In February, 6’3”, 310-pound offensive lineman Brock Hoffman agreed to transfer to and play football for Virginia Tech. He followed proper NCAA procedures and filed a waiver request to play football at Virginia Tech this upcoming season because, according to the current NCAA rules, a college athlete who transfers from a four-year college to an NCAA institution must complete one academic year of residence unless they qualify for a transfer exception or are granted a waiver from the rule. So, he sought immediate eligibility under NCAA Bylaw 14.7’s “Residency Requirement" relief, reportedly stating that he is transferring to be closer to his mom since she had a brain tumor removed and still suffers lingering effects from the surgery (“facial paralysis, hear (sic) loss and eye sight issues”).
The NCAA denied Hoffman’s waiver request.
Let’s talk a bit about (a) the requirements for this type of transfer waiver, (b) whether Hoffman’s case satisfies those requirements and whether the facts could be used in a different way for a stronger argument in his favor, and (c) how this is likely to go down on appeal and why.
Waivers Concerning an Immediate Family Member Illness or Injury
In addition to the NCAA Bylaws governing transfer procedures, the Division I Legislative Council’s Subcommittee for Legislative Relief determines certain guidelines in interpreting rules’ application. The subcommittee made a change back in 2012 to what the legislative relief staff can consider when a college athlete transfers to a school closer to home because of an immediate family member’s illness or injury. In short, here are the main considerations:
(1) The injured or ill “immediate family member” is limited to the player’s mom, dad, sibling, child, or legal guardian;
(2) The injury or illness must be “debilitating” and requiring ongoing care; and
(3) The new school must be within 100 miles of the immediate family member’s residence.
To reiterate, those reviewing the waiver request are simply directed to consider these in making its determination; it does not necessarily mean a request will be granted or denied with certain interpretations. A player has a right to appeal, as always, but filing an appeal is more time consuming and leaves the player hanging in a stressful, unknown status.
Analyzing Hoffman’s Case
Strictly speaking, Hoffman’s case does not satisfy the NCAA’s requirements to receive a residency requirement waiver because (a) he is a football player, and (b) his new school is not within 100 miles from his mother’s residence, and the decision could also be influenced by the illness’ status at the time he chose to file his waiver request (but the details of when the tumor was discovered, exactly when the surgery took place and how long has passed since, his mother’s health status before and after the surgery, and where in that timeline Hoffman began to file his request are not publicly available at this time, and the NCAA likely will not disclose this information).
NCAA Bylaw 220.127.116.11.10 states that college athletes who participate “in a sport other than baseball, basketball, bowl subdivision football or men’s ice hockey at the institution to which the student is transferring” may qualify for the one-time transfer exception if a few other conditions are met. Being a football player, therefore, severely restricts a college athlete’s mobility compared to many other college athletes. Is this fair? I do not think so whatsoever, but the NCAA and its member institutions argue this is critical to protecting amateurism and college athletics. This restriction, which I believe violates section 1 of the Sherman Act as an unlawful restraint of trade, is the college athletics cartel having a crack at controlling their own interests while disguising it as being in these young players’ best interests so they can develop into strong leaders with integrity making a difference in this world. That logic totally makes sense…
Anyway, Hoffman is a football player. If he wants to seek relief from completing the residency requirement, he needs to fall within another exception or apply for a waiver. He would not be able to meet any of the exceptions listed in Bylaw 14. Thus, he appropriately filed for a Residency Requirement Waiver described in Bylaw 14.7.2.
Although his mother is an “immediate family member” by definition, Virginia Tech is outside of the 100 mile radius that the institution the player moves to should be within. While his mother’s exact home address is unknown and assuming that his mother resides in his declared hometown of Statesville, North Carolina, I did a bit of high-tech scientific research using Google Maps to measure the approximate distance between Statesville and Virginia Tech and to other Division I institutions for comparison’s sake. Virginia Tech is considerably closer to Statesville than Coastal Carolina. A reasonable person would say that alone could be sufficient if it was not for the NCAA rule, but as you can see, the approximation shows Virginia Tech to be a bit outside the 100 mile zone.
For comparison, from a general point in Statesville, Virginia Tech is approximately the same distance away as Duke and UNC - Chapel Hill. Hoffman could argue that there is no “Power 5” school within the 100 mile radius besides Wake Forest (approximately 45 miles) that could satisfy the requirement and that his collegiate potential should not be limited because of a trivial numerical distance. On the other hand, there are many non-”Power 5” Division 1 institutions that appear to be within the 100 mile radius that Hoffman could have chosen to transfer to and likely receive immediate eligibility to play football (distances approximated): Appalachian State University (65 miles), Davidson College (20 miles), East Carolina University (45 miles), Gardner-Webb University (70 miles), High Point University (60 miles), and others. The NCAA wants to continue to attempt stressing the academic reasons for transfers rather than athletic reasons, and because of its persistent - and yet, anemic - argument that amateurism needs restrictions like these, it is no surprise that an argument focusing on the availability of local schools like this would not be successful in an initial request.
The NCAA also requires the college athlete to submit medical documentation of the immediate family member’s injury because it should be “debilitating,” though there is no clear-cut expression of what constitutes such a level. The NCAA can have other medical professionals review the documentation and advise the legislative staff on the injury or illness status, but as uncomfortable as it feels, we basically have the NCAA deciding what injuries or illnesses are serious enough that permit a student to be able to participate in a sport at a school closer to home. Here, Hoffman states that his mother is still suffering the aftermath symptoms from surgery whereas the legislative relief staff allegedly stated that her improving condition was one of the factors it used in denying his waiver request. I concur with my friend Sean who messaged me a possible explanation this morning. He reasoned that maybe the staff made its ruling by falling on the “no longer having that medical issue” side instead of interpreting the facts as “after-effects of that medical issue” still rendering her debilitated. As stated earlier in this section, we do not know the details of the timeline, etc., but it is important to address that these facts exist because both parties use them in their reasoning, or it could be possible that the argument was not made. More importantly, do we want or need legislative members of the NCAA to consider this?
According to a Virginia Tech source who knew the details of the case well, the school was “cautiously optimistic” about Hoffman’s case at the time it gathered the necessary paperwork and filed the request. This particular feeling - being “cautiously optimistic” - is not uncommon, though. Schools are in a delicate position because they will only put forth the effort to help compile the folder if they believe there is a chance to get the waiver, but they do not want to get the player’s hopes up because the NCAA’s decision-making is bluntly and awfully inconsistent. When you combine the school’s passion for moving forward with an appeal with the presently very public facts at hand and the full committee’s purpose in the appeals process, Hoffman has a strong likelihood of getting his waiver request granted on appeal.
What to Watch on Appeal
The Division I Legislative Council’s Subcommittee for Legislative Relief was created back in 1993 in order to have increased rules flexibility. With respect to an appeal of a staff decision, the full committee’s purpose is to review a request on a case-by-case basis and determine whether it will choose not to strictly apply the rule in that particular instance. Only a simple majority vote of the full Legislative Relief committee is needed to make this decision. Unlike a request’s initial review, which typically needs to stay true to the book, the seven Legislative Relief committee members’ are afforded the opportunity to be more flexible in reviewing appeals.
That being said, although Hoffman’s situation is not the cookie-cutter extraordinary example that can warrant not applying the rules, he should still win the appeal. Indeed, there are numerous facts that do not support his argument, such as the number of Division 1 institutions within the 100 mile radius of his mom’s residence and his mom’s condition improving (for the time being, at least), but when it comes to reviewing the requirements for this kind of waiver request, the full Legislative Committee should use a more reasonable perspective. For example, a reasonable person could approximate that 105 miles or so is approximately 100 miles, and a basic dictionary definition of “debilitating” is “causing serious impairment of strength or ability to function”. Digging deeper, under that definition, it would appear that the NCAA’s loophole argument in denying immediate eligibility that Hoffman’s mother’s condition is improving does not fit, either. If the medical documentation falls in line with Hoffman’s argument that his mother’s illness or injury constitutes a serious impairment of strength or ability to function, a reasonable person could conclude that her status is still debilitating.
This appellate flexibility can come with inconsistencies, though. Is that a good thing? Ironically, the 2012 adjustments that do concern this type of scenario were intended to address the inconsistent results in the waiver process. A couple other cases have added to the muddy waters in the transfer portal, too. During this off-season, Tate Martell and Justin Fields, two high-profile college football quarterbacks, sought and received residency requirement waivers using arguably less sentimental facts. Also, the NCAA announced a few revisions to the transfer rules last Friday, but none of the adjustments touch this type of scenario.
In conclusion, college sports fans can keep an eye on this case to see if the NCAA takes advantage of the opportunity to create some precedent for relatively comparable situations in the future and - fingers crossed - eventually lead to a guidelines/rules revision that has flexibility built within the rule or just nixes the restrictions altogether. When an immediate family member is seriously injured or ill, it places a huge weight of emotion on the family. If the NCAA cared about college athletes’ mental health, it would not try to govern on sensitive family-related matters like this when a kid wants to be closer to home so that it is easier to be with his family in trying times while continuing to carry on doing the things he did before.
[Note: I believe that this exemplifies why the transfer rules should be abandoned entirely because it unreasonably restricts the business of a college athlete’s talents because the anticompetitive effects severely outweigh any procompetitive reasons for “amateurism” in the NCAA’s current definition, but that is for another article.]
The NCAA fears this so-called “transfer portal” and assumes without evidence that the transfer waiver floodgates would open, but if it continues to act in a strangely unreasonably ignorant yet fully aware fashion, its rules will be its own demise. What do y’all think about this?
As current and former athletes at NCAA-member institutions increasingly look toward the courts for relief from NCAA bylaws they deem unfair, a new ally has emerged in their endeavors to gain ground in this facet of the ongoing war between capital and labor. That new ally is state legislatures.
The mounting number of state legislatures who are considering drafting legislation aimed to give athletes at NCAA-member institutions more and new rights which aren’t currently afforded them under NCAA bylaws began in Washington state earlier this year.
West Coast Representing
Rep. Drew Stokesbary (R-31) introduced HB1084, which is currently in the College and Workforce Development Committee in the Washington House. In its current version it would make the NCAA punishing any party who compensates athletes at the state’s schools illegal. It would also make the NCAA sanctioning athletes who hire agents against the law as well.
Stokesbary isn’t optimistic about the bill’s passage, at least in its current version. Washington is far from the only state where such measures are being considered. The next is just a tad south on the map.
Earlier this month California Senator Nancy Skinner (D-9) introduced SB206. As opposed to a broader inclusion that would allow schools to compensate their athletes directly, Skinner’s bill is focused on athletes’ image, likeness and name rights. Current NCAA bylaws prevent athletes from receiving compensation for the usage of them. If enacted, this legislation would enable athletes to sign endorsement and sponsorship contracts in exchange for payment.
While that would be a significant change of the status quo for athletes in California, a bill on the other side of the country might be even more of a game-changer.
Jordan McNair’s Tragedy May Become His Legacy
Months after the death of University of Maryland American football player Jordan McNair, a member of the state’s House of Delegates has proposed legislation that could result in the most-sweeping changes of all the bills introduced thus far.
Earlier this month Del. Brooke Lierman (D-46) introduced HB0548, which is scheduled for a hearing on Feb. 19. The legislation would give athletes at the state’s colleges/universities the right to unionize and collectively bargain with the schools’ athletic departments on issues like health and safety protocols plus compensation.
Lierman spoke about her experience with college athletics and vision for HB0548:
“The balance of power between student athletes and universities is out of whack,” Liernan said. “Student athletes often face enormous pressure to perform - and put in the blood, sweat and tears necessary to win championships, yet they often are left entirely out of the reimbursement discussion - universities and the NCAA profit off of their success, and football and basketball coaches are some of the most highly-paid state employees in Maryland. Our student athletes deserve protection to ensure that their health and safety, education, and their future aspirations are not jeopardized by the big business of college sports.
“Right now, we are asking young people who are coming right out of high school - and who often are totally dependent on scholarship or financial aid dollars being offered to them by college recruiters - to sign contracts that give away their rights and don’t always provide adequate protections,” Liernan continued. “That’s wrong. This bill will allow for student athletes - should they choose to do so - to work with a union or advocate to help them establish protections on scholarship terms, health benefits, the use of their likeness for marketing, and to have an independent advocate.”
Also on the east coast, a committee has been formed in the North Carolina legislature to evaluate the state of college athletics and make recommendations to the full body as to how it could improve the current situation for athletes.
These three bills and anything that comes out of the N.C. legislative committee have a long ways to go before becoming law. It’s possible that even if enacted, they could be heavily amended before being included in their individual states’ codes. Passage may be just the beginning of the battle on these pieces of legislation.
Possible Court Challenges to Legislative Action
These bills, or similar ones, being enacted by state legislatures would undoubtedly prompt immediate challenges to their legitimacy in the respective states’ court systems. Whether the suits would be filed by the schools, their athletic departments or groups of citizens, arguments could be made that the state legislatures overstepped their authority to regulate commerce or that the regulations put the athletic departments at a competitive disadvantage in comparison to other similar institutions in states without the regulations.
There is precedent for businesses challenging the state’s authority to regulate them. One such example is a group of Texas businesses who successfully challenged a state law denying them the ability to pass credit card processing charges onto customers last year. There is an element that could complicate such challenges for many of the institutions, however.
Many of the affected schools are not only funded by but also administered by their respective states. The legitimacy of state legislatures to regulate state schools could be very difficult to challenge. Private schools may have more success in such litigation.
The lobbying interests of the athletic departments in these states may be powerful enough to prevent these bills from becoming law, but they are still a sign that public opinion is shifting to view the NCAA’s current model of amateurism and economics in a less favorable light. The pertinent question now becomes whether the NCAA will react to this on its own or if legislatures will force changes upon it, one state at a time. As Lierman aptly stated:
“Over the past decade, it has become more clear every year that universities are not doing an adequate job prioritizing the well-being of their athletes, or their future interests. From Michigan State gymnasts facing years of abuse to the deaths of college athletes here in Maryland, it is clear that we can prevent these issues and should be doing more for our athletes. There is no one at the university level who is uniquely tasked with being a voice and advocate for our student athletes and the unique situation they face - we need to create a more fair balance of power, and this bill is one method of doing that. I believe we have reached a tipping point in college athletics where we will no longer accept harm to student athletes as part of the cost of doing business.”
During this interim period where the NFL season ends and the MLB season begins, many sports fans are left with a void that basketball, hockey, and miscellaneous televised athletic events themselves cannot fill, and although a lot of the U.S. does not even have its golf courses open for the season, the PGA 2018-2019 season has been well under way. We can focus more on the televised golf tournaments each weekend now, and y’all may have noticed some things seemed different, even if you could not quite identify what it was. Well, you are right on because A LOT of changes went into effect on January 1, 2019 - eight pages worth of summarized changes, to be exact - and those are only what the USGA and the R&A believe to be the major rule changes after a wide-ranging, collaborative review process taking into account golfers’, rules experts’, and administrators’s views from across the globe.
These reviews take place regularly and have their own goals and motivations, but there have only been a handful of times in history where the USGA/R&A unified reviews take a step back to critique the rules with a broader stroke. The group determined now is one of those times for two main reasons: (1) incremental revisions overtime have made the rules very complicated to where the purpose of the rule is sometimes lost or unclear; and (2) many of the rules do not even apply to most typical golfers to where they fail to support the real issues of the game. The far-reaching revisions the group settled upon, in theory, should preserve the character of the game and keep all golfers in mind at all levels of play around the world. In my opinion, I think they did a good job.
*Shout-out to my dad, Rick, for giving me the head’s up on no. 6 when we were watching the AT&T Pebble Beach Pro-Am during our weekly Sunday sauna, which inspired me to write this article.*
Of the thirty-seven major rule changes of golf for 2019, here are ten important rules intended to modernize the game that took effect and are bound to make you feel some kind of way (Note: The New Rule is quoted in the numeric header): 1. Standard for the Ball Moving - “The player will be found to be the cause only when it is known or virtually certain (meaning at least 95%) to be the case.”
Previously, in deciding whether a player caused his or her golf ball to move, the USGA used a “more likely than not” standard of proof, which translates to a greater than 50 percent chance that the player was the cause of the ball moving. The newly instituted higher standard in measuring the weight of the evidence should make it more likely that a player will receive a favorable ruling and greatly reduces or virtually eliminates the penalties players would otherwise receive. Moreover, this rule change stands alongside other ball movement penalties that are now eliminated entirely (i.e., when the player accidentally moves the ball during a search or on the putting green). This should place less pressure on the player and takes away awkward subjective decision-making on the association’s part.
2. How to Drop the Ball - “The ball must be dropped straight down from knee height (the height of the player’s knee when in a standing position).”
The old rule had players stand upright and drop the ball from shoulder’s height an arm’s length away from their bodies. Why was that the rule? Admittedly, I have no idea what the “legislative history” of this rule is, but from my perspective, there seemed to be a wide opportunity for unnecessary inaccuracies to creep their way into the game with it, and it overcomplicated the processes of taking relief when grouped together with other related rules (e.g., measuring the relief area size, which was also changed). By dropping the ball from a height closer to the ground, the ball will be more likely to plant a landing that more closely matches the true intention behind taking relief - allowing golfers to avoid hazards while keeping the ball closest to its original point without getting closer to the hole.
3. Pace of Play - “Recommends that players make each stroke in no more than 40 seconds, and usually in less time.”
This is strictly intended to improve the pace of play, which the “modernisation initiative” holds as one of its priorities to revise the product and increase mass appeal, namely because no such rule existed before. The old version of the rules gave no recommendation for time in between strokes. Think of this as golf’s equivalent of baseball’s pitch clock or basketball’s shot clock.
4. Caddie Help - “A caddie may lift and replace the player’s ball on the putting green without the player’s specific authorization to do so.”
Here is another example of eliminating a penalty entirely, for this action had a 1-stroke penalty if it was done without the player’s specific authorization. In effect, this should (a) make the players happy because it is one less thing for them to worry about, (b) improve the pace of play because a player-caddie duo may have developed their game plan strategy or their own language, vibe, whatever you like to call it, and (c) improve the caddie’s status within the game’s actors since it gives them another opportunity to help give the player the best chance at success.
5. Replacing a Ball on the Putting Green - “The ball must always be replaced on its original spot, even if it was blown by the wind or moved for no clear reason.”
Formerly, when the ball moved after it had already been lifted up and replaced, that ball could only be replaced if a player or “outside agency” caused it to move. Thus, it would be played in its new spot. We do not need to worry about that anymore, though! There is something to be said for the human element in sports - rather, the conditions element here - but revising this rule just seems right to me. It is totally fair that the place where the ball lands after the player hit the ball is the place from which the player should take the next shot. End of story. As it was enforced, it was an excess rule that served no real purpose to the game, and the modernization mindset includes “deregulation” or simplification, but I can see why golf purists might have issue with this.
6. Putting with an Unattended Flagstick in the Hole - “No penalty if a ball played from the putting green (or anywhere else) hits the unattended flagstick in hole.”
Translation: Not only can a player choose to leave the flagstick in the hole but the penalty is relaxed from a loss of hole or 2-stroke penalty to no penalty whatsoever when they elect to do so! This, like many of the rule changes, is intended to speed up the game because we will not have to wait for the players themselves or someone else, such as their caddie, tend to the flagstick and pull it before the ball could strike it. It is important to note that the flagstick cannot be leaning in either direction unless it was naturally doing so because angling it could certainly create an unfair advantage.
Some people do not mind this rule change because they do not see it affecting the game that much, but others are more leery of the change. Reportedly, particular studies claim that players have a statistically higher chance of getting the ball to drop in the hole or coming to rest near the hole with the flagstick left in compared to when the flag is removed. I discussed this with my dad, and we came to the conclusion that yes, there are times where leaving the flag as it is can help players at certain distances with certain shots, but overall, it is unlikely that this change will negatively affect the game. What do y’all think?
7. Distance-Measuring Devices - “ The use of DMDs is allowed, unless a Local Rule has been adopted prohibiting their use.”
Can I get a “heck yes”? Golf is moving into the future and permitting players to use technology in the game! Unless there was a local rule in place that said otherwise, distance-measuring devices (DMDs) were prohibited. So, the revised rule essentially flips the old rule on its head to give DMDs the default green light.
Why now? Well, we, as consumers and fans and viewers of the game, tend to prefer games where there is a lot of offense, and golf’s equivalent of a strong offense is a low stroke count. Furthermore, the players are more likely to be that much more accurate in their shots with technology’s help. Therefore, the quality of the game should improve as well as the mass appeal since we rely on technology in so many other aspects of our life, especially the younger generations. Admittedly, we millennials may rely on technological advances a bit too much, but if the technology is available, we might as well use it to our advantage, right? If this does not speak to the modernization of the game, I do not know what does.
8. Playing in the Spirit of the Game - “Explains and reinforces the high standards of conduct expected from players and gives Committees the discretion to disqualify players for serious misconduct.”
This change, though seemingly subtle, codifies previously accepted responsibility allocations while shining light on the USGA’s new importance of player conduct. The past rule expressed no standards of conduct, but it did indirectly give Committees discretion to disqualify players for serious misconduct. Now, Committees have an express rule to point toward if it chooses to act upon this power, which can speed up disciplinary processes and give the Committees more peace of mind in knowing that they can act themselves. Therefore, because Committees are expressly granted this discretionary power, so long as they do not abuse this power, it will be difficult for players to successfully fight their decisions.
9. Player Code of Conduct - “Committees are given authority to adopt their own code of player conduct and to set penalties for the breach of the standards in that code.”
As stated in the previously discussed rule, Committees had an indirect power to disqualify players for serious breaches of etiquette, but they could not dish out lesser penalties for conduct that was poor but did not rise to the level of a serious breach warranting disqualification. Now, Committees can impose such lesser penalties like a 1-stroke or 2-stroke penalty for breach of the code of conduct it develops. It is likely that we will not see Committees shying away from acting upon this rule change, but one downside is that we may witness uneven penalties imposed from event to event that players previously did not need to worry about. They will have to be specially educated on each Committee’s standards.
10. Player’s Reasonable Judgment in Estimating & Measuring - “When determining a spot, point, line, area or other location under a Rule, a player’s reasonable judgment will not be second-guessed based on later evidence (such as video review) if the player did all that could be reasonably expected under the circumstances to make an accurate estimation or measurement.”
Yay for this shift in authority! For those familiar with golf already, y’all can recognize what a huge deal this revision is because the prior rule was that a player’s judgment was given zero weight or deference. The Committee’s decision was the end-all-be-all in determining the accuracy of measurements and estimations, but the modern rule now gives deference to the player’s reasonable judgment. In addition to allocating the power and responsibility to the player, which should satisfy players, the revision should also speed up the game because the Committee will not need to take the time for video review for every accuracy call.
The most important key here, though, is the trust instilled in the relationship between the rule-makers and the actors in the game of golf. The integrity of the game is critical for any sport, and because of that, we should not expect to see players taking advantage of holding this deferential authority. If a player’s judgment is unreasonable, they would receive backlash for sure, and the Committee would then have authority to make the judgment call itself. Above all, I think golfers respect the game and want to preserve its greatness through the modern era.
Oh, and if you are like me and accidentally hit the ball twice in the same swing because you are just that awesome, you no longer will receive a penalty stroke. So, keep your cool, breathe through it, and know that the high and mighty golf gods are on your side.
Learn more about the R&A's Rules Modernisation Initiative
The annual January tradition I know y’all look forward to is here - my predictions on what will be the hottest of the sports law hot topics! I settled on selecting six topics this year, and I must say, it was wonderfully hard to narrow down the list because there is a lot of meat we will get to digest over the next 12 months. (Disclaimer: I think #1 will be the hottest of the hot, but that may be my bias talking since that is one of my main wheelhouses!)
That said, I would also like to remind those of you who may be newly acquainted with the concept of “sports law” that, in all honesty, there is technically no such thing as “sports law,” per se. Rather, what a handful of attorneys and I do is specialize in understanding and zealously advocate to resolve diverse legal issues that take place within the sports industry because the law often treats sports in a special way relative to pretty much every other industry out there.
Keep reading for a brief descriptions of each topic’s current status, why I am including it on this list, and a few Twitter handles to follow for the latest news and analysis throughout the year:
1. College Athletes’ Rights Awareness & Advocacy
Current Status: Since its inception as a non-profit organization in 1906 and as expressed in Bylaw 2.9 of the 2018-2019 NCAA Division 1 Manual, the NCAA has wanted its athletes to be “motivated primarily by education and by the physical, mental and social benefits to be derived,” and it has wanted the athletes to be “protected from exploitation by professional and commercial enterprises.” The NCAA’s “amateurism” principle led to the “student-athlete” term it coined in 1964, for these athletes are allegedly students first and athletes second so that they remain distinguished - in vernacular, at least - from professional athletes. Amateurism governs the entire college athletics business model that the NCAA and its member institutions created, including but not limited to the athletes’ mobility between schools, the maximum financial compensation they may receive (currently, the institution’s “cost of attendance”), and who controls the commercial use of the athletes’ names, images, and likenesses (hint: it is not the person whose name, image, and likeness is being used). All of this, according to the NCAA, is aligned with its main priorities: academics, well-being, and fairness.
Why It Will Be HOT: The NCAA is in a delicate position right now. College athletes, fans, and the public, generally, are becoming increasingly aware of questions that have been part of the college athletics business world since the 1980s. Are college athletes more like employees of the institutions for which they play? Should college athletes be “paid”? If so, what does “paid” even mean, and how much should they earn, and by what means and sources would be appropriate? If protection from corruption and greed in the market is an issue, should they be allowed to hire an agent to help them through any shark-infested waters? How would this work under Title IX, or would it even apply in potential new business models?
Whether willingly or not, the NCAA has been put in a corner and pressured to cave to create a bit more flexibility in its rules interpretations. For example, the approved Residency Requirement waiver petition opportunities for revenue sport athletes that became effective immediately allowed Shea Patterson to transfer with immediate eligibility from Ole Miss to Michigan. This off-season, Justin Fields is attempting to get the same waiver and play immediately at Ohio State. There is little precedent for this since it is so fresh, and whatever the Committee for Legislative Relief decides may reveal how the transfer situation could be trending from the NCAA’s perspective.
Moreover, the NCAA is forced to defend itself in various courthouses right now where current and former college athletes have filed lawsuits to eliminate allegedly illegal NCAA rules. In my predictions last year, I told people to follow Jenkins. That case joined another case led by Shawn Alston, In Re: NCAA Grant-in-Aid Cap Antitrust Litigation v. NCAA, which had its closing arguments in December in front of Judge Claudia Wilken (i.e., the same judge who initially ruled on O’Bannon a handful of years ago). She should be issuing her opinion soon, and it is safe to say that whichever party does not receive a favorable outcome will appeal the case, and whoever loses at the appellate level will try to get it heard by the Supreme Court. The end game is further away, but I think this is the case to make the next big step to achieve fairness and college athlete well-being… ironically.
Current Status: True, there are a couple small entities labeled “professional,” but the NFL has not seen a real threat to its popularity in over three decades. Professional football is America’s favorite sport to watch. Currently, we do have two somewhat longstanding leagues in the U.S.: (1) the Canadian Football League, which was founded in 1958; and (2) the Arena Football League, which has been around since 1987. Neither has been able to rise remotely close to the NFL’s popularity level. Nonetheless, maybe one pro-league during the fall and winter is not enough to satisfy the market, and maybe now is the right time for potential “competitors” (see below why this is in quotes) to enter the market since the NFL had a series of public relations blunders and - whether it wanted to be here or not - found itself in the middle of political controversies that has affected viewership.
Why It Will Be HOT: Compliments sound nicer than substitutes, right? Well, the Alliance of American Football (AAF) kicks off its 10-game season in February 2019 after the NFL season wraps up. It is billing itself as both a compliment to the NFL and a showcase of “local, developing talent.” The rosters already have names of former players many football fans would recognize like Christian Hackenberg, Blake Sims, Joe Fauria, Aaron Murray, and Trevor Knight, and a former NFL executive is co-founding the endeavor. More importantly, while its operations are similar to the NFL operations (e.g., the quarterback draft, coaching hires), it modernizes the game of professional football with slight rule changes and catering to fantasy football in a way the NFL does not do.
While this, much like the USFL, can be called a compliment because it does not directly compete with the NFL with respect to broadcasting and viewership markets since they take place in different seasons, they will compete to some extent for talent. My favorite factor here is the NFL rule (basically made in agreement with the NCAA) that a player must be three years removed from high school to be eligible to enter the NFL draft. Again, it is an NFL rule that causes some of the most talented undergraduate college football players to stay in school and potentially risk a decrease in draft value and career-ending injuries before they can get a salary for their hard work. Now, here comes the AAF, along with the XFL in 2020 and the Freedom Football League that will allow fans to be “part-owners,” who can offer a good chunk of money to any of those players completely free of the NFL’s draft eligibility restriction. Remember how the USFL got various Heisman winners to play for its league instead of the NFL? Will we see that moving forward? Can these alternative professional football leagues be the real deal? I am really excited to find out!
Who To Follow: The AAF (@theAAF), Atlanta Legends offensive coordinator Michael Vick (@MichaelVick).
3. U.S. Sports Betting “Arms Race”
Current Status: SCOTUS ruled that the Professional and Amateur Sports Protection Act was unconstitutional, opening the doors for states to determine themselves whether it would legalize and regulate sports betting. Woohoo! Seven states have legal state-regulated sports betting industries now, and even more are drafting legislation and considering legalization as well. As y’all can imagine, some people in the federal government and, at least initially, the “Big Four” leagues (the NFL, NBA, NHL, and MLB) plus the NCAA were not the biggest fans of this state-by-state approach to sports betting. Now, the NFL is the power behind proposed federal regulations being passed around Capitol Hill whereas the other three leagues have shifted their philosophy. Through the final months of 2018, the NBA, NHL, and MLB began to take the matters in their own hands, to the extent they can at this time, and partnered with MGM Resorts to make the casino company the official (but non-exclusive) gambling partner of the leagues.
Why It Will Be HOT: This early post-PASPA world is a strange but marvelous place. I am dubbing this an “arms race” because with the state governments on one side and the federal government on the other, I can only imagine the tension level as they try to quickly acquire manpower and “ammo” to push through legal instruments favoring their respective interests. Obviously, each government entity interested in the possibility of legalizing it wants to be able to have regulatory control over the sports betting market and whatever accompanying revenue could come with taxes and license fees. It would be easier for the leagues to work with sports betting, whether or not they actually have a say in the regulations and operations, on a nationwide scale as compared to a state-by-state basis as well. Then, there is the question of whether MGM Resorts can reach the NFL like it has the other leagues, which would be more challenging because while the NFL supports federal regulations MGM Resorts does not support uniform standards across states.
Current Status & Why It Will Be HOT: Inner-city students in cities like New York, Los Angeles, and Oakland have a more difficult time than other kids gaining access to play sports. This is not anything new. Another fact that is not new is that those populations of kids are predominately ethnic minorities, such as the black and Latino kids in New York public schools in those areas. Young girls are running into access problems too often as well. Lawmakers are proposing bills in some West and East Coast cities that, historically, have some of the most talented pools of amateur athletes we have the pleasure of watching, and students are filing lawsuits to fight the government entities who either choose to no longer fund school sports programs or who reject proposals for new extracurricular organized activity groups. Currently, many of the programs catering to inner-city students or girls are often funded by third parties like LA84 and the local professional sports teams because the cost-cutting and, arguably and as the students allege, discrimination is wrong. Though the resolutions will be far out in time, almost certainly years away,
Why It Will Be HOT: The seriousness of this topic has constitutionality and discrimination buzz as a human and civil rights issue and also transactional law buzz that could capture increased media attention in 2019. This disappointing trend of cost-cutting funds for sports in public schools will take a harder hit when, for example, controversial professional sports team relocations happen and remove a large source of that critical funding from charitable third-parties. The Oakland Raiders are providing supplemental funding to Oakland public schools because the city is eliminating half of its sports programs as part of a $500,000 cost-savings effort, but everyone knows that will not last when the Raiders relocate to Las Vegas. There is no way these public schools can rely on third-party funds in the long run. After all, these can barely keep these access efforts alive, if at all. So, whether people or entities step in to generously donate money and time into these access equality issues or whether the courts make their opinions heard or whether the deprivation gets better or worse on a wide scale of factors, this topic is bound to produce some stories and evoke the feels.
Current Status: Disney is set to purchase many of the Fox entities in early 2019 for a hefty $71.3 billion. The purchase includes control of Fox’s 20th Century Fox films and television studios, Fox networks like FX, and a 30% stake in Hulu. This does not include all of Fox’s assets, but the few remaining ones will form a “New Fox” comprised of Fox News, Fox Broadcasting, and most Fox Sports assets. Notably, the Department of Justice approved the deal and mandated that Disney sell the 22 regional sports networks (RSNs) within 90 days from the deal closing. Disney has not receive the bids it likely anticipated, which is critical because it would make the sale much easier with multiple offers and, ideally, some offers to purchase all 22 RSNs in bulk. Unfortunately, that was not the case, at least for the first round of bidding. A lot of questions exist, and each result could have its own varying results stemming from the prior depending on how later bidding rounds go.
Why It Will Be HOT: As stated earlier, oh so many unknowns arise here. Will there be a bulk sale of all or handfuls of the networks, or will the RSNs be sold off piece by piece? Who will be the buyer(s)? How will future broadcasting contracts look, and how will they affect consumers and fans? This will certainly affect how we watch MLB and NHL games in many markets since Fox RSNs air the large majority of those games, and it will not just be us viewers affected. This will affect the teams’ agreements as well. While the purchaser(s) will take over the existing contracts in their current states, some teams have contracts set to expire as early as next year, which means they will need to start negotiation strategies soon despite not even knowing the other party with which they will be dealing. Those agreements will largely impact us, in return, and the price consumers pay in the cable market.
Private equity firms, media and tech companies, and powerful local broadcasting companies have shown interest in making bids, but some FCC rules have clearly affected who has made bids, on which RSNs, and the value of said bids or prospective bids. The FCC may loosen rules on the number of networks one broadcasting company may own, specifically the rule prohibiting any one broadcaster from owning stations that reach 39% of U.S. households, but it has not done so yet. We could see different pairings of private firms and broadcasters to comply with the rules and extend from cable to online platforms, but one problem is that the digital rights are typically owned by the leagues rather than the networks. I kind of dig one of two different scenarios where either the MLB or, specifically, Amazon, purchase all 22 RSNs. Reportedly, they both have shown interest, and it will definitely be worthwhile to follow the sales.
Who To Follow: Your local Fox RSN (e.g., Fox Sports Detroit @FOXSportsDet), MLB (@MLB).
6. Esports Sponsorships & Partnerships
Current Status: For those who are not exactly sure what it is, esports, simply stated, is competitive video gaming at a professional level. The games themselves come in a variety of formats as well as the way the leagues for each game operate, though the two most dominant formats are first-person shooters and Muliplayer Online Battle Arena. So, there are plenty of opportunities for other businesses to get their hands involved with the esports world by becoming sponsors for teams, individuals, organizers, and developers. Just as variant as the games are, we have already seen some pretty groundbreaking deals in the past few years, such as Monster, Geico, Gilette, Alienware, 5-Hour Energy, HTC, Snickers, and Twitch. Also, in September 2018, Mastercard broke ground by becoming the first global partner of League of Legends, the world’s most popular esports game, and signed a multi-year contract.
Why It Will Be HOT: As an industry, esports’ portfolio of partners and sponsors is already diverse, and I believe it will continue to diversify even more. Businesses that already support other traditional sports are bound to follow Mastercard, which has been a proud partner of sports and entertainment like the PGA Tour, Major League Baseball, The Open, The Australian Open, and Rugby World Cup. Additionally, as game developers look to expand into their lesser popular/weaker markets, I think it is safe to anticipate seeing more intersections of traditional sports and esports whether it be owners in the "Big Four” (e.g., Robert Kraft), teams partnering with local esports teams, and sports broadcasters entering into contracts like ESPN, Big Ten Network, and TBS have tested out in the past. Nielsen Holdings formed an esports board back in 2017 that has been tracking and monitoring viewership and other media data that can be extremely useful for potential partners who may have been waiting for more concrete numbers or whose curiosity and passion may not have been enough to support a business move into the esports world. In general, access to esports is becoming more readily available, which likely expands fandom, player pools, investor potential, and the contractual relationships we can see develop.
To put things into perspective, the esports industry is quickly approaching revenue levels equal to that reported by college athletics - revenues have increased by 40 percent in the past two years alone, making it very close to the $1 billion mark. Combining that big money factor that draws in progressive business minds with the intelligence developers have in choosing partners, the potential contracts we could see this year
As the sports world awaits the ruling of Judge Claudia Wilken in Alston v. NCAA, her ruling is likely merely the overture for this drama. Her opinion is almost guaranteed to be appealed to the US 9th Circuit Court of Appeals regardless of what it entails.
In the 9th is where the possibility lies for a ruling that could entrench the parameters of college athletics and put the NCAA on equal footing with one of the most powerful entities in the US as far as antitrust law is concerned, Major League Baseball. To understand this possible course of events, it’s necessary to understand the precedent which could be drawn upon.
How MLB’s Antitrust Exemption was Created
In 1922, the US Supreme Court ruled that MLB is not subject to the Sherman Antitrust Act. The reasoning, originally crafted by Judge Kenesaw Mountain Landis at the district level, was that baseball was merely a game and not involved in interstate commerce. Because the nature of the sport was recreational and not commercial, the court decreed, the Sherman Act could not be applied. MLB’s antitrust exemption has been strengthened on several occasions since, although the Curt Flood Act of 1994 did provide some restriction to it. As an interesting aside, Landis was rewarded for crafting MLB’s exemption with the title of the first commissioner of MLB.
Those facts are relevant to Alston because some very similar language has appeared in recent court decisions regarding the NCAA. One decision comes from the same court that will hear the appeal of Wilken’s decision in Alston and the other is the 7th Circuit Court.
Appeals courts from different circuits are free to offer differing opinions on similar matters. It isn’t uncommon for appeals courts to evaluate the opinions of sister courts in their own rulings, however. The 7th Circuit recently issued an opinion in Deppe v. NCAA which contained some language that could prove influential.
Deppe v. NCAA Highlights Pertinent Language
Deppe was a 2018 case challenging the NCAA’s year-in-residence rule on antitrust grounds. Peter Deppe played American football at Northern Illinois University and sought to transfer to the University of Iowa after NIU made a coaching change with the new coach deciding not to offer Deppe a scholarship. Iowa’s scholarship offer was contingent upon Deppe being able to take the field immediately, but the NCAA’s year-in-residence rule required Deppe to attend Iowa for a year prior to him being eligible to punt for the Hawkeyes.
In its ruling, the 7th referenced a Supreme Court case, NCAA v. Board of Regents. NCAA v. Board of Regents arose when in the early 1980s, the NCAA negotiated a TV rights deal with ABC and CBS for American football games and attempted to sanction member institutions who negotiated their own broadcast deal with NBC. Despite determining that the NCAA was in violation of the first section of the Sherman Act in this instance, the Supreme Court did include in its opinion that in all other aspects the NCAA, “needs ample latitude to preserve the amateur traditions of college athletics.”
The 7th drew upon this ample latitude to preserve the product of college sports ideology in its opinion in Deppe, determining the NCAA’s transfer rules promote competition between its member institutions. While the opinion made no mention of exempting the NCAA from the Sherman Act in order to provide that ample latitude to preserve amateurism, it could be said that it was not yet necessary to make that determination in Deppe.
Ample Latitude was Seen Previously
The language highlighted was echoed nearly identically by the 9th, the same court which will hear an appeal of Wilken’s ruling in Alston, in 2015’s O’Bannon v. NCAA. If it’s not uncommon for circuit courts to consider the opinions of their sisters in their decisions, it’s even more common for circuit courts to reference their own previous opinions.
In O’Bannon, the 9th also referred to Regents in its decision, identically stating that the NCAA needed to be given ample latitude to preserve amateurism. The 9th also found many of the NCAA’s bylaws to be pro-competitive, citing opinions from sister circuits. For those reasons, the 9th reversed Wilken’s injunction allowing NCAA-member institutions to compensate their athletes with cash up to $5,000. Again, the 9th did not discuss the possibility of exempting the NCAA from the Sherman Act altogether in O’Bannon, but it again could be argued that the stakes had not yet risen to that level.
Alston Might Force the Issue
Alston could be seen as that escalation of the stakes. Whereas O’Bannon challenged NCAA bylaws regarding compensation for the usage of athletes’ images, likenesses and names and Deppe challenged transfer rules, Alston is going for the jugular of direct compensation restrictions. The potential reward comes with risk for the plaintiffs.
If the 9th takes the same misguided approach to college athletics as courts in the early 20th century took toward baseball, regarding college athletics as nothing more than extracurricular activity for a special group of college students and not a commercial product, it could easily arrive at a similar conclusion that providing the NCAA with the ample latitude it needs to preserve that amateur quality requires an exemption from the Sherman Act.
The respect that several courts seem to have for their understanding of amateurism, however misguided it may be, and the issues at stake in Alston could create the perfect storm necessary to provide an exemption from the Sherman Act for the NCAA. In this way, Alston could actually backfire as far as the plaintiff’s interest goes by entrenching the current definition of amateurism for the foreseeable future, barring an act of Congress. This result may be largely unprecedented, but not wholly impossible.
Congratulations, y'all. We made it through 2018! Per our usual routine here on the Sports Law Blonde blog, let’s review the 2018 sports law hot topic predictions I made back in January to (a) see whether there has been any ground made, & (b) if not, speculate on why that might be the case. So, I straight up copy-and-pasted my previous blog post and added my new comments and wisdom at the end of each section in this type style.LET'S DO THIS.
Per usual, I would like to make my predictions regarding what topics I believe will be extra sizzlin' in 2018, but I will do so in a slightly different way. Here are brief descriptions of what each topic is, some insight as to why I have it on my predictions list, and who you can pay attention to for the latest news, updates, and analysis throughout the upcoming year:
1. SPORTS BETTING
What It Is: In a nutshell, the Professional and Amateur Sports Protection Act passed in 1992 to make sports betting illegal nationwide, save for a handful of grandfathered exceptions that had long been established prior to the law. Christie v. NCAA, informally known and reported on as the "New Jersey Sports Betting Case," is in the Supreme Court of the United States' hands now after oral arguments took place in December. Five sports leagues - the NCAA, the NFL, the NHL, the MLB, and the NBA - sued New Jersey under PASPA to enjoin a passed law that would allow sports gambling. The State defends itself by arguing that PASPA is unconstitutional under the anti-commandeering doctrine. The major issue this case analyzes is whether a federal statute that prohibits modification/repeal of state-law prohibitions on private conduct impermissibly commandeers the states' regulatory power. I know that sounds like a mouthful, and the arguments get pretty deep, but it all comes down to whether the federal government should be allowed to forbid state-sanctioned sports betting.
Why It Will Be HOT: One massive question is sweeping across the nation as the Supreme Court of the United States sits with a lawsuit & various facts presented in its hands: Should sports betting be legal? It is more likely than not that some changes to the law's current approach to sports betting will take place. What we are waiting to see are whether those changes will have a narrow or broad affect. If SCOTUS decides to have a narrow ruling, it may only affect New Jersey as it is the specific party to the lawsuit. On the other hand, if SCOTUS takes a broad ruling approach in ruling PASPA unconstitutional, other states may grab the reigns and give permitting and regulating sports betting a shot should voters approve it.
REVIEW:In my opinion, this was the hottest sports law topic of the year. SCOTUS published its opinion on May 14, which affected every single one of us whether we like it or not. The Court held that the Professional and Amateur Sports Protection Act unconstitutionally commandeered states' regulatory power with respect to the private conduct of sports betting. Furthermore, SCOTUS notably took this broad approach in ruling the entire act unconstitutional so that each state - not just the plaintiff’s jurisdiction, the State of New Jersey - can grab the reigns and determine for themselves whether they would like to permit and regulate sports betting. In other words, SCOTUS did NOT say that sports betting is legal, but it did say that Congress cannot take away the opportunity for states to say that sports betting is legal within their individual jurisdictions. Seven states have legal sports betting industries that the state regulates right now: Delaware, Mississippi, Nevada, New Jersey, Pennsylvania, Rhode Island, and West Virginia. Additionally, a tribal group opened a sports book in its casino, and Arkansas voters passed a ballot measure to legalize sports betting in November. Other states are putting together pieces of legislation or considering sports betting bills as we speak, too.This swift action is intentionally and intelligently done, in my opinion. As you can imagine, the “Big Four” (NBA, NFL, NHL, and MLB), the NCAA, and the federal government are not the biggest fans of the state-regulated sports betting concept because (a) it could make things more complicated for them and (b) they may not have as much control as they could with a federally regulated system. So, there is a bill floating around Congress that, if passed, would have minimum standards for the sports gambling industry and, more significantly, make every state law legalizing sports gambling subject to the federal government’s approval before it is enacted. You can read the drafted bill (as of December 4) here.In just over half a year, the landscape of the sports betting industry and its real-world potential has changed drastically, which is rare in many respects because, traditionally, the law is not a fast-paced thing. This is different. This is special.2. ATHLETE SAFETY
What It Is: It is no surprise that injury can accompany the physicality that participating in sports demands whether it is a contact or non-contact sport. Athletes are stronger than ever before, and the awareness surrounding the resulting injuries from stronger than ever contact is higher than ever before, too. Truths about Chronic Traumatic Encephalopathy (CTE), the progressive degenerative brain disease resulting from repetitive brain trauma overtime, are scary, but we are trying to understand how prevalent it can be at different life stages so we can reform sports. There is a lot of demand to reform sports to be safer, but there is also a lot of demand to keep the products on the field, court, etc. as-is. Finding that delicate balance is proving more challenging than we may have initially anticipated.
Why It Will Be HOT: The NFL is no longer alone in its fight against former players who are bringing lawsuits against the professional league they used to play. Moreover, although the highlight of athlete safety is concerning concussion/brain injury awareness, education, and prevention, the issue extends to other areas of the body as well as the overall mental well-being of athletes that, in turn, could produce physical effects. We are seeing concussion protocols fail on live television. We are seeing near-record lows of young kids entering into football programs. We are seeing high schools test out the latest technology like helmets that can help us better understand and prevent head injury. We are seeing major motion pictures, special sports news segments on shows like Dateline and Outside the Lines, opinion articles in local newspapers, and increased criticisms across social media platforms regarding serious athlete injuries. We even saw what could be the first diagnosis of CTE in a live human being. As a society, we are starting to demand more from our athletic and medical communities when it comes to athlete safety. With all the crazy stuff going on in the world right now, we are learning to voice our displeasure and do what is necessary to keep sports thriving so we can continue to enjoy participating in, cheering for, and patroning them.
REVIEW:Accurate. This was probably the second or third hottest topic of the year. Pretty much every contact sport had some kind of “concussion” discussion story in 2018:
The NHL and over 300 retired players reached a tentative settlement just under $19 million in the “NHL Concussion Litigation”. Similar to the concussion litigation the NFL faced a couple years ago, the former players sued the league, arguing that the league failed to protect them against head injuries or warn them of such risks involved in the game. In contrast, the settlement value itself is significantly smaller compared to that reached in the NFL litigation. Here, each player who opts in will get $22,000 and may be eligible to receive up to $75,000 in medical treatment, which hopefully can help those players get neuropsychological tests and monitor signs of CTE presently or in the future. While this finally ends the actual litigation in these cases and allows for payouts to the players and attorneys, it leaves the main question unanswered - causation. It is near impossible to prove that a player’s time specifically in the NHL caused neurological trauma. Regardless, each side had its reasons to settle, and the big takeaway is that the NHL avoided having to take any responsibility or admit fault.
Before the 2018-2019 season began, the NFL declared a three-part “call to action” plan to address the various concussion concerns: (1) increasing the use of “safer helmets”; (2) pointing out concussion warning signs to the teams to decreasing preseason concussions; & (3) working with operations to hone style of play. The plan includes concussion education and training for teams’ staff, a “targeted intervention” with seven teams that had concussion percentages during practices higher than the norm, a 107-page medical playbook for players to learn details on “concussion prevention, detection and recovery,” and a variety of rule changes to the game itself. After reviewing videos and injury data, a couple trends led to two well-known rule changes - the kickoff rule and the lowering of the helmet rule. It is now a 15-yard penalty for any player to initiate contact with an opposing player by lowering his head. Whether you like it or not, the NFL began its desperate move to keep its inherently violent game in the public opinion’s good graces, and there is no turning back.
The NBA was not able to completely avoid the concussion discussion, either. For example, the Cleveland Cavaliers’ Kevin Love was pulled per the league’s concussion protocol and missed Game 7 of the Eastern Conference finals against the Boston Celtics. He almost missed Game 1 in the Finals against the Golden State Warriors, too, but he completed the NBA’s protocol just in time. What is different about how the NBA handles concussions relative to other leagues is that, accoring to Dr. Kutcher, “the frequency of concussions has remained about the same” in the past handful of years he has been working with the league, and the league seems to more efficiently and effectively look to slightly tweak its protocol from year-to-year.
2018 saw the very first concussion lawsuit to go before a jury, too! Ploetz v. NCAA somehow made its way through the system and went to trial in June, but the trial only lasted three days before the parties reached a settlement. The settlement terms remain undisclosed, to my knowledge. Akin to the NHL Concussion Litigation settlement, the NCAA did not have to admit fault, and the NCAA’s attorney Chris Watt went as far as casting doubt on CTE during his opening statement, focusing on how the condition is still not even accepted in medical literature… *insert my eye roll here*.
Different high school athletic associations, high school institutions, and states are started to see their fair share of concussion claims this year as well. All 50 states do have laws in place for youth/high school athletics, many of which contain strong language on education, training, and removal & return-to-play criteria. You can refer the state-by-state relevant laws here.
Aside from concussions, college medical protocols received some spotlight. Notably, the University of Maryland’s actions surrounding football player Jordan McNair’s death in June. Investigations found that the coaching staff, who is supposed to look after the health and safety of the athletes, undoubtedly failed to follow the university’s protocol. This was an extreme case that had a very infrequent result, but it brought to the forefront the kinds of environments these kids work in daily. As an attorney who advocates on behalf of college athletes in all sports, I know this is not an issue exclusive to football or revenue sports, and although it is due to the saddest of circumstances, I am glad this issue is finally getting mainstream attention.
3. NCAA STUDENT-ATHLETE RIGHTS AWARENESS & ADVOCACY
What It Is: College students who participate in athletics are not classified as professionals but rather as amateurs. According to [dictionary], an "amateur" is "a person who engages in a study, sport, or other activity for pleasure rather than for financial benefit or professional reasons." The NCAA, the governing organization that dedicates itself to "the well-being and lifelong success of college athletes," operates within the spirit of its own interpretation of "amateurism", which requires student-athletes not to take part in or receive (a) contracts with professional teams; (b) salaries from participating in sports; (c) prize money greater than necessary expenditures; (d) tryouts, practice or competition, or playing with the professionals; (e) any benefits from prospective agents; (f) retaining an agent; or (g) putting off enrolling in full-time classes to participate in organized competitions. This concept is the self-proclaimed "bedrock" of college athletics because, as the NCAA preaches loud for all to hear, student-athletes are students first and athletes second.
Why It Will Be HOT: There is no way the NCAA's twisted interpretation of amateurism can hold together much longer. This has been a long time in the making, but for the past 30 years or so, college athletics has increasingly become a business. In my lifetime (note: I was a 1989 baby), colleges have made millions each year courtesy of the athletic products on the fields, courts, ice, tracks, greens, and mats (did I leave anything out?) brought to you by "amateurs". One lawsuit is continuing to move forward that y'all should pay close attention to - Jenkins v. NCAA - because it has the potential to go steps further than O'Bannon v. NCAA was able to accomplish. Similar to the above topic, with all the crazy stuff going on in the world right now, we are learning to voice our displeasure and do what is necessary and morally right to keep college sports thriving so we can continue to enjoy participating in, cheering for, and patroning them.
REVIEW:I would say this prediction totally held up as the second or third biggest sports law hot topic in 2018, and it is only gaining steam as we move from season to season, from sport to sport, and from trial toward a ruling. As I expected, former Clemson football player Martin Jenkins’ case is a must-follow. Judge Claudia Wilken, the same judge who heard O’Bannon v. NCAA in 2014, heard the oral arguments this year for “In Re: NCAA Grant-in-Aid Cap Antitrust Litigation v. NCAA”, which involves a number of cases merged together and includes lawsuits brought by former West Virginia football player Shawne Alston and Jenkins. She has not issued her opinion yet, but once she does, I know Derek Helling will be writing an article for the SLB Blog shortly thereafter! I have a feeling that she will rule in favor of the plaintiffs in some fashion. For now, y’all can check out the summary Andy Schwarz wrote on the final day of arguments in court on December 18.In the wake of the college basketball corruption scandal, the NCAA decided 2018 was the year to slightly alter a policy concerning student-athlete rights and allow college basketball players to attain advisory agents. There are a couple important details in this policy change, though: (1) the player must request an evaluation from the NBA Undergraduate Advisory Committee, and (2) the agent must be certified by the NCAA, though until August 1, 2020. NBPA-certified agents will be automatically considered NCAA-certified to help with the transition. Unfortunately, for now at least, agents will not be able to negotiate licensing deals for those elite basketball players despite them having market value and despite how much the schools’ make off their name, image, and likeness because “amateurism”…Additionally, to round out 2018, we saw a much higher number of college football players sitting out of bowl games. Whether it was to nurse injuries or focus on getting healthy for the draft, a lot of players decided not to gamble with their health and play in a game that may not have as much meaning attached to it because it could significantly affect their draft stock, i.e., the value they could see in the very near future in the NFL Draft.Side Note: This subject is my bread and butter, and I am so looking forward to where this goes in 2019. It will remain a goodie for sure.4. STATUS OF COLLEGIATE ESPORTS
What It Is: Esports is competitive multiplayer gaming with spectators and the potential to win quite a bit of money along with the bragging rights. There are multiple games organized on multiple levels among different schools and conferences that are overseen by different university departments. As it currently stands, there is not a lot of consistency from school to school, but a few esports organizations dedicated to competition at the collegiate level act in a similar way to the NCAA and are trying to bring that consistency, popularity, and highest level of "amateur" competition to the games.
Why It Will Be HOT: The NCAA is weighing the pros and cons of bringing esports under its large governance umbrella, but a lot of the competitions already work with one of a handful of the different organizations dedicated to organizing esports at the collegiate level. In a particular case, Riot works directly with the schools in its highly publicized Collegiate League of Legends matches and championship tournament. Is the NCAA necessary for the growth of esports? At the very least, is it preferable to attempt to join together for consistency's sake to have one governing body despite the fact that it may or may not know some of the intricate details of the industry that its brushed off in the past?
REVIEW:2018 showed us that there is a huge potential market for collegiate esports. As of 2016, only seven colleges had a varsity esports program. Now, there is a varsity esports program at 63 college institutions. Esports is a hot topic, in general, and what I initially thought would be the story of the year was gossipped about for a while, but this subject took a more intriguing path than anticipated. Word on the street was that the NCAA was curious about getting esports under its governance. In fact, it does have “significant interest" in having an esports championship, but perhaps because of the super strong opposing sentiments regarding the NCAA’s governing body structure and its “amateurism” mantra, the NCAA has not made many public moves on the subject.At the Board of Governors’ October meeting, they focused on a few subjects: (1) sponsoring esports competitions, (2) esports programs’ placement in the institutional structure (i.e., athletic departments or another department like student affairs), and (3) what in the world an NCAA Championship would look like for esports. The NCAA stated that it “will continue to evaluate how it can best support its members as they pursue and adopt esports programs.” As many esports competitions stand, the players would not fit into the amateurism model because the cash prizes received in most instances would make them ineligible, and the demographics of participation levels based on factors like gender and region raise a number of Title IX questions. For those reasons, among others, I believe the NCAA is not acting as quickly as it would like to because of amateurism’s delicate status and the fact that it truly does not understand the esports industry. It wants as many pieces of the esports revenue pie as it can get, but it simply cannot do so if it applies the rules that it applies to every other athletic activity it governs. So, luckily, the status of collegiate esports increase its position with respect to the college institutions themselves while it remains relatively unchanged with respect to the NCAA’s involvement through 2018.5. FIFA CORRUPTION
What It Is: Last year, officials pled guilty to corruption charges after a long ongoing investigation into the ethics held at numerous levels of the organization. Admittedly, I am not totally well-informed on this topic. Much like how I payed special attention to esports last year and turned it into one of my specialties, hopefully, I will be able to expand my horizons a little bit to become somewhat more educated on the soccer world.
Kids are recruited by college athletic programs earlier than ever, and the recent addition of the Early Signing Period There is a lot of excitement surrounding a prospective college athlete’s verbal commitment to attend a certain university, and there is even more pomp and circumstance surrounding a highly recruited prospective college athlete’s “signing day”. Even for those who do not sit in front of a table with five hats and announce the school of choice on national television, signing a commitment letter and accompanying athletic financial aid letter agreement is a big deal (and deserves major congratulations!). Many people have at least heard about the document itself that these athletes sign - the National Letter of Intent (NLI) - but many may not know exactly how it works within the college recruitment process and the overall college athlete experience, generally.
In the spirit of the still controversial Early Signing Period for NCAA Division I Football quickly approaching and taking place December 19-21, here are 10 things prospective college athletes and their families or guardians should know before signing an NLI as well as fans and enthusiasts who want to better understand the nitty-gritty procedures involved:
1. The NLI is a “voluntary program” in which NCAA member institutions and student-athletes can participate.
Indeed, the program is billed as “voluntary” for both parties to the agreement letter, for the institutions are not forced to utilize the NLI format, and the prospective college athletes are not required to sign an NLI. One can reasonably interpret that the NLI’s main purpose is to protect the school. It does not provide the protections that many prospective college athletes are seeking such as a spot on the team. Rather, one of the primary functions is to stop the recruiting processes for the signing athlete (i.e., a “recruitment prohibition” is instituted, where all other member institutions must cease recruiting the athlete once an NLI is signed with another institution) and be a means by which the institution can keep track of how many athletic scholarships it is expecting to give out. Because of these purposes in addition to the evident significant power imbalance between the parties, athletes may feel as if they are pressured into a “take-it-or-leave-it” situation unless they are a highly sought after five-star recruit who recognizes that the bargaining power may not be as disparate as it is for the large majority of prospective college athletes or, alternatively, athletes may be caught up in the excitement and honor that they rush into signing the NLI without fully considering what it entails.
Remember - this is voluntary, options are available, and there is room to negotiate protections. Prospective college athletes can take steps to minimize the risks involved in this voluntary program during the recruiting process before signing the NLI, luckily, such as working with the National College Players Association’s CAP Guarantee, to gain some protections before committing to an institution on paper!
2. There are two entities that handle the NLI Program: (1) the NCAA, and (2) the Collegiate Commissioners Association (“CCA”).
It is valuable for any athlete and the family to understand the who’s and what’s involved with the NLI Program because (a) it give insight as to who makes the rules and the form so they can look at the terms with a prudent eye and informed mind, and (b) it tells them who will be handling their matters should anything go awry in the process. Here, the NCAA, the non-profit organization regulating athletes of almost 1,300 institutions in North America, handles the daily operations of the program, and the CCA, the commissioners group that exists largely for uniformity’s sake, handles the governance oversight. That means that entities who have an interest at stake in the college athletics market and are directly tied to the other party to the NLI are making the rules and terms. Of course, the schools themselves decide what terms to propose in the athletics aid agreement, which is the document that lays out the specific and precise financial aid terms and other conditions of the agreement between the school and the prospective college athlete, but when the NCAA benefits, the schools benefit (and vice versa, in general), and that is not necessarily so when it comes to the athlete. The schools chose to be a part of the NLI Program because it tends to benefit them from start to finish, even where an athlete goes through the appellate process for something like a release from the NLI.
3. By signing an NLI, the parties enter into a binding agreement where the student-athlete agrees to attend the member institution for one academic year, full-time, and the member institution agrees to provide an athletic scholarship for one academic year.
To reiterate, a prospective college athlete is not guaranteed a spot on the team by signing a NLI. The only thing the school is promising is to give the student athletic financial aid for one academic year (two semesters or three quarters), while the student is promising to attend the school for one academic year, not just until the season is complete, regardless of whether they are given a position on the team roster. Since the NLI purpose is served after that one academic year is completed, athletes do not sign NLIs after that initial year.
4. Only certain Division I & II schools can use an NLI whereas Division III schools may want student-athletes to sign a “celebratory signing form”, and these are two very different documents.
Here is a fun fact for y’all: Of all the Division I and II schools, 657 are currently part of the NLI Program. Based on the NCAA Directory, there are 353 Division I member institutions and 318 Division II member institutions. So, the math shows that 14 member institutions do not take part in the NLI Program.
Also, as stated earlier in this article, since the school is promising to give the prospective college athlete an athletic scholarship, only schools that have athletic scholarships to give are allowed to take part in the NLI Program. Division III member institutions do not give out athletic scholarships and, therefore, cannot give its prospects NLIs. A few years ago, the Division III membership adopted a form that gives the athletes some of the celebratory feels that come with the NLI signing - the Celebratory Signing Form, a non-binding, standard, NCAA-provided form that the athlete can sign at any point after they are granted acceptance. Either party can back out of a D-III Celebratory Signing Form commitment without consequence.
5. Student-athletes who verbally committed to attend an institution are not bound to sign an NLI with that institution.
Y’all read that right. If someone gives one school a verbal commit, perhaps early on in high school, and later realizes that the school may not be the place for him or her and wants to pursue or accept another offer, the athlete can definitely do so! There is no obligation attached to a verbal commitment since it is not binding in the way a NLI is once signed. Deciding which college to attend and play for is a huge decision. So, prospective college athletes should not feel bad whatsoever if they change their mind after giving a verbal commitment because, in all honesty, the school could always back out before proposing the NLI, too.
6. Student-athletes may only sign one NLI in an academic school year, even if they receive a complete release from the first institution, unless there are “extenuating circumstances”.
The athletes are able to present a case to the NLI Policy and Review Committee, which determines whether to grant a complete release, and appeal an unfavorable determination to the NLI Appeals Committee, which makes a final binding determination. In order to receive a complete release, “extenuating circumstances” need to be presented, and needless to say, “extenuating circumstances” are far and few between. The committee itself what merits constitute extenuating on a case-by-case basis, and some reasons have included “illness of the student, illness or death of a parent or financial hardship of the student's family which prevent the student from attending the signing institution.” A case-by-case evaluation may initially seem like a detriment to the athlete because the committee does not have a precedent it is bound to follow, but it can really be a positive thing in the sense that it allows the athlete to use persuasive methods to show their case and take advantage of a vulnerable college sports entity that is currently under scrutiny in the eyes of the public opinion.
7. if a student-athlete signed an NLI with an institution and quits the team for almost any reason, the institution can cancel the athletic financial aid, and the NLI remains valid.
Translation: If the college athlete decides at some point into the season that they do not want to play the sport at that school, quitting altogether often times is not the advisable solution because (a) the athlete would likely lose the entire athletic scholarship or see it greatly reduced, (b) appealing an athletic financial aid reduction or removal can be challenging, and (c) if the athlete wants to play somewhere else, they would still be bound to the NLI terms and all relevant NCAA and conference rules regarding transfers.
8. The NLI does have a blunt “coaching change” provision.
In its own twisted little way hidden among the various provisions, the NLI does make it clear, but this fact often does not register fully before an athlete and their family makes the decision to sign with a school. The NLI states:
“I understand I have signed this NLI with the institution and not for a particular sport or coach. If a coach leaves the institution or the sports program (e.g., not retained, resigns), I remain bound by the provisions of this NLI. I understand it is not uncommon for a coach to leave his or her coaching position.“
Is this unfair? I believe it is because the school could be in a better position to know certain elements about its athletics program (e.g., a coach’s current and prospective employment position or other associated risks) that the athlete does not have access to in making the decision to sign the NLI, and the school does not have to inform the athlete of said information, technically. There is a certain subjectivity involved in evaluating the fairness of a situation. Is it unjust? It depends, for within the four-corners of the document, the relationship between the parties is clear even though it is unfair to one executing party, but justice involves a more objective basis. More than anything, this provision highlights the importance of reading every word in a contract, especially where one party does have more bargaining power than the other party, and doing whatever you need to do to comprehend an agreement to the fullest extent.
9. Coaches are not allowed to be present at the NLI signing, nor can the institution hand deliver the NLI anywhere off the institution’s campus.
Per the letter agreement:
"A coach or an institutional representative may not hand deliver this NLI off the institution's campus or be present off campus at the time I sign the NLI per NCAA rules. This NLI may be delivered by express mail, courier service, regular mail, email or facsimile. An NLI submitted to an institution electronically is permissible.”
Talk to your trusted counsel about how to go about the situation should anything to the contrary occur!
10. the nli must be signed during very specific periods in order to be valid.
Generally speaking, the NLI and the athletics financial aid agreement must be signed within seven days of issuance, but it must be signed during the time-frames in the table below. For example, the seven-day rule does not apply during the Division I Football Early Signing Period because there are only 3 days during which a prospect can sign. If a prospective college athlete and co-signer do not sign during the respective dates below, the NLI is null and void. In other words, it would be legally ineffectual, and neither party is bound by its terms.
Learn more about the 2019-2020 NLI & Aid Agreement GuidelinesThere are people who can - and would love - to help so that prospective college athletes and their families make the most well-informed decision considering all potential scenarios to place the athlete in their best environment.As amateurism rules currently stands, there are zealous forces controlling the NLI Program and working for the party on the other side of the NLI table. Prospective college athletes should have a circle of zealous forces counseling and standing up for them, too (all within the bounds of the NCAA Bylaws, of course!), because there are a handful of advisers and attorneys like myself who know the 400-or-so page Bylaws like the backs of their hands and make this their raison d'être.
The National Signing Day Song (Parody of "City of Stars" from "La La Land") - YouTube
Enjoy this diddy posted by Nick Suss:
In honor of National Signing Day, here's a song about the excitement college football fans are feeling. You can find the karaoke track I used to record the music at this YouTube link: https://www.youtube.com/watch?v=4T808nUPMnU I wrote these lyrics, but obviously the melody belongs to Damien Chazelle and Justin Hurwitz.
There were 145 cases of heatstroke-related deaths in football players at all levels between 1960 and 2017, according to the National Center for Catastrophic Sport Injury Research. Of those deaths, 90 percent occurred during practices.
— "What you need to know about the Maryland football scandal involving DJ Durkin and the death of Jordan McNair" by Sarah Meehan, The Baltimore Sun (August 14, 2018)
During a preseason workout, University of Maryland redshirt freshman offensive lineman Jordan McNair collapsed after a conditioning test comprised of ten 100-yard sprints (a.k.a. "suicides," a common athletics drill). From there, he was hospitalized and died two weeks later from heatstroke complications. Exactly what happened on the field during training that day and exactly who was on the field overseeing the workouts is currently under investigation.
The reports so far contain a lot of alleged details, but we will not know more of the full story until the investigations are complete. What we do know comes from a Tuesday press conference [see full transcript], UMD President Wallace D. Loh and Athletic Director Damon Evans stated that McNair's treatment did not include cold-water immersion and that "care we provided was not consistent with best practices." Moreover, Loh went on to say that they met with McNair's family to apologize and take "legal and moral responsibility" for what happened leading up to their son's death. We also know that Maryland Head Football Coach DJ Durkin, along with three of his staff members, were placed on administrative leave and that strength and conditioning coach Rick Court, the man who was running the workout, officially received the boot.
There could be many components at play here that we, unfortunately, need to wait to truly find out: any signs of struggle earlier in the workout; whether proper protocol was followed by the coaches, including those for precautions under certain conditions and medical guidelines for attending to any resulting injuries; whether Durkin was aware of the workout conditions; whether Durkin was aware of any protocols not being followed; whether Durkin was there when it all went down (according to reports, he was there); and whether McNair had any pre-existing health conditions that people were unaware of could also come into play in determining how toxic the football culture at Maryland is under Durkin's watch.
So, what can Maryland do with DJ Durkin, from a legitimate legal perspective?
To figure this out, let's (a) go over why we are focusing on the exact terms of Durkin's contract with Maryland, (b) highlight a few sections that may be triggered in determining what will happen with Durkin's employment status, & (c) use those sections to support the three potential scenarios - firing with "cause", firing without "cause", or keeping him.
Why Are We Talking About This Contract?
The Employment Contract between Maryland and DJ Durkin expresses the duties & expectations each party agreed to take on in the employer-employee relationship. If either party fails to perform even one of their many duties contained in this Contract, that party has broken a promise. In the legal world, we call this a "breach of contract". A breach of contract is not an "illegal" action because there is no law on any level that says, "You shall not break contracts." Rather, it is simply breaking a private promise.
When a breach of contract occurs, the non-breaching party has the right to pursue damages in a civil court or take action, but it does not have to do so. Let me repeat that: The non-breaching party has the right to act when the other party breaches, but it can choose not to act on that right.
What does that mean? Schools in sticky situations like Maryland and Ohio State University may have grounds to fire a coach when the facts show that the coach failed to perform a duty in their employment contract, but the school can just as much choose to keep them employed in their current positions, and that is well within their rights.What Does DJ Durkin's Employment Contract Say?Section 1: Employment
The last portion of Section 1 is a nice umbrella statement that says, generally, what Maryland expects of Durkin in performing his duties - "The Coach shall devote his best efforts full time to the performance of his duties reasonably assigned ... with the desired goal of maintaining the high moral and ethical standards commonly expected of the Coach as a leading representative of the Department of Intercollegiate Athletics (Department) at the University." Even as an umbrella statement, though, this section has a power punch. Durkin must give not "good" efforts but his "best" efforts, and he must do so not only most of the time but "full time." Of particular importance in this case, specifically, is "the desired goal of maintaining the high moral and ethical standards commonly expected of the Coach" because society likely expects a Head Football Coach of a D-I program in a Power Five conference to be someone that has his players' health and best interests in mind.
Section 3: Duties
The opening of Section 3 and subsections (b) (c), & (d) could be implemented under the alleged circumstances, too, and in an even stronger way, for they express explicit responsibilities Durkin has as the Coach. He is responsible for "oversight and management," generally, which includes but is not limited to "training and coaching ... to compete successfully in the Big Ten and the NCAA," "recruiting, recommending the employment of, supervising, and evaluating the performance of the Team's coaching staff," and making sure that his assistants and football staff comply with Maryland's policies, procedures, and rules and regulations and, moreover, reporting any violations. While this language is pretty standard in a college coach employment contract, it can be tempting to skim over the particular words and phrasing.
If we want to get really nit-picky, we could even call upon what is called "statutory interpretation" and "canons of construction" in the legal world. Although this is not a statue or rule, per se, it can help the parties to a legal issue - here, Maryland and Durkin - construct their respective arguments for or against a breach of contract. These canons include using the word's plain meaning in their ordinary sense, avoiding redundancy in parts of the rule, and deferring to the agency's reasonable interpretation of the rule.
Section 12(c) defines the terms on which Durkin can be fired for "cause," and it refers to the duties laid out in Sections 1 and 3 (see above). That reference, here being called "performance standards and performance commitment" is classified as "material misconduct", which is one of the five ways Maryland can part ways with Durkin in the least costly way. Durkin is the person who brought on his staff, including Court, and is supposed to evaluate and supervise Court and the rest of his staff as they perform their own duties. Here, if Durkin was present - or, even more broadly, aware of the workouts and the conditions surrounding the workout - he should have made proper medical care readily available in case it was needed and, where needed, attend to medical needs in a swift manner because he would have been prepared. Heck, even if Durkin was not there or even if there is not a "toxic culture" in the Maryland Football program, one could interpret the Contract to say he violated the terms by recommending and bringing Court onto his staff. At one point or another, whether it be before he came to the program or during his time as a strength and conditioning coach, Durkin had to have seen how Court handled workouts. If Durkin failed to properly evaluate Court's coaching style and methods, including the sort of preparation needed or mannerisms like brushing off signs of imminent necessary medical attention, there is an argument that he violated Section 3(c).
The umbrella duty in Section 1 can be solid in evaluating whether Durkin could be fired for any "toxic culture" that may be in the program, since it is reasonable to expect that a Coach of high moral and ethical standards would not allow that to happen. Also, if Durkin truly did not attend to McNair in the way that reports are saying, it is safe to say he did not "substantially fulfill" his duties and obligations created by this Contract, for despite this being an agreement between the university and the Coach, the Coach is supposed to have the kids' best interest and safety in mind as he is fulfilling his duties. There is so much more supporting statements to add to this argument, but I do not want this to be too lengthy. Draw up some more supporting arguments yourselves!
On the other hand, Durkin could counter-argue in a meeting with the Athletic Director that in order to compete in the Big Ten and NCAA, training has to be challenging, and the student-athletes are adults who can reasonably be held to recognize when their body is not feeling alright. This argument is certainly weak, though, because his Contract specifically states that he is responsible for the management and oversight of the football program, and Maryland definitely has some procedures and guidelines on how to prevent and, where necessary, handle student-athletes medical attention needs. He could also argue that he was not aware of the tactics and methods Court utilized that some people thought crossed the line or - specifically in this instance - led to a young athlete's death despite reports about what went down while Court was at his previous employer, Mississippi State, but regardless, Durkin recommended the hire.
B. Fire DJ Durkin Without "Cause"
Section 12(d) is the "best interests" clause, where Maryland has the right to fire Durkin even where the reason does not fall under the first three subsections of Section 12 when terminating his employment is in the best interests of the university. This firing without "cause" situation, as it was defined earlier in Section 12(c) triggers different rights and entitlements for both parties to the Contract from that point forward, but again, Maryland can choose whether it wants to act on this section in the first place. Durkin would leave with 65% of his aggregate base salary and supplemental income from the Contract's effective date through the end of 2010 in liquid damages if he lost his position under this scenario.
C. Keep DJ Durkin as the Head Football Coach
As stated earlier, Maryland can 100% choose to keep Durkin as their Head Football Coach. Even if it decides to do so, it still has some additional rights on which it could act that derive from section 13 in the Contract. Maryland could flat out keep him without any further punishment besides administrative leave he is presently serving. On the other hand, Evans could dish Durkin disciplinary terms other than termination like a written reprimand, a suspension with or without pay, loss or forfeiture of different salary elements, and probation where there is "reasonable belief that the Coach engaged in misconduct or failed to perform one or more of his duties." Apart from suspension, if Durkin stays and is disciplined in one or more of those ways, he has the right to have a meeting with Evans, who has the final determination. However, if Durkin is suspended, he can appeal Evans' decision to Loh, who has the final determination in that case.
BOTTOM LINE: This is a contract job in an at-will employment relationship. If the investigation contain facts that show Durkin breached the Contract by failing at any one of his contractual duties and responsibilities, Maryland has the right to fire him, but it has every right to keep him as the Head Football Coach as well. If Maryland chooses to fire him, it can try to classify his breach as one falling under the "cause" definition, and if it cannot or if it simply elects not to enter what could be a longer battle against Durkin if his employment is terminated for "cause", Maryland can fire him for any reason that is in the "best interests" of the school. In any event, durkin's reputation is likely tainted professionally as well as personally in the eyes of public opinion.
Ohio State University is the latest entity trapped in the knotted-up business ethics & moral dilemma of what to do with a person of high authority who could have known about domestic violence allegations against a staffer and failed to do what he was supposed to do. Yesterday afternoon, OSU placed head football coach Urban Meyer on paid administrative leave while the university conducts an investigation into the issue at hand - whether Meyer knew about the domestic violence allegations against his former wide receiver coach, Zach Smith, by his ex-wife Courtney Smith and failed to follow the university's protocol according to the terms of his employment.
Expect a resolution very quickly. The football team starts practices in a few days, and when someone is placed on paid administrative leave, that is a pretty good sign that the parties involved are negotiating terms of separation. Here, it is uncertain at this time whether OSU interprets Meyer's possible behavior as violating the terms of his employment. Furthermore, that would absolutely influence how OSU goes about any separation discussions, but at the same time, it would be understandable that both parties want to handle this and move forward in a swift, adequate fashion.
What does Meyer's Employment Contract Say?
The Employment Contract ("Contract") between OSU and Meyer is pretty detailed and extensive, but that is expected when you are unarguably one of the best college football coaches in modern history... results-wise, anyway. For the most part, the addendums tweak language to change with the shift from the BCS to the College Football Playoff and to hike up the compensation he received for the incredible results on the field he has managed to produce, but the most recent one adds some relevant fun to the mix! Together, these documents make up the entire Contract.
To keep this analysis as comprehensible and succinct as possible, let's state a few specific provisions regarding (1) his duties of employment, (2) breach of contract, and (3) termination and post-termination, and use them in the analysis.
1.3: "Coach recognizes and acknowledges the importance of the maintenance and observance of the principles of institutional control over every aspect of such program. Coach agrees to recognize and respect those relationships and the organizational structure of Ohio State."
1.5: "Coach agrees to represent Ohio State positively in public and private forums and shall not engage in conduct that reflects adversely on Ohio State or its athletic programs. Coach shall perform his duties and personally comport himself at all times in a manner consistent with good sportsmanship and with the high moral, ethical and academic standards of Ohio State and its Department of Athletics."
4.1(d): "Know, recognize and comply with all federal, state and local laws, as well as ail applicable University Rules and Governing Athletic Rules, in accordance with NCAA Bylaw 1 1 .1 .2.1 , promote an atmosphere for compliance within the football program supervised by Coach and monitor the activities regarding compliance of all assistant coaches and other administrators involved with the program who report directly or indirectly to Coach; supervise and take appropriate steps in an effort to ensure that Coach's assistant coaches, any other employees for whom Coach is administratively responsible and the members of the Team know, recognize and comply with all such laws, University Rules and Governing Athletic Rules; and immediately report to the Director and to the Department's Office of Compliance Services in writing if any person or entity, including without limitation, representatives of Ohio State's athletic interests, has violated or is likely to violate or may potentially have violated any such laws, University Rules and Governing Athletic Rules (unless Ohio State has informed Coach that certain minor transgressions do not require written reports to the Director and the Department's Office of Compliance Services)."
(2) Breach of Contract & Termination
4.1(e): Coach shall promptly report to Ohio State's Deputy Title IX Coordinator for Athletics any known violations of Ohio State's Sexual Misconduct Policy (including, but not limited to, sexual harassment, sexual assault, sexual exploitation, intimate violence and stalking) that involve any student, faculty, or staff or that is in connection with a university sponsored activity or event. If Ohio State's Deputy Title IX Coordinator for Athletics is not available, then Coach shall make such report promptly to Ohio State's Title IX Coordinator. Any emergency situation should be immediately reported to 911 and/or law enforcement. For purposes of this Section 4.1(e), a "known violation" shall mean a violation or an allegation of a violation of Title IX that Coach is aware of or has reasonable cause to believe is taking place or may have taken place".
5.1: Termination by Ohio State for cause - "[I]n addition to any of its other normally understood meanings in employment contracts shall include, but not be limited to, the following: ... (e) Fraud or dishonesty of Coach in the performance of his duties or responsibilities under this agreement; ... (o) Commission of or participation in by Coach of any act, situation, or occurrence which, in Ohio State's judgment, brings Coach and/or Ohio State into public disrepute, embarrassment, contempt, scandal or ridicule or failure by Coach to conform Coach's personal conduct to conventional and contemporary standards of good citizenship, with such conduct offending prevailing social mores and values and/or reflecting unfavorably upon Ohio State's reputation and overall primary mission and objectives, including but not limited to, acts of dishonesty, misrepresentation, fraud or violence that may or may not warrant criminal prosecution by the relevant authorities."
With respect to the termination and post-termination processes, Exhibit A of the Contract is the template of the agreement that he and OSU would enter into should OSU terminate his employment for any reason other than "for cause". Here, OSU is careful to clarify that it will pay Meyer a set amount (the "Buy Out Amount" as detailed in a chart in the Contract) as liquidated damages, not compensation. Parties use a liquidated damages clause where an injured party's actual damages would be very difficult to ascertain properly or near impossible to prove should a party breach. So, by calling out that this payment is classified as liquidated damages, OSU is trying to prevent a scenario where Meyer comes back claiming to be an injured party and trying to collect damages.
What could OSU do with Urban Meyer?
Well, it comes down to three primary moves: Fire for cause, fire without cause, or keep the dude.
A. Fire for "cause"
Arguably, OSU could fire Meyer for "cause" because he breached his duties of employment expressed or any defined for "cause" reason in the Contract. If the university is looking to avoid paying Meyer damages for firing him, it would be critical to zealously argue that he violated the Contract in a specific way.
First, one could argue that Meyer failed to recognize and respect the importance of institutional control based on section 1.3. By failing to report an assistant coach's potential lawbreaking activity, Meyer disrespected the notion of trying to maintain institutional control across all levels of the athletic department & football program's employment chain. This is not a clause that a strong argument would likely focus on, but it is a nice umbrella clause that evidences how important it is to OSU to retain institutional control.
Second, one could argue that Meyer violated the Contract because he "engage[d] in conduct that reflects adversely on Ohio State" and did not conduct himself with the high moral and ethical standards OSU expects from him because in addition to showing a brazen disregard for the university's policies and procedures, if it is true that he knew, he blatantly and publicly lied when he said he knew nothing about the domestic violence allegations at Big Ten Media Days. The text messages are a simple foundation for this argument, and the university's investigation could definitely bring to light more supporting evidence. That is steps further than poor judgment but, instead, poor character that I am sure OSU would not want to have leading its young, impressionable football players.
Third, if the university finds sufficient evidence in its investigation, one could argue that Meyer violated section 4.1(d) because he did not "promote an atmosphere of compliance of all assistant coaches and other administrators involved with the program who report directly or indirectly to Coach; supervise and take appropriate steps in an effort to ensure that Coach's assistant coaches, any other employees for whom Coach is administratively responsible and the members of the Team know, recognize and comply" with all state and local laws. If Zach Smith did abuse his wife, we can all agree that such behavior breaks the law. If Meyer knew about that and did not make any reports to his superiors according to OSU's procedures - "immediately report to the Director and to the Department's Office of Compliance Services in writing if any person or entity, including without limitation, representatives of Ohio State's athletic interests, has violated or is likely to violate or may potentially have violated any such laws" - he breached the Contract. The standard for when Meyer is supposed to make a report is very low, for if he was aware of Smith maybe potentially violating the law, he should have told the Director and the Department.
Finally, there has been talk about a Title IX argument in firing Meyer. One could argue that he failed to follow the reporting procedures in section 4.1(e), but that is a much harder case to win. If basing an argument on this clause, one would have to show that either an incident happened at an OSU-sponsored event or function or on its grounds (e.g., Penn State) or have one heck of an argument that Title IX is the proper framework despite the victim not being a student at the university. True, this does involve allegations against someone on OSU's staff, but whether that is enough of a connection to the intentions behind Title IX is up in the air. This argument could work, but it is quite a stretch.
Y'all can think for yourselves, but I spy with my little, green eyes a pretty sound basis that he violated sections 1.4 and 4.1(d). Moreover, if he did violate those sections, his actions would easily be brought under section 5.1's reasons OSU could fire Meyer for "cause" because of the dishonesty displayed at Big Ten Media Days and participating in this scandal that places OSU in an unfavorable light (see the language above for the specific language).
B. Fire "without cause"
Moreover, OSU could fire Meyer without "cause" because OSU can break the Contract all the same for any reason. It would just have to pay him damages, and the university contemplated those processes. The parties agreed to the amount he would receive and how that money would be dished out, and that would be the end of that. I think it would be more costly to the university's reputation to keep him around than it would be to pay up here. Easy peasy.
C. Keep Him
On the other hand, it is totally a reasonable argument that Meyer did not fail to perform his duties of employment and, therefore, did not breach the Contract. OSU is free to interpret the Contract in that way that it chooses to keep him around.
What should OSU do with Urban Meyer?
As a young woman who has a distaste for all things related to OSU ingrained into every ounce of her being, it is admittedly difficult, in a way, to put aside my knee-jerk reaction to say that OSU should fire Urban Meyer. There are completely valid arguments for both firing him and keeping him. The tricky part in many assault situations is determining the line where a person's employment duties end and a purely moral obligation to act in a particular way when the person knows of domestic violence or sexual assault allegations against someone under his watch at work.
I believe that the line is not as fuzzy here as it has been in other high profile cases, though, because of the expressed contractual language Meyer agreed to in his employment contract with the university and his history of surrounding himself in his career with high profile, high risk people (e.g, the players he chose to recruit at the University of Florida). True, OSU can always fire him without cause and owe him much more as a short and sweet public relations mood to remain in touch with its own history of decision-making (e.g., firing Jim Tressel in the midst of controversy) and with a very passionate "#MeToo" public sentiment, but I do believe there is strong enough justification on paper that OSU can let Meyer go for breaching the Contract. Then again, if OSU wanted to interpret the Contract to let him remain its head football coach, it could rightly do so.
In my opinion, Urban Meyer clearly has not learned from his past mistakes, and he has not evolved with society's increasing understanding of assault and basic human decency. Does OSU really want to be associated with this man when it could truly have almost any football coach that it wants? Whatever happens, I would not be opposed to seeing more "sad Urban Meyer eating pizza alone on a golf cart" images.
In the Jonathan Swift classic Gulliver’s Travels the main character encounters an island in the sky called Laputa. The aristocratic residents of the island were described as being so engrossed in thought that they often required servants to prod them as they were walking so they wouldn’t walk into stationary objects and each other.
All anyone needs to do is look at crowds of United States citizens engrossed in their mobile devices while walking to see how much they represent Laputans in this regard, but the cost of being out of touch with their environment has more serious consequences than needing assistance to navigate walkways.
Governmental bodies, and the individuals with deep pockets who fund their election campaigns, at all levels have taken advantage of citizens’ disinterest and indifference to their activities to turn what was created to be a representative republic into an unconstitutional oligarchy. This has been evidenced at the city level by repeated abuses of “emergency measures” to bypass the need for approval of the populace at large before handing public dollars over to professional sports teams.
This drama began in the United States Congress over thirty years ago. Tax reform was enacted in 1986 that affected sporting facilities and the cities they inhabited. The use of government bonds - which are exempt from federal taxes - for stadium financing was limited to 10 percent of the projects’ costs on privately-owned facilities. That had a perhaps unintended but nonetheless real effect of making it appealing for cities to own stadiums and use public dollars to construct and/or renovate them. As “public” facilities, there was no cap on the usage of bonds.
The first serious incident of the battle between city governments and the population at large on a stadium funding issue was in 2002 in St. Louis. The city council in Oct. of that year approved a rebate of a ticket tax to pay for renovations to Busch Stadium, the home of the St. Louis Cardinals. A month later a referendum passed with 55 percent of the vote that required any city funds going toward sports facilities required voter approval. A legal battle followed over the 5 percent rebate for Busch Stadium, which ultimately grandfathered that decision in as not having to face a referendum because the measure was passed prior to the change to the city’s code.
St. Louis’ adherence to this requirement hasn’t been consistent since. Just last year, the city council approved $105 million from the general coffers over the next 30 years for upgrades to the Scottrade Center, the home of the NHL’s Blues. The use of those funds for that purpose was not placed on the line for a referendum because of some creative semantics by the city council. The council was able to push the measure through without voter approval because it diverted existing taxes as opposed to establishing a new tax.
St. Louis’ city council isn’t the only government body which has used creative strategy to push through fiscal matters which aren’t actual emergencies, however. In other instances the strategies have become more creative.
Also in 2017, the city of Cleveland’s city council engaged in some strategy to hand the NBA’s Cavaliers millions of public dollars that required it to sue itself. After the council pushed through a resolution that gave $70 million to the team as a reimbursement for renovations to Quicken Loans Arena, dubbing it an “emergency measure,” a civic group called Greater Cleveland Congregations reacted with some actual action.
The group ran a petition drive to enact a provision in Ohio’s state law that required city funding matters to be put up for a referendum and presented the petition with the requisite number of signatures to the council. The council’s chair refused to even acknowledge receipt of the petition into the record, much less begin the process of organizing a referendum on the money for the Cavs. In response, Greater Cleveland Congregations filed suit against the city to force the referendum.
In the game of legal chess, one branch of the city government filed suit against another in the Ohio Supreme Court. It was a stroke of evil genius. Not only would the result be essentially beyond challenge as it would come from the state’s highest court, but because the city was both defendant and plaintiff, it could effectively throw the case.
Greater Cleveland Congregations petitioned the court to join as a plaintiff, and was granted that request. The Supreme Court ruled in their favor, and it appeared democracy had won. The issue of whether that $70 million would be handed to the Cavs would be put up to a public vote. The victory was short-lived and largely immaterial, however.
A few weeks later, Greater Cleveland Congregations withdrew its petition after the Cavaliers pledged more resources to community projects. In the end, the Cavaliers got what they wanted and democracy turned out to be naught more than a delay. Perhaps partially because of that compromise by Greater Cleveland Congregations, another city in Ohio has gone down the same path less than a year later.
Cincinnati’s city council in April passed an “emergency measure” to fund the construction of a new stadium for FC Cincinnati, which will soon be an MLS franchise. The reason the measure was pushed through despite community objections and without the requisite council votes needed for the emergency designation was to avoid a public referendum. It’s yet to be seen whether there will be any challenges to the measure in court, as favorable precedent now exists with the state Supreme Court, but the lack of serious consequences for such shady behavior should be pointed to in discussion of city council members’ motivation to make such a move.
Because small numbers of voters have failed to hold these members of city government accountable and the general population in droves fails to bother to show up for city elections, there are virtually no unwanted consequences for lining the wallets of sports franchise owners with the dollars of the general population. In that regard, populations of cities get exactly what they deserve when their councils act without any regard for the approval of the larger population.
As long as the vast majority of the populations of cities which professional sports franchises inhabit continue ignoring the proceedings in their city governments, engrossed in their bread and circuses like Laputans mentally adrift in metaphysical philosophy, those governments will continue to act in the best interest of the few who are involved and conveniently stand to profit from those acts.