Category: student-athletes

  • HR and the Courts — November 2024

    HR and the Courts — November 2024

    by CUPA-HR | November 13, 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.

    More Than 35,000 University of California Service Employees Vote to Strike

    The union representing over 35,000 service and patient care employees at all 10 campuses and five medical centers of the University of California reports that the membership has voted overwhelmingly to strike if collective bargaining contracts cannot be reached. The American Federation of State, County and Municipal Employees (AFSCME) Local 3299 is the union representing the service and patient care employees. The contract covering 25,000 patient care employees expired on July 31, 2024, and the contract covering 11,000 service employees expired November 7, 2024. The union stated it would provide the university with 10 days advance notice of any strike.

    The union claims higher costs, especially for housing, has led to a major crisis for its members. The union has filed charges with the California Public Employee Relations Board alleging that the university has not shared information on UC finances as part of the bargaining process.

    University Sues NLRB, Claims Requirement to Turn Over Information Violates FERPA

    Vanderbilt University has sued the National Labor Relations Board in federal court, claiming that the agency’s requirement to turn over student information violates its obligations under the Family Educational Rights and Privacy Act. The NLRB and the United Auto Workers (UAW), the union seeking to organize the unit of graduate student employees, have requested information on about 2,200 graduate student employees, including work locations, shifts, and job classifications. Vanderbilt claims that providing such information would jeopardize the university’s ability to receive federal funds due to FERPA.

    Vanderbilt is seeking an injunction requiring the NLRB to vacate the rules as applied so the university will not have to violate FERPA. Vanderbilt asserts that the NLRB’s rules are arbitrary and capricious and contrary to law given the conflict with the university’s obligations under FERPA (Vanderbilt University v. NLRB (M.D. Tenn. No. 3:24-cv-01301, Comp filed, 10/29/24)). Vanderbilt has asserted more than 80 students have objected to the disclosure of the information. We will follow developments in the case as they unfold.

    Educator’s Anti-Male Bias Title IX Claim Can Go to Trial

    The 2nd U.S. Circuit Court of Appeals ruled that an educator’s Title IX claims can go to trial. The educator alleges that a New York state school district’s harassment probe, which resulted in a ruling against him, violated his Title IX rights. He was accused by a student of inappropriate conduct and touching in his mobile agricultural education trailer. The 2nd Circuit noted that the alleged perpetrator was not given timely notice of the allegations, was not told what was specifically alleged, and was denied the chance to review the evidence and present evidence of his own.

    The appeals court reversed the decision of the trial court, thereby giving the alleged perpetrator the right to a trial over the claim that the Title IX investigation was flawed and biased against him as a male (Schiebel v. Schoharie Central District (2nd Cir., No. 23-01080, 11/1/24)). The appeals court also noted that only one other student was interviewed, despite other students and adults allegedly being present, and that student did not confirm the allegations of the alleged victim.

    Union Election Petitions Filed With NLRB Have Doubled Since Fiscal Year 2021

    The NLRB reports that union election petitions for the most recent fiscal year have totaled 3,286, or more than double the amount in fiscal year 2021. The number of election petitions also amounts to a 27% increase over the previous fiscal year of 2023. The NLRB reported a 7% increase in the number of unfair labor practice filings it has received since fiscal year 2023.

    The NLRB has jurisdiction over private colleges and universities. Public college and universities in most states are subject to state-based rules in conducting union election matters. Commentators generally report anecdotally that state-based union election petitions are also increasing. There have been increased reports of union organizing among higher ed student employee work groups.

    NLRB General Counsel Says New College Athlete Employment Legislation Unnecessary  

    NLRB General Counsel Jennifer Abruzzo stated that there is no need for special legislation concerning student-athlete employment status, since there is existing legislation under the Fair Labor Standards Act, minimum wage laws, and the National Labor Relations Act (NLRA). No new laws, such as those promoted by the NCAA, are necessary, she said. Abruzzo made these remarks at a symposium hosted by Temple University in October. The general counsel pointed out that the situation under the FLSA is currently being played out in the courts.

    Court of Appeals Reverses NLRB Order for Elon Musk to Delete Tweet That Workers Will Lose Stock Options if They Unionize

    The 5th U.S. Circuit Court of Appeals reversed an earlier decision that affirmed the NLRB’s order against Musk and Tesla. In 2021, the NLRB ordered that Musk delete a tweet saying that employees of Tesla would lose stock options if they were to unionize. The appeals court ruled 9 to 8 that the NLRB order was not enforceable. The appeals court declined to rule one way or the other whether the tweet violated the NLRA, rather holding that the NLRB’s proposed remedy was not enforceable.

    Bloomberg reported that the decision was a “blow” to the NLRB’s authority to enforce the labor law’s prohibitions on an employer’s allegedly coercive anti-union statements, particularly when they appear on social media.



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  • HR and the Courts — October 2024

    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

    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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