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
- Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act of 2017, S. 534, 115th Cong.
- Ted Stevens Olympic and Amateur Sports Act, 36 U.S.C. § 220501 et. seq. (2018).
- Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et. seq. (2018).
Case Law
- Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018), available at https://scholar.google.com/scholar_case?case=6336903476694992840&q=Murphy+v.+NCAA&hl=en&as_sdt=6,50.
- Nat’l Collegiate Athletic Ass’n v. Christie, 730 F.3d 208 (3d Cir. 2013), available at https://scholar.google.com/scholar_case?case=5051117760751020929&q=Murphy+v.+NCAA&hl=en&as_sdt=6,50.
- Alexandra Raisman vs. United States Olympic Committee et al, Complaint for Damages, Docket No. 18CV323989 (Super. Ct. Cal. 2018).
- Alexandra Raisman vs. United States Olympic Committee et al, Notice of Motion and Motion to Dismiss, Civil Case No.: 5:18-cv-2479-BLF (N. Dist. Cal. 2018).
- Alston v. NCAA, SB Key Highlights, (September 18, 2018 10:36 AM).
- Avila v. Citrus Community College Dist., 38 Cal.4th 148 (Ca. 2006).
- Barrs v. The SEC, 734 F. Supp. 2d 1229 (N.D. Ala. 2010).
- Bradley v. NCAA, 249 F.Supp.3d 149 (DC 2017).
- Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992).
- Davidson v. University of N.C. at Chapel Hill, 142 N.C. App. 544 (Ct. App. N.C. 2001).
- Denhollander, et. al., v. Michigan State University, Complaint and Jury Demand, Case 1:17-cv-00029-GJQ-ESC (Jan. 10, 2017, and Fifth Amended Complaint (Feb. 28, 2018).
- Doe 1 et al v. The Ohio State University, Class Action Complaint, Docket No. 2:18-cv-00692 (S.D. Ohio 2018)
- Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1993).
- Haffer v. Temple Univ., 678 F. Supp. 517 (1987).
- Hendricks v. Clemson Univ., 578 S.E.2d 711 (S.C. 2003).
- In Re: NCAA Athletic Grant-in-Aid Cap Antitrust Litigation, Second Amended Complaint, Case No. 4:14-cv-02758-CW (Feb. 13. 2015).
- Jenkins v. NCAA, Complaint and Jury Demand – Class Action Seeking Injunction and Individual Damage, (Dist. Ct. N.J. filed Mar. 17, 2014).
- Kennedy v. Robert Morris Univ., 133 A.3d 38 (PA Super. Ct. 2016).
- Kennedy v. Syracuse Univ., 1995 WL 548710 (N.D. N.Y. 1995).
- Lanni v. NCAA, 2015 WL 5037294 (Ct. App. Ind. 2015).
- Maroney v. Mich. St. Univ., USOC, USA Gymnastics, Nasser, Complaint for Damages, Case No. BC 687396 (Super. Ct. Cal. 2017).
- McAdoo v. Univ. of North Carolina at Chapel Hill, 736 S.E.2d 811 (N.C. Ct. App. 2013).
- McCants v. NCAA, 251 F.Supp.3d 952 (M.D. NC 2017).
- O'Bannon v. National Collegiate Athletic Ass'n, 802 F.3d 1049 (9th Cir. 2015).
- O'Bannon v. NCAA, 7 F. Supp. 3d 955 (N.D. Cal. 2014).
- Pinard v. Clatskanie Sch. Dist., 467 F.3d 755 (9th Cir. 2006).
- Pinson v. State of Tennessee, 1995 Tenn. App. LEXIS 807 (Ct. App. Tenn 1995).
- Plancher v. UCF Ath. Ass'n, 175 So. 3d 724 (Fla. 2015).
- Pugh v. NCAA, 2016 U.S. Dist. LEXIS 132122 (S.D. Ind. 2016).
- Ross v. Creighton Univ., 957 F.2d 410 (7th Cir. 1992).
- Ryan v. Mesa Unified Sch. Dist., 195 F.Supp.3d 1080 (D. Ariz. 2016).
- Schmitz v. NCAA, 2016-Ohio-8041 (2016).
- Searles v. Trustees of St. Joseph’s College, 695 A.2d 1206 (Me. 1997).
- Smith v. NCAA, 266 F.3d 152 (3d Cir. 2001).
- Tinker v. Des Moines Sch. Dist., 393 U.S. 503 (1969).
- U.S. v. Gatto, Sealed Complaint, 17 Mag. 7129 (Sept. 25, 2017).
- Vassar v. NCAA & Northwestern Univ., Class Action Complaint, Case 1:16-cv-10590 (N.Dist. Ill. 2016).
Collegiate Athletics Rules and Reports
- Commission of College Basketball, Commission on College Basketball: Report and Recommendations to NCAA Board Of Governors, Division I Board of Directors and NCAA President Emmert, (April 2018).
- Commission of College Basketball, Independent Commission on College Basketball Presents Formal Recommendations, (April 25, 2018).
- Investigation of Irregular Classes in the Department of African and Afro-American Studies at the University of North Carolina at Chapel Hill, Executive Summary (Oct. 16, 2014).
- Report of the Special Investigative Counsel Regarding the Actions of The Pennsylvania State University Related to the Child Sexual Abuse Committed by Gerald A. Sandusky (July 12, 2012).
- University of North Carolina at Chapel Hill Public Infractions Decision (Oct. 13, 2017).
- University of Northern Colorado Public Infraction Decision (Dec. 15, 2017).
Rules, Regulaions and Reports:
- 2.9 The Principle of Amateurism
- NCAA Div. 1 Manual 2018-2019, Principle 2.9 at 4.
- 2.12 the Principle governing eligibility
- NCAA Div. 1 Manual 2018-2019, Principle 2.12 at 5.
- 2.13 the Principle governing Financial Aid
- NCAA Div. 1 Manual 2018-2019, Principle 2.13 at 5.
- 15.01.6 Maximum institutional Financial Aid to individual.
- 15.01.6.1 Student Assistance Fund.
- NCAA Div. 1 Manual 2018-2019, Bylaw 15.01.06 at 199-201.
- 12.02.10 Pay.
- NCAA Div. 1 Manual 2018-2019, Bylaw 12.02.10 at 62.
- 12.1.2 Amateur status.
- NCAA Div. 1 Manual 2018-2019, Bylaw 12.1.2 at 63-64.
- 12.1.2.1 Prohibited Forms of Pay.
- NCAA Div. 1 Manual 2018-2019, Bylaw 12.1.2.1 at 64-68.
- 12.5 Promotional Activities.
- NCAA Div. 1 Manual 2018-2019, Bylaw 12.5 at 73.
- 12.5.2 Nonpermissible [Forms of Payment]
- NCAA Div. 1 Manual 2018-2019, Bylaw 12.5.2 at 76.
- 16.11.1.8 Student Assistance Fund.
- NCAA Div. 1 Manual 2018-2019, Bylaw 16.11.1.8 at 76.
NCAA Resources
- NCAA Board of Governors, Policy on Campus Sexual Violence (Adopted Aug. 8, 2017)
- NCAA Research, Division I Men’s Basketball Study on Youth Sport, Recruiting and College Choice, (May 1, 2018).
- NCAA, Concussion Diagnosis and Management Best Practices, (visited Sept. 28, 2018).
- NCAA, Sexual Assault and Interpersonal Violence, (last visited Sept. 28, 2018).
- NCAA, Sports Wagering, (visited Sept. 28, 2018).
- NCAA, Student-Athlete Participation 1981-82 – 2016-2017, NCAA Sports Sponsorship and Participation Rates Report
- NCAA, Title IX and Gender Equity
- Report of Independent Investigative Counsel Regarding The Michigan State University Football Program’s Response To Incidents Of Alleged Sexual Violence, Jones Day (June 2017).
Federal Gudiance and Guidelines
- A Policy Interpretation: Title IX and Intercollegiate Athletics, Federal Register, Vol. 44, No. 239 (Dec. 11, 1979)
- Dear Colleague Letter: Athletic Activities Counted for Title IX Compliance, Sept. 17, 2008.
- Dear Colleague Letter: Bowling Green State University, July 23, 1998.
- Dear Colleague Letter: Intercollegiate Athletics Policy Clarification: The Three-Part Test – Part Three, April 20, 2010
- Norma Cantu, Assistant Secretary for Civil Rights, Dear Colleague Letter: Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test, OFFICE FOR CIV. RIGHTS, U.S. DEP’T OF EDUC. (Jan. 16, 1996)
- Office for Civil Rights, Michigan State University, OCR Docket # 15-11-2098 and #15-14-2113 (Sept. 1, 2015)
- Resolution Agreement, Michigan State University, OCR Docket # 15-11-2098 and #15-14-2113
- Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (2001).
- U.S. Dept. of Educ., Q&A on Campus Sexual Misconduct (Sept. 2017).
- University of Montana Dear Colleague Letter: The Blueprint (May 9, 2013).
Legal Periodicals
- Adam Epstein and Paul M. Anderson, The Relationship Between a Collegiate Student-Athlete and the University: An Historical and Legal Perspective, 26 Marq. Sports L. Rev. 287 (2016).
- Andrew Maykuth, What Are the Odds? Colleges Fear Sports Betting Will Lead to Cheating. The Inquirer, (posted Sept. 14, 2018).
- Andrew Rhim, The Special Relationship Between Student-Athletes and Colleges: An Analysis of a Heightened Duty of Care for the Injuries of Student-Athletes, 7 Marq. Sports L. J. 329 (1996).
- Andy Schwarz and Richard J. Volante, The Ninth Circuit Decision in O'Bannon and the Fallacy of Fragile Demand, 26 Marq. Sports L. Rev. 391 (2016) http://scholarship.law.marquette.edu/sportslaw/vol26/iss2/7.
- Anita M. Moorman and Barbara Osborne, Are Institutions of Higher Education Failing to Protect Students?: An Analysis of Title IX's Sexual Violence Protections and College Athletics, 26 Marq. Sports L. Rev. 545 (2016).
- Ante Z. Udovicic, Special Report: Sports and Gambling a Good Mix? I Wouldn't Bet on It., 8 Marq. Sports L. J. 401 (1998).
- Babette Boliek, The Potential Reach of O’Bannon v. NCAA, 5:1 Miss. Sports L. Rev. 28 (2015) http://mssportslaw.olemiss.edu/files/2016/05/Boliek-Article-Final-Draft-formatted.pdf.
- Barbara Osborne, Title IX in the 21st Century, 14 Marq. Sports L. Rev. 141 (2003).
- Baylor University Settles Sexual Assault Lawsuit with Former Student, CBS NEWS, (July 7, 2017).
- Bill Mears and the Associated Press, Supreme Court Rules States Can Legalize Sports Betting, Strikes Down Anti-Gambling Law, (posted May 14, 2018).
- Daniel R. Marburger and Nancy Hogshead-Makar, Is Title IX Really to Blame for the Decline in Intercollegiate Men's Nonrevenue Sports?, 14 Marq. Sports L. Rev. 65 (2003).
- Dear Colleague Letter (Sexual Violence Letter) - April 4, 2011, 22 Marq. Sports L. Rev. (2012).
- Ellen J. Staurowsky, Title IX and College Sport: The Long Painful Path to Compliance and Reform, 14 Marq. Sports L. Rev. 95 (2003).
- Erika Tripp, Sexual Harassment in Sports: How "Adequate" is Title IX?, 14 Marq. Sports L. Rev. 233 (2003).
- James Potter, The NCAA as State Actor: Tarkanian, Brentwood, and Due Process, 155 U. Pa. L. Rev. 1269 (2007).
- James T. McKeown, 2008 Antitrust Developments in Professional Sports: To the Single Entity and Beyond, 19 Marq. Sports L. Rev. 363 (2009).
- John Counts, Larry Nassar Wants a New Sentencing, Claims He Was Beaten in Prison, Michigan Live, (posted July 25, 2018; updated August 3, 2018).
- Kevin Stangel, Protecting Universities' Economic Interests: Holding Student-Athletes and Coaches Accountable for Willful Violations of NCAA Rules, 11 Marq. Sports L. Rev. 137 (2000).
- Larry Nassar Case: The 156 Women Who Confronted a Predator, BBC News, (posted Jan. 25, 2018).
- Lauren Thomas, FBI Arrests NCAA Basketball Coaches and Adidas Rep in Bribery Probe Involving Recruitment, CNBC, (Sept. 26, 2017).
- Lee Goldman, Sports and Antitrust: Should College Students Be Paid to Play, 65 Notre Dame L. Rev. 206 (1990).
- Marc Edelman, A Short Treatise on Amateurism and Antitrust Law: Why the NCAA’s No-Pay Rules Violate Section 1 of the Sherman Act, 64 Case. W. L. Rev. (2013).
- Mark Edelman, A Prelude to Jenkins v. NCAA: Amateurism, Antitrust Law, and the Role of Consumer Demand in a Proper Rule of Reason Analysis, 68 La. L. Rev. 227 (2017).
- Matthew J. Mitten, "Why and How the Supreme Court Should Have Decided O’Bannon v NCAA" (2017) Faculty Publications. 683. https://scholarship.law.marquette.edu/facpub/683.
- Matthew J. Mitten, Applying Antitrust Law to NCAA Regulation of "Big Time" College Athletics: The Need to Shift from Nostalgic 19th and 20th Century Ideals of Amateurism to the Economic Realities of the 21st Century, 11 Marq. Sports L. Rev. 1 (2000),
- Max Mitchell, Justices Take Up Case on Colleges' Duty of Care to Student-Athletes, The Legal Intelligence, (Dec. 4, 2017).
- Michael Larkin, These Casino Stocks Take Knee as NFL Asks Congress for Sports Betting Law, Investor’s Business Daily, (posted Sept. 27, 2018).
- Michael Steele, O’Bannon v. NCAA, 99 Marq. L. Rev. 511 (2015). Available at: http://scholarship.law.marquette.edu/mulr/vol99/iss2/9.
- Michelle D. McGirt, Do Universities Have a Special Duty of Care to Protect Student-Athletes from Injury, 6 Jeffrey S. Moorad Sports L. J. 219 (1999).
- N.C.A.A. Coaches, Adidas Executive Face Charges; Pitino’s Program Implicated, The New York Times, (Sept. 16, 2017).
- Noah Trister, NCAA Finds No Rules Violations in Nassar Scandal, U.S. News, (posted Aug. 30, 2018).
- Noel Johnson, Tinker Takes the Field: Do Student Athletes Shed Their Constitutional Rights at the Locker Room Gate?, 21 Marq. Sports L. Rev. 293 (2010).
- Parnther, Ceceilia; Deranek, Jennifer; and Michel, Scott, Title IX and the Impact of Athletic Leadership, 7 The Hilltop Rev. 49 (2014).
- Paul Steinbach, Schools Attempt to Control Athletes' Social Media Use, Athletic Business (posted Oct. 2012).
- Recent Court Decisions Regarding a University’s Duty of Care, University System of New Hampshire, (May 17, 2018).
- Rodney K. Smith, A Brief History of the National Collegiate Athletic Association's Role in Regulating Intercollegiate Athletics, 11 Marq. Sports L. Rev. 9 (2000).
- Scooby Axson, List of Schools Implicated in NCAA Basketball Scandal, Sports Illustrated, (posted February 28, 2018).
- Scott Cacciola & Victor Mather, Larry Nassar Sentencing: “I Just Signed Your Death Warrant”, The New York Times, (Jan. 24, 2018).
- Zach Schreiber, The Time Is Now: Why the United States Should Adopt the British Model of Sports Betting Legislation, 27 Fordham Intell. Prop. Media & Ent. L. J. 353 (2017).