National Collegiate Athletic Association (NCAA)

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

Three women’s basketball coaches are under investigation for alleged mistreatment of their players, the coaches at Duke, Nebraska and Loyola of Chicago. Each is considered a great coach, but they have had an inordinate number of transfers. Other programs have allegations of racial prejudice and over-involvement in personal lives. Big-time pressures and big-time worries come to big-time women’s sports. Keep in mind that the boundaries on intentional infliction of emotional distress vary from state to state, but sooner or later, a lawsuit is more likely than not.

Not too soon to invoke Spider-Man, “With great power comes great responsibility.. “

I went to see my beloved UCLA Bruins lose to Monmouth State from the great state of New Jersey. It was a surprise that the Bruins have redeemed themselves by beating both Kentucky and Gonzaga. While they did not do it at the UCLA game, the Jerseyites have become somewhat famous for sideline antics, including the Creation of Adam from the famous Michelangelo fresco.

Creation of Adam
Copyright: mike301 / 123RF Stock Photo

In response, there are noises that the NCAA is going to ban sideline demonstrations. Let’s be clear. We are not talking about something obscene or mocking the other team. Neither are we talking about disrupting the game. We are talking about something childlike but not childish…in other words “fun.”  With the NCAA fighting off paying its athletes, here’s voting that they do not feel the need to take away something that is an additer to amateur sports. Do we really need another court case on something like this?

Monmouth Park Racetrack
Copyright: andykazie / 123RF Stock Photo

Today is a crucial day for New Jersey in its mission to legalize sports betting, as it will argue its position on the issue against attorneys for the four major American professional sports leagues and the NCAA this morning in the Third Circuit Court of Appeals in Philadelphia, Pennsylvania.

Attorney Theodore B. Olson, who represents New Jersey in this action, plans to argue that U.S. District Court Judge Michael Shipp erred in ruling that that New Jersey’s partial repeal of its prohibition against sports wagering violates the federal Professional and Amateur Sports Protection Act of 1992 (“PAPSA”).  New Jersey will likely also assert that the professional sports leagues have “unclean hands” due to their partnerships with fantasy sports websites.

While it is true that some sports leagues have recently embraced pay-fantasy sports websites, the leagues remain steadfast in their quest to thwart New Jersey’s legalization efforts.  They believe that PAPSA clearly prohibits the 46 states not exempted from the act’s application from legalizing sports betting in any fashion.

The Third Circuit has previously ruled in favor of the sports leagues, but the Court’s prior Opinion potentially provided the state with a loophole – it acknowledged that even under PAPSA, states have “much room . . . to make their own policy” and can establish their own parameters of sports betting prohibitions.  New Jersey will assuredly use that language in support of its argument today.

Led by Governor Chris Christie, New Jersey has been undeterred by many unfavorable court decisions in the two-plus years since the sports leagues initially sued to prevent the state from commencing sports betting.  While nearly all casinos and racetracks in New Jersey have seen revenues decrease each of the last few years, the state and its casino/racetrack owners believe that sports betting could reverse their fortunes and bring in millions of dollars yearly.

Whether the Third Circuit will continue to affirm the sports leagues’ position that PAPSA prevents New Jersey from having authority to legalize sports betting remains to be seen. What is certain is that today’s oral argument and the resulting decision is extremely crucial in determining the future of potential sports betting in New Jersey, in addition to many other states that may wish to follow its lead.

Copyright:  / 123RF Stock Photo
Copyright: / 123RF Stock Photo

In a case that may go to the California State Supreme Court, the Court of Appeals has denied the NCAA’s blanket claim of protection for its internal investigation interviews. Mr. McNair, the former USC running backs coach, alleges in his lawsuit that the college body ruined his career in the Reggie Bush investigation.

The NCAA based its claim on the supposition that witnesses came forward because they had been promised protection pursuant to the NCAA’s bylaws guaranteeing secrecy. The Court did not buy it, holding that there is a presumption of open records in judicial and quasi-judicial proceedings. As featured in the Los Angeles Times, the Court felt that sunshine overrode secrecy. As a trial lawyer, and a second guesser, it might have been better for the NCAA to have argued for certain records to have been kept confidential, rather than for 400 pages of materials to be kept secret. The ruling follows non-binding but influential other cases in other jurisdictions. To be continued….

Monmouth Park Racetrack
Copyright: andykazie / 123RF Stock Photo

On Friday, Judge Michael Shipp granted the NCAA and four major professional sports leagues a permanent injunction to prevent New Jersey casinos and racetracks from offering sports betting.  The decision was unsurprising, but still extremely disappointing, to New Jersey state officials who have been attempting to establish legalized, regulated sports betting in the state for over three years.

New Jersey should, and it appears will, exercise any and all legal options it has in fighting to establish sports betting in the state.  State Senator Raymond Lesniak, the leader of New Jersey’s campaign to legalize sports betting, told ESPN on Friday that New Jersey would appeal Friday’s decision to the Third Circuit Court of Appeals this week.

Regardless of the outcome of the appeal, hopefully other leagues will follow the lead of National Basketball Association Commissioner Adam Silver.  Eight days before Judge Shipp’s ruling, Silver, whose league ironically is a party fighting against sports betting in New Jersey, wrote a heavily-discussed op-ed in the New York Times calling for Congress to “adopt a federal framework that allows states to authorize betting on professional sports, subject to strict regulatory requirements and technological safeguards.”

Silver acknowledged that sports betting in the United States currently operates mainly through “illicit bookmaking operations and shady offshore websites.”  Why not legalize and regulate the industry so governments and legitimate businesses can be the beneficiaries instead of underground bookmakers and offshore websites?

If the NCAA and other professional sports leagues adopt Silver’s position, Congress would be more inclined to pass legislation revoking the outdated Professional and Amateur Sports Protection Act.  The benefits of an industry that will continue to thrive whether or not it is operating legally should shift from underground bookmakers and offshore businesses to governments and legitimate businesses.

obannon

 

As we dig through the 99-page opinion in O’Bannon v. NCAA here at the Sports Law Scoreboard, we’re keeping in mind that this is only the trial court opinion of one judge.  Next stop will be the Ninth Circuit, which is likely to be sensitive to the students’ claims as well.  Final stop (if settlement is not achieved, of course) is the U.S. Supreme Court.  Anyone want to lay bets in favor of the individual athlete v. the corporate NCAA?  That’s what we thought.

This guest post is authored by Tamarra J. Holmes.  Tamarra is an associate in our Litigation practice, resident in the Princeton, NJ office.  She can be reached at tholmes@foxrothschild.com.


The NCAA announced on Thursday, August 8, that it would no longer sell team-related merchandise through its website, ShopNCAASports.com.

The revelation came after ESPN analyst, Jay Bilas announced via Twitter that the site provided the functionality to search for gear by using a student-athlete’s name. Bilas’ twitter account even had screen shots of the website which displayed the football jersey of suspended athlete, Tyran Mathieu. There were also basketball jerseys available for purchase by searching for former UCLA Bruins basketball star, Shabazz Muhammad, who was recently dismissed from the NBA’s Rookie Transition Program.

The announcement comes as a surprise to many who believe the NCAA is behaving poorly considering its policy of not allowing student athletes to benefit from the sale of merchandise using their name and/or likeness. Players are not allowed to profit from their names, however, a simple search for stand-out athlete’s names on the NCAA’s site brings up merchandise selling for up to $180.

The NCAA is reportedly investigating Texas A&M quarterback Johnny Manziel for profiting off of his autograph. Manziel, the 2012 Heisman Trophy winner who is known by the name “Johnny Football” took steps to trademark the phrase to prevent others from selling merchandise using the phrase. He intends to use the trademark when he turns pro. If the NCAA investigation finds that Manziel violated the NCAA’s rules he could be ruled ineligible to continue playing college football. If Manziel plays any games at A&M and is then subsequently ruled ineligible the school must forfeit any wins. Obviously Texas A&M and the NCAA stand to lose quite a bit of profit by disqualifying one of its most electric stars. Oddly, the Texas A&M booster club was able to sell tickets to the team’s kickoff dinner for a six-person table for $20,000. One of the six guests, Mr. Johnny Football ™ himself.

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…”

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.

 
Most critically, perhaps, insurance may be a way to reconcile the NCAA’s tension between amateurism and big-money media contracts. Generally, insurance is a type of compensation. Employees frequently receive health insurance, life insurance, retirement insurance and other forms of financial protection as part of their compensation. However, the actual payout is generally deferred until a "triggering event."
 
The Exceptional Student-Athlete Disability Insurance Program, however, limits who can pull the "trigger" and makes the "trigger" itself tiny compared to the potential losses all student athletes face. The policy provides coverage for a limited number of athletes (top round draft picks in baseball, basketball, football, and men’s hockey), charges a premium (though there is a mechanism for impecunious players to acquire the necessary coverage), and pays out in a limited number of circumstances ("permanent total disability," requiring what amounts to a career-ending injury).
 
However, the NCAA’s insurance policy is, at worst, a tepid acknowledgment that at least some of its athletes bear a burden by playing NCAA sports. Advocates for compensating athletes may be able to convince the NCAA that the success of its nearly 25-year old insurance program may be due for some broadening for two reasons.
 
First, this policy does not cover the "late bloomer" exceptional athlete. For instance, the current insurance policy would have likely excluded the likes of Scottie Pippen, Tom Brady, or Randy Johnson. Second, athletes who decide to "go pro in something other than sports," also bear a risk from injury. For instance, a student-athlete may suffer a hand injury foreclosing her from a career as a surgeon. There are obvious costs to expanding exceptional athlete insurance, but those can be captured in premiums, deductibles and other terms, as with any insurance package.