Columbus partner, Kevin Braig, featured in an ABC6 News report regarding the recent Senate Bill 111 which would legalize sports betting in Ohio
As an exciting weekend of college football kickoff games comes to a close, a trial that could fundamentally alter the landscape of collegiate athletics is just beginning. On September 4th, a bench trial began in the consolidated cases of Jenkins v. NCAA and In Re Athletic Grant-In-Aid Cap Antitrust Litigation. Largely considered the strongest legal challenge to the principle of amateurism to date, the consolidated Jenkins has been bound for trial since March 28th of this year, when Judge Claudia Wilken of the U.S. District Court for the Northern District of California denied the NCAA’s Motion for Summary Judgement.
While the 2015 case of O’Bannon v. NCAA centered around the NCAA’s restriction on a student athlete’s ability to profit from their own name and likeness, the Plaintiffs in Jenkins challenge the NCAA’s grant-in-aid cap generally, raising allegations of price-fixing and a restraint of trade on the market for athletic scholarships, all in violation of Section 1 of the Sherman Act.
In March of this year, the Plaintiffs prevailed in their defense of a Motion for Summary Judgement filed by the NCAA. This pre-trial win for the Plaintiffs meant that the Judge would not dismiss the case as the NCAA wanted, and a closer examination of the Judge’s Order reveals that she may be leaning towards siding with the student-athletes heading into trial.
In her description of each side’s evidentiary showings thus far, Judge Wilkens noted: “Plaintiffs have produced undisputed evidence that greater compensation and benefits would be offered in the recruitment of student-athletes absent the challenged rules, meeting their burden for summary adjudication on this question. Defendants . . . have not meaningfully disputed Plaintiffs’ showing that the challenged restraints produce significant anticompetitive effects within the relevant market.” This excerpt appears to indicate the Judge’s positive view of the student-athletes’ argument thus far . . . could it also be viewed as foreshadowing a ruling in their favor?
The start of this trial has been a long-time-coming for the Plaintiffs in this consolidated litigation—a group which includes three classes of current and former NCAA Division I college athletes, representing college football and men’s and women’s college basketball. The complaint in the case was filed back in March of 2014, meaning that this legal battle has recently stretched into its fourth year.
As the trial begins, this consolidated litigation is also complicated by the sheer magnitude of its potential holding. Because the outcome of this litigation could have an effect on many different parties—from universities, to athletic conferences, to media companies—many amicus briefs have been filed for Judge Wilkens’ consideration. ESPN, FOX, and several other sports media companies have taken that idea a step further, officially joining as parties in the case back in 2016.
Regardless of the outcome, Jenkins v. NCAA is sure to have an impact on the landscape of college sports, and could potentially change the idea of amateurism as we know it.
For more information, please contact an attorney in our Sports practice group.
This article was written by Katelyn Dwyer, law student at the University of Tennessee College of Law, with contributions from Dana Drew Shaw.
 Marc Edelman, A Prelude to Jenkins v. NCAA: Amateurism, Antitrust Law, and the Role of Consumer Demand in A Proper Rule of Reason Analysis, 78 La. L. Rev. 227, 239-40 (2017).
 Id. at *8.
Shumaker is pleased to share this FIFA news from our colleagues at Globaladvocaten.
Based on a cooperation agreement executed between FIFA and FIFPro (the World Players’ Union), in autumn 2017, FIFA amended its Regulations on the Status and Transfer of players, which has had a substantial impact on contractual relationships between clubs and (professional) football players.
Among the improvements agreed upon were several changes regarding dispute resolution between players and clubs, particularly for decisions in cases of overdue payables, as well as new provisions to avoid the abusive conduct of parties, such as players being forced to train alone.
As a consequence, the amended FIFA Regulations on the Status and Transfer of Players, effective as of 1 June 2018, include a provision that the abusive conduct of a party forcing the other to terminate a contract or amend its terms entitles the other party to terminate the contract with “just cause” (art. 14(2)). This article should tackle the practice of clubs marginalizing players, forcing them to train alone and using otherwise unsavory methods to force players to accept contractual terminations or pay cuts, although a player might be guilty of abusive conduct as well.
Read the rest of this article on Globaladvocaten’s website found here.
Over the last few years, the mental health of athletes in general has become a national conversation with several star players like the NBA’s Kevin Love and DeMar DeRozan speaking out on the subject. It is an issue that is being recognized not just in professional sports, but at the collegiate level. This prompts the question: what are universities doing to combat the unique risk of mental health problems that a college atmosphere can create?
In 2016, the NCAA released a document titled “Mental Health Best Practices” in response to these growing concerns. In it, the NCAA outlines what they call, “[F]our key components for understanding and supporting student-athlete mental wellness on the college campus.” These four components include:
- Clinical licensure of practitioners providing metal health care
- Procedures for identification and referral of student-athletes to qualified practitioners
- Pre-participation mental health screening
- Health-promoting environments that support mental well-being and resilience
While the promulgation of this document by the NCAA is a step in the right direction, the battle to improve student-athlete mental health is just beginning. For colleges and universities, there are several steps that can be taken to help ensure a successful athletic department both on and off the field.
To start with, schools can choose to implement these NCAA “Best Practices.” The “Best Practices” document is not a regulation that schools must follow—it is simply a guidance document for schools looking to improve student-athlete mental health. By implementing the four suggested practices, schools can show their commitment to the cause and demonstrate an effort to comply with the NCAA’s recommendations.
Second, schools can follow the lead of their students. Across the county, several of the most impactful student-athlete mental health initiatives have been started by the student-athletes themselves. For example, athletes at The University of Pennsylvania have been some of the loudest voices for mental health reform following the highly-publicized suicide of track and field athlete Madison Holleran in 2014. Penn athletes have been continuously lobbying for full-time therapists to work in the Athletics Building—so far to no avail.
Other student-athletes are working to squelch the stigma of mental health issues with campaigns of their own creation. In early 2018, an Oregon State soccer player started the #DamWorthIt campaign to encourage discussion of mental health issues in the student-athlete community. Many other student-athlete run initiatives can be seen at campuses across the country.
Lastly, schools can implement other mental health screenings mid-season, in addition to the pre-participation screening suggested by the NCAA. Many of the pressures facing student-athletes do not mount until the season begins. Football physicals, for example, occur in the preseason months—long before the pressure of balancing sports and a college course load has manifested. The stress of an underperforming team or a lost position battle also will not manifest until after the season has begun. The implementation of a mid-season mental health screening would give athletic departments a more accurate picture of a student-athlete’s mental health, and in turn allow them to engage treatment options before it’s too late.
Colleges and Universities are no longer in a position to ignore mental health issues. Implementing a strong student athlete mental health program will allow schools to protect their players by providing them with the tools to create a positive college experience. The act of paying due attention to mental health issues could also potentially provide athletic programs with several fringe benefits, including a positive public perception, a potential recruiting tool, and maybe even a better team performance on the playing field.
For more information, please contact an attorney in our Title IX practice group.
This article was written by Katie Dwyer, law student at the University of Tennessee College of Law, with contributions from Dana Drew Shaw.
 Kevin Love, Everyone Is Going Through Something, The Players’ Tribune (Mar. 6, 2018), https://www.theplayerstribune.com/en-us/articles/kevin-love-everyone-is-going-through-something; Tom Schad, Raptors’ DeMar DeRozan details struggles with depression, anxiety, USA Today (Feb. 26, 2018), https://www.usatoday.com/story/sports/nba/raptors/2018/02/26/raptors-demar-derozan-details-struggles-depression-anxiety/372543002/.
 NCAA Sport Science Institute, Mental Health Best Practices (2016), https://www.ncaa.org/sites/default/files/HS_Mental-Health-Best-Practices_20160317.pdf.
 Amy Liu, How Madison Holleran’s death has shaped discussions around mental health in Ivy League athletics, The Daily Pennsylvanian (Apr. 24, 2018, 2:54 PM), http://www.thedp.com/article/2018/04/madison-holleran-impact-higher-education-mental-health-penn-upenn-philadelphia.
 Lindsay Schnell, Oregan State athletes launch mental health initiative to help students with depression, USA Today (Jan. 19, 2018, 11:18 AM), https://www.usatoday.com/story/sports/ncaab/pac12/2018/01/19/oregon-state-athletes-launch-mental-health-initiative-depression-damworthit/1047901001/.
The briefing is complete and the oral argument is over in Christie v. NCAA. All that remains is for the Supreme Court to decide the case. How will the Court decide? Will New Jersey blow up the PASPA dam and send regulated sports betting gushing throughout the land? Or will the sports organizations maintain their right to decide how a controlled release of regulated sports betting should occur? Here is my handicapping of how each Justice may vote. But before we look at each Justice individually, there are three meta-aspects of this case that should be considered in handicapping the vote. Continue Reading »
Now that Congress has passed a budget resolution that sets the stage for fast-track tax reform, here is one tax that clearly should be included in any reform package:
The excise tax on sports betting that is codified in sections 4401 and 4411 of the Internal Revenue Code. See 26 U.S.C. §§ 4401 and 4411.
The excise tax on sports betting contributes nothing to the national treasury and was never intended to do so. Rather, Congress included this excise tax in the Revenue Act of 1951 “to facilitate the enforcement of state criminal laws against gambling.” Note, The Federal Gambling Tax and the Constitution, 43 J. of Crim. Law and Criminology 637, 637 (1953). Continue Reading »
In August, a formal sexual violence prevention policy was adopted by the NCAA Board of Governors. College coaches, student-athletes, and athletics administrators must now complete education each year in sexual violence prevention. As part of this new policy, the university president or chancellor, athletics director, and Title IX coordinator must attest annually that such education was provided. This also includes a declaration that: Continue Reading »