Daily Compliance Item- 9/28/12- Current Events

Ed O’Bannon lawsuit dives into mysteries of

NCAA’s publicity form for athletes

AL.com
BIRMINGHAM, Alabama — Every year, college athletes receive a stack of papers to sign. They’re part of what’s called the “Student-Athlete Statement,” which consists of multiple forms seeking signatures on everything from testing for drugs to testing for ACT/SAT scores.
One form in this package stands out lately and says this: “You authorize the NCAA [or a third party acting on behalf of the NCAA (e.g., host institution, conference, local organizing committee)] to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs.”
That statement is a key part of the Ed O’Bannon class-action lawsuit against the NCAA, EA Sports and Collegiate Licensing Company over the use of college athletes’ names, images and likenesses even after they leave campus.
How long can the NCAA hold those publicity rights? What rights do athletes retain by signing the form? And do athletes even need to sign that form in the first place to be eligible? Those questions surfaced in recent depositions and documents filed in the 3-year-old court case, which could be certified as a class action by next March.
NCAA President Mark Emmert testified last March he doesn’t think signing the form is a requirement for an athlete to participate in an NCAA-sanctioned event.
“I don’t know of an incident where that’s been an issue,” Emmert said. “I believe it’s the case that there is not a formal requirement, but I’m not completely sure of that.”
David Berst, an NCAA Division I vice president, testified the form is voluntary and that he has never been told some schools tell athletes they’re ineligible for a scholarship if they don’t sign.
“I’d be pleased to ensure that it’s clearly understood that you have a choice,” Berst said. “I frankly can’t imagine that any student-athlete would not want to be helping and be the one who might be depicted as promoting the next game. But if they don’t want to be, no, I’m fine with that. It makes sense to me.”
An Ithaca College survey of 213 Division I compliance officers found that 20 percent have witnessed athletes who did not want to sign part or all of the Student-Athlete Statement. When the survey asked if the document giving the NCAA promotional rights is necessary for an athlete’s eligibility, 80 percent of compliance officers said it is not.
“Many said that it really doesn’t have anything to do with eligibility apart from the fact that (compliance officers say) in order to be eligible athletes must sign that form,” then-Ithaca College sport management professor Ellen Staurowsky told The Birmingham News in 2011. “That’s a very interesting way of explaining things.”
“Not inconceivable” to pay ex-athletes

In his deposition, Berst was asked a series of hypothetical questions about whether the University of Kentucky could share any revenue derived from an athlete’s name, image or likeness after the player’s eligibility ends.
Berst said the promise of future pay would violate NCAA rules. “And that frankly is the nonstarter I’ve been talking about with our membership,” he said. “Our presidents simply won’t go there.”
Then came another hypothetical: What if Kentucky spontaneously issues $100,000 each to its starting five basketball players who won the 2012 NCAA title and now play in the NBA given that their names and images will be used on commercial products in the future? Berst said it’s “not inconceivable” that scenario could be permitted if there was no promise of sharing that money and no current athletes’ eligibility is impacted.
“I think Kentucky can end up paying whatever student-athletes are due for use of their likenesses when they’re no longer student-athletes by virtue of whatever those business kinds of arrangements are that are understood and reasonable by all of the lawyers,” Berst said. “It can’t be something special or extra or I’m going to take care of you more so than some other student-athlete attending another institution.”
The last hypothetical question: Could Kentucky apply a rule that when athletes end their eligibility, the school will give them all of their video footage to commercialize any way they wish?
“I would say the regulatory system of the NCAA, the rules of the NCAA, don’t address that kind of an issue,” Berst said.
Emmert and Berst testified the media-rights provision went into place about a decade ago for the purpose of promoting NCAA championships. Emmert said athletes who sign release the rights to use their image to promote championship games “for whatever period of time they’re used to promote championship games.”
“It’s really circuitous, isn’t it?” a lawyer for the plaintiffs asked. “How long? Infinite?”
“For promoting a championship game, yes, for that sole purpose, yes,” Emmert said.
Lately, the NCAA and the ex-players are locked in a battle of semantics over what points to admit. One of those points is over U.S. District Judge Claudia Wilken ruling that “student-athletes retain rights to their images, likenesses and names, and can license them once they are no longer student-athletes.”
The ex-players admit in court documents that Wilken’s order suggests athletes retain “certain rights.” The NCAA argues the response is “nonsensical and evasive” and wants the ex-players to admit this point “to the fullest extent possible.”
The ex-players say they have always acknowledged athletes retain some rights, but not all rights. “For example,” a lawyer for the plaintiffs wrote, “a former student-athlete can sign autographs, but he cannot sell footage of his game-winning shot at the NCAA tournament, because the NCAA takes the position that it is the owner of that footage.”
Former Alabama football player Tyrone Prothro, who is a plaintiff in the suit, told The News in 2011 that athletes give little consideration to the documents they’re instructed to sign.
“There are other things to worry about than signing a bunch of papers during two-a-days,” Prothro said. “Now, I realize I signed over pretty much my rights to everything that I accomplished.”
PLEASE NOTE:  This article was selected for educational purposes only.

Daily Compliance Item- 9/27/12- 13.6.7.5- Student Host Money

Hook Shot is a basketball student-athlete at Ocean State University (OSU).  Hook is going to serve as a student host this weekend for a recruit visiting campus.  How much money can OSU provide per day to Hook for entertaining the prospect?

A.  $30

B.  $40

C.  $50

D.  $60

The answer is BNCAA Bylaw 13.6.7.5 states that the student host must be either a current student-athlete or a student designated in a manner consistent with the institution’s policy for providing campus visits or tours to prospective students in general. The institution may provide the following to a student host entertaining a prospective student-athlete: [R] (Revised: 10/28/97, 11/1/00, 8/5/04)

(a) A maximum of $40 for each day of the visit to cover all actual costs of entertaining the student host(s) and the prospective student-athlete (and the prospective student-athlete’s parents, legal guardians or spouse), excluding the cost of meals and admission to campus athletics events. The cost of entertainment of the institution’s athletics department staff members who accompany the prospective student-athlete is also excluded. If an athletics department staff member serves as the prospective student-athlete’s host, his or her entertainment costs must be included in the entertainment allowance. The entertainment allowance may not be used for the purchase of souvenirs, such as T-shirts or other institutional mementos. It is permissible to provide the student host with an additional $20 per day for each additional prospective student-athlete the host entertains; (Revised: 1/10/90 effective 8/1/90, 1/9/96 effective 8/1/96, 5/12/05, 4/27/06, 4/26/12 effective 8/1/12)

(b) Complimentary meals, provided the student host is accompanying the prospective student-athlete during the prospective student-athlete’s official visit; and (Adopted: 1/10/92, Revised: 2/23/09)

(c) Complimentary admissions to campus athletics events, provided the student host is accompanying the prospective student-athlete to the events during the prospective student-athlete’s official visit. (Revised: 2/23/09)

 

PLEASE NOTE:  The allowance permitted increased from $30 to $40 a day with the adoption of NCAA Proposal 2011-40.  This piece of legislation became effective 8/1/12.

Daily Compliance Item- 9/26/12- 11.7.1.1.1.4- Outside Consultants

The Ocean State University (OSU) Athletic Director invited Oh N. Two, a local motivational speaker, to come by and do a presentation for all of the OSU student-athletes. Oh played baseball in college, so he stopped by the field to watch practice following the presentation.  During practice, Oh offered some instruction to the pitchers on proper technique.  For purposes of this example, OSU baseball coaching staff includes one head coach, two assistant coaches and a volunteer coach.

Since Oh only provided instruction one time to a select group of baseball student-athletes, is this a violation?

Yes.  NCAA Bylaw 11.7.1.1.1.4 states that an institution may use or arrange for a temporary consultant to provide in-service training for the coaching staff, but no interaction with student-athletes is permitted unless the individual is counted against the applicable coaching limits. An outside consultant may not be involved in any on- or off-field or on- or off-court coaching activities (e.g., attending practices and meetings involving coaching activities, formulating game plans, analyzing video involving the institution’s or opponent’s team) without counting the consultant in the coaching limitations in that sport.

 

PLEASE NOTE:  This fact pattern is an actual secondary violations case posted on LSDBi.

Daily Compliance Item- 9/25/12- 14.1.8.1, 14.5.5.5- Graduate Transfer- Men’s Basketball and Baseball

Pick N. Roll is a basketball student-athlete at Bay State College (BSC).  Pick is going to graduate at the conclusion of the fall 2012 semester but will have eligibility remaining for the 2013-14 academic year.  BSC does not offer a graduate degree in Industrial Engineering, so Pick wants to transfer to Ocean State University (OSU) in January 2013 for graduate school.  For purposes of this example, Pick meets all the parameters within Bylaw 14.1.8.1 and therefore is eligible for the one-time transfer exception.

Since Pick will be a graduate student at OSU, will he be eligible to compete during the January 2013 semester?

No.  NCAA Staff Interpretation- 9/21/12- Baseball or Basketball Midyear Graduate Transfer (I)- states that in baseball and basketball, a graduate student-athlete who qualifies for the one-time transfer exception but initially enrolls as a full-time student at the certifying institution after the first term of the academic year shall not be eligible for competition until the ensuing academic year.

[References: NCAA Division I Bylaws 14.1.8.1 (one-time transfer exception), 14.5.5.3 (competition in year of transfer) and 14.5.5.5 (baseball and basketball — midyear enrollee)]

Bonus Afternoon Daily Compliance Item- 13.1.3.1.1- Unlimited Phone Calls

The softball coaches at Ocean State University (OSU) are planning their phone calls to senior recruits for the remainder of the month. Since the recruiting calendar for softball will be a contact period, which of the following is true?

A.  The OSU coaches may make unlimited phone calls to senior recruits.

B.  The OSU coaches may make phone calls once per week to senior recruits.

C.  The OSU coaches are not permitted to make phone calls to senior recruits during the month of    September.

D.  None of the above is true.

The answer is A.   NCAA Bylaw 13.1.3.1.1 states that in baseball, cross country/track and field, men’s lacrosse, women’s lacrosse, women’s sand volleyball, softball and women’s volleyball, telephone calls to an individual (or his or her relatives or legal guardians) may not be made before July 1 following the completion of his or her junior year in high school, or the opening day of classes of his or her senior year in high school (as designated by the high school), whichever is earlier. Thereafter, such telephone calls shall be limited to once per week outside a contact period, but may be made at the institution’s discretion during a contact period.

Daily Compliance Item- 9/24/12- 12.1.2.1.6, 16.02.3- Preferential Treatment vs. Extra Benefit

DID YOU KNOW…

There is a difference between extra benefits and preferential treatment?

*The provision of extra benefits involve institutional staff members or boosters

*Preferential treatment occurs when institution does not have knowledge of the treatment, benefit or services being provided to the individual

Clay Court is a tennis student-athlete at Ocean State University (OSU).  Clay asks his coach to call the pro at a tennis club in his hometown, so that he can have some free court time during the Thanksgiving holiday.  The coach arranges for Clay to hit balls free of charge.  This tennis club offers student discount rates throughout the year.

Does this arrangement constitute a violation?

 Yes, other college students are not able to play for free.  They pay a discounted rate.

Is this an extra benefit or preferential treatment?

This arrangement is an extra benefit because of the coach’s involvement.

Would this arrangement still be a violation if the coach was not involved?

Yes, the violation would be preferential treatment.

12.1.2.1.6 Preferential Treatment, Benefits or Services.

Preferential treatment, benefits or services because of the individual’s athletics reputation or skill or pay-back potential as a professional athlete, unless such treatment, benefits or services are specifically permitted under NCAA legislation.

16.02.3 Extra Benefit.

An extra benefit is any special arrangement by an institutional employee or a representative of the institution’s athletics interests to provide a student-athlete or the student-athlete’s relative or friend a benefit not expressly authorized by NCAA legislation. Receipt of a benefit by student-athletes or their relatives or friends is not a violation of NCAA legislation if it is demonstrated that the same benefit is generally available to the institution’s students or their relatives or friends or to a particular segment of the student body (e.g., foreign students, minority students) determined on a basis unrelated to athletics ability.

Daily Compliance Item- 9/20/12- 11.1.5- Tobacco Use

Red Man, assistant football coach, and Copen Hagen, athletic trainer, at Ocean State University used chewing tobacco during every practice last week.  Is this a violation?

Yes.  NCAA Bylaw 11.1.5 states that the use of tobacco products is prohibited by all game personnel (e.g., coaches, trainers, managers and game officials) in all sports during practice and competition. Uniform penalties (as determined by the applicable rules-making committees and sports committees with rules-making responsibilities) shall be established for such use. (Adopted: 1/11/94 effective 8/1/94, Revised: 1/10/95, 1/14/97 effective 8/1/97)

PLEASE NOTE:  I was asked to write an item using this bylaw because there are still a lot of coaches and staff members that are not following this piece of legislation.  There are 30 secondary violations posted on LSDBi.