Tag Archives: NCAA

The Death-Sentence of Amateurism in the NCAA?

December 13, 2015

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By Kyle Sandulescu – Thompson Rivers University JD Student

When the NCAA was established in 1906, it was designed to entrench the principal of “a sound mind in a sound body” at institutions of higher learning in America. The bargain was that NCAA agreed to protect the health and well-being of its student-athletes, on the agreement that the student-athletes withdraw their right to profit from their athletic endeavours in any way. In short, the NCAA was established under the belief that men and women could enrich their lives through the amateur student-athlete experience.

Over 100 years later, the NCAA has become an oft-criticized figure of manipulation and a far-cry from an ambassador of amateurism in sport. The NCAA is an apparent hoax; a regulatory body designed to protect student-athletes while dealing at arm’s length with commercial enterprises who profit from their marketability.

The late Myles Brand, director of the NCAA from 2002-2009, defended the economics of college sports by claiming that they were simply the result of a smoothly functioning free market. However, the market is not free because there is unequal bargaining power between the NCAA and the athletes who provide the NCAA with its product.

The argument to be made is that the NCAA has clearly been overcome by the commercial forces that surround college sports to the detriment of the student-athlete. Lawsuits have exploited the NCAA’s unwillingness to protect student-athletes who suffer from long term injury, while the NCAA throws its rulebook at its athletes for even the most minor infractions resulting in a “profit” from their college athletic careers. Evidently, the NCAA has balked on protecting athletes from commercial exploitation because they are afraid to bite the hand that is their sole source of authority – the member institutions.

Section 2.9 of the Division I Manual of the NCAA states the principle of amateurism rather amiably: “student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.” However, it is hard to understand the rationale for the principal of amateurism when the NCAA signs mega-broadcasting deals worth over half a billion dollars for NCAA football and basketball while major sponsors hammer on the doors of member institutions to ensure that the top programs and players are hyping their brand.

The outspoken Taylor Branch once said in his now infamous article, The Shame of College Sports: “The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.”
Adopting Branch’s position, it is hard to make a straight-faced argument that the principal of amateurism is being abused to serve a commercial purpose. In recent memory the courts have been more willing to confront this issue head on. The US Court of Appeals for the Ninth Circuit in O’Bannon v NCAA upheld a district court’s decision that NCAA amateurism rules violate antitrust laws saying that “the NCAA’s rules had significant anti-competitive effects within the college education market.”

O’Bannon makes it clear that the NCAA’s principle of amateurism is being used to regulate a commercial activity, while the NCAA has continued to rely on the decision in NCAA v Board of Regents of the University of Oklahoma, which stated that “to preserve the character and quality of the product, athletes must not be paid.”

Criticizing the NCAA’s principal of amateurism should make us uneasy because it largely epitomizes a departure from the ideal that the outcome of the sport was determined by the skill of players and not the cheque books of their institutions. Given the evolution of college sports into the mega-industry it is today, the NCAA would be wise to take advantage of the opportunity to legitimize the concept of amateurism in the wake of commercial realities.

At stake for the NCAA are billions of dollars in revenues and licensing fees if the NCAA cannot demonstrate that it is capable and willing to protect the health and well-being of student athletes. The principal of amateurism can therefore be re-tooled to reflect the need to protect athlete’s from injury, perhaps deflecting the accusations that the NCAA has essentially sold out the health of their athletes for the commercial interests of member institutions.

 

 

 

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The NCAA & Academic Standards; Time to Recover The Fumble

November 7, 2015

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By Alexandra Del Vecchio – Thompson Rivers University 2L JD Student

The National Collegiate Athletics Association (NCAA) is an organization that prides itself on encouraging academic success for its student athletes. Based on the strictly outlined academic requirements for its members, you might even be tempted to say the NCAA requires it. However as of late, it seems the organization may be fumbling.

Recent Academic Issues

The NCAA infractions committee recently determined that the men’s basketball program at Southern Methodist University (SMU), a Division I school, has committed multiple violations of the organizations rules. In a September 29th decision the committee found that the program had committed academic fraud, as well as unethical conduct and head coach control violations related to the fraud. As a result of these violations an array of penalties were imposed: probations, fines, a post-season ban, the vacation of past wins, a head coach suspension, scholarship reductions and recruiting restrictions.

Exactly what occurred? The team’s former assistant coach encouraged a student to enroll in an online course in order to meet the NCAA’s initial eligibility standards, permitting him to play for the team. Notably, the issue here is rooted in eligibility. Once the student enrolled, an administrative assistant completed their course work, facilitating receipt of fraudulent academic credit. When he became aware of these events, the team’s head coach didn’t report them as possible rule violations. Those involved also lied to NCAA enforcement staff when asked about the possible violation and encouraged the student to do the same.

Reading the stern decision and assortment of penalties it may seem that this is an isolated incident, properly reprimanded by the NCAA and not a real problem in college athletics. But browse just a few months back into the sports news archives and that perception may change. Just this past summer following an investigation the NCAA issued a series of significant allegations regarding violations of academic standards at the University of North Carolina (UNC). While that matter is still far from its conclusion, it certainly gives the impression that SMU is not alone in its plight.

NCAA Stance on Academic Standards & Requirements

And here is where the apparent fumble lies – the NCAA’s public stances on academic standards for their student-athletes seem to put them on opposite sides of the field, so to speak. On the one side we see an organization proud of its student-athletes, purportedly pushing for their academic success. Yet on the other side, we see an organization that takes a very hands-off approach to ensuring it.

The NCAA stresses and lauds the ‘student’ status of their student-athletes. The organization professes that academic success and achievement is equally important to athletic success, going so far as to call education a top priority, commitment and responsibility. Coupled with this position are the NCAA’s various academic requirements and standards. These standards vary between divisions, but they are thoroughly documented across the board and we see occasional non-compliance reprimands, like that of SMU.

Furthermore, in recent publications and media reports related to the O’Bannon litigation – which sought compensation for student-athletes via US antitrust law – the education afforded to NCAA athletes has been touted as a form of compensation. That is to say, the ‘top-priority’ education is said to serve as the organization’s means of remuneration for the student-athletes’ revenue generating athletic performances and related goods.

In contrast to all of this, the NCAA also seems to take the stance that ensuring education is not their responsibility. This is subtly suggested through its publications, which emphasize the role of the student-athletes’ schools in meeting the organization’s academic standards and requirements. More clearly, this has been articulated by the NCAA in response to legal allegations made against the organization, stemming from violations of academic standards at UNC. The organization’s position with respect to that litigation has been widely reported as a clear assertion that the NCAA is in no way responsible for the quality of education that its student-athletes receive, even where complaints over quality arise from enrolment in faux-classes.

These opposing viewpoints create quite the dichotomy. It seems the NCAA views the education of its student-athletes with high regard, so valuable that it serves as sufficient compensation for their revenue generating ‘work’ even. Yet despite all its other enforcement and compliance roles, the organization simultaneously refuses to take responsibility for ensuring their student-athletes receive quality education or ‘compensation’, as it’s framed in some discussions.

Perhaps it’s time for the NCAA to recover their fumble, take one for the team & truly stand up for their athletes’ education.

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Concussed in the NCAA: What does it mean in the context of the NFL decision?

November 7, 2015

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By P. Kyle Sandulescu – Thompson Rivers University 2L JD Student

In the wake of the NFL concussion lawsuit settlement that came down in April, the National College Athletic Association (NCAA) is facing a similar class-action lawsuit launched by former college football, hockey, and soccer players who sustained concussions during their college sports careers. While the NCAA technically operates as a non-profit association, it makes profits that eclipse many major professional sports leagues. Therefore, if the plaintiffs can prove that the NCAA knew of the long term effects of concussions and failed to protect their student-athletes from head injuries, a judge will likely be persuaded to awarded compensation to former players, similar to the NFL settlement agreement.

In the class-action concussion lawsuit brought against the NCAA, Walker, et al. v. National College Athletic Association, former college athletes alleged that the NCAA breached its duty to educate players on the dangers of concussions, and breached its contractual obligation to ensure that member institutions complied with NCAA Regulations on enhancing the physical and mental wellbeing of student-athletes. The plaintiffs also claimed that the NCAA fraudulently concealed information on the long term effects of concussions. The plaintiffs initially sought a $70 million NCAA-funded monitoring program to provide early diagnosis and treatment of head injuries over a 50 year period. In June however, Adrian Arrington, the face behind the class-action lawsuit, fired his attorney and rejected the proposed settlement. One can expect that the plaintiffs will seek a considerably larger settlement perhaps approaching the one awarded to former NFL players.

There are important distinctions, though, between the NCAA and the NFL which make the NCAA lawsuit more complicated than the lawsuit against the NFL. First, in the NFL the players are in a contractual relationship with the league which is governed by the standard player’s contract, which directly imposes a duty on the NFL, whereas in the NCAA regulations govern the relationship between the NCAA and the universities that are members in the Association. However, a duty to protect players might be established by looking into the NCAA Sports Medicine Handbook which explicitly states that student athletes can assume that the NCAA’s member institutions have taken reasonable precautions to minimize the risk of injury from athletics participation. The plaintiffs would hence make the case that the NCAA owes a duty to the players who participate in sporting events on behalf of their universities.

With nearly $1 billion in annual revenue, the NCAA resembles less a non-profit association than it does a professional sports organization. The sheer volume of cash flow into the NCAA’s coffers has proven sufficient to attract interest in a class action lawsuit similar to the NFL suit. A key distinction between the two lawsuits is that the claim against the NCAA involves athletes from different sports and not just football, and does not preclude athletes from non-contact sports from bringing an action against the NCAA.

Simply put, there is a need to protect the majority of student athletes who do not go on to have professional careers. Adrian Arrington and countless others who did not have professional sports careers sustained head injuries while playing college sports under the NCAA. Many of them were left unable to work or utilize their degrees. The vast majority of student-athletes have to use their college sports careers as a means of getting an education and obtaining a degree. Therefore, former players should be compensated if they sustain an injury that prevents them from functioning in the work force when their college careers are over if the damage could have been prevented through proper monitoring and testing by the NCAA. With the resources and funding available to the NCAA, there is no reason to treat them differently from a professional sports league that fails to take action in minimize the risks faced by their athletes.

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March Madness or March Sadness

October 5, 2015

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By Christine Purewal – Thompson Rivers University 2L JD Student

One of the most sacred annual traditions in US sport occurs as winter wanes and spring looms on the horizon – March Madness. March Madness 2015 is a near-month long collegiate basketball championship tournament that brought in over 10 million views worldwide and more than $1 billion dollars in revenue.

Athletes participating in National Collegiate Athletic Association (NCAA) sports are not considered professional athletes. The 440 page NCAA manual refers to these student athletes as amateurs. Despite such a contentious characterization, March Madness brings in more revenue than the Super Bowl. Such high revenue and viewership is made possible because every aspect of the tournament is branded.

Despite such limitless branding, NCAA President Mark Emmert maintains that the NCAA is not a moneymaking industry. It is directly stated on the NCAA official website that “the association’s belief in student-athletes as students first is a foundational principle”. This principle has formed the basis of President Mark Emmert’s argument that amateur athletes should not be compensated for their participation in NCAA sporting events or tournaments. During his testimony for Wilkins v NCAA, President Mark Emmert stated that student athletes are not employees and to pay them would change the very nature of the game.

President Mark Emmert’s contention regarding the compensation of student athletes came under scrutiny when Ed O’Bannon filed a lawsuit against the NCAA for the use of images of its former student athletes for commercial purposes. District Judge Claudia Wilken ruled in favor of Ed O’Bannon and made several findings that would impact the future of the NCAA and its athletes. Firstly, she held that NCAA rules regarding restraint of trade were unreasonable and violated antitrust law. Secondly, she ordered that NCAA scholarships should be structured to include cost-of-living expenses, which were currently excluded. Finally, District Judge Claudio Wilken held that colleges should be permitted to put up to $5,000 in a trust for its athletes during each year of eligibility. The NCAA appealed Wilken’s ruling to the 9th U.S. Circuit Court of Appeals in San Francisco. No decision has been reached in the appeal.

Since the O’Bannon ruling we have seen a changing climate in the courtroom, whereby judges are increasingly questioning the NCAA’s stance and allowing more scholarship cases to be heard.
Most recently, in June 2015 Martin Jenkins, Nigel Hayes and Alec James filed a lawsuit against the NCAA and five major conferences. The injunction sought by the plaintiffs would allow a true free market for college athletes. However, in order to succeed the plaintiffs must challenge the NCAA’s argument that they comply with antitrust laws because they are functioning as a non-commercial entity with an educationally driven mission.

The NCAA’s declaration of being “educationally driven” began to unravel in 2015 when Rashanda McCants filed a class action lawsuit against the NCAA and the University North Carolina Chapel Hill. The lawsuit brings to light the decades-long academic scandal at UNC surrounding “paper classes”. McCants contends that student-athletes were directed towards programs and courses with little rigor in attempt to free their schedules for athletic commitments. In some instances, student athletes were enrolled in non-existent classes within the department of African and Afro-American studies. It is a combination of these factors which McCants claims deprived her of a meaningful education; a meaningful education being of the upmost importance since less than 2% of NCAA student athletes goes on to play professionally.

Given the emergence of these more recent cases, it appears that the climate for student-athletes has not completely changed following the O’Bannon ruling. Although there is a wider acceptance to hear cases regarding the NCAA and possible antitrust law violations, any substantial change to the structure of the NCAA will be a slow process. This is in part due to the flawed system in which the NCAA operates. The system is structured in such a way to maximize revenue through extensive branding and the exploitation of its athletes. It is a combination of these factors which have turned the NCAA into a moneymaking industry.

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NCAA football player sues university for failure to educate

November 17, 2014

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By Mitchell Smith – Thompson Rivers University 3L JD Student

Michael McAdoo played football at the University of North Carolina (“UNC”) from 2008 to 2010. In 2010 McAdoo was found ineligible to play and dismissed from the football team because he was accused of having a tutor do improper work on one of his papers and breaching NCAA eligibility requirements.

McAdoo later became one of the first players to shed light on a supposed 18-year academic scandal that was used in order to keep athletes eligible to play sports. The scandal involved the creation of fraudulent classes that never met or taking “paper classes”, where the only requirement was completing a single paper. The classes were then used to inflate players’ grade point average or GPA.

According to a CNN report, McAdoo is now suing the university in federal court. He is accusing the university of breaking its promise to provide an education in return for playing sports. His lawyers are attempting to represent a class of North Carolina scholarship football players who played between 1993 and 2011.

The lawsuit stems from an independent report, which was released last month. The report demonstrates how academic counselors in UNC’s athletic department pushed its athletes into these no-show classes. The report further discusses an example of classes in the African-American Studies department being organized by a student services manager. In these classes students never had interaction with faculty and the student manager assigned grades without considering the quality of work. Often times the student manager was told what grade the player should receive in order to reach the NCAA academic eligibility requirements.

The NCAA outlines its academic eligibility requirements in the form of GPA as follows:

• Division I

“Student-athletes must achieve 90 percent of the institution’s minimum overall grade-point average necessary to graduate (for example, 1.8) by the beginning of year two, 95 percent of the minimum GPA (1.9) by year three and 100 percent (2.0) by year four.”

• Division II

“Based on a 4.0 scale, Division II student-athletes must earn a 1.8 GPA after 24 semester or 36 quarter hours, a 1.9 GPA after 48 semester or 72 quarter hours and a 2.0 GPA after both 72 semester or 108 quarter hours and 96 semester or 144 quarter hours.”

The African-American Studies classes were seen as GPA booster courses. It was found that the average grade for student athletes was a GPA of 3.55 as compared to 2.84 in the regular classes.

McAdoo’s class action claim alleges that UNC breached its contract with football players, violated the state’s consumer protection law, and committed fraud when recruiting athletes. McAdoo expressed particular distaste for the fashion UNC conducted it recruitment, as that was one of the main reasons he had decided to attend UNC. He stated that when the coaches and academic staff came to visit they did not discuss football but instead talked about academics. This promise turned out to be false.

This suit is another hit to the NCAA who has been heavily targeted by former and current players for its treatment of student athletes. The NCAA is prohibited from remunerating its players for revenue and sponsorship it earns from college sports. Instead the NCAA believes they compensate student athletes adequately for their services by providing scholarship funding for an education that would otherwise cost $80,000 or more. McAdoo and his fellow claimants have been deprived of this benefit and UNC in turn continues to earn the substantial profits.

Is UNC the only university that conducts itself in such a manner? Skeptics say no; NCAA football is big business. Coaches are paid a substantial amount of money to win games. It is not unrealistic to conceive that they are motivated to ensure by whatever means possible that their student athletes meet the minimum academic requirements. To me this represents a moral hazard issue where the coach could very well be more concerned with losing his position rather than helping his student athletes both on and off the field. The reality is the majority of student athletes will not make a cent in the professional leagues and in turn will rely on the supposed education they were supposed to receive at university.

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Does the O’Bannon decision shake the foundation of the concept of amateurism in sport?

October 22, 2014

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By Sangin Safi – Thompson Rivers University 3L JD Student

In the ever-continuing saga of Ed O’Bannon’s battle against the National Collegiate Athletic Association (NCAA), the United States District Court Judge, Claudia Wilken, delivered a judgment on August 8th, 2014 that has the potential to shake the foundation of NCAA’s principle of amateurism in sport (i.e. no compensation for its student athletes).

In the 99-page decision, Wilken issued an injunction against a ban on payments to players for the commercial use of their names, images and likeness (NILs) in things like video games. The ruling also allowed the NCAA to cap the payments at $5,000 per year. What this means is that athletes will now be able to share in some of the multi-million dollar revenues that the NCAA generates annually. Although the ruling definitely puts a dent on NCAA’s principle of amateurism, analysts and commentators are divided on whether the ruling completely shakes the foundation of the principle. Specifically there seems to be a divide with respect to the potential future implications of the decision.

On the one hand, there are commentators that claim the ruling completely destroys amateurism in college sports. For example, Forbes magazine contributor Matt Powell states, “…the Wilkens (sic) ruling clearly destroys the ‘collegiate model’ thesis. Any pretense of amateurism…is now over.” Powell believes that the $5,000 annual cap on compensation will not hold for long. He further believes that players will also be “freed from the silly enforcement rules like the prohibition of selling memorabilia on EBay” and he even contemplates whether player endorsements might be something of the future.

On the other hand, there are commentators that insist that the reach of the decision should not be overstated. For example, contributors at The New York Times maintain that although NCAA was the clear loser in the case, the decision should not be overstated. According to them, “[p]ost-O’Bannon collegiate athletics won’t operate according to free-market principles. Far from it. Players did not win the right to sign endorsement deals.” They also note that the NCAA may keep the $5,000 annual payments in a trust until players graduate or leave. Therefore, according to the contributors, although the NCAA will have to adjust to the new order, the decision does not completely destroy amateurism in sport.

Although the cautious position by The New York Times is a safe one to take, the August 8th ruling definitely clears a wide path for future litigation against the NCAA with respect to student athlete compensation. As Jon Solomon of CBS Sports notes, there is currently a looming lawsuit being brought by a prominent sports attorney, Jeffery Kessler, who is seeking a free market for college recruits. The O’Bannon ruling is surely to boost the confidence of Mr. Kessler in pursuing vigorous arguments in support of further student athlete compensation.

Furthermore with the August 8th decision, a federal judge has now confirmed that college sports are indeed a big money making enterprise; therefore it is inconceivable that the NCAA can continue to make multi-million dollars in revenue without sharing some of it with the value drivers of the business, the student athletes themselves. Indeed, one could sense the rise of a new area of unjust enrichment within the context of lex sportiva (i.e. sports law).

Although the NCAA is currently appealing the decision, the August 8th ruling definitely sends a strong message to everyone that the NCAA can’t hide behind the cloak of amateurism and continue to earn big money. As the saga of Ed O’Bannon continues, and likely to be followed by other lawsuits, the amateurism model simply cannot be sustained in college sports in the long run.

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Owning a Player: Fantex and the Arian Foster IPO

November 23, 2013

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By Kevin Robertson – Thompson Rivers University 3L JD Student

A vast number of people grow up dreaming about becoming professional athletes but few ever reach that level.Instead they are relegated to playing sports recreationally, cheering on their team, and participating in a fantasy league.In a fantasy league a person acts as a combination of owner, general manager, and coach in an effort to run their team better then their opponent.While pride may be one the line, oftentimes there is also money up for grabs.

In American football, due to the constant injuries and changing focus of teams (say from running to passing, or vice versa) it is often necessary for a person to add or drop players based on how a person believes they will perform in future games.In a sense, a person is stating their belief over how the player will perform in the future.Simply put, if a person believes that a player will do well then they will play them.Alternatively, if the person believes that the player will not do well then they will not use them. 

In this way, a fantasy football league is similar to how a person plays the stock market.Buy the stocks that you think are going to perform well and sell the stocks that you believe are going to do poorly.When you consider the dedication that people put into researching their choices the parallels become even more apparent.

However, things are about to change.Fantex is launching a new program whereby for $10 a person can buy a percentage of a player’s future earnings. The first player to sign on with Fantex for this program is NFL Texans running back Arian Foster.In exchange for giving Fantex a 20% share of his future football earnings he will receive $10 million USD.Fantex will then take the 20% share and divide it into one million shares, which will then be sold to investors through an Initial Public Offering (IPO).

As with all things of this nature, someone is going to lose money.It’s possible that Foster will go on to have a healthy career and thus earn those who own his stock a healthy profit but it is also possible that he gets injured in his next game and never plays again.

What is fascinating and will be a huge point of contention in the future is that the contract does not only include his NFL salary but also includes any related fields.In defining related fields the prospectus for the stock gives a few examples such as broadcasting and coaching.That being said, there are a lot of things that could fall into the grey area and possibly result in disputes.If Foster opened a sports bar, which was named after him, could that be considered a related field?What about if he was selling autographs?

As well, there are a couple of other things that could pose problems in the future.The contract does not expire so Foster will be giving 20% of football related income to Fantex for the rest of his life.While the freedom of people to enter into contracts on their own volition is well established, the shear length of the contract will likely bring up concerns.One issues is that Foster has in effect “sold his soul to the devil” for a one time monetary payment.The contract only ends if he pays back the full amount plus a penalty.He cannot get out of the contract without Fantex’s agreement.In this way, if he retires within 2 years of signing the contract for any reason other than injury, illness or medical condition Fantex can unilaterally cancel the contract and demand repayment of $10.5 million USD.

In Foster’s case his contract might only be for 20% of his future income but what would happen if it were for more?Say 50% or 100%?There is something morally wrong for a society that has moved past slavery to then allow a person to become indebted to another for life.

It is unclear whether college players will sign up with Fantex.While the NCAA has been adamant that they are not interested in paying the players for their services, it would be hard for a lot of the players to turn down a lump sum payment even if the terms were not favorable in the long run.

In fact, it would be possible for a college player to game the system in a certain situation.Taking Foster’s contract as an example, a college athlete could get a lump sum payment and then pay it back (along with the penalty) with a signing bonus if they make it into the league and get a large contract.A strategy such as this would be very smart if the player knew that they had an even larger endorsement deal coming in the near future.Once again, legally this would be a grey area in that Fantex is registering each player under the Securities and Exchange Commission, which has strict rules governing insider trading.As well, with college players there may be issues due to them being minors.

Like many things in sports, the IPO into Arian Foster will garner a lot of money for some people, even if it isn’t in the best interest of the game or society.

The prospectus for the IPO is available to read here and contains some very interesting information not only on his health but also his contracts with both the NFL and endorsement deals. 

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US College football players get paid for the first time

October 21, 2013

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By Alexander Mac Green – Thompson Rivers University 2L JD Student

On July 17th 2013, the National Collegiate Athletic Association (NCAA) announced they would not be renewing their licensing agreement with Electronic Arts (EA). This was a direct reaction to the class action lawsuits that have been brought against the NCAA, EA and the CLC (Collegiate Licensing Company). The allegations cited in these lawsuits are that the listed defendants have profited from using college football athletes’ likenesses and as a result have been unjustly enriched. Over the last 20 years, EA has made 21 different versions of their NCAA football videogame featuring hundreds of thousands of student athletes and making more than $1.3 billion dollars since 1998. Following the NCAA’s announcement the Big Ten, Pac 12 and SEC also announced that they would not license EA to use their trademarks until these lawsuits had been resolved.As a result, on September 26th EA had no other choice but announce that they would not be making a college football videogame for 2014 and for the foreseeable future.

The lawsuits claim that the defendants have breached these former college athletes’ property rights. Personality property rights include the right to be compensated for the profitable use of one’s own likeness. Although EA never used any of these players’ names in their videogames, they used the players’ exact characteristics: jersey numbers, heights, weights, skin tones, hair colors, and home states.EA has never compensated or received permission from any of the athletes featured in their games. They have only paid the NCAA and the CLC over this time period for the licensing rights to use their trademarks.

Shortly after EA’s announcement, they notified the US District Court of Northern California that they had reached an agreement to settle with the former players. However, EA still refuses to admit any wrongdoing on their part. They claim that they just “follow rules that are set by the NCAA.” The NCAA, for their part, has made it clear that they are not willing to compromise and are prepared to proceed with litigation.

The managing partner of Hagens Berman and the co-lead counsel of the settlement negotiations, Steve Berman, claims that anywhere from 200,000 to 300,000 former players will be “substantially” compensated by this settlement. EA Sports and the CLC plan to settle these lawsuits for $40 million dollars. It has not yet been decided how this money will be divided, but $40 million dollars divided amongst potentially 300,000 will only result in a whopping $133.33 per athlete. I am not sure if this meets Berman’s “substantial” claim but this settlement carries much more weight as a symbolic victory.

This settlement is historic because college athletes have never been compensated in this fashion before. The NCAA forbids all of their student athletes from earning money by using their names or likenesses in, for example, endorsements. However, these settlements are being awarded retroactively to former students who are no longer restricted by the NCAA rules.This settlement has potentially changed the relationship between student athletes and licensing companies drastically. Some predict that this may have opened the floodgates to retroactively compensating college athletes beyond their regular sports scholarships which ordinarily include tuition, room and board.

There are many arguments for and against college athletes getting paid. Personally, I believe college athletes are compensated fairly by their schools based on the following arguments:

1.  College graduates earn $1 million dollars more in their lifetime compared to high school graduates according to census data;

2.  College students without sports scholarship will pay anywhere from $100,000 to $200,000 for their education; and

3.  College athletes are given the opportunity to build their brand for the future as a professional athlete or any other occupation. These athletes have access to an influential network of people, state of the art facilities, professional level coaching, higher level competition, media training and fan building opportunities, all of which could enrich these athletes lives even if they do not go pro.

It is, however, easy to feel sympathetic for college athletes who don’t make it to the NFL especially if the reason is due to injuries suffered during their college career. These athletes could have been compensated for their high level of athletic ability prior to their injury.Time Magazine recently wrote an article claiming that there is an “ethical imperative” to college athletes being compensated for the millions of dollars that they help generate for their colleges and other beneficiaries.

The monetary value of this settlement should not belittle its historic impact on the future of college sports.

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EA Settles with former NCAA Athletes for $40 Million

October 21, 2013

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By James Gill – Thompson Rivers University 3L JD Student

About four years ago, Ed O’Bannon launched an anti-trust lawsuit against the National Collegiate Athletic Association (NCAA) and its licensing company for the use of images of himself and other high profile college athletes. The lawsuit alleged that the defendants agreed to block the athletes from getting paid for their likenesses in video games produced by the infamous video game maker, Electronic Arts, after they left college. Later, his action was combined with Sam Keller’s, which sued the NCAA and Electronic Arts on similar grounds. Recently, Electronic Arts settled out of the action for $40 million. The settlement also covered another named defendant, Collegiate Licensing Co., leaving only the NCAA as the sole defendant. 

Upon participating in college athletics, the athletes are required to sign an agreement, which essentially gives up their rights to profit from their images and likeness. The agreement applies not only while they are athletes competing in the collegiate league, but also after graduation.Some have said that the agreement is a product of the NCAA’s effort to deprive the athletes of their compensation for their images. Such an agreement is a part of the league’s scheme that prevents college athletes from being compensated for their athletic contributions. Indeed, the NCAA regulations provide that athletes are ineligible for participation in sports where there has been some form of payment to the athlete in a number of circumstances. For example, athletes are ineligible for participation in NCAA sports if they have ever taken pay or a promise of pay for competing in the sport (Bylaw 12.1.2), or if they have ever accepted any pay for promoting a commercial product of service or allowing his or her name to be used for promoting a commercial product or service (Bylaw 12.5.2.1 and 12.3.2.2).

But could the argument not be made that this is a bad bargain? As noted by Forbes magazine contributor Patrick Rishe, young people who are still in their teenage years are put into a situation where, at the young age of 17 or 18, they are being asked to sign away some of their legal rights related to their athletic abilities.In many jurisdictions, such young people are still considered minors.Of course this is likely done by way of a guardian, or some other similar means. The point is that these are young people signing away significant rights, which in many cases have the potential to convert into significant value.

Further, many have argued that as the products being sold and drivers of much of the revenue for a multi-billion dollar sports league, these athletes ought to be entitled to compensation beyond that of receiving an education. In support of this notion, it is often stated that these athletes are no longer competing in an amateur league. In fact, an attorney for the plaintiffs in O’Bannon stated that these athletes are ‘semi-pro’ or ‘pre-professional’. If this is true, then why shouldn’t the model for NCAA athletes be revised in order to follow some other semi-pro leagues?

A common counter-argument is that the athletes are compensated by other, non-monetary means. Specifically, many of the athletes are given the opportunity to receive an education and get the exposure to win a professional contract in the ‘big leagues’. Some have even stated that monetary compensation would push college athletics further from academics, whereas it should be moving in the opposite direction. But is that fair? Of course, one cannot discount how invaluable an education is. Nor can one discount the possibility that some of these athletes will go on to obtain lucrative professional sports contracts. However, the vast majority of the athletes do not go on to participate in professional sports. It might be further argued that such an arrangement is disproportionate given the enormous revenues of the NCAA ($871.6 million in revenue for 2011-12).

In the end, the settlement by EA stands to compensate the athletes for the use of their likeness and identities. Although this may not necessarily be direct compensation for their participation in the sport, perhaps it stands as a starting point for a change. One thing that is for sure is that the settlement has forced some stakeholders to reevaluate their positions on the matter, as evidenced by EA deciding to pull production on the upcoming version of the NCAA football game.

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Hard questions about the NHL’s regulation of hockey violence

June 21, 2011

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I’ve just surfaced following the Vancouver Canucks’ collapse at last Wednesday’s Game 7 of the Stanley Cup Finals. Notwithstanding the Canucks’ loss and the Boston Bruins win, the Finals offered some interesting insight into the National Hockey League’s management and regulation of the game.

  • Spleens have been vented over how the on-ice officials swallowed their whistles, especially during the Finals, and how it played to the Boston Bruins’ advantage enabling them to browbeat the Canucks into submission and take them off their finesse game. It is generally agreed that the referees employed a different standard of officiating in the post-season than in the regular season. On the one hand, it’s dismissed as ‘that’s playoff hockey’ but it raises a fundamental question: How should a party to a contract respond when its terms and conditions are interpreted differently at the time when it matters most?
  • Even further, Bruce Dowbiggen of The Globe and Mail characterized Bruins’ Brad Marchand ‘using the head of Hart Trophy finalist Daniel Sedin as a speed bag – to the approval of hockey’s blood culture’ and rhetorically asked, ‘Imagine an NBA rookie speed-bagging [playoff MVP] Dirk Nowitzki’s head going into a timeout or a first-year NFL player hitting [all-star] Tom Brady in the head repeatedly after the play. What do you think the response would be from those leagues?’
  • Bruce Dowbiggen wasn’t done yet though. He also provocatively asked the following: ‘One final thought on rookie Marchand: How come when he abuses a superstar he’s applauded by Hockey Night in Canada and the media as a savvy kid who gets under the skin to win. But when Montreal Canadiens rookie P.K. Subban did the same, we were told by the same voices that he was a punk with no respect who needed to be taken down a notch? Is it because Marchand is a Bruin, a sacred squad on Hockey Night, because Sedin is a European or because Marchand is white while Subban is black, or all of the above. Take all the time you need to answer.’ Ouch.
  • The NHL is to be commended for its four game suspension of Aaron Rome for his open ice hit on Nathan Horton in Game 3 of the Stanley Cup Finals. Horton sustained a serious concussion and did not play the remainder of the series. The ends, however, do not justify the means. Rome was penalized not for a hit to the head in breach of Rule 48 but for interference. Mike Murphy, NHL Senior Vice President of Hockey Operations, applied a phantasmical formula to the hit in assessing the suspension. The existence of the formula is just as abstruse as the existence as the ‘hitting zone’ behind the net which enabled Vancouver Canuck Raffi Torres to flatten Chicago Blackhawk Brent Seabrook earlier in the playoffs or Boston Bruin’s Zdeno Chara’s vicious hit on Montreal Canadien Max Pacioretty which left Pacioretty with a severe concussion and an undisplaced fractured the fourth cervical vertebra which somehow escaped supplemental discipline from the league. The league appears to acknowledge the obtuseness of its approach to head shots. A blue-ribbon committee of former all-stars Brendan Shannahan, Rob Blake, Steve Yzerman, and Joe Nieuwendyk (the first two are now with the NHL hockey operations staff whilst the latter two are general managers with the Tampa Bay Lightning and the Dallas Stars respectively) has recently recommended to the league’s competition committee that Rule 48 be broadened and clarified. The solomonic challenge is to keep violence in the game but rid it of egregious violence. That’s easier said than done. As Ottawa GM Bryan Murray says, ‘We want hitting in the game, and there will be contact to the head, whether we like it or not, and it won’t be illegal all the time.’ Toronto Maple Leaf GM Brian Burke succinctly captures the flavour of inherent risk in hockey: ‘The tightrope we walk is [hockey] is a full contact sport …. We want to eliminate the really dangerous parts of the play but this is game where you’re going to get hit and there’s going to be injuries, and we’ve got to start with that basic understanding.’ Unspoken is the fact that the International Ice Hockey Federation, the Ontario Hockey League, the Quebec Major Junior Hockey League, and the NCAA (National Collegiate Athletic Association) prohibit any hit to the head and the quality and integrity of the game has not suffered as a result. If this is the case then how can traditionalists like Murray and Burke claim hits to the head are integral to hockey?
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