Building Awareness and Support of Survivors in the Face of Institutional Betrayal

Last week, after Harvey Weinstein’s conviction was overturned by the New York Court of Appeals, Ashley Judd, one of the first to come forward to reveal Mr. Weinstein’s abuse, called it an “institutional betrayal.”  While more will be written about the reasoning behind the New York court’s decision, the concept of institutional betrayal is very familiar to those of us who represent sexual assault survivors as they seek some measure of justice and accountability.

Hutchinson Black and Cook has been honored to represent sexual assault survivors for well over two decades.  During that time, while we, as a society, have made great progress in recognizing the seriousness of sexual violence, we have also come to realize that there is a lot of work that still needs to be done:  RAINN (the Rape, Abuse & Incest National Network) reports that every 68 seconds, another individual is sexually assaulted and nearly 435,000 individuals are sexually assaulted each year in the United States alone.  One out of every six American women has been the victim of an attempted or completed rape in her lifetime. 

As we close out April, which is recognized as Sexual Assault Awareness Month, we celebrate the progress that has been made and the work that still needs to be done to educate our communities and to support all survivors.  In doing so, we want to acknowledge how institutional betrayal continues to be something we focus on in our work to ensure that the institutions we look to for services, protection, and support do not instead add to the losses and trauma associated with sexual assault by overlooking or even betraying the interests of the survivors impacted by violence in their institutional community.

First, though, a bit of background:  Over the last 20 years, research into what we call “institutional betrayal” has expanded significantly.  The term was first introduced in 2007 by University of Oregon professor Dr. Jennifer J. Freyd, who defined institutional betrayal as “wrongdoings perpetrated by an institution upon individuals dependent on that institution, including failure to prevent or respond supportively to wrongdoings by individuals committed within the context of the institution.” Institutional betrayal is an additional source of trauma that is related to but distinct from the underlying trauma of the sexual assault itself.  When our clients talk to us about an institutional betrayal that they have suffered, it is usually because there are inadequate (or nonexistent) school or employer policies to address sexual assault, there are alarming individual behaviors (often due to poor hiring decisions, training or supervision), or there is some combination of the two.  In our cases, we have seen instances where employers or schools have ignored warning signs (or even actual reports) of sexual violence and then further fail to support the survivors, prioritizing the needs of the institution or even, in some cases, the perpetrator.  Frequently, this leads to more sexual violence as perpetrators end up further emboldened to engage in additional sexual violence.  

There is no doubt that when an institution betrays a survivor, it is adding to the existing trauma from which the survivor has to recover.  Dr. Freyd and others have identified and begun to measure the specific impacts of that betrayal on the physical and psychological well-being of survivors of sexual violence in their studies.   Several studies show that after controlling for the general trauma associated with sexual violence, there is a clearly definable and measurable increase in stress and trauma associated with institutional betrayal.  This additional trauma is created when a seemingly trusted institution denies the sexual assault survivor’s experience, creates an unwelcoming environment where the survivor does not feel safe to stay at the institution, or even retaliates against a survivor for reporting the sexual violence.   It can lead survivors to feel as if they are not safe to seek out the assistance that they need, which in turn may cause an institution to claim that it is the survivor’s fault for not seeking that assistance.

In our work for survivors, we seek to distinguish the effects of institutional betrayal from the trauma of the assault.  We work with our clients to collect evidence that supports their claims that the institution betrayed them.  We collect the institution’s policies and look to whether they are adequate and enforced given the known risks in that community.  We examine the training (if any) that a particular employer or school provided.  Finally, we work with experienced experts who know how to identify the nature and impact of institutional betrayal, along with things like future short- and long-term treatment options that might help a survivor recover.  

The goal of our work is not simply to develop our clients’ cases.  It is to acknowledge and redress the systemic role of institutions in sexual violence that has long been too common and to try to ensure that next time, our trusted institutions will do better.  And knowing that they too are working to address these issues, to change our community’s institutions, and – hopefully – to protect others, is something that can bring hope and peace to our clients. 

FIFA’s Suspension of Luis Rubiales Is A Step In the Right Direction, But More Reform is Needed

On Monday, October 30, FIFA announced a three-year suspension of Luis Rubiales, the former president of the Royal Spanish Football Federation (in Spanish, the Real Federación Española de Fútbol, or “RFEF”), for kissing a player during the medal ceremony at the Women’s World Cup this summer. The suspension is surprising given FIFA’s questionable record on gender equality, but fails to adequately condemn systemic issues within the Spanish federation.

Rubiales’ conduct at the medal ceremony followed repeated protests by Spain’s national team players about the team’s coaching staff. In 2022, fifteen members of the national team sent letters to the RFEF stating they would not play for the national team until changes were made in the federation. In response, the RFEF announced its support for the team’s head coach, Jorge Vilda, and required the players who sent letters to apologize in order to be considered for the World Cup roster. In total, eight players apologized, and three were selected for the World Cup. Vilda refused to resign and managed the team throughout the tournament in Australia and New Zealand.

Despite the turbulence preceding the tournament, the Spanish team pulled off a World Cup victory over England­ in the championship in one of the most competitive years in women’s soccer history. Unfortunately, the team’s impressive performance was overshadowed when Rubiales forcibly kissed Jennifer Hermoso, Spain’s all-time leading goal scorer, on live television. Though the RFEF insisted the kiss was consensual, Hermoso issued a statement vehemently disagreeing, calling the incident “an impulse-driven, sexist, out-of-place act without any consent on my part,” and accusing the RFEF of pressuring her to say otherwise. She subsequently pressed criminal charges for sexual assault.

The brazen assault sparked unprecedented protest about sexism and gender inequity in women’s sports, with officials at all levels of international soccer condemning Rubiales’ behavior, from Spain’s professional league “La Liga” to UEFA, the preeminent European soccer league. Internally, more than eighty Spanish players signed a letter to the RFEF announcing a boycott of national team duties until changes were made in the federation, and the entire coaching staff, with the exception of head coach Jorge Vilda, resigned in protest. FIFA opened disciplinary proceedings against Rubiales just days after the incident, and quickly issued a 90-day provisional suspension.

In spite of the backlash, the RFEF continued to defend Rubiales, though Vilda was fired. Presumably in retaliation, the federation called up the striking players for the team’s post-World Cup matches, with the threat of severe sanctions looming for players that failed to report. Notably, Hermoso was left off of that roster, a decision the RFEF said was made to “protect her.” The RFEF also threatened to take legal action against the players who signed a letter of support for Hermoso.

On September 10, Rubiales resigned from his position. The players have ended their boycott following lengthy negotiations with the RFEF resulting in an agreement that promises a commitment to gender equity.

This Monday, the FIFA Disciplinary Committee banned Rubiales from “all football-related activities” for three years for violating article 13 of the FIFA Disciplinary Code (the Code). That provision generally prohibits indecent conduct, but notably does not include specific prohibitions on sexual assault or harassment. Article 15 of the Code prohibits gender discrimination, but FIFA curiously did not pursue a charge under that provision. The suspension came as a surprise to many, as FIFA has not been particularly progressive on issues of gender equity.

Though the suspension is a moderate victory for Hermoso and the Spanish women, FIFA appears content to let Rubiales take the fall for the RFEF’s dismal treatment of its women’s team. Rubiales’ brazen conduct was the consequence of an unchecked misogynistic culture in the RFEF that has persisted despite player protest. FIFA has notably failed to comment on the RFEF’s retaliation against its national team players, nor does the FIFA Disciplinary Code prevent retaliation or offer any protection for players who speak out against mistreatment. International governing bodies should set the minimum standards of player safety, yet, until now, FIFA has idly stood by while the Spanish players sacrificed their careers to effect change. Hopefully, the Rubiales suspension is just the first domino to fall in FIFA’s path towards stronger protections for female athletes.  

Stay tuned tohttps://twitter.com/HBCSportsLaw orhttps://www.linkedin.com/company/hutchinson-black-and-cook-llc/ for the latest in Sports Law news and opinions.

The Future of Equity Compensation for Professional Athletes

In the business world, it is common for executives and key employees to receive equity as part of their compensation packages. Equity compensation, often in the form of options that vest over time, is designed to increase retention rates, incentivize hard work and innovation, and to reward key personnel for their contributions to a business’s long-term success.

Each of the underlying rationales for equity compensation in business can be extended to star athletes in professional sports. For example, the WNBA’s Las Vegas Aces could offer A’ja Wilson equity in the team with a 10-year vesting period to help keep her on their roster for her entire career. Similarly, the NFL’s Kansas City Chiefs could give Patrick Mahomes equity in the team to incentivize him to bring as many Super Bowl championships, and as much media exposure, as possible, thereby increasing the value of the team. While it is easy to understand why equity compensation for star athletes might make sense, in recent months, Major League Soccer (MLS) and the National Football League (NFL) have taken drastically different approaches on this issue, the results of which could impact the availability of equity compensation for all professional athletes moving forward.

In soccer, Lionel Messi – one of the sport’s biggest global stars – made headlines when he chose to sign with Inter Miami CF of the MLS over traditional powerhouses like F.C. Barcelona and Paris Saint-Germain. One of the key factors that led to this decision was Inter Miami’s offer of an equity stake in the club, which brought the annual value of Messi’s contract to an estimated $70,000,000.00. Messi’s decision to play for Inter Miami, which likely would not have occurred absent the offer of equity compensation, has been a boon for not only the club, but for the entire MLS. Since Messi’s arrival, the MLS has benefitted from record shattering ticket sales and increased revenue from streaming subscriptions and sponsorship deals.

Unfortunately for professional football players, the NFL has chosen a different path. Amid rumors that quarterbacks Aaron Rodgers and Caleb Williams were interested in deals that included team equity, the NFL owners voted to prohibit teams from granting equity to any of their employees. As a basis for this decision, the owners argued that granting team equity to employees, including players, would lead to salary cap issues and conflicts of interest if a player were to be traded or sign with another team. It is hard to view the ban on equity compensation as anything other than the owners protecting their own interests, especially in the era of increased bargaining power and entrepreneurship for star athletes. Further, many of the issues raised by the owners are not unique to sports and could be addressed through existing mechanisms. For example, if a business is concerned about an executive owning its equity but later taking a job with a direct competitor, the business can bargain for redemption rights, voting limitations, and a laundry list of other known protections when granting the equity. In short, the owners’ arguments against equity compensation do not pass the “smell test.”

Conclusion: The potential benefits of equity compensation for star athletes are substantial, as illustrated by the success of Lionel Messi’s contract with Inter Miami FC. Nevertheless, billionaire owners want to retain their team equity, especially as franchise values continue to soar, and are therefore likely to resist equity compensation packages. When future collective bargaining agreements are being negotiated in the NBA, WNBA, MLB, NHL, MLS, NFL, etc., players associations should push for equity rights, as their skills and efforts are directly responsible for ever-increasing franchise values.

Stay tuned to https://twitter.com/HBCSportsLaw or https://www.linkedin.com/company/hutchinson-black-and-cook-llc/ for the latest in Sports Law news and opinions.

What to Know About Colorado’s FAMLI Leave

HBC recently advised its corporate clients about how to prepare for the full implementation of FAMLI leave in Colorado. Here’s what employers need to know:

Beginning January 1, 2024, employees will be entitled to take up to 12 weeks of paid leave for any of the following reasons: 

• To care for their own serious health condition. 

• To care for a family member's serious health condition. 

• To care for a new child, including adopted and fostered children during the first year after birth, adoption or placement of the child. (If the employee is seeking leave due to a pregnancy or childbirth-related complication, they are entitled to an additional four weeks of FAMLI leave.) 

• To make arrangements for a family member's military deployment. 

• To take "safe leave," meaning leave because the employee or employee's family member is the victim of domestic violence, stalking, or sexual assault or abuse. 

Note that the payments will come from the state during FAMLI leave, so employers are not responsible for direct payments. Benefits guaranteed by FAMLI are dependent on the employee’s earnings, with the employee receiving partial wage replacement, capped at $1,100 per week. The state has a premium and benefit estimator available here: https://co.accessgov.com/famli/Forms/Page/famli/famlicalculator/1 .

Premiums for FAMLI leave began to be collected in 2023, with employers submitting the premiums through an online system at the end of each quarter. As a general rule, FAMLI is funded by payroll taxes split 50/50 between employer and employee, with each paying 0.45 percent of their payroll to fund the program. Employers with fewer than 10 employees are not required to pay the employer share of the premiums. 

Employers may opt for a private plan instead of the state’s FAMLI program, provided that the private plan is at least as generous as the public plan in terms of rights, protections, and benefits. Private plans may take the form of either self-insurance or a policy obtained through an insurance carrier, but they must be approved by the State prior to implementation. Approved plans will release employers from obligations to withhold premiums to fund the FAMLI program. 

The FAMLI Toolkit for Employers is available here: https://famli.colorado.gov/employers/famli-toolkit-for-employers 

For help in implementing FAMLI leave into handbooks and in navigating FAMLI’s interactions with other leave laws, including the FMLA and HFWA, contact HBC’s employment law team. https://www.hbcboulder.com/employment-law

Game on? The NFL’s Turf Trouble in Court

When Travis Kelce, the star tight end for the Kansas City Chiefs, suffered a non-contact lower leg injury during their recent victory against the Minnesota Vikings, the current clamor for the NFL to ban the use of artificial turf reached new heights when Travis’ brother, Philadelphia Eagles star center Jason Kelce, demanded that changes be made. Even though Travis Kelce's injury did not sideline him for the most recent game in Denver, the uproar surrounding this demand has been growing since Aaron Rodgers, QB of the New York Jets, sustained a devastating opening night torn Achilles tendon and is likely out for the season. The economic ripple effect of this one injury is unquestionably massive.

Whether the artificial turf at the Vikings' and Jets' home fields directly caused these injuries (Rodgers' own coach disputes that it did), the NFL Players Association (NFLPA) has leveraged these superstar injuries to intensify its plea to the league for the adoption of natural grass surfaces, which it claims is essential.

Critics have suggested that substantial changes to the league's stance on safety issues only comes when the threat of litigation looms large. A turf lawsuit would not be the first time that players or former players have sued the NFL over safety and related injuries. Perhaps most notably, in 2012, more than 4,500 retired players collectively filed a class-action lawsuit against the NFL, alleging negligence in safeguarding athletes from head injuries caused by impacts on the field.  The NFL settled that case for $765 million dollars with a total of eventually over 18,000 former players.

For NFL players to bring a negligence claim, they would have to allege that 1) the league owed them a duty of some level of safety from known dangers, and 2) that the league breached that duty by not taking action to prevent injuries stemming from those known dangers.  Perhaps critical to the success of the concussion lawsuit however were the allegations that the league knew of the long-term consequences of such head impacts, including conditions like CTE and Parkinson's disease, but had deliberately concealed the information from athletes.

The importance of these concealment allegations is two-fold.  Initially, the legal duty that the league owes to the athletes increases dramatically if they conceal information that results in harm.  Though the law often doesn’t recognize general safety duties, that can change where a defendant conceals a danger.  The second issue with concealment involves the league’s expected defense that players have assumed the risk of such injuries by playing the game.  Though this is a hard argument for the league to make if they have concealed the information needed to actually “assume the risk”, the defense may be successful where the athletes are well aware of the dangers but choose this line of work anyway.  

Where the NFLPA has been sounding the alarm for years about the perils of artificial turf and citing studies on the subject, alleging concealment of these dangers seems as unlikely as Taylor Swift still going to Chiefs’ games at the end of the year.

In conclusion, there is serious doubt in turning those studies into good claims for the players. In the end, where the league and owners are predictably motivated by the dollar signs, perhaps having these two superstars sidelined is the only play the NFLPA needs. The Jets' plummet from primetime to fighting for last place may pack more punch than any lawyer's closing statement in this gridiron drama.

Stay tuned tohttps://twitter.com/HBCSportsLaw orhttps://www.linkedin.com/company/hutchinson-black-and-cook-llc/ for the latest in Sports Law news and opinions.

HBC Attorney Matt Simonsen Helps Launch Colorado Disability Bar Association

More than 42 million Americans have a disability, according to the 2021 U.S. Census Bureau. In the legal profession, the data is not so clear. Historically, many legal professionals have been reluctant to disclose an invisible disability or request accommodation, but it’s time to change that. Lawyers with disabilities deserve representation, inclusion, and a stronger voice in the legal community. 

Enter a small group of like-minded legal professionals, including Hutchinson Black and Cook’s Matt Simonsen. Over the past two years, this group has worked to create the Colorado Disability Bar Association (CDBA). The mission of the CDBA is to represent the interests of people with disabilities working in the legal profession, legal professionals working in areas of law affecting or that affect people with disabilities, clients and community members with disabilities, and other allies. 

Matt’s disability advocacy is personal, as he was diagnosed with narcolepsy and a circadian rhythm disorder when he was in high school. Likewise, many of the founding members of the CDBA are talented attorneys and judges with a variety of disabilities, who practice a variety of law. 

At HBC, Matt’s practice focuses on civil litigation and appellate work. He has first hand experience managing the challenges of law school and practicing law with narcolepsy. As a result, he has enjoyed being able to advocate on behalf of people with disabilities in his law practice and with CDBA. 

Matt is particularly proud of the work the CDBA has done in disability education for the legal community. For example, one of the many CLEs hosted by CDBA over the last 18 months was for an audience of more than 80 Colorado state court judges. Among other things, the program provided information to the judges on how to proactively help people in their courts request reasonable accommodations. This training prompted changes in many Colorado courtrooms seeking to better support jurors, attorneys, witnesses, and parties who need reasonable accommodations.

The CDBA also worked with the Colorado Attorney Mentoring Program, University of Colorado School of Law, and University of Denver Law School to start a mentorship program for law students with disabilities, which, among other things, has helped connect law students with disabilities with resources for obtaining test accommodations for the Colorado Bar Exam. In addition, the CDBA may have played a role in the Colorado Office of Attorney Regulation Counsel’s recent move to start tracking disability status in its annual demographic survey for Colorado attorneys. 

“We often remind the legal community that you don’t have to be born with a disability. Anyone can become a person with a disability at any time – it can happen through an accident or through aging, losing eyesight, hearing, mobility, or cognitive functions,” said Matt. “That’s why educating the broader legal community on inclusivity is so important.”

Joining Matt in supporting the CDBA are HBC attorneys Tim Shannon and Brendan Chatham, who have put in many pro bono hours to get the CBDA incorporated as a non-profit organization. 

As part of its broader commitment to people with disabilities, HBC is sponsoring Phamaly’s Big Night Annual Fundraiser on September 30, benefiting the Phamaly Theatre Company, a local nonprofit that exclusively features actors with disabilities. For more information or for tickets, https://phamaly.org/show/big-night-cabaret/.

The Colorado Disability Bar Association is an important addition to Colorado’s specialty and diversity bar associations, and it is off to an impressive start. Congratulations to Matt and the founding members of CDBA for your dedication to giving legal professionals with disabilities a collective voice. 

To learn more about the CDBA, check out the September’s issue of Colorado Lawyer https://cl.cobar.org/departments/introducing-the-colorado-disability-bar-association/ or email directly at codisabilitybarassn@gmail.com.

HBC Trusts & Estates Team Provide Tips for National-Make-A-Will-Month

August is National Make-a-Will Month. Here are a few reminders from HBC’s Trust & Estates team about why it’s a good idea to make a will – at any time of the year.

Determine who will receive your property.
The most common and simple reason to make a will is to decide who will get your property when you die. Without a will (or other plan, like a revocable living trust), your state laws determine how your property will be distributed, which may not align with your goals. Or, even if your wishes mainly align with state law, there may be a specific asset or portion of your estate you would like distributed to a more remote family member, a friend, or a charitable organization.

Designate an executor.
After you die, someone will need to wind up your affairs. You can use your will to nominate an executor (personal representative, in Colorado) to serve in this role. Without a will, an individual will be appointed in accordance with state law.

Name a guardian to care for your minor children.
If you have minor children and you want to name who will care for them, this is a compelling reason to execute a will (or at least an Appointment of Guardian) so as not to leave this decision up to state law/a court.

Provide guardrails for your children’s access to your financial assets.  Without a will, if you are not survived by a spouse, and your children are minors, the court will appoint a conservator to manage the assets until a minor child reaches age 21, at which time they will receive full control of and access to those assets.  And if your children are already 21, they will receive your estate assets directly from the outset.  A will allows you to be intentional about who (referred to as a trustee) should manage the assets while your children are young, and be thoughtful about what ages and to what extent your children may be mature enough to begin directly accessing those assets in the future.   

Provide for your pet(s).
Many of us treat our pets like family, but in many states they are simply viewed as property. You can use your will to designate a trusted caretaker for your pet and also direct money to that person to help them financially care for your pet.  Pet trusts may even be appropriate in limited circumstances.

Makes a difficult time less difficult.
By spelling out exactly how you would like your estate handled when you die, you can avoid conflicts and have peace of mind that your wishes will be honored. Making a will can prevent additional grief for your loved ones during an already emotional time.

Once you make a will, make sure you update it as your life circumstances change, for example a new baby, death of a loved one, or a divorce. Remember that a typewritten will is only valid in Colorado if it is signed by you in the presence of two witnesses or a notary (and ideally both)!

HBC provides a wide range of estate planning and trust and estate administration services, giving clients peace of mind and providing guidance for families. If you need help getting started, give us a call https://www.hbcboulder.com/wills-trusts-estates

Eleven Hutchinson Black and Cook Lawyers listed in 2024 The Best Lawyers in America®

Hutchinson Black and Cook is proud to announce that 11 of its lawyers are listed in the 2024 edition of The Best Lawyers in America®. Since it was first published in 1983, Best Lawyers has become regarded as the definitive guide to legal excellence. 

Hutchinson Black and Cook’s complete list of 2024 The Best Lawyers in America®:

• Jonathan Boonin – Employment Law - Individuals (4th year of recognition by Best Lawyers)

• David J. Driscoll – Commercial Litigation, Insurance Law, Litigation - Insurance, Personal Injury Litigation - Plaintiffs (10th year of recognition by Best Lawyers)

• Maureen E. Eldredge – Corporate Law (6th year of recognition by Best Lawyers)

• Connie Tromble Eyster – Trusts and Estates (16th year of recognition by Best Lawyers)

• Christopher W. Ford – Personal Injury Litigation - Plaintiffs (11th year of recognition by Best Lawyers)

• Glen F. Gordon – Personal Injury Litigation - Plaintiffs (11th year of recognition by Best Lawyers)

• John B. Greer – Employment Law - Management (4th year of recognition by Best Lawyers)

• Kimberly M. Hult – Medical Malpractice Law - Plaintiffs (11th year of recognition by Best Lawyers)

• Meghan C. Hungate – Litigation - Construction, Litigation – Construction Law, Litigation – Real Estate Law, Real Estate Law (2nd year of recognition by Best Lawyers)

• Jane Paddison – Trusts and Estates (11th year of recognition by Best Lawyers)

• C. Brad Peterson – Construction Law (16th year of recognition by Best Lawyers)

Hutchinson Black and Cook’s Jane Paddison named Best Lawyers® 2024 "Lawyer of the Year” in Boulder

Hutchinson Black and Cook LLC is proud to announce that Jane Paddison has been named as a Best Lawyers®  2024 “Lawyer of the Year” in Boulder for Trusts and Estates. “Lawyer of the Year” honors are awarded annually to only one lawyer per practice area in each region. She is also listed in the 2024 edition of The Best Lawyers in America® for Trusts and Estates, an honor she has received for the past 11 years. 

For the past 38 years, Jane has provided counsel in the areas of sophisticated estate, gift and generation skipping transfer tax planning to a diverse group of individuals and entities.  She also provides counsel to business owners in structuring entities for tax and asset protection purposes; prepares marital agreements; advises on probate and trust administration and income tax  issues; and provides expert witness testimony in divorce and probate litigation matters. 

Prior to joining HBC, Jane was a solo practitioner in Boulder for ten years, and was previously affiliated with Denver based firms, including as a partner of Gelt, Paddison & Grassgreen, P.C. in Denver.

Sabbatical Leave at HBC: A Policy That Benefits Everyone

Why does this man look so happy? 

Hutchinson Black and Cook attorney Keith Edwards is enjoying his sabbatical send off party at  CU’s classic sports bar, The Dark Horse. The Colorado Buffalo party theme was perfect for someone who attended CU both for his undergraduate and law degrees – with a stop over at MIT for a masters degree – Edwards is looking forward to a summer of fun with his wife and three sons with other adventures to follow.

Edwards is one of a long line of HBC attorneys and staff who have taken advantage of HBC’s one-year sabbatical policy over the last 50 years. Other HBC attorneys and staff have used their sabbatical leave for everything from becoming a river raft guide in New Zealand, attending cooking school in Paris or London to teaching math in the Amazon rainforest, navigating the medinas of Morocco, completing a bluegrass album, and many other personal and professional goals.

As one of the oldest law firms in Colorado, HBC has a long history of forward-thinking policies that support attorneys and staff. Its sabbatical policy was adopted in 1972 to promote “life enrichment and reflection, improved health,” and has long recognized the importance of extended leave for personal and professional growth. The one-year leave – which is separate from vacation, parental leave or family medical leave – is available after 10 years of service for attorneys (and every 7 years thereafter).  HBC’s staff members are given up to six months leave after 8 years with the firm.  

A sabbatical may not be for everyone, but HBC encourages “everyone strongly to take a sabbatical when his or her turn comes around.” It’s just another example of why HBC is such a great place to work and build a career!

HBC Attorney Tim Shannon publishes article on name, image, and likeness in Colorado Lawyer Magazine

Congratulations to HBC sports law and business law attorney Tim Shannon! The July/August issue of Colorado Lawyer magazine features his article on the evolving landscape of the NCAA’s Name, Image, and Likeness (NIL) rules in Colorado. 

In his article, “The State of the NCAA’s Name, Image, and Likeness Rules in Colorado,” Tim unpacks the evolution of NIL rights by tracing its origins, analyzing landmark court cases, explaining the changing attitudes towards athlete compensation, and summarizing the NCAA’s series of ever-growing concessions to student-athletes in response to public criticism of its strict amateurism model. 

Per the article, “in less than a decade, the NCAA evolved from an organization that punished those who took $3.83 worth of free pasta into an organization that allows student-athletes to make millions of dollars from the use of their NILs.” 

The article also examines how the broader field of sports law can be a massive opportunity for Colorado attorneys from a wide range of practice areas. For example, “student-athletes need help from experienced business and tax attorneys to negotiate NIL contracts, manage risks, and minimize tax liabilities. NCAA institutions need to leverage NIL deals to recruit and retain top athletes and coaches without alienating sponsors, alumni, and boosters. NIL collectives, many of which operate as 501(c)(3) organizations, need advice on how to vigorously pursue their missions without impacting their tax-exempt status. The NCAA needs to optimize its business model without running afoul of state and federal antitrust and NIL laws. Businesses need help licensing student-athlete NILs and negotiating marketing deals.”

HBC formally launched its Sports Law practice in 2022 in response to the growing needs of its clients for sports law representation. As a CU Law graduate and former Division 1 baseball player at the University of Minnesota, Tim leverages his business law practice and his own experiences as a student-athlete to advise clients in HBC’s growing sports law practice.

Congrats to you Tim! Thanks for sharing your insights on this highly relevant legal topic with the Colorado Law community!

HBC Attorneys Ryan Robinson and Marianne Luu-Chen Publish Article in June Colorado Magazine

A huge congratulations to HBC attorneys Ryan Robinson and Marianne Luu-Chen for their article in this month’s Colorado Lawyer magazine.

The article, titled ‘Beneficial Ownership Reporting Requirements’ discusses the beneficial ownership reporting requirements imposed by the new US Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) rule that becomes effective on January 1, 2024. It provides key insights and practical guidance for attorneys practicing business and trust and estate law. 

As the article concludes, “the penalties for noncompliance with the final beneficial ownership information (BOI) reporting requirements rule are significant, and reporting companies will need assistance to implement policies and procedures to ensure continuous compliance with the rule. Lawyers practicing business law and trust and estate law should begin thinking about how the rule affects their clients and taking steps to integrate compliance measures.”

Great insights Ryan and Marianne!

https://cl.cobar.org/features/beneficial-ownership-reporting-requirements/

NCAA Transformation Committee: Revamping the NCAA’s Internal Governance Structure

The Sports Law team at HBC is writing a series of articles in response to the NCAA Transformation Committee’s recommendations to modernize DI athletics. This is the third article of the series.

Previously, we looked at the makeup and goals of the NCAA Transformation Committee and the Committee’s plan to improve the physical and mental health of NCAA student-athletes. Today’s post, the third in our series on the Committee and its recent report on modernizing NCAA Division I athletics, focuses on the Committee’s plan to revamp the NCAA’s internal governance structure, including proposed changes that would give student-athletes more control over their own careers and experiences.

NCAA Transformation Committee: Revamping the NCAA’s Internal Governance Structure

In the report, the Committee outlines a new Division I governance structure that would decentralize oversight, allow for quicker, sport-specific decision making, and empower student-athletes to participate in NCAA rulemaking and governance. Here’s our take on each of these changes:

Decentralizing Decision Making

The Committee begins by acknowledging that the NCAA’s existing model of top-down decision making is often too cumbersome to be effective in the ever-changing world of intercollegiate athletics. Under the existing governance structure, most major decisions must be made by a small number of high-ranking NCAA officials, and only after a long period of deliberation. While this model allows the NCAA to have maximum control over key issues, it is often ineffective when many critical decisions must be made in a short period of time.

To make the NCAA nimbler, the Committee argues that, whenever possible, lower-ranking NCAA officials should be empowered to make decisions. According to the Committee, this would allow the NCAA to react to changes more quickly and would free up the NCAA’s brass to focus on only the most important issues.

In this instance, we are strongly in support of the Committee’s recommendations. Too often, the NCAA fails to adapt to changes in a timely manner, which often results in needless confusion and consequences for student-athletes. For example, California passed the “Fair Pay to Play Act” in 2019, making it the first state to allow student-athletes to profit from their name, image, and likeness (NIL) without forfeiting their NCAA eligibility. Despite the passage of this landmark law, the NCAA failed to adopt even an interim NIL policy until 2021, leaving a two-year period of confusion, and lost revenues, for student-athletes.

Sport Specific Governance

In a further effort to make the NCAA more agile, the Committee recommends that, in lieu of the NCAA’s longstanding practice of dictating blanket rules that apply equally to all student-athletes, leaders within each individual sport should be empowered to make rules that apply to only that sport. For example, leaders within Division I football should be allowed to make rules specific to football without impacting the rules that apply to field hockey.

It is hard to believe that the NCAA has resisted this type of internal governance structure thus far, and adopting this recommendation is a no-brainer. In total, there are 24 sports that operate under the umbrella of the NCAA, and the economic, marketing, injury, and recruiting landscapes differ greatly from sport-to-sport. Leveraging the expertise of sport-specific leaders, rather than relying on NCAA generalists, will lead to better governance within each sport, and will allow the NCAA to avoid needless red-tape and act quickly when the need arises.

Giving Student-Athletes a Voice

To give student-athletes more control over their athletic careers, the Committee is calling for increased collaboration on issues related to NCAA governance between member institutions and the various levels of the Student-Athlete Advisory Committee (SAAC). SAAC is an organization of student-athletes that exists at the institutional, conference, and national levels. While SAAC has given student-athletes a way to express their opinions on NCAA issues for years, historically, the true influence of SAAC has been informal and inconsistent.

In the report, the Committee argues that SAAC should be given more influence over NCAA decision-making and that SAAC’s influence should be more formalized. In fact, the Committee collaborated with various levels of SAAC during the creation of the report to give student-athletes a voice on the future of Division I athletics. As a result, the Committee has already endorsed several of SAAC’s recommendations, including increased mental health services and the expansion of SAAC at the conference level.

Giving student-athletes an increased voice on the governance of the NCAA is a long-overdue step, and alone, expanding the influence of SAAC is not enough. The entire NCAA model has been built on the efforts of student-athletes, and as we enter a new era of intercollegiate athletics, it is more important than ever to give student-athletes a voice over their own collegiate careers.

Stay tuned tohttps://www.hbcboulder.com/news-media (orhttps://twitter.com/HBCSportsLaw orhttps://www.linkedin.com/company/hutchinson-black-and-cook-llc/) for the latest in our series on the NCAA’s recommendations.

HBC Supports PBS Broadcast of film “This Is (Not) Who We Are”

Hutchinson Black and Cook is a proud financial supporter of the broadcast of the film “This is (Not) Who We Are,” at 8 pm (MST) tonight on Rocky Mountain PBS. The film explores the gap between Boulder’s self-image and the actual lived experiences—both historical and contemporary—of its Black citizens. HBC is also sponsoring the national PBS broadcast of the film on June 1.

“This is an important film that sheds a critical light on the history and embedded racism in our community, the effects of which people of color continue to experience in Boulder.” said Meghan Hungate, HBC attorney and co-chair of the firm’s Diversity & Inclusion committee.  

Supporting the effort to bring this film to a larger audience is part of HBC’s ongoing effort to create a more equitable and inclusive community in Boulder County through its advocacy work, including changes in law and public policy that address past injustices and discrimination.  In 2021, HBC hosted a series of community panel discussions entitled, “The Roots of Today’s Racial Exclusion in Boulder County and the Road Ahead.”  This film confirms there is much work yet to do.  We hope you tune in to watch it!

Supporting Sexual Assault Survivors by Kimberly Hult

April 2023 marks the official 22nd anniversary of Sexual Assault Awareness Month. For over two decades, Hutchinson Black and Cook has led the charge to protect the rights of survivors in civil and criminal proceedings. 

Since 2002, I have been honored to represent survivors in sexual violence cases. Our clients have bravely used their experiences not only to find recourse through the courts, but also to help transform the ways in which we understand, prevent, and address sexual assaults at schools, at work, and even at home.  At HBC, my colleagues and I are committed to fighting for the best outcomes for our clients, and in many of our cases, our work has directly led to the adoption of new, substantive policies and practices –  especially at schools and in workplaces – to prevent future assaults and create meaningful change.   

Still, sexual violence remains far too common.  It happens in every community, and it affects people of all genders and ages. As a lawyer, while I am contacted by individuals after they have already suffered this trauma, I find that through our work together, our clients have experienced healing as they work with us to obtain legal remedies and accomplish needed change.  We, through their courage, have been able to educate others on how sexual violence need not require force, threats or even physical touch, but may arise in a variety of contexts when assailants engage in intentional sexual contact without consent and how, too often, others turn a blind eye to ongoing threats of sexual violence.  The better we, as a community, understand sexual violence and the need to take action to confront it, the better armed we are to prevent it.

This month HBC is celebrating the work of MESA (Moving to End Sexual Assault), which works to promote sexual assault education, awareness and prevention, while providing critical support to survivors.  Please join me in supporting @MESA and their upcoming fundraiser Canine Classic Fun Run & Walk. Hutchinson Black and Cook is a sponsor for this event, which celebrates and honors the journey of survivors and the efforts to end sexual violence. 

#endingsexualassault #sexualassault #nomore #SAAM #SAAPM

A civil litigator who has worked tirelessly toward her client’s objectives for nearly 30 years, Kimberly Hult understands how to navigate and resolve complex legal matters for her diverse clients. Her clients range from individual sexual assault survivors, personal injury and medical malpractice plaintiffs; to large and small institutions and businesses; and to neighbors and communities embroiled in real property disputes.

NCAA Transformation Committee: Care of Student-Athletes

The Sports Law team at HBC is writing a series of articles in response to the NCAA Transformation Committee’s recommendations to modernize DI athletics. This is the second article of the series.

NCAA Transformation Committee: Care of Student-Athletes
Previously, we looked at the makeup of the NCAA Transformation Committee (“Committee”), its background, and its objectives. Today’s post, the second in our series on the Committee and its recent report on modernizing NCAA Division I athletics, focuses on the Committee’s first objective: improving the physical and mental health of student-athletes.

Supporting the Mental and Physical Health of Student-Athletes
To enhance physical and mental health, the Committee recommends that, as a condition of participating in Division I athletics, institutions must provide specific levels of care to student-athletes. The most noteworthy recommendations include the following:

1.  Cardiac Care Best Practices

The Committee’s recommended cardiac care protocols would ensure that all athletic staff are properly trained on cardiac care and warning signs, and would require student-athletes to undergo a cardiac pre-screening and family history check prior to competing at the Division I level.

Cardiac care has received a lot of attention lately after NFL player Damar Hamlin suffered a cardiac arrest during a nationally televised Monday Night Football game. After millions watched athletic trainers save Hamlin’s life in real-time, it is clear that basic cardiac care is essential to protect the lives and safety of all Division I student-athletes, and there is no excuse for institutions to fail to comply with this proposed requirement.

2.  Interassociation Mental Health Best Practices

The Committee’s recommendations to promote student-athlete mental health include procedures for identifying mental health issues, referring student-athletes to qualified practitioners, conducting mental health screenings before a student-athlete starts their college career, and creating an environment that is supportive of mental well-being throughout Division I athletics.

Survey data shows that mental health is a priority for Division I student-athletes. The combination of collegiate study and high-level athletic competition creates intense stress and time demands on student-athletes, and the NCAA is long overdue on prioritizing these kinds of mental-health initiatives. The adoption of the Committee’s minimum mental-health protocols would be a big step in the right direction for student-athletes, and it is hard to imagine any resistance to those protocols from member institutions.

3.  NCAA Concussion Safety Protocols

In recent years, few issues have been more important to athletes than concussions. The Committee’s recommended concussion protocols would improve and standardize concussion care throughout Division I athletics by requiring student-athletes to undergo pre-screenings, and to follow post-concussion management plans before returning to competition and/or class.

In the fall of 2022, Alana Gee, the widow of former USC linebacker Matthew Gee, filed a lawsuit alleging that the NCAA was responsible for the concussions that led to Matthew’s death in 2018. A similar lawsuit is currently pending against the NCAA for the death of former Grand Valley State University quarterback Cullen Finnerty. Given this landscape and our increased knowledge of the dangers of concussions, the NCAA and its member institutions have an obligation to protect student-athletes. Accordingly, we think the NCAA should, at a bare minimum, adopt the Committee’s recommended concussion protocols.

There is no doubt that requiring Division I institutions to comply with these protocols will increase costs for athletic departments. However, it is long past due that the NCAA formalizes and standardizes policies to improve the overall well-being of student-athletes. We are hopeful that each of these protocols will be adopted in short-order, and without resistance. Further, we hope that these measures are one of many steps that will be taken to improve the lives of student-athletes.

Stay tuned tohttps://www.hbcboulder.com/news-media (orhttps://twitter.com/HBCSportsLaw orhttps://www.linkedin.com/company/hutchinson-black-and-cook-llc/) for the latest in our series on the NCAA’s recommendations.

Breaking Down Johnson v. NCAA: Student Athletes Make a Strong Case to Be Paid as Employees

Overview of the case

On February 15th, the U.S. Court of Appeals for the Third Circuit heard oral arguments in Johnson v. NCAA, a potentially ground-breaking lawsuit brought by former Division I athletes against the NCAA and several member institutions, including Villanova, Duke, and the University of Oregon. Through this lawsuit, the former student-athletes argue that the Fair Labor Standards Act (FLSA) requires the NCAA to classify student-athletes as employees, and to pay student-athletes at least the federal minimum wage for their time.

The Student-Athletes’ Take

In the lawsuit, the student-athletes argue that the NCAA’s control of their time, class schedules, majors, and other key aspects of their educational experience is enough for the student-athletes to be classified as employees that are entitled to minimum wage under the FLSA. The student-athletes also argue that it is unfair for the NCAA to rake in billions of dollars of revenue based on the efforts of the unpaid student-athletes.

The NCAA’s Take

In response, the NCAA argues that athletic scholarships are tantamount to compensation given to student-athletes in exchange for their time and services, and that student-athletes compete without the expectation of payment. The NCAA also argues that paying student-athletes would disrupt the NCAA’s model and could lead to major consequences for member institutions, including sport and budget cuts.

The End of the NCAA?

The implications of this decision for the NCAA and its member institutions are massive. If student-athletes are deemed to be employees under the FLSA, the amateurism model that is the bedrock of the NCAA will end, and the operating costs of every athletics department will sky-rocket. While some of the larger, brand-name schools could afford to pay its athletes, many smaller programs already struggle to stay afloat financially. In short, this decision could drive a bigger wedge between the largest and the smallest Division I programs and could lead to the end of the NCAA as we know it.

It's Hard Not to Side with the Student-Athletes

Unfortunately for the NCAA, the court of public opinion favors the student-athletes’ arguments. The time demands on student-athletes are substantial, and institutions and coaches have control over almost every aspect of the student-athlete college experience. Further, it’s no secret that the NCAA brings in billions of dollars of revenue from the efforts of student-athletes. Sure, there are NIL opportunities for some student-athletes, but such compensation only recognizes the marketability of individuals, rather than the work and effort that all student-athletes contribute to the NCAA and its member institutions.

Complicating Factors & Final Thoughts

More than just the payment of the minimum wage is at stake in this case. Consider these factors -- employees under FLSA could unionize and enjoy legal protection from retaliation. Additionally, they could strike and refuse to play. Under FLSA, employees are not capped at minimum wage. What’s to stop D1 schools from offering 5-star recruits massive deals, protected under the FLSA?

At HBC, we strive to promote student-athletes and their interests and believe that a ruling against the NCAA in this case would be a huge step in the right direction. As the NCAA’s amateurism model continues to be publicly scrutinized, it has become harder for the NCAA to defend and justify its practices. Overall, student-athletes have been denied rights and financial rewards for years, all to the benefit of the NCAA.

As the NCAA’s amateurism model continues to take hits from legal challenges like the Johnson case and the proliferation of the NIL marketplace, we believe that a period of monumental change to college sports has just begun.

We will be following this case and the other ongoing changes to the NCAA closely, so stay tuned to https://www.hbcboulder.com/news-media (or https://twitter.com/HBCSportsLaw or https://www.linkedin.com/company/hutchinson-black-and-cook-llc/) for updates.