A VIEW FROM ABOVE:

Drafting Policies Relating to the Use of Drones

Brian J. Humke Nyemaster Goode, P.C.

1416 Buckeye Avenue, Suite 200 Ames, Iowa 50010

(515) 956-3911 bjh@nyemaster.com

What are drones? “Unmanned Aircraft Systems” (UAS)

Common civilian uses: ◦ Agriculture ◦ Construction and maintenance ◦ Law enforcement ◦ Search and rescue ◦ Education ◦ Media Coverage ◦ Arts and Entertainment

Federal Aviation Administration (FAA)

FAA responsible for safe and efficient airspace regulation

Several classifications of airspace based on: Altitude Proximity to airports Airport traffic and capabilities

Modifications will need to be made to adapt to

drone use

Current Federal Law Commercial use

Current methods of obtaining permission

from FAA to use drone: Special Airworthiness Certificate

Obtain drone type and airworthiness certificate

Petition for Exemption with Civil Certificate of Waiver or

Authorization (Section 333)

Recreational Use FAA’s Interpretation of the Special Rule for Model Aircraft

requirements: ◦ Strictly for hobby/recreational use

◦ Operated in accordance with a community based set of safety

guidelines and within the programming of a nationwide community-based organization ◦ Limited to not more than 55 pounds unless otherwise certified

by a program administered by a community-based organization ◦ Operated in a manner that does not interfere with and gives

way to any manned aircraft ◦ when flown within 5 miles of an airport, the operator of the

aircraft provides the airport operator and the airport air traffic control facility (if available) with prior notice of the operation

FAA Sanctions

November 2014: $10,000 fine to photographer for recklessly or carelessly operating drone being flown on the University of Virginia campus.

Restricted Airspace

◦ Stadium must have seating capacity of 30,000+ and host a regular or post-season major league baseball, NFL or NCAA Division I football game is occurring.

◦ FAA classifies airspace above certain stadiums as “national defense airspace”

Proposed Federal Rules Commercial Operation

Must weigh less than 55 lbs. Must remain within the line of sight

of the operator or visual observer. May not operate over any persons

not directly involved in the operation. Daylight-only operations. Must yield right-of-way to other

aircraft. First-person view camera cannot

satisfy “see-and-avoid” requirement but can be used as long as requirement is satisfied in other ways.

Maximum airspeed of 100 mph (87 knots).

Maximum altitude of 500 feet above ground level.

Minimum weather visibility of 3 miles from control station.

No operations are allowed in Class A (18,000 feet & above) airspace.

Operations in Class B, C, D and E airspace are allowed with the required permission (Operations in Class G airspace are allowed without permission).

No person may act as an operator or controller for more than one unmanned aircraft operation at one time.

No operations from a moving vehicle or aircraft, except from a watercraft on the water.

Requires preflight inspection by the operator.

No careless or reckless operations.

Pass an initial aeronautical knowledge test and be vetted by the Transportation Security Administration.

Obtain an unmanned aircraft operator certificate.

Must make the drone available for inspection upon FAA request.

Report any accidents causing property damage or injury.

Recreational Drone Operators

State Laws

As of June 9, 2015, 44 states have considered

legislation related to drones

26 states have passed legislation in some form relating to drones or their use:

Others adopted resolutions or are conducting studies related to drone use

•Alaska •Arkansas •Florida •Hawaii •Idaho •Illinois •Indiana •Iowa •Louisiana •Maryland •Michigan •Mississippi •Montana •Nevada

•New Hampshire •North Carolina •North Dakota •Ohio •Oregon •Tennessee •Texas •Utah •Virginia •West Virginia •Wisconsin

Common Issues Addressed in State Legislation

Defining the technology

Use by law enforcement and other state governmental agencies

Use by general public

Protection of individual privacy

Applicable Local Ordinances

It is important to consult with officials from your city and/or county concerning any local laws or ordinances may affect the use of drones.

State Activity Associations with Policies Relating to Drone Use

As of the date of submission of this presentation, it appears that fifteen state high school activity associations have established

policies or have issued interpretations relating to the use of drones:

Alabama Delaware Florida Illinois Kansas Kentucky Michigan

Missouri Nebraska New Mexico New York North Carolina Ohio South Dakota Washington

Drone Use at Events What Rules Apply?

Is the use of a drone by a school or other entity to video an event considered commercial or recreational use?

Current rules are somewhat vague and confusing

Inherent Risks

Danger to

birds and other wildlife

Malfunction

or pilot error may cause personal injury or property damage

Operation could interfere with other aircrafts

Use to facilitate criminal activities

Invasion of Privacy

Flying over private property

Videos and/or pictures of student participants or spectators

Protection of Property Rights Rights associated with

the real estate or property hosting event

Rights relating to the event itself (i.e. media/advertising rights) Liability

Who are they going to sue?

Availability of insurance or coverage by existing insurance policy

Policy Considerations for State Activity Associations

What events or properties will the policy apply to?

State association events Regular season contests Indoor/Outdoor Use at practice/rehearsal by member schools

Options for restrictions concerning area of operation:

Above playing surface Over spectators, participants or officials Impose a geographic boundary or “no fly zone” around venue Total ban of usage

Possible exemptions? Media organizations that

have relationship with Association, i.e. NFHS Network or local media partners

Student or booster organizations

Any person or organization approved by Executive Director or designee

Terms of Use

Registration and supervision

Training/Education requirements

Insurance

Broadcast rights

Responsibility and Enforcement

State Associations

Host schools

Officials

Effective Methods for Enforcement

Jamming signal is illegal

Identifying operator/owner is difficult

Operator may have no relation to venue, school, or participants

Lee Green, J.D. Legal Issues Related to Use of Drones in High School Sports, National

Federation of High School Associations, November 21, 2014.

“Operators should be provided by schools with the “flight training” offered by UAS sellers, should be required to practice extensively to ensure proficiency in using the technology, should avoid flying the drones directly over or close to crowds at games, and should strictly refrain from any sort of horseplay or tomfoolery while operating UAS.”

Available Resources 1. FAA Website 2. KNOWBEFOREYOUFLY.ORG 3. NoFlyZone.org 4. Smartphone Apps 5. Articles and sources

referenced in bibliography

*It is important to note that as the laws and available information concerning this topic is changing so rapidly,

the literature can become outdated quickly.

Smartphone Apps

FAA’s “B4UFly”

“AirMap”

“RCFlyMaps”, available on

iTunes

Any Questions? Thank you for your time.

Brian J. Humke Nyemaster Goode, P.C.

1416 Buckeye Avenue, Suite 200 Ames, Iowa 50010

(515) 956-3911 bjh@nyemaster.com

Bibliography and Additional Resources: 1. http://www.faa.gov/regulations_policies/rulemaking/recently_published/ 2. Richard W. Tast, Unmanned Aerial Systems: Domestic Statutory Issues, 93 Neb. L. Rev. 773, 794 (2015). Available at: http://digitalcommons.unl.edu/nlr/vol93/iss3/7 3. National Conference of State Legislatures, http://www.ncsl.org/ 4. Gregory S. McNeal, FAA Updates Rules to Prohibit Drone Flights Over Stadiums, Forbes, October 31, 2014. 5. Gregory McNeal, Drones and Aerial Surveillance: Considerations for Legislators, Pepperdine University School of Law, November 2014. 6. Gregory S. McNeal, Law Professor & Pilot Create A Free Webapp To Help Drone Operators Comply With Laws, April 30, 2015; http://gsmcneal.com/2015/04/30/law-professor-pilot-create-a-free-webapp-to-help-drone-operators-comply-with-laws/ 7. Federal Aviation Administration, Operation and Certification of Small Unmanned Aircraft Systems, FAA-2015-0150 10 (2015) https://www.faa.gov/regulations_policies/rulemaking/recently_published/media/2120-AJ60_NPRM_2-15-2015_joint_signature.pdf 8. Federal Aviation Administration, Interpretation of the Special Rule for Model Aircraft (2014), https://www.faa.gov/uas/media/model_aircraft_spec_rule.pdf. 9. Richard Weeks, Is There a Drone in Your District’s Future?, School Business Affairs, Association fo School Business Professionals, March 2015. 10. Huerta v. Pirker, 2014 WL 8095629, NTSB ORDER NO. EA-5730 (2014). 11. Lee Green, J.D. Legal Issues Related to Use of Drones in High School Sports, National Federation of High School Associations, November 21, 2014. 12. Jami Frankenberry, Game of Drones, Referee magazine, July 2015, p. 72-73. 13. Jeffrey Molz, Drones Emerging as Security Threat at Domestic Sporting Events, Athletic Business, January 2015. 14. Julian Tackett and Chad Collins, The FAA and Drones at Sporting Events, presented on April 17, 2014, 2015 NFHS Legal Meeting, Indinapolis, Indiana, April 17, 2015.

15. I wish to acknowledge the invaluable contributions of Eric N. Fischer, Clerk, Nyemaster Goode, P.C. and Timothy Schuster, Legal Intern, National Federation of State High School Associations.

The Legal Impetus to the Changing Culture of Contact Sports

Rex Schultze Perry, Guthery, Haase & Gessford, P.C., L.L.O.

The Hit!!!!

Contributing Factors of the Duty of Care: • State statutes • Jurisdictional case law • Standards and guidelines released by the NFHS • Standards and guidelines released by state athletic associations • Current widespread concussion protocols, and advances in

concussion recognition and treatment science.

Other influences cited in the case law: • The Zurich Statement-Consensus statement on Concussion in

Sport. • CDC Heads-Up concussion recognition training certification

program for coaches

Generalized summary of the duty of care:

• “ A board of education, its employees, agents and organized athletic councils must exercise ordinary, reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassured, concealed or unreasonably increased risks.”

Benitez v. New York City Bd. Of Educ., 73 N.Y. 2d 650, 656 (1989).

But don’t athletes assume the obvious risks of the sports they play?

• Generally yes, athletes assume the normal or obvious risks of participating in the specific sport they play.

• “Players who voluntarily join in extracurricular

interscholastic sorts assume the risks to which their roles expose them but not risks which are unreasonably increased or concealed.”

Benitez v. New York City Bd. Of Educ., 73 N.Y. 2d 650, 658 (1989).

Common approaches and theories in Concussion litigation:

• Tort Claim • Failure to provide safe and adequate equipment • Coach’s failure to recognize concussion symptoms • Failure to implement return to play procedures • Failure to have or follow emergency procedure and get immediate

medical attention for concussed athletes. • Failure to supervise games or practices • Failure to pass along critical medical information • Failure to properly match competitors

• §1983- State created danger theory and violation of 14th amendment substantive due process rights.

• Misuse of state power • Failure to train

Tort Claims • The school, employee, district or athletic association owed the

student athlete a duty of care • En loco parentis • Special relationship with student athletes

(duty to act with ordinary reasonable care towards student in need).

• State actor failed to uphold that duty • Failed to:

• Adequately instruct athletes • Provide adequate and proper equipment • Reasonably match participants • Adequately supervise athletic events • Take appropriate measures to prevent aggravation of injury after it occurs.

• That failure of the duty was the proximate of the injury • Student athlete suffered an actual injury.

§1983 Civil Rights Claims State Created Danger

Misuse of State Power Failure to Train

• Harm caused by state was foreseeable and fairly direct.

• State actor acted in a manner that shocks the conscience.

• Some relationship between the state and the plaintiff exists.

• The state actor used his authority to create an opportunity for the specific harm to occur, which otherwise would not have existed.

• The state’s failure to train employees amounts to a deliberate indifference to the constitutional rights of that person.

• The employee’s lack of training was pursuant to specific policies, customs or practices of the state and caused this violation of constitutional rights.

§1983 Qualified Immunity • May be available to public

officials in defense of a §1983 claim.

• Designed to shield officials from liability for decisions that a reasonable person wouldn’t have known clearly violate statutory or constitutional rights.

Tort Claims Acts • Available in every state, but

on different terms. • Some may delineate the

specific claims that can be brought.

• Some prohibit specific torts claims.

• Some give immunity to public official’s discretionary decisions.

• Others just cap damages.

Immunity and Defenses

Basics of Baseline Testing • Two Components:

• Physician assessment of cognition, balance and other general baseline neurological indicators.

• Computerized assessments that measures an athlete’s reaction time, memory capacity, speed of mental processing, and executive functioning of the brain.

• General facts: • Pre-injury baseline scores used as metric by which to compare the

post-injury scores and abilities, indicating potential concussive injury.

• Recommended repetition of physician assessment every year, every 2 for the computerized component.

• Not required by statute, but highly recommended.

Final Suggestions for High School Concussion Response Protocols:

• Make appropriate staff available- trainers, nurses etc. • Keep students & parents informed about concussion symptoms and

treatment. • Implement a baseline testing program

• Require coaches be trained in concussion recognition • Teach athletes techniques to minimize concussion risk and decrease

frequency of head hits while in play. • Change practices to decrease head hits

• Implement and follow adequate return to play progressions

• Maintain the proper equipment to protect students from concussions.

Presented By: Michael L. Solomon, Esquire

for NFHS Summer Meeting

June 30, 2015

Looking for the Union Whistle

The Union: Office and Professional Employees International Union ("OPEIU")

Member of the AFL-CIO 110,000 members, with HQ in New York City Association of Minor League Umpires Entered into a collective bargaining agreement with

the Professional Baseball Umpire Corp. in 2011 Second Vice President is a PIAA registered baseball

umpire

Requirements To Conduct Election

Limited to Employees (not independent contractors) Union petition must be accompanied by signed

authorization cards from at least 30% of the "employees" in the "voting unit"

Expected Approach of Union

Limit collective bargaining unit to a small group Focus to date has been on lacrosse officials in Western PA

and Pittsburgh City – about 130 officials

Objective is to get a determination as to their right to an election; if granted, then expand the exercise of that right to other areas in PA and possibly nationally Smaller bargaining unit requires fewer signature cards to get

to the 30% threshold to conduct an election

First Issue: Whether the Union Is Entitled To An Election

Key determining factor: are sport officials employees or independent contractors If not employees, there is no right to collective

bargaining or an election

Who Makes The Decision?

NLRB vs. PLRB: NLRB is regarded as being very pro-union under the

Obama administration; looking for opportunities to expand union participation/membership

NLRB jurisdiction (controls over state bodies if it has jurisdiction): 29 USC § 152(2): "The term 'employer' … shall not

include … any state or political subdivision thereof…."

NLRB Jurisdiction

"An entity [is] a political subdivision of a state within the meaning of Section 2(2) if it is … (2) 'administered by individuals who are responsible to public officials or to the general public." Truman Medical Center, Inc. v. NLRB, 641 F.2d

570, 572 (8th Cir. 1981); Crilly v. SEPTA, 529 F.2d 1355, 1358 (3d Cir. 1976)

PENNSYLVANIA

Right To Know Law: defines PIAA as a "state-affiliated entity" General Assembly-established "Athletic

Oversight Committee" reviews PIAA's compliance with state laws and addresses issues regarding PIAA referred to the committee 24 Pa. § 16-1604-A: sets specific standards

required to be followed by PIAA

PENNSYLVANIA

PIAA: determined by PA Supreme Court to be a state actor

PIAA: directed by the General Assembly to accept private schools as members

PIAA: appeals of trial court decisions go to the Commonwealth Court, which has jurisdiction over matters involving governmental entities

PIAA: has been determined to be subject to the ERA, which is only applicable to governmental entities

Determining Whether Officials Are Employees Or Independent Contractors Under the NLRB

Issue has come up frequently in recent years in relation to drivers, such as Fed Ex drivers, cab drivers, Lyft drivers, truck drivers, limo drivers

Determining Whether Officials Are Employees Or Independent Contractors Under the NLRB

Burden of establishing that an individual is an independent contractor is on the employer "the common law of agency is the standard to

measure employee status" Restatement (Second) of Agency § 220(2)

identifies ten (nonexhaustive) factors: Extent of control which the master may exercise over

the details of the work Whether the work involves a distinct occupation or

business

Whether the worker is supervised by the employer Who supplies the tools and place of work The level of skill required The method of payment (by time or by the job) The length of time for which the work is to occur Whether the work is part of the regular business of the

employer The parties' belief as to whether it is an employment

relationship Whether the principal is or is not in the business

Generally, the focus is on "independence" and "control" No one factor is decisive; balancing of factors DC Circuit Court of Appeals recently changed direction:

emphasis is now on whether the individuals have "significant opportunity for gain or loss."

Other courts have mentioned looking at the "economic realities" of the relationship

Ultimately, a very flexible standard exists

Application to Amateur Sports Officials

Collegiate Basketball Officials Ass'n v. NLRB, 836 F.2d 143 (3d Cir. 1987) Court sustained NLRB holding that Big East officials were

independent contractors, not employees but recognized that "the decision is, however, a close one" and "Officiating ill fits the usual distinction between independent contractors and employees.”

Covington v. Hamilton Twp. Bd. of Education, Civ. No 08-3639 (USDC – NJ, 2015) Thorough discussion of independent contractor test

concludes that officials are not employees

Historical Treatment of Officials

1967 IRS Revenue Ruling (determining that officials are independent contractors for tax purposes)

1989 Lynch decision (rejected workers' comp coverage for officials)

1999 Tallman Hudders Report: Independent Contractors

2001 letter from PA Dept. of Labor and Industry

Kemether v. PIAA

Kemether v. PIAA, 1999 U.S. Dist. LEXIS 17331 (E.D. Pa. 1999) Title VII case Court found that the Big East case was not

controlling and that a jury could properly find that the plaintiff official was an employee

Court sustained the finding that the official was an employee of the schools during the regular season and of PIAA for post-season competition

PIAA and Registered Sport Officials

Article VII, Section 1F, of the PIAA Constitution: "The Board of Directors shall have the

following powers and duties: To determine the method of and the qualifications

for the registration of officials; to determine their powers and duties; and to make and apply necessary policies, procedures, rules, and regulations for such officials."

PIAA and Registered Sport Officials

Article XV, Section 1, of the PIAA Bylaws: "All sports officials, in all Contests participated in by

PIAA member schools, must be persons who are (1) registered, (2) on active status, and (3) in good standing with PIAA."

PIAA and Registered Sport Officials

PIAA has no control over regular season assignments

PIAA has no control over regular season fees paid to officials

PIAA does not evaluate officials during the regular season

PIAA does control post-season assignments, fees and evaluations (higher degree of control there)

THE CAMPAIGN BEGINS

New NLRB Rules: take effect April 14 Permit for a much quicker election process – 8 day rule Congress rejected the changes President vetoed the rejection of the rules

Union submitted its Petition for Election to represent the lacrosse officials on May 26 – hearing was set for 9:30 am on June 3 (8 days on the nose) “Continuance” granted until 1:00pm, June 4!

1 ½ day hearing [Decision] will have to amend when we know

outcome Letter/email campaign

THE CAMPAIGN BEGINS, cont.

NEXT STEPS

Challenge to NLRB jurisdiction on 2 grounds No jurisdiction over "any state or subdivision

thereof." Officials are not employees

TAKE - AWAYS

Keep an ear on the tracks Engage the troops Strive for equality Keep the tent flap open

Thank you for attending

For more information, contact:

Michael L. Solomon, Esquire Cohen Seglias Pallas Greenhall & Furman PC

240 North Third Street 7th Floor

Harrisburg, PA 17101 p. 717.234.5530 f. 717.213.0731

msolomon@cohenseglias.com

www.cohenseglias.com