With a baseball labor brawl, an aggrieved ex-NFL coach, crumbling college amateurism and a pandemic that won’t go away, sports attorneys have much in store in 2022. Here are the five most significant topics and how they could play out.
- MLB Lockout Could Turn Legal and Political
Earlier this month, Major League Baseball initiated a lockout, separating players from their employment and barring them from club activities and facilities. Trades involving MLB players and free agent signings are off-limits. Borrowing a play from the NBA’s 2011 lockout, MLB even stripped players’ images from MLB.com.
The lockout could end before spring training and be quickly forgotten. The two sides could compromise on rules governing teams’ payrolls, player service time and other divisive topics. There would be a rush to sign free agents and make trades, which would excite fans.
Or the lockout could linger into the season and alienate fans. In that scenario, judges, bureaucrats and politicians could play instrumental roles.
If MLBPA believes that MLB isn’t making a good faith effort to bargain or is using the lockout to impose new terms, MLBPA could file an unfair labor practice charge with the National Labor Relations Board. The NLRB, in turn, could issue a complaint against MLB and seek an injunction with a federal judge.
MLBPA could disclaim interest (decertify) in representing MLB players, thereby enabling those players to sue MLB under antitrust law. While MLB enjoys a historical exemption from antitrust law, the exemption does not, pursuant to the Curt Flood Act of 1998, apply to labor matters involving MLB players. The exemption is now also at issue in a new federal lawsuit brought by four minor league teams. MLB could hire replacement players.
2022 is also an election year. Sensing a captive audience, politicians could opine on the dispute. President Joe Biden could order mediation, as President Bill Clinton did during the 1994-95 MLB strike. A mediator couldn’t unilaterally end the dispute, because mediation produces a non-binding recommendation. Still, the range of ways in which a private business dispute could invite government figures—be they NLRB officials, federal judges and the President—is extensive.
Given that baseball’s labor dispute in the 1990s “resulted in lost money for the owners and players and in disillusionment for the fans,” it would probably behoove MLB and MLBPA to find a resolution before others do so for them.
- Leagues and Unions Will Change Approach to COVID-19 to Focus on Vaccination Status and Symptoms
As 2021 winds down, the NBA, NHL, NFL and NCAA have been besieged with players and staff either testing positive for COVID-19 or being around those who have. Leagues have begun to postpone games. Like universities, factories and other workplaces, sports are confronting the persistence of the delta variant and the newly spreading omicron variant.
Even with vaccinations and boosters, COVID-19 could become endemic. However, improved vaccines, medicines and treatments should mitigate COVID-19’s impact and make it more manageable. Last week, the U.S. Centers for Disease Control shortened the recommended isolation period for those who test positive for COVID-19 and are without symptoms from 10 days to five days.
Leagues and players’ associations have shown adaptability to the pandemic’s challenges. NBA commissioner Adam Silver recently pledged his league will “learn to live with it” and that he has no plans to suspend the 2021-22 season. Although NBA players aren’t required to be vaccinated, 97% of players are fully vaccinated and at least 65% have received a booster shot. Last Monday the NBA announced that the isolation period for asymptomatic players who test positive has been reduced from 10 days to six days.
Provided the NBA and NBPA agree, the NBA could soon move to a model similar to the one negotiated by the NFL and NFLPA in December: NFL players who are vaccinated and asymptomatic are not tested, while players who are unvaccinated or symptomatic are regularly tested. NFL players also had a chance to opt out of the remainder of the season and not suffer career harm. The NHL and MLB, along with their respective unions, could move in the same direction. Their fans, employees, sponsors and broadcast partners would likely regard that as welcome news.
- Jon Gruden, Washington Football Team Saga Spirals Into the New Year
In July, the NFL issued a statement expressing that, based on an investigation by attorney Beth Wilkinson, WFT’s workplace was “highly unprofessional” and demeaning toward women. Much of the statement was bereft of specifics. The league fined the team $10 million.
Contrast to the league’s approach to Deflategate, where it shared hundreds of pages of intricate details about slightly under-inflated footballs. Deflategate sparked a high-profile federal litigation with star quarterback Tom Brady and scientists rebuking the NFL’s conclusions.
The NFL might have calculated that by not issuing a WFT report, the findings would be less vulnerable to litigation and critique.
If so, the league was mistaken.
Since July, there have been leaks of emails sent by former Las Vegas Raiders coach Jon Gruden and NFL executive vice president Jeffrey Pash to The Wall Street Journal and The New York Times. Gruden saw his coaching career effectively destroyed when the public read his bigoted messages. He’s now suing the NFL and Roger Goodell. The leaker’s identity is a mystery, but The Washington Post suggests WFT owner Daniel Snyder might have done it.
Meanwhile, the House Committee on Oversight and Reform chair, U.S. Rep. Carolyn Maloney, and U.S. Rep. Raja Krishnamoorthi, have demanded all documents, communications, reports and findings from the investigation. They stress that women who worked for WFT have been silenced, in part by nondisclosure agreements. Congress could subpoena Snyder and Goodell, who insists his league is respecting witnesses’ privacy.
The NFL can’t end the controversy on its own. The Gruden lawsuit and Congressional investigation will keep the topic ripe for months.
- House v. NCAA, Conference Realignment and ‘Post-Alston’ Antitrust Issues
Legally speaking, 2021 was a disaster for the NCAA. In June, it lost NCAA v. Alston, one of the most significant U.S. Supreme Court cases in sports history. In a 9-0 ruling, the Court found the NCAA and its member schools and conferences violated Section I of the Sherman Antitrust Act by agreeing to limit how much each can compensate athletes for academic-related costs.
About a week later, and after years of deflecting name, image and likeness reforms and failing to persuade Congress to pass an NIL statute, the NCAA acquiesced. In its interim NIL policy, the NCAA permitted college athletes to use their right of publicity.
The defeats might continue. The NCAA faces an ongoing antitrust litigation brought by Arizona State swimmer Grant House, Oregon basketball player Sedona Prince and others that link Alston and NIL. They charge the NCAA and its members unlawfully conspired to deny college athletes NIL opportunities from 2016 to 2021, the relevant years for a proposed class action. The NCAA now allowing NIL could be viewed as an implicit admission that it was wrong to previously deny NIL.
Absent a settlement, House v. NCAA won’t be resolved in 2022. A trial date is set for May 20, 2024. The loser will almost certainly appeal to the U.S. Court of Appeals for the Ninth Circuit, setting off additional years of review. But the case bears watching.
The antitrust implications of conference realignment are also on the 2022 radar. This year saw a conference realignment wave that included the Big Ten, ACC, SEC and Pac-12, while NCAA president Mark Emmert urged conferences to be more autonomous. If conferences develop their own rules on professionalism and amateurism, they would be acting along the lines recommended in Alston. In the majority opinion, Justice Neil Gorsuch highlighted that “individual conferences (and the schools that constitute them) to impose tighter restrictions if they wish.” However, if conferences coordinate rules, a potential antitrust problem arises. Conferences are competing businesses. To the extent they join hands in restraining opportunities, athletes can challenge the restraints in court.
- College Athletes’ Complicated Drive Towards Employee Recognition
NIL was a landmark development but kindled limited change. According to a recent Opendorse estimate, the average NIL deal for D-I college athletes is about $250 a month, though when including all D-1 college athletes, the median monthly drops to just $6. Some advocates contend a more transformative alteration—the recognition of college athletes as employees—is needed.
Employee recognition is more divisive than NIL, which involves third parties, not the schools, paying the athletes. Schools, in contrast, would pay employee athletes.
Employment recognition is also more complex than NIL, which entails restraining the NCAA from punishing athletes for using their right of publicity so that they are treated the same as other college students. Employee recognition, meanwhile, concerns multiple levers of law.
For starters, there’s the private university versus public university divide. The National Labor Relations Act governs private colleges while state labor laws govern public colleges. Even if college athletes are employees under the NLRA, Alabama Crimson Tide and UMass Minutemen and Minutewomen players wouldn’t be employees, absent state action in Alabama and Massachusetts, respectively.
Employment recognition could also take different, and possibly conflicting, forms. Consider minimum wage and overtime protections, neither of which would be automatically recognized under the Fair Labor Standards Act. To that point, whether minor league baseball players from recent seasons are entitled to minimum wage or overtime pay is a matter of ongoing federal litigation (the Save America’s Pastime Act of 2018 explicitly denied FLSA protections to minor league players from 2018 on). The FLSA excludes certain categories of employees, including seasonal and recreational workers, from protections. If minor league players, who spend half the year playing games and other months honing their craft, aren’t owed minimum wage and overtime pay, it’s not immediately obvious why college athletes would be treated differently.
Meanwhile, college athletes as employees would have varying bargaining rights depending on where they go to school. In some states, public sector employees—including those who work for universities—are barred from forming unions. Schools that coordinate the negotiation of employment terms with non-unionized players could be sued under antitrust law. There are also potential immigration law impacts for college athletes on student visas.
There are three ways employee recognition of college athletes could happen.
The first is through Congress or a state legislature. There are legislative proposals in Congress for recognition of college athletes as employees, but the willingness of Congress to act—particularly in an election year—is suspect. Consider that despite hearings and enthusiastically worded statements by members of Congress about NIL, and despite Republican and Democratic lawmakers at the state level overwhelmingly supporting NIL, not one NIL bill in Congress advanced past committee. Would Congress advance a college athlete employee recognition bill—a far more contentious topic—during a year when many members will be away campaigning? Odds aren’t high. As to the states, not one has passed a law recognizing employee rights for college athletes.
The second way is through the NLRB or a state labor agency. As of this writing, no players have petitioned the NLRB to be declared employees of their school. That said, Michael Hsu, who co-leads College Basketball Players Association, filed an unfair labor practice charge against the NCAA in November. NLRB general counsel Jennifer Abruzzo opined in September that college athletes are employees, though she is not on the NLRB board and a predecessor, Richard Griffin, offered the same viewpoint in a 2017 memorandum. Even if an effort were successful, the necessary NLRB process—petition, regional director ruling and subsequent board ruling—will likely take several years. Consider that the (ultimately unsuccessful) petition brought by Northwestern football players in 2013 took two-and-a-half years.
The third way is through a court ruling in favor of employee recognition. One such case is in play, though likely years from resolution. In Johnson v. NCAA, college players contend they are employees under both state law and the FLSA. The case is being litigated in a Pennsylvania federal district court. The NCAA would appeal a loss to the U.S. Court of Appeals for the Third Circuit.
As we have seen, change in college sports takes time. Ed O’Bannon’s successful NIL and antitrust case was in court for seven years. Subsequent NIL state legislation took another five years. But ultimately change happened. 2022 will likely be one step of many along the way.