Spatting and the Mini-Letter Every College Athlete Must Immediately Send to the AD

Big time college football and basketball players have to immediately protect themselves from NCAA bylaws by writing a simple one-line letter to the athletics director. To illustrate why, first listen-in on this completely fictional 2015 meeting between Nike CEO Mark Parker and his top marketing aide, as they prepared to re-negotiate their contract with the University of Texas:

———–

Parker: Good god, we’ve been paying out millions to these schools, and I’m worried. What if one of these knucklehead players pulls a protest of some kind, announces he’s not gonna wear our shoe?

Aide: Well, Mark, we’ve got something in all our contracts about that, says the “University shall require all Coaches,Team and Staff members to wear and /or use Nike product that have been designated by Nike.”

Parker: I know, I know, but I need more than that. That’s our contract with the school, not player, and some player can just decide to go rogue – and we can’t do anything about it. I want each player to sign a contract with the school— says that if they’re gonna get a scholarship from the school, they gotta wear the shoes the school wants. What’s the matter with that? Don’t those players sign a couple of contracts, before they start playing?

Aide: Yea, that National Letter of Intent, and then the Student Athlete Statement – but they don’t have any clause like that.

Parker: So lets do it.That’s why we pay the schools big bucks, to have their players promote, so why can’t they make the player sign that? Just one clause in that NLI: “I agree to wear Nike shoes at all times.” I want it airtight.

Aide: Yes, boss, and you know what, actually I think you might be right. Remember, we got that NCAA reg passed back in ’78, it said that display of logos is NOT promotion! So if the NCAA says its not promotion, then the player should have no problem signing, saying he’ll wear our shoe.

Parker: Ok, then, call your friend Wally, the lawyer who works in-house at Texas athletics, he’s smart as hell, tell em we want that in the player’s contract and we need to get that done – now.

(Aide returns 10 minutes later): Well Mark, Wally says no way. Wally says that 1978 staff ‘Not-Promotion’ ruling, all that stuff, everyone knows its all complete horseshit. He says NCAA law has about as much effect, with the workers’ comp commission, those other judges, as some Triple- A rule about how many maps you can have for free. It’s not law. It’s like a . . . club.

Parker: What? What do you mean?

Aide: Wally says, no matter what the NCAA says, logos on shoes is promotion. He reminded me that our last contract with them, like all our contracts, says, the “display of the logo is the essence of the agreement” and “a bargained-for material benefit,” but also that “a material inducement” to our making the contract is to “provide broad and prominent exposure for the Nike brand and particular products, models and styles.” He says these provisions blow the NCAA’s ‘Not-Promotion’ fiction right out of the water.

Parker: Well, Wally’s right. I tied that down good. Now I want the player tied down with his own signature.

Aide: Well, Wally said no way on that one too.

Parker: Why?

Aide: He says you don’t need it. He says the coaches —  they won’t let some kid wear any other shoe, they just won’t let it happen.

Parker : Wait a minute, we gotta rely on some guy with a whistle around his neck to enforce our mult-million dollar contracts? I don’t THINK SO. You call him back, you tell him I said want something more. I want something the kid signs, in the NLI or SAS.

(Aide leaves, returns 10 minutes later.)

Aide: So Wally says he just can’t do that, but look Mark, he says all our contracts with the schools, they have a lot of provisions which say that both the school and us agree to obey all the NCAA rules, so that the coach who is minding the player, and telling him he has to wear the shoe, he’s got the backing of the whole NCAA on it. Plus, the player signs something that says he understands those NCAA rules. Don’t you think that’s enough?

Parker: Why’re you buckin’ me? Tell them I want a contract signed by the player. Period. Why in all the waffle-soled world can’t they just have the player sign something that says he has the obligation to wear our logo?

Aide: Mark, Wally’s a straight guy. Known him forever. He didn’t want me bringing this up with you, he says nobody in the NCAA or anywhere wants to talk about it. but he will. Wally says that if Texas makes the player sign some agreement that says the player has to wear our shoes – that just that one requirement might make that player an employee for workers’ compensation purposes. It looks too much like a contract for services, and the player looks an awful lot like an employee! They just can’t have that. Wally said hell will freeze over, before they do that.

Parker: Bastards. So I’ve always known that NCAA had Two Big Lies – that the scholarship they pay to the player is ‘Not-Pay,’ and that the display of logos is ‘Not-Promotion.’ But now I”m just figuring out their No. 3 Big Lie – they want us to go along with making sure their employee-players are called ‘Not-Employees.’

(Parker Musing): Okay, though, here’s what we’re gonna do. Tell Wally it’s non-negotiable. We’re gonna put in a big penalty for the school, if a player wears a shoe with no logo, or does that ‘spatting’ trick, by covering it with tape. We’re paying Texas huge bucks, plus they’re saving huge bucks scamming on workers’ comp, so if just one player decides he’s not gonna wear our shoe, it’s a $10,000 penalty for the school. — No, make that a $10,000 school penalty for EACH SHOE, for EACH player that does it. That’ll make everybody think twice about spatting. That ought to tie the player down pretty tight.

____________

Parker’s fictional conclusion has much truth to it. Every school omits from the NLI or SAS, or elsewhere, any requirement that the player sign a explicit statement that he will wear the Nike (or other) shoes or apparel – because the schools and NCAA know that would jump out at workers’ compensation and other regulators, as an clear foundation for finding that the player had signed a contract for services, and was, therefore, an employee.

Instead, the schools fake it, by patching together the best possible de facto requirement that the player wear the logos, formed from a combination of the player’s acknowledgment that he understands all NCAA regs (a preposterous notion, by the way); that the spatting penalty exists and will be applied by Nike; that the coach might be cranky with the player if he tries to upset the applecart by not wearing the logos, along with the three Big Lies (Not-Pay, Not-Promotion, and Not-Employee.)

But the problem with this devious, patched-together dodge by the schools and NCAA, which scams the workers’ comp statutes, is contained in NCAA bylaw 12.5.2.1, entitled ”Advertisements and Promotions After Becoming a Student-Athlete’:

After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual. . . permits the use of his name or picture to advertise, recommend or promote directly the sale or use of a commercial product of any kind.

The player’s clear, immediate duty, then, under Bylaw 12? To notify the school in writing, as follows:

I will not permit Nike (or other supplier) to advertise or promote using my name or picture.”

Otherwise, under Bylaw 12, every player who “permits” such promotion risks becoming ineligible. And not reporting a possible NCAA violation subjects the player to being charged with a broader ethical violation under Bylaw 10.

Every player, as a matter of prudence and self-protection, but also to expose NCAA Big Lies #2 (‘Not-Promotion’) and #3 (‘Not-Employee’) should immediately write the above 17-word letter to the school athletics director. It might not solve every ill in college sports, but it will protect the player, and stir some pots that need to be stirred. It will also set the proper foundation for (should the players so choose) a later Spatting Protest. 

Copyright 2016 William Wilson

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About brewonsouthu

Michigan and Big Ten fan, former lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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