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Northwestern Players Get Union Vote

March 26, 2014 in public

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In a potentially game-changing moment for college athletics, the Chicago district of the National Labor Relations Board ruled on Wednesday that Northwestern football players qualify as employees of the university and can unionize.

NLRB regional director Peter Sung Ohr cited the players’ time commitment to their sport and the fact that their scholarships were tied directly to their performance on the field as reasons for granting them union rights.

Ohr wrote in his ruling that the players “fall squarely within the [National Labor Relations] Act’s broad definition of ‘employee’ when one considers the common law definition of ‘employee.’”

Ohr ruled that the players can hold a vote on whether they want to be represented by the College Athletes Players Association, which brought the case to the NLRB along with former Wildcats quarterback Kain Colter and the United Steelworkers union.

“I couldn’t be more happy and grateful for today’s ruling, though it is the ruling we expected,” said Ramogi Huma, president of both the National College Players Association, a nonprofit advocacy group that has been around since 2001, and CAPA, which was formed in January. “I just have so much respect for Kain and the football players who stood up in unity to take this on. They love their university but they think it’s important to exercise rights under labor law.

“The NCAA invented the term student-athlete to prevent the exact ruling that was made today. For 60 years, people have bought into the notion that they are students only. The reality is players are employees, and today’s ruling confirms that. The players are one giant step closer to justice.”

Northwestern issued a statement shortly after the ruling saying it would appeal to the full NLRB in Washington, D.C.

“While we respect the NLRB process and the regional director’s opinion, we disagree with it,” the statement read. “Northwestern believes strongly that our student-athletes are not employees, but students. Unionization and collective bargaining are not the appropriate methods to address the concerns raised by student-athletes.”

In a statement, NCAA chief legal officer Donald Remy said: “While not a party to the proceeding, the NCAA is disappointed that the NLRB Region 13 determined the Northwestern football team may vote to be considered university employees. We strongly disagree with the notion that student-athletes are employees.”

Remy added: “Over the last three years, our member colleges and universities have worked to re-evaluate the current rules. While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student athletes — 99 percent of whom will never make it to the professional leagues — focused on what matters most — finding success in the classroom, on the field and in life.”

CAPA supporters, meanwhile, celebrated the news. Colter tweeted: “This is a HUGE win for ALL college athletes!”

Later Wednesday, he told ESPN’s Tom Farrey: “Obviously this is a huge day not just for Northwestern football players but all college athletes. It’s about gaining basic protection and rights.

“I was pleased with how strong the ruling was. The regional director did not budge one bit he backed us up on all of our points. I believe it’s going to be hard to overrule his decision, given how strong it is.

“For me this was just an opportunity to make things right and stick up for future generations and make up for the wrongs of past generations.”

Colter added that he was “confident” the Northwestern players would vote to unionize.

Colter, whose playing eligibility has been exhausted, said nearly all of the 85 scholarship players on the Wildcats’ roster backed the union bid, though only he expressed his support publicly. The United Steelworkers union has been footing the legal bills. CAPA attorneys argued that college football is, for all practical purposes, a commercial enterprise that relies on players’ labor to generate billions of dollars in revenues. That, they contend, makes the relationship of schools to players one of employers to employees.

In its endeavor to have the players recognized as essential workers, CAPA likened scholarships to employment pay — too little pay from its point of view. Northwestern balked at that claim, describing scholarship as grants.

Giving college athletes employee status and allowing them to unionize, critics have argued, could hurt college sports in numerous ways — including by raising the prospects of strikes by disgruntled players or lockouts by athletic departments.

The NCAA has been under increasing scrutiny over its amateurism rules and is fighting a class-action federal lawsuit by former players seeking a cut of the billions of dollars generated from live broadcasts, memorabilia sales and video games. Other lawsuits allege that the NCAA failed to protect players from debilitating head injuries.

NCAA president Mark Emmert has pushed for a $2,000-per-player stipend to help athletes defray some of their expenses. Critics say that isn’t nearly enough, considering that players help bring in millions of dollars to their schools and conferences.

CAPA’s specific goals include guaranteeing coverage of sports-related medical expenses for current and former players, ensuring better procedures to reduce head injuries and potentially letting players pursue commercial sponsorships.

For now, the push is to unionize athletes at private schools, such as Northwestern, because the federal labor agency does not have jurisdiction over public universities.

During the NLRB’s five days of hearings in February, Wildcats coach Pat Fitzgerald took the stand for union opponents, and his testimony sometimes was at odds with Colter’s.

Colter told the hearing that players’ performance on the field was more important to Northwestern than their in-class performance, saying, “You fulfill the football requirement and, if you can, you fit in academics.” Asked why Northwestern gave him a scholarship of $75,000 a year, he responded: “To play football. To perform an athletic service.”

But Fitzgerald said he tells players academics come first, saying, “We want them to be the best they can be … to be a champion in life.”

An attorney representing the university, Alex Barbour, noted Northwestern has one of the highest graduation rates for college football players in the nation, around 97 percent.

“Northwestern is not a football factory,” he said.

Information from ESPN reporter Tom Farrey and The Associated Press is included in this report.

College Athletes Can Seek Cut of TV Money - U.S. Judge

November 10, 2013 in public

By Dan Levine (credit to:

Nov 9 (Reuters) - A lawsuit brought by college athletes seeking television and videogame revenue can move forward, a U.S. judge has ruled, in a case that seeks to reshape traditional notions of sports amateurism in the United States.

In a decision on Friday, U.S. District Judge Claudia Wilken in Oakland, California, ruled that a group of players could sue the National Collegiate Athletic Association as a class action, in an effort to change rules that bar athletes from earning money on their images. However, she also ruled that athletes could not seek money damages for financial losses they suffered in the past.

The lawsuit takes on the highly lucrative business of college athletics, where universities reap billions of dollars from men’s football and basketball, but players are not allowed to profit.

Filed in 2009, the case seeks to create a new system where broadcasting and videogame revenue would go into a fund. Players would not get a cut of it while they were actively playing, but they would get money after they were no longer NCAA-eligible, said Sathya Gosselin, an attorney for the athletes.

“The NCAA has long decried this litigation as threatening college sports as we know it, when in fact the relief sought here is narrow,” Gosselin said.

NCAA chief legal officer Don Remy said the NCAA was pleased that Wilken removed damages from the case.

“We have long maintained that the plaintiffs in this matter are wrong on the facts and wrong on the law,” Remy said in an email. “This ruling is one step closer to validating that position.”

Over 20 current and former athletes sued the NCAA, alleging that it violated federal antitrust law by conspiring with videogame maker Electronic Arts Inc and the NCAA’s licensing arm to restrain competition in the market for the commercial use of the players’ names, images, and likenesses.

The athletes also had originally sued EA, which recently settled.

The NCAA had argued that the lawsuit should not be certified as a class action because some stars would earn much more than other athletes, thus setting up a conflict of interest. The law requires that class action plaintiffs should adequately represent the entire group without conflicts.

Wilken rejected that argument, writing that the players sought group licensing rights. “This distinction is important because it renders irrelevant any differences in the value of each class member’s individual publicity rights,” Wilken wrote.

However, she found that for purposes of damages, the plaintiffs had not come up with a manageable way to figure out which individual players had actually been harmed by the NCAA’s policies.

The NCAA could attempt to appeal Wilken’s ruling.

The case in U.S. District Court, Northern District of California is In Re NCAA Student-Athlete Name & Likeness Licensing Litigation, 09-1967.

EA Sports and CLC settle lawsuit by Ed O’Bannon plaintiffs; NCAA remains as lone defendant

September 27, 2013 in public

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By Jon Solomon | [email protected] 
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on September 26, 2013 at 3:37 PM, updated September 26, 2013 at 7:19 PM

BIRMINGHAM, Alabama - Electronic Arts Sports and Collegiate Licensing Company have settled all claims brought against them by plaintiffs in the joint Sam Keller and Ed O’Bannon lawsuit over the use of college athletes’ names, images and likenesses, according to a court filing today.

Terms of the settlements are confidential until presented to the court for preliminary approval, the filing said. “This settlement does not affect Plaintiffs’ claims against Defendant National Collegiate Athletic Association,” the court filing stated.


EA, which earlier today announced it won’t produce its 2014 college football video game, reached similar settlements in cases brought by former Rutgers football player Ryan Hart and former West Virginia football player Shawne Alston.


More than 100,000 athletes will be eligible for compensation at varying amounts depending on each class members’ claims, said Rob Carey, an attorney for Keller, the former Nebraska and Arizona State quarterback.

“This is a big day and it’s nice to get one big piece of it resolved,” Carey said. “It’s like you’re already in Vegas and still gambling because we still have the NCAA portion of the case that I think everybody on our team likes better than EA because of the hypocrisy.”


The NCAA, EA and the lead attorney for the O’Bannon antitrust plaintiffs declined to comment about the settlement. An attorney for CLC referred questions to the company, which could not be immediately reached for comment.


Earlier today, the NCAA told USA Today Sports it will fight all the way to the U.S. Supreme Court if necessary. Also, EA said its popular college football video game won’t be produced next year and may be gone for good.

The manufacturer said it’s ending the game for 2014 due to ongoing lawsuits concerning the use of college athletes’ names, images and likenesses. Shortly before the settlement was filed, EA said it was trying to settle the lawsuits, two of which resulted in the company asking the Supreme Court to take after losing federal appeals rulings.

“This is as profoundly disappointing to the people who make this game as I expect it will be for the millions who enjoy playing it each year,” Cam Weber, the general manager of American football for EA Sports, wrote on the company’s website.

The company said that it is “stuck in the middle” of a dispute between NCAA and college players who seek compensation.

“Just like companies that broadcast college games and those that provide equipment and apparel, we follow rules that are set by the NCAA — but those rules are being challenged by some student-athletes,” the statement said.

EA noted that the NCAA and a number of conferences have withdrawn their support of the game.

“The ongoing legal issues combined with increased questions surrounding schools and conferences have left us in a difficult position — one that challenges our ability to deliver an authentic sports experience, which is the very foundation of EA Sports games.”

Settlement amounts will vary


In the settlement, some class members will have more valuable rights than others depending on the scope of their claims. The settlements could date back as far as 2003.

For instance, not every player on NCAA rosters listed in the video games also have avatars, Carey said. “The settlement, I would anticipate, would recognize the strengths and weaknesses of each claim,” Carey said.

The definition of the class-action suit includes active players, meaning current college players figure to receive payments from EA and CLC. NCAA rules prohibit athletes from making money off their name in school, but there is a recent precedent.

Texas A&M quarterback Johnny Manziel is suing a man who sold shirts using the football player’s trademarked “Johnny Football” nickname. The NCAA has said it would allow Manziel to collect damages if his corporation’s lawsuit wins as long as those proceeds are not paid to Manziel until after his eligibility expires.

Carey said the Keller settlement is compensation “for property theft” and would not affect a current athlete’s eligibility if money changed hands in the settlement.

A spokeswoman for NCAA said the association could not comment on whether the payments are permissible under NCAA rules until reviewing the settlement terms.

Attorneys for the plaintiffs are now focused on the NCAA, which has not settled over video games. Because the NCAA looked the other way to allow the games to use players’ likenesses, schools’ royalty payments were four times higher than they should have been, Carey said.


In July, the NCAA opted not to renew its licensing agreement with EA, citing the “current business climate and costs of litigation.” The NCAA said then it was confident in its legal position using trademarks in video games.

That caused a ripple effect across the country. Conferences and schools had to decide whether to continue issuing their marks with the video game. The SEC, Pac-12 and Big Ten were among those that decided not to renew.

Over the summer, EA lost a key appeal to dismiss the complaint by Keller that the company illegally used his likeness in the NCAA Football video game without permission.

A panel of judges on the 9th Circuit Court of Appeals in California voted 2-1 that EA was not protected by free speech. Judge Jay S. Bybee, writing in the majority opinion, said the First Amendment does not apply to EA’s use of Sam Keller’s image “because it literally recreates Keller in the very setting in which he has achieved renown.”

EA Sports faced significant challenges in the litigation once damaging e-mails showedNCAA officials knew the video games used real players. Also, a former EA Sports executive producer testified that the games were designed to replicate actual players.

NCAA hires new trial and appeal attorneys

Meanwhile, the NCAA’s chief legal officer told USA Today Sports the association isprepared to go to the Supreme Court if necessary to defend lawsuits involving the use of college athletes’ names, images and likenesses. The NCAA has also added a new defense team.

“We’re prepared to take this all the way to the Supreme Court if we have to,” NCAA chief legal officer Donald Remy told USA Today. “We are not prepared to compromise on the case.”

The O’Bannon suit doesn’t just seek damages from the video games. The plaintiffs, who now include five current college football players, are also going after a 50-50 share of TV revenue in college sports.

Remy told USA Today Sports the NCAA has hired former U.S. solicitor Seth Waxman to handle appeals and retained the California-based firm of Munger, Tolles and Olson to handle trial work. Waxman’s bio says he has given more than 65 oral arguments in the U.S. Supreme Court and many more in the lower federal and state courts.

The NCAA’s interest in going the distance in the O’Bannon case isn’t a surprise. Nonetheless, the legal preparations from the NCAA signal the start of a new stage in the case, which is awaiting a certification decision. Certifying the class-action suit would potentially make the NCAA liable to billions of dollars in damages if it loses at trial.

“I guess they’re figuring they’re going to trial,” Michael Hausfeld, the O’Bannon plaintiffs’ lead attorney, said of the NCAA. “I think that’s an interesting acknowledgment.”

Major power brokers in college sports have insisted that although governance changes will occur within the NCAA, paying players will not happen.

“The NCAA has never made any indication that they are intent on doing anything other than taking their association over the cliff if necessary,” Hausfeld said. “You don’t challenge a system half-heartedly. If you undertake the challenge, you have to be prepared to follow it through and we are.”

Hausfeld said the response to last week’s “All Players United” protest by some college football players suggests the public supports athletes gaining balance in their relationship with schools.

“I don’t think the NCAA ever thought current athletes would come forward,” Hausfeld said. “They have. Change is happening. (NCAA President) Mark Emmert and the NCAA are under siege. They know it and they’re acting like it. So what are they taking to the Supreme Court?”

Third Circuit Affirms Prohibition of NJ Sports Betting

September 24, 2013 in public

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The United States Court of Appeals for the Third Circuit has issued its long awaited decision in NCAA v. Christie - the ongoing litigation to determine whether the Professional and Amateur Sports Protection Act (PASPA) is constitutional.  The Court has determined that the sports leagues have standing to challenge New Jersey’s efforts to implement sports wagering, and has further determined that PASPA is constitutional, thus prohibiting New Jersey’s efforts to implement sports wagering.  The opinion, available here, is 128 pages long, and authored by Circuit Judge Julio M. Fuentes, joined in full by Circuit Judge D. Michael Fisher and in part by Circuit Judge Thomas I. Vanaskie.

The opinion begins with a discussion of the growth of sports betting in the United States and globally, and acknowledged the “strong views” held on both sides of the sports betting debate.  However, the Court commented that its role is not to judge the wisdom of PASPA, but only to determine its constitutionality.  The court acknowledged New Jersey’s strong arguments against PASPA as a matter of policy, but noted that those policy arguments do not apply to the question of constitutionality.

Turning to the question of standing - i.e., whether the sports leagues can sue the state seeking an injunction against sports betting - the Court concluded that the leagues do have standing.  Interestingly, the Court noted that its earlier decision in Markell v. Commissioner of Baseball (which prohibited Delaware from expanding sports betting) did not address the question of standing and could not be relied upon for that purpose.  The Court concluded that the leagues have suffered an “injury in fact” because of the risk of misappropriation of the Leagues’ reputation - the Leagues “are harmed by their unwanted association with an activity they (and large portions of the public) disapprove of - gambling.”  The Court found that there was enough in the record before the District Court to conclude that the Leagues have suffered an injury and could, therefore, sue.

Turning to the merits, the Court first considered whether Congress has the power to regulate sports betting at all.   The Court disposed of this argument rather quickly, holding that both wagering and national sports are economic activities and that they substantially affect interstate commerce, which is sufficient to establish Congress’ authority to regulate under the Commerce Clause.  The Court concluded that Congress had a rational basis to regulate sports betting, which is sufficient.

The Court then addressed the question of whether PASPA commandeers the state, violating the Tenth Amendment.  The Court concluded that the Supreme Court’s “anti-commandeering” jurisprudence cannot be read as broadly as New Jersey argues.  The Court stated that there are only a few distinguishable circumstances where a statute has been struck down for violating the anti-commandeering principle.  One is where Congress compelled states to either enact a regulatory program or expend resources (New York v. United States, dealing with toxic waste disposal).  Another is where Congress required local authorities to run background checks on firearms purchasers (Printz v. United States). 

The Court found that there has been no case law that strikes down a federal statute that “like PASPA, simply operated to invalidate contrary state laws.”  Thus, the Court concluded that the Supremacy Clause is sufficient to justify PASPA.  The Court (citing the Federalist Papers) stated that accepting the argument that “a state’s sovereignty is violated when it is precluded from following a policy different than that set forth by federal law (as New Jersey seeks to do with its Sports Wagering Law) would be revolutionary.”  The Court concluded that PASPA does not tell the states what to do; it bars them from doing something that they want to do, which does not violate anti-commandeering.

The Court next addressed the State’s argument that PASPA does require New Jersey to do something - specifically, to continue to prohibit sports betting.  But the Court concluded that this is not an actual directive - “PASPA does not require or coerce the states to lift a finger.”  The Court stated that it does not read PASPA “to prohibit its ban on sports wagering.”  Under PASPA, according to the Court, a state may entirely repeal any ban on sports wagering - but the state may not authorize sports wagering by law.  “The fact that Congress gave the states a hard or tempting choice does not mean that they were given no choice at all or that the choices are otherwise unconstitutional.”  Finally, the Court concluded that New Jersey’s sports wagering law conflicts with the purposes of Congress in enacting PASPA and is therefore preempted.

Turning to the question of equal sovereignty, the Court distinguished the cases under the Voting Rights Act, holding that voting and regulation of gambling are entirely different, and that the equal sovereignty principle does not apply outside of “sensitive areas of state and local policymaking.”  Moreover, the Court concluded that because the purpose of PASPA was to curb an increase in state-sponsored sports wagering, eliminating sports wagering where it existed at the time of PASPA’s enactment would not have been consistent with that purpose.

In dissent, Judge Vanaskie agrees that the Leagues have standing and that PASPA does not violate equal sovereignty.  However, Judge Vanaskie wrote that PASPA “violates the principles of federalism.”  Judge Vanaskie stated that it is clear that the federal government cannot direct state legislators to legislate and state officials to implement federal policy.  Judge Vanaskie concludes that because PASPA dictates the manner in which states must regulate interstate commerce, it violates anti-commandeering and is unconstitutional.  Judge Vanaskie disagrees with the majority’s view that there is a difference between an affirmative command from Congress and a negative prohibition by Congress - “the federal government’s interference with a state’s sovereign autonomy is the same.”  Judge Vanaskie commented that PASPA impermissibly diminishes the accountability of federal officials at the expense of state officials.  “Instead of directly regulating or banning sports gambling, Congress passed the responsibility to the states, which, under PASPA, may not authorize or issue state licenses for such activities.”  Given that New Jersey regulates its lottery and casinos, it “would be natural for new Jersey citizens to believe that state law governs sports gambling as well…When New Jersey fails to authorize or license sports gambling, its citizens will undeniably blame state officials even though state regulation of gambling has become a puppet of the federal government, whose strings are in reality pulled (or cut) by PASPA.” 

The State can seek rehearing by the full Third Circuit, or petition the Supreme Court of the United States for certiorari.  Although both of those are rarely granted, the fact that a judge dissented may improve the chances of either. 

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