Utah State Football Player Strike: What Players Should Know and Do

Utah State football players refused to play the last scheduled game, because they believe the school president has disparaged, or cast in a bad light, a coach working there, for ethnic or religious reasons.

The school’s Board of Trustees has announced it will conduct an “independent review.”

But there are two kinds of allegedly “Independent Reviews”.

First Kind of Review: for Board’s Eyes-Only: If the review is for the board’s eyes, only, then it’s a dodge. The board will be on the phone, repeatedly, back and forth, massaging the report, to serve the purposes of the board, not the players. This is a Big Dodge, and watch out for it, because it’s meant to bamboozle the players, and the public

Second kind of Review: strictly independent. This review gives the outside counsel arm’s length independence, within which no board member or staffer is given leeway to affect the final report, and the counsel is given discretion to interview all witnesses.

What do the players need to do?:

Find out which kind of investigation it will be. Object if it’s an inside-job, for board-eyes-only investigation, and put that objection in writing.

Demand that the school pay for counsel, to generate the player’s own completely “independent” report. Try a solid, reputable person, like former North Carolina Supreme Court judge Bob Orr, who is familiar with player issues in the NCAA context. He’s been around the block.

Do a written request, pursuant to Utah’s Government Records Access and Management Act, to ask for a video copy of the zoom meeting, but also for all pertinent emails surrounding these events. This request has great heft: it’s like asking for a copy of the cards the other guy is holding. And they have to give them to you. Don’t be afraid to use it: it’s powerful.

Few players anywhere realize the big context: every Power 5 team of players is the single most powerful group on campus — bar none.

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The NCAA COI Bought Alabama Basketball’s Org-Chart Dodge

I just happened to read the NCAA COI’s November 20 Alabama decision. It’s goofy, though all press accounts suggest that Bama basketball got an appropriate 3-year probation, and $5,000 grand fine.

The decision reflects the power of the Alabama football and basketball juggernaut — and its organizational genius.

The bad guy, who arranged dinners, and payments, between a top recruit and a financial advisor, and took payments for doing it all, was an “Associate Athletic Director.” This was the specious excuse which Bama fed to the NCAA, and Gonzalez (the poor man had no idea what he was walking into), and other COI members, like former Minnesota AD Maturi.

But that ‘bad guy’ Associate AD was, in fact, no associate AD. He was the Director of Basketball Operations. Those directors have, for decades, served under the head coach. So why would Bama switch his position on the Org Chart, to suggest that head coach Avery Johnson worked under him?

Because seven years ago the NCAA rules established that the head coach would be ‘vicariously liable’ for the transgressions of those working under him.

Those guys at Bama. Just brilliant. They said to each other: hey, let’s make it so the Director of Basketball Ops looks like he does not work under head coach Avery Johnson! Nothing changed on the ground. His job was the same; only his job title changed.

Why is that important? Because Bama avoided having head coach Avery Johnson hauled in as a witness (they ditched him in 2018). And Bama also avoided having to do what any school needed to do, when accused of having an assistant, under the head coach, engaged in wrong-doing: show strict, formal procedures for record-keeping, reporting, and oversight, to show that all assistants were not in violation. Phone records, turned in every month. Expense statements, turned in every month. Affidavits, every quarter, as to spending, and bank account statements. Constant, daily monitoring of emails and other social media. These procedural and documentation factors are commonplace, in any setting where organizational vicarious liability is a threat.

By making the Director of Basketball Ops an Associate AD, Bama avoided all that. And, on the first page of its decision, in fact, the COI showed what knuckleheads they were, specifically finding that, “the violations resulted from the unethical conduct of an administrator, rather than a coach.”

The COI, and Gonzalez, bought the bullshit, hook, line, and sinker.

So did Joel Maturi, former Minnesota AD. And Jody Conradt, retired head women’s basketball coach and special assistant to athletics at Texas. Thomas Hill, senior vice president emeritus at Iowa State; Jason Leonard, executive director of athletics compliance at Oklahoma. Kay Norton, president emeritus of Northern Colorado. and Sarah Wake, associate general counsel and associate vice president for equity at Northwestern.

Knuckleheads, all of them.

The clear message, if you are a Power 5 school?: just use a different job title! Make your “Operations Directors” into “Associate AD’s”! — so that they appear not to work under the head coach. And the NCAA will fall for it.

It’s the Great Bama Org-Chart Dodge.

But that’s only, as they say in Maine, “the half of it.” The other half, tomorrow.

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@Sportico’s NIL Symposium — Random Notes: Right Now, No P5 Player Should Sign a National Letter of Intent, Without First Bargaining About NIL Rights

I watched a video of most of Sportico’s excellent online November 12 NIL symposium. But I was struck by the extent to which some speakers appeared unaware of some NIL-related realities:

  1. No one ever mentioned what I call the Golden Nugget document: the NIL Waiver, which the school (and conference) requires the player to sign, when he shows up on campus. It’s the Golden Nugget, because it is the entire legal foundation for the billions of dollars in income which the NCAA and its member schools earn from two sources: 1) apparel companies; and 2) broadcasting outfits. This waiver is the foundation for an entire empire.
  2. All players could today just withdraw their NIL waivers: To illustrate, if all Power 5 football and basketball players today write a one-liner email to their school –“I hereby withdraw my waiver of NIL rights” — the NCAA apparel-marketing, and broadcasting  empires would crash. This is the simplest method for players to foment change.
  3. The player comes to school owning his NIL: As a result, it is fundamentally in error to believe that, as Blake Lawrence said, the new state NIL statutes will suddenly give the player new rights. More accurately, the new statutes will codify some portion of the current blanket waivers, while establishing what are, in most cases, relatively tiny ‘carve-outs’ for the player.
  4. NIL is an asset, like a car: these are rights which the player arriving on campus owns and controls, just like he might own a car. And, to understand the reality of the dramatic seizure of value from the player, when he signs the NIL waiver, it is not unlike the school demanding that he turn over his car, so that the school can then rent or sell it, for a fee, to third parties not associated with the school or its educational mission.
  5. Player surrender of NIL is a major employee-status factor: player surrender of his NIL assets (by signing the waiver), is so broad and burdensome as to serve as major factor in support of player employee status. (Notre Dame’s AD Jack Swarbrick asserted that he wants his student-athletes “to be treated just like the ordinary students”; if so, he needs to send a memo to his coaches and staff, instructing them to rip up all those Golden Nugget waivers.)
  6. The old in loco parentis, Nanny-U Doctrine is long-dead. The player is not a kid. At age 18, he is an adult. Ms Rempe, for example, said that the school has a “duty to make sure that the SA is not signing contracts which might hurt him.” That determination might have been LSU’s bailiwick, fifty years ago; with the death of in loco parentis, it is now none of LSU’s business.
  7.  The Golden Nugget waiver is also a broad agency contract: It is a waiver or grant-of-rights; the school also implicitly treats it as a broad agency contract, allowing it to exercise complete control over the player’s NIL assets
  8. The school has a profound conflict of interest. It purports to act as the player’s agent and Nanny, while competing with that player for NIL-based marketing  opportunities.
  9. The school has a duty to fund independent counsel for the player: Because of this fatal school conflict of interest – and the schools’ de facto treatment of the player as a minor, in need of third-party protection — the school has a duty to change the setting within which the player signs his NIL waiver, by funding separate, independent (and entirely confidential) legal counsel for him, to advise the player about the school’s proposed waiver. (In fact, no top notch player should, right now, sign a National Letter of Intent, without being provided the proposed NLI waiver, so that he can make his selection of school dependent upon what NIL rights the school will agree he can retain. (Example: player should tell the school, “Ok, I’ll give you my NIL rights, but you – school – have to give me a waiver, which allows me to use the school’s marks, in my own self-marketing.)

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An Open Letter to Michigan AD Warde Manuel and Prez Mark Schlissel: Did You Forget Your Opportunity and Duty to Lead a Longitudinal Covid Study of Big Ten athletes?

Every Power 5 AD is now fussing about what he might possibly ever do about all the messy fuss surrounding player NIL “rights.”

And a few P5 presidents fret about it.

But not one president or AD has bothered to consider the extraordinary opportunity and duty before them: to initiate, lead, and fund a longitudinal study of the effect and incidence of Covid 19 on collegiate athletes. After all, they have broad NIL waivers, which they use to peddle player services, and to feed player digital data to commercial outfits like Nike and others.

But if you are, for example, Michigan president Mark Schlissel (a scientist), why did you not get on the horn to every other Big Ten president, back in July, to suggest a cooperative Covid-19 study, conducted by every school’s medical school, in cooperation with athletic departments?

The collection of data associated with such a study is, in fact, the first, best use of player NIL. But collegiate leaders like Manuel and Schlissel are so thoroughly diverted by the loss of income caused by Covid-19, as to be blinded by their opportunity.

Every med school and athletic department in the Big 10 should combine to fund and conduct this kind of study. Their distraction may now have lost them the opportunity to conduct such a study in football, but not basketball.

Warde Manuel. Mark Schlissel. Do you have any interest in a broad, well-funded, longitudinal study of Big 10 basketball player Covid exposure and symptoms?

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

After the Mamas and the Papas, and their founder-songwriter John Phillips, finished their run of 1960s hits — California Dreamin’, Monday-Monday, and so many others — they split up, and fell out of fame. Mama Cass died in London, choking on a sandwich. Denny and Michelle went off, on their own, or together. But by the late 70s and into the 80s, Phillips hit some skids.

He went so far down that he was living in squalor in a house on Long Island, with a revolving cast of others badly strung out. Desperate to fund his expensive heroin habit, he and some others turned to elaborate schemes to sell stolen prescription drugs, including Benzos, Xanax and a long list of others. These were all stolen by Phillips or others working with him, and peddled from a dive storefront in Brooklyn, or anywhere else where ready buyers showed up.

(It eventually all caught up to Phillips, though his fame, and his rapid turnaround in habits and daily life, convinced the feds to allow him to escape jail time.)

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The NCAA and the P5 schools have long been functioning as the drug-dealing 1980’s John Phillips – though their illicit schemes have brought them great fortune, not squalor.

Here’s how it works. For years, they’ve been peddling illegally-gotten, wildly-valuable Nillies – player NIL rights. These are stolen from every P5 player.

Wildly -Valuable Nillies?

Yes. Every NCAA, conference, or school TV and shoe-and-apparel contract is built atop player NIL. (There is also a very reasonable argument that, since schools began promoting themselves with football in the 1890s, or at least when teams first began putting player names on jerseys around 1915, live ticket receipts have been substantially based upon player NIL.) Player NIL is a massive asset for every P5 athletic operation.

So how valuable, really? Ask Tom McMillen, executive director of LEAD1, a trade group of 129 FBS school athletics directors, who said in 2019 that his member schools generate $8 billion in annual, direct revenue, with a “total impact” of “probably $50 billion. Or look at the NCAA’s March Madness tournament, which grosses $1 billion annually. Some substantial, if not predominant, portion of these receipts derive from player NIL.

Stolen Nillies? When and Where?

The Player’s NIL rights are taken from him as soon as he arrives on campus. Get out of your habitual thinking, and consider this: NIL is an asset, a thing, which often has whopping value. Like any other intellectual property, it can be a significant piece of a business’ valuation. So recognize: when the school tells the new freshman to hand over his NIL rights, in order to get his scholly, or to play, it’s like demanding that the player hand over his car, so the school can sell it. Or his cell phone. That’s how absurd – and craven – is this whole Player Nillie theft.

(Or look at it another way: the mandated player surrender of NIL which occurs each fall, is a transaction which mandates by pure powerful fiat – with no foundation in reason or morality – that the player pay a whopping purchase price, to get his scholarship.)

The Golden Nugget Document: the Player’s NIL Release.

The theft is accomplished with an NIL Waiver or Release, for the player to sign each year. (Look down below, I’ll reprint an example of a Univ. of Minnesota Release, 2020). This is what I call the Golden Nugget document. It’s where most NCAA and school wealth comes from.

But if the Player signs a document, isn’t it all legal?

No, because of the context. Look what’s behind that Release. Six or nine months before his arrival on campus in the fall, the high school player signs a National Letter of Intent – which isn’t a letter of intent: it’s a Lock-Down, to keep the player from talking with other schools – and to impose a whopping transfer penalty on him, if he ever tries to wiggle out.

More important, though, is that the school intentionally fails to include all details of its proposal, when it shoves the NLI in front of the player. (He should be provided with a copy of every document which might affect him while playing.) Instead, most are presented to him when he’s already moved to campus, and has no choice about signing. So he signs the NLI largely unaware of the details of the entire deal. And the school succeeds in hiding the Golden Nugget document from the player, until he arrives on campus.

But then look what happens on campus:

1) The school doesn’t even tell the player that the Release/Waiver is a Golden Nugget. It’s just one in a big pile of documents (50-75 pages – for an ‘amateur’ to sign.) The documents are portrayed as perfunctory ‘housekeeping’ things, to ‘get out of the way.’

2) And the AD and coach wear costumes, as they slip the big pile of docs across the table to the freshman player. The AD is dressed up like Mary Poppins, the better to execute the Great Nanny Scam which has infected all of college sports, which depends upon broadcasting the fictions that the player is still a kid, in need of the care and oversight of the watchful Nanny-school. (A sample quote from Northwestern AD Jim Phillips – a good, decent fellow, adrift in the swamp of NIL commerce, several years ago: “I hope we can do more for our kids. I just do. It’s what we love about being on a college campus. It’s what we believe,” Phillips said, “what’s right about higher education.”) And the coach? – he’s dressed in Professor’s cap-and-gown. (A sample quote, from former NCAA VP Oliver Luck, another fine fellow, who was drowning in the NCAA’s raging river of commerce: “[As regards] the player’s triangle of athletics, academics and social life, if you turn that triangle into a square and add another component of promoting or marketing yourself, there’s simply no time to do that, particularly an 18 or 19 year who is not necessarily sophisticated in business and promotions.”)

The two costumes are meant to deceive the player (and public), by suggesting to them that all matters and documents addressed at the meeting could never possibly have any economic aspect — just kids and their ever-so-caring school. Thus do the Nanny and the Professor walk out of the room with a Golden Nugget Release signed by the player.

Then consider this. Under pertinent state and federal law, the newly-age-eighteen college player has, for forty years, been an adult, not a kid. And in loco parentis left campuses forty years ago.

This is how the school, conference and NCAA get – steal – Player Nillies for free, so they can then go peddle them to TV networks and shoe companies, for big bucks.

It’s theft by deception. Capture and Lock-Down the minor high school player without mentioning the Golden Nugget document – much less explaining to the recruit the basis and value of the golden nugget which he, the recruit, has in his rightful possession. Then wait until the player is on campus, still Locked-Down, but keep pretending that the player (who has turned 18 and reached adulthood) is just a helpless kid. Pretend he’s not signing away an asset of fantastic value. Give him a form document he has no choice but to sign: the Golden Nugget release. All of this thoroughly deceptive behavior is rendered illegal by most states’ unfair trade practice, interference with advantageous contractual relations, unjust enrichment, and other laws.

And that Nanny, and the Professor? Underneath it all, their behavior is that of thugs who, collectively, across all P5 schools, execute, in one fell swoop, a fantastic, annual, whooshing transfer of wealth, from one set of adults (freshman football and basketball players), to another set of adults (athletic departments, schools, conferences, and the NCAA). Just because they could. Pretty smooth move.

It’s John Phillips, New York city, 1985: stealing Nillies, at no cost — then selling them at huge market prices, to entities which could care less if the asset they buy is stolen: Nike. UnderArmour. Adidas. (Nike never makes a peep, even though it proudly brandishes about its own “Code of Conduct” for the Asian factory owners with which it contracts to produce its apparel products.) These are shadow financial forces, buying stolen Nillies from schools and an NCAA, acting like middleman John Phillips, peddling drugs on a back street. ESPN. Fox Sports. CBS. The Big Ten Network. All the conferences. All stealing player Nillies, to make billions of dollars.

And all this recent fuss – new state Player NIL statutes, the several federal Player NIL bills — they’re all just cover for this preposterous fraud: why should any state or federal system give protection to a racket, unknown to any other commercial setting, which permits the automatic theft by deception of significant assets, by one set of adults, from another set of adults?

Sellin’ stolen player Nillies, on a Promo-Tainment black market. And Mizzou won’t even pay its football and basketball players some tiny wage, like it pays to other students, for all the Social Influencing those players do with the Nillies stolen from them.

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University of Minnesota 2020 player NIL waiver

Part I: Student-Athlete Name and Likeness Release I hereby grant to the University of Minnesota and The Big Ten Conference and their assigns the right to publish, duplicate, print, broadcast or otherwise use in any manner or media, my name, voice, photograph, likeness or other image or descriptors of myself for any purpose the [University] or The Big Ten Conference determines, in its sole discretion, is in the interest of the [University] or The Big Ten Conference, including without limitation uses in promotional and marketing materials and uses by the Big Ten Network, Fox, CBS, ABC, ESPN and T3Media. All such uses shall be consistent with all applicable NCAA and Big Ten Conference rules and regulations. I agree that neither I nor my heirs shall be entitled to any compensation for the use of my name, voice, photograph, likeness or other image or descriptors of myself.

_________________________

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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.

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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.

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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.

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Mizzou Now Pays Student Social Influencers — but Not Student-Athlete Social Influencers?

Starting this summer, the New York Times reports, the University of Missouri began employing some Missouri students, as “Social Influencers,” to generate online postings encouraging other students to engage in Covid-safe behaviors.

The school is paying those ‘Influencer’ students to use their Name, Image, and Likeness (NIL) rights, for the school’s benefit.

Contrast this with the school’s policies regarding football and basketball players. Rather than paying those players for the school’s repeated use of the player’s (extraordinarily-valuable) NIL rights — in TV broadcasts, and advertising-related activity for Nike and others — the school requires that players surrender those rights, without pay, by signing them over to the school, with a form waiver-document drafted by the school (or conference). The school and conference arbitrarily seize the player’s NIL rights.

Missouri Football Players All Have a Job: Social Influencers for Outside Businesses

The irony is that, for years, every Missouri football player has operated as a Social Influencer, on a grand scale, but without pay. Those players may think that they are playing just to win, or excel. But Nike, and TV advertisers like Geico, State Farm, Tostitos (the list is endless) annually pay Missouri millions, to get the school to use players as Social Influencers — to “influence” live and TV viewers to purchase commercial products.

(And imagine, for a moment, if Missouri paid starting quarterback Shawn Robinson, or the entire starting 22 offensive and defensive players, as Social Influencers, to promote Covid-safe student behavior: do you think that might have some thumping state-wide impact?)

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April Madness 2.0: A Proposal for a Simulated, Nationally Streamed and Televised Substitute March Madness Tournament

April Madness 2.0: A Proposal for a Simulated March Madness Tournament — Televised and Streamed

Emmert

NCAA President Mark Emmert

Imagine this fast-tracked Pilot Project, to generate a simulated March Madness Tournament, called April Madness 2.0:

1. The NCAA designates the 68 teams which qualified for the March Madness tournament. (This might require a random drawing, if the conference champ has not been played-out).

2. The 900 players from the 68 teams meet and vote online, to choose a Player Rep, (which might be someone like NCPA’s Ramogi Huma, Economist Andy Schwarz, Jay Bilas, Prof. Richard Southall, Drake Group head and Ohio U professor David Ridpath, Player attorney Rick Johnson – or some combination).

3. The NCAA, its broadcast partners, EA Sports, and the Players’ Rep meet to discuss working agreements, based upon the following concepts:

4. EA Sports, CBS and other broadcast partners, and the NCAA fund the development and production of a template, simulated April Madness 2.0 game, and schedule of such games, which will mimic the format and “three-weekend” timing of the real tournament, suitable for broadcast/streaming.

5. The players will receive fair market value payment, to be negotiated by the Player Rep, for the use of their NIL (Name, Image, and Likeness) rights. The player rep will also get appropriate sign-offs from each player.

6. The parties will agree upon a percentage of gross revenues to be dedicated to a Corona Virus national charity, designated by Dr. Anthony Fausci.

6. Game development will be fast-tracked by NCAA and EA Sports staff, in concert with (if necessary) selected, paid top tech/digital students from the 68 schools involved (or, even crowd-sourced smart-guys). The format of the simulated Games will mimic the old EA Sports game which disappeared after the O’Bannon decision.

7. April Madness 2.0 games will be streamed and broadcast on networks, over a three-week period, on a pay-per-view basis, and/or based upon existing contractual obligations which the NCAA has with broadcasters, with the first games to be aired on April 1.

Why Has the NCAA Not Already Produced a April Madness 2.0 Tournament?: It’s the NIL, Stupid

The only reason the NCAA hasn’t done this yet is that does not want to pay NIL rights to the player. (When the O’Bannon court told the NCAA that it had to pay former players like Ed O’Bannon for use of their likeness, the NCAA shut down the EA Sports simulated game.)

Does the Sports Consumer Really ‘Revere’ the Game Because it is ‘Made-by-the-Unpaid’?

The NCAA has long forsworn such NIL payments, because it claims it needs to protect its “Revered Tradition of Amateurism.” This thinking is founded upon some faulty, outdated logic from the old 1984 Regents decision, where Justice Stevens guessed, out of legal thin air, that the TV sports consumer “revered” the NCAA’s TV sports product, because it was ‘Made-by-the-Unpaid.’ (My term, not Stevens’). Even assuming its accuracy in 1984, that notion now has little basis in reality, as is reflected in the pending or recently-passed bills in some 25 states, meant to require that players be allowed such NIL payments, and the fact that the NCAA’s own NIL “Working Group” will, at some point, issue new rules which will, presumably expand player access to NIL payments.

It’s a Perfect Storm for April Madness 2.0, as a Player NIL Experiment

All the pieces are in place for April Madness 2.0, as a perfect petri-dish experiment for testing the consumer-public’s alleged ‘reverence’ for a Made-by-the-Unpaid sports product. After all, the NCAA is now desperate for cash; in fact, the organization’s financial floor has fallen through. The March Madness cancellation left the NCAA without the $1 billion in revenue which three-week ritual generates each year. And NCAA schools which do not participate in the tournament are also now dreading the big cash shortfalls caused by the disappearance of NCAA payouts from that $1 billion March Madness pot. In this context, who – anywhere in the U.S. – would not buy a simulated, streamed, or televised April Madness 2.0 tournament?

Not Staging an April Madness 2.0 is a Finger-in-the-Eye to Fans

We are a nation in crisis; a ‘shut-in’ crisis. We can’t mix with others. We can’t go to work. People are lonely, bored, and anxious. Ordinary life has shut down, and citizens need access to sports. At present, we can’t, while we shelter-in-place, have access to a March Madness tournament which hundreds of millions of us, and millions around the world, have come to love. All because of some highly-subjective, highly-suspect notion, residing in the heads of NCAA managers, that March Madness fans would never possibly buy an April Madness 2.0 online product, for which they are desperate, because no such fan would ever countenance player receipt of NIL payments.

Such an April Madness 2.0 ‘substitute’ tournament could easily already have be generated, were it not for the priggish selfishness of NCAA executives. The NCAA’s Mark Emmert is happy in his Indiana home, drawing a secure $3 million paycheck, every week. NCAA Counsel Remy is happy in his Porsche, drawing his steady $2 million paycheck. Big 12 Commissioner Bob Bowlsby is happy in his home, drawing his $4 million paycheck. These are the sports-manager-fat cats who have done nothing to satisfy their primary duty at this critical juncture: to help the public.

The NCAA has a duty, within this extraordinary social, athletic, political, medical, and financial norm-smashing crisis, to take extraordinary, smash-all-norms, emergency steps, to help the hundreds of millions of fans whose lives are in ‘time-out.’

It’s time to do an April Madness 2.0 NCAA streamed and televised tournament.

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UnderArmour Has Donated Zero to the Jordan McNair Foundation

JordanMcNair

Almost two years ago, lineman Jordan McNair died as a result of sprints which he was forced to run at the very first day of University of Maryland football practice on May 30, 2018.

This death was entirely the result of a failure of the University of Maryland to satisfy its duty of care to McNair. It starts with one standard: a good business, like, for example, any involved in construction, will require a ‘tag-out’ process, which is the thorough inspection of every work-station, before workers are even allowed on the site. Maryland AD Anderson, and the rest of the Maryland operation, had no idea what a ‘tag-out’ review even involved, and never ‘tagged-out’ one thing. That failure, along with others, meant that Maryland had no ice bath available when Jordan collapsed. (Cost of ice bath, total? — maybe $25?) Twenty five dollars could have saved Jordan McNair’s life.

Maryland football has long been UnderArmour’s ‘flagship’ operation, since UA is a Maryland business. But Nike’s nomenclature for its workers is useful in comprehending the role of players like Jordan McNair, in relation to UnderArmour.  Nike calls the overseas factories which make its shoes and apparel “Manufacturing Partners.”

The NCAA players, at each school which enters into a contract with a shoe/apparel supplier like Nike or UnderArmour, are also most accurately labeled as  “Advertising Partners.”  None of the suppliers want to admit it, but,  UnderArmour (for example) “hires” each Maryland football player as a human ‘billboard,’ to advertise its logo on his uniform.

And UnderArmour doesn’t enter into these kinds of big-dollar contracts with Maryland for the fun of it, or out of the goodness of their hearts: they do it because it makes them money.  BIG money.

Jordan McNair died while he was functioning as an UnderArmour “Advertising Partner.”  Jordan got zero money for doing the advertising.

That was almost two years ago. Jordan McNair’s parents, out of the goodness of their hearts, and their desperation to think that perhaps their son did not die in vain, have set  up the Jordan McNair Foundation, with a simple, easy goal: promote the use and  availability of Ice Baths on collegiate sports fields.

UnderArmour: do you care? Do you feel any sense of obligation at all?  Might you throw some spare change at this foundation, meant to remember and recognize the death of one of your Advertising Partners?

UnderArmour? Hello?  Do you recall you Advertising Partner, Jordan McNair?

UnderArmour (and other members of the public) here is the website where you can make contributions, in the memory of Jordan McNair: https://thejordanmcnairfoundation.org/

 

 

 

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