Boston Ordinances Proposed to Address Student-Athlete Safety and Scholarships

HIGHLIGHTS:

• The Boston City Council has entered the ongoing national debates and reform efforts concerning collegiate student-athlete issues, including safety and scholarships. The proposed Boston ordinances address gameday safety and certain terms and conditions of athletic scholarships and medical coverage for student-athletes.
• Student-athlete issues are front and center for reform at colleges and universities, in the NCAA and conferences, in the federal courts, at the National Labor Relations Board (NLRB) and in Congress.
• The Boston Bill of Rights Ordinance would represent a significant shift in how area colleges and universities issue athletic scholarships, which is already a complex and evolving area of discussion and reform. This effort to regulate these issues by city ordinance may lead other cities and municipalities nationally to weigh in on these and other related student-athlete issues.

The Boston City Council has entered the ongoing national debates and reform efforts concerning collegiate student-athlete issues, including safety and scholarships. Colleges and universities across the United States, athletic conferences and the National Collegiate Athletic Association (NCAA) have addressed safety and scholarships for several years. Recently, federal litigation, the National Labor Relations Board (NLRB), Congress and state legislatures have affected the debate in significant ways. Now, the Boston City Council has passed "An Ordinance Creating a College Athlete Head Injury Gameday Safety Protocol" (which Mayor Marty Walsh is considering signing) and is preliminarily considering "An Ordinance Creating a College Athlete Bill of Rights."

This alert describes the Boston ordinances and provides an overview of the related student-athlete developments playing out in the courts, at the NLRB and in Congress.

Proposed Boston City Ordinances

The 13-member Boston City Council is addressing two ordinances:

1. An Ordinance Creating a College Athlete Head Injury Gameday Safety Protocol
2. An Ordinance Creating a College Athlete Bill of Rights

Gameday Safety Ordinance

The first ordinance, "An Ordinance Creating a College Athlete Head Injury Gameday Safety Protocol" (Gameday Safety Ordinance), was passed on Sept. 17, 2014. It does not become effective unless it is signed by Boston Mayor Marty Walsh.

The Gameday Safety Ordinance applies to any four-year college or university that maintains an intercollegiate athletic program (regardless of domicile) that participates in an NCAA athletic event located in any part of the city of Boston. Section 4 of the Gameday Safety Ordinance provides that:

• An athletic program shall develop an Emergency Action Plan for all practice, training, and game venues.
• If a student-athlete participating in an event becomes unconscious or suffers a concussion, the student-athlete shall not return to that event and shall not participate "in any future practices, training sessions, or intercollegiate events in Boston until the college athlete receives written authorization for participation" from a licensed physician or from "another appropriately trained or licensed health care professional as determined by the Boston Public Health Commissioner."

If Mayor Walsh signs the Gameday Safety Ordinance, Section 4 will become effective immediately.

Section 5, "Additional Requirements for Football, Ice Hockey, and Men's Lacrosse," applies only to athletic programs that participate in NCAA Division I athletic events located in any part of the city of Boston. This section requires the following:

• For an intercollegiate athletic event of football, ice hockey, and men's lacrosse, the designated host athletic program shall provide "an on-site Neurotrauma Consultant" at the event venue. The ordinance provides that the Neurotrauma Consultant "shall be a physician who is board certified or board eligible in neurology, neurological surgery, emergency medicine, physical medicine and rehabilitation, or any primary care certificate of added qualifications (CAQ) sports medicine certified physician that has documented competence and experience in the treatment of acute head injuries."
• The Neurotrauma Consultant "shall be present at the level of the event's playing surface, and with full access to the benches and/or sidelines of any participating athletic program," and shall be focused on identifying symptoms of concussions.
• In the event a student-athlete suffers or is suspected to have suffered an injury to the head, neck, or spine, "the Neurotrauma Consultant shall work with the athletic program's medical staff in the diagnosis and care of the injury."
• If the injured student-athlete's athletic program has medical staff present at the event, the "ultimate injury diagnosis remains exclusively within the professional judgment of the medical staff of the athletic program" of the injured player.

If Mayor Walsh signs the Gameday Safety Ordinance, Section 5 will become effective July 1, 2015.

The Boston Public Health Commission will enforce the ordinance and promulgate regulations. The Boston Public Health Commission is a seven-member board appointed by the mayor. Complaints of non-compliance are to be filed with the Boston Public Health Commission.

Bill of Rights Ordinance

The second ordinance, "An Ordinance Creating a College Athlete Bill of Rights" (Bill of Rights Ordinance), is expansive and controversial. This ordinance applies to any four-year college or university that is domiciled in any part of Boston and maintains an intercollegiate athletic program; most of its provisions apply only to Division I programs. It addresses, among other issues, the terms and conditions under which those covered colleges and universities must offer athletic scholarships, and it would require that a covered college or university provide medical insurance or treatment for a student-athlete's lifetime in instances when the student-athlete is injured through participation in a sport. The Bill of Rights Ordinance is in a working session, which is essentially a draft form. It is expected to face opposition and it has not yet been considered by the full City Council.

Section 3 of the current draft of the Bill of Rights Ordinance, which addresses Division I scholarships, provides as follows:

• If an athletic program does not renew an athletic scholarship of a student-athlete who "suffers an incapacitating injury or illness from his or her participation in the athletic program" and is deemed ineligible to participate in college athletics, the college or university must provide an equivalent scholarship for up to five academic years (including the duration of any previous scholarship already received) or until the student-athlete completes his or her degree, whichever is shorter.
• The athletic program must provide an equivalent scholarship to a student-athlete who was on scholarship and in good standing, but has exhausted athletic eligibility, for up to one year or until the student-athlete completes his or her undergraduate degree, whichever is shorter.
• If an athletic program does not renew an athletic scholarship of a student-athlete for any reason other than the student-athlete's incapacitating injury or illness, academic inability, voluntary separation from the athletic program, loss of amateur status, or violation of a student discipline policy resulting in expulsion, the college shall provide an equivalent scholarship for a total of up to five academic years (including the duration of any previous scholarship already received) or until the student-athlete completes his or her undergraduate degree, whichever is shorter.

Section 4, "The Right to Health and Safety," requires Division I programs to implement medical and health insurance provisions. In its current form, Section 4 of the Bill of Rights Ordinance requires the following:

• Unless the student-athlete declines, an athletic program shall provide all of its student-athletes with "comprehensive year-round health insurance that adequately covers their participation in the athletic program."
• If a student-athlete "suffers an injury resulting from his or her participation in the athletic program and makes a claim relating to that injury," the program shall be responsible for "reimbursing the college athlete for any insurance deductible amounts or additional medical expenses applicable to the claim."
• If a student-athlete "suffers an injury resulting from his or her participation in the athletic program that requires medical treatment beyond the conclusion of his or her participation in the athletic program," the program "shall provide, for the remainder of the college athlete's lifetime: (i) the necessary medical treatment; or (ii) health insurance that covers the injury, as well as reimbursement for any resulting deductible amounts and additional medical expenses resulting from the injury."

Section 4 also requires that colleges and universities (of all levels of NCAA participation, not just Division I) adopt and implement guidelines and educational materials concerning sports-related dehydration and concussions, maintain records concerning compliance with the ordinance, and submit reports to the mayor.

The Bill of Rights Ordinance provides that the Boston Public Health Commission and Boston Human Rights Commission (a seven-member board appointed by the mayor to investigate discrimination complaints) shall enforce the ordinance and accept complaints.

Boston's Bill of Rights Ordinance Is Similar to California's "Student Athlete Bill of Rights"

The Bill of Rights Ordinance is substantially similar to the California "Student Athlete Bill of Rights," passed in fall 2012 and effective Jan. 1, 2013. The California "Student Athlete Bill of Rights" includes provisions related to terms and conditions of scholarship and health and safety, and Sections 3 and 4 of the Bill of Rights Ordinance includes virtually identical language as the California "Student Athlete Bill of Rights." The California law, however, applies to only those higher education institutions that receive $10 million or more in annual revenue derived from media rights. The proposed Bill of Rights Ordinance does not include any threshold based on revenue from media rights.

These ordinances, if passed and signed by Mayor Walsh, are believed to be the first city ordinances in the U.S. to address college student-athlete safety and scholarship issues.

The National View: Broader Debates, Disputes and Reform Efforts Concerning Student-Athletes

Student-athlete issues are front and center at colleges and universities, in the NCAA, in the federal courts, at the NLRB and in Congress. The following is a brief summary of the most significant developments.

Colleges and NCAA Governance

Individual colleges and universities have addressed student-athlete issues based on the specific circumstances and the unique needs of their student-athletes. For the past three academic years, the NCAA has given schools the option of providing multiyear scholarships. Some colleges have committed to guaranteed four-year scholarships, so that a student-athlete does not lose a scholarship in the event of injury, illness, or athletic performance. Additionally, colleges continue to offer and expand comprehensive safety and wellness programs. Colleges have implemented these reforms based on the unique aspects of their programs and needs of their student-athletes.

The NCAA and conferences also continue to address student-athlete issues. In August 2014, the NCAA Division I Board of Directors voted to provide the Power Conferences (the five largest conferences and their 65 colleges) with greater autonomy on a range of student-athlete issues, including financial aid, scholarships, and health and wellness. The Power Conferences are expected to propose specific rules this month, so that the rules may be considered at the NCAA's annual convention in January 2015. On Oct. 8, 2014, the Big Ten Conference became the first major conference to guarantee athletic scholarships across all sports through the duration of an athlete's enrollment at a university. The Big Ten Conference has announced that colleges and universities will have the flexibility to address certain terms and conditions regarding these guaranteed scholarships.

Federal Court Litigation

There are a number of student-athlete issues that have been litigated recently in the federal courts, including issues related to concussions and NCAA rules limiting compensation that may be paid to student-athletes.

In July 2014, the NCAA entered into a preliminary settlement agreement of a class action concussion lawsuit brought by several former student-athletes. The U.S. District Court judge for the Northern District of Illinois is currently reviewing the preliminary settlement, but has not yet approved it. Unlike the class action lawsuit settled by the NFL in August 2013 and preliminarily approved by the court in July 2014, the NCAA settlement does not provide for any monetary payments to current or former student-athletes. The NCAA concussion settlement does not prohibit current or former college athletes from pursuing individual lawsuits against the NCAA or their schools, except that the settlement class members may not assert legal claims for medical monitoring relief related to concussions.

The settlement provides that the NCAA will establish a $70 million medical monitoring program fund for testing and diagnosing concussions in current and former college athletes. The $70 million is for diagnostic care only. The settlement does not provide for the cost of any medical care. Further, any former collegiate athlete – male or female, regardless of the sport played, in any NCAA division – can submit a questionnaire to request that he or she be screened for a brain injury and early-onset dementia. A five-member panel (which includes concussion experts) will screen the individuals and determine who should have a follow-up medical examination. At least 10 regional centers will be established where medical evaluations will be undertaken. Additionally, the NCAA will invest an additional $5 million toward concussion research and education.

The settlement agreement also requires that the NCAA implement pre-season baseline concussion testing of NCAA student-athletes. The settlement agreement further provides that a student-athlete with a diagnosed concussion will not be allowed to return to play or practice on the same day and must be cleared by a physician before returning to play in practice or competition. Additionally, the settlement agreement requires that medical personnel with training in the diagnosis, treatment, and management of concussions must be present for all contact sports games and available during all practices. Further, under the agreement, the NCAA will create a reporting process for colleges and universities to report to NCAA diagnosed concussion in student-athletes and the resolution of each incident.

In the Edward O'Bannon v. NCAA decision in August 2014, U.S. District Court Judge Claudia Wilken ruled that the NCAA's rules restricting compensation for elite men's football and basketball student-athletes (Football Bowl Subdivision (FBS) and Division I basketball) violate federal anti-trust laws. The court addressed the NCAA rules that prohibit current student-athletes from receiving any compensation from their schools or outside sources for the use of their names, images and likeness in live television broadcasts, videogames, game re-broadcasts, advertisements and other footage. The NCAA offered, as justification for the rules, the preservation of amateurism; the integration of academics and athletics; competitive balance between teams; and increased output in the form of increasing the number of schools participating in these sports. The court concluded that the alleged harm to student-athletes outweighed the procompetitive effects of the rules.

The District Court enjoined the NCAA from enforcing any rules that prohibited schools and conferences from offering their FBS or Division I basketball recruits a limited share of the revenue generated from the use of the student-athletes' names, images and likenesses; and from enforcing any rules to prevent NCAA-member schools and conferences from offering to deposit a limited share of licensing revenue in trust for FBS football and Division I basketball recruits, payable when they leave school or their eligibility expires. The court's injunction permits the NCAA to set a cap on the amount of money that may be held in trust, but it prohibits the NCAA from setting a cap of less than $5,000 (in 2014 dollars) for every year that the student-athlete remains academically eligible to compete. The amount of compensation schools decided to place in trust may vary from year to year. The court's injunction will not take effect until Aug. 1, 2015, the start of the next FBS football and Division I basketball recruiting cycle.

The NCAA appealed the decision to the Ninth Circuit Court of Appeals. The parties will submit appeals briefs through February 2015.

The Appeal to the NLRB in the Northwestern Case

Scholarship football players at Northwestern have sought to address their issues – including safety issues – through unionization. In March 2014, the regional director for Region 13 of the NLRB concluded that scholarship football players at Northwestern were "employees" within the meaning of the National Labor Relations Act (NLRA) and could therefore unionize. Northwestern appealed the decision to the full NLRB in Washington, D.C. Pursuant to the direction of election, the student-athletes voted on April 25, 2014. The votes are sealed pending the decision by the full board.

The NLRB’s decision on appeal has potentially far-reaching effects on the rights of other students to organize as employees. In the NLRB’s 2004 decision in Brown University, the board concluded that graduate assistants were not employees under the NLRA because they "have a primarily educational, not economic, relationship with their university." In the Northwestern decision, the regional director distinguished student-athletes from the graduate assistants in Brown University. In connection with the appeal, the NLRB issued a "Notice of Invitation to File Briefs" in which it asked the parties, and those filing amicus briefs, to address the question of "should the Board adhere to, modify, or overrule the test of employee status applied in [Brown University], and if so, on what basis?" The NLRB’s decision in Northwestern therefore has the potential to not only affect student-athlete union organizing, but also the organizing of other students. A decision by the NLRB that is adverse to Northwestern would almost certainly be challenged by Northwestern in the federal court of appeals.

Congress Is Active in Student-Athlete Issues

Congress has been active in the area of student-athlete issues, including safety issues. In May 2014, the House Committee on Education and the Workforce held a hearing on unionizing student-athletes. In July 2014, the Senate Committee on Commerce, Science, and Technology conducted a hearing on a range of student-athlete issues, including scholarships and concussions. NCAA President Mark Emmert testified extensively at that hearing. Most recently, last month, Sens. Jay Rockefeller IV (D-W.Va.), Claire McCaskill (D-Mo.) and Cory Booker (D-N.J.) sent letters to presidents of colleges in the Power Conferences asking for updates and information on a range of issues, including healthcare and concussions. As Congress considers taking legislative action, a bipartisan Congressional Student-Athlete Protection Caucus has been established.

Boston Ordinances May Lead Other Cities and Municipalities to Address Student-Athlete Issues

The Boston ordinances are a unique and controversial means of regulating collegiate student-athlete safety and scholarships. Local Boston-area colleges and universities currently provide a high level of care for their student-athletes under guidelines established by medical professionals, the colleges and the NCAA. The Gameday Safety Ordinance will not impose significant additional requirements on area college and university safety protocols, but it introduces the Boston Public Health Commission as a regulator. By contrast, the Bill of Rights Ordinance would represent a significant shift in how area colleges and universities issue athletic scholarships, which is already a complex and evolving area of discussion and reform. This effort to regulate these issues by city ordinance may lead other cities and municipalities nationally to weigh in on these and other related student-athlete issues.