USA Swimming Condemns Former Gold Medal Winner Klete Keller for Role During the U.S. Capitol Insurrection

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USA Swimming has issued the following statement about gold medal winner Klete Keller, whose involvement in the insurrection has been widely reported:

“Since first learning of Mr. Keller’s possible involvement in the events of January 6, and awaiting official confirmation or charges by law enforcement, we made it very clear in responses to the media that, while we respect private individuals’ and groups’ rights to peacefully protest, we strongly condemned the unlawful actions taken by those at the Capitol last week.

“It is very simple and very clear. Mr. Keller’s actions in no way represent the values or mission of USA Swimming. And while once a swimmer at the highest levels of our sport – representing the country and democracy he so willfully attacked – Mr. Keller has not been a member of this organization since 2008.

“We stand with Team USA and echo their plea to celebrate our diversity of background and beliefs, stand together against hatred and divisiveness, and use our influence to create positive change in our communities.”

Lawyer Elected Chairwoman Brain Injury Association of America

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Shana De Caro, a partner in the New York personal injury law firm, De Caro & Kaplen, LLP, has been elected as chairwoman of the Brain Injury Association of America (BIAA) for 2021.

De Caro has advocated on behalf of individuals and their families following a traumatic or acquired brain injury for over 35 years, and is respected nationally for her knowledge, passion, and drive to protect the rights of those who have sustained brain damage. She has previously served as vice chair, secretary, and board of directors’ member of the Brain Injury Association of America.

In accepting her new position, De Caro said, “I am excited and humbled to accept this new role on behalf of the over 5.2 million Americans living with disability caused by brain trauma.”

Founded in 1980, the Brain Injury Association of America is the oldest, largest, and only nationwide brain injury advocacy organization in the United States. As the voice of brain injury, BIAA “provides help, hope, and healing for the millions of Americans who sustain this life-altering injury.”

Protecting Its ‘Brand and Reputation’, PGA of America Cancels Plans to Hist 2022 PGA Championships at Trump National

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The Associated Press has reported that the PGA of America, the organization representing golf’s teaching professionals, has opted out of its plans to host the 2022 PGA Championships at Trump National in Bedminster, New Jersey.

“We find ourselves in a political situation not of our making,” Seth Waugh, the CEO of the PGA of America, told the wire service. “We’re fiduciaries for our members, for the game, for our mission and for our brand. And how do we best protect that? Our feeling was given the tragic events of Wednesday that we could no longer hold it at Bedminster. The damage could have been irreparable. The only real course of action was to leave.”

Waugh elaborated: “Our decision wasn’t about speed and timing,” Waugh said. “What matters most to our board and leadership is protecting our brand and reputation, and the ability for our members to lead the growth of the game, which they do through so many powerful programs in their communities.”

The full story, including the club’s response can be viewed here: https://apnews.com/article/joe-biden-donald-trump-pga-championships-golf-new-jersey-723ef0a90af03af016c9a7ae2b711fc6

Attorney: NCAA President Recommends Delay In Name, Image and Likeness Vote

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Overnight, sports law attorney Gregg Clifton, who heads the sports law practice at Jackson Lewis, shared the following:

Following receipt of a letter from the United State Department of Justice-Antitrust Division expressing concern about the NCAA’s anticipated vote, NCAA President Mark Emmert has “strongly recommended” to his membership that the NCAA vote currently scheduled for Monday to potentially ratify name, image and likeness (NIL) rights for collegiate student-athletes be delayed.

The much anticipated NIL NCAA legislative vote, expected to be successful and authorize student-athletes to benefit from the commercial use of their name, image and likeness in coordination with the start of the 2021-22 school year, has been the subject of extensive discussion and deliberation throughout most of 2020.

It has been reported that the letter to NCAA President Emmert expressed concern regarding the NCAA’s policies pertaining to collegiate athlete transfers and NIL rules. The Justice Department informed the NCAA that it has been monitoring the NCAA’s ongoing efforts to review and revise the rules in both areas. It is expected that President Emmert’s recommended voting delay will be supported by NCAA membership and further dialogue between NCAA leadership and the Department of Justice will be scheduled and commence in the near future.

Supreme Court to Decide NCAA Antitrust Case on College-Athlete Compensation

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By Elizabeth McCurrach and Julian Perlman, of BakerHostetler

On Dec. 16, 2020, the United States Supreme Court granted certiorari and agreed to review two Ninth Circuit decisions affirming that the National Collegiate Athletic Association’s (NCAA) and several collegiate athletic conferences’ rules regarding compensation paid to college athletes violates Section 1 of the Sherman Act. NCAA v. Shawne Alston, et al., No. 20-512 (S.Ct. Dec. 16, 2020). With the NCAA set to finalize its rules regarding name, image and likeness rights for student-athletes in January 2021, the upcoming Supreme Court review reinforces the uncertainty for industry stakeholders surrounding potential compensation for student-athletes. The NCAA and collegiate athletic conferences have argued that amateurism remains the defining characteristic of college athletics, but the struggle remains for colleges and universities to maintain a commitment to amateurism while staying on the right side of the antitrust laws, which prohibit coordinated efforts to fix costs.

The cases arrived at the Supreme Court after the Ninth Circuit Court of Appeals affirmed Judge Claudia Wilken’s district court judgment following a bench trial, which invalidated limits on education-related compensation for college students. When analyzing agreements involving league sports within the antitrust context, a court must determine whether the restriction is unreasonable under the “Rule of Reason.”[1] Within this context, the Rule of Reason requires a three-step analysis: “(1) Student-Athletes bear the initial burden of showing that the restraint produces significant anticompetitive effects within a relevant market; (2) if they carry that burden, the NCAA must come forward with evidence of the restraint’s procompetitive effects; and (3) Student-Athletes must then show that any legitimate objectives can be achieved in a substantially less restrictive manner.”[2] Judge Wilken found that restrictions on education-related payments failed under a Rule of Reason analysis and granted an injunction prohibiting the NCAA from enforcing rules that restrict education-related benefits that member institutions may offer students who play Football Bowl Subdivision football and Division 1 basketball.

On appeal, the Ninth Circuit reiterated that the NCAA is not exempt from the antitrust laws and must not engage in anticompetitive behavior.[3] In reviewing the district court’s analysis, the Ninth Circuit held that the district court properly applied the three-step Rule of Reason analysis. First, the plaintiffs carried their burden in showing that the NCAA’s compensation rules have significant anticompetitive effects on student-athletes because they are forced to accept whatever compensation is offered to them due to the lack of a viable alternative to compete at a high level.[4]

Second, the Ninth Circuit found that the district court properly held education-related compensation rules did not have a procompetitive justification but rules prohibiting unlimited non-education-related cash payments had a procompetitive justification.[5] The Ninth Circuit agreed with the NCAA’s arguments that rules against unlimited cash payments, akin to professional salaries, had a procompetitive effect of preserving amateurism, but disagreed with the NCAA that education-related benefits had a procompetitive effect.[6] In a win for the NCAA, the Ninth Circuit allowed the NCAA to continue prohibiting non-education-related cash payments. Notably, the district court expressly retained, and the Ninth Circuit affirmed, jurisdiction over future rule changes, giving it the power to decide what constitutes an education-related expense. Finally, the Ninth Circuit upheld the district court’s determination that less-restrictive alternatives existed to capping education-related benefits that would still further amateurism just as well as the NCAA rules do.[7]

The Supreme Court’s grant of cert means that stakeholders should have guidance from the highest court on these issues, which may restore some certainty to this previously settled area of the law. The Court may reverse and show continued deference to the NCAA, as is shown to other joint ventures in the sports world whose rule-making functions are arguably necessary and central to the sports product they offer – most notably enshrined in baseball’s express antitrust exemption (albeit not extended to other sporting activities). However, given the multibillion-dollar industry that encompasses college sports, the Court may be skeptical of the NCAA’s amateurism stance, calling into question whether players should generally continue not to share in the substantial revenues generated by university sports teams and programs. Should the Supreme Court affirm the Ninth Circuit’s reasoning, a host of new issues will arise, perhaps most clearly whether certain compensation is sufficiently related to education to be permissible. Even if it is arguably related to education, murkiness will persist as to whether the NCAA’s example of a $500,000 per semester “internship” with a sponsor deserves the same deference as a grant to a student-athlete for the purpose of purchasing a laptop. An important line has and will continue to be drawn and potentially refined by the Supreme Court between financial benefits related to education and other forms of compensation to student-athletes.

[1] In re NCAA Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239, 1256 (9th Cir. 2020).
[2] Id.
[3] Id. at 1256.
[4] Id. at 1256-57.
[5] Id. at 1257-59.
[6] Id. at 1260.
[7] Id. at 1260.

This article originally appeared at https://www.bakerlaw.com/alerts/supreme-court-to-decide-ncaa-antitrust-case-on-college-athlete-compensation

Federal Spending Bill Surprise – Anti-Doping Measure in Horse Racing Included

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In passing the $900 billion year-end spending bill Monday, which is expected to be signed into law within days, Congress has included a rider to ban race-day doping of Thoroughbreds: the Horseracing Integrity and Safety (HISA) Safety Act. H.R. 1754/S. 4547, concluding an eight-year campaign instituted by activist groups to end medication abuses leading to breakdowns and injuries and deaths on tracks across the nation.

“We don’t allow doping of athletes in cycling, baseball, and other professional sports,” said Wayne Pacelle, president of Animal Wellness Action. “It’s should be a no-brainer to forbid this form of cheating and dangerous treatment of horses in American Thoroughbred racing, too.”

“The passage of the Horseracing Integrity and Safety Act is the biggest gain in Congress for horses in half a century, will put the welfare of the horses at the center of the enterprise, and put the sport on a level playing field that aligns with global standards,” said Marty Irby, executive director at Animal Wellness Action, who was named as one of The Hill’s Top Lobbyists for 2020, was recently recognized by Her Majesty, Queen Elizabeth, II for his work to protect horses, and testified before Congress in support of HISA in January. “We applaud Senate Majority Leader Mitch McConnell, Sen. Kirsten Gillibrand, and Reps. Paul Tonko and Andy Barr for saddling up and pushing the ban on doping in Thoroughbred horse racing over the finish line.”

The Horseracing Integrity and Safety Act includes a ban on race-day doping, the establishment of a uniform national standard for rules and regulations for U.S. horseracing that would be overseen by the U.S. Anti-Doping Agency (USADA). The Horseracing Integrity and Safety Act (HISA) is landmark legislation that would directly address the safety and welfare of racehorses, and the integrity of the sport itself, through better anti-doping measures and racetrack safety standards. The doping of American racehorses has been the subject of Congressional attention over the past five years with hundreds of horses dying on racetracks weekly, and the indictment of 37 trainers and veterinarians in March of 2020.

The bill has the support of Animal Wellness Action (AWA), the Animal Wellness Foundation (AWF), Horses for Life Foundation, the American Horse Protection Society, the Center for a Humane Economy, and key players throughout the horse racing industry, including all three Triple Crown racetracks. Churchill Downs, which runs the Kentucky Derby, is the most recent corporation to get on board. The effort continues to enjoy the support of the Coalition for Horse Racing Integrity (CHRI), which includes The Jockey Club, the Breeders Cup, Keeneland Racecourse, the New York Racing Association, The Stronach Group, the Thoroughbred Owners & Breeders Association, the Water Hay Oats Alliance, U.S. Harness Racing Alumni Association, and Animal Wellness Action.

Court Remands NFL Player’s Case After Finding Retirement Board Abused Discretion, in Part by Relying on Opinion of Physician It Retained

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A magistrate judge from The Northern District of California has handed a victory to a former NFL player, who had challenged the decision of the Retirement Board of the Bert Bell/Pete Rozelle NFL Player Retirement Plan (Plan), which denied him total and permanent (T&P) disability benefits under the Plan and the Employee Retirement Income Security Act of 1974.

In ruling for the plaintiff, Charles Dimry, the court found that the defendants abused their discretion in denying his disability claim and remanded the case for further proceedings.

Dimry was drafted by the Atlanta Falcons in 1988. Throughout his 12-year career with the NFL he sustained a number of injures including concussions, and other head and neck injuries. In 2000, he retired from the San Diego Chargers and shortly thereafter underwent an anterior cervical fusion at C5-C6. Other neck surgeries followed.

In 2014, Mr. Dimry applied for T&P Disability benefits under the Plan. The Plan states that an individual qualifies for T&P benefits if he is “substantially prevented from or substantially unable to engage in any occupation or employment for remuneration or profit.”

Dimry claimed he was disabled based on (1) cervical spine degenerative disc disease, stenosis, osteophytes at C3-4, C4-5, twice failed fusion at C5-6, C6-7; (2) lumbar spine-degenerative disc disease at T12-L1, L1-2, L5-S1; (3) focal segmental glomerulosclerois; (4) Crohn’s Disease; and (5) knees: bilateral sprain and MCL tear of the left knee.

In February 2015, the Plan’s Disability Initial Claims Committee denied Dimry’s application finding that …

(The following was excerpted, in part, from Sports Litigation Alert)

Silver Named Chair of the Maine’s Gamblng Control Board

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Maine Governor Janet Mills has named Ogletree Deakins attorney Steve Silver chair of the state’s Gamblng Control Board.

Following the Governor’s nomination, the Maine Senate voted unanimously to confirm Silver to the position. By statute, the five-member Board regulates and supervises the ownership and operations of Maine’s two casinos, oversees advance deposit wagering, reviews license applications, and conducts disciplinary hearings for licensees.

In 2018, Silver taught the state’s first ever course focused on sports betting at the University of Maine School of Law. He has written extensively about gaming law issues for Vice Sports, Above the Law, and Legal Sports Report and has also been quoted in numerous national publications.

Silver has been named a Super Lawyers Rising Star each year since 2017 and was included in the inaugural 2021 Best Lawyers Ones to Watch list for his employee benefits and litigation work.

Dan Arment Re-Elected SFIA Chairman; Jake Griffith (Walmart) and April Lane (Amazon) Newly Elected to Board of Directors

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Dan Arment, President & CEO of Riddell & BRG Sports, has been re-elected as the Sports & Fitness Industry Association (SFIA) Chairman of the Board for a second one-year term. In addition, two new directors were elected, and four members were re-elected, to the SFIA Board of Directors for three-year terms. This announcement was made at the end of the SFIA’s Annual Meeting, which took place on Dec. 12, 2020.

New additions to the board include Jake Griffith (General Manager for Sports, Fitness & Outdoors; Walmart) and April Lane (Director/General Manager of Sports & Outdoor; Amazon).

“As SFIA Chairman, in a year unlike any other, Dan Arment has been a tremendous leader for our organization and the industry. We are fortunate and excited he has stepped up for another year,” said Tom Cove, SFIA President & CEO. “The Board will further benefit from the valuable participation of Amazon’s April Lane and Walmart Ecommerce’s Jake Griffith. Along with the rest of our returning Board members, SFIA is well situated to support the industry’s recovery and resurgence in the post pandemic era.”

In addition, the following board members were re-elected to three-year terms: Mike Dowse (CEO and Executive Director, United States Tennis Association), Jared Drinkwater (Chief Marketing Officer, BSN Sports), Kurt Tandan (Associate General Counsel & Senior Director of Corporate Affairs, adidas) and Mike Zlaket (President and CEO, Rawlings Sporting Goods).

Newly elected and re-elected directors will join the existing SFIA board members, which include:, Jennifer Bendall (Senior Director of Government Affairs, Nike), Chris Clawson (CEO, Life Fitness), Melissa Dawson (President, Molten USA), Kim Davis (Executive Vice President, Social Impact, Growth Initiative & Legislative Affairs; NHL), Rawleigh Grove (Vice President & General Counsel, PING Golf), Ray Hilvert (Vice President, Global Sports Marketing & Team Sports; New Balance), Scott McDonald (CEO, Body-Solid Inc.), Neil Morton (CEO, ATA International), Roman Oben (Vice President of Football Operations, National Football League), Jonathan Ram (Group President, Global Activewear; Hanesbrands), Michael Schroeder (Vice President, Global Lifestyle Brands; Gildan), Dan Sheridan (Executive Vice President & Chief Operating Officer, Brooks Running) and Marco Zambianchi (President, North America; Technogym USA).

Court Gives Final Approval To Settlement ‘Restoring Equal Opportunities For Women’ In Brown University Athletics

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A federal court has today given final approval to a settlement agreement between Brown University and the class of women student-athletes at Brown which resolved the class-action court challenge to Brown’s decision in June 2020 to cut women’s teams from its varsity athletics program. The court action, filed in June by cooperating counsel from Public Justice and the ACLU of Rhode Island, Bailey Glasser, and one other private law firm, alleged that the cuts violated a 1998 consent agreement that the University entered to comply with Title IX, the federal law that guarantees equal access to athletic programs for female athletes.

In September, the court preliminarily approved the agreement, which, among other things, reinstates two women’s teams and bars elimination or reduction in the status of any women’s varsity team for at least the next four years. In the two months that individuals were given to object to the settlement, a single objection was filed by twelve students who are members of two women’s sports teams (gymnastics and ice hockey) that were not directly affected by the 2020 program cuts.

Public Justice and ACLU of Rhode Island cooperating attorney Lynette Labinger argued in support of approval of the settlement agreement today. After hearing arguments from Labinger, and from counsel for Brown University and for the objectors, US District Court Chief Judge John McConnell, Jr. concluded that the settlement was fair, adequate and reasonable and approved the settlement.

The lawsuit was also handled by Leslie Brueckner of Public Justice; Arthur Bryant of Bailey Glasser in Oakland, CA; and Jill Zwagerman and Lori Bullock of Newkirk Zwagerman in Des Moines, IA.

Public Justice and ACLU cooperating attorney Lynette Labinger said today: “Through the sustained and exhaustive efforts of the women athletes at Brown and our litigation team, we have successfully concluded a settlement approved by the Court which restores many of the athletic opportunities for women whose programs were cut by Brown’s 2020 restructuring of its varsity program and ensures that Brown will make no further cuts for at least the next four years. While we wish we could have convinced Brown to restore all five teams, we were able to hammer out an agreement that has restored at least two and will hold the line against any more cuts for the next four years, after which Brown will continue to be obliged to comply in full with Title IX’s requirements. These are valuable benefits for our women athletes in the face of a growing national trend to shrink college sports programs across the country.”

“This is a great victory for our clients – the female student-athletes and potential student-athletes at Brown – and everyone committed to advancing gender equity,” said Arthur Bryant of Bailey Glasser, co-counsel for the women, who first brought this lawsuit with Public Justice (then Trial Lawyers for Public Justice) in 1992. “Six months ago, Brown openly violated the 1998 settlement agreement in this landmark Title IX case, announcing it would reinstate men’s varsity teams it had said it would eliminate, but no women’s teams. Now, Brown has reinstated the women’s equestrian and fencing teams – and given additional protections to all of its women’s teams. This proves again the critical value and importance of Title IX.”