Dept of Education to NCAA Player: the ‘Student-Athlete Statement’ FERPA Waiver is Illegal

The ‘Student-Athlete-Statement’ which the NCAA and school require that the player sign is no statement. It is a bewildering mash-up of cleverly-disguised efforts to induce the player to sign away every possible economic opportunity which might come his way. And it is where all the action is: when faced with antitrust challenge, or when presenting the SAS to the player, the NCAA portrays it as a mere ‘eligibility’ statement. But when the NCAA and school seek to sanction the player for violation of one or more of the thousands of rules in its manual, they claim he has agreed to be bound by them because of his SAS affirmation that he has “read and understands” them. This preposterously global pledge — which should cause any person even vaguely familiar with the impenetrable wilderness of that manual to respond with this Churchill retort: “I should think it was hardly possible to state the opposite of the truth with more precision” – serves as the primary basis for any NCAA claim that the player is bound by contract.

The appalling list of the deceptions and contracting atrocities included in the SAS is much too long for this brief update, but last November, the U.S. Department of Education (USED) issued what has since been referred to as its Agora letter, which provides, as its letters have typically done, guidance for schools and students about how USED will interpret the 1974 Family Educational Records Protection Act [FERPA] mandate concerning parental and student consent for ‘term of services’ mandated by third-party providers to educational institutions.

Agora Cyber Charter School was one of the many third-party providers of digital/online services which many schools require for testing, evaluation, and tracking of students. And it has become commonplace for schools which contract with those third-party providers to have parents or students (once they achieve the age of majority, which is usually, in most states, eighteen) sign a waiver of FERPA protections, in order to allow such third-party providers access to all of the student’s educational records deemed ‘private’ by FERPA.

Except that now the Agora letter says that such waivers cannot be mandated by such third-party providers.

And the NCAA is a third-party. Is it a ‘provider,’ pursuant to this significant new Agora rule? This question, as it turns out, is not particularly relevant. What is relevant is this long-standing FERPA principle, reiterated in the Agora letter: 

A parent or eligible student cannot be required to waive the rights and protections accorded under FERPA as a condition of acceptance into an educational institution or receipt of educational training or services.”

This, then, is the line in the sand for the recruit, and the player at every school who is required to annually sign a new version of the SAS: do not sign the FERPA waiver. You not only have no obligation to sign the waiver: the school and NCAA violate FERPA’s terms if they require you to sign it.

JUST SAY NO.

Sure, the player’s refusal to sign the FERPA waiver would eliminate all NCAA involvement in academic matters, and would also possibly jeopardize: 1) much of any athletic department authority for its academic racketeering, which involves mammoth spending, on buildings, tutors, and slavish academic monitoring; and 2) the school and NCAA ‘particular brand’ of ‘pro-competitive’ football and basketball entertainment. And these developments might help to heal the pathological current state of things in big-time college sports.

As things now stand, the school procures from the player a mandated FERPA waiver of whopping value — at no cost. If the school really needs that waiver, then it should first sign its own waiver of any ‘no-pay’ provision, to allow the school to then pay the player for his FERPA waiver, at fair-market-value.

Player: do not sign the FERPA waiver in the Student-Athlete Statement which is handed to you when you arrive on campus.

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The Rice Commission, Amateurism Fog, and the Real Reason the UNC Paper-Course Decision Was Revolutionary

Poor Condoleezza Rice, up there at that lectern, staggering around, disoriented in the fog of NCAA amateurism, like so many others before her. Just as the 9th Circuit’s Judge Bybee, when he wrote the 2015 O’Bannon decision, had stumbled around in that same dudgeon fog, and plunged us all deeper-in, by concluding that “not paying student-athletes is precisely what makes them amateurs.” Bybee was wrong. And the new fog he created helped blind the Rice Commission to what was in front of them.

And the Rice people were probably further blinded by all the uproar since the October 2017 decision by the NCAA COI that UNC’s long-running ‘paper courses’ violated no NCAA rules. The decision was revolutionary, but not, primarily, for the reasons which caused uproar. Sure, the decision can be read to stand for the principle which so many have loudly decried, that the NCAA will not intercede in member-school academic matters. (I endorse this premise — the NCAA has no business getting involved in matters academic, which should be left to ‘Home Rule’ — but I’m not here to wrangle about the worthiness of that principle right now.) That controversy surrounding the COI’s deference to academic ‘home-rule’ created more fog, and helped hide the more important reason that the decision was revolutionary: the COI read and applied the NCAA’s own bylaw 16:

According to bylaw 16.02.3, the NCAA’s line of demarcation [LOD], between amateur and professional, is crossed when the player receives:

‘extra benefits,‘ defined as “any special arrangement by an institutional employee or a representative of the institution’s athletics interests to provide a student-athlete or the student-athlete’s relative or friend a benefit not expressly authorized by NCAA legislation.

This provision shows that Judge Bybee’s not paying student athletes is precisely what makes them amateurs” formulation was wrong, because bylaw 16 can bar much more than just player pay: the LOD is crossed when any ‘extra benefit’ is given to the player, by anyone.

But the single most important provision in the entire 460-page NCAA Manual for defining, “precisely what makes an amateur” is this bylaw 16 definition of what is NOT a ‘extra benefit’:

“receipt of a benefit by student-athletes or their relatives or friends is not a violation of NCAA legislation, if it is demonstrated that the same benefit is generally available to the institution’s students or their relatives 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.”

And the UNC decision was revolutionary, not primarily because it pronounced an NCAA lack of interest in overseeing academic matters, but because: 1) the COI bothered to read this “Not-Extra-Benefit” provision, and then 2) applied the bylaw’s Comparative Test, to accurately conclude that the UNC paper courses were “generally available to the institution’s students or their relatives or friends or to a particular segment of the student body.”

Why is this bylaw 16 provision the clearest definition of “precisely what makes an amateur”? Because it operates, as the UNC decision shows, as a giant “Carve -Out”: a benefit cannot possibly be ‘extra,’ if it is “available to a particular segment of the student body.” An amateur, this Carve-Out tells us, is one who can, in reality, receive one of the many kinds of benefits which a “particular segment of the student body” also gets.

And note that the standard of proof to satisfy this Carve-Out, is remarkably easy. The required comparison is not to a “large,” or “significant,” or even “well-established” segment: just a “particular” one. Nor does the comparison apparently apply only to ‘benefits’ received by the player from the school; it appears to apply to any benefit received by the player from any source. And to comprehend the breadth of this Carve-Out, it is important to note that it applies, not just to player receipt of in-kind benefits, or some special ‘privilege’: it also applies to any kind of pay.

The practical result?: If any school is accused by the NCAA of providing ‘illegal’ ‘extra-benefits’, or if a player is accused of receiving them, all they have to do is find some “particular segment of the student body” to which such benefits are available. The list of relevant “particular segments” is so long, if not endless, as to allow this Carve-Out to apply to almost every kind of benefit, including pay, which a player might receive. Central Florida kicker Don De Haye’s youtube-video money-making “benefits,” for example, or Texas A&M runner Ryan Trahan’s steel water-bottle sales money-making benefits?”: on those mammoth campuses, are there not “particular segments” of students getting the same benefit? Or, more broadly, if the school pays cash to the player for his performance as an athlete, doesn’t that comply with bylaw 16, because it is the kind of benefit “available” to a number of “particular segments” of students, like those who have paid work-study jobs all over campus, or like the students paid by the school to usher at football games where the player performs? The Rule 16 Carve-Out, sports fans, can be read to “precisely” allow pay-for-play, to the player, by the school.

In its UNC case, the courageous NCAA COI looked bylaw 16 straight in the face, read its plain terms, put on their seat-belts, and correctly applied that bylaw’s simple rule that a benefit is not extra if it is also available to a particular segment of students. By so doing, their decision suggested that little or no change in NCAA bylaws is required, and that a new wide variety of benefits can be allowed to flow to players — and that the Rice Commission may have wasted time and effort.

The Rice Commission should have sent Condoleezza Rice to the podium to read the following statement:

“Ladies and Gentlemen: ‘Precisely what makes an amateur’ is not that the player is unpaid. Bylaw 16 says, ‘receipt of a benefit by student-athletes or their relatives or friends is not a violation of NCAA legislation, if it is demonstrated that the same benefit is generally available to the institution’s students or their relatives 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.’ Apply bylaw 16. Thank you.”

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NCAA Basketball Indictments Say: Alumni Booster, Thy Home Might be the Federal Pen

The college basketball indictments have taken a new turn: more specific allegations about payments by some college coaches to players have been added to the previous charges that Adidas had colluded with agents and financial advisors to insure that players might attend specific schools, with the expectation that those players (advancing toward what would, presumably, be lucrative careers), would later also sign on with the agents or financial advisors.

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The indictments last fall, and the new ones, have changed the entire NCAA enforcement paradigm, though you’d never know by listening to the NCAA. They don’t even know it. They are paralyzed. Yes, NCAA executive director has set up the ‘blue ribbon’ Condi Commission, chaired by Condoleeza Rice. But all of NCAA has, like some misbehaving schoolchild, gone into ‘time-out,’ in several respects. First, Emmert insists that no investigations concerning all these allegations can be undertaken by the NCAA, while the U.S. Attorney, and the FBI, complete their work. This is nonsense, for two reasons. First, the standard of proof for NCAA violations — preponderance of the evidence — is tiny and easy compared to the “beyond a reasonable doubt” standard in the criminal setting. Second, the NCAA, dependent as it is upon self-reporting, also depends heavily upon what are called ‘interim’ or ‘provisional’ orders, imposed either by the NCAA or, oftentimes, the school itself. This practice is built upon the high-minded NCAA notion that its games, and participants, must always be lily-white and without any hint of taint — even if that requires provisionally suspended participants who have only been charged with some violation. Countless players have been, as a result, “held out” of games, in order to preserve their purity.

But the NCAA has refused to investigate any of the circumstances arising out of the recent indictments; as a result, it has also failed to take any minimal steps to determine the foundation for, and then act upon, the need for such provisional suspensions of involved coaches, schools, and even players.

And even though the NCAA and all their member-school compliance operations spend significant resources to alert and scold their constituency about the need to avoid any possible violation of any NCAA rules, they have failed to alert those constituencies about the game-changing nature of the 2017 and 2018 federal indictments: that the violation of NCAA ‘extra-benefits’ legislation is now, according to the U.S. Attorney for the Southern District of New York, a solid, ripe basis for federal criminal charges.

For a simple example of this new, serious federal criminal peril which any potential booster might encounter, look only at the 2017 NCAA heavy penalties for Ole Miss, associated with an number of different violations, many generated by boosters providing ‘extra,’ proscribed benefits to athletes. Because the statute of limitations on those actions have not yet run, every single one of those booster violations, well-documented by the NCAA COI, are open, obvious, potential federal criminal statute violations, based upon the premise behind the recent indictments. Illegal boosters always had reason to fear the NCAA enforcement arm; now, all those boosters, over the last five years, ought be worrying about federal indictments related to those same underlying NCAA violations.

Alumni booster, thy home might be the federal pen.

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AD’s, Paid Like Egyptian Pharoahs, Plan Sunny Pow-Wow to Figure How to Save Empire

These AD’s are out of control. They’ve announced, as they call it, a “sunny” pow-wow, “by AD’s, for AD’s,” of what they grandly call a “Collegiate Sports Summit,” to take place April 16-17, at the Fairmount Miramar Hotel and Bungalows in Santa Monica.

The headliners are (among others) Penn State’s Barbour, UNC’s Cunningham, Notre Dame’s Swarbrick, and UDub’s Jennifer Cohen.

Why is this so ‘Private?

The first question: why is this at all necessary, and who is paying for it? Don’t these same ostensible leaders of college sports have their very own trade group, answerable to nobody, to promote their own interests, which is called LEAD1. And isn’t LEAD1 fabulously funded by corporate interests (DHR International, ESPN, EverFi, Private Jet Services, VitoVio, Paciolan (a Learfield Co.), Fiesta Bowl, Learfield, MintzLevin, Tailgate Guys, Viscis, Nike, MG12, Anthony Travel, GoGround, Sidearm Sports (Div of Learfield)?

And if they do, why is this confab — described as “your private, invitation-only gathering, designed by ADs, for ADs, [as] your chance to connect with peers, get up-to-speed on the hottest trends and tackle today’s top challenges in a transparent, forthright forum” — at all necessary? Aren’t most of these people of considerable self-importance actually public employees? If so, why the emphasis on a “private, invitation-only gathering”? Wasn’t that what their own ‘private’ LEAD1 trade group was all about when it met in September, with its Washington lobbyist?

Who is Paying for All This?

Second: who is paying for this? Are not all athletic departments starving for cash, having to spend on all the many things which these AD’s deem necessary? And aren’t these AD’s all shelling out big buck to pay for a big-number ex-Congressman like Tom McMillen to serve as their very own K-Street lobbyist?

This ‘Private’ Confab Needs Ten College BKB and FB Players

What’s up with this meeting?  And could it not benefit substantially from the presence of ten big-time college football and basketball players, who can give these wise men and women some input, as they deliberate about a fate which will impact, most primarily and directly, upon those extraordinarily valuable football and basketball player-assets?

This is a question for all those “leaders” who are members of LEAD1: why do you need another warm-weather pow-wow?  Weren’t you just in D.C., in an effort to gather to influence legislators, on behalf of only your own personal financial interests, in September? What possibly could warrant the $5-10 grand per AD AD cost? And are you convinced that only you can provide competent answers to the questions which now plague college sports?

 

 

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This is the Ryan Shazier Super Bowl: Put Your Hand on Your Heart

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I’m troubled about the Super Bowl tomorrow. Yes, the Pats remind me of the old Larry Bird Boston Celtics era, when you left the game, or the broadcast, wanting to thank the sports gods that you have been allowed to watch something so elegantly executed.

But any thoughts about the potential beauty and perfection of this Super Bowl game and its players have vanished over the week, because I keep thinking about Ryan Shazier, the electric Steelers (and formerly OSU) linebacker, who went down this season with a savage injury. Continue reading

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What MSU and Other AD’s Must Do Now: Nassar Victims’ Car-Wreck Was Avoidable, if AD Hollis Had Installed PSU Seatbelts

Unsafe at Any Speed

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Former MSU AD Mark Hollis

MSU and all other big-time schools are in crisis; on a triage basis, here’s the one thing they all must immediately do: Install the Penn State “Integrity Program.”

Ralph Nader’s 1960 book ‘Unsafe at Any Speed’: a) showed that many horrible injuries suffered by car passengers could easily be prevented; b) suggested significant changes in the way Americans use – and control – the automobile; c) triggered, within a few years, all cars to be equipped with seatbelts and other safety-related design changes.

The 2011 Penn State Sandusky pedophilia scandal similarly:

a) showed a nation the horrible sexual assault injuries which could be inflicted upon minors by one pedophile, in concert with an out-of-control athletic department and university, too eager to bury events which might affect its quest for wins and profit;

b) suggested, with its post-Sandusky investigations and reports, some basic changes in athletic and university operations which would help avoid future needless injuries; and

c) triggered, within a year, the 2012 basic “Athletics Integrity Agreement” signed by PSU, the NCAA, and the Big Ten, which – in order to comply with NCAA and Big Ten constitutions and bylaws, and “principles regarding institutional control, responsibility, ethical conduct, and integrity” – required PSU to install an abuse-preventing “Seatbelt” called the “Integrity Program.” Continue reading

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The Real Culprit is Not MSU’s Simon; It’s AD Hollis. Simon took the fall for Hollis, Who’s in Hiding

There they are. The words that inspire anything but confidence: “The NCAA opens investigation of MSU.”

You are a Power 5 athletic director, and you have no idea what to do. You sense that perhaps the lesson out of Penn State Sandusky scandal was that, if a school covers up pedophilia, then it will cover up anything, including the more prosaic NCAA regulations. But you don’t really have a clue.

And you might sense the truth, which is that the handling of the MSU Larry Nassar Scandal has been so fundamentally ham-handed as to allow the plaintiffs to multiply — no, exponentially multiply — the value of their cases against MSU. The value of that case, two weeks ago was X; now that value is 10x.  Good job Prez Simon, and AD Hollis.
But you’re not really sure.

Continue reading

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MSU Coaches & Board are — Today — a Real and Present Danger to Current Student Athletes

A 15-year old, named Emma Ann Miller, showed up in court today, talking wisdom to all the wacko MSU adults involved, including MSU President Simon and AD Hollis — and Dr. Nasser.

Miller told, according to tweets by WLNS reporter Alexandra Illitch, of being bent over in the supply room, with a doctor putting his ungloved hands in her private area.

“Are you listening MSU?

“Are you listening MSU?,” Miller said. “I can’t hear you.”

This was, ostensibly medical care. In a supply room.

“You need to confess the facts”

“You need to confess the facts,” Miller concluded, as if an angel sent to get Nasser and MSU to recognize their sins. “You can help others, and if you do, if you help my sisters, it

might help with your forgiveness.”izzoII

She might have been prompted by the bizarre statements made by MSU coaches over the weekend. Basketball coach Tom Izzo, and football coach Mark D’Antonio (both of whom I have previously admired, for their plain-spokenness, and lack of airs), solemnly declared that they had “the utmost faith” in MSU President Simon. Continue reading

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MSU AD Hollis Must Come Clean: Nasser Scandal is a PSU Re-Run, Because Hollis Ignored the PSU ‘Integrity’ and Mitchell Reports

The testimony has been heart-breaking: all these girls, many now women, recounting the shame of their childhoods, the assaults by a monster.

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MSU AD Mark Hollis

But I felt like I was watching, in some fashion, re-runs. Penn State went through much of this. PSU allowed their iconic coach Joe Paterno to bury, for two decades, what he knew about pedophilia. Continue reading

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Notice to Every Auburn BKB Player and Recruit: Run, as Fast as You Can, From Auburn

Auburn head coach Bruce Pearl has just announced that he will not cooperate with any NCAA investigation. He has a contractual duty to cooperate.

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In addition, the ‘vicarious liability’ principle embraced by the NCAA 2 years ago establishes that the head coach is presumed responsible for any violations committed by his assistants. (Pearl’s assistant Chuck Person has been indicted for conspiracy and fraud.) If Pearl will not cooperate, then there will be no evidence to rebut the preumption that Pearl has violated NCAA bylaws.

Pearl has previously been seriously sanctioned by the NCAA, for his recruiting violations at Tennessee, and was the subject of an NCAA show-cause order after those transgressions. Continue reading

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