College Athletics

November 3, 2023 Deadline for NCAA Division I DEI Self-Assessment and Attestation

July 19, 2023

By E. Katherine Hajjar, John G. Long, II, and Kristen J. Thorsness

As part of the NCAA’s efforts to promote diversity and gender equity in intercollegiate athletics, NCAA Bylaw 20.2.4.3 requires that all Division I athletic departments perform a diversity, equity and inclusion (DEI) assessment and file an attestation of completion of the review with the NCAA by November 3, 2023.   

Read More >> November 3, 2023 Deadline for NCAA Division I DEI Self-Assessment and Attestation

Hot Topics in Title IX Athletics: Does Having Separate Classifications for “Major” and “Minor” Sports Violate Title IX?

April 17, 2023

By Kristen J. Thorsness

It is a common practice in collegiate athletics to separate teams in two or more “tiers” of “major” and “minor” or “revenue” and “non-revenue” sports. Tiering may not be explicitly intended by administrators, but informal tiering is relatively common by virtue of emphasizing some teams over others. While tiering is not per se a violation of Title IX, it must be organized properly to avoid violations.

Read More >> Hot Topics in Title IX Athletics: Does Having Separate Classifications for “Major” and “Minor” Sports Violate Title IX?

OCR Issues New Guidance on the Application of Title IX in Higher Education Athletics

March 10, 2023

By Kristen J. Thorsness and Connor Johnson

Introduction 

In February 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a resource to the higher education community reiterating some of the core concepts it uses to evaluate whether institutions are providing equal athletic opportunities consistent with Title IX. For colleges and universities, this new resource should serve as a not-so-subtle prompt to review their programs for compliance with applicable standards. 

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NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable

December 20, 2022

By Peter A. Jones, Thomas G. Eron, Richard J. Evrard, and Paige Carey

The National Labor Relations Board (NLRB) General Counsel has issued a complaint against the University of Southern California (USC), the Pac-12 Conference and the NCAA claiming that certain USC student-athletes are employees under the National Labor Relations Act (NLRA), and that the conference and the NCAA, along with the university, can be held jointly responsible employers for the treatment of those students under the law. This NLRB litigation portends fundamental consequences for private college and university athletic programs.

Read More >> NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable

Implications for Colleges and Universities of Expanded Legal Protections for LGBTQ+ Students, Faculty and Staff

October 25, 2021

By Barbara A. Lee, Ph.D. and Megan L. Anderson, Lathrop GPM

In its Bostock v. Clayton County, Georgia ruling in June 2020, the U.S. Supreme Court ruled that the prohibition on “sex” discrimination under Title VII of the Civil Rights Act of 1964 encompasses discrimination on the basis of sexual orientation and/or gender identity. The Bostock ruling raised, but did not decide, the question of whether or not other federal sex discrimination laws, such as Title IX of the Education Amendments of 1972 and the Fair Housing Act, might also inherently prohibit LGBTQ+ discrimination. While the Bostock ruling applies only to Title VII claims, the Biden administration has announced that federal agencies will apply Bostock’s definition of “sex” to other federal civil rights laws. On the day he was inaugurated, Jan. 20, 2021, President Biden issued an executive order stating that federal sex discrimination laws besides Title VII – including Title IX and the Fair Housing Act – should be interpreted as prohibiting gender identity and sexual orientation discrimination. Subsequently, in June 2021, the U.S. Department of Education (ED) issued guidance that Title IX prohibits LGBTQ+ discrimination. In addition, in February 2021, the U.S. Department of Housing and Urban Development (HUD) announced that it would enforce the sex discrimination provisions of the Fair Housing Act as encompassing LGBTQ+ discrimination.

Read More >> Implications for Colleges and Universities of Expanded Legal Protections for LGBTQ+ Students, Faculty and Staff

NLRB General Counsel Abruzzo Issues Memo on Employee Status of Players at Academic Institutions

September 29, 2021

By Peter A. Jones and Richard J. Evrard

The General Counsel for the National Labor Relations Board (NLRB or Board), who has authority for setting prosecutorial policy for the NLRB, issued a General Counsel Memorandum (GC Memo) today, reversing the prior Board General Counsel’s position and asserting the employee status of certain student athletes at private educational institutions. Board General Counsel Jennifer Abruzzo conveyed her enforcement position in a memorandum to the Board’s Regional Directors. Because non-unionized employees have rights under the federal labor law, the immediate impact will be that the NLRB’s enforcement arm will be processing complaints related to allegations of adverse treatment of certain student athletes for all variety of internal complaints against private institutions.

Read More >> NLRB General Counsel Abruzzo Issues Memo on Employee Status of Players at Academic Institutions

NCAA Student-Athlete Name, Image and Likeness

July 29, 2021

By Kyle D. Ritchie and Richard J. Evrard

One month has passed since the NCAA Board of Directors adopted emergency legislation permitting student-athletes to monetize their name, image and likeness (NIL) without violating the long-standing amateurism requirements of NCAA Bylaw 12. Specifically, the NCAA: (1) acknowledged that a state law/executive order regarding NIL supersedes NCAA rules; and (2) provided blanket NIL coverage to student-athletes located in states that do not have a state law/executive order in place. This major change in NCAA legislation is charting new pathways for how student-athletes must be monitored by their institutions to avoid ineligibility. The creation of an internal institutional policy is one way to help organize and manage this new process.

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NCAA v. Alston Case: Supreme Court Strikes Down NCAA Rules Restricting Benefits to Student-Athletes

June 30, 2021

By TaRonda Randall

On June 21, 2021, in an opinion providing a very interesting historical overview of collegiate athletics going back to the 19th century and the founding of what is now the National Collegiate Athletic Association (NCAA), the U.S. Supreme Court released its decision in the NCAA v. Alston case. The Supreme Court affirmed the lower court’s injunction of NCAA rules that restrict education-related benefits to Division I basketball and bowl subdivision football student-athletes. 

Read More >> NCAA v. Alston Case: Supreme Court Strikes Down NCAA Rules Restricting Benefits to Student-Athletes

Tenth Circuit Decision Reminds Educational Institutions to be Wary of Whistleblower Retaliation Claims

May 26, 2020

On April 24, 2020, the Tenth Circuit Court of Appeals revived a former college coach’s retaliation claim brought against his previous employer. The case, Marc Benjamin v. Board of Trustees of Barton Community College, involves a former women’s softball coach who claimed he was terminated by the college because he “blew the whistle” on other college coaches who had violated league rules. The district court that first heard the case granted summary judgment in favor of the college, effectively finding that no reasonable jury could find in favor of Mr. Benjamin’s claims. Mr. Benjamin appealed, and the Tenth Circuit subsequently reversed the district court’s decision. 

Read More >> Tenth Circuit Decision Reminds Educational Institutions to be Wary of Whistleblower Retaliation Claims

U.S. SUPREME COURT DENIES CERTIORARI IN O’BANNON

October 3, 2016

By Paul J. Avery
The Supreme Court of the United States has denied both the NCAA’s and plaintiffs’ petitions for certiorari in the O’Bannon case.  The parties had petitioned for review of the United States Court of Appeals for the Ninth Circuit’s decision issued in September 2015. In that decision, the Ninth Circuit sided with the NCAA by vacating that portion of the District Court’s decision that would have required the NCAA to allow member institutions to pay limited deferred compensation to student-athletes for the use of their names, images and likenesses. At the same time, the Ninth Circuit also partly favored plaintiffs by upholding that part of the District Court’s ruling that enjoined the NCAA from enforcing its rules precluding member institutions from providing athletic scholarships up to the full cost of attendance. The Supreme Court’s denial, which signifies only that it declined to review the case and not that it agreed with the Ninth Circuit’s decision, means that the Ninth Circuit’s decision will stand unchanged.

O’Bannon Plaintiffs Seek U.S. Supreme Court Review

March 16, 2016

By Paul J. Avery

On March 15, 2016, plaintiffs in the O’Bannon case sought U.S. Supreme Court review of the United States Court of Appeals for the Ninth Circuit’s decision issued in September 2015.  In that decision, the Ninth Circuit sided with the NCAA by vacating that portion of the District Court’s ruling that would have required the NCAA to allow member institutions to pay limited deferred compensation to student-athletes for the use of their names, images and likenesses. The Ninth Circuit’s decision did not wholly favor the NCAA, however, as it also upheld that part of the District Court’s ruling that enjoined the NCAA from enforcing its rules precluding member institutions from providing athletic scholarships up to the full cost of attendance. Reports indicate that the NCAA had earlier requested an extension of time to file its own petition to seek U.S. Supreme Court review and that it continues to consider this option following the O’Bannon plaintiffs’ request.

NCAA Settlement Could Promote Concussion Prevention and Treatment, but Leaves Member Institutions on the Hook for Future Lawsuits

January 31, 2016

By Philip J. Zaccheo

On January 26, U.S. District Judge John Lee of the United States District Court for the Northern District of Illinois granted preliminary approval of a new settlement of consolidated class action litigation involving the NCAA and former NCAA student athletes, in which the NCAA agreed to provide $70 million towards concussion research, testing and diagnosis. This settlement is largely a restatement of an earlier proposed settlement that had been rejected by the Court. As part of the original settlement, the NCAA agreed to invest in concussion research and education, and to fund physical examinations, neurological measurements, and neurocognitive assessments of individuals who in the past 50 years competed in contact sports for NCAA member institutions. All of these things were restated in the new settlement, with the addition of a greater emphasis on strengthening game time concussion protocols (“return-to-play” rules) and instruction to begin to notify those former student athletes eligible for neurological testing and assessment. Notably, neither the prior proposed settlement nor the approved settlement shields NCAA member institutions or the NCAA itself from current or future concussion lawsuits. Unlike the NFL concussion settlements in which the NFL directly compensated injured plaintiffs, the money paid by the NCAA goes straight to funding the research, education, prevention and testing discussed above. As a result, student athletes retain the ability to sue the NCAA or their institutions on grounds relating to concussion diagnosis and/or treatment, or lack thereof. In fact, the awareness initiatives funded by the settlement may increase the likelihood of claims, at least in the short run. Relatedly, about one week prior to the announcement of the approved settlement, the “Power Five” NCAA conferences proactively voted to give team trainers and physicians the “unchallengeable” authority to decide whether and when a student athlete should return to competition. This action, while not literally required by the settlement, certainly was a move toward alignment with developing best practices, and offers the potential for prospective liability protection.