By Robert J. Romano, Senior Writer
Former Washington State University’s head football coach Nick Rolovich’s troubles didn’t end when his employment contract was terminated for refusing to comply with Governor Jay Inslee’s mandate that all employees of the State of Washington be vaccinated against Covid-19. In addition to being fired for cause, and therefore losing his $3 million annual salary, Coach Rolovich has to answer a lawsuit filed against him, in his individual capacity, by one of his former players, Kassidy Woods.
Per the lawsuit, the former Cougar alleges that Coach Rolovich violated his First and Fourteenth Amendment rights when the coach informed him that he was no longer part of the football team and that any future promises of a scholarship were rescinded because of his connection to and association with #WeAreUnited, a group of Pac-12 athletes whose goal is to create awareness about various health and safety, racial injustice and economic equality issues in college sports.[1]
By way of background, in July 2020, Mr. Woods, together with one of his teammates, met with Coach Rolovich to discuss a number of issues troubling to the #WeAreUnited movement. These concerns included fears over health risks associated with their athletic participation during Covid-19, the apparent lack of testing protocols of not only the football team but all athletes at WSU, and the lack of transparency by the WSU hierarchy about the number of positive cases on campus.[2] In addition, Mr. Woods had personal concerns with regards to Covid-19 because his health history puts him at an increased risk if exposed to the virus.[3]
As stated in his lawsuit, the team’s former WSU wide-out alleges that the University failed to warn players of any close contacts during that time and prohibited players from sharing information about positive test results, even with teammates. Specifically, Woods contends that “Not only were athletes already testing positive for COVID-19 without notification to other players, Woods’ own roommate, together with roughly ten other teammates, had the disease or been exposed just two days prior to Woods’ arrival on campus.”[4] WSU Athletic Director, Pat Chun, later acknowledged that no less than 60 student-athletes tested positive for Covid-19 by early September 2020.[5]
Even more interesting, however, is that when Mr. Woods informed Coach Rolovich that, due to his own health concerns surrounding Covid-19, he was going to ‘opt out of the 2020 football season’, the head coach’s response had nothing to do with the disease. Instead, the former head coach inquired as to Mr. Woods’ participation and role within the #WeAreUnited group. When affirming his involvement with the organization, Mr. Woods was both startled and surprised by Coach Rolovoich’s response:
“OK so that’s going to be, that’s gonna be an issue if you align with them as far as future stuff, cause the COVID stuff is one thing . . . But, um, joining this group is gonna put you on a, on a — that’s obviously, you know, you get to keep your scholarship this year, but it — it’s gonna be different. You know, if you, if you say, ‘I’m opting out ‘cause of COVID and health and safety,’ I’m good. But this group is gonna change, uh, I guess, how things go in the future for everybody, at least at our school.”[6]
It is then alleged that the former head coach instructed the plaintiff to immediately clean out his locker and refrain from interacting with any other WSU football team members. When Mr. Woods questioned as to why, Coach Rolovich’s alleged response, as stated in the complaint, was that it would send “mixed messages to the team” if Woods were allowed to be around the team.[7]
It is the plaintiff’s, Kassidy Woods, position that Coach Rolovich’s message was clear and unmistakable: If he, Woods was aligned with #WeAreUnited, he could no longer be part of the WSU team and any future promise of a scholarship would be void.[8] This message, however, according to Kassidy Woods, is a clear violation of his First Amendment Right of Free Association.
The First Amendment to the U.S. Constitution states that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble.”[9] As per his lawsuit, the former WSU receiver claims that he has a constitutional right, afforded him by the First Amendment, to associate with the #WeAreUnited organization. And, since he is afforded such right, the actions taken by Coach Rolovich of dismissing him from the football team and depriving him of any opportunity to secure a scholarship in the future because of his association with #WeAreUnited, were retaliatory and deprived him of his right to freely associate and assembly as guaranteed under the First Amendment.
In addition, Mr. Woods claims that his Fourteenth Amendment Rights were violated. The Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[10] Mr. Woods asserts that, as a member of a suspect class, he was unlawfully discriminated against due to his race and association with #WeAreUnited. Specifically, he claims that when Coach Rolovich discharged him from the football team, such action was based on his race, together with his association with other Black athletes in the #WeAreUnited movement, therefore denying him, as a black man, equal protection under the law and in addition, were an attempt by the former Coach to impact and/or influence racial justice in the United States.
In the end, Washington State University may have made the best decision in terminating Coach Rolovich. At a University where 97% of the student-athletes understand the importance of being vaccinated and a significant number have a deep understanding of their Constitutional Rights, Coach Rolovich’s failure to understand race relations and the history of student-athlete activism in sport, together with his noncompliance with the State’s Covid-19 vaccination mandate, renders him an ineffective leader who would only continue to fracture the WSU community.
Robert J. Romano, JD LLM, is a sports law professor at St. John’s University
[1] https://www.theplayerstribune.com/articles/pac-12-players-covid-19-statement-football-season
[2] Case 3:21-cv-01958-M Document 1 Filed 08/20/21.
[3] Id.
[4] Case 3:21-cv-01958-M Document 1 Filed 08/20/21.
[5] https://www.seattletimes.com/sports/wsu-cougar-football/in-lawsuit-filed-against-nick-rolovich-former-wsu-player-kassidy-woods-alleges-retaliation-reckless-disregard-of-constitutional-rights/
[6] Case 3:21-cv-01958-M Document 1 Filed 08/20/21.
[7] Id.
[8] Id.
[9] U.S. Const. amend. I.
[10] U.S. Const. amend. XIV.
Not surprisingly, Mark Emmert’s responses were in line with what the NCAA has been selling to the American public since the early part of the 20th Century: amateur collegiate athletes are those that play sport purely for the enjoyment and as a way to develop his or her mental, physical, moral, and social skills. In fact, the initial NCAA rule regarding amateurism in 1916 decreed that “no student shall represent a College or University in any intercollegiate game or contest who is paid or receives, directly or indirectly, any money or financial assistance.”[4]
By 2011, however, Mark Emmet’s answer was based on the more detailed and comprehensive NCAA rules, specifically, Section 2.9 “The Principle of Amateurism” which states:
“Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.”[5]
Additionally, as per Article 12 of the NCAA Division I manual, which governs rules related to athletic eligibility and amateurism, outlines how a student-athlete would lose his or her “amateur status”:
“An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual: (a) uses his or her athletic skill (directly or indirectly) for pay in any form in that sport; (b) accepts a promise of pay even if such pay is to be received following completion of intercollegiate athletics participation; (c) signs a contract or commitment of any kind to play professional athletics, regardless of its legal enforceability or any consideration received, except as permitted in Bylaw 12.2.5.1; (d) receives, directly or indirectly, a salary, reimbursement of expenses or any other form of financial assistance from a professional sports organization based on athletic skill or participation, except as permitted by NCAA rules and regulations; (e) competes on any professional athletics team per Bylaw 12.02.12, even if no pay or remuneration for expenses was received, except as permitted in Bylaw 12.2.3.2.1; (f) after initial full-time collegiate enrollment, enters into a professional draft (see Bylaw 12.2.4); or (g) enters into an agreement with an agent.”[6]
Since, according to the NCAA rules and bylaws as outlined above, an athlete will lose ‘amateur status’ if he or she uses his or her athletic skill for pay in any form, Mark Emmert’s statement that student-athletes cannot be considered employees of the college or university for which the play, was, by the NCAA’s own definition of amateurism, correct.
That isn’t to say that this concept of amateurism wherein student-athletes are considered ‘preprofessional’ that cannot be financial compensated, above that of the costs of the scholarship, has never challenged. One such attempt came in March 2014, three years after Mark Emmert took over as the NCAA’s president, when the National Labor Relations Board (NLRB) Regional Office in Chicago, after a petition was filed by Northwestern University quarterback Kain Colter, determined that members of the University’s football team that are receiving academic scholarships are “employees” within the meaning of the National Labor Relations Act (NLRA) and therefore, have the right to form a labor union.[7] The NLRB Regional Office based its findings after finding the following facts:
- The University’s football program generated revenues of approximately $235 million between 2003 and 2012, such that the players performed valuable services for the University.
- The players were “compensated” via scholarships equal in value of up to $76,000 per year.
- The players are engaged in football activities all year-round and devote between 40-50 hours a week to football activities during many months, which is often more time than they devote to academics.
- The football coaching staff exerted incredible control over the players, not only requiring them to practice and attend meetings on a rigid schedule throughout the day but also requiring them to seek some type of approval before they could make living arrangements, apply for employment, purchase vehicles, travel off campus, post items on social media forums, and speak to the media.[8]
Northwestern University, unquestionably at the urging of the NCAA and its over 1,100-member institutions, appealed the decision of the Regional Office to the full National Labor Relations Board in Washington, D.C. almost immediately.
The NLRB D.C. Office, in August 2015, maybe not surprisingly based on the political climate at that time, dismissed Colter’s petition. In its decision, the NLRB didn’t rule on the merits, but instead declined to exert jurisdiction of the matter and therefore, by not doing so, preserved one of the NCAA ’s core principles: that college athletes are students. However, the NLRB D.C. Office never determined whether or not the players are employees, instead, finding that the novelty of the petition and its potentially wide-ranging impacts on college sports would not have promoted “stability in labor relations.”[9] As per its decision, “The Board has never before been asked to assert jurisdiction in a case involving college football players, or college athletes of any kind. Even if scholarship players were regarded as analogous to players for professional sports teams who are considered employees for purposes of collective bargaining, such bargaining has never involved a bargaining unit consisting of a single team’s players.”[10]
But that was 2015. It is now 2021 and college sports is in a whole new post O’Bannon, post Alston, post Trump Administration, social media driven world. On September 29, 2021, NLRB General Counsel, Jennifer Abruzzo issued an ‘updated’ memorandum solidifying the NLRB’s current position wherein ‘certain’ “Players at Academic Institutions (sometimes referred to as student athletes), are employees under the National Labor Relations Act, and, as such, are afforded all statutory protections.”[11] Specifically, Abruzzo’s memo declares that “Players at Academic Institutions perform services for institutions in return for compensation and subject to their control. Thus, the broad language of Section 2(3) of the Act, the policies underlying the NLRA, Board law, and the common law fully support the conclusion that certain Players at Academic Institutions are statutory employees, who have the right to act collectively to improve their terms and conditions of employment.”[12]
It is presumed that the NLRB’s reclassification of student-athletes as employees is because of a) recent legal developments including the U.S. Supreme Court’s unanimous decision in NCAA vs. Alston wherein the Court recognized that college sports is indeed a profit-making enterprise, b) the players’ recent collective actions about racial justice issues and demands for fair treatment, as well as for safety protocols to play during the pandemic, which all directly concern their terms and conditions of employment, [13] and c) the new political climate under the Biden Administration.
Interestingly, the NLRB has warned colleges and universities that classifying players as ‘student-athletes’ leads to those players believing that they are not employees and therefore, can ‘chill’ employee rights. Therefore, the NLRB announced, that in appropriate cases, it will “pursue an independent violation when a college or university misclassifies players at academic institutions as student-athletes.”[14]
It may have taken over a hundred years, but finally someone, in this case the NLRB, recognizes the contradiction and illogicality of not paying student-athletes whose skills are the catalyst that drive this billion-dollar industry. The contradiction that Lowell Bergman highlighted, wherein when the American public is watching March Madness, a sporting event that generates over $900,000,000.00 annually for the NCAA, the coaches are being paid, the athletic directors and administrators are being paid (Mark Emmert earns $2.9 million as the President of the NCAA),[15] everyone associated with the event is being paid, but the student-athletes aren’t – may finally come to an end.
…
[1] https://www.pbs.org/wgbh/pages/frontline/money-and-march-madness/interviews/mark-emmert.html.
[2] Id.
[3] Id.
[4] Afshar, Arash (2014). “Collegiate Athletes: The Conflict Between NCAA Amateurism and A Student Athlete Right of Publicity”. Willamette Law Review.
[5] NCAA Division I Manual, Constitution Art. 2.9.
[6] NCAA Division I Manual, Constitution Art. 12.1.2.
[7] https://www.archerlaw.com/nlrb-regional-director-rules-northwestern-football-players-are-employees-and-can-unionize/
[8] https://www.sbnation.com/college-football/2014/3/27/5551014/college-football-players-union-northwestern-nlrb
[9] https://www.nytimes.com/2015/08/18/sports/ncaafootball/nlrb-says-northwestern-football-players-cannot-unionize.html
[10] Id.
[11] https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-employee-status
[12] Id.
[13] Id.
[14] Id.
[15] https://www.si.com/college/2021/07/19/mark-emmert-ncaa-salary-covid-19-revenue-drop
