protect existing agreements by preventing student-athletes from entering into agreements that conflict with institutional agreements, unless expressly waived;
  • Protect student athletes and their families from deceptive business practices or exploitation from unscrupulous actors;
  • Provide educational resources to student athletes regarding earning compensation for the use of their NIL;
  • Preserve amateurism by prohibiting institutions from classifying student athletes as employees and prohibiting boosters from directly or indirectly paying student athletes and their families for the use of their NIL;
  • Prohibit third parties from entering into NIL agreements or offering NIL agreements to a student athlete prior to enrollment at an institution;
  • Authorize the Federal Trade Commission (FTC) to select a private, independent, and nonprofit entity to be responsible for developing and administering NIL rules for student athletes, institutions, associations, certified sports agents, and others operating within the college sports ecosystem;
  • Create a uniform, national framework for student athletes to be compensated for the commercial use of their NIL.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing name, image, and likeness issues on the federal and state level, as well as the NCAA’s upcoming vote on its of anticipated final NIL rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

California Senators To Introduce Supplement To SB 206 In Advance Of NCAA’s January Name, Image, and Likeness Vote

California State Senators Nancy Skinner and Steven Bradford, the initial drafters of the historic California state legislation which granted student-athletes the legal right to seek remuneration for their name, image and likeness rights, plan to introduce new state legislation to bolster Senate Bill 206 (SB206).

Although the specific language of the new bill has yet to be introduced, Senator Skinner announced that the language in the new co-sponsored bill will be aimed at ensuring full protection for college athletes’ rights. It would also move up the effective implementation date of SB 206 to no later than January 1, 2022 or to an earlier date, which would coincide with the effective date of any NCAA NIL rule changes.

As a result, if the NCAA’s anticipated effective date for implementation of NIL rules remains August 1, 2021 following their anticipated January 2021 vote, the California law would also become effective on August 1, 2021.

SB 206 won unanimous bipartisan approval in the California legislature (112-0). It made California the first state to legislate the right of college student-athletes to earn compensation from their name, image, and likeness (NIL) when Senator Gavin Newsom signed the bill into law in September 2019. The law authorizes student-athletes to earn income from endorsement and sponsorship deals and further authorizes college athletes to operate a business or take jobs as a coach or instructor.

Of equal importance, the law also specifically prohibits California public postsecondary educational institutions, athletic associations, conferences, or any other organization with authority over intercollegiate athletics from affecting a student athlete’s scholarship or athletic eligibility to participate in college sports for earning compensation in connection with the use of the student athlete’s name, image, or likeness.

Commenting on her new proposed legislation, Senator Skinner stated,

“It’s good that the NCAA has followed California’s lead, but their proposed rules changes come up short. The NCAA doesn’t appear willing to give student athletes the autonomy and full range of benefits that California law does. This new bill will ensure that California athletes are not unfairly and unnecessarily restricted.”

The bill’s co-sponsor Senator Bradford commented on the new bill as well, “preventing students from seeking compensation for their likeness while you profit off it yourself is akin to institutionalized slavery.”

While the NCAA has offered drastic changes with regard to student-athlete NIL rights, the current proposal does not provide the same extensive rights to student-athletes as the California law. Specifically, the NCAA’s current proposal provides schools individual discretion to prevent athletes from entering into endorsement agreements that are deemed to conflict with existing school sponsorship arrangements. While the California law does contain certain limitations, it does not empower each school to enact broad based rules automatically preventing student-athletes from entering into potentially conflicting agreements with school sponsorship deals.

In summary, the new legislation is expected to add several key elements to California’s existing law, including:

  • the move of California’s effective date for NIL rights;
  • the addition of the right to earn compensation from what is known as “athletic reputation,” which ensures that a student athlete could identify the name of their college or university in endorsements and advertisements received; and,
  • the addition of specific protections should the NCAA challenge SB 206 in court or if a California school denies college athletes their rights.

The new bill is also expected to include safeguards to ensure that college athletes are not denied the same basic rights afforded to all other college students, except when it comes to recruitment. This proposed change would also conflict with current NCAA bylaws and anticipated NCAA NIL rules.

Senator Skinner further commented, “The struggle for equality and fairness for student athletes has been underway for decades. California can be proud that SB 206 was the legal kickstart to that movement, prompting states across the country to finally say, ‘no,’ to the exploitation of college athletes,”

Senator Skinner concluded, “This new bill will ensure that California’s achievement is fully protected.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this new proposed California legislation once it is formally introduced. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

His communication acknowledged the song is recognized as

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

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

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

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

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

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

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