The past year exhibited hints of equality for women in the sports world — at least, in terms of pay parity milestones.
It began with the U.S. women’s national soccer team resolving a multi-year labor dispute with the U.S. Soccer Federation, and agreeing to a new collective bargaining agreement that will carry a significant bump in compensation and expanded benefits. It also ended with the Norwegian Football Association and Norway’s players’ association (NISO) signing the first equal pay agreement for male and female clubs in international football.
But somewhere in-between, 2017 picked up where 2016 left off — headlined with prominent gender-related scandals often reserved for male-dominated sports controversies.
Sexual assault on the amateur and professional level; sexual harassment and sexism in the Big Four; domestic violence and controversial discipline in the NFL; the lack of women in top sports leadership positions on a global scale; and the emergence of the #MeToo movement in the sports sector are just a few of the most prominent issues to plague the sports industry the past several months.
While there was no shortage of female-related sports law controversy in 2017, here are the top five stories, in no particular order:
1. Trouble in Carolina: Cam Newton’s sexist remarks and Jerry Richardson’s sexual harassment controversy
2017 was quite a sports law year for Carolina Panthers fans.
First, in October, their franchise quarterback became the latest villain to belittle a female sports reporter — Jourdan Rodrigue of the Charlotte Observer. Whether intentional or not, Cam Newton’s decision to state during a post-practice team press conference how it was “funny to hear a female talk about routes,” signified to the female fan base how far the league is from correcting misperceptions of women in sports.
Rodrigue’s question — about the zeal with which Devin Funchess ran his routes during a seven-catch, two-touchdown performance in the Panthers’ road victory against the New England Patriots — should have been an easy football answer for the former NFL MVP. Instead, Newton responded with a sexist jab — a jab that quickly went viral and led to his loss of sponsorship with Dannon.
Rodrigue briefly met with Newton, and apparently no direct apology was issued to the Panthers beat reporter. It was only after Newton suffered an endorsement fallout that he issued a video-disseminated apology for his remarks.
But by then, it was too late — as the sexist remarks had already created controversy in the court of public opinion.
Will this be the last sexist controversy for the NFL?
Unlikely. The NFL’s cogent, masculinized culture will continue to be the status quo so long as senior leadership both on and off the field remains overwhelmingly male.
But Newton was not the only Panther to face controversy in 2017.
In December, Sports Illustrated published a searing report of the Panthers’ influential owner, detailing accusations of Richardson’s sexual misconduct and use of racist language at work.
The SI report cited unnamed sources who said Richardson made sexually suggestive comments to women and on at least one occasion directed a racial slur at an African-American team scout. Richardson reportedly frequently commented on female employees’ looks and made unwanted sexual contact. In addition, the report also stated that Richardson entered into financial settlements that came with non-disclosure agreement (NDA) requirements forbidding the parties from discussing the details of the alleged incidents.
When the report came to light, the Panthers, with the help of an outside law firm, immediately commenced an internal investigation of its majority owner — a rare move for a professional sports franchise.
But for transparency reasons, the Panthers allegedly requested that the league take over the investigation — which it did, coincidentally hours before Richardson announced he intended to sell the team after the end of the 2017 season.
The investigation into Richardson — the expansion team’s only majority owner since 1993 — and the sudden change in how the investigation will be conducted, raises a number of legal concerns for the Panthers for the upcoming year.
First, will the NFL’s investigation be limited due to NDAs, which could bar former team employees from revealing certain information, and potentially from disparaging the Panthers and its officers? Current and former employees who violate NDAs can be sued for breach of contract and required to pay back their employer. At the moment, it does not appear that the Panthers have waived the accusers’ NDAs. Since the accusers were employees of the Panthers, not the NFL, only the Panthers (and not Goodell or anyone in the league office) would have the ability to waive any NDA during the NFL’s ongoing investigation.
Second, it is possible that team officials may be implicated for facilitating or failing to thwart Richardson’s alleged misconduct. Pursuant to NFL’s personal conduct policy, Goodell has unchecked authority to punish those officials, or worse, punish the franchise with a fine or forfeited draft picks.
2. Ezekiel Elliot and the ongoing domestic violence problem in the NFL
In 2017, Ezekiel Elliot became the latest NFL star to be disciplined under the league’s controversial domestic violence policy — and unlike previous league mishandlings where Goodell had been accused of not being stern enough, in Elliot’s case, some — most notably Dallas Cowboys owner Jerry Jones — criticized the punishment as being too extreme for the circumstance.
Goodell handed Elliot a six-game suspension after the NFL concluded a 13-month-long investigation into domestic violence allegations raised by a former girlfriend. Elliott was never charged with a crime and has to this day denied the allegations. He appealed his punishment with the NFL, but the suspension was upheld by Harold Henderson, the league’s arbitrator. Elliott and the NFLPA then filed a federal lawsuit against the league, claiming the investigation and appeal were fundamentally unfair: The league didn’t make Elliott’s accuser available to testify at the appeal, and Goodell declined to explain the reasoning behind his decision.
Ultimately, after a prolonged legal battle, Elliot dropped his appeal, and sat out his suspension. But the end result was not praise for the NFL’s hard stance on domestic violence, but rather, the reverse — the league once again exhibited to its female fan base how a “one size fits all” domestic violence policy does not always work in sports — and certainly not when it is inconsistently enforced.
The league’s domestic violence policy, implemented in 2014, requires a six-game suspension for first time offenders, whether or not a player is ever charged or convicted of a crime. But since its enactment, Goodell’s discipline has been protracted, erratic and undependable. Former New York Giants kicker Josh Brown, for example, initially received only a one-game suspension for being physically violent with his now former ex-wife in more than 20 incidents, including when she was pregnant (the suspension was eventually increased by six more games). According to a January 2017 Bleacher Report Magazine examination, the NFL appears to have enforced its mandated six-game suspension against just two of 18 players publicly linked to domestic violence allegations since Goodell announced the league’s policy in 2014.
Since the policy’s enactment, for the eight players known to have been suspended after domestic violence-related allegations, it has taken an average of 11 months from the time of allegation to a public NFL conclusion, according to Bleacher Report. In some cases, the league’s independent investigations have taken longer to conclude than applicable criminal proceedings. And as a private league, the NFL is not obligated to provide players with “due process,” even if investigators are working with law enforcement on the league’s own parallel investigation.
Will 2018 be the year Goodell’s domestic violence policy gains the credibility it has been lacking? Don’t count on it.
Until Goodell agrees with the players association that he won’t be both the judge and jury in player discipline disputes, any discipline imposed by Goodell — especially discipline stemming from domestic violence accusations — will continue to be questioned. Fans can expect Goodell’s disciplinary powers to be a contentious point of negotiations when the current collective bargaining agreement expires after the 2020 season.
3. Bridging the gap of women in top leadership positions in sport
While women have made significant progress in leadership in business corporations, little has changed in the sports industry, with still far fewer women than men in top decision-making positions. On an international scale, gender inequality has persisted, despite global pushes to fill top roles with females.
“The Gender Report Card: 2016 International Sports Report Card on Women in Leadership Roles,” released by The Institute for Diversity and Ethics in Sport, was the first graded report card to be released on the number of women in leadership roles in international sport. The report card examined the international sports federations (i.e., those affiliated with the International Olympic Committee, FIFA for soccer and FIBA for basketball), the national federations then connected to the international federations and the regional zone confederations (i.e., CONCACAF for soccer). According to the report, in 2016, only 5.7 percent of international federation presidents, 12.2 percent of vice presidents, and 13.1 percent of executive committee members were women. In the IOC itself, 24.4 percent of members were women. The IOC earned a D+ for the representation of women in leadership roles. The international federations received an F. Collectively, the national federations affiliated with each international federation received an F.
In response to these global sport shortcomings, in December, 2016, IOC Board members issued a worldwide mandate for women in the Olympic Movement to hold a minimum of 30 percent of sports leadership positions by 2020.
But the IOC’s 2017 efforts to achieve this goal were feeble at best. For starters, the IOC’s only popularized efforts last year included the promotion of its second “Women in Leadership Forum” last March, where 65 representatives from national and international federations and national and international Olympic committees attended a conference on said topic. While a noteworthy event, a conference alone can hardly be expected to solve the gender inequality problem.
As this year draws to a close, currently, only four members of the IOC Executive Board are women, and only seven of the 26 IOC commissions are chaired by women — notable strides toward the 30 percent goal, yet it is unclear whether improvements will continue in future months.
But gender inequality and inadequate efforts for change wasn’t just a story for the Olympic Movement last year — it also was a story for the entire sports industry — and most notably the Big Four. When it came to gender hiring practices, the Institute for Diversity and Ethics in sport gave MLB a C, the NBA a B and the NFL a C. Interestingly, there was a striking discrepancy in league grades for league front office hiring practices and team front office hiring practices. For example, MLB, the NBA and NFL received grades of C-, B+ and B-, respectively, for league front office hiring, but they received either failing grades or no grades for head coach, assistant coach, team CEO/President and team vice presidents hirings — the one exception being the NBA, which received a “D” for team vice president hirings.
The global calls for gender equality across sport have not had much teeth. The international federations — just like the Big Four — must improve the percentage of female representation in the coming year.
4. NCAA adoption of sexual assault guidelines
Despite the risk of losing federal funds for Title IX non-compliance, the NCAA, in recent years, has witnessed a troubling number of college football programs afflicted by athletic departments that have exhibited an inadequate approach to rape accusations.
Baylor University. The University of Tennessee. The University of Missouri. The list goes on.
Amid a growing number of sexual assault controversies and Title IX lawsuits facing such NCAA member schools, the NCAA Board of Governors passed a resolution this past August that requires college athletes, coaches and athletics administrators at NCAA member schools to complete annual sexual violence prevention education.
The leaders from each of the 1,123 member institutions now must declare that their athletics department is knowledgeable of the school’s sexual violence policies and trained to respond to acts of sexual violence. But according to the Associated Press, “the NCAA policy does not delve into bans, restrictions or punishments for athletes who commit sexual violence, deferring to schools to set and follow their own policies.”
While the policy is one step in the right direction for sexual assault prevention among college athletes, the NCAA continues to lack any meaningful, systemic oversight in how coaches and universities should handle sexual assault allegations, and even convictions. Without any uniform standards, it still leaves too much subjectivity among the universities for how they handle accusations and investigations. The NCAA and president Mark Emmert continue to fail to seize control of a troubled system failing young women.
MORE: Louisville’s response to Pitino controversies warned of troubled moral system
Another weakness with the NCAA’s sexual assault guidelines is that there is a lack of institutional discipline for schools that lack Title IX coordinators. Each NCAA institution needs a Title IX coordinator — something Baylor didn’t have until November 2014. That coordinator resigned in 2016, saying the school’s leadership wouldn’t allow her to fulfill her responsibilities.
Training alone won’t be the answer to the NCAA’s sexual assault problem. At least not in 2018.
5. #MeToo movement reaches the sports world
Since early October, when news broke of Harvey Weinstein’s alleged penchant for serially sexually abusing women within his influential circle, a wave of sexual misconduct allegations known as the #MeToo movement has heavily trended across various industries — the sports sector being far from exempt.
One story came from former Olympic gymnast McKayla Maroney, who spoke of being repeatedly molested by USA Gymnastics and Olympic team doctor Larry Nassar, who has since been sentenced to 60 years on child pornography charges. Alarmingly, in a lawsuit filed in December, Maroney alleges USA Gymnastics tried to silence her by making her sign an NDA as part of a financial settlement that she needed in order to pay for psychological treatment.
Sexual misconduct allegations in the workplace have also been lodged against several prominent NFL analysts — Marshall Faulk, Heath Evans, Ike Taylor and previously fired Warren Sapp at the NFL Network and Donovan McNabb and Eric David at ESPN.
Just a few days ago, the #MeToo movement hit baseball when Betsy Bissen, a freelance photographer, accused Minnesota Twins’ All-Star third basemen Miguel Sano of assaulting her two years prior at a mall in suburban Minneapolis. That story came a few days after a Wall Street Journal report that said Bob Bowman, the former 17-year head of MLB Advanced Media, was forced out following allegations related to workplace misconduct.
And then there’s the SI report of Jerry Richardson’s alleged sexual harassment.
The #MeToo movement is likely only on the cusp of beginning in sports — one of the most male-oriented industries in the country.
And studies have shown sexual harassment is more prevalent in male dominated industries.
Unless there is a dramatic shakeup of traditionally male coaching, front office and senior decision-making roles in the sports sector, we should expect to see the #MeToo movement continue well into the coming years.
Cari Grieb covers the intersection of sports and the law. Cari practices banking law and sports finance at Chapman and Cutler LLP. She also serves as an adjunct professor at The John Marshall Law School, teaching courses in professional sports and the law and the NCAA and the law.