Category: NCAA
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NCAA bans ex-Temple basketball player for betting on own games (CBS Philadelphia)
Higher Education Inquirer : NCAA bans ex-Temple basketball player for betting on own games (CBS Philadelphia)
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What’s Next for Concussion and CTE Research?
The Higher Education Inquirer is calling on both the National Collegiate Athletic Association (NCAA) and the U.S. Department of Defense (DoD) to explain the suspension of the Concussion Assessment, Research and Education (CARE) Consortium, the largest concussion study in U.S. history. Since 2014, CARE has sought to illuminate the effects of concussion and repetitive head impact exposure (HIE) on student-athletes and military service members.
A Decade of Groundbreaking Work
Funded through an initial $30 million “Grand Alliance,” CARE enrolled more than 53,000 athletes and cadets and tracked over 5,500 diagnosed concussions across more than two dozen universities and four service academies. Its successive phases—CARE 1.0 (acute effects), CARE 2.0 (cumulative impacts), and CARE-SALTOS Integrated (long-term outcomes)—provided unprecedented insights into how concussions affect recovery, cognition, mood, sleep, and overall well-being.
The CARE study generated more than 90 peer-reviewed publications, influencing safety protocols, athletic training practices, and public health debates in both NCAA settings and the U.S. military.
CTE and the Need for Decades-Long Research
The suspension comes at a critical moment. Concerns about chronic traumatic encephalopathy (CTE)—a degenerative brain disease linked to repetitive head trauma—are rising. Because CTE’s symptoms often surface decades after injuries, researchers emphasize that only long-term, continuous studies can reveal who develops CTE and why.
Pausing or dismantling CARE risks losing continuity in precisely the kind of data needed to connect the dots between adolescent or collegiate injuries and late-life neurodegenerative conditions.
Collateral Damage: Workers Left Behind
The disruption of CARE has already produced casualties beyond lost data. At the University of Michigan, one of the leading CARE sites, about two dozen research workers were abruptly laid off. Without union protections, they had little recourse. This underscores how fragile large research consortia can be—dependent not only on grants and institutional goodwill, but also on a workforce often treated as disposable.
These layoffs raise troubling questions: If the workers who made CARE possible are discarded without warning, what does that say about the broader commitment to athlete and cadet safety?
Outstanding Questions for NCAA and DoD
The Higher Education Inquirer is pressing for answers:
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Why was CARE suspended? Was this due to funding shortfalls, shifting priorities, or political pressure?
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Will existing data remain accessible? The CARE Consortium has been a vital contributor to the Federal Interagency Traumatic Brain Injury Research (FITBIR) database.
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What about the workforce? Why were employees terminated without protections, and what obligations do the NCAA, DoD, and participating universities have to them?
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What is the long-term plan for concussion research? Without decades-long studies, the risks of CTE and other late-life conditions will remain poorly understood.
Big Loss for Athletes
If CARE is permanently suspended, the consequences will extend far beyond academia. Athletes and cadets will lose a vital source of protection, science will lose irreplaceable data, and workers will continue to bear the costs of institutional indifference.
The Higher Education Inquirer urges the NCAA and DoD to clarify CARE’s future and recommit to the kind of decades-long research that brain science demands. Anything less is a betrayal—to athletes, to service members, and to the very workers who made this research possible.
Sources
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NCAA. NCAA-DOD Grand Alliance: CARE Consortium. ncaa.org
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CARE Consortium. About the Consortium. careconsortium.net
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NCAA. NCAA and Department of Defense expand concussion study with $22.5 million. (October 31, 2018). ncaa.org
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U.S. Army Medical Research and Development Command. Research Supporting a Lifetime of Brain Injury. mrdc.health.mil
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NIH. Concussion Assessment, Research, and Education Consortium (CARE) Study Data. ncbi.nlm.nih.gov
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HR and the Courts — October 2024
by CUPA-HR | October 15, 2024
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
NCAA & Power Conferences Receive Preliminary Approval of Name, Image and Likeness and Anti-Trust Settlement — Ivies Win Dismissal of Anti-Trust Lawsuit
A federal district court judge has given preliminary approval to the NCAA and Power Conferences’ revised $2.8 billion settlement proposal to be paid to college athletes over 10 years. The judge set a fairness hearing for April 2025, with all objections to be filed by January 31, 2025. The federal judge in the Northern District of California concluded that the revised settlement was “fair, reasonable and adequate” (In Re College Athlete NIL Litigation (N.D. Ca. No. 4:20-cv-03919, 10/7/24)).
Commentators immediately voiced concerns that the settlement addresses a small group of male athletes in specific sports to the disadvantage of female athletes. In addition, a number of Division I athletes may express objection on the grounds that the settlement continues to give the NCAA too much control over the free market compensation for student-athletes.
Separately, the eight Ivy League institutions won a dismissal of a federal lawsuit that claimed their ban on athletic scholarships violated anti-trust laws. The federal district court judge assigned to the case granted the Ivy League’s motion for summary judgement, holding that the plaintiffs failed to allege any properly defined market and therefore failed to allege market wide anti-competitive effects (Choh v. Brown University, et. al. (D. Conn. No. 3:23-cv-00305, 10/10/24)).
University of Louisville School of Medicine Loses First Amendment Retaliation Claim Brought by Terminated Professor
A former professor at the University of Louisville School of Medicine will receive a trial over his First Amendment retaliation claims regarding statements he made about gender dysphoria to a conservative think tank. Following comments he made during an event sponsored by the Heritage Foundation, the former medical school professor was demoted and his annual contract was not renewed. The professor expressed the view that gender dysphoria in children “is a sociocultural, psychological phenomenon that cannot be fully addressed with drugs and surgery.”
The 6th U.S. Circuit Court of Appeals ruled unanimously that the university officials who terminated Allan M. Josephson should have known that he was engaged in protected speech, and that terminating him would violate his First Amendment rights. Moreover, the court ruled that the professor’s outside speech was not part of his professorial duties, and therefore subject to his First Amendment claims. The court concluded that a trial is necessary, as there are facts in dispute regarding the rationale for the actions taken against the professor (Josephson v. Ganzel (6th Cir., No. 23-05293, 9/10/24)).
Tenured Professor Loses Defamation Case Against Harvard
A federal district court judge partially dismissed a noted behavioral scientist’s $25 million defamation and breach-of-contract lawsuit against Harvard University. Professor Francesca Gino was placed on administrative leave following claims of data fraud in her research. Gino claimed that the university’s notice on her faculty page that she had been placed on administrative leave after conducting an investigation of her research was libelous because the university acted with ill will.
The court concluded that the professor was a “public figure” and therefore faces a higher standard for proving defamation. A public figure in these circumstances can only prove defamation if the alleged defamer had knowledge that their statement was untrue or acted with reckless disregard for the truth. Moreover, the court concluded that the issue of “research integrity and potential misconduct” is one of public concern, adding to the reason for the dismissal of the defamation claim (Gino v. Presidents and Fellows of Harvard College (D. Mass. No. 1:23-cv-11775, 9/11/24)).
Regarding the professor’s breach-of-contract claims, the professor alleged that the university’s decision to place her on administrative leave and its related disciplinary sanctions were the same as tenure removal. The judge concluded that it is premature to rule on the breach-of-contract claims.
Public School Employees Lose Free Speech Case Challenging Anti-Racism Training
In a case with possible application to public higher ed training, the 8th U.S. Circuit Court of Appeals affirmed the dismissal of a case brought by two Missouri public school employees who claimed that anti-bias employee training violated their First Amendment rights. The lawsuit failed because the court concluded that they were never asked to leave nor were they disciplined for expressing contrary views and that they received professional development credit for attending the anti-racism training (Henderson v. Springfield R-12 School District (8th Cir No. 2301374, 9/12/24)).
The decision provides some clarity on such training, as the court noted that the employees were not compelled to express certain views or refrain from expressing certain views during the training. The appellate court did reverse the trial judge’s ruling requiring the plaintiffs to pay $300,000 in attorney fees for filing a frivolous claim.
Former Student’s Title IX Claim Dismissed as Alleged University Internship Did Not Exist
A federal district court judge dismissed allegations of a sexually abusive internship at the University of Michigan because the plaintiff could not prove the internship actually existed. The court noted that none of the usual formalities, such as an application or a university authorization of an internship, were established.
In light of this, the court dismissed the Title IX claims and allegations of failure to investigate sex harassment and abuse allegations as the plaintiff did not allege discrimination while “participating in or at least attempting to participate in” a university program or activity, as the internship did not exist. The University of Michigan prevailed in the case (Doe v. Baum ((2024 BL 340244 E.D. Mich. No. 4-21-cv-12492, 9/26/24)).
University of Texas Professor Loses First Amendment Complaint
A federal district judge dismissed a University of Texas professor’s First Amendment claim that his speech was “chilled” by unspecific threats following comments critical of “critical race theory and DEI-based ideology.” The judge dismissed the case, holding that the unspecific threats did not rise to the level of an adverse employment action (Lowery v. Mills ((W.D. Tex. No. 1:23-cv-00129, 10/2/24)).
The judge ruled in favor of the University of Texas McCombs School of Business. The judge noted in a footnote, however, that the dismissal was not meant to approve of the university’s actions and that “in the context of a world-class university like UT, differences of opinion should be tolerated by those in authority, no matter that they are uncomfortable, so long as they do not incite violence or disrupt the school’s ability to function as a teaching institution.”
Supreme Court to Review Split in Circuits Regarding Higher Ed ERISA Lawsuit
The Supreme Court has agreed to hear arguments over the split in circuit courts of appeals as to when a university may be sued by employees under the Employee Retirement Income Security Act (ERISA). Employees of Cornell University alleged that improper service provider fees were charged to their pension fund. They are appealing an adverse 2nd Circuit decision stating employees must plead that the alleged “prohibited transaction” by the service provider involved either “unnecessary services” or the fees were “unreasonable” (Cunningham v. Cornell University (US No. 23-1007 cert granted 10/4/24)).
The 2nd U.S. Circuit Court of Appeals, the 3rd Circuit, the 7th Circuit, and the 10th Circuit all require the additional pleading that alleges some kind of fraud or impropriety in order to allow the case to move forward. This contrasts with the 8th Circuit and the 9th Circuit, which apply the “ERISA-as-written” rule. That rule allows a plaintiff to simply allege that a transaction between an employer and a pension or welfare plan service provider occurred and proceed with discovery over whether fraud or some other impropriety exists. We will follow developments in this case as it proceeds.
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HR and the Courts — September 2024
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
Fired Professor Who Praised Hitler Loses Free Speech Retaliation Lawsuit
The New Jersey Institute of Technology prevailed in a federal lawsuit brought by a former philosophy lecturer alleging retaliatory discharge. The professor’s employment agreement was not renewed after a New York Times article exposed his involvement in the “alt-right” (a far-right, white nationalist movement), including his praising Adolph Hitler as a “great European leader” and linking IQ to race. In dismissing the lawsuit, the U.S. District Court for the District of New Jersey held that the professor’s speech disrupted, and would likely continue disrupting, the university’s administration and interfered with the university’s mission (Jorjani v. N.J. Inst. of Technology ((D.N.J. No. 2:18-cv-11693, Jud entered 7/31/24)).
The judge held that public employers can restrict the speech of employees without violating the First Amendment when necessary to maintain effective and efficient operations. The judge also emphasized that the university did not need to wait for protests and demonstrations in order to show disruptions in operations before acting.
NLRB: Private Colleges and Universities Must Bargain With Unions Representing Student Employees Over FERPA-Protected Information
On August 6, 2024, the general counsel of the National Labor Relations Board (NLRB) issued a memo acknowledging the potential conflict between the National Labor Relations Act (NLRA) and the Family Educational Rights and Privacy Act (FERPA) regarding union requests for personal information about student employees. The NLRB general counsel concluded that colleges and universities in this situation must bargain with the applicable union over disclosure of such information and explain why the information request would violate FERPA.
Further, the NLRB concluded that the college or university can bargain with the union over the distribution of FERPA waivers to applicable student employees but that asking the union to hand out such waivers would be unreasonable and a violation of the employer’s duty to bargain in good faith because the union does not have the student contact information. The general counsel concluded that the college or university should hand out the waivers when the union does not have the student employees’ contact information.
Proposed $2.8 Billion NCAA Settlement on Hold as Some Student-Athletes Object
Some student-athletes claiming the NCAA artificially capped the size of college athlete scholarships too low, as well as those pursuing fair-pay claims, objected to the $2.8 billion proposed settlement of the NCAA and the Power Five conferences antitrust case. Plaintiffs in these two areas are asking the Northern District of California court to carve out their claims from the proposed settlement so that they can pursue individual claims in further litigation. The federal judge overseeing the matter questioned the proposed settlement and concluded that the settlement needed a better explanation of damages and a clearer understanding of how much each class member can expect to gain (In re College Athlete NIL Litigation (N.D. Cal. No. 4:20-cv-3919. Brief filed 8/9/24, Fontenot v. NCAA D. Colo. No. 1:23-cv-03076, and Cornelio v. NCAA D. Colo. No. 1:24-cv-02178)).
Two former Brown University student-athletes have dropped their objection, concluding it will not preclude them from proceeding separately in an antitrust claim against the Ivy League. The two former men’s and women’s basketball players have alleged separately that the Ivies have engaged in an illegal agreement which raised the price of an Ivy League education by illegally suppressing compensation for their services. They alleged that Brown only provided them with need-based assistance that did not cover the full cost of their education.
Boston University Graduate Workers Strike Is Longest in the Last Decade
Lasting over 150 days, the Boston University graduate workers strike is the longest student employee strike in the last decade, according to the National Center for the Study of Collective Bargaining in Higher Education and the Professions, located at the City University of New York’s Hunter College. The BU strike, which began on March 25, eclipses a similar work stoppage of 147 days at the University of Michigan in 2023. An unauthorized “wildcat” strike at the University of California, Santa Cruz may have lasted longer but the National Center points out that strike was unauthorized by the applicable union. The center concludes that this is part of the significant increase in unionization of both undergraduate and graduate student workers that has occurred over the past few years.
The Boston University graduate workers formed their union in December 2022. The union is still engaged in efforts to secure their first collective bargaining agreement. September 3 will be the beginning of the second semester in which the grad student workers are striking. Teaching and regular higher education functions have continued at the university, though some interference with regular activities has been reported.
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Dartmouth Men’s Basketball Team Votes to Unionize – CUPA-HR
by CUPA-HR | March 6, 2024
On March 5, 2024, the Dartmouth College men’s basketball team voted 13-2 in favor of joining the Service Employees International Union. The election marks the first time in nearly a decade that student-athletes have been authorized to vote for union representation and may be the first case in which their election results in certified representation.
Background
On February 5, the National Labor Relations Board Regional Director Laura Sacks determined that players on the Dartmouth men’s basketball team are employees under the National Labor Relation Act and are thus eligible to unionize. The decision argues that the student-athletes are employees because Dartmouth has the “right to control the work performed by” the players on the team and players receive several benefits, including, but not limited to, lodging, meals, gear and training. Sacks’s decision ordered a secret-ballot election for representation, allowing all 15 players on the roster to determine whether or not to unionize.
On February 29, Dartmouth filed a request to the NLRB to reconsider the decision made by the regional director and to place a stay on the election or impound the ballots during the reconsideration period. The NLRB rejected these requests to reconsider the decision and stay the election, allowing the election to move forward as scheduled.
On March 5, before the 13-2 vote, Dartmouth appealed the regional director’s decision to recognize the student-athletes as employees. The appeal asked the NLRB to review and reverse the regional director’s decision and dismiss the petition, making the following arguments in favor of doing so:
- The NLRB regional director inaccurately defined a student-athlete as an employee.
- The NLRB regional director contradicted precedent set by a 2015 NLRB decision involving the Northwestern University men’s football team by asserting jurisdiction in this case.*
- There will be several adverse and unintended consequences for institutions and players if student-athletes are found to be employees, including potential immigration and Title IX issues.
Looking Ahead
The SEIU has five days to respond to this appeal, after which the NLRB will consider both motions. The review by the NLRB, along with any further legal challenges that could go all the way to the U.S. Supreme Court, might significantly delay the union’s official recognition and the start of collective bargaining negotiations. These processes could take months or even longer to complete.
Several lawsuits challenging NCAA policies are also ongoing, and other recent NLRB decisions and complaints further challenge the NCAA’s structure and question the classification of student-athletes as employees. Last month, a district court judge in Tennessee issued a preliminary injunction that bars the NCAA from enforcing its policy prohibiting incoming student-athletes from capitalizing on name, image, and likeness deals prior to enrolling at a college or university. Additionally, the NLRB has also issued a complaint against the University of Southern California, the PAC-12 Conference and the NCAA, alleging the three have misclassified USC’s football and men’s and women’s basketball players as student-athletes rather than employees and that they are joint employers of the athletes. The NLRB complaint is currently being challenged in court.
The establishment of a student-athlete union is a divergence from the NCAA’s amateurism standards; for example, unionized players gain opportunities to negotiate compensation and working conditions related to practice hours and travel. With unionized players empowered to negotiate, the landscape of collegiate athletics may undergo a significant shift.
CUPA-HR will keep members apprised of upcoming developments as it relates to this case.
*In 2015, the NLRB declined to assert jurisdiction in a case involving the Northwestern University men’s football team. Prior to issuing the decision, the men’s football team had voted for representation, but the NLRB ultimately dismissed the petition filed by the union that planned to represent the unit. The NLRB held that, though Northwestern is a private institution, it is a part of the Big Ten Conference, which was comprised of all public schools except for Northwestern at the time.
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Federal Judge Blocks NCAA Name, Image and Likeness Policy for Recruits Nationwide – CUPA-HR
by CUPA-HR | February 27, 2024
On February 23, a federal judge with the District Court for the Eastern District of Tennessee issued a preliminary injunction barring the NCAA from enforcing its rules prohibiting name, image and likeness compensation for recruits. The injunction applies nationwide.
The policy in question prohibited student-athletes from negotiating and signing NIL contracts prior to enrolling at a college or university. This meant NIL compensation could not be used to “induce” a recruit to a specific school. This policy stood in contrast to the NCAA’s policy for student-athletes already enrolled at a college or university, who, as of 2021, have been allowed to seek NIL compensation.
In his decision, U.S. District Judge Clifton Corker explained, “The NCAA’s prohibition likely violates federal antitrust law and harms student-athletes.” He clarified, “Without the give and take of a free market, student-athletes simply have no knowledge of their true NIL value. It is this suppression of negotiating leverage and the consequential lack of knowledge that harms student-athletes.” He further argued that the NCAA “fails to show how the timing of when a student-athlete enters such an agreement would destroy the goal of preserving amateurism,” thereby not establishing rationale for treating recruits differently than enrolled student-athletes.
The lawsuit was filed by the attorneys general of Tennessee and Virginia after the NCAA investigated the University of Tennessee for potential violations of the policy. The NCAA will likely appeal the case to the 6th U.S. Circuit Court of Appeals overseeing Tennessee, Kentucky, Ohio and Michigan, but in the meantime, reports indicate the organization is already considering potential policy changes.
This case is only one of the lawsuits targeting the NCAA and its policies towards student-athletes. Several lawsuits are currently pending before various federal courts, alleging the NCAA in its current form violates federal antitrust law. Additionally, the National Labor Relations Board recently ruled that the Dartmouth men’s basketball team are employees of the university, allowing them to organize and schedule a union representation election for early March. The NLRB has also issued a complaint against the University of Southern California, the PAC-12 Conference and the NCAA, alleging the three have misclassified USC’s football and men’s and women’s basketball players as student-athletes rather than employees and that the three organizations are joint employers of the athletes.
CUPA-HR will continue to monitor for and keep members apprised of any updates on these cases.
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HR and the Courts — January 2024 – CUPA-HR
by CUPA-HR | January 10, 2024
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
Medical School Surgeon Awarded $15 Million in Damages Resulting From Biased Harassment Investigation
A federal trial court jury awarded a medical school surgeon $15 million in damages. The jury concluded that the Thomas Jefferson University Hospital medical school’s sex harassment investigation of the plaintiff, who was accused of harassment and sexually assaulting a female medical school resident, was biased against males (Abraham v. Thomas Jefferson University Hospital, et al (Case No. 2:20-cv-02967, E.D. Pa. 12/11/23)). The plaintiff claimed that prior to the incident, he had an “unblemished” reputation. He claimed that due to the medical school’s mishandling of the disciplinary proceeding, he had been labelled a “rapist,” had been ostracized by professional colleagues, and had suffered damages to his livelihood.
The incident, subject to the lawsuit, involved a pool party at the plaintiff’s home in 2018. The plaintiff alleged that the medical resident became sexually aggressive toward him without his consent, and he was too intoxicated to resist. The plaintiff claims to have reported the incident to the hospital and found that the resident had filed a complaint against him, which resulted in the allegedly anti-male biased investigation and proceedings. Prior to the verdict, the medical school filed a motion for mistrial, alleging that the “belligerent” treatment of the court by the plaintiff’s counsel unduly influenced the jury. As of writing, there has been no action on the defendant’s motion.
LSU Associate Athletic Director Claims Race and Sex Discrimination, Retaliation, and Hostile Work Environment in Lawsuit
A federal district court judge granted partial summary judgement dismissing some charges brought against Louisiana State University by a terminated, former associate athletic director, but allowed some allegations of race and sex retaliatory discrimination and hostile work environment to move forward to a jury trial against the university’s board of supervisors (Lewis v. Board of Supervisors, Louisiana State University (2023 BL 437930, M.D. La., No. 3-21-cv-00198, Partial summary judgement, 12/1/23)).
The university argued that the former associate athletic director was fired in a shake-up made by a new university football coach, which had nothing to do with the plaintiff’s race or sex. However, the new coach denied at deposition that he made the decision to fire the associate athletic director, creating a factual dispute that the court ruled should go to a jury. The federal judge concluded that the plaintiff’s allegations of a sexually hostile work environment should proceed to a jury trial as well as the allegations that she was denied a pay raise and ultimately fired because she is a Black woman.
NCAA Proposes Plan to Allow Institutions to Pay Student-Athletes
The NCAA proposed a plan in December 2023 to allow some institutions to invest at least $30,000 into an educational trust for at least half of their student-athletes to address the ongoing controversy over payments to student-athletes. Commentators point out that there will be many challenges to the new plan, including possibly running afoul of Title IX. Moreover, the plan will not make the pending Fair Labor Standards Act and National Labor Relations Act student-athlete claims go away.
Commentators also point out that the proposal does not address the pending class action damage claim filed against the NCAA in the name, image and likeness (NIL) litigation, which is scheduled for trial in January 2025. Plaintiffs in that class action are claiming damages of $4.5 billion as a result of the NCAA’s past ban on NIL payments, which was overturned by the Supreme Court in NCAA v. Alston in August 2021 on anti-trust grounds.
Federal Judge Rejects Religious Discrimination Claim Against Princeton
A federal district court judge recently granted a motion to dismiss filed by Princeton University in a case brought by a former budget analyst who claims she was fired because of her religious beliefs when she refused to comply with COVID-19 protocols, including wearing a mask (McKinley . Princeton University (Case No. 3:22-cv-05069, D. N.J. 15/5/23)).
The case was initially dismissed because the complaint did not mention any specific religion or set of beliefs. The court gave the plaintiff the opportunity to refile and correct that omission. The plaintiff’s amended complaint contained allegations that “my body is my temple” and “decries… any and all abuse against life.” In dismissing the case, the judge concluded that the plaintiff’s beliefs appear to be a collection of general moral commandments. The court found that the plaintiff’s personal moral code and beliefs do not constitute a comprehensive system of beliefs that could be called a religion.
Appeals Court Reverses Dismissal of Former UMass Soccer Coach’s Age Discrimination Case
A Massachusetts state appeals court reversed the dismissal of a former women’s soccer coach’s age discrimination complaint (Matz v. University of Massachusetts–Amherst (Mass App Ct No. 22-P-1162, 12/7/23)). The coach, who was 51 years old, filed the claim alleging that his termination was because the university wanted to hire a younger coach and that the stated reasons for his termination were a pretext.
In dismissing the case, the university claimed the coach was terminated because of “an undisputed poor record” and “student criticism of his coaching abilities.” The appellate court recognized that the coach’s performance review concluded that he needed improvement and that there were student criticisms of his coaching abilities. Nonetheless, the appellate court held that the record contains “numerous positive reviews, inconsistent with the [2015 season] criticisms,” from which a jury could find he was terminated because of his age. The appellate court concluded that the plaintiff raised a claim by a member of a protected class, who was performing his job sufficiently, and his allegations could raise reasonable speculation about discrimination.
California Jury Awards Nurse $41.5 million in Damages in Retaliatory Discharge, Whistleblower Case
A neonatal intensive care nurse who was fired after 30 years of service to her employer was awarded a California jury verdict of $41.5 million in compensatory and punitive damages as a result of her discharge, which she claimed was in retaliation for raising safety issues. The California state court jury awarded the plaintiff $1.3 million in lost wages, $1.2 million in future lost wages, $1.5 million in past mental suffering, $7.5 million in future mental suffering, $15 million in punitive damages against the hospital, and $15 million in punitive damages against the Kaiser Foundation.
According to the hospital, the plaintiff was fired after she was found reclining in the neonatal unit, talking on her personal phone with her feet resting on an isolette that had a neonatal infant inside. The plaintiff claimed that the stated reason for discharge was a pretext and that the real reason for her discharge was that she reported a supervisor who refused to report that the father of a patient was present in the hospital with a knife, creating an unsafe situation in the hospital (Gatchalian v. Kaiser Foundation Hospitals et. al. (Case No. 21STCV15300 Ca. Sup Ct. L.A. Cty. Jury Verdict 12/16/23)).
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NLRB Region Files Complaint Against the NCAA, Pac-12 and the University of Southern California – CUPA-HR
by CUPA-HR | December 21, 2022
On December 15, the National Labor Relations Board (NLRB)’s Region 31 announced it will pursue a complaint against the National Collegiate Athletic Association (NCAA), the Pac-12 Conference and the University of Southern California (USC) for violating the National Labor Relations Act (NLRA) by misclassifying student-athletes as non-employees, unless the matter is settled. On February 8, the National College Players Association filed an unfair labor practice (ULP) charge with the region alleging that USC; the University of California, Los Angeles; the Pac-12 Conference; and the NCAA are “joint employers” who violated the NLRA by “repeatedly misclassifying employees as ‘student-athlete’ non-employees.”
Region 31 is part of the NLRB’s Office of General Counsel, which is responsible for receiving charges from employees, unions or employers that allege violations of the NLRA. The region decides whether to issue a complaint on charges it receives. If the region does not issue a complaint, the matter is generally closed. If the region decides to file a complaint, however, the case is litigated before an administrative law judge.
Region 31’s complaint is the latest development regarding the employment status of student-athletes. The National College Players Association’s February 8 charge followed NLRB General Counsel Jennifer Abruzzo’s memorandum issued last September in which she argues that student-athletes are employees under the NLRA and are therefore afforded all statutory protections as prescribed under the law.
The region’s decision in response to the February ULP charge means the NCAA, Pac-12 Conference and USC can either settle or litigate the case. A final ruling could take years to come to fruition, however, as both parties in the case could appeal the decisions made by the administrative law judge to the five-member NLRB. The NLRB’s decision can be appealed to federal appellate courts and from there all the way up to the Supreme Court.
The news of the region’s complaint follows the announcement earlier in the day that Massachusetts Governor Charlie Baker would be the NCAA’s next president in March after his last term in office expires in January. Baker, a Republican, is known for his work to build bipartisan consensus on policy in Massachusetts, which the NCAA may recognize as a strength as they continue to engage Congress on other issues related to student-athlete compensation. It is unclear what, if any, impact this will have on the ULP charges.
CUPA-HR will continue to keep members apprised of this case and others involving student-athlete employment classification that may emerge in the future.
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HR and the Courts – CUPA-HR
by CUPA-HR | March 9, 2022
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
National College Players Association Files Unfair Labor Practice Charges Against the NCAA and Multiple Public and Private Colleges, Asserting College Basketball and Football Players Are Employees Under the NLRA
The National College Players Association (NCPA), a non-profit advocacy group, has filed unfair labor practice charges with the National Labor Relations Board (NLRB) asserting that private and public universities, USC and UCLA, as well as the National Collegiate Athletic Association (NCAA) and the Pac-12 conference as joint employers have violated the National Labor Relations Act (NLRA) in refusing to treat college basketball and football players as employees. The NCPA hopes to convince the NLRB to rule that all division college basketball and football players at public and private colleges and universities are employees with collective bargaining rights.
The current NLRB general counsel has stated publicly that she believes that student-athletes at private colleges and universities are employees subject to coverage under the NLRB. Nonetheless, the NLRB with jurisdiction over private colleges and universities has not yet ruled on the issue. The NCPA asserts that public colleges and universities will be covered because they are joint employers with the NCAA and the Pac-12 conference, both of which are private organizations subject to NLRB jurisdiction. This joint employer argument has not been ruled on by the NLRB in the past.
U.S. Court of Appeals to Consider Whether Student-Athletes Are Employees Under the FLSA and Must Be Paid Minimum Wage and Overtime
Apart from the action described above concerning whether student-athletes are employees under the NLRA and therefore subject to unionization and mandatory collective bargaining, the U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey, Delaware and Maryland) will hear an appeal by colleges that the lawsuit by student-athletes seeking coverage under the Fair Labor Standards Act (FLSA) and minimum wage and overtime payments should not go to trial, but rather should be dismissed under current precedent. The lawsuit was filed in Pennsylvania against the NCAA and several Division-I colleges.
The federal trial court judge denied the NCAA’s and college’s motion for summary judgment and ordered that the case proceed to trial. The NCAA and colleges argued that the trial court judge’s decision contradicted the decision of the Seventh Circuit Court of Appeals (covering Wisconsin, Illinois and Indiana) and a California state court case ruling that the student-athletes are not employees under the FLSA (Johnson et, al v. NCAA et al (3rd Cir., Case no. 22-8003, 2/4/22)).
Gymnastics Coach Claims Gender Bias and Sex Stereotype That Female Coaches Are Not Expected to Be As Aggressive as Their Male Counterparts as Reasons For Her Termination
A former Towson University gymnastics coach was terminated after the university received complaints from gymnastics team members claiming that her coaching techniques were discriminatory against Black team members, that she bullied team members into competing while injured and that she did not adequately feed the team. The coach claimed that the termination resulted from the sex stereotype that female coaches are not expected to be as aggressive as their male counterparts.
The university countered that her discharge resulted from valid complaints by team members. The university also argued that it is the coach who is guilty of sex stereotyping with regard to her defense that female athletes are more likely to complain about her coaching practices than male athletes. The university also responded to the coach’s claim of pregnancy discrimination, arguing that the coach never explicitly advised the university that she was pregnant. The coach claimed that she was visibly pregnant at her last meeting with the university. The case is pending in federal district court in Maryland (May v. Towson University (Case no. 1:21-cv-02229, D. Md.)).
Federal Court Rules School District Likely Violated Constitutional Rights of Three Paraprofessionals Who Were Prohibited From Wearing Black Lives Matter and Other Anti-Racism Messaging
A federal district court trial judge ruled in favor of three paraprofessional employees who were prohibited by their school district from wearing masks and other clothing with Black Lives Matter and other anti-racism messaging. The judge ruled that the school board’s actions “likely” violated First Amendment free speech rights (Fuller et al v. Warren County Educational Service Center et al (2022 BL 48702, S.D. Ohio 2/14/22)).
The judge ruled that the school district must immediately lift its ban on any such controversial social or political messaging while the case is litigated further. The judge ruled that the employees’ messaging addresses a matter of public concern and they “spoke” as private citizens by making statements on Black Lives Matter and other related issues that are not within their job duties. The judge concluded that the school district did not demonstrate that the wearing of the material would disrupt school operations. While avoiding an emotional or violent outburst by a sensitive student body would justify the ban, the school district did not prove the likelihood of such a development. The judge also concluded that there was no evidence supporting the school district’s concerns, making them purely conjectural and outweighed by the free speech rights of the employees.
Professor Files ADA and Rehab Act Discrimination Case Alleging His Heightened COVID-19 Risk Is a Disability and He Was Unfairly Denied a Reasonable Accommodation to Continue Teaching Remotely
A former science professor at Georgia Military College sued the college’s board of directors in federal court after he was put on an unpaid suspension and ultimately terminated following the alleged denial of his accommodation request that would allow him to teach his classes remotely based on his doctor’s advice that he was of high risk for COVID-19 because of numerous conditions, including Crohn’s disease, kidney failure and anemia. The professor asked that he be allowed to continue teaching remotely as he had allegedly done for six months before the college asked most professors to resume teaching in person. The professor alleges that other professors were allowed to continue teaching remotely in small class situations, but he was denied his request because his class was very large due to the popularity of his teaching (Fields v. Board of Trustees of Georgia Military College and Georgia Military Prep School (M. Dist. Ga. 5-22-cv-00074)).
The professor claimed that he was a former recipient of a teaching excellence award at the school and was treated “dismissively” in his denial of his accommodation request. He also claims he was allowed to teach remotely due to his disabilities in 2016, prior to the pandemic, and that is when he received the teaching excellence award. The college claimed it responded to his accommodation request by offering him two alternatives: return to teaching in person or take an unpaid leave of absence. The professor is seeking back pay, loss of employment benefits and three to five years of front pay. The professor claims job reinstatement is not feasible in these circumstances.
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HR and the Courts – CUPA-HR
by CUPA-HR | January 12, 2022
Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.
NCAA Loses Appeal For Expedited Ruling Denying Student-Athletes’ Minimum Wage FLSA Claims — Claims Move to Federal Court Trial
The National Collegiate Athletic Association (NCAA) was denied a request or fast track consideration of its appeal of an adverse trial court order to proceed to trial over student-athlete claims that they are covered by the Fair Labor Standards Act minimum wage and overtime rules as they are employees. The trial court judge ruled that the question of whether the student-athletes are employees is a mixed question of law and fact, which should go to trial. The judge concluded that the NCAA can appeal an adverse trial decision after trial.
The NCAA countered that similar suits in the U.S. Appeals Seventh and Ninth Circuits have been dismissed. The NCAA argued that appeals courts in the Seventh Circuit (covering Illinois, Indiana and Wisconsin) and in the Ninth Circuit (covering California, Oregon, Washington, Nevada, Arizona, Idaho and Montana) both held that the NCAA is not the employer of student-athletes. In rejecting the NCAA’s interlocutory appeal, the Third Circuit (covering Pennsylvania, New Jersey and Delaware) ruled that the NCAA failed to meet its burden in showing exceptional circumstances justifying departing from the normal policy of delaying appellate consideration until a final judgement is issued.
EEOC Issues “Guidance” That COVID-19, Under Certain Circumstances, May Be a Disability Covered and Protected By the ADA From Discrimination
The Equal Employment Opportunity Commission (EEOC) issued “guidance” in mid-December stating that, in certain circumstances, COVID-19 may be a disability covered by the Americans With Disabilities Act (ADA), making it illegal for employers to discriminate against employees with COVID-19. The EEOC chair pointed out that employees with disabilities resulting from COVID-19 may be eligible for a reasonable accommodation. Depending on each employee’s individual circumstances, an employee recovering from COVID-19 may meet the ADA’s definition of a disability as a mental or physical impairment that substantially limits a major life activity, or an employer’s perception that the individual has a disability.
Someone who has COVID-19 and experiences multi-day headaches, dizziness and brain fog attributable to COVID-19 is an example of an impairment covered by the ADA. However, the EEOC pointed out that not every person with COVID-19 will qualify as disabled. For example, if someone has COVID-19 and is asymptomatic or has mild symptoms similar to the flu that lasts only a few weeks, with no other consequences, that person would not qualify as disabled. The EEOC suggests an individual assessment of each employee with COVID-19 might be necessary to determine whether it is a disability.
State and Local Ordinances Regulate the Use of Artificial Intelligence/Automated Job Applicant Screening Tools In Screening Job Applicants
New York City (NYC) just established one of the broadest new laws concerning the use of artificial intelligence tools to screen job applicants by NYC employers. The effective date is unclear and local counsel should be consulted on the new regulations in NYC. Under the NYC law, such artificial intelligence tools will be banned in NYC unless they are subject to a “bias audit” conducted a year before the use of the tool. Illinois passed a law similar to the NYC law. Maryland passed a law banning the use of facial recognition in the employment application process without the applicant’s consent. The attorney general in the District of Columbia is also proposing a related proposal addressing “algorithmic discrimination.” The EEOC recently indicated that it would study the use of artificial intelligence job screening tools to see if they contribute to bias in employment decisions.
Denial of Healthcare Coverage For Transgender Surgery Is Subject to Discovery Squabbles As Arizona Appeals Trial Court Order to Turn Over Attorney Opinions Concluded Its Actions Were Legal
The state of Arizona recently appealed a federal trial court’s decision that it turn over “attorney opinions” and that its actions excluding transgender surgery from health plan coverage were legal, to the Ninth Circuit Court of Appeals. The Ninth Circuit covers California, Oregon, Washington, Arizona, Nevada, Idaho and Montana. The health plan’s exclusions are subject to a lawsuit alleging that the denial of benefits violates the applicable sex discrimination statutes.
The state claimed that its actions excluding such benefits form coverage were legal and relied on “attorney opinions” to that effect. The plaintiff in the case asked that the opinions be turned over as part of the litigation, and the state of Arizona refused, claiming the documents were subject to attorney/client privilege The federal trial court judge agreed with the plaintiff, holding that Arizona waived privilege by implication, concluding that privilege cannot be used as both a sword and a shield.
U.S. Department of Labor and NLRB Sign a Memorandum of Understanding, Agreeing to Cooperate In Enforcement Proceedings
The Biden administration’s Department of Labor and National Labor Relations Board (NLRB) have come to an agreement on a memorandum of understanding (MOU) to collaborate on enforcement investigations and share information on potential violations of the law. The enforcement agreement will target independent contractor misclassification matters and retaliation claims brought by workers. On the DOL side, this agreement involves the DOL’s Wage and Hour Division, which enforces the minimum wage and overtime provisions of the Fair Labor Standards Act.
The MOU partners two agencies with similar goals. It appears to follow through on last year’s tri-agency discussion between the DOL, NLRB and the EEOC when the agencies sought to discuss cooperation on retaliation claims brought by employees.
