The NCAA is Gilda Radner on NIL: The Biggest NCAA Revolution Since 1956 — and What the Player Should Do

SATURDAY NIGHT LIVE — Episode 16 — Pictured: Gilda Radner as Roseanne Roseannadanna during “Weekend Update” sketch on April 7, 1979 — (Photo by: NBC/NBCU Photo Bank)

“Oh – NIL? — Never Miiind.”

It’s a revolution.

Since the NCAA unveiled its duplicitous 1956 Scamateurism system, the organization has been a shark, gobbling every single possible economic opportunity (stopping along the way, to reorganize its greedy deceptions under a 2004 ‘Collegiate Model’ rubric.)

But now, after 75% of the states have proposed or adopted new player NIL statutes, which preclude the NCAA shark from eating everything, as they organization and its schools have done since 1978, the NCAA suddenly backed down.

There are, we are told, now no NCAA controls over player NIL. NIL, it appears, has been sent down the same ‘Home-Rule’ route which player safety was funneled-down more than a half-century ago.

Home-Rule? — that means that schools and conferences can do whatever the hell they want, with NIL.

Now everyone’s all wiggy. What’s up now?It’s a revolution, The times they are a changin.’ Nothing’s the same.

Many people have done great work, to get all those state statutes passed. They deserve great praise. They caused a revolution.

Now there is no need for those statutes, most of which are more restrictive that the new NCAA NIL rules. So repeal them. (This is particularly true with respect to those statutes which constrain potential player employment status rights — mark my words, within one year, there will be a P5 player who is found to be an employee.) It’s also true with respect to any statute which purports to control the player’s right to: 1) not report to the school his NIL deals; and 2) do deals directly with Nike, Adidas, or the other apparel suppliers.

Nike and Adidas and the others – and the big time P5 athletic departments — should be very nervous, because the new NCAA NIL rules appear to not regulate the player’s ability to do direct deals with those entities. This jeopardizes most of the long-term contracts which schools have done with those apparel suppliers. (Many of those contracts have, right now, sold player NIL rights, regarding players who are still in the 7th grade.)

All of the Third-Party Entities who have done deals with athletic departments, which purport to authorize them to deal directly with players concerning player use or sale of his NIL should be nervous.

Players should revoke, in writing, by July 1, any NIL waiver he has previously executed — and ask the school to provide him with written new school NIL rules, and a copy of any new NIL waiver the school now might wish to have him sign.

With respect to NIL, the power has shifted to the players.

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Two First Questions Every NCAA Player or Recruit Must Ask of the University: 1) Where’s Your New NIL Waiver You Want Me to Sign?; and 2) You’re Going to Pay My Attorney Costs to Have it Reviewed, Right?

Yesterday the NCAA, in a grand reversal, made Player NIL into what’s called a ‘Home Rule’ matter — meaning that each school has wide discretion to set its own rules for Player NIL.

The change: 1) makes many of the state Player NIL bills or enacted legislation unnecessary; and 2) means that a number of those bills now unnecessarily and significantly curb player rights, by limiting his access to employee status, and ability to sell his own NIL rights to be used by apparel and media companies in commerce.

The change also means that every school will be drafting its own NIL Waiver, for the player to sign. And they can all radically differ.

First Player Requests

The NCAA change means that every player, including upperclassmen, freshmen, and recruits, should make two First Requests,, in writing (in an email), for any school compliance person or recruiter:

Demand #1: Copy of School’s New NIL Waiver Form

Give me a copy of the new NIL Waiver which the school now wants me to sign.

[These will all differ, because the NCAA’s new action means that they can.]

Demand #2: Pay Attorney’s Fees, as an Alston ‘Educational Cost’

Pay my costs associated with hiring an attorney to review the NIL Waiver you want me to sign?

[These are “educational costs” which the school can fund under the Supreme Court’s Alston ruling — at least for enrolled players, though I would contend that, because most recruits are minors, those costs should also be paid by the school.]

Why are these the First Requests Every Player Must Make?

The player who arrives on campus owns ALL of his NIL rights, just as he might entirely own his own car. The text of the school’s proposed waiver will show how much of his NIL ownership the school wants the player to surrender.

The NCAA Change Means the Player Has Alot More Power

The NCAA change yesterday gives the player MUCH more power in the negotiation about choosing to enroll, or choosing not to transfer. This is a new age, and the player needs to understand that he now has HUGE new bargaining power, just because of the NCAA change yesterday. The variance, from school-to-school, about what Player NIL each school wants to demand that the player surrender can drastically affect that player’s access to NIL-related income.

Why does the player need independent attorney advice, paid by the school?

Because the school and player have an economic conflict of interest as these Player NIL issues undergo sea changes. As a result, the player should refuse to take advice on these waiver issues from one of the third-party businesses which the schools have hired to handle NIL issues — because those firms have the same profound conflict of interest with the player.

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The 1984 Regents Decision: The Game Was a Organ-Grinder’s Business — and the Player Was an Organ-Grinder’s Monkey

1984 Regents Decision: The NCAA is a Business

The Supreme Court Calls the Game a Business, and Busts-Up One Portion of the NCAA Cartel

NCAA seizure of control over its members’ TV contracts in 1951 brought the organization its first steady flow of income; it also emboldened executive director Walter Byers to designate and limit the games to be televised. But because only nine percent of mid-century American households owned a TV, and many athletic departments saw the new medium as a threat to live-attendance ticket sales, the NCAA’s seizure of control over TV had limited initial economic impact. But by the early 1960s, more than 90 percent of homes had a TV, and the NCAA’s 1961 TV package was generating $3 million in new revenue. And as the popularity of college football continued to grow during the 1960s and 1970s, a small set of athletic-powerhouse schools, including Notre Dame, Alabama, Texas, Ohio State, Michigan, Southern Cal, and Nebraska, were repeatedly selected by Byers for the weekly televised NCAA football game. (On any given Saturday, just one game was televised, and some schools never appeared on TV.) Because this NCAA “TV Aristocracy,” as Keith Dunnavant called it, was able to develop stronger rivalries, fan bases, ticket sales, alumni support, recruiting, and TV income, sixty-three of the excluded schools formed the College Football Association in 1976, to negotiate their own TV contracts, and to persuade the NCAA to lift its broadcast restraints.

In 1981, the CFA signed an NBC contract to televise games between 1982 and 1985; in response, the NCAA declared that any participating CFA school would be expelled from the NCAA. As a result, many CFA members dropped out, and its NBC contract fell through. But in +1981, CFA members Georgia and Oklahoma filed an antitrust action, NCAA v. Board of Regents of the University of Oklahoma, challenging what they claimed was ongoing NCAA cartel-based price-fixing in the college football TV market.

The Court Penetrates the NCAA’s Not-Business Scam, and Triggers a Quantum Leap

Spurred by school presidents tussling over juicy TV revenues from football operations they referred to as “commercial enterprises,” the U.S. Supreme Court found that the NCAA had been operating a business cartel in violation of the Sherman Antitrust Act. NCAA restraints on TV commerce, the court said, did not “serve any legitimate procompetitive purpose,” because the consuming public would benefit from having more games available in the televised football market. These findings, that the NCAA was both business and illegal cartel, along with some of Justice Stevens’ explanatory musings (the meaning and import of which would be the subject of long debate), generated one of college sports’ Quantum Leaps.

All Did Not Welcome the Court

But, unable to know that within a decade the decision would fuel an explosion in the popularity and profitability of televised college basketball and football, and the scope of athletic department operations, Byers and his non-CFA members initially saw Justice Stevens as an unwelcome stranger. They were clearly wrong: every NCAA member should now recognize him as one of the most welcome of all the strangers to have ever arrived at NCAA arenas.

Stevens Functioned as a Management Consultant, Telling the NCAA How to Run a Much More Profitable Business Cartel

The Player as Product-Maker, Product-Differentiator, and Product

Justice Stevens’ opinion, in fact, might now be seen as a set of PowerPoint nuggets, delivered by some whiz-kid management consultant retained by Walter Byers, to advise NCAA members about maximizing immediate and long-range sports Promo-Tainment income opportunities. Below is a listing of those Regents-based nuggets:

Nugget #1: You are a business. You make and sell a product. Your product is Football.

The Regents case is best known for having dismantled a portion of the NCAA’s TV cartel, but its fundamental underlying premise — that NCAA televised football was a business – was just as significant. Justice Oliver Holmes’ opinion in the Supreme Court’s 1922 Federal Baseball case had declared that “personal effort, not related to production, was not a subject of commerce,” and that professional baseball was not, therefore, commerce. A game was a game, not a business, Holmes suggested. By the early 1950s, NCAA attorney Joe Rauh was suggesting that his organization’s restraints upon its TV commerce were really just Not-Restrictions. And several years later, in 1956, Walter Byers crafted his Not-Business incognito for the NCAA’s new Scamateurism-based commerce. But Regents penetrated these deceptions, finding that NCAA football was both “industry” and “product” and that NCAA football players were a critical part of a business operation which generated substantial revenues for the schools.

Nugget #2: Your own TV-market restraints hurt your business. Get rid of them. Once you do, you will eventually make a lot – and I mean a lot — more money.

Nugget #3: You sell Football to fans. They are consumers. Very few are students on campus.

Nugget #4: In the minds of those consumers, your business has a valuable product-brand, called “The Revered Tradition of Amateurism.”

Stevens told the NCAA that its business possessed an attractive commercial brand, which he called “the revered tradition of amateurism.” “The NCAA seeks to market a particular brand of football – college football,” Stevens wrote, and “the identification of the ‘product’ with an academic tradition differentiates college football from, and makes it more popular than, professional sports to which it might otherwise be comparable, such as, for example, minor league baseball.”

Nugget #5: Your Product-Brand has three parts: 1) Football; 2) Made-by-the-Unpaid (MBU); and 3) Made-by-the-Academic (MBA).

Stevens also identified what he saw as the product’s commercially-alluring constituent parts. “In order to preserve the character and quality of the product,’” Justice Stevens said, “athletes must not be paid, must be required to attend class, and the like.” Though Stevens had before him little evidence about either class attendance or pay, his statement meant that the “character and quality” of the NCAA’s revered brand derived from three parts: football was tied to (“identified with”) two commercially-differentiating factors which, based on Stevens’ analysis, can be called “Made-by-the-Unpaid,” [MBU] and “Made-by-the-Academic” [MBA].

Nugget #6: Your player is your Product-Differentiator.

Nugget #7: Your player is also your Product-Maker. He makes football.

Nugget #8: Your player is also your Product. Your sports-business managers and other school staff shape that Player-Product, to ensure that the fan thinks of him as a highly-differentiated, Unpaid Academic.

Nugget #9: The economic and academic controls you impose upon your Player-Product, to ensure that he appears as an Unpaid Academic, will be protected from antitrust scrutiny. Work to maintain them both, because they have enormous value.

Stevens also suggested that the Player-Product’s Unpaid and Academic aspects so effectively maximized consumer welfare, and school TV income, as to make school control over the player’s pay and academic activity “pro-competitive” and, therefore, exempt from antitrust review.

_____________________________

Stevens’ Two Differentiators Were Off-Stage Factors

Though the two litigants’ eagerness to get at TV revenues made clear to Justice Stevens that neither revered the 1956 Not-Business scam invented by the NCAA, both happily let the court fall for the NCAA’s other scams. And, fall for them, Justice Stevens did. In most respects, his MBU and MBA factors merely restated the NCAA’s 1956 Not-Pay and Not-Job scams – even though his Differentiators (and the NCAA’s scams), were unusual, if not bizarre, in all of post-Civil War commerce. Some Product Differentiators, like the Big Mac’s secret sauce, or Coke’s formula, are inanimate; others, like Geico’s Gekko, have some life. Some, like the speed of Federer’s serve, are human Differentiators, which arise out of the performer’s physical presentation. A smaller sub-set, like the Everly Brothers’ filial relation, are based upon the consumer’s perception of the relationship between the performers.

But some Differentiators arise out of the consumer’s conception of the performer’s off-stage character or daily life. Early-1950’s movie moguls, for example, aimed to increase or maintain the market-differentiating power of their heart-throb, closet-gay Rock Hudson product, by requiring that he announce his off-stage, (and entirely staged) marriage to a woman. And some Differentiators, like the “Union-Made” label on a pair of jeans, derive from the consumer’s understanding of the relationship between business owner and laborer. Stevens’ MBU and MBA Differentiators were based both upon the consumer’s conception of both the player’s off-field life, and the relation between the owner-school and the laborer.

Stevens’ Differentiators Were Economic Factors

And Stevens’ designation of the MBA Differentiator was not driven by some need to preserve the sanctity of the academy, or the purity of a purportedly ancient or virtuous amateur game. His Sherman Act-assigned task was to assess the interplay of commercial factors, within a sports Promo-Tainment market. As a result, his MBA factor was significant only because it fortified the economically-differentiating character of his MBU factor, by helping ensure that the consumer would believe that the relationship between the school’s athletic business and its player-producer was devoid of economic aspect. No educational undertaking, Stevens’ silly Differentiators have helped the consumer believe, can ever be allowed to be tainted by any association with commerce.

Stevens’ Differentiators were Subjective — and Manipulable — Factors

“This is the west, sir. When the legend becomes fact, print the legend.” – reporter, to Jimmy Stewart, in The Man Who Shot Liberty Valence.

And because Stevens’ two Differentiators were off-field factors, divorced from the fan’s direct perception of the game, they would prove well-suited to the spins and cons of post-1984 NCAA big-time sports. According to Stevens’ formulation, that the two Differentiators were founded in fact was irrelevant: he needed only identify the concept (or even, perhaps, fantasy) which the consumer held in his mind, and pursued with particular purchasing passion.

Stevens’ Paradigm: NCAA as Organ-Grinder, and Player as Organ-Grinder’s Monkey, Leashed on the NCAA’s Tether

But if the game was a business, how could its player, assigned so many fundamental roles, possibly be considered anything other than its employee? How, for example, could Stevens have rationally concluded that the game-business would get anything done, or produced, without the toil of paid employees? The answer lies in the implicit, perverse paradigm at the heart of Stevens’ analysis: think of yourselves, management-consultant Stevens told NCAA members, as Organ-Grinders, and your player, as your Organ-Grinder’s Monkey-on-a-Tether, with a tin cup on the sidewalk in front of you both. And you, Stevens told the litigants, get all the coin in the cup (though you must be sure to allow each member to put out its own cup). And because, Stevens pronounced, the entertainment consumer who passes before you on that sidewalk reveres the notion that your monkey-player-on-a-tether is an unpaid academic, you must use that tether to keep that monkey’s hand out of that cup. And Stevens’ perverse economic paradigm depended upon the fiction that any monkey-on-a-leash just had to be an economically-infantile creature – even if, by the early 1980s, every player was an adult.

The Court’s Perversion: Transmuting ‘No-Pay’ From Legal Sin, to Legal Virtue

The Management Consultant’s Dream: You Don’t Pay the Help?

The Regents decision officially transmuted the absence of worker pay – an element so pernicious, that it triggered the Civil War – into a purportedly market-differentiating, and ever-so-commercially-alluring factor, deserving of protection from antitrust scrutiny. Consider, for a moment, if mid-19th-century cotton-king plantation owners had retained a management-consultant like Justice Stevens: would he have also told those business owners that their slave-based operations should continue to refuse to pay their slaves, because to do so was just part of a revered tradition of slavery, which would therefore maximize consumer attraction to the product, and income from that business? Both slaveholders and 20th-century college football owner-schools loved not-paying their help, but only the latter group of business owners – fortified by the Regents decision — had the audacity to enter the 21st century touting the absence of worker pay as a reason for the consumer to revere and buy their products.

The Fetishization of Player No-Pay Status

“The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum, a great variety of morbid symptoms appear” — Antonio Gramsci

Stevens had jettisoned the NCAA con that the game was a Not-Business – but also laid the groundwork for what would emerge, over the coming decades, as a central element of modern NCAA sports: the NCAA cartel’s fetishization of player No-Pay status. Stevens’ formulation claimed that, like some Qing Dynasty male, who achieved a high level of sexual titillation when viewing females with feet deformed by culturally-mandated foot-binding, the American sports Promo-Tainment consumer was commercially-titillated when viewing athletic performers he understood to have been both unpaid and academically-focused.

Justice Stevens Helped Secure the Not-Pay and Not-Job Scams as Strands for the NCAA’s Emerging Tether

The Supreme Court generated a college sports Quantum Leap, by declaring that: 1) the NCAA was a business cartel restricting members’ broadcast rights in violation of the Sherman Act; and 2) some portion of that NCAA business deserved protection from antitrust scrutiny, because its football product was a part of a commercially-enticing “Revered Tradition of Amateurism,’ which was differentiated, in the mind of the consumer, by its Made-by-the-Unpaid (MBU) and Made-by-the-Academic (MBA) factors. Justice Stevens’ decision helped the NCAA economically fetishize the player’s unpaid and academic aspects, as items to be purchased. The decision also fortified the notion that the player must be barred from any access to third-party-derived income. But Regents’ primary impact may have been to ensure the role of player No-Pay as a central strand of what was then a still-emerging tether used by the school to control a newly-adult player.

Copyright 2021 William Wilson


 

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Why an NCAA Hire of Oliver Luck, to Manage His Proposed Sharecropping Arrangement with Players, Might Not Be Such a Good Idea

Sportico reports that Oliver Luck has a ‘non-profit’ which is bidding to manage player NIL for the NCAA.

This is the equivalent of a post-Civil War, post-slavery scheme to keep the black players toiling, at some radically-reduced income, on the same land.

Luck — by all accounts, a sweet, and personally engaging, honest, and kind person — is clueless about the legal reality. And his cluelessness has propelled him to generate this proposal. A proposal which, however much it wears an ostensibly high-minded ‘non-profit’ toga, will give Luck access to staggering levels of personal income. On the backs of — and taking economic advantage of — primarily black players.

Luck is Major-League Clueless

Why do I say this? Listen to Luck, debating Jay Bilas, back in October 2015, and crooning like some attenuated big-band star featured on Lawrence Welk re-runs, a sampling of some antique in loco parentis Greatest Hits, from a long-gone era:

– “We have a difficult time with student-athletes who are athletes, and students who are non-athletes, emphasizing to those students how important an education can be . . . it’s very difficult for many young folks to realize that four or five or six years is a worthwhile investment in education because you don’t immediately see the payback. The difficulty we have of convincing folks of deferring their gratification by getting an education – it’d be even more difficult if we had paid employees playing football or basketball.”

– “There’s plenty of time to earn dollars, and if a student is dead set on doing that, he can make that decision to leave early to play professionally.”

– “The opportunity to go out and earn money would distract students, in a very significant way from pursuing what they really need to pursue, which is their education. Having the opportunity to do an autograph signing, or an endorsement, really distracts that young person from what’s really important, which is the educational component.”[i]

– “[As regards] the player’s triangle of athletics, academics and social life, if you turn that triangle into a square and add another component of promoting or marketing yourself, there’s simply no time to do that, particularly an 18 or 19 year who is not necessarily sophisticated in business and promotions.”

– “We’d be worse off in the challenges we have convincing young men and women of the value of higher education . . . to get a degree. We’d be worse off if we were paying those student-athletes because, quite honestly, it doesn’t make sense to me to figure that into the equation of what they have to do, there’s a lot of time demands on our student-athletes, it’s a very challenging period.”

— “There’s still alot of in loco parentis on campus.”

Luck’s Major-League Cluelessness Might Have Something to Do With His Bent for Major-League Personal Income

This is major league cluelessness. In loco parentis on campus — as a basis for athletic department or NCAA control over the player — disappeared (as a result of national and state legislative and judicial changes) between 1965 and 1985. It’s gone.

But not in Oliver Luck’s world-view: Luck’s player is still a child. Who needs alot of help, from adults. It’s preposterous. The player at age 18 is an adult, entitled to hire his own agent (or others) to manage and push his affairs.

But Luck wants to be declared that adult-player’s agent — because of a contract which he does with the NCAA! Even though the NCAA no longer has a waiver which might give it even some color of ownership or control over the player’s NIL rights.

And Luck’s cluelessness is at the heart of the wealth which he now seeks, with his bid to control and manage player NIL. (Always look twice at claimed cluelessness, on a path to wealth.)

Until Luck bothers to even read the cookbook law, he should withdraw his bid. It’s beneath his fine character.


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Why Congress Should Ignore All NCAA Entreaties for New National Player NIL Legislation

“Before participation in intercollegiate competition each academic year, a student-athlete shall sign a statement in a form prescribed by the NCAA Division 1 Legislative Committee in which the student athlete submits information related to eligibility, recruitment, financial aid, amateur status, previous positive drug tests administered by any other athletics organization.”

The above passage is lifted from the current Student-Athlete Statement which the D-1 player is required to sign. It also states that a failure to sign “shall result” in his “ineligibility for participation.” It further provides that he must sign “in order to be eligible to participate in intercollegiate competition.” 

“There is no basis in NCAA rules for withholding eligibility from a student-athlete who has declined to consent to that section.”

But any claim that the player’s signature is required should be contrasted with 2012 sworn deposition testimony from top NCAA top executives. When questioned as to whether the player’s signature on the NIL waiver (within that 2012 version of the SAS) was required, NCAA President Emmert responded, “I don’t know of an incident where that’s been an issue. I believe,” Emmert added, “it’s the case that there is not a formal requirement, but I’m not completely sure of that.” NCAA Vice President Kevin Lennon similarly testified that the player who did not sign that section “would not lose his or her eligibility to play NCAA sports,” adding that “there is no basis in NCAA rules for withholding eligibility from a student-athlete who has declined to consent to that section.” And NCAA Vice President David Berst testified that the section was “voluntary,” and that he would be “pleased to ensure that it’s clearly understood that the player has a choice.” 

But if the player had no duty to sign that NIL waiver section, during an era when the SAS explicitly told him that signing the document was “required,” why – for two years after their testimony – did those top NCAA executives do nothing to ‘ensure,’ as Berst had promised, that all players would know they had no obligation to sign that section?

That, in fact, never happened; instead, the NCAA suddenly excised the NIL-waiver section from the SAS in August 2014, at the end of the O’Bannon trial testimony, but before the O’Bannon verdict at the trial level.

What do these facts tell you?

Since 2014, the NCAA Has Not Been in the Business of Governing Player NIL

At least since August 2014, the NCAA has not been in the business of governing player NIL. To use the NCAA’s own classifications, the 2014 excision of the NIL shifted the topic, from NCAA majority-rule defined ‘Institutional Control’, to ‘Home Rule’ — where it was left to the individual school or conference.

(So why did the NCAA dump that waiver?: It was done quietly, and without explanation, but the timing — at the very end of the O’Bannon trial, was a broad hint: it was to dodge antitrust sanction, by telling the court and the public that the NCAA would no longer control or own player NIL.)

But there may be a broader lesson.

The NCAA Has Never Required the Player to Surrender His NIL

The NCAA executives’ testimony suggested that the player has always had the freedom to refuse, without penalty, to sign the NIL waiver. In fact, the necessary lesson from that testimony is that the “required” or “shall sign” instructions within today’s SAS is just the same old trick by the document’s drafters, to get the player to sign the NIL waiver — the same drafters who might, when later pressed, confess to the recruit, with a grin: “Aw, we didn’t mean you had to sign – we just wanted to seize as many assets and rights as you might be stupid enough to sign over to us!”

This sworn testimony suggests that a signature by today’s player on an NIL waiver presented to him by school or conference is not required by the NCAA. It also suggests that, since 2014, (and, perhaps, long before), the NCAA has not been in the business of governing player NIL rights.

Why Does This Matter?

Despite all appearances, the NCAA has, for at least seven years, but also, more likely, even decades, been avoiding the business of governing player NIL.

The NCAA’s failure, over the last two years, to adopt player NIL legislation — contrary to Mark Emmert’s assertions — has nothing to do with a failure to reach suitable compromise within the organization. It is a mere continuation of the NCAA’s decades-old de facto policy of shunning all governance of player NIL.

No Congressperson, or anyone else, should entertain any lobbying effort by Mark Emmert or the NCAA, to pass legislation affecting player NIL. The NCAA long ago happily left the issue to the individual school or conference.

For at least seven years, and perhaps decades, the NCAA has insisted that schools and conferences must govern player NIL. That’s exactly what has happened, and the NCAA should not now be heard that some outside national legislative body needs to change things.


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Why Most of the Proposed State NIL Laws Are a Big Step Backward, Part III

Amateurism-is-Whatever-We-Say-It-Is” and “The Local Student Benefit

In the first post on this topic, I said that most of the recent proposed (or passed) statutes affecting college player NIL were deeply flawed, because they allow the player to utilize his Category 3 “Lone Wolf” NIL, but bar him from using or benefiting from his much more valuable Category 1 (Shoe and Apparel) and Category 2 (Broadcast/video) NIL.

In the second post, I described how no other adult citizen in American commerce is singled out, as many of these statutes do, to arbitrarily bar him from using and profiting from his NIL, and effectively give it to another party (here, the school and NCAA).

In this third post, I contend that these many state NIL statutes are unnecessary. To explain why requires a peak behind the sham which is the NCAA’s supposedly clear line between the amateur and the employee.

The NCAA ‘No-Pay’ Sham: The Supposedly ‘Clear’ Line Between Amateur and Employee

Most fans believe that NCAA athletes are not paid. And Article 1.3.1 appears to support this notion, declaring that one of the NCAA’s “basic purposes,” is to “retain a clear line of demarcation [LOD] between intercollegiate athletics and professional sports” – a line which, the NCAA would have the public believe, is ‘No-Pay.’

But other bylaws actually carve two gaping holes in this NCAA ‘No-Pay’ facade.

The AIWWSII Carve-Out: “Amateurism-is-Whatever-We-Say-It-Is

Any Pay or Benefit is Fine, if Approved by NCAA Legislation

First, any pay or benefit is allowed, if approved by NCAA legislation. Bylaw 12.02.10 declares that “pay is the receipt of funds, awards or benefits not permitted by the governing legislation,” and bylaw 12.02.9 defines the “professional athlete” as “one who receives any kind of payment, directly or indirectly, for athletics participation except as permitted by the governing legislation of the Association.” Finally, bylaw 16.02.3 declares that an ‘extra benefit,’ is “any special arrangement by an institutional employee or representative of the institution’s athletics interests to provide a student-athlete or the student-athlete family member or friend a benefit not expressly authorized by NCAA legislation.i The key phrases here — “except as permitted by the governing legislation of the Association,” and “not expressly authorized by NCAA legislation,” together reflect the de facto LOD: any player pay or benefit approved by NCAA legislation is perfectly fine. Here the NCAA pronounces its first rule concerning player pay or benefits: Amateurism-is-Whatever-We-Say-It-Is.

And, starting with the NCAA’s 1956 vote to allow Athletic-Pay, the list of payments or benefits permitted by this provision is long. Tennis players are permitted up to $10,000 in annual prize earnings, and can receive additional money, as long as it does not exceed their expenses for the event. Olympic medal-winners can receive USOC payment-awards, and the USOC can pay for an athlete’s training, equipment, apparel, travel and even health insurance costs. Like Kyler Murray, whose receipt of a $4.7 million signing bonus from baseball’s Oakland Athletics did not bar him from playing quarterback for Oklahoma, two-sport athletes have long been allowed to be paid professionals in one sport, while competing in another. Football bowl game participants are allowed to receive ‘swag’ gifts from bowl sponsors, valued at no more than $550, and most schools now maintain Student Assistance Funds or Academic Enhancement Funds, to reimburse players for unique expenses, which can even include new suits worn by players or, sometimes, travel costs associated with family-member attendance at Final-Four and College Football Playoff events.ii In Alston, in fact, the District Court’s Judge Wilken cited seventeen examples of such NCAA-sanctioned player pay.iii Player benefits and pay are, according to this rule, limited only by the imaginations of NCAA members who, unencumbered by logic or, even, any tradition of amateurism, can vote to allow any pay, fund, benefit, or arrangement. The latitude which the NCAA seizes with this rule is not just ample: it is unfettered.iv

The “Local-Student-Benefit” Carve-Out: Amateurism is Whatever Happens to Some Group of Local Students

This completely ignored carve-out suggests that any benefit is fine, if some student group on campus also gets the same or similar kind of benefit.

Bylaw 16.02.3 says that “the receipt of a benefit by student-athletes or their family members or friends is not a violation, “if it is demonstrated that the same benefit is generally available to the institution’s students or their family members or friends or to a particular segment of the student body (e.g., international students, minority students) determined on a basis unrelated to athletics ability.”

This is a ‘Home Rule’ bylaw, meaning that the NCAA tells each school that, in these specific circumstances, the school has its own ‘ample latitude’ to govern on the issue.

To summarize, then, this carve-out:

1) does not require passage of NCAA legislation; and

2) permits any player benefit which is also “generally available” to students — or some sub-segment of students — on the local campus.

The expansiveness of this ‘local’ standard is, for the casual observer, startling.

It does not require, for example, comparison to a benefit received by some hypothetical average group, or sub-group, of students across the U.S. Instead, it gives each school remarkable leeway to define its own benchmark, based upon a comparison with the experience of students on its own campus.

The provision could also have narrowed its benchmark, by limiting the comparison to some sub-set of solely undergraduate students, or only full-time students, or even just students whose payments or benefits have no possible connection to any employment.

Instead — devoid of any such limitations — this often-ignored provision pronounces a remarkably permissive test, which embraces the full diversity of all student experience, and produces two unexpected results:

1) it clearly expects that the nature and extent of permissible player benefits will vary from campus to campus;

2) because so many D-1 schools now have 30,000 or more students, each with a cornucopia of undergraduate and graduate experiences, each school can likely make a very long list of such sub-groups of students, who receive almost any imaginable variety of pay or benefit: students on scholarship, who are paid to work for the school library or cafeteria, or to usher at football games. Paid interns. Teaching assistants. Work-study students. Students on music scholarships, who play for-pay gigs, on or off campus – and sell their recordings online. Those on fellowships. Students paid to participate in ROTC. Those who work part-time or full-time, on or off-campus, as waiters or bartenders. Inventor-students, who receive income from their inventions.v At Stanford,” David Drummond, a Google Vice President said in 2012, “the policy for licensed inventions calls for one third of the royalties to go to the inventor [often a student], one third to the inventors’ department, and one-third to the inventors’ school. Medical residents who, 75 years ago, received $10 per month, but now are often annually paid $60,000.

Each of such sub-groups of students can be used as a benchmark, to show that some pay or other benefit the player has received, beyond his ‘scholarship’ and COA stipend, does not violate NCAA rules.

More to the point: by showing that some sub-set of students on campus receives NIL-related income, whether from an online or other presence, the player can show that NCAA bylaws permit him to continue to own and profit from, without limitation, his NIL rights.

As a result, the application of this “sub-set of students” benchmark renders completely unnecessary:

1) any new NCAA pronouncement about NIL policy (beyond, perhaps, articulating that this benchmark is the one which will be applied to those issues); and

2) any of these new proposed (or passed) state NIL-related statutes.

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A Related Side Note, about The NCAA’s ‘Current Understanding’ of ‘Tethered to Education’:

Perhaps more clearly than any other bylaw provisions, the two alternative AIWWSII and Local Student standards can be seen as having given precise definition to the NCAA’s “current understanding of amateurism” which, according to Judge Bybee in O’Bannon, so efficiently “preserves the popularity” of the NCAA’s product, as to warrant protection from antitrust scrutiny.

The two standards are the most accurate expression of the NCAA’s ‘current understanding’ of the ‘tethered to education’ benchmark which Judge Bybee defined in his 2014 O’Bannon decision (and which was applied by Judge Wilken in the recent Alston decision) for measuring permissible player payments or benefits: a player benefit, according to this bylaw’s definition, is ‘tethered to education,’ if: 1) NCAA vote has permitted it; or 2) some sub-set of students on the local campus gets something like it.

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Why Most of the Proposed State NIL Laws Are a Big Step Backward, Part II

Yesterday I said that most of the proposed (or passed) statutes affecting college player NIL were deeply flawed, because they allow the player to utilize his Category 3 “Lone Wolf” NIL, but bar him from using or benefiting from his much more valuable Category 1 (Shoe and Apparel) and Category 2 (Broadcast/video) NIL.

Many Irrationally Throw In a Bar Against Player Employee Status

Many of these proposed statutes are also flawed because they gratuitously bar the player from employee status. This is what-the-hell, choose-with-blindfolds-on legislating. (As just one example, had deceased Maryland football player Jordan McNair’s attorneys only chosen to pursue a workers’ compensation claim, based upon a claim that he was a school employee at the time, he had a reasonable chance of prevailing.) A bar against player employee status is Draconian, to say the least, and there is no reason to include such a bar in a bill which relates to player NIL usage.

Give the Player a Trinket, To Make Up For Taking His Car

It is as if these proposed statutes give the player a trinket, while simultaneously taking from him the car he brought with him to college — in order to give that car to the school to use, in perpetuity.

New Deeply Irrational Business Models

The overall business model which would result from most of these statutes is deeply irrational. It is nonsensical, but also brutal in in its long-term impact upon the player.

If they can, willy-nilly, single out the player, to impose significant controls upon his NIL, and his ability to participate in all commerce arising out of that NIL, why did the statutes stop there?

Why, for example, not also require that the coach similarly also surrender all of his Category 1 & 2 NIL? — and cap all coach annual income at, say, $750G per year? There is no rational reason to leave the coach out of these externally-imposed statutory constraints.

Alternatively, why not include a statutory provision which imposes new controls upon the other two major players in the college sports market: the Shoe/Apparel Suppler, and the Broadcast Third-Parties? Require, for example, that any Shoe/Apparel Suppler which provides more than $2 million per year in benefit for a school also set aside an annual amount in trust for the player, calculated on some rational per capita basis?

No Other Citizen Has His NIL Seized From Him, By Statute

The point is that these proposed statutes cherry-pick almost randomly-chosen market-controls, to be arbitrarily imposed solely upon the college player. And to fully comprehend the irrationality and unfairness of these statutes, it needs to be understood that it is not just the coach (or AD) who escapes similar new economic controls: EVERY other citizen escapes any such controls.

These arbitrary controls, which significantly restrict the player’s ownership and use of the NIL he owns, are unique in all of American commerce.

Just More Toying With Adult Black Players, Under the Guise of ‘Helping a Kid’

It is as if the state legislators somehow see the college sports business model as just as socially vital and necessary as the business of common carriers, or of nuclear power generation, to justify imposing these zany, highly specialized and highly-controlling player NIL provisions. The difference though? Common carrier, nuclear power, and even public utility regulatory statutes constrain owners — not laborers.

These statutes will create some of the weirdest business models, anywhere — all to the detriment of the laborer at their center.

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Why Most of the Proposed State NIL Laws Are A Big Backward Step

The natural state of college athletics, when the player arrives on campus for his freshman year, is this: the player owns his Name, Image, and Likeness (NIL) rights.

But the school quickly demands that he waive — hand-over — all those rights. Player NIL, in fact, is The Golden Nugget for the schools and the NCAA, because it has, collectively, such staggering value. And the NIL Waiver is the gun which allows the school and NCAA to hold-up each player, to take that Golden Nugget from him.

(This extraordinary waiver, on its own, is strong prima facie evidence of an employment relation.)

Right now, Player NIL is potentially sold in roughly three different markets:

1) Shoe and Apparel (to Nike, Adidas, etc.);

2) Broadcast: this category includes networks, digital, and video. (These sales actually allow or trigger NIL re-sale, through conferences or other media packages); and

3) Lone-Wolf (my term): these are the remainder uses, usually involving direct, player-specific deals with smaller advertisers, or direct-to-consumer deals.

The Category 3 deal, as of today, is essentially dormant and of little value, since NCAA rules purport to bar player overt appearance in ads for third parties. In contrast, Categories 1 & 2 deals are what distinguish today’s NCAA from that of the mid-20th century. (The NCAA basketball finals, for example, were not even nationally televised until the mid-1960s; now they generate $1 billion annually for the NCAA.)

The primary, glaring defect in most of the new proposed state NIL statutes is that they not only ignore Category 1 and 2 Player NIL uses: they affirmatively bar the player from any participation in such deals.

In effect, as regards the Category 1 & 2 NIL, the statutes eliminate any school need to even get a Player Waiver: the statutes codify it.

(And that player — whether or not Mark Emmert, or Tom Izzo call them “kids” — is NOT a kid. They are all adults. 18-year old entrepreneurs, just like every other 18-year old.)

The result? the statutes generally bar the player from economically participating in the vast majority of NCAA commerce — most of which is built directly atop that player’s NIL.

This result is the principal reason that these proposed (or just-passed) state NIL laws (to steal what was I think Justice Brandeis’ legal term) ‘just plain suck.’

Upon passage of most of these proposed NIL statutes, players are stuck with solely cast-off Category 3 Lone-Wolf NIL rights — for no good reason, other than, most likely, that the schools and NCAA have already sold Category 1 & 2 Player NIL rights, using long-term shoe and broadcast contracts. (Much of this already-sold Player NIL pertains to NIL rights held, right now, by Middle School children, who will, 5 or 6 years from now, play football or basketball at a P5 school.)

The effect of most of these new statutes is to tell the basketball and football players with staggering NIL value that they can have their Lone Wolf NIL — but that the schools and NCAA need to retain the players’ Category 1 &2 NIL rights, in order to fund alot of other things the schools and NCAA think are really good.

It’s a part of a familiar message to black laborers (which is what the P5 basketball and football players are): “You can have a little bit more cash derived from what is your own asset, but we really need to keep most of that cash, because we do so many good things with it — and we are much better than you at deciding what is good.

“Oh, and by the way, the legislature is going to pass a law, to insure that we can keep almost all of the cash derived from your asset. We’ll keep you posted.”

This is how the schools, NCAA, and now, legislatures, treat the adult 18-year old, primarily black sports entrepreneur. It’s not even “separate but equal” treatment: it’s “separate, and a teensy bit of equal.”

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EA Sports Coming Back? P5 College SAACs Must Elect a Conference-Wide SAAC Rep, to Sit at the Conference Table

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EA Sports is bringing back their college football product, in a manner which will, allegedly, not directly impinge upon any one player’s NIL rights.

That may be true. But college players need to be at the table, now — just to know what is going on. Alot of economic pieces are going to be moving, over the next few months, and years, concerning player ability to use his own Promotional Self (i.e, Name Image and Likeness)

So the Student Athlete Advisory Councils at each Big 10 need to vote, to generate one player — it has to be football, right now — to represent every SAAC from each school. To be at the table.

That table is significant, because it does not, any longer, mean a real table. It means two things: 1) attending Zoom meetings; and 2) being on the conference email distribution list. A football player elected as SAAC conference rep should be involved in both Zoom meetings, but, more importantly, email distribution.

The table is also significant because it is, in the first instance, conference-based. Not NCAA wide.

Why not NCAA-wide? Because six years ago, the NCAA did a hide-in-the-bushes: they removed the NIL waiver from the SAS which every player is required to sign. So every NIL waiver is conference-specific. Contrary to popular belief, then, it is the conference which controls the player’s Promotional Self (NIL).

But, you ask, what if the conference objects to “including” the conference-wide SAAC rep at the Zoom meetings, and in the conference email distribution chain?

Just go back to all the SAAC members at each school, with this specific instruction to each athlete:

“Send an email to your athletics director, which states this:

“I am hereby amending the NIL waiver I signed, to add the proviso that my surrender of NIL rights is contingent upon the conference and school permitting a duly-elected, conference wide representative of every school’s SAAC, be involved in, and have access to, all conference communications.”

Simple.

[The proposal has roots in the fact that if, for example, all players in a conference completely revoked their NIL waiver, the entire conference would come to a screeching halt: no TV, no videogames. Screeching halt. Players don’t get it (the NCAA does): Collective revocation of all NIL waivers is, right now, the players’ POISON PILL.]

Each conference needs a duly elected SAAC rep at the ‘table’ where the conference considers, negotiates, and makes decisions.

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Big Questions About 5 Michigan Student-Athletes with New British Covid Variant – And What Players Should Do

The State of Michigan CDC just recommended a shut down all of University of Michigan athletics for two weeks.

I’ve previously taken no position, going back as far as last summer, as to whether college sports ought to be shut down for good, because of Covid.

My thoughts are changing, based upon news that five University of Michigan athletes now have the British variant of Covid. That variant, 50-70% more infectious than other forms, was clearly and internationally identified by December 14. Some experts estimate that the British variant is also 30% more symptomatic. Based on these facts, all estimations of risk, and health protocols associated with those estimations, needed to be updated.

The move raises epidemiological questions, but also personal health questions for players. It also raises issues about UM and B10 satisfaction of their duty to aggressively protect the health of their players:

  1. Why did it take an external body – the state CDC — to shut down UM athletic operations? How long had UM AD Warde Manual known about the prevalence of the 5 new British variant cases?
  2. Why did UM AD Manual (or the B10) not shut it down before the state stepped in?
  3. What UM athletic department or B10 protocols were in place to prevent the arrival of the British variant?
  4. What UM or B10 rules were in place to mandate action, upon discovery of the British variant?
  5. What steps are now being taken, by UM and B10, to determine how the presence of the British variant will affect relations and scheduling with other B10 schools?
  6. What information and communications are now being given to other B10 schools — and players at other schools?
  7. What sport was the recently-returned-from-UK student-athlete engaged in?
  8. It is also reasonable to ask how the student-athlete, recently returned from the UK, was allowed near athletics operations.

These are simple, rational risk-analysis questions, because the British Variant significantly increases the health risk.

And, though I admit to having only bare-boned information, the disturbing first-blush conclusion is the UM and B10 “sat-on” their duty to keep the British Variant away, and then sat-on their duty to shut-down operations. (New, thorough information, concerning information suggested in the above 8 points, might prove those preliminary conclusions wrong.)

What every Big Ten athlete needs to do:

  1. Keep a Daily Covid Log: keep detailed daily notes of your own, concerning everything the school tells you about the Covid risk, and any information about the presence or prevalence of Covid in any of your athletic activities.
  2. Know That the Risk is Greater Now: recognize that the arrival of the British Covid variant should significantly change your own personal risk evaluation. Assume that Covid is now, in Big Ten sports, much more communicable.
  3. Ask Questions, about everything
  4. Be Aggressive About Getting Top-Notch Health Care: Insist that the school provide you with the best, and repeated health care.
  5. Mobilize your Student-Athlete Advisory Committee: these are issues which require discussion amongst, and input from, the players whose Covid risks have just significantly increased.

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