Let me start this second half by saying that the author of this decision, Regional Director Peter Ohr, is a law school classmate of mine for whom I have tremendous respect. That said, I think the Region made a mistake in directing an election in this case and it is my hope that Northwestern appeals the decision and that the Board overrules the Direction of Election.
However, I strongly doubt this will happen given the Board’s recent efforts to expand it relevancy. My first problem with the decision is that I think the analysis obscures the fact that scholarship players, like the walk-ons and graduate assistants, are primarily students. For the vast majority of the players, the scholarship is simply a means to finance their educations and hopefully to enjoy a sport they love. The vast majority will never make professional football their livelihood and do not enter college expecting to become a professional athlete. That their scholarship could be revoked if they voluntarily quit the team should not be critical in the analysis. What would happen to a graduate assistant who received tuition and a stipend where research or teaching was tied to the scholarship? They too would likely lose the scholarship unless it was a needs based scholarship. Nor should the fact that the players devote a significant portion of their time in football-related services. The only reason they are eligible to play football is because they are enrolled at the school. If the player quits the school they also forfeit their scholarship and cannot play for the school irrespective of their willingness to do so. Thus, these players are not employees in the ordinary sense of the word.
My second reason for disagreeing with the Region’s Direction of Election is that concluding that the scholarship players are primarily employees entitled to organize will almost surely cripple college sports. Not just Northwestern football or NCAA Division 1A football, but all NCAA Division 1 programs that provide athletic scholarships as the schools may soon be obligated to bargain with their scholarship players over the terms and conditions of their alleged “employment” in the scholarship sport. Eventually, the players will demand more lucrative compensation for their services—not just tuition, room and board. Should this happen, universities will have less money to fund other sports that are not revenue generators. This will likely result in schools fielding fewer varsity sports as the cost of fielding as many teams in the past will be prohibitive, particularly if the Board concludes that athletic scholarship players in non-revenue generating sports are also employees entitled to organize. The Region’s current decision if allowed to stand may also cause serious problems with Title IX absent the schools simply giving up athletic scholarships. Beyond, the impact on college sports, will the Region’s decision ultimately result in the schools having to bargain with their players over the players academic lives. For instance, will hours required for a degree, grading, and course requirements also be subject to bargaining with the university? Clearly to the extent these players are also students and their employer is the school, why wouldn’t this be a required subject of bargaining?
I think the Board would be better off declining to assert jurisdiction and ordering an election in this instance.
In the first part of this two part blog I will outline the Region Director’s decision, and in part II discuss the potential consequences of the decision and why I think the Region made a mistake in directing an election among Northwestern University’s athletic scholarship football players to determine whether they wish to be represented by a union.
The Region directed the election based on its finding that the scholarship players, unlike the non-scholarship walk-ons, were employees under the National Labor Relations Act and hence eligible to organize and by distinguishing the instant case from Brown University wherein the Board found graduate assistants were primarily students and not employees and hence declined to direct an election. In finding the scholarship players to be employees, the Region relied on the common law definition of employee — one who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment. The Region concluded that the scholarship players unlike the walk-on players were clearly employees because the scholarship players performed football-related services for Northwestern under a contract for hire (the scholarship tender) in return for compensation (tuition, room, board, books and certain other expenses) and that the scholarship players were subject to the control of the coaches rules and control.
Next, the Region distinguished the Northwestern scholarship players from Brown’s graduate assistants whom the Bush Board found were primarily students rather than employees and hence refused to direct an election. The Region distinguished the Northwestern scholarship players based on four points First, the Region concluded the scholarship players were not primarily students noting that the scholarship players spent considerably more time throughout the year on football-related duties than in class. This contrasts with the Board in Brown which relied solely on the fact that the employees were students. Second, the Region concluded that the scholarship football players relationship with the university was not an academic one as their athletic duties do not constitute a core element of their educational degree requirements. This is unlike the Brown graduate assistants who received academic credit for performing their duties and that for the majority these duties were a requirement for their degree. Third, the Region distinguished Brown from Northwestern by noting that the athletic coaches and not the scholarship players academic faculty supervised the scholarship players work and consequently the players lacked a relationship with the faculty when performing their athletic duties. Fourth, the Region distinguished the case from Brown by asserting that the scholarship was compensation and not financial aid. The Region noted that the Brown Board concluded the graduate assistants scholarships were financial aid and not compensation because the graduate assistants received the same scholarship amount as the graduate fellows for whom no research or teaching was required and that the amount of compensation was not tied to the quality of their work.
In contrast Northwestern never offers a football scholarship to a prospective student unless they intend to provide an athletic service to Northwestern and the scholarship can be immediately revoked if the player breaks the rules or voluntarily quits the team. The Region noted that this differed from Northwestern’s walk-on players who might receive a needs based scholarship. A walk-on player could quit the team and retain the scholarship. The Region discounted the fact that the school administration had a role in deciding whether to cancel a scholarship, noting it happened only twice and both time the school followed the head coach’s recommendation.
Stay tuned for Part II wherein I discuss the decision’s impact.
Sports Business Journal recently ran an article on top NFL draft picks going to smaller agencies to represent them. I will not steal the thunder from the article, but the gist is that athletes expect more care/handholding/caring at a smaller shop.
Turn to law firms. The adage is that people pick lawyers and not law firms. It is true. I have clients who come back to me for years and after years of not seeing them. It is very flattering. They do not teach you in law school, but if you were lucky, your mama taught you to treat everyone well.
But an attentive attitude can exist outside of a small shop as well. The basketball great Ray Allen signed with attorney Johnnie Cochran rather than an agent. Allen felt that with a cap on basketball salaries, he would rather pay Cochran’s hourly rate than pay a percentage. By hiring a pro like Cochran, Allen got what he wanted, and gave a head-fake to the expected practices of the day.
As reported by CBS News, there is yet another suit against the NCAA arguing that anti-trust is being violated by not paying college athletes. We have been following these suits, and folks, this one may be different. Plaintiff’s attorney is with a very white shoe, respected, and establishment firm.
Why does this make a difference? It may be a tipping point. I have been struck by how gay marriage went mainstreamt, with states such as Iowa finding in favor of marriage equality and a judge in Utah finding likewise. National public opinon has turned around on this issue as well. Recently, the ESPN series, Thirty on Thirty, did a special on the Big East, highlighting its rise and fall, driven by the big money in other football conferences’ television contracts. The inimitable Jim Boeheim of Syracuse was asked about Syracuse leaving the league and answered that it had nothing to do with basketball and everything to do with football and television.
Is it time to ask again why the players do not have a seat at the table? At least one big-time firm in the U.S. is asking that question.
Chloie Jönsson, who was born male and had sexual reassignment surgery in 2006, sought to compete in the 2014 women’s CrossFit Games. After CrossFit reportedly refused to allow her to compete in the women’s division, Jönsson sued CrossFit on March 6, 2014 in the Superior Court of Santa Cruz, California. Claiming discrimination, Jönsson reportedly seeks $2.5 million in damages.
Several months prior to the lawsuit, CrossFit’s general counsel, Rhode Island attorney Dale Saran [who, ironically, has blogged in the past on a wide array of topics including “What it means to be a man”], wrote Jönsson’s attorney a letter (in response to her attorney’s prior letter), stating that CrossFit would allow Jönsson to participate in the men’s division but claiming that she would have an unfair advantage in the women’s division. “The fundamental, ineluctable fact is that a male competitor who has a sex reassignment procedure still has a genetic makeup that confers a physical and physiological advantage over women,” Saran wrote.
Some would disagree with Saran’s physiological deductions. In a piece on the lawsuit for The Advocate, writer Parker Molloy cites to certain medical authorities which purportedly represent a “consensus” that “transgender women do not have a competitive advantage over cisgender (nontrans) women.”
Notably, the International Olympic Committee allows those born as males who undergo gender reclassification surgery to compete as women/girls under certain specified conditions including that “[h]ormonal therapy . . . has been administered in a verifiable manner and for a sufficient length of time to minimise gender-related advantages in sport competitions” [i.e. at least two years]. According to her attorney, Jönsson has undergone such therapy for more than eight years.
The venue makes this case more intriguing than it might otherwise have been, given the disparity in laws protecting transgender persons in the fifty states. While its applicability will certainly be contested by CrossFit (should this case not settle), California’s Unruh Civil Rights Act (Cal. Civ. Code §§ 51 et. seq.) generally prohibits discrimination in “business establishments” based on “gender identity.”
The case is Chloie Jonsson v. CrossFit, Inc., Case Number CISCV178788. Jönsson is represented by San Francisco attorney, Waukeen McCoy. At the time of this blog entry, no attorney has entered an appearance on behalf of CrossFit.
Don’t look now, but Opening Day isn’t too far away. Even now, eager rookies and wily veterans are back on the diamond. For now, they’re in warmer climes, in fictional leagues named after tropical fruit. As one of my favorite movies from childhood puts it, It Happens Every Spring. Indeed, it is only a matter of time — the snow will thaw, the ivy will be pruned in Chicago, Alex Rodriguez will sit on the couch. (Sorry, I couldn’t resist.)
But in all seriousness, it is a time of revival, a time of hope. A time when each and every team has an equal shot at the pennant. The key? The lineup, of course.
It is much the same with law firms. How do you build a contender? A mixture of youthful energy and veteran savvy. Sharp reflexes. Versatility, of course. And like baseball players, lawyers must be able to play both offense and defense. And at the end of the day, it’s all about teamwork. If only we had Vin Scully to call play-by-play.
As the players take to the field, we’ll take to the courthouse. Play ball.
Allen Iverson had his number retired last week by the Philadelphia 76ers, the capper to a career almost certainly destined for the Hall of Fame. Iverson joined lofty company – Dr. J, Charles Barkley, Moses Malone. Players who played in rarified air – figuratively and literally.
Iverson remains the most remarkable athlete I’ve ever seen in person. About the same time he dragged Dikembe Mutombo, Eric Snow, and a pocket of spare change to the NBA Finals, I was working as an intern for Comcast SportsNet. One of the perks was the ability to gain floor access, as well as the occasional trip into the tunnels for post-game interviews. Iverson was listed at 6 foot flat; from my personal perspective, 5’ 8” seemed more likely. And yet.
Night after night, Iverson leapt through the air, a bird flying through great oaks – dishing, juking, dunking. That in itself would have been remarkable. It was his crossover, however, that took away the crowd’s breath and his opponents’ sense of balance. How many ankles did he break? How many men did he blow by? Even the great Michael Jordan got shaken – twice.
There’s a lesson here for lawyers. Like Iverson’s lack of height and size, each of us has to contend with deficits when they take on a new case. A short calendar. A budget. Maybe you’re a sole practitioner jousting against a hundred-strong legal behemoth. And yet.
Confidence and determination are a good start. Tirelessness and intelligence are certainly necessary. But by thinking outside the box, by putting your opposing counsel off balance . . . well, that’s how you change the rules of the game.
Jason Collins is back in the NBA, having signed a 10 day contract with the Nets. Seems about right that a Brooklyn team breaks yet another barrier.
Such 10-day contracts are not uncommon for aging veterans; each team can sign a player for two such contracts, after which they must “fish or cut bait.” Collins should see a reasonable amount of playing time, filling the Nets’ need for a big man in the paint.
When Collins stepped on the court last week, an away tilt against the Lakers, the crowd welcomed him with warm applause. (There hasn’t been much else to cheer in Lakerland this year.) And that was that. The world did not end, the fans did not boycott, the earth did not open up. Much like “don’t ask, don’t tell,” the idea that professional athletes must remain closeted will now begin fading into the past; it will be a reminder of a less enlightened time, a historical curiosity, and nothing more.
Now the country awaits Arizona’s Governor, Jan Brewer, to see if she will sign into law a “religious freedom” bill, allowing businesses to deny service to gays if it violates their religious beliefs. Progress is piecemeal, but the tilt of history is certain. On the horizon? The Super Bowl is supposed to be in Arizona this year. Look (and hope) for a change of venue if the bill gets signed.
Ray Guy, widely considered the greatest punter of all time, was elected to the Pro Football Hall of Fame this month after seven appearances on the ballot. Indeed, Guy not only was the best to play his position – he radically transformed it, turning punting into a major defensive weapon. The only punter ever to be selected as a first-round draft pick, he gave the Raiders their money’s worth. In a career spanning 1,049 punts, he only had three blocked. The term “hang time” was coined in the football vernacular, and the stat first measured, all because his towering boots were so impressive. You get the idea.
And yet, it’s taken him many years – and the assistance of the Seniors Committee – to be selected. Moreover, he’s the first punter elected to the Hall. Only one place kicker, the immortal Jan Stenerud, is there now. Who, you may ask? Exactly. Despite their essential roles, punters and kickers rarely get their names put up in lights.
There is a lesson for lawyers to take away from this. Specialization, whether on the field or at the law firm, is essential to success; abilities are developed, knowledge is built, success is gained. And yet it is important to remain in touch with other intellectual pursuits and areas of law. When a lawyer keeps a wide range of mental muscles working, it becomes easier to see the big picture and think outside the box. The result? More creative arguments, happier clients, and yes, maybe even wider recognition.
I had a wonderful tour of Russia last summer. The land brims with energy and yes, beauty. It is also a very scary place.
ESPN Online has a comprehensive story today on LGBT laws in Russia, many of which predate the Olympics. The rule of law here is at least designed to protect everyone, citizens and visitors alike. Assuming there is not an attack of any sort, this will still remain as the Olympics where a discreet group was in effect told not to compete. I do wish that gay former Olympians would come forward and bespeak the obvious…this is hurtful, unnecessary and more akin to the 19th than the 21st Century.
As a side note, I did carry away a great joke from the vacation. Putin is asleep and is visited by Stalin. Stalin advises him to divide the Duma (their legislature) into three groups. The first group Putin should take out into a field and shoot. The second, he should put on a train to Siberia, and the third he should force to paint the Kremlin blue. Putin looks askance at his ghostly mentor, and with conviction, asks: “Why should I have the Kremlin painted blue?”
“Ha!” says Stalin. “I knew you’d only ask me about the last part.”