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.”