Selling Stolen Player Nillies on a Black Market: Why Mizzou Must Pay Its Football and Basketball Social Influencers. Part I

Two days ago I wrote about the interesting, if not startling, New York Times news that the University of Missouri had, this summer, begun paying some student “Social Influencers,” to push elements of a useful Covid-Safety campaign on campus. (See post “Mizzou Now Pays Student Social Influencers — But Not Student-Athlete Social Influencers?”

Yett Mizzou has long failed to pay its Student-Athlete ‘Social Influencers,’ whose ‘influence’ generates fantastic income for Mizzou.

How could this happen? This requires understanding two things most people never really get, about NCAA rules.

Amateurism is Whatever We Say It Is (AIWWSII)

First, amateurism is whatever some bunch of knuckleheaded NCAA members happen to vote that it should be. That’s all. They could vote to allow each player to be deeded 100 acres of useless woodland in Washington County Maine. Or a lifetime supply of Viagra. Amateurism is just a stupid thing, to be manipulated by NCAA meatheads (none of whom have any insight as to the history or operation of amateurism), for their own self-interest. Which is why the current NCAA sprint to the U.S. Congress, to get NIL legislation, is such bad-faith phoniness: the NCAA could vote, tomorrow, to insure that big-time players can be paid, just like the Mizzou ‘Ordinary Student,’ for all the commercial ‘influencing’ which those players perform — or to direct any other imaginable kind of NIL payment be made to the player

Below is the explanation of the NCAA’s AIWWSII Doctrine, based upon NCAA rules. It’s boring. Ignore it, if you trust my above explanation. It’s too much legal mumbo-jumbo. You do not need to read it, unless you do not trust my AIWWSII explanation above.

But there is also an important, second element to the NCAA rules, which exposes that NCAA rules not only allow, but require, that Mizzou pay its football and basketball Social Influencers, for all the ‘influencing’ they’ve been doing, for years. I’ll post that in Part II of “Selling Stolen Player Nillies on a Black Market: Why Mizzou Must Pay Its Football and Basketball Social Influencers.

______________________________________________

The Amateurism-is-Whatever-We-Say-It-Is” Doctrine [AWWSII]

Any pay or benefit is allowed, if approved by NCAA legislation. And bylaw 12.02.10 declares that “pay is the receipt of funds, awards or benefits not permitted by the governing legislation;” 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.” And 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 NCAA’s de facto LOD: any player pay or benefit approved by NCAA legislation is just fine.

And, starting with the NCAA’s 1956 vote to allow Athletic-Pay, the list of payments or benefits permitted by these provisions 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. Two-sport athletes have long been allowed to be paid professionals in one sport, while competing in another, 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. Football bowl game participants are allowed to receive swag gifts, valued at no more than $550, from bowl sponsors. 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, under this NCAA formulation, 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 framework is, in fact, not just ample: it is unfettered, and these provisions articulate the NCAA’s de facto cardinal rule concerning player pay or benefits: Amateurism-is-Whatever-We-Say-It-Isiv

i AIWWSII Authorizations, by Staff Waiver

Sometimes authorizing legislation is not required. And some ‘special arrangement’ exceptions are granted without NCAA membership vote. In 2015, for example, the NCAA told the College Football Playoff system that each parent or guardian of a bowl player from Ohio State or Oregon could receive $1,250 in reimbursement money from the CFP, and each family could receive up to $3,000 reimbursement in travel expenses. “I was shocked,” Ohio State AD Gene Smith said, when told that NCAA staff had approved the payments. “They were responding to the needs and the cries of an institution that was crying for help. I don’t know where they found the interpretation,” Smith continued,“ [which] is back from the 1960’s, I’m sure.” As another example, in 2018 the NCAA allowed Notre Dame basketball hero Arike Ogunbowale, whose game-winning last-second shot brought the school its national championship, to appear on the TV show ‘Dancing with the Stars,” even though such appearances had previously been proscribed by NCAA rules barring player profit from NIL rights. In these and similar circumstances, a vote to add new player benefits is apparently not necessary, and the amount and nature of any ‘extra’ player benefits is limited only by the imaginations of NCAA staffers.

“A review of the bylaws,” Judge Wilkin concluded in Alston, “ shows that many forms of payment, often in unrestricted cash, from schools and other sources, are allowed by the NCAA as ”not pay,’ and this is not inconsistent with amateurism.”

There are instances, apparently where even a vote by NCAA membership is not required, because NCAA staffers take it upon themselves to act without one. The NCAA’s March 2003 deal with Pontiac, to run a March Madness-based “Pontiac Game-Changing Performance” feature of best player performances on its televised broadcasts, was undertaken with no membership vote, even though it involved player promotion of commercial products.

About brewonsouthu

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