The Romano Sports & Entertainment Agency is now accepting applications for a position as a summer sports intern who is interested in working on a project involving amateur athletes and the NCAA. Interested candidates please email your resume to Robert J. Romano at firstname.lastname@example.org.
When Kevin Ware was injured while representing the University of Louisville, he was not covered by worker’s compensation. By BILL PENNINGTON
The broken leg felt round the country — during college basketball’s showcase event — left teammates and coaches in tears and television networks turning away from video of the gruesome injury. It also inflamed the debate about the treatment and care of unpaid college athletes who help generate hundreds of millions of dollars for their universities.
The injured player was Kevin Ware, a sophomore guard for Louisville, playing in the N.C.A.A. tournament. He was taken to a hospital and had surgery to repair compound fractures of his tibia. Louisville officials said the university had a secondary policy on its varsity athletes, ensuring that Ware, who also has his family’s primary insurance, will incur no out-of-pocket expenses in his rehabilitation.
But Ware is likely to be personally responsible for any health care expenses related to the injury after he leaves Louisville. Injuries sustained in college athletics that linger or develop into chronic conditions are generally not covered by a university’s or the N.C.A.A.’s medical insurance once an athlete has left college.
Louisville officials declined to specify the terms of the policy that covers Ware or to say who would handle his medical bills if the injury led to problems later, after he left the university. The N.C.A.A. said it was not able to comment on a specific athlete’s medical condition.
“Ware’s injury underscores just how vulnerable college athletes are: in a moment it can all be gone,” said Ramogi Huma, president of the National College Players Association, an advocacy group for athletes. He added, “Once you’re a former player, you’re on your own.”
Bob DeMars, who played four years as a defensive lineman for Southern California, from 1998 to 2001, tore the posterior cruciate ligament in each knee while playing for the Trojans. He also sustained a serious neck injury and separated both shoulders.
“I wake up with a lot of things bothering me sometimes, and my knees are unstable,” said DeMars, 33, a filmmaker and part-time teacher. “If my knee goes out because I don’t have a P.C.L. and my anterior cruciate ligament tears and I’m hobbled for the rest of my life, I hope Southern Cal helps me pick up the pieces. But they don’t have to.
“College athletes aren’t employees, so there’s no workmen’s compensation. They tell us we’re student-athletes because it’s not a job. But it sure is a business, and it’s not a nonprofit.”
If Ware’s medical claims exceed $90,000, he will also qualify for the N.C.A.A.’s catastrophic insurance program, which has some continuing coverage under certain conditions. The N.C.A.A. has additional supplemental insurance for injuries that occur during championships events.
But not all colleges generate as much revenue through athletics as Louisville does; the university took in more than $40 million through its basketball program alone last year. Many colleges outside the N.C.A.A.’s top athletic tier do not offer comprehensive secondary policies to their varsity athletes. The N.C.A.A. requires an institution only to certify that each athlete has some kind of primary medical insurance, which is usually a family policy.
“And if an athlete’s parents don’t have a policy, then the college offers them the same policy they offer regular students,” said David Dranove, a health economist and a professor at Northwestern University’s Kellogg School of Management. “That is usually a group policy that’s not particularly generous and not tailored to the kinds of injuries that occur in sports, which often require specialized surgeries, long rehabilitations and expensive tests” like magnetic resonance imaging tests.
“So the colleges treat the athletes like regular students,” he continued, “when they’re routinely exposed to much more hazardous conditions where injury is common.”
American labor law created decades ago established that workers exposed to injuries in the normal course of their jobs should not be expected to pay because of those injuries, Dranove said. “The N.C.A.A. is 100 years behind the rest of the country,” he said.
Even at top-tier institutions — as well as at the hundreds of medium-size and small colleges that have sports programs — secondary insurance policies can have significant coverage gaps. In addition, not many injuries are serious enough to reach the $90,000 deductible that triggers the N.C.A.A.-sponsored policy.
Valerie Hardrick, whose son Kyle was a basketball player at Oklahoma, was stunned to discover she owed $10,000 for an M.R.I. and other tests performed on her son when he injured his knee in 2010. Her private insurance paid for about $20,000 in other medical bills, but the M.R.I. was classified as an out-of-pocket expense.
Hardrick did not get the bill for the M.R.I. until nearly a year later, after Kyle’s scholarship was not renewed, Hardrick told a Congressional panel on college athletics in 2011.
“There’s a lot they don’t tell you about when you sign for an athletic scholarship,” Hardrick said. “They ought to tell you what insurance won’t cover.”
Concerns about inequitable treatment of college athletes last year caused the California Legislature to pass a bill known as the Student-Athlete Bill of Rights. It requires universities that generate more than $10 million in annual media revenues from athletics — four California universities qualified immediately — to provide equivalent academic scholarships to varsity athletes who are injured and lose their athletic scholarships. It also mandates that the institutions pay the health care premiums for low-income athletes and cover all deductibles for injuries related to participation in an intercollegiate sport.
“A significant number of people are starting to see that we should start protecting these athletes as laborers,” said Paul H. Haagen, the co-director of the Center for Sports Law and Policy at Duke University. “Effectively, the N.C.A.A. has lost the public-relations war, and the entire idea of the student-athlete and amateurism erodes. That’s also because there is incentive to exploit the athletes.”
The vast majority of high-level athletes are on yearly scholarships that are renewable at the discretion of the institution, and complicated and onerous N.C.A.A. restrictions on outside jobs and private contributions often put varsity athletes at a financial disadvantage compared with the rest of the student body. As a result, the pressure on the N.C.A.A. to alter its policies substantially is growing. Ware’s injury has heightened the focus on another issue:health insurance coverage.
“Change is coming to collegiate athletics because there are all these multiple problems,” said Warren Zola, a sports law professor at Boston College. “You see the state legislatures and even Congress getting involved. The leaders in higher education might want to be proactive and make their own changes before change is forced on them.”
As for Ware, with his broken leg in a cast, he is expected to attend Louisville’s game Saturday in the N.C.A.A. tournament’s Final Four, an annual highlight on the American sports calendar.
“We all wish the best for Kevin, and I’m glad he got the best care available,” Huma, the National College Players Association chief, said. “But there are plentiful financial resources available in college athletics to ensure that all injured athletes — at all levels and not just at the biggest schools in the Final Four — get treated in a similar way.”
Attorney Robert J. Romano will be a guest on FOX Sports Radio, Thursday, April 4, 2013 from 7 am until 10 am, to discuss Rutgers University firing Mike Rice, the coach of its men’s basketball team, on Wednesday, a day after a video surfaced showing him berating his players during practices, throwing balls at them, kicking them and taunting them with slurs.
Attorney Robert J. Romano will be a guest on WHBC – News Talk 1480 AM with Sam Bourquin this Wednesday, January 16, 2013 at 3:35 p.m. est to discuss the current any and all legal issues involving Lance Armstrong and his alleged performance enhancing drug usage.
News Talk 1480
The NCAA’s One-Year Renewable Athletic Scholarship – The Modern Reserve Clause
By Robert J. Romano, founding partner of The Romano Sports & Entertainment Agency
The NCAA’s mandate that all athletic scholarships be one-year renewable awards is analogous, in theory, to baseball’s historic reserve clause. The development of baseball’s reserve system occurred in the late 1800s and early 1900s, when the owners in both the National League of Professional Baseball Clubs and The American Association of Baseball Clubs entered into the “national agreement” that proscribed a uniform player contract. Under its terms, once a baseball player’s contract expired, the club and only the club and not the player, could unilaterally renew it for another season. This allowed a team to “reserve” the rights of a player season after seasons, or in other words, in perpetuity. Under the reserve rule, a player was bound permanently to the club who signed him first.
The “national agreement” also allowed a team to “reserve” a player’s rights without interference from other teams looking to poach a player, or a player looking to competing teams for a more lucrative contract. When the contract expired, all Major League teams colluded, agreeing not to make an offer for another team’s player. Each player could only negotiate with one club, a monopsony in economic terms. A player who was offered an unsatisfactory contract had no power or leverage to solicit offers from a competing team. The only options the player had were to sign to the terms dictated by his current club, or retire. Under the reserve system, “cartel rules” controlled the movement of players.
Today, college athletes under scholarship with an NCAA member institution are in an economic situation similar to baseball players during the period of the reserve clause. This is because since 1973, NCAA’s rules mandate that athletic scholarships be awarded for no more than one academic year, renewable at the discretion of the member institution.This rule mandate is comparable to the reserve system wherein a key provision in the uniform player contract was that when it expired, the team, and only the team, retained the option to renew the contract for another season. The player had no right, similar to a college athlete, to compel an organization to allow him to play another season.
Additionally, each student-athlete, as a requirement to attend and play athletics for a college or university, is required to sign the National Letter of Intent (NLI). This NLI commits the student-athlete to the school for a full four years, while also making it difficult, if not impossible, to transfer schools without penalty. This is again similar to the reserve system wherein a player, in order to play professional baseball, was compelled to sign the contract prescribed by the league, or abandon baseball as a profession. The absolute lack of mutuality, both in obligation and in remedy, in the NLI makes it necessary for the student-athlete to either sign such as it is prescribed, or not play college athletics at all. What the student-athlete faces, as baseball players did previously, is a “Hobson’s Choice - whether you will “
The college or university, however, has the right to revoke the scholarship at any time for serious misconduct, voluntary withdrawal from a sport for personal reasons, or if the athlete is rendered ineligible. Additionally, a student-athlete who is injured, ill, does not play well, is replaced by a better or incoming recruit, one who simply does not fit the scheme because of a coaching change, or because of a “bad attitude,” may be released from the team and his or her scholarship revoked without cause. The college’s only obligations are to notify the athlete of the nonrenewal decision and of the athlete’s right to appeal.
The similarities between the student-athlete who signs a NLI and a baseball player who signed a contract that included a reserve clause, is without question. Under the reserve system, an owner or coach of the organization had the right to terminate the player’s contract at any time with 10 days’ notice. An owner could terminate the contract for any reason: player injury, diminishing player skills, or just because they have a “bad attitude.” If the player was terminated, he had no recourse, except now he may be allowed to play for a different club.
Under the terms of the “national agreement,” for each contract a player signed that contained a reserve clause, Major League Baseball was able “to perpetuate its control over the services of the player.” Similarly, the reason the NCAA eliminated the four-year athletic scholarship and mandated that schools only give scholarships on a one-year renewable basis is so that the NCAA and its member schools could expand their control over the student-athlete. With the end of the guaranteed four-year scholarship, control in college sports shifted dramatically to athletic departments and coaches, and away from the athlete.
Over the years, social commentators have struggled to find the proper analogy for the current collusive market for college athletes. Civil Rights historian, Taylor Branch, commented that the NCAA has “an unmistakable whiff of the plantation” since it is easy to see inequity in the level of control that a school exerts over its athletes and the unequal division of the value of their labor. However, economic competition is the great protector of the disadvantaged. History teaches us that the defenders of the reserve clause and college sports, beneficiaries of unjust systems, have great skill in developing rhetoric to defend their injustice. But history also teaches us that if there is economic competition, there is economic justice.
 Paul C. Weiler, et al, Sports and the Law, 128 (Thompson Reuters, 4th ed. 2011).
 NCAA 2011-2012, NCAA Division I Manual art. 15.2.1-3 at 196-198.
 NCAA 2011-2012, NCAA Division I Manual art.184.108.40.206 at 204.
 NCAA 2011-2012, NCAA Division I Manual art. 220.127.116.11 at 205.
 NCAA 2011-2012, NCAA Division I Manual art. 18.104.22.168 at 205.
 American League Baseball Club of Chicago v. Chase, 149 N.Y.S. 6 (SCNY 1914).
 Taylor Branch, The Shame of College Sports, (Atlantic Magazine Oct. 2011).
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Attorney Romano will discuss:
1. Issues regarding the replacement referees.
2. What the issues are regarding coming to terms between the NFL and the Referees. Are the Referees asking for more than they deserve? Are the NFL Owners not offering enough?
3. Will an agreement be reached within the next few days?
Attorney Robert J. Romano will be a guest on Sports Biz Today Monday night at 7:35 (eastern time) to provide insight on the NFL suspensions being lifted regarding Jonathan Vilma and the other Saints players.
THE NFL PLAYERS’ ASSOCIATION’S RULE 60 MOTION
By Robert J. Romano, Esq.
The NFL Players’ Association has petitioned the U.S. District Court of Minnesota to reopen the settlement agreement reached with the NFL last summer that ended the 132-day player lockout. The Players’ Association claims in its Rule 60 Motion that the NFL Owners engaged in collusive conduct in 2010 when they secretly set a cap on players’ salaries in an agreed upon uncapped season. After a brief history of NFL labor issues, this paper will examine the legal arguments both parties will be presenting in an upcoming court hearing.
BACKGROUND & HISTORY:
The National Football League has a long and storied history of labor disputes resulting in strikes, lockouts, and contentious litigation between the owners and players. In 1993, after years of costly and arduous lawsuits and court proceedings stemming from the players’ unsuccessful strike in 1987, the parties put aside their differences and entered into what is known as the White Stipulation and Settlement Agreement of 1993 (SSA).
Per the SSA, the Players’ Association recertified itself as a union and, together with the NFL and its Owners, agreed on terms for a new Collective Bargaining Agreement (CBA). Over the course of time, with court oversight and approval, the parties have amended the SSA; an example being in 2006 when the parties agreed on a new CBA. The 2006 CBA and SSA, as amended, provided for a six-year agreement with 2012 being the final year, but gave the Owners the right to opt out of the final two years. If the Owners exercised this opt-out provision, however, the final league year would be an uncapped year regarding players’ salaries. In 2008, the Owners exercised their right to opt out, making 2010 the last season under the agreement.
In March 2011, the 2006 CBA expired and with the parties unable to agree on terms, the NFL instituted a player lockout. The Players’ Association countered by decertifying itself as a union and disclaiming any interest in continuing to serve as the players’ collective bargaining representative. The individual players were then free to, and did, sue the NFL for violating federal antitrust laws.
After a series of court hearings, creative legal maneuvers, and the threat of losing an NFL season drawing closer, the parties came to terms and entered into a new CBA. On August 4, 2011, in accordance with the new CBA, the parties filed a joint Stipulation of Dismissal with the district court, ending both the players’ antitrust suit against the NFL and any continued court oversight with regards to the SSA.
On May 23, 2012, the Players’ Association filed a Rule 60 Motion requesting that the district court reopen the settlement agreement reached with the NFL and enforce the terms of the SSA, thus bringing the matter back under the jurisdiction of the district court. A Rule 60 Motion allows a party to seek relief from a final judgment and request the reopening of a case under a limited set of circumstances including, but not limited to, fraud, mistake, and newly discovered evidence.
THE PLAYERS’ ASSOCIATION’S POSITION:
The Players’ Association filed its Rule 60 Motion claiming that in 2010, the Owners breached the terms of the White Stipulation and Settlement Agreement of 1993. Such breach concerned the Owners engaging in collusive conduct to suppress player salaries by imposing a secret, $123 million per-team salary cap during the agreed upon uncapped 2010 season. The Players’ Association alleges that this secret, collusive agreement violated SSA Article XIII §1 “Anti-Collusion”, SSA Article XV § 2 “Circumvention”, and SSA Article XIX § 6 “Breach of Implied Covenant of Good Faith and Fair Dealing”. Also, because evidence of the Owners’ conduct did not present itself to the Players’ Association until 2012, after the Stipulation of Dismissal was filed, its Rule 60 Motion is timely and properly before the court.
In analyzing the Rule 60 Motion, the Players’ Association argues that the Owners’ conduct violated SSA Article XIII § 1 “Anti-Collusion” because they, the Owners, restricted individual team decision making on whether or not to negotiate with any player concerning the terms or conditions of employment. This secret salary cap violated the SSA because “the Owners explicitly agree that the 2010 season would not be subject to a salary cap”. In addition, the salary cap caused economic injury to the players by reducing the amount individual teams spent on players’ salaries during the 2010 league year. Without this collusive activity, the Players’ Association argues, “teams would have spent substantially more on player salaries in 2010”.
Second, the Players’ Association contends the Owners violated SSA Article XV § 2 “Anti-Circumvention” because they “entered into a collusive agreement for the purpose of circumventing the intention of the parties in that the final league year would be uncapped”. It is the Players’ Association’s position that the reason for the agreed upon uncapped season during the final league year was to provide an incentive to the Owners to negotiate extensions of the SSA, rather than to let it expire.
Third, the Player’s Association alleges that the Owners’ actions violated SSA Article XIX § 6 “Implied Covenant of Good Faith and Fair Dealing”. They claim the Owners’ act of concealing the capped season from the players was malicious and designed to “defraud or to seek an unconscionable advantage over the players”. That because this secret pact was malicious in its intent, injuring the rights of the players to receive the agreed upon benefits afforded them in the SSA, the Owners breached their obligation to deal fairly and in good faith with the players.
The Players’ Association asserts that because the Owners’ collusive conduct is newly discovered evidence, unbeknownst to them when they filed the Stipulation of Dismissal, its Rule 60 Motion is properly before the court. Being properly before the court, they are entitled to relief from a final judgment, that its request to reopen the settlement should be granted, and they are entitled to compensatory damages.
THE NFL AND THE OWNERS’ POSITION:
The NFL and the Owners contend that on August 4, 2011, when the Stipulation of Dismissal was filed with the court, all claims regarding the players’ antitrust suit and the White Stipulation and Settlement Agreement of 1993 ended. They support their position with three main defenses.
First, that per the terms of the 2011 CBA, the Players’ Association released and covenanted not to bring claims of collusion arising under the now expiredSSA. The 2011 CBA specifically addressed this issue:
“The NFLPA on behalf of itself, its members and their respective heirs . . . releases and covenants not to sue, or to support financially or administratively, or voluntarily provide testimony of any kind, including by declaration or affidavit in, any suit or proceeding (including any Special Master proceeding brought pursuant to the White SSA and/or the Prior CBA) against the NFL or any Club or any NFL Affiliate with respect to any antitrust or other claim asserted in White v. NFL or Brady v. NFL, including, without limitation . . . collusion with respect to any League Year prior to 2011, or any claim that could have been asserted in White or Brady related to any term or condition of employment with respect to conduct occurring prior to the execution of this Agreement.”
This release and covenant not to sue the Owners argue, “indicates an intent to make an ending of every matter arising under or by virtue of the contract”. Their position is well grounded because under controlling New York law, “a general release bars an action on any cause of action arising prior to its execution”.
Second, the NFL and the Owners argue that an agreement was entered into between themselves and the Players’ Association to resolve all outstanding claims regarding theSSA. Such agreement was expressed in the jointly filed Stipulation of Dismissal that reads:
“The parties stipulate to the dismissal with prejudice of all claims, known and unknown, whether pending or not, regarding the Stipulation and Settlement Agreement (“SSA”) including but not limited to the claims asserting breach of the SSA related to (i) television contacts and broadcast revenue; and (ii) asserted collusion with respect to the 2010 League Year, excepting only the pending claim filed March 11, 2011 relating to an alleged rookie shortfall on the part of the Philadelphia Eagles.”
It is the NFL’s position that the Players’ Association agreed to dismiss any and all claims, known or unknown, regarding asserted collusion with respect to the 2010 season when they signed and jointly filed the Stipulation. It is apparent from the document’s language that such is true. In addition, the Stipulation of Dismissal is a separate and independent reason, apart from the release and covenants within the 2011 CBA, as to why the Rule 60 Motion is not properly before the court.
Third, the NFL and the Owners claim the Players’ Association’s Rule 60 Motion is time barred per SSA Article XIII. Article XIII provides that “a claim for collusion has to be brought within 90 days of the later of two dates: (1) the date when the NFLPA first knows or reasonably should have known with the exercise of due diligence that it had a claim; and (2) the date of the first regular season game in the season which the violation is claimed”.
The NFL asserts that if the Players’ Association exercised any due diligence, they knew or reasonably should have known of any collusive conduct on behalf of the owners. They argue that the alleged collusive conduct, the suppression of 2010 player salaries, would have been apparent from the face of the players’ contracts signed in advance of the 2010 season. The NFL and Owners’ state, somewhat sarcastically, in their Opposition that “calculation of total player compensation, on a League-wide or Club-specific basis, would have been a simple arithmetic exercise”. The Players’ Association has knowledge of the terms of every executed player contract since the SSA and the CBA require the NFL to forward them a copy of such.
In addition, the Players’ Association’s Executive Director, DeMaurice Smith, was on notice of any alleged collusive conduct when he openly stated prior to the 2010 season that there was “almost a uniform decrease in club payments that you wouldn’t expect in a completely free market”.
Therefore, it is the NFL and the Owners position that the Players’ Association motion is time barred because they knew, or in the exercise of due diligence should have known of any collusive conduct regarding the 2010 season. SSA Article XIII requires a collusion claim to be brought no later than 90 days after the first regular season game, that being September 9, 2011. Because the Stipulation of Dismissal was not filed until May 2012, it is outside of the mandatory 90-day time requirement and therefore must be denied.
The Players’ Association is going to have a difficult time convincing the district court to grant its Rule 60 Motion and open the White Stipulation and Settlement Agreement. There is evidence that they were aware in the summer of 2010 of collusive conduct on behalf of the Owners regarding a secret salary cap. If such is true, SSA Article XIII requires them to assert an action within 90 days from the start of the season. They failed to do such. In addition, both the 2011 CBA and the Stipulation of Dismissal provides language that clearly relieves the NFL and the Owners of any collusive conduct that the Owners may have engaged in regarding a secret salary cap for the 2010 season. A court hearing regarding the Players’ Association’s Rule 60 Motion is scheduled for September 6, 2012.
 Amendments to the SSA were also approved in 1996, 1999, and 2002.
 SSA Art. I (be)-bf).
 Pls’ Pet. to Reopen and Enforce Stipulation and Settlement Agreement, May 23, 2012.
 Rule 60. Relief from a Judgment or Order
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
 SSA Art. XIII “No Club, its employees or agents shall enter into any agreement, express or implied, with the NFL or any other Club, its employees or agents, to restrict or limit individual clubs decision making as follows:
(a) whether to negotiate or not to negotiate with any player;
(b) whether to submit or not to submit an Offer Sheet to any Restricted Free Agent:
(c) whether to offer or not to offer a Player Contract to any Unrestricted Free Agent or Undrafted Rookie;
(d) whether to exercise or not exercise a Right of First Refusal; or
(e) concerning the terms or conditions or employment offered to any player for inclusion, or included, in a Player Contract.
 Pls’ Pet. to Reopen and Enforce Stipulation and Settlement Agreement, at 1.
 Pls’ Pet. to Reopen and Enforce Stipulation and Settlement Agreement, at 14.
 Pls’ Pet. to Reopen and Enforce Stipulation and Settlement Agreement, at 17.
 Pls’ Pet. to Reopen and Enforce Stipulation and Settlement Agreement, at 18.
 2011 NFL-NFLPA Collective Bargaining Agreement Art. 3, § 2.
 Defs’ Opp. to the Pet. to Reopen the Stipulation and Settlement Agreement at 3, August 16, 2012.
 Clark v. Buffalo Wire Works Co, Inc. 3 F.Supp. 2d 366, 372-373, (W.D.N.Y.)
 Stip. of Dismissal, August 4, 2011.
 Defs’ Opp. to the Pet. to Reopen the Stipulation and Settlement Agreement at 6.
 Defs’ Opp. to the Pet. to Reopen the Stipulation and Settlement Agreement at 1.