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Primary Care Providers Win Challenge of CMS Interpretation of Enhanced Payment Law

With the help and support of the Tennessee Medical Association, 21 Tennessee physicians of underserved communities joined together and retained Bass, Berry & Sims to file suit against the Centers for Medicare & Medicaid Services to stop improper collection efforts. Our team, led by David King, was successful in halting efforts to recoup TennCare payments that were used legitimately to expand services in communities that needed them. Read more

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Download the Healthcare Fraud & Abuse Review 2017, authored by Bass, Berry & Sims

The Healthcare Fraud & Abuse Review 2017 details all healthcare-related False Claims Act settlements from last year, organized by particular sectors of the healthcare industry. In addition to reviewing all healthcare fraud-related settlements, the Review includes updates on enforcement-related litigation involving the Stark Law and Anti-Kickback Statute, and looks at the continued implications from the government's focus on enforcement efforts involving individual actors in connection with civil and criminal healthcare fraud investigations.

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Labor Talk Blog: Further Reflections on Unions in College Football - Is "student athlete" a misnomer?


March 27, 2014

Is this the beginning of the end of college football as we know it? Some argue that the end already has begun, with the "big money" of television and the corresponding commercialization prevalent in the sport. Some argue that in today’s major college football and basketball, the phrase "student-athlete" is a misnomer.

Has the end begun? Perhaps, but as predicted below, look for a legislative initiative to be triggered.

What happened?

  • A Regional Director for Region 13 (Chicago) of the National Labor Relations Board (NLRB) has ruled that scholarship football players at Northwestern University are not "primarily students" and, as a result, they are more akin to University employees.
  • Thus, explains the Regional Director, as "employees," the scholarship players can form a union to bargain with the University over the players' "wages, hours, and working conditions."
  • The Regional Director has ordered an election for April 9 to give the scholarship players the right to vote on whether to elect the College Athletes Players Association (CAPA) as their exclusive bargaining representative. CAPA is affiliated with the United Steelworkers Union.
  • An appeal is likely. Look for Northwestern University to appeal the Regional Director's decision to the five-member NLRB in Washington, D.C.

What is at stake?

  • The players supportive of unionization already have said they will seek:
    • Medical insurance benefits for life for sports injuries.
    • Limits on practice time (and on full-pad practices) and similar safety precautions.
  • But, can the players also bargain with the University over:
    • its academic requirements for the scholarship players?
    • how many academic hours the University can require to remain eligible?
    • what grade point average the University can require to remain eligible?
    • These issues all impact "working conditions."
  • What about pay? Can bargaining over wages be just around the corner?
  • Must a coach allow a union representative to attend any disciplinary meetings with a player? Can a player file a grievance over a requirement to "run laps" for loafing or do push-ups for fumbling the ball?
  • If scholarship football players are not "primarily students," and are really employees, what does that say about the University's educational mission with these "student-athletes?"
    • If a University is spending thousands to pay a "student-athlete" to play his sport, how likely is the University to "flunk out" the athlete because he was not meeting academic requirements?
  • As these pressures mount, how many universities will decide that their "commercial project" of college athletics is no longer worth the administrative expense and burden?

Many, many questions other arise from this ruling, such as:

  • If players really are employees, does that mean that the discrimination, harassment and leave laws apply, too?
  • Is the value of the scholarship taxable as income?
  • If this ruling results in more benefits for football and male basketball players, will Title IX require the same benefits for female athletes?
  • What about the state universities? Northwestern University is a private institution, and thereby subject to the National Labor Relations Act (NLRA). Yet, most big time athletic programs are state institutions, which may or may not be subject to the NLRA. The bargaining rights of state employees are determined not by the federal law but rather by state law. Some states do not allow any bargaining, or only limited bargaining for public sector employees (think Wisconsin in the news recently). In either event, a state’s legislature could pass a law disallowing bargaining by student-athletes, or excluding them based on a finding that they are primarily students, not employees. A complex "patchwork" of varying bargaining rights for student-athletes could result.
  • Where does the NCAA fit in? The NCAA regulates (or over-regulates if you prefer) the various benefits a member institution can provide to its student-athletes. Within that framework, there is little to no flexibility that the member-institution has in providing benefits to student-athletes without risking a finding of ineligibility/probation/sanctions.

But note: Within the past two weeks, several college players filed an antitrust lawsuit against the NCAA and five of the major conferences. The lawsuit claims that the NCAA and its member-institutions have violated the antitrust laws by agreeing among themselves to cap player "compensation" to the value of a four-year scholarship. Trial is scheduled for June 2014.

So, what will happen?

  • My prediction is that the NLRB will affirm the regional director's determination and that an election will be held on April 9 or soon thereafter. Because this is a case of first impression, the NLRB may postpone the election for a more reasoned look at the issue, but that seems unlikely for this NLRB.
    • If the players vote against representation by CAPA, the immediate issue will fizzle; if the players vote for representation by CAPA, look for Northwestern University to refuse to bargain in order to get the matter ultimately to the federal court system.
  • Either way, I also predict a legislative initiative in Congress to do the following:
    • To exempt the NCAA and all of its member institutions from the NLRA.
    • To exempt the NCAA and all of its member institutions from the antitrust laws.
    • To allow payment of some stipend to the players at a predetermined level as a compromise and to recognize the reality of the value of players' services to their respective schools.
  • Whether any legislative initiative prevails could depend upon who prevails in the next few election cycles.

Finally on a personal note: In my opinion, the regional director erred. His view does not comport with college life. It is erroneous to segregate the college experience into distinct segments labeled "athletic" and "academic" and then determine that only the academic segment is a part of the university's educational mission. As a former college athlete (not "major" athletics but nonetheless instructive), I learned as much (if not more) in college from my athletic experience as from my academic – it all entailed "learning" and was "education" in its broadest (and most accurate) sense.

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