On August 17, 2015, one of the major sports law cases over the last two years came to a surprising close. The National Labor Relations Board (“NLRB” or “Board”) declined to exercise jurisdiction over the question of whether Northwestern University football players were employees of the university as defined by the National Labor Relations Act (“NLRA”). 29 U.S.C. § 152(3).
On March 26, 2014 NLRB Region 13 Director, Peter Sung Ohr, ruled that “all grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are ‘employees’ under Section 2(3) of the Act,” and directed a union election to be held. Region 13 Decision and Direction of Election, 23. Northwestern appealed Director Ohr’s ruling to the full Board, and the briefing and evidence submitted to the NLRB by Northwestern and the College Athletes Players Association (“CAPA”), the labor organization representing the players, largely focused on the question of whether the football players are, indeed, employees. Neither party even discussed the Board’s jurisdiction until Northwestern raised the issue as a two-paragraph alternative argument in its reply. Reply Brief, 23 (citing 29 U.S.C. § 164(c)(1)). Northwestern asserted, among other reasons, that the “relatively small number of private universities [that] are potentially impacted by the Board’s holding” was a reason that “the Board should decline to assert jurisdiction over private intercollegiate athletic programs.” Id.
Earlier this month, a Michigan Court of Appeals affirmed a trial court’s order that Michigan State disclose the names of suspects redacted from university police incident reports. ESPN, Inc. v. Michigan State University, No. 326773 (Mich. App. Ct. Aug. 18, 2015). The appellate court found that the public’s interest in government accountability took priority over any student-athlete’s expectation of privacy.
In ESPN, the University appealed the trial court’s ruling based on the privacy exception to the state’s Freedom of Information Act (FOIA), MCL 15.231, et seq. In September 2014, ESPN submitted a FOIA request to the University seeking incident reports involving several student-athletes. The University produced certain records, but redacted names and identifying information of the suspects, victims, and witnesses, pursuant to MCL 15.243(1)(a) and (1)(b)(iii). Specifically, subsection 15.243(1)(b)(iii) prohibits disclosure of certain investigating records that would constitute an “unwarranted invasion of personal privacy.” The trial court ordered disclosure of the suspects’ names, but not the names and information of the victims and witnesses, “even if the victims or witnesses were one of the student-athletes identified in the request.” The University appealed. (ESPN did not challenge the trial court’s determination that the privacy exemption applied to the victims’ and witnesses’ respective information.)
I have always written and spoken about the individual value for privacy and when it is violated, how that violation can be very personal and akin to trauma. The recent breach at Ashley Madison and the potential harm it may unleash on the customers and their loved ones demonstrates these principles all too well, unfortunately. Recently, I was asked to join Mike McConnell on 700 WLW radio in Cincinnati to discuss the breach and what businesses can learn from it. In this short recording, we discuss the breach itself, what companies can do, and the state of the world in which hackers are becoming more aggressive and businesses are finding themselves continually on the defensive preparing for IF, not WHEN.
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