As of this writing, it has been over 850 days since the UConn women’s basketball team has lost a game. When the Huskies last tasted defeat (in an overtime thriller to Stanford on November 17, 2014), football players at Northwestern University were pursuing their rights to collectively bargain after a ruling by the NLRB regional director in Chicago held they were statutory employees. While the undefeated nature of women’s basketball in Storrs, CT has been a constant, the NLRB changed the game for Northwestern football players by declining to assert jurisdiction. However, there remains a feeling in certain quarters of college sports that some form of pay to student-athletes is inevitable.
It’s our favorite time of year over at Employment Matters – March Madness! Let’s quickly recap where we’ve been.
This is the second installment of a series regarding legal issues affecting college athletics that will run during this year’s NCAA basketball tournament.
It is no secret that the salaries of coaches of high profile college programs are rising steadily. In a recent report listing the highest paid public employee for each of the fifty states, 40 were college coaches. While Alabama football coach Nick Saban led that list with annual compensation of around $7 million, the Chronicle of Higher Education also reported the Crimson Tide were just 1 of 10 athletic programs in 2014 to give more money back to its campus than it received in subsidies. As a famous comic book hero once said – “with great power, comes great responsibility.” It is therefore important to examine the legal concerns affecting coaching pay, which based on recent events, will increasingly include responsibility for conduct detrimental to athletic programs.
This is the first installment of a series regarding legal issues affecting college athletics that this blog will run during this year’s NCAA basketball tournament.
Two horrible March Madness brackets ago, we analyzed the myriad of legal and operational challenges that could change the face of intercollegiate athletics. The smoke has begun to clear on one critical issue – student-athletes have not been granted standing to assert rights as employees. Interestingly, the recent decisions involving the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) on this issue have come at a time of expanding rights for student-athletes.
My colleague Tyrone Thomas, was quoted in the Law360 article entitled College Player Compensation Issue Rages on Despite Reforms in which he analyzes the impact of education-based reforms made by several NCAA conferences may have on existing legal matters that are challenging the amateurism model of college athletics. The article examines the precedent set by the O’Bannon v. NCAA ruling in 2015 and outlines other legal efforts to compensate student-athletes.
My colleague, Tyrone Thomas was quoted in the Law360 article, Attorneys React to NCAA Student-Athlete Pay Ruling, in which he analyzes the Ninth Circuit Court’s decision to strike down the NCAA’s ban on paying student-athletes and outlines the positive implications of the decision for the NCAA. The article offers expert insight from various attorneys on the significance of the ruling.
Tyrone Thomas was also quoted in the BloombergBusiness article, NCAA Athletes May Face Long Next Yard in Bid for Free-Market Pay, in which he explains the ruling’s impact on efforts to eliminate limits on compensation for college athletes. In the aftermath of the ruling, the article examines potential damages and the precedent set for related cases such as compensation for former athletes and women basketball players.
In another Law360 article, NCAA Scores Big at 9th Cir. In Amateur Sports Fight, Tyrone Thomas contextualizes the latest “loss” for the NCAA regarding the compensation of student-athletes as a much anticipated shift in the NCAA’s student-athlete model. The article outlines the significance of the amateur classification of college athletes to the changing economics of college sports.
My colleague Tyrone Thomas was quoted in a New York Times article entitled, “Union Ruling Underlines NCAA’s Evolution” addressing The National Labor Relations Board’s ruling that Northwestern football players could not unionize. The article outlined the rationale for the NLRB’s decision and the positive reforms passed by the NCAA since Northwestern’s players filed the petition to unionize.
In a mild surprise given the current constitution of the Board (read – majority appointed by President Obama), the NLRB declined to assert jurisdiction in ruling on the petition of Northwestern University’s scholarship football players to unionize. However, in a display of special teams not seen on a football field in Evanston, Illinois since the days of John Kidd, the NLRB reached its decision without determining if scholarship players were “employees” under the National Labor Relations Act. Even with this limitation, it is clear competitive balance considerations for NCAA Division I sports has received great deference as a policy matter in a legal dispute.
Sixty-four employment law issues have become just two after an exciting Final Four. Last night, while Wisconsin and Duke played each other in the NCAA championship, the Wage and Hour Collective Actions and the Retaliation Claims faced off in the ELIT championship. Which one were you watching? (Don’t answer that.) Hosted this year in the Fifth Circuit down in the Big Easy, home to some of the most memorable championship games in history (North Carolina over both Georgetown (1982, MJ’s shot) and Michigan (1993, CWebb’s TO), Indiana over Syracuse (1987, Smart’s Baseline Jumper), Syracuse over Kansas (2003, Warrick’s Block), and of course Race Discrimination over Exemption Misclassification (2006, Pretext’s half-court game-winning buzzer beater)), this year’s ELIT championship game was just like the tournament generally – everything we hoped it would be and more.
And believe it or not, we finally received positive feedback about our tournament coverage. Linda, the Head of HR at SoulReCycle, which provides customers with the privilege of paying $30 a class to furiously return soda cans to local supermarket recycling machines while an environmental education instructor blasts Top-40 hits and screams at you for seemingly no reason, left us a voicemail stating: “I don’t care what anyone says, and I don’t care that I have no idea what you are talking about; this is so great, I’m just so proud of you and I can’t wait to tell my friends all about it tonight at our canasta game.”
Okay, so that voicemail may have been from one unnamed contributor’s mother-in-law – but honestly, we are proud of ourselves too. We had a lot of fun running this tournament over the law few weeks and we hope that our (real) readers did too. Seriously, you haven’t lived until you’ve watched two grown employment lawyers intensely debate who would win a game between the Social Media Policies and a Hostile Work Environment if those two issues were actually real basketball teams playing in an actual real basketball game. And the debate was no less healthy when it came to our championship matchup between Wage & Hour Collective Actions and Retaliation Claims. So, without further ado, here is that recap (followed by an important message from our sponsors and an unforgettable rendition of One Shining Moment Lawsuit).
“There’s a tradition in tournament play – not to talk about the next step until you’ve climbed the one in front of you. I’m sure writing a tournament championship blog entry is beyond your wildest dreams, so let’s just keep it right there.” That’s a direct, completely unaltered quote from Norman Dale, Esq. in Barristers, a movie about a small town law firm that unexpectedly wins the biggest case of the year. Alternatively, that’s a slightly-altered quote from Coach Norman Dale in Hoosiers, a movie about a small-town high school basketball team that defies the odds to win the 1952 Indiana State High School Basketball Championship. And although we’re super excited that the finish line is near, we are going to heed Counselor Dale’s advice and focus squarely on this Final Four post.
The Final Four was spectacular – Social Media Policies battling it out against the Retaliation Claims; Non-Competition Agreements taking on Wage & Hour Collective Actions – each is an important employment law issue in its own right, but only one can call itself the most important of 2015. These games were everything we hoped they would be and more. Our readers, of course, vehemently disagreed. Here now, as we inch closer to the proverbial cutting down of the nets, are two relevant reader comments.
Melvin, an Employee Relations Associate at CrossKnit, the premier high-intensity multi-stitching technique workout club in the US, wrote in to say: “What a sham. Social Media Policies ran the weave flawlessly and threaded the needle consistently throughout the game and still lost?!? Impossible. I’m never reading this blog again.” And then there was Allan, a Training and Development Manager at The Walking Thread, a local company offering walking tours of the city’s finest yarn stores. Allan emailed us to simply say: “Unsubscribe.” No single word hurts a blogger more than that. Please reconsider Allan. Please.
Okay, onto the Final Four games.