Emerging Legal Issues in Collegiate Athletics (Conference Panel 2018)

Emerging Legal Issues in Collegiate Athletics

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  • Moderator:
    • Jayma Meyer, Counsel, Litigation Department, Simpson Thacher & Bartlett LLP, New York, Visiting Clinical Professor, Indiana University, Bloomington, Indiana
  • Panelists:
    • Christian Bray (L’14), Associate Athletic Director for Compliance, Harvard University, Cambridge, Massachusetts, and member, Sports Law Alumni Association
    • Aaron Hernandez (L’13), Assistant Director of Enforcement (Football), NCAA, Indianapolis, Indiana\, member, Sports Law Alumni Association
    • Jessica Kumke (L’08), Associate Athletic Director – Compliance & Enrollment Services, University of Wisconsin-Milwaukee, Milwaukee, Wisconsin, member, Sports Law Alumni Association
    • John Long (L’09), Counsel, Jackson Lewis, P.C., Dallas, Texas, member, Sports Law Alumni Association
    • Mike Marcil (L’85), former Commissioner, Sunshine State and North Central Conference, NCAA Division II, Adjunct Instructor, Bellevue University, Bellevue, Nebraska, member, Sports Law Alumni Association
    • Keith Miller (L’01), Associate Athletic Director - Compliance, Baylor University, Waco, Texas, member, Sports Law Alumni Association
    • Kristina Minor (L’13), Assistant Athletic Director for Compliance, Rutgers University, New Brunswick, New Jersey, member, Sports Law Alumni Association
    • Djenane Paul, Senior Associate Athletic Director/Senior Women’s Administrator, Fordham University, Bronx, New York, member, Sports Law Alumni Association

 

 

Emerging Legal Issues in Collegiate Athletics

  •  “Pay for Play”: The current impact of O’Bannon and future impact of Alston/Jenkins (if the court were to permit schools or conferences to provide payments and other benefits to athletes), including impact on solvency of athletic departments and on women’s sports. Any impact on recruiting and coach’s salaries, spending on lavish facilities, or the arms race among schools? Differences among the Divisions? Do you think consumer demand will diminish if college athletes are paid to compete? Why or why not? How do you make recommendations/ decisions re SAF funds (Student Athlete Assistance Fund)? What exceptions to pay rules do you think should be changed?
  • Basketball Scandal: Reaction to the Basketball Commission report and recent changes implemented after the report.  How do you monitor coaches and athletes to ensure no violations similar to those alleged in indictments?  What did you do upon notice of the scandal, e.g., conduct internal investigation?  What other recommendations would you have made if you were on the Rice panel?  Will possible elimination of “one and done” have a positive impact?  If Jenkins is successful and athletes are paid, will that eliminate under the table payments and bribes?
  • Crisis Management:  How are you dealing with sexual harassment in order to avoid problems such as have occurred with Nasser, Baylor, OSU, etc.? Additional training of staff, coaches and athletes? Additional contract provisions in coach’s contracts?  Additional restrictions on in-coming athletes e.g., IU’s ban? What specific due process protections of the accused are necessary? Related generally to crisis:  under what circumstances do you advise a school (President, AD, coach, etc) to admit to wrong doing (e.g., Loh and Evans at Ohio State) and what complications may that present?  How do you go about hiring a law firm to do an investigation in connection with a crises and do you recommend the report and findings be written (Baylor)?  To whom should the findings be presented?  How and what receives attorney-client or attorney work-product protection?  What do you look for when hiring a law firm for litigation involving a crises?  How do you keep coaches and athletic staff/administration from interfering with sexual assault allegations against athletes and leave the process to law enforcement or campus Tile IX office?
  • Gambling:  Impact of Supreme Court’s PASPA decision and how it might impact collegiate athletics. What are the proper gambling bounds for college athletics and college athletes?  What additional surveillance or measures are you taking to detect gambling or point shaving?  If the NBA or other professional leagues receive an integrity fee, should the NCAA also receive such?
  • Safety and education:  Role of the university/athletic department v. NCAA in keeping athletes safe and educated (Maryland, UNC, Notre Dame).  Talk about the duty of care re safety whether it is overheating of players during practices, concussions, or other safety matters.  What rules have been enacted and what other rules might be appropriate to prevent and properly monitor concussions (and return to play and school rules/guidelines)?  Should the NCAA have more rules not just guidance, best practices, or recommendations in some of these areas or fewer and leave the duty and responsibility to the schools? Should there be NCAA rules re academic standards other than the focus on the number of classes taken and metrics such as graduation rates and gpa’s to help avoid another UNC problem?
  • Freedom of speech and expression:  Generally, what has been the impact of social media on rules compliance, monitoring and communication with student athletes? What are proper bounds of codes of conduct so that First Amendment rights are still protected and should they be different for athletes than for the student body as a whole? What are the specific interests of an athletic department in monitoring or controlling speech of athletes?  What steps have you taken regarding activism by athletes or threatened activism?  Knelling during the national anthem OK?
  • NCAA role:  Do we need an antitrust exemption from Congress so limits on the commercialization of college sports is protected? How would you change the governance of the NCAA, e.g., should the NCAA be governed by more independent experts? Should the investigatory functions and decision making re infractions be done by outside experts?
  • Gender Equity:  Title IX: How do you monitor for compliance?  What rules could the NCAA enact that would help ensure compliance?  Are female roosters inflated frequently? Make any sense to include male practice athletes as women for participation purposes?  Athletic Department Diversity and Inclusion:  What steps are taken to hire women coaches for at least women’s teams and to bring about parity in administration? 

 

SUPPLEMENTARY RESOURCES FOR  LEGAL ISSUES IN COLLEGIATE ATHLETCS

Statutory Law

Case Law

Collegiate Athletics Rules and Reports

Rules, Regulaions and Reports:

NCAA Resources

Federal Gudiance and Guidelines

Legal Periodicals