|Included below is a recent statement from the NCAA regarding the application of Division I Proposal 2013-31-B.
Now is the time to establish and share best practices for applying this permissive legislation on your campus!
Application of NCAA Division I Proposal No. 2013-31-B
|PLEASE NOTE: This week begins the summer DCI schedule, so over the next couple of months there will only be one or two items a week or when timely information presents itself. Daily service will resume in August.
Ocean State University has two incoming basketball student-athletes that will be enrolling in summer school on June 1st.
Yes with the approval of the blanket waiver by the Division I Legislative Counciul Subcommittee for Legislative Relief.
The NCAA Division I Legislative Council Subcommittee for Legislative Relief approved a blanket waiver to allow incoming student-athletes whom, per NCAA Bylaw 13.02.12, are no longer considered prospective student-athletes as a result of attending classes during the summer term to participate in a high school or two-year college all-star contest. In issuing this waiver, the subcommittee noted the celebratory nature of all-star contests as a culmination of a high school or two-year college athletics career. Additionally, the subcommittee noted the minimal competitive advantage gained as a result of participation in a high school or two-year college all-star contest. Given the timing of these all-star events, incoming student-athletes would potentially be otherwise required to forego the opportunity to participate in an all-star contest or delay summer school enrollment in order to participate in the event.
See Case No. 675651 in Requests/Self-Reports Online (RSRO) via the search tab.
NCAA asks that O’Bannon trial be moved to February 2015
The NCAA on Tuesday asked that the impending trial of an anti-trust case relating to the use of college athletes’ names and likenesses and the association’s limits on what major-college football and men’s basketball players can receive for playing sports be delayed until February 2015, when it can be tried at same time as a related case concerning use of college sports themed video games.
However, its request to U.S. District Judge Claudia Wilken is largely based on a legal argument that Wilken seemed to reject during a hearing last Thursday.
It is unclear whether the NCAA’s latest argument will be enough to persuade Wilken to change her mind and delay the anti-trust trial from in its scheduled start date of June 9. Indeed, earlier Tuesday, lawyers for the anti-trust plaintiffs filed a proposed pre-trial schedule built around a June 9 trial date. In doing so, they wrote that they had discussed the proposed schedule with the NCAA’s attorneys and: “The NCAA does not object to the schedule proposed … while reserving all rights and objections to the scheduled June 9 trial.”
The NCAA’s expression of those objections revolves around what the association argues are overlapping issues between the anti-trust case, in which the lead plaintiff is former UCLA basketball player Ed O’Bannon, and the video-game case, in which the lead plaintiff is former Arizona State and Nebraska football player Sam Keller.
Although currently joined with the O’Bannon case, the Keller case – as a practical matter – is a separate proceeding. The Keller case involves a different legal theory: personalities’ right to control the use of their names, images and likenesses, also known as the right of publicity. It also is focused almost entirely on video games, while the O’Bannon case involves video games and an array of other ways in which athletes’ names and likenesses are used in college sports marketing, merchandising and broadcasting.
Most critically for the purpose of Tuesday’s filing, the Keller case involves a monetary damages claim and would involve a jury while the O’Bannon case has been narrowed to a bid for an injunction that will be decided Wilken. The NCAA is arguing that elements of the O’Bannon case related to video games will have to be heard by the jury in the Keller case, so a ruling that Wilken makes in the O’Bannon case could affect how a jury rules in Keller case. That, claims the NCAA, would result in a violation of its Seventh Amendment right to an un-encumbered jury hearing of its case.
The NCAA is pursuing this line of argument so vigorously that its Tuesday filing did not even address its prior request that Wilken either sever all evidence and claims related to video games from the O’Bannon case or delay it.
Tuesday, the NCAA wrote, in part, “even severance of the videogame claims will be insufficient to avoid Seventh Amendment violations.”
But, according to a transcript of last Thursday’s hearing – which occurred without arguments as detailed as those in the NCAA’s filing Tuesday – Wilken said in response to NCAA lawyer Glenn Pomerantz: “Well, here’s the thing. I just don’t see a Seventh Amendment issue here. … In terms of a separate case, just because there happens to be some overlap in issues, that just doesn’t raise the Seventh Amendment in any way.”
This article was selected for educational purposes only.
|Some of the coaches at Ocean State University would like their student-athletes to work with a sports psychologist during their out-of-season segment. Is this permissible?
Yes with conditions. NCAA Staff Interpretation- 5/15/14- Meeting with a Sports Psychologist Outside the Playing Season (I) – states that an institution may require a student-athlete to meet with a sports psychologist as a permissible out-of-season conditioning activity, provided the time engaged in the sessions are included in the maximum limit of eight hours per week for countable athletically related activities outside the playing season.
In addition, in bowl subdivision football, the sports psychologist would not have to count as one of the five strength and conditioning coaches permitted to work with the football program in any capacity.
[References: NCAA Division I Bylaws 18.104.22.168.1 (countable coach); 22.214.171.124.1.1 (noncoaching activities); 126.96.36.199.1.4 (use of outside consultants); 188.8.131.52.1 (weight or strength coach); 17.02.1 (countable related activities); 184.108.40.206 (weekly hour limitations — outside the playing season); and a staff interpretation (7/2/03, Item No. 1a)]
|Ree Bound is a basketball student-athlete at Ocean State University (OSU). Ree competed for OSU during the fall 2013 semester but became academically ineligible for the spring 2014 semester. OSU is participating in a foreign tour this summer. Even though Ree was not eligible during the spring semester, could he be eligible to compete in the summer foreign tour?
Yes. NCAA Staff Interpretation- 5/15/14- Eligibility for Foreign Tour If Ineligible During a Term of the Previous Academic Year (I) – states that a student-athlete who is eligible for any term during the previous academic year at the certifying institution would be eligible to compete in the institution’s foreign tour taken during the summer immediately following that same academic year. For example, if a student-athlete is eligible in the fall term at the certifying institution, but not eligible in the spring term of the same academic year, the student-athlete would be eligible to compete in the institution’s summer foreign tour taken during the summer after the conclusion of the preceding academic year.
[References: NCAA Division I Bylaws 14.5.1 (residence requirement — general principle); 220.127.116.11 (eligibility of student-athletes) and a staff interpretation (4/2/08 Item No. a) that has been archived]
|Hash Mark is a football student-athlete that just graduated from Bay State College. Hash is transferring to Ocean State University (OSU) and wants to participate in summer activities with his new teammates. Does Hash have to enroll in summer school at OSU in order to participate?
No. NCAA Staff Interpretation- 5/15/14- Graduate Transfer Student-Athlete’s Participation in Summer Athletic Activities (I) – states that an incoming four-year transfer student-athlete may participate in summer athletic activities without being enrolled in summer school prior to initial full-time enrollment at the certifying institution, provided:
(a) The individual has graduated from his or her previous institution;
(b) The individual has been accepted for enrollment as a graduate student at the certifying institution; and
(c) The individual has signed the certifying institution’s written offer of admission and/or financial aid or the institution has received the individual’s financial deposit in response to the institution’s offer of admission.
[References: NCAA Division I Bylaws 13.02.12 (prospective student-athlete); 13.02.12.1 (exception — after commitment) 18.104.22.168 (admission); 22.214.171.124.1.5 (summer athletic activities) 126.96.36.199.1.5.1 (basketball); 188.8.131.52.1.5.2 (football); 184.108.40.206.1.5.3 (exception to summer school enrollment — academic requirements — basketball and football); and 220.127.116.11.18.104.22.168 (application to transfer student-athletes) and a staff interpretation (3/15/13, Item No. a)]
|Ocean State University (OSU) women’s tennis team participated in the NCAA championships. One of the student-athlete’s parents lives in the locale of where the regional was conducted, so the team stayed at the parent’s house. As a thank you for their hospitality, the coaches would like to send an edible fruit basket to the parents. Is this permissible?
Yes. NCAA Staff Interpretation- 7/11/90- Providing a gift to parents of a student-athlete for services rendered – states that in regard to a member institution that wishes to give the parents of a student-athlete a gift for providing the team lodging at their home during an away-from-home contest; determined that such an arrangement would not be considered an extra benefit, provided the gift is of nominal value (e.g., a meal, flowers) and is in exchange for services the parents rendered.
|The assistant women’s basketball coaches at Ocean State University (OSU) have been asked to speak at a coaches clinic that is being conducted by a recruiting service. If there are not any prospects in attendance, is it permissible for the OSU coaches to be employed at this clinic?
No. NCAA Official Interpretation- 5/9/14- Coaching Clinic Sponsored by a Recruiting or Scouting Service (I) – states that an athletics department staff member may not be employed (either on a salaried or a volunteer basis) in any capacity by a coaches clinic established, sponsored or conducted by an individual or organization that provides recruiting or scouting services concerning prospective student-athletes, even if prospective student athletes are not involved in the coaches clinic.
[References: NCAA Division I Bylaw 22.214.171.124.1 (camp/clinic providing recruiting or scouting service) and staff interpretation (04/01/11, Item No. a)]
|Bo Gee is a golf student-athlete at Ocean State University. Bo had a bit of a rough season this spring and wants to make sure he is doing the right things over the summer to improve his game. Bo asks the coach if he can set up a meeting with him one day this summer to discuss ways he can get better.
Is this permissible?
Yes with conditions. NCAA Official Interpretation- 11/7/91- Individual consultation with a coach initiated voluntarily by a student-athlete – states that individual consultation with a coaching staff member initiated voluntarily by a student-athlete is not a countable athletically related activity, provided any discussion between the coach and the student-athlete is limited to general counseling activities and does not involve activities set forth in 17.02.12.1 (e.g., chalk talk; use of equipment relating to the sport; field, floor or on-court activity).
[References: 17.02.1.2-(j) (noncountable athletically related activities); 17.02.12.1 (activities considered as practice)]
NCAA makes new bids to redefine or delay O’Bannon trial
Lawyers for the NCAA on Monday night made two more filings designed to redefine and/or delay the prospective trial in a lawsuit relating to the use of college athletes’ names and likenesses, as well as the association’s limits on what major-college football and men’s basketball players can receive for playing sports.
The NCAA seeks to ask U.S. District Judge Claudia Wilken to reconsider part of her ruling April 11 on the sides’ respective requests for summary judgment – or, rulings in their favor without trial.
The association also is requesting that Wilken allow it to ask the 9th U.S. Circuit Appeals to review another aspect of her summary judgment decision. Because Wilken did not issue a ruling that ended the case, the ruling cannot be appealed without her permission.
Monday night’s moves mean the NCAA now has four pending motions that could alter the complexion or timing of the case brought on behalf of a group of former college athletes headed by UCLA basketball player Ed O’Bannon. At present, a trial is scheduled to begin June 9 in Wilken’s court in Oakland.
This past Friday, though, the NCAA filed two other motions in the case. It made an appeal with the 9th Circuit that seeks to dismantle the case’s status as a class action. It also asked Wilken to either separate claims relating to video games from the rest of the case or delay the trial until a proposed settlement of those claims is finalized or the Supreme Court decides whether to take up and resolve issues related to video games that presumably were going to be rendered moot by the settlement.
In addition to the prospect of Wilken delaying the case, if the 9th Circuit allows the NCAA to pursue either of its potential appeals, there is little chance that the trial will open as scheduled.
“If you were at the point (the NCAA is) in this kind of case, it’s automatic” that these types of motions get filed, said Steve Williams, an attorney who handles anti-trust and complex civil litigation for the Bay Area-based firm Cotchett, Pitre and McCarthy and has appeared before Wilken but is not involved in this case. “You do anything you can to slow it down.”
With regard to Monday night’s filing that asks for Wilken permission to approach the 9th Circuit, Williams said, “The NCAA is saying to the judge, ‘With all respect, reasonable minds can differ, reasonable judges can differ. Shouldn’t we let the appeals court take a look at it?”.”
However, Williams said he believes Wilken “will not be inclined to grant” the NCAA the permission it needs and that “the odds of (the 9th Circuit allowing the NCAA to bring forward its appeals at this point) are very slim as well.”
Wilken has determined that the plaintiffs can seek, on a class basis, an injunction that would prohibit the NCAA from limiting Bowl Subdivision football players and Division I men’s basketball players to scholarships under which they basically can receive only tuition, mandatory fees, room, board and books. An injunction could allow football and men’s basketball players to be compensated for the use of their names, images and likenesses in ways such as merchandising and live television broadcasts.
In Monday’s filing, the NCAA reiterated its position that athletes cannot claim a right to market the use of their names, images and likenesses in live TV broadcasts because some state laws expressly say that athletes have no such rights and because the First Amendment bars such claims, since major-college football and men’s basketball games are matters of great public interest and not commercial speech.
In her summary judgment ruling, Wilken, citing her interpretation of two previous cases, wrote that the First Amendment “does not guarantee media organizations an unlimited right to broadcast entire college football and basketball games.”
She added that question of whether college athletes “hold any ownership rights in their athletic performances does not depend on the scope of broadcasters’ First Amendment rights but, rather, on whether the student-athletes themselves validly transferred their rights of publicity to another party. Because the current record does not demonstrate that all Division I student-athletes validly transferred all of these rights, the First Amendment does not preclude student-athletes from asserting rights of publicity in live broadcasts or re-broadcasts of entire games.”
Under federal court rules, this type of decision normally cannot be appealed because it is not bringing a case to an end. But a district judge can give permission for such an effort if the judge decides the issue involves a legal question for “which there is a substantial ground for difference of opinion and … an immediate appeal … may materially advance” the case’s resolution.
The NCAA argued Monday that is precisely the case here “because (Wilken’s ruling on this question) determines whether the bulk of plaintiffs’ claims are viable at all” and because Wilken’s ruling on the First Amendment issue “is unprecedented, and it departs from decades of First Amendment jurisprudence.”
Even if Wilken gives the NCAA permission for the appeal, the 9th Circuit will not be required to take up the matter.
As for the issue that the NCAA would like Wilken to reconsider, it involves one of the justifications the NCAA has offered for its limits on what athletes can receive for playing sports. In this instance, the NCAA can have such limits unless the limits’ harm to football and men’s basketball players who might otherwise enjoy greater benefits from schools’ competition for them is found to outweigh the positive effect that the limits have on college sports.
The NCAA had offered five justifications for its compensation limits, but in her summary judgment ruling, Wilken wrote that the NCAA cannot say during the trial that the limits enable schools to provide increased financial support for women’s sports and less prominent men’s sports. She said the NCAA cannot limit competition in the markets for football and men’s basketball players in order to promote competition the markets for women’s sports of less prominent men’s sports.
She also said “the NCAA could mandate that Division I schools and conferences redirect a greater portion of the … revenue generated by football and basketball to these other sports” and the NCAA “has not explained why it could not adopt more stringent revenue-sharing rules” regarding money generated by the Division I men’s basketball tournament.
In seeking Wilken’s reconsideration of this, the NCAA argues that Wilken “wrong under controlling law” to hold the NCAA responsible for showing that alternatives exist; that obligation, it argues, was the plaintiffs’ — and they didn’t meet it. The NCAA also argues that the markets for football and men’s basketball players cannot be considered as distinct from the markets for women’s sports and other men’s sports because federal laws requiring gender equity in college athletics programs bar schools from viewing football and men’s basketball “as categorically distinct from other intercollegiate athletic opportunities.”
The NCAA’s chief legal officer, Donald Remy, said in a statement Monday night: “This issue is critical to fostering equity and opportunity in college sports. We support all student-athletes, regardless of whether their sport brings in revenue, and we believe that the current model provides opportunities for many young women and men to access higher education and earn a college degree.”
This article was selected for educational purposes only.