Blog: The California Workplace Advisor

Dear Clients and Friends,

We are pleased to provide you with the following update authored by our new senior colleague, Jeffrey Orleans, former Executive Director of the Ivy League, who has joined our firm of counsel with a focus on athletics issues.  Jeff currently Co-Chairs the NCAA’s Gender Equity Task Force, and also consults to the Knight Foundation Commission on Intercollegiate Athletics; he has decades of experience both with Title IX and on many NCAA governance committees.

We want to wish all of you a great beginning to the new academic year – and before we get too far into that year, to share with you our “watch list” of matters related to college athletics – an area that recently has generated important legal headlines.  To help ensure that our clients are employing maximally effective risk management strategies for their athletic programs, we also expect to convene this winter a number  of regional discussions that will focus on using conferences and leagues as the focus for various compliance efforts and for programmatic change.

We predict continuing uncertainty over the next year, from three different sources, about athletic governance and finance, and the structure of financial relations between athletes and institutions, both in the select group of “high-revenue” Division I leagues and also in the rest of Division I and, though less directly, in Divisions II and III as well:

• The recent 9th Circuit panel decision in the O’Bannon litigation, holding that NCAA rules about “amateurism” are subject to “rule-of-reason” antitrust analysis;
• The effect of this decision on the Jenkins and Alston cases, which broadly challenge NCAA limits on athletic grants-in-aid, particularly whether these cases will be allowed to proceed as class actions; and,
• The NLRB’s dismissal of a unionization petition by football players at Northwestern University, which highlights the issue of how athletes actually participate in setting the rules that govern their athletic activities.  (The NLRB ruling is explored at greater length in an article by Jeff and Christine Helwick of our firm, Where the Football Union Fight Goes Next.)

Many NCAA and other groups are seeking to shape these areas, with new developments anticipated at and after the January 2016 NCAA Convention.  We have been in discussions with many of our clients regarding these issues, and will update you as these landscapes change.

While the finances and future of Division I schools and conferences are very visible topics, their resolution will directly affect only a minority of institutions that sponsor athletics.  There are many immediate issues that involve athletics at all institutions, three of which we consider especially important, and all of which we think will benefit from league-wide consideration.

Integrated Approach to Athletics

First, institutions must be mindful of and employ strategies to fully apply institution-wide approaches for the myriad of today’s “student experience” issues, to the ways in which these issues are addressed by athletic departments, teams, staff and athletes.  For example, policies and procedures in areas such as sexual harassment and abuse, hazing, campus speech, Greek life, academic integrity, and relations with local police authorities all should apply fully to athletics – especially since matters involving student-athletes are likely to very visible on campus and to alumni and local communities.

Institutions must ensure that their athletics programs (including intramural and recreational activities) are fully integrated not only into institutional Title IX administration (especially given the Office for Civil Rights’ recent re-emphasis of the campus-wide role of the Title IX Officer), but in all student affairs and disciplinary and judicial approaches, at each step from creating policies through campus education and programming to, when needed, crisis management.

Conference-wide discussions can improve institutional efforts in all these areas.  But perhaps nowhere can a “conference” approach be as helpful as in attention to the developing science and approaches in a number of areas that affect athletes’ health, including especially the appropriate responses to concussions, and to returning to practice or competition after injuries.

Compliance with Title IX 

Second, Title IX’s oversight of gender equity should continue to have your close attention, both as to the “three-prong” test for participation rates and sponsored sports, and as to resources and support for men’s and women’s team:  precisely because these are not new areas, it’s essential not to let compliance responsibilities be overshadowed by more novel or “visible” matters.  Careful Title IX analysis and strategy are especially important when institutions plan to sponsor new sports as part of enrollment strategies, or are facing financial pressures, with possible effects on both athletic participation patterns and team budgets.

We strongly recommend collaborative efforts among institutions to identify positive and cost-effective strategies at the conference level, with a focus on adding new league-wide women’s sports to promote compliance by all institutions in a conference, and we expect to make such efforts a focus of the regional client discussions we will develop this winter and spring, as discussed below.

Cost of Attendance Analysis and Decisions

Finally, NCAA rules now permit all Division I institutions to award athletic “grants-in-aid” that cover the full published institutional “cost of attendance” (“COA”), over and above the traditional tuition, room and board, and books and fees (an approach also endorsed by the 9th Circuit in O’Bannon).  Conferences and institutions must consider the three overlapping questions which this change presents:

• Deciding in which if any sports to increase aid, and how to pay for that increase;
• Applying NCAA rules in a gender-equitable way for the two different kinds of grants (“headcount”, and “equivalency” or “FTE); and
• Assuring that any changes in institutional COA levels are implemented appropriately across the whole institution.

As noted earlier, we expect that there will be additional NCAA rule-making in this area – but that most decisions will be made at the conference level, and thus will require coordinated analysis by all conference members.

We will keep you informed of changes in all these areas as they arise throughout the 2015-16 academic year, and we hope you will contact us with any questions or concerns about these issues or any other areas related to college athletics..

Following the NCAA Convention, we will be convening a series of regional discussions, on the West Coast and in the Northeast, to discuss how effective strategies for compliance in these areas can be developed at the conference level.  Please let us know if you have an interest in participating and we will make sure that you receive an invitation.

If you have any questions or concerns, please contact Natasha Baker at 415.835.9004 or by email at nbaker@HKemploymentlaw.com or Jeff Orleans at 415.835.9014 or by email at jorleans@HKemploymentlaw.com.