Buckeye Cardale Jones tweets that classes are pointless. And perhaps they are for him. Our summer associate for next year spent seven years working construction before going to college. Some things just mean more to us at different periods of our lives. My torts professor used to say that no one should be allowed to go to law school before age 27. And then there is Rod Stewart, "Why Go to School to Learn the Words of Fools".....Itchy Koo Park.
Ex Bruin, All American and former national player of the year Ed O'Bannon is suing the NCAA for using his image without his permission. O'Bannon, who has always appeared as a man of immense dignity, sells cars in Las Vegas, the last I heard, so he certainly has an economic reason to file suit. The decision to allow the case to proceed has been profiled in USA Today and The Chronicle of Higher Education.
While the article was written awhile ago, I recently asked a good friend about it. The friend was a major retailer in town before he retired, is a huge basketball fan and is not fond of lawyers. Here is his lay view:
“Clearly the NCAA should clearly state, in their scholarship agreements, their intentions with respect to commercial use of images. In fact, a "miranda" type announcement separately signed by the players should be required.
Even with that , their is a difference (to me) between using photographs and film of players versus using their electronic 'embodiment' in a video game, especially one that is interactive. An audio/video/visual record of a player in college is one thing but the creation of a virtual 'likeness' is quite beyond that.
Does the NCAA claim that they have the right to have an electronic interactive all star game featuring say Bill Russel, Jerry West, Oscar Robertson, Lew Alcindor etc without compensating the players?
I suppose that one might make the argument that their is a substantitive difference between using a player while he is on scholarship as opposed to later after he had cemented hall of fame credentials in the pros.”
I do not want this to be another hosanna about the evils of money in college sports, but with rich new contracts, and rich new penalties against USC, Ohio State and Miami, perhaps we are at the watershed.
The LA Times sports section of July 26, 2011 featured a young basketball player from Florida who is in the national high school tourney in Vegas. He is 5' 11" going on wow. Apparently, no one had ever heard of him before the tournament.
Moral is that in both sports and law, we grow at different speeds. I had an associate who started at a large firm in a small town. By the time he hit L.A. , he had done virtually every type of litigation because they had given him an opportunity to handle cases in a somewhat more relaxed atmosphere than in a large city.
I cut my teeth at the State Attorney General's Office where the encyclical was that first case to be tried should be in a rural county with small city jurors. My first case was as police brutality matter with a talking jury. First question from the jury was, "What kind of a name is Kravitz?" If I had blinked, I would have lost him. "Polish Jewish, sir." A good friend went from the City Attorney of Fresno to head of business affairs at a major studio. When asked by young lawyers how to get into entertainment law, his response was, "Move to Fresno!."
As featured on NYTimes.com’s article, “N.C.A.A.’s Double Standard,” there is a divergence of opinion as to whether NCAA has one standard or two. Ohio State is forfeiting title from 2010 and it does not get much bigger than that. On top of USC sanctions, it sure appears there is a new sheriff in town.
On July 21, 2010, USC announced appointment of former professional quarterback Pat Haden as their new athletic director. Hayden is a lawyer by profession, having gone to Loyola Law, my alma mater.
My favorite story involves a friend (not a sports fan) meeting Haden on a line (before there was online) to buy books. Hayden, who is not a large guy, asked my buddy what he did in his spare time and my friend replied that he played handball. Pat's response was that he played a little football. My friend responded that "I always considered those guys to be jock brains" completely unaware that Haden was a phi beta kappa and former Rhodes Scholar. Enchanted with someone who did not love him for his place on the field, the two became fast friends.
By the way, perfect choice for a school under heavy fire. Pick a guy who knows the law and has been trained to follow it.
Post contributed by Jaysen Chung, Summer Associate
Today, as reported by ESPN, the University of Southern California is scheduled to respond to the NCAA committee’s investigation findings of NCAA violations by the USC football and basketball programs (namely, Reggie Bush and O.J. Mayo). In light of this news, it is interesting to note the slew of other athletic programs that have recently been alleged to have committed their own NCAA violations. Included are University of Oklahoma basketball, UConn basketball, University of Michigan football, and University of Kentucky football. Violations range from players receiving money to help get a high school transcript cleared so that he could play for the team to impermissible phone calls and texts from coaching staff to recruits.
It seems as though we are always hearing about some college athletic program violating NCAA rules. Is it because the rules are too lenient? Perhaps, the NCAA is in need of stricter rules that will serve as a better deterrent to coaches and athletic department staff and will push programs to monitor their staff more closely. Alternatively, could the courts step in? In Shelton v. NCAA, 539 F.2d 1197 (9th Cir. 1976), the Ninth Circuit held that it is not judicial business to tell a voluntary athletic association such as the NCAA how best to formulate or enforce its rules. The courts’ function is only to determine whether the NCAA has selected a method of protecting amateurism which is reasonably related to that goal. So, for now, it looks like it’s all up to the NCAA. Who knows? Maybe the NCAA enjoys dealing with this headache.
As featured in sportsillustrated.com’s “Where’s the sportsmanship? Girl Disqualified for wearing bracelet,” a coach waited until the opposition cleared her pole vault and then had her disqualified for wearing a friendship ring. Perhaps the most famous legal quote is from Dickens...."The law is a ass, a idiot"(sic) . We do not cultivate respect for law with such rules.
In rivals.com’s article, “Kentucky flopped in the classroom in Calipari’s first season,” two items caught our eye. First, John Calipari's Kentucky basketball team got barely passing grades in the classroom. School is not for everyone, and it appears time for the NBA and NCAA to huddle on the "one and done" rule, particularly when the best and basketball brightest can go to Europe for a year to circumvent. Has anyone talked with any of the one year guys to see if they found that year of college to be worthwhile outside the arena?
Second, and more positively, UCLA Center for African American Studies just honored Harry Edwards. Mr. Edwards served for years as professor of Sociology at UC Berkeley. He organized the '68 protest by Black athletes that dramatized the barriers confronting Blacks in sports and society. Mr. Edwards went on to serve as consultant on diversity for the three major sports, including a stint with the Golden State Warriors and the development of the Minority Coaches Internship and Outreach Program with the Forty Niners. Why not reach out again to a pioneer and see if he can work through some of these issues? Society and the athletes deserve it.
The law of contracts is designed to bind two or more parties to an agreement. You do "x" and I will do "y," and if you do not, I will go running to court to enforce the promise or collect damages. Letters of intent are designed to bind athletes to schools. And while no one goes to court to enforce them (at least as far as we know) it does get tricky for athletes to transfer after they start at a school and play for a team.
Enter Brandon Knight, who has signed an aid agreement, but not a letter of intent at University of Kentucky, as reported by Michael Rosenberg on ESPN.com’s article UK recruit Knight a game-changer even before he enters school. Is it a contract? Well, it is a promise by the school to give Mr. Knight a college education and at least from the outside looks to be a four-year commitment as opposed to traditional athletic situations where the school can drop you after a year. As pointed out by the author, this one, on which the athlete pleads ignorance, may have as much to do with the jumpiness of Kentucky's coach as anything else.
Still, we may be looking at a different paradigm in the world of athletic college contracts. Was it only two years ago that athletes decided to defeat the pros ban on signing youngsters by starting their careers in Europe? Let's see if this is a one off or the start of something new.
On December 31, 2009, in the ESPN.com article, Leach fired short of Tech’s bowl game, it was reported Texas Tech football coach Mike Leach was fired by the University after a complaint of mistreatment by one of his players who had suffered a concussion. Press comments attest that the player's father (a former pro athlete) had a role in the complaints. Leach has filed suit asking for a swift hearing as his ability to get a new job is so obviously affected.
The whole situation is fascinating. On the one hand, we have a highly compensated coach with a written contract, claiming that he was fired without cause. On the other hand, we have the University protecting the student athlete and themselves from potential liability. But what about the student/athlete? He is not an employee and therefore cannot get workers' compensation for any injury. In theory, he can sue the University if he is badly injured, but how is the NFL or any other potential future employer going to look at that situation?
Bottom line: at least from the outside it appears that the University did what it need to....take a chance on suit from a (presumably) healthy coach and protect the kid. While colleges have largely abandoned the doctrine of in loco parentis (in lieu of parent), there are situations where their young charges need protection, in this case from real physical injury and not some transitory slap or slight (thank you Bobby Knight).
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