How SMU BKB Players Can Make NCAA Pay Attention: ‘Committee of Revenue-Sport Student-Athletes’

SMU Players (and all schools) Need a ‘Committee of Revenue-Sport Student-Athletes’

NCAA President Mark Emmert

NCAA President Mark Emmert

SMU’s basketball players (apparently the entire team) have just issued a joint statement expressing their extreme displeasure with the NCAA’s recent sanctions on Coach Larry Brown and the team, including a ban on post-season play.  Their instincts are good, and one more indication that athletes are increasingly willing to “get out of the boat” and speak out concerning their own interests. (Just as Shabazz at UConn, Si Cyanovic at Illinois, and Kain Colter at Northwestern all courageously “got out of the boat” to speak out.) But the SMU players need to consider several other issues:

1) Challenge the Non-Compete in the NLI, Based upon a change of circumstances: The National Letter of Intent which the players signed includes a Non-Compete Agreement, which precludes immediate transfer, by imposing a one-year “sit-out” penalty if any player chooses to transfer. This is an important, basic building-block of the NCAA’s entire college sports business model, without which that model could not persist. (Yes, I know, Non-competes are usually only used to bind employees, but this is the byzantine, fantasyland of NCAA sports.)

The NCAA allows (it claims), the NCA to be waived if the player’s appeal shows  “extenuating circumstances” — though the NCAA refuses to define which specific circumstances are “extenuating”, and never allows waiver of the NCA based merely upon the imposition of sanctions by the NCAA.

It is not unreasonable to conclude that the NCAA penalties here — the post-season ban — are “extenuating” circumstances: after all, doesn’t a young high school player “commit” with the full expectation that the school will play by the rules? The rule-breaking found by the NCAA here is just the kind of material change in circumstances which could cause a court to “void” the NCA contained in the NLI.

(In fact, the absence of such an NCAA bylaw which would immediately void all NCA’s signed by athletes in the that sport, allowing them to all immediately transfer and play, is proof that the NCAA system is not serious about eliminating ‘cheating.  Such an automatic “release” of NCA restrictions would serve as a severe, strong deterrent against “cheating”, and would probably eliminate the need for the silly “show cause” orders which are now often used to sanction offending coaches, and other silly sanctions.)

I suspect the SMU players don’t want to transfer, if they can help it, but creating the threat of such mass-transfer will increase bargaining power as the players push their cause.

2. Absence of ‘Sector-Based” negotiation and representation: The  central defect in the status of the college athlete is the absence of interest-group, ‘sector-based’ representation and negotiation (which is often, but not always provided by union representation.) Every disadvantage foisted upon the college athlete is one where he has almost no larger membership organization to push for his economic or other  interests — in an era when the NCAA and the individual school are powerful, wealthy, and able to obtain top-drawer legal advice. The revenue-sport athletes have zero “heft”, and are always left to bargain on their own. This is particularly true now, since the NLRB’s craven, entirely unprincipled refusal to assert jurisdiction over the Northwestern case. But the SMU basketball players are not without options:

3. Form a “Committee of Revenue-Sport Student-Athletes”: The NCAA and schools have set up the Student-Athlete Advisory Councils with the intent of diluting, if not completely eliminating, the economic (and moral) power of the approximately 100 players on campus — the basketball and football players — whose work generates staggering income for the school. The SAAC’s usually do not adequately represent the interests of the basketball and football players, and those players need to form a separate “Revenue-Sport Athlete Group” to meet and consider their own interests. (An admittedly oversimplified view of the SAAC is that the interests of the  “Revenue” and “Non-revenue” athletes are often in significant conflict, since the latter sports are funded entirely by the former.)

4. The NLRB applies to SMU, since it is a private school, and the SMU basketball players might consider NLRB certification. 

5. The NCAA’s finding of significant violation means that the SMU basketball program is no longer amateur: Hear me out, this is a novel argument, only because the NCAA’s current enforcement structure is not based in the real world. (In fact, if the NCAA actually wanted powerful, effective enforcement which would surely deter chearing, its bylaws would establish that a finding of major violation mandates an immediate loss of amateur status. Stop and think: does not the NCAA revoke the ‘amateur’ status of the player who is found in significant violation of some bylaw? Why should there not be a parallel sanction for a violating school?)  But, even without such a common-sense NCAA bylaw, SMU players still have a legal argument that they are employees, because the finding of SMU violations caused SMU basketball to lose amateur status, and that, without that ‘amateurism’ protection, the SMU players were employees of SMU, for many purposes, including Social Security, Unemployment, FICA, wage and hour laws, and workers’ compensation.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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