Sports Law Scoreboard : Sports Lawyer & Attorney : Fox Rothschild Law Firm : Intellectual Property, Copyright Infringement & Privacy for Athletes

In the ever changing world of NCAA conference realignment, one school, the University of Maryland, forgot about its obligations under the “Sunshine Law.” Maryland’s flagship public university, like all public bodies, must comply with open meetings requirements. So, when Maryland’s Board of Regents met on November 18 and 19 of 2012 to discuss what would eventually become Maryland’s move to the Big Ten conference, it had to at least give notice of the fact that it was going to hold a closed session and perhaps even open portions of the meetings up to the general public. A Maryland administrative opinion roundly rejects the university’s reasons for falling short of the notice provisions in Maryland’s “Sunshine Law.” According to one Washington Post story, Maryland’s Big Ten contract is so confidential, it does not even possess a copy, which may pose more “Sunshine Law” issues.

The Maryland dust up raises an important issue regarding the balance of power between schools, conferences and the NCAA itself. On the one hand, powerful conferences and the NCAA have rules and regulations to protect its interests, on the other hand schools have policy in place to protect its interests. Those policies are not always harmonious. So, what should schools, conferences and the NCAA do? The new NCAA president, recognizing this issue, began to downshift the NCAA’s regulatory authority, or at least its activity. However, balancing power between local and centralized authorities poses age-old policy problems. In this city (Philadelphia), there were a couple of folks who had some ideas on the topic. Perhaps an NCAA Constitution could replace or at least complement its notoriously lengthy rule book starting with the phrase, “We the Student-Athletes of the National Collegiate Athletic Association…”

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By Jeffrey S. Kravitz, Esquire & Sekou Campbell, Esquire

Sam Kahn, Jr. of ESPN Radio recently reported that Johnny Manziel is exploring the option of "Exceptional Student-Athlete Disability Insurance," provided by the NCAA. The insurance coverage is reported to be routinely sought by players in Manziel's position. Insurance, a frequent theme on this blog, poses interesting questions for college athletics generally, and for the "exceptional athlete" in particular.

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Relating to prior posts on this blog here, here, and here, the Chronicle of Higher Education points out that Notre Dame demonstrates how athletic excellence need not always compromise academic excellence.

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By Jeffrey S. Kravitz, Esq.

Johnny Manziel is putting up numbers for Texas A&M that make him, if not the odds on favorite for the Heisman, at least a face that we will see at the New York Athletic Club when the award is given. And why not? Does anyone doubt that Kareem Abdul Jabbar was the best collegian in the land as a freshman or Bill Walton?

In those days, freshman were not even eligible to play varsity ball, but Johnny Football sure looks good for a kid you never heard of coming into this season. As the sentiment in the Dallas Morning News Blog has it, why not? In private law firms, freshman are most often relegated to the back room (my firm excepted) but in public employment, they often hand you a file and say "try this case."  As a young pup, I faced a veteran trial lawyer on a civil rights case who had a big reputation. I was too green to know who he was and my bosses let me run with it. Beat him to everyone's surprise, I had a senior lawyer who did not want to try cases any more hand me a file, only to have me find out that I was facing the man known as the Desert Fox. Always loved the quote from Hall of Fame baseballer Dizzy Dean  "It ain't braggin' if you can do it."

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Schools and the NCAA have attempted to raise college athlete graduation rates, a subject of a previous post here.  California Governor Jerry Brown recently signed a law designed to further address the graduation rate woes in certain college athletic programs, at least for four schools in his state (UCLA, USC, Stanford, and UC Berkley).  The “Student-Athletes Bill of Rights” law has three features, all meant to mitigate the risk of a student athlete dropping out.

First, the law requires that student athletes get a guaranteed four-year scholarship so long as the university does not dismiss them “for cause.”  The law carves out an exception that permits schools not to renew a scholarship to an un-injured athlete if it graduates more than 60% of its student athletes.  Critically and wisely, the law requires schools to disaggregate their graduation rate data by sport.  Aggregated graduation rate data typically hides poor baseball, football, and basketball student athlete graduation rates.  The law also makes sure to name basketball and football players in its definition of student athletes.  According to one report, UCLA, USC and California have consistently had extremely large gaps between the graduation rates of their general student body and those of their football and basketball players.

                           Photographed by: Bobak Ha'Eri

Second, the law protects students from incurring prohibitive medical costs due to an injury incurred as a result of playing the sport for which they have a scholarship.  Specifically, the law requires schools to pay all medical costs for students, including insurance premiums and deductibles for low-income students.

Third, the law requires a “life skills workshop” for freshmen and juniors designed to encourage student athletes to understand debt, budgeting, and time-management.

At bottom, the law mitigates the higher risks facing student athletes due to injury and historically and currently low graduation rates.  It does so by addressing both the educational and physical needs of California students.  Stanford, apparently able to solve the graduation rate gap issue, and U.S.C. reportedly offer an equitable objection to the law, arguing that these protections should be extended to all California college student athletes and not just the four here.  However, big money schools like the California PAC-12 schools affected here have the resources available to take on the additional costs imposed by the “Student-Athletes Bill of Rights.”  Indeed, the law requires these schools to pay for any additional costs out of their media-rights revenue.  Most agree, however, that the state should pursue the principle that “neither personal injury nor poverty should dim the dreams of a student-athlete pursuing a college degree.”

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The tumult in the world today surrounding speech and religion reverberates in the sports world.  Specifically, the Freedom from Religion Foundation wrote the Chancellor of University of Tennessee, a public university, “urg[ing the University] to discontinue the practice of opening football games…with prayer.”  According to the letter, an announcer at Tennessee’s home games asks all attendees to stand for an invocation often praising Jesus Christ.  The Freedom from Religion Foundation suggests the adoption of University of Tennessee Chattanooga’s policy, where the school observes a moment of silence rather than a prayer.

Many, including our highest courts, have expressed the difficulty in drawing the line between free speech and government establishment of religion.  Prayer stands in the peculiar place of being susceptible to “suppression by tyrannous, well-meaning majorities and from abuse by irresponsible, fanatical minorities.”  Schaefer v. U.S., 251  U.S. 466, 483 (J. Brandeis).  For that reason, the Freedom from Religion Foundation letter raises important issues that challenges Tennessee to make some tough choices.

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Education is a unique commodity. Beyond the ability to earn more in the marketplace, education has an intrinsic value. It gives individuals the tools to more fully engage the entire observed world psychologically, personally, professionally, politically, and philosophically. Few other endeavors so dramatically expand rather than diminish returns of investment over time. Thus, questions of compensation in the school setting pose particular challenges to those who must adjudicate them.

I recall my own personal foray into the question when it involved graduate student unionization at Columbia University. As part of the student caucus of the Faculty Senate, I participated in difficult discussions with students, faculty and the administration about the challenges of collective bargaining in the academic environment. Students and administration officials in private universities continue to argue their positions on the matter.

The attention and money involved in student athletics only amplify these difficulties. Ed O'Bannon and Missy Franklin demonstrate the spectrum of student athlete compensation issues.  Former UCLA Bruin Ed O’Bannon is lead plaintiff in a 2009 class action suit seeking a percentage of the NCAA"s licensing revenue. He recently attempted to expand the class to include current men's basketball and football players, the two sports that garner the majority of licensing revenue for the NCAA. Under NCAA Operating Bylaws 12.1.2.1.4.1.2 and 12.1.2.1.4.3.3  "Operation Gold Grant" (Aug. 2011), Missy Franklin would be allowed to keep over $200,000 in compensation for her London Olympics' performance. Though, to her credit, she would forego exponentially more money if she retained her NCAA eligibility.

These difficult issues will require further exploration by NCAA officials, courts and other administrative bodies. However, "just saying no" to compensation may no longer be an option for the NCAA.

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Despite growth in graduation rates among college student athletes overall, basketball and football student-athletes graduate students at a rate 15% lower than their other sports' counterparts. To improve graduation rates, the NCAA recently announced that its standards would rise starting with this year's high school freshmen. The NCAA seized on "college preparedness” as a way to improve graduation rates.

Class of 2016 student-athletes will have to complete 16 core courses (English, Math, Natural Sciences, and Humanities) with a 2.300 GPA. Ten of those courses must be finished before that high schooler’s senior year. Those student-athletes who maintain a high school GPA between a 2.000 and 2.300 may be redshirted (allowed to practice and have a scholarship but not allowed to play in games).  The standardized test score requirements remained largely unchanged.

While academic preparedness should aid in improving student outcomes, the best indicator of academic success is time spent in the books. Thus, setting standards for "academic preparedness" outcomes without addressing the time pressure on big-time, big-money college student-athletes largely ignores the problem outlined in a recent NCAA study.  Male football and basketball players spend over 40 hours per week on average practicing during their season, 25% greater than nearly any other college sport.  Is it any wonder they graduate 15% fewer student-athletes? Women's basketball is the anomaly.  They practice about as long as football and male basketball players but have graduation rates competitive with other sports. 

Although there are limitations placed on practice times, many schools have found work-arounds that make it nearly impossible for a student to avoid the extra time required by large Division I football and basketball programs. The physical, psychological and emotional toll Division I college basketball and football sports take on young student athletes is a far greater impediment to academic success than their high school coursework and grades. Practice time is also distinguishable from work-study or off-campus jobs that do not require the same level of intensity, attention to detail, and oftentimes rigorous critical thinking and analysis.

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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.

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Richard Williams was the Swiss tennis champion and one of the survivors of the Titanic. He went on to be NCAA singles champion. Talk about dodging the bullet.....As a pup lawyer and a Deputy Attorney General, I defended a civil rights case filed in propia persona by one James Von Brunn. We won and years later he invaded the Holocaust Museum and killed a guard before being gunned down himself. And yes, I thought he was dangerous at the time. Let no one tell you law is a no-contact sport.

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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.

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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.

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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.

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As of this writing, the press, the blogs and the water coolers are alive with commentary on USC football coach Pete Carroll trading in a SoCal latte for a Seattle one, leaving behind a university that seems to be on the verge of NCAA sanctions.  

Different location and different scenario with football coach Jim Leavitt, who was fired by the University of South Florida for allegedly grabbing a player by the throat and then lying about it.  Leavitt took the program from the start and turned it into something of a giant killer.  

Each man was and is highly successful professionally and yet each will leave behind a university with some mopping up to do.  Should coaches bear any legal responsibility for the mess they lay behind?  Can contractual provisions be crafted to cover such situations?  Would such provisions leave universities in a competitive disadvantage in attracting talented coaches?  Should the NCAA require such provisions?  We have our own thoughts but pass this one out to our readers for preliminary comment.  To be continued…

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