Selling Stolen Player Nillies on a Black Market — Why Mizzou Must Pay Its Football and Basketball Social Influencers, Part II

In my previous Part I post, I established that the NCAA’s first standard for determining whether a pay or benefit received by a player is permitted is its AIWWSII rule: if some NCAA vote allowed it, any pay or benefit is just fine. (A Sept. 26 post, Mizzou Now Pays Student Social Influencers — but Not Student-Athlete Social Influencers?, explained why players are Social Influencers, who must be paid for that work.)

Rule #2: Any Benefit is Fine, if Some Sub-Group of Students on the Local Campus Also Gets It

But a second rule, largely ignored, also applies: if some sub-group students’ on the local campus gets the pay or benefit, then so must the player.

Many reformers argue that big-time college football and basketball players (and their NIL rights) ought be treated the same as all other, hypothetically average, non-athletes students across the U.S. Bylaw 16 shows that they are part right, part wrong.

The bylaw 16 test is much, much easier to satisfy: the player doesn’t have to show that all U.S. students get the pay or benefit. Instead, the player need only show that some ‘sub-group’ of students on that local campus gets the pay or benefit

Which is why the NY Times report is significant: a sub-set of Mizzou students gets paid for “social influencing”? – then so must, under bylaw 16, football and basketball players also get paid for the valuable social influencing they’ve been doing for so long.

(A more thorough explanation, with a good bit of legal-mumbo jumbo, is below. Don’t read it. It’s boring – unless you don’t believe what I’ve said above.)

And, to understand why every school does not comply with these NCAA rules, look for Part III: Selling Stolen Player Nillies on a Black Market: Why Mizzou Must Pay Its Football and Basketball Social Influencers.

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Rule #2: Any Benefit is Fine, if a Student group on the Local Campus Also Gets It

Bylaw 16.02.3 also says that “the receipt of a benefit by student-athletes or their family members or friends is not a violation, if it is demonstrated that the same benefit is generally available to the institution’s students or their family members 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.” 

Benefits Will Vary by Campus Allows Each School to Independently Define Benefits Tethered to Education

Unlike the AWWSII rule, this purely Home Rule provision requires no passage of NCAA legislation, and gives each member its own ” ample latitude” to permit any player benefit which is “generally available” to students, or some sub-segment of students, on the local campus. The provision is broadly permissive. Rather than, for example, mandating that every school compare any player benefit to one received by some hypothetical average group, or sub-group, of students across the entire U.S., it directs each school to benchmark against some student sub-groups drawn from the local campus, with no specified limitation upon the choice of such a benchmark. (The “International” and “minority” student sub-groups mentioned in the bylaw are merely illustrative.) Aa result, almost any imaginable sub-group of the student body can be used as a benchmark for testing any player benefit.

And, because so many D-1 schools now have 30,000 or more students, almost every such larger schools can likely make a long list of potential student sub-groups which might be used for a benchmark, including, for example, some sub-set of students which are either: 1) undergraduate or graduate; 2) full-time or part-time; or 3) unpaid, or receive paid in an employment arrangement. Students on scholarship; those who work for pay, in the school library or cafeteria, or ushering at football games. Paid interns. Teaching assistants. Work-study students. Students on music scholarships, who play for-pay gigs, on or off campus – and sell their recordings online. Those on fellowship. Students paid to participate in ROTC. Those who work part-time or full-time, on or off-campus, as waiters or bartenders. Inventor-students, who receive income from their inventions.i Medical residents, whose pay, 75 years ago, was $120 per month, but now averages $61,000 annually.

About brewonsouthu

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