Nonprofit Law Prof Blog

Reporters in Action: In-Depth Investigation Into NFL Player Charities

Jason Wolf at the Arizona Republic led a six-month investigation that led to a five-part story about nonprofits founded by NFL players who have won the coveted Walter Payton NFL Man of the Year award. The stories are behind pay walls (at both the Arizona Republic and USA Today), but at least as of today you can read the follow-up Arizona Republic story Reddit had questions about our NFL charity investigation. Here are key answers. without a subscription. Here are some highlights:

• "The investigation found most athletes’ nonprofits largely serve as fundraising vehicles — they collect money to give to existing nonprofits like hospitals or food banks that perform programmatic activities. But some spend less than half of the donations they receive on charity, with the rest paying for overhead."

• "NFL players often start nonprofits without having the slightest idea what they’re doing, and without considering partnering with established organizations."

• "[N]either the NFL nor the NFLPA, which presents weekly and annual awards for community service, match their promotional efforts when it comes to educating players on the nonprofit sector."

Lloyd Mayer

Colgate University Announces $25 Million Gift from Alumni

Colgate University in Hamilton, New York, has announced a $25 million gift from alumni Chase Carey (’76), his wife, Wendy, and their children Steve (’12) and Tara (’13) in support of renovating the Reid Athletic Center and other initiatives.

The gift includes $1 million in support of the university’s club rugby program and $1 million for the university’s Center for Freedom and Western Civilization. The bulk of the gift -- $23 million -- will be used to renovate the university's athletic center, which was first built in 1959. Renovations will include a performance arena in a newly constructed south wing that will serve as the home for Colgate’s men’s and women’s basketball and volleyball teams with dedicated locker rooms, lounges, and film rooms. Once complete, the new 35,000 square foot arena will include additional sport office suites; locker rooms for softball, field hockey, golf, and men’s and women’s tennis; visitor locker rooms; a new football suite; and a health and performance center that integrates the university’s sports medicine, strength and conditioning, sports nutrition, and mental health and performance programs. 

In a press release issued earlier this week, Colgate stated that 

Chase Carey has made significant contributions to Colgate during the last several decades, resulting in gifts to the University of more than $35 million. Carey was an active member of the leadership group that helped construct the Class of 1965 Arena and also played an instrumental role in establishing the Trudy Fitness Center, which bears his mother’s name. He and Wendy are members of the Campaign Leadership Council.

The release quoted Mr. Carey as stating:

Athletics has always been a source of pride, energy, and school spirit that the Colgate community can share in. Our student-athletes make a commitment to pursue excellence, and as part of that process, they learn lessons about teamwork and determination that are incredibly important in life. As a world-class university with world-class student-athletes, we want to build a world-class facility that will help them reach and exceed their goals.

Congratulations to Colgate -- and to the Carey family.

Vaughn E. James, Judge Robert H. Bean Professor, Texas Tech University School of Law

 

Varsity Blues On Trial

In keeping with yesterday's discussion of college athletics, yesterday, an article about William Singer and the Varsity Blues admission scandal came up in my Twitter feed yesterday. And, while I haven't really thought about Singer in a year or two, it's worth revisiting a little.

The news hook is that the prosecution rested its case against Gamal Abdelaziz, who is accused of paying $300,000 to get his daughter into USC as an alleged basketball player, and John Wilson, who paid a total of $1.2 million to get his three kids into USC, Stanford, and Harvard as athletes. These are the first two parents to go to trial, though 33 of the 40 parents charged have pleaded guilty.

The news from yesterday has two main takeaways. First, a forensic accountant testified that Singer personally made nearly $28 million in the scheme.

Continue reading

Student-Athlete? Or Employee?

In a memorandum issued today, Jennifer A. Abruzzo, General Counsel for the National Labor Relations Board, reinstated the NLRB's 2017 determination that some college athletes are employees and, as such, have certain statutory rights under the National Labor Relations Act.

Not all college athletes are employees, but Abruzzo clarified that to the extent they perform services for a university and operate under the control of the university, and especially if they receive compensation, they qualify as employees. As employees, they're protected when they speak out about their conditions of employment and have the right to self-organize, whether or not the Board certifies a bargaining unit.

Moreover, the NLRB may pursue violations where a university misclassifies an employee-athlete as a "student-athlete, which, she says, risks chilling their protected speech.

The memorandum ends with this:

In sum, it is my position that the scholarship football players at issue in Northwestern University, and similarly situated Players at Academic Institutions, are employees under the Act. I fully expect that this memo will notify the public, especially Players at Academic Institutions, colleges and universities, athletic conferences, and the NCAA, that I will be taking that legal position in future investigations and litigation under the Act. In addition, it notifies them that I will also consider pursuing a misclassification violation.

Samuel D. Brunson

Photo by Dave Adamson on Unsplash

Boston Celtics and Celtics Shamrock Foundation Commit $25 million for Racial Justice Initiatives

Organizations making pledges and commitments for social causes continue to be in the news. The latest to jump in: the Boston Celtics and Boston Celtics Shamrock Foundation have announced that the two organizations are making a ten-year, $25 million commitment to address racial injustice and inequities in the greater Boston area.

This commitment is itself part of a larger effort announced by the National Basketball Association in August. The Celtics' initiative will be termed The Boston Celtics United for Social Justice. According to today's Philanthropy News Digest, the initiative

includes $20 million in cash and $5 million in media and in-kind assets in support of both the NBA's efforts and local programs, with a focus on six areas identified by the organization in discussions with community leaders and players: equity in education, economic opportunity and empowerment, equity in health care, criminal justice and law enforcement, breaking down barriers and building bridges between communities, and voting and civic engagement.  

The Digest continues:

Planned projects under the initiative include creating an early-education center for low-income families; providing pro bono services to minority-owned businesses; assisting juvenile offenders through workforce development and academic completion opportunities; expanding The Playbook Initiative, the team's bias-prevention curriculum; and promoting voter registration and the importance of voting.

In discussing the initiative, Celtics forward, Jaylen Brown, stated, "Our goal is to have a direct impact now. We don't need to pacify the situation with empty gestures. We need to hold ourselves, the Celtics organization, and the City of Boston accountable. Monetary commitment is a great first step, but we need to commit to this process by creating a balance of short- and long-term change. The time is now."

I fervently agree.

Vaughn E. James 

The NCAA, Antitrust, and Paying Student-Athletes for Use of Names, Images, and Likenesses

There have been two recent major developments with respect to the NCAA and student-athletes.

First, the NCAA's Board of Governors announced that it supports "rule changes to allow student-athletes to receive compensation for third-party endorsements both related to and separate from athletics" and directed its divisions to begin developing such rules. This change in position is driven primarily by state and federal legislative efforts (see for example, this recently enacted California law)  to require the NCAA to permit such compensation. At the same time, the Board stated that any such rules must follow certain guidelines, specifically:

• Ensuring student-athletes are treated similarly to nonathlete students unless a compelling reason exists to differentiate. 
• Maintaining the priorities of education and the collegiate experience to provide opportunities for student-athlete success. 
• Ensuring rules are transparent, focused and enforceable, and facilitating fair and balanced competition. 
• Making clear the distinction between collegiate and professional opportunities. 
• Making clear that compensation for athletics performance or participation is impermissible. 
• Reaffirming that student-athletes are students first and not employees of the university. 
• Enhancing principles of diversity, inclusion and gender equity. 
• Protecting the recruiting environment and prohibiting inducements to select, remain at or transfer to a specific institution.

Second, the NCAA lost its appeal of a federal district court decision that enjoined the NCAA from enforcing its rules restricting the education-related benefits its members may offer students who play Football Bowl Subdivision football and Division 1 basketball. In In re NCAA Grant-in-Aid Cap Antitrust Litigation, the U.S. Court of Appeals for the Ninth Circuit held that the rules were unlawful restraints on trade under section 1 of the Sherman Act (15 U.S.C. section 1). This decision follows the NCAA's previous loss at the Ninth Circuit in O'Bannon v. NCAA, 802 F.3d 1049 (2015).

What exactly this developments will mean for student-athletes, college athletics, and the NCAA remains to be seen. For more coverage, see Marc Edelman at Forbes, Politico, Sports Illustrated, and The Wall Street Journal.

Lloyd Mayer

Soccer, Rock Climbing, and Jazz, Oh My!

I'm excited to be here! (Thanks to the Nonprofit Law Prof Blog folks for inviting me!)

Because I wasn't told any differently, I thought I'd take today to briefly introduce myself. I'll get to more substantive blogging tomorrow.

I've been teaching at Loyola University Chicago for a decade now. In addition to here, I do some tax blogging at the Surly Subgroup and some religious/Mormon/tax blogging at By Common Consent. I'm broadly interest in tax and nonprofit issues, and am really interested in questions of the taxation of religious stuff.

My outside-of-work time largely consists of two things: shuttling kids to (and sometimes participating in) an insane number of extracurricular activities and listening to jazz. (I'd like it to involve a little more saxophone playing, but you do what you can.) And both of these things implicate tax-exempt organizations and nonprofits, and may provide me with future blogging fodder.

For instance: today after work, I'll take a bus to pick my daughter up from school. Then we'll take the train to First Ascent. I'll climb and work out while she (and my other daughter) practice with their climbing teams. (Side note: did you know that competitive rock climbing was a thing? Me either, until my kids started doing it. But it'll be in the 2020 Olympics.) Competitive rock climbing is governed by USA Climbing, a 501(c)(3) organization.

I also coach my son's soccer team, through AYSO. (My sister is still incredulous, probably rightfully, since I quit soccer when I was 8. Still, I know more than my son and his cohort, and by coaching, I get to choose when we hold practice, which is kind of critical given my family's schedule.) Like USA Climbing, AYSO is a 501(c)(3) exempt organization.

It makes sense, of course: section 501(c)(3) explicitly allows an exemption for organizations that "foster national or international amateur sports competition." I'll admit, though, that I haven't yet carefully thought through this exemption. When I've thought about it, the two organizations that first come to mind are the NCAA and the US Olympic Committee. My suspicion is that both of these organizations are substantially different, though, from USA Climbing and AYSO. I'll be interested in casually exploring the amateur athletics exemption in future posts.

On the jazz front, I've recently become aware of Giant Step Arts, a nonprofit focused on presenting and recording live jazz. I know basically nothing about Giant Step Arts, though several of the projects it has recorded have made for great listening. I plan on looking at it, its mission, and its tax-exempt status (I think, assuming the linked organization is the same as the jazz nonprofit).

Until those posts, though, thanks for having me, and I look forward to my time on this blog!

Samuel D. Brunson

Road Tripping to UPMIFA: Professors' Corner

The ABA's Real Property, Trust and Estate Section has a series called "Professors' Corner," which puts on some really great free webinars for ABA members (sorry - no CLE, but what do you want for free?) on real estate and T&E topics from both academic and practitioner view points.   This Wednesday I was in the midst of a road trip, during which I dialed in to the latest in the series on an update to UPMIFA.   (Don't worry, I pulled over to a Tim Horton's to dial in.   And get coffee.  Because road trip.)

The webinar featured Susan Gary from UOregon and Terry Knowles, the Assistant Director of Charitable Trusts in the New Hampshire Attorney General's office.    Many of you may know that Susan was the Reporter for UPMIFA with the Uniform Law Commission, and that Terry was an advisor (I believe on behalf of NASCO but I could be wrong on that.)   In any event, it was really interesting to hear both of them talk about what's happened in the nine years (has it really been nine years!!!) since UPMIFA was passed by the ULC.   

I highly recommend listening to the whole webinar (I think that it will archive soon so ABA should be able to access it) but here are three big picture take aways:

• FIGHT!  The lawyers and accountants continue to use different definitions when dealing with endowed funds, which causes confusion all over the place.   Susan talked about how the accountants have defaulted to having their clients use historic dollar value  to define restricted assets, even thought that isn't required anywhere and actually sort of undercuts what UPMIFA is trying to do.    Often, if there is professional advice to small nonprofits, it's from the accounting folks and not the legal folks, so this problem really has cause some issues.  I was happy to hear from Susan that FASB is looking to revise this, and that it has some draft rules out for comment.
• UNSAFE HARBORS.   As some of you may know, the original UPMIFA draft from the ULC has a provisions that says that endowment spending in excess of 7% is subject to a rebuttable presumption of unreasonableness.   Many states didn't adopt - it was interesting to hear that one of the professed rationales for not adopting the 7% rules was the concern that it would cause a safe harbor for 6.99% and under.  It was also intersting to hear Terry talk about what her office sees as overcoming that presumption - "we needed it because our budget is short" is insufficient!
• WHAT IS THIS IPS OF WHICH YOU SPEAK?   Again, it was  interesting to hear Terry talk about what her office needs to do when evaluating spending decisions from endowments.     If an endowment is supposed to be perpetual, it really is important to take into account inflation as a factor for consideration, even if there is no magic in how you do it exactly.  It seems like the AGs are really looking for a thoughtful process and adherence to an investment policy statement. 

In any event, I do recommend the webinar to anyone interested in the endowment spending issue (which seems to be getting some attention from Congress and otherwise as of late - I've linked to Brian Galle's thought-provoking paper on endowment spending) and I really recommend the webinar if you find yourself with lots of time on I-90.

Safe summer travels, all.

EWW

Why Are The US Olympic Committee [College Sports; Nonprofit Hospitals] Tax-Exempt?

In a recent column in Forbes, Howard Gleckman asked why the US Olympic Committee is tax-exempt.  After all, he notes, "The law says tax exempt status is granted to groups that 'foster national or international amateur sports competition.' But do the hyper-marketed modern games even remotely fit the ideal of amateur sports?"  A bit later, he follows with the observation that  "By almost any standard, [the USOC] is a commercial enterprise. It exists primarily to help organize a bi-annual made-for-TV entertainment extravaganza.  Yes, it provides some support for athletes (though surprisingly little). But its real business is marketing itself and playing its part in a two-week orgy of athletic commercialization."

Welcome, Howard, to the modern world of charitable tax-exemption.  Substitute "college sports" in the quotations above and you would have an equally accurate description.  And it would hardly be inaccurate to say "By almost any standard, private nonprofit hospitals are commercial enterprises." (And at least some research universities may be heading in that direction).  So what might we do about the commercialization of the modern charity?

One thing we could do is take the "primary purpose" rule seriously and apply it with an honest recognition of the way certain organizations operate in the modern world.  A charity is supposed to engage in activities that "primarily" futher a charitable purpose.   Does anyone really believe that a typical private nonprofit hospital "primarily" pursues a charitable purpose?  I certainly don't - private nonprofit hospitals' primary mission is to provide the highest-quality health care they can for a fee.  That's an admirable mission, one I heartily support, and one that our nonprofit hospitals mostly excel at; but it is in no way, shape or form "charitable."   I could say the same thing about the Olympics or college athletics - these activities, whatever their origins, are hardly about "amateur" athletics any more.  The Olympics are a showcase for pros at their sports (men's hockey, anyone?) and big-time college athletics (Division I men's basketball and FBS football) are nothing more than minor leagues for the pros.

I don't know why it is so hard for tax policy to recognize that activities change over time, and things that may once have been charitable might not be today.  Nonprofit hospitals were unquestionably charities in the 1800's, when they were essentially homeless shelters staffed by religious volunteers.  That model no longer exists.  The Olympics were at one time truly about amateur athletics, just as college sports at the enactment of the UBIT in 1950 mostly involved real student-athletes.   No longer.  Things change, but we refuse as a policy matter to re-examine charitable exemptions in light of changed circumstances.  From time to time there have been proposals to require charities to "re-qualify" for exemption every so often (every 5 years, or 7 years or 10 years, for example).  But these proposals won't "get it right" if we don't update our views about whether certain activities are charitable or not.

So, Howard, I have an answer to your question: analytical inertia.  Our views of charitable activities seem frozen in time.  Until we get over it, commercial activities will continue to dominate certain "charities" that are not charities at all.

John Colombo

 

 

Eighth Circuit Nixes NFL Retirees' Benefits Lawsuit

Are you ready for some football?  I may not have any football to share or play, but I bring some news of the sport... 

The U.S. Court of Appeals for the Eighth Circuit on Monday threw out a class action filed by National Football League retirees who claimed they were squeezed out of a deal negotiated amid the 2011 player lockout.  The court affirmed a lower court's dismissal, finding that the retirees failed to show they could have negotiated a deal better than the $900 million in additional retiree benefits the agreement utimately yielded. 

The National Law Journal provides some details about the suit:

The plaintiffs, a group of 28 retired players led by former  Minnesota Viking Carl Eller, sued the National Football League Players  Association in 2011. The lawsuit also named players union members including New  England Patriots quarterback Tom Brady.

Filed in Minnesota district court, the class action claimed  that the union, in reaching a collective bargaining agreement with the NFL two  years ago, intentionally interfered with the retirees’ ability to negotiate with  the NFL, which led to fewer retirement benefits than they could have gotten had  they bargained separately.

In March 2011, the inability of the NFL and the union to reach  an agreement on pay caps and other issues resulted in a lockout, which was  lifted on July 25 of that year when the parties reached a 10-year  deal.

Writing for the appeals panel, Judge James Loken wrote that "the retired players had no reasonable expectation of a separate,  prospective contractual relation with the NFL that would provide them greater  player benefits than the NFL agreed to provide in the new CBA."

VEJ

 

 

The Tax Status of the NFL: Why Reporters Ought Not to Write About Nonprofits Until They Talk To An Expert

I spend a fair amount of my working life talking with reporters about tax exemption issues.  I do this not because I think I'll get quoted correctly (I almost never do; nuance, which is part of the stock in trade of an academic, is almost always lost in the translation), nor because I think I'll get famous from the occasional quote in a story, but rather because I hope to influence at the margin the competence of the stories that are written.  And I will say that most of the time (not nearly all), the reporters I talk to write stories that by and large "get it right."  I hope some of that is attributable to their discussions with me, but I think it is more attributable to the fact that reporters who seek out experts in the areas they are writing stories on really are trying to do a good job, and that tends to get reflected in the accuracy of what they write.

Contrast this to stories like this one in the Atlanta Journal Constitution, about the tax-exempt status of the NFL.  Most of the basic facts are correct - the NFL is, in fact, a tax-exempt entity under 501(c)(6).  But the reporter who wrote this story makes no effort to place this status in context, and therefore leaves the impression that this is a huge scandal.  I hate stories like this. 

I've talked many times with sports reporters across the country about this issue, and I invariably find that the reporter in question starts with no understanding about the differences between 501(c)(6) status and "charitable" status under 501(c)(3).  Most of them don't realize that trade associations don't benefit from the Section 170 charitable contributions deduction; to them, "exempt" means the same thing whether you are the NFL or the Red Cross.  When reporters leave this critical difference out, readers come away with the same confused impression: that the NFL enjoys the same tax benefits as the Salavation Army or the local church.  It doesn't.

Second, the reporters invariably fail to distinguish the NFL league entity from the individual teams.  The individual teams are taxpaying, for-profit enterprises (the Green Bay Packers do have a unique ownership structure, in which the corporation is owned by citizens of Green Bay, but it is organized as a for-profit corporation under Wisconsin law).  They are not owned by the league.  Again, notice that the quote used by the reporter from Tom Coburn talks about the value of the individual teams, juxtaposed against the very vague statement that "many" of the NFL's "subsidiaries and teams" are tax-paying entities.  This is classic obfuscation, in which the reader is left with the impression that the NFL is a monolithic nonprofit, classified in the same way as the Salvation Army, with teams that may themselves be exempt.

Finally, the story doesn't point out that 501(c)(6) status doesn't get you very much in the tax world.   In most states (actually, I think all), trade associations aren't considered charities, and their property would not be tax-exempt under general state property tax exemption rules.  So the quote in the story about the NFL having "$1 billion in assets" again leaves the mis-impression that somehow these assets are escaping taxation.  Even the value of the income tax exemption is questionable.  If you look at the NFL's 2011 Form 990, you will see that its expenses for the year exceeded its revenue.  While I can't conduct an audit from afar, it sure looks like virtually everything reported by the NFL as an expense would be deductible if the NFL were a taxpaying entity.  The result: even if the NFL weren't tax-exempt, it probably could easily arrange its affairs to pay no income tax.

Now that's not to say that exempt status is worthless; it must be worth something to the NFL, or else it would have abandoned that status, like Major League Baseball did years ago.  But this whole "shock and awe" tinge to the story makes me want to throw up.  In the overall policy world of exempt organizations, I just don't find the NFL's "trade association" status all that bothersome.   After all, all sorts of local, state and even national business organizations qualify under that same status (e.g., the American Bar Association; the American Medical Association, etc.).  There's plenty of stuff in the exempt organizations world to get worked up over (political expenditures by (c)(4)'s, for example); the NFL's status just doesn't hit my hot button.

JDC

College Sports

Yesterday's Chronicle of Higher Educationreports that a study commissioned by the Knight Commission on Intercollegiate Athletics has determined that "[a]thelitic programs in the Football Bowl Subdivision spent on athletes at a rate that far outpaced academic spending per student during a recent five-year period."  One extreme example at the athletic conference level found that one league, the Southeastern Conference, reported academic spending of  $13,471 per student in 2009 while athletic spending per athlete was $156,833.  These results will no doubt inflame Senator Grassley and will add to the public's growing the public's growing skepticism about whether revenues from college athletic programs ought to be tax exempt because of their close connection to education.

TAK

Say it Ain't So! MLB Players Association Files Grievance to Stop Mandatory Charitable Contributions

Baseball season starts soon.  I live in Florida -- in St. Petersburg, to be exact -- where baseball is not at all appreciated.  St. Pete, for example, has the worst baseball stadium in the whole world.  Its dark and dank with artificial turf, just awful.  Like playing baseball in an old, poorly lit basketball arena.  People in Florida don't appreciate a warm day at the ballpark like they do in places like Pittsburgh and Chicago.  Ah yes, the wafting smell of hotdogs, brats, and cotton candy in the stands.  I suppose I understand why, but there are ways to provide shade even at outdoor stadiums in Florida.  Fortunately, I will be spending some time in Pittsburgh this summer -- the team there ain't that good, but they have a terrific stadium and there are always good seats. 

But I digress.  On Friday, the major league baseball association filed a grievance alleging that major league teams are acting unfairly when they insert clauses in ballplayers' contracts requiring that the players contribute a certain percentage of their salaries to team affiliated charities.  The players' association website has information and press releases on just about all the great things ball players do, including volunteer service and pharmaceutical commericals (not really), but strangely no mention of the grievance.  I guess they prefer not to publicize this part of their community spirit.  To get an idea of what's going on, see this Newsday article.  Here is a teaser:

On Friday, a rare day without a WBC game during the tournament's 19-day run, the players association filed a grievance regarding, of all things, the inclusion of designated charity contributions in players' contracts. What the union wants from a third-party arbitrator, should the grievance get that far in the process, is money returned to the players who already have made such donations.  The Mets are one of 22 teams identified that have utilized this practice, according to the union's notice of grievance to central baseball. The others are Arizona, Atlanta, Baltimore, the Cubs, Cincinnati, Cleveland, Colorado, Detroit, Florida, Houston, the Angels and Dodgers, Milwaukee, Philadelphia, Pittsburgh, San Diego, San Francisco, Seattle, Tampa Bay, Texas and Toronto.  It's a growing trend in baseball: When free agents sign with teams, they're essentially required to donate a percentage of their salary to a charity "associated or affiliated with the Club," to use the union's wording.

I guess I am all for "freedom of giving" and don't like the idea of forced contributions.  I would side with the teams, nevertheless, if the clauses merely required players to give to a charity of their own selection.  Why should the team get to select the charity?  On the other hand, these are not really "mandatory" charitable contributions.  A player can always turn down the contract -- but who would do such a foolish thing, give up a major league baseball career over a charitable contribution dispute.  MLB is a buyer's market.  Only a few players are so rare that they cannot be replaced by someone else laboring away in the minor leagues -- and thus can demand the removal of the clause.  So maybe the charitable contribution clause is a contract of adhesion after all. 

dkj