Daily Compliance Item- 2/28/13- Current Event

NCAA rules clarification closes Johnny Football ‘loophole’

CNNSI.com

Texas A&M star Johnny Manziel’s case will not bring down the NCAA’s amateurism model after all.

College football and basketball players hoping to cash in on the Johnny Football “loophole” should hold off before they retain intellectual property attorneys. A Texas A&M official said Tuesday that while the NCAA would allow Texas A&M quarterback Johnny Manziel to collect damages if his corporation’s lawsuit against the maker of the “Keep Calm and Johnny Football” T-shirt pans out, the governing body of college sports told Texas A&M it would consider an intentional copyright violation for the purposes of funneling money to a player to be a violation.

“They specifically called that out,” Texas A&M vice president of business development Shane Hinckley said. “If it was an orchestrated event between a student-athlete and a booster, then that would fall under the enforcement arm. So that’s pretty much out.”

Hinckley said the Johnny Football phenomenon has been a learning experience on the business and legal side. He calls the situation a “three-headed monster” involving Manziel’s likeness, his intellectual property rights and the intellectual property rights of Texas A&M. Hinckley said about 20 percent of the unlicensed Johnny Football merchandise he’s seen has also infringed upon Texas A&M’s marks. Texas A&M is not allowed to market merchandise bearing Manziel’s name or nickname. It is allowed to sell his No. 2 jersey with no name attached. Still, even if Texas A&M’s marks are not used by a Johnny Football merchandise seller, Hinckley said any use of the school colors (maroon and white) could be considered a violation of the school’s intellectual property rights based on the 2009 ruling in favor of LSU against Florida-based T-shirt maker Smack Apparel.

Whether Manziel should be able to cash in now on his notoriety is another issue for another day, but it appears his case will not be the one that brings down the NCAA’s amateurism model. Despite the suggestion that the ability to recover damages would be a loophole, the NCAA is aware of that possibility. “They specifically said that if it was an orchestrated event that it would fall under the enforcement proceedings and be a separate issue,” Hinckley said. “So all this talk about loopholes, there’s not a lot of ground for that.”

 

This article was selected for educational purposes only

Daily Compliance- 2/27/13- 16.02.3, 16.6.1.5- Picnic for Parents

Ocean State University (OSU) will be conducting its annual spring football game in a few weeks.  The coaches would like to host a picnic for the parents after the game.  Is it permissible for OSU to provide this benefit to the parents?

No.  NCAA Official Interpretation- 4/13/90-Picnic expenses for parents of student-athletes– states that the provisions of Bylaw 16.02.3 would preclude an institution from providing a meal for parents of student-athletes at the conclusion of its spring 1990 football game, unless the parents are charged for the cost of the meal.

This type of benefit could be permissible, however, if the picnic meets the parameters in Bylaw 16.6.1.5.

Bylaw 16.6.1.5– An institution may provide the family members of a student-athlete with reasonable food and drinks in conjunction with educational meetings or celebratory events (e.g., senior night) and on an occasional basis for other reasons. [R] ((Adopted: 4/27/00 effective 8/1/00, Revised: 4/25/02 effective 8/1/02, 1/16/10, 1/19/13 effective 8/1/13).  This bylaw was slightly updated with the adoption of RWG Proposal 16-5.

Daily Compliance Item- 2/26/13- 13.6.7.7- Snacks for Siblings on OV

High Post is a prospective student-athlete being recruited by a lot of Division I basketball coaches across the country.  High is going to take an official visit to Ocean State University (OSU) this weekend, and he would like to bring his parents and little brother Low with him.  Low is in first grade and is a huge basketball fan.

The Athletic Director will be hosting High and his family at his house Saturday night for dessert.  Since OSU cannot provide meals for Low, does High’s family have to pay the cost of the dessert for Low?

No.  NCAA Staff Interpretation- 5/8/92- Brother or sister of prospect provided an after-meal snack– states that during an official visit, the sibling of a prospective student-athlete may receive a dessert or after-dinner snack at the home of an institutional staff member (e.g., the director of athletics, coach, faculty member or the institution’s president).

NCAA Bylaw 13.6.7.7– The cost of actual meals, not to exceed three per day, on the official visit for a prospective student-athlete and the prospective student-athlete’s parents, legal guardians, spouse or children need not be included in the $40-per-day entertainment expense. Meals must be comparable to those provided to student-athletes during the academic year. A reasonable snack (e.g., pizza, hamburger) may be provided in addition to the three meals.

Daily Compliance Item- 2/25/13- 14.3.1.3- Use of Retake SAT Score

Andy Athlete is a freshman student-athlete at Ocean State University.  Andy was certified as a qualifier by the NCAA Eligibility Center at the beginning of the academic year.  During the fall term, Andy’s SAT score was invalidated by SAT officials.  Andy retook the test in December and achieved a high enough score to maintain qualifier status but not high enough to validate the original score.  Can Andy use this re-take score taken after initial full-time enrollment to meet initial eligibility requirements?

No.  NCAA Staff Interpretation- 2/14/13- Use of Retest SAT or ACT Scores for Initial Eligibility (I)- states that if a student-athlete is required to retake the SAT or ACT following initial, full-time collegiate enrollment because the validity of the student-athlete’s qualifying test score achieved prior to enrollment is challenged, the student-athlete would be considered to have satisfied the test-score time limitation if the retest score is high enough to validate the pre-enrollment score. However, if the student-athlete’s score on the postenrollment retest is high enough to be considered a qualifying score but is not high enough to validate the pre-enrollment score, the student-athlete would not be considered to have satisfied the test-score time limitation. Only private retest scores achieved through a standardized examination, administered in accordance with secure procedures set forth by the testing agency (no residual campus testing) may be used to satisfy initial-eligibility requirements. Such a retest is not required to be administered on a national testing date.

[References: Bylaws 14.3.1.3 (test-score requirements) and 14.3.1.3.1 (test-score time limitation); official interpretation (08/14/1996 Item No. 5-a-8) and staff interpretation (07/16/1999 Item No. a) which have been archived]

Daily Compliance Item- 2/22/13- Current Event

Miami’s NCAA defense has sudden change of tone

USAToday.com

 

Miami President Donna Shalala is politely declining interview requests for the time being, which perhaps isn’t surprising. She’s already said plenty this week.

But the university’s abrupt reversal from quiet cooperation to public defiance is startling.

“We have been wronged in this investigation,” Shalala said Monday in a statement after the NCAA made public the report of an external review that found significant misconduct by its enforcement staff investigating a booster’s allegations of rule violations. Tuesday, after the NCAA issued a Notice of Allegations to Miami that included a charge of “lack of institutional control”, the school’s response was at least as strident, saying, “many of the allegations … remain unsubstantiated” and attacking the process.

“Miami went from being very cooperative and helping the NCAA (in the investigation) and looking like they were going to take their lumps and move on from it to fighting and doing so very publicly,” said John Infante, a former university compliance officer and proprietor of The Bylaw Blog, which covers NCAA compliance issues.

The language in both statements was unusual for a university administrator, especially before an NCAA investigation is completed, and appeared to be a sharp reversal of strategy.

“It’s unprecedented,” said David Ridpath, an assistant professor of sports administration at Ohio University and a frequent critic of the NCAA’s enforcement arm. “In many ways she’s thrown down the gantlet and challenged (the NCAA): ‘Bring it on.’ ”

The outcome will likely boil down simply to how strong the NCAA’s case actually is. For more than two years, the NCAA has been investigating allegations made by booster Nevin Shapiro, who is serving a 20-year sentence for running a $930 million Ponzi scheme, and according to Shalala’s statement, is “a man who made a fortune by lying … a convicted con man.”

The NCAA fired its vice president for enforcement after an external review by the law firm Cadwalader, Wickersham & Taft found members of the enforcement staff secured the services of an attorney to secure information from depositions in Shapiro’s bankruptcy proceedings. Thirteen interviews and portions of 12 more were excised from the investigative record. Yet attorney Ken Wainstein, who led the external review, estimated only 20 percent of the evidence had been “tainted” and removed, and the NCAA apparently felt strong enough about the remaining 80 percent to charge “lack of institutional control.”

Miami’s statement in response noted Shapiro’s dubious credibility and said the NCAA enforcement staff told the school that if Shapiro “said something more than once, it considered the allegation ‘corroborated’ — an argument which is both ludicrous and counter to legal practice.”

But a person familiar with the NCAA enforcement staff’s activities told USA TODAY Sports that Shapiro’s allegations included rich details – dates and locations – that were corroborated by multiple documents and witnesses. The person spoke on condition of anonymity because of the sensitivity of the matter.

That anyone’s talking at all points to the unique circumstances of the case. And when it comes to Shalala and Miami, it isn’t just the public venting. It’s the timing.

In June 2010, then-USC athletic director Mike Garrett ripped into the NCAA at an offseason booster function. Earlier that day, the Committee on Infractions had announced harsh penalties for violations involving star running back Reggie Bush. According to the Los Angeles Times, Garrett told fans: “As I read the decision by the NCAA … I read between the lines and there was nothing but a lot of envy. They wish they were all Trojans.”

The defiant comments distilled what some felt had been the general attitude of the school toward the investigation, which had run for many months. But Garrett’s fighting words came after the NCAA had ruled. Literally, it was all over but the shouting – which is an important distinction.

Shalala’s statements – especially the one Tuesday night, in acknowledgment and response to the Notice of Allegations – come during the process. The school faces a date this summer with the Committee on Infractions, which will ultimately rule on the allegations and determine whether to add penalties beyond those already imposed by the school (which include two consecutive bowl bans and reduced scholarships).

The stance played well with many, perhaps because of the natural antipathy held by many college football fans for the NCAA and especially its enforcement arm. And it appears to have been a calculated move, an attempt to leverage the university’s suddenly strong position in relation to the misconduct by NCAA investigators. But it could backfire, both in the court of public opinion and the court of the Committee on Infractions.

“It’s a bit of a tight-wire act,” said Ridpath of Shalala’s and Miami’s new, combative stance. “But in a lot of ways, she definitely jumped off of (the wire) and she’s taken the gloves off. It’s a risk – but I think it’s worth taking.”

Both statements seemed to be aimed in part at persuading the Committee on Infractions that the school has already been heavily penalized, both with its self-imposed sanctions and from two years of negative publicity. “We deeply regret any violations,” Tuesday’s statement said, “but we have suffered enough.”

There’s also the potential of a lawsuit, as well as an implicit threat that Shalala, who served as Secretary of Health and Human Services during the Clinton presidency, is well-connected in Washington, D.C. But Jo Potuto, a former chair of the Committee on Infractions, said she wasn’t surprised to hear Shalala’s comments. Potuto said the publicity surrounding the NCAA’s investigation – and specifically, the misconduct – is a significant, exacerbating factor.

“It makes this case extraordinary from the perspective of a president and a campus,” Potuto said. “It didn’t seem to me the substance of what Donna Shalala said would be different from what one would expect to hear in a committee hearing.”

Potuto said the Committee on Infractions would rule on the merits of the case presented to them. But Infante and others suggested the Committee might be concerned with the misconduct by the NCAA investigators, but might also be unhappy with Shalala’s public comments.

“I wouldn’t bet the rent on what the Committee on Infractions is ever gonna do,” Infante said. “They could say, ‘No, there are still problems, 80 percent is still significant, we’re gonna impose other penalties.’ Or almost equally likely the Committee could take out its frustration on the enforcement staff and let Miami off.

“The risk is there. I think it’s a coin toss.”

Daily Compliance Item- 2/21/13- 16.1.4.3- Awards to Ineligible Student-Athletes

The Ocean State University women’s basketball team won its conference tournament this year.  The Conference office will be providing each member of the team with a championship gift.  There are two student-athletes on the team that did not attend the tournament because they have been academically ineligible all year.

Can the Conference office provide a gift to these two student-athletes?

No.  NCAA Official Interpretation- 12/12/94- National or Conference Championship Awards to Ineligible Student-Athletes– states that it is not permissible for an institution or conference (or organization approved by either) to provide awards in recognition of conference or national championships to student-athletes who were not eligible to represent the institution in intercollegiate competition during the applicable sport season.

 

[References: 16.1.4.3 (conference and national championships) and staff minute 12/07/88, item c]

 

Daily Compliance Item- 2/20/13- 16.2.1.1.1- Complimentary Admissions for a Conference Tournament

Alley Oop is a basketball student-athlete at Ocean State University.  Alley’s team will be participating in its conference tournament next week, and she would like to provide tickets to a few of her family members.  How many complimentary admissions may Alley provide?

A.  2

B.  4

C.  6

D.  None

The answer is CNCAA Bylaw 16.2.1.1.1 states that an institution may provide each student-athlete who participates in or is a member of a team participating in a postseason event (e.g., conference championship, NCAA championship, National Invitation Tournament, bowl game) with six complimentary admissions to all intercollegiate athletics events at the site at which the student (or team) participates.  (Adopted: 1/9/96 effective 8/1/96, Revised: 11/1/01 effective 8/1/02, 1/17/09 effective 8/1/09)