Emma Watson, Amateurism, and the Collegiate Model

The revenue-driven commercialization of intercollegiate athletic programs embodies an increasing disconnect between the treatment and restrictive rules governing student-athletes and  athletic department budgets and the money spent on bloated coach salaries and extravagant athletic facilities.   

            Emma Watson, Hermoine Grainger in the Harry Potter movies, attends Brown University.   She can endorse a product or do a commercial and still act in Brown amateur theatricals and get a scholarship.   Exploiting her name and likeness value does not bar her from amateur campus productions.  If college athletes similarly exploited their name and likeness value, they’d be barred forever from college competition. 

            The NCAA currently is the target of litigation by former college players Sam Keller and Ed O’Bannon.  They seek a share of revenues generated from use of their names and likenesses grounded in right of publicity (Keller) and antitrust (O’Bannon).  The NCAA claims that the viability of the collegiate model irreparably will be threatened if college athletes can derive benefit from their names and likenesses, either by sharing of NCAA revenues or even by independently marketing themselves ala Emma Watson.  But perhaps the NCAA should learn a lesson from Emma Watson. 

Certainly Watson’s situation differs from that of college athletes.  Brown University neither creates nor enhances Watson’s name and likeness value.  Brown’s theater group does not compete with other college theater groups.  And I doubt Brown theater boosters would pay Watson to endorse products just to get her to enroll.

Not so with college athletic boosters.  SMU’s football team was shut down for two years because of booster payments.   The NCAA would fight an uphill battle trying to untangle the strings of booster/athlete endorsement deals to separate the bona fide from those made just to give a school a competitive edge.  The better wisdom might be not to try.  The result might be a “wild west” bidding war for elite athletes.   

So, yes, Emma Watson’s situation is different from that of college athletes.  And yes, undesirable consequences may result if college athletes have the same opportunities that she has.  But there also is no perfect in the status quo.

The money and popularity of football and men’s basketball strain a collegiate model developed more than 100 years ago.  Letting college athletes make the same deals that Emma Watson – and, for that matter, their own coaches – can make enhances (and modernizes) the treatment of college athletes.  It does so, moreover, without implicating athletic department revenues.   That means no collateral consequences such as athletic departments further ramping up the arms race or cutting non-revenues sports. 

The projected negative consequences may be ameliorated, moreover, by requiring that college athletes exploit their names and likenesses through group licensing deals.  In any event, negative consequences likely are overstated as there is very good reason to predict that only elite football and men’s basketball players will be situated to command large payouts, whether through bona fide or even sweetheart deals.  

Texas A&M estimated that the year he won the Heisman Johnny Manziel added just $20,000 to school revenues.  That $20,000 was the only money not attributable to fixed revenues from a stadium sold out before Manziel joined the team, long-term broadcast contracts, and corporate sponsorships.  That said, without football players, A&M’s fixed revenues disappear.  

Calculating a college athlete’s name and likeness value is an impossible dream.  Econometricians don’t even try.  Instead, they attempt to quantify what percentage of overall team revenues is generated by college athletes and what percentage generated by the quality of coaching, fan and donor loyalty, a university’s reputation, team long-term success, and other market factors.  Estimates differ based on data used and assumptions made.  According to Colorado College Professor Kevin Rask, if you assume that a football team produces 50 percent of all team revenues each year, a player of mid-level talent is worth about $100,000 annually and  the very top players about $330,000.     

Rask’s numbers neither offset the value of a full-ride scholarship and other benefits schools provide to college athletes nor factor in the $1 million difference in lifetime earnings between college and high school graduates.  The valuation dance, moreover, is not done solo.  College athlete name and likeness value, whatever it is, does not come exclusively from athlete talent and visibility. Some part is because the uniform on their backs says Michigan or Alabama.  

Consider Tim Tebow, the 2007 Heisman-Award winner from the University of Florida, widely acknowledged to have the talent to be an NFL quarterback.  If Tebow played in an NFL-equivalent to baseball’s minor leagues, not for Head Coach Urban Meyer at Florida, would he have gotten major endorsement and promotion contracts, and, now, a job doing game broadcasts?

College athletics is college competition played by college students.   That means the programs must be operated consistent with campus norms and protocols and the athletes must be students in more than name only.  The critics overstate, but it is hard to dispute their core conclusion that college athletic programs now range too far from their campus tether.  The answer is to rein in these programs to better reflect their collegiate core, not to dismantle the collegiate model because of the excesses.  That’s one side of the equation.

There is another side, and the critics are not completely wrong here either.  The NCAA version of amateurism ill fits a world where football and men’s basketball games are big business, coaches are paid millions, and athletic budgets hit $160 million.  A good first start to change:  letting college athletes market their names and likenesses.  Nothing inherent in the definition of amateurism, or the contours of a collegiate model, prevents it.  Emma Watson proves that.       

New DI Governance Proposal --The Wrong Fix for What Definitely Needs Fixing

Josephine (Jo) R. Potuto, Richard H. Larson Professor of Constitutional Law and Faculty Athletic Representative, University of Nebraska

            The NCAA Division I Steering Committee has proposed a new Division I governance structure.  It retains an all-D I governance part and adds an autonomous part for 5 Conferences (ACC, B1G, Big 12, Pac 12, SEC).  One thing the Steering Committee got right.  It acknowledges that the 5 Conferences need autonomy, particularly to use our resources to enhance the treatment of student-athletes.  After that, there is not much positive to say.   Remarkably, the proposal would institute a governance structure that may be worse than what we have now. 

            First, autonomy apparently doesn’t mean autonomy.  The 5 Conferences had a plan for autonomous governance.  In important ways the Steering Committee shot it down. 

            The Steering Committee lists specific subject areas for autonomy, leaving little room for the 5 Conferences to respond to issues not currently anticipated.  It accepted the 5 Conference voting model:  one vote for each of the 5 Conference schools and also student-athlete voters.   But it proposes a supermajority vote to adopt policy or bylaws (2/3 of all voters and a vote in favor of 4 of the 5 conferences).  That makes it difficult, if not impossible, to get much of real substance done.  And if we do?  The CEOs from the 5 Conferences on the DI Board can vote a bylaw down if it has an undue impact on competitive equity for everyone else.  Competitive equity for schools with lesser resources always translates into limits on what can be done to benefit student-athletes.  Restricting this override to CEOs from the 5 Conferences is better than having the full Division I Board weigh in.  Nonetheless.  The mantra of competitive equity is the very reason why autonomy is needed.  And, yet, here it is again.  Another major constraint is that it appears that the 5 Conferences will have neither the authority to interpret the bylaws we adopt nor to grant waivers from them.  

            The combined DI governance side is no better.  The CEOS no longer will be an operational board.  Certainly the right move.  On their own campuses they oversee the medical school.  But they likely would not presume to act as dean and they certainly would not try their hands at surgery. 

            There will be a new Council to do the heavy lifting.  Again, the right move, at least in theory.  The plan is a Council of 38 members, with 60% ADs.   Do ADs need to be more involved and have more influence?  Absolutely.  They  need to have substantial input in the development of the rules by which they operate.  But 60 percent is too much, especially as Council seats also are reserved for other athletic administrators.  The end result may be fewer than five Faculty Athletic Representatives on the Council and perhaps none from the 5 Conferences.  No issue is exclusively athletic or campus/academic.  Optimum policy results from full vetting with all perspectives at the table, something that will be missing from the new Council.

            By my count, the NCAA and 5 Conferences are facing three antitrust lawsuits, the Keller/O’Bannon litigation, concussion lawsuits, and the Northwestern student-athlete union effort.  In one way or the other, all of these claim the collegiate model is a sham.  The Steering Committee proposal is an extraordinary governance solution for an NCAA and universities attempting to confront the perception and embody the reality that intercollegiate athletics are different in kind from professional sports because we embody a COLLEGE model. 

            I believe it was Winston Churchill who said that you should never waste a good crisis.  Unfortunately, it looks like that’s exactly what DI is about to do.

New DI Governance Proposal – Where is the Faculty in COLLEGE Athletics Governance?

Josephine (Jo) R. Potuto, Richard H. Larson Professor of Constitutional Law and Faculty Athletic Representative, University of Nebraska

            The NCAA Division I Steering Committee proposal for a new governance structure has an all-Division I part that will have a Council of 38 members to do the heavy lifting in policy articulation and bylaw adoption.   The Council will have 60 percent ADs plus other campus and Conference athletic administrators.   That leaves very little room for Faculty Athletic Representatives (FARs). 

           

            Ever since Adam and Eve ate that apple, we humans have lost the opportunity to do perfect.   If we’re thoughtful, diligent – and lucky – we achieve optimum policy.  To get to optimum, we need to be clear what our policy goals are and then do our best job to identify consequences, pros and cons.  We do that best by having different perspectives at the policy-development table.  Faculty, by training and often by inclination, ask a lot of questions and seek data before acting.  (I have not looked, but I doubt there were FARs on the Football Committee that attempted to prohibit offenses from snapping the ball until 29 seconds are left on the 40-second play clock on the claim that this would decrease the incidence of injuries.)  These are important foundations for the development of policy. 

            The Big 5 Conferences (ACC, B1G, Big 12, PAC 12, SEC) will have a representative from each Conference in the new DI governance structure.  They will have weighted voting, equal to about 38 percent of the total DI vote.  The 1A FAR Board of Directors (representing FARs from each of the ten FBS conferences and 125 FBS institutions) urged the Steering Committee to include 2 members from each of the 5 Conferences, one AD and one FAR.  This would substitute for weighted voting.  It would assure a substantial faculty voice and enhance overall discussion.  The presidents and chancellors of the Big Ten conference unanimously supported this plan.  The DI Steering Committee, however, said no.  Apparently for two reasons.

            First, it believed that a Council of 43 rather than 38 was too large and unwieldy for effective discussion.  Here I simply disagree.  From my experience, the change in tenor, level of participation, and breadth of discussion happens when a group exceeds 20 or 25.  The difference between 38 and 43 is negligible. 

           

            Second, it appears that the Steering Committee believed that ten members from the 5 Conferences would have too much influence on discussion even though their voting weight would be the same, or even a little less.  If true, this means the Steering Committee is comfortable with a much smaller faculty voice and less faculty impact on the scope and substance of policy.  If true, it also is a remarkable claim in a democracy.  Translated, it means you should not have as much influence as your voting weight gives you.  On this theory, we should decrease the numbers in the delegations from Texas (36) New York (27) and California (53) to the US House of Representatives because Alaska, Delaware, Montana, South Dakota, North Dakota, Vermont, and Wyoming  are disadvantaged by only having one vote apiece.       

             

Northwestern Players and NLRB: Common Ground Not Battleground

Josephine (Jo) R. Potuto, Richard H. Larson Professor of Constitutional Law & Faculty Athletic Representative, University of Nebraska.    
Northwestern football players have petitioned the National Labor Relations Board for union certification. From most published reports, you’d think all-out war has broken out between athletes (or some of them) on the one side and campuses and the NCAA on the other. Not so, or at least not yet. The athletes clearly want financial support above tuition, room and board, and books; better health benefits; better treatment of concussions; and enhanced medical assistance if needed once they cease competing. Match these with the proposed agenda of the Group of Five Conferences (Big Ten, SEC, PAC-12, ACC, Big 12), which includes providing scholarships covering the full cost of attendance and insurance and other financial support for medical and safety needs above what currently is provided. The Group of Five also wants to explore how to lessen time demands on student-athletes and to provide scholarship aid if they exhaust eligibility before graduating. Other concerns of the athletes may focus on transfer restrictions and the ban on their ability to exploit their name and likeness value. Although there are substantial, legitimate issues attendant on such changes, they clearly are topics for serious discussion, where, I think, substantial movement should be possible. The world of college athletics changed, and the money started rolling in, when the Supreme Court stopped the NCAA from controlling the TV appearances of major football powers. One result is multimillion dollar coach salaries. Another, infrequently mentioned, is a dramatic increase in the total money going to support student-athletes because of increases in the number of student-athletes and teams that compete. And, although not commensurate with the increased flow of money elsewhere, there nonetheless also have been increased benefits and services to individual student-athletes. One such is that universities may cover all student-athlete medical expenses, whether or not caused by athletic participation.   I don’t know whether the Northwestern football players want to reconstitute their relationship with their university, seeking status as employees and not students, no matter whether reforms are implemented that answer their particular concerns. If so, then they want a major paradigm shift that dismantles the collegiate model and threatens the collegiate mark. But it sounds like what they seek is a recalibration of benefits and services to provide more to each of them within the collegiate model. That, I think, is eminently doable. Common ground then, not battleground. (For more about all this, see my co-authored article, “What’s in a Name: the Collegiate Mark, the Collegiate Model, and the Treatment of Student-Athletes, at http://ssrn.com/author=39738.)

EA Sports Settled; Where Does the NCAA Go From Here?

EA Sports Settled; Where Does the NCAA Go From Here? Some thoughts on the EA Sports settlement with the O’Bannon/Keller plaintiffs. The right of publicity claim against EA Sports was pretty strong because the game avatars looked just like players and an app made game use of their names easy. To get the NCAA on the use of the game, the court would need to decide that the NCAA’s licensing of the logo – with NCAA knowledge of how player names and likenesses were used – makes the NCAA liable for the way the game was produced (and that in a lawsuit – rather than a settlement -- the plaintiffs would prevail on the right of publicity claim). Assume all that. The NCAA no longer is licensing its logo for use on a game. So where does the O’Bannon/Keller lawsuit go from here? Some of their other claims against the NCAA are that they should get a share of revenues from NCAA sales of game DVDs and sale of pictures of famous plays that feature players. The NCAA could stop doing all that too. It would reduce revenues some. But it’s a hit the NCAA could take. The big claim in the lawsuit is that players are entitled to a share of the TV rights in the games in which they play. That’s where the real money is. That’s the one thing neither the NCAA nor individual schools could afford to stop doing. And that’s also a claim on which it will be harder for the plaintiffs to prevail. And, by the way, none of the O’Bannon/Keller claims have anything to do with whether athletes should be paid to compete.

MIAMI INFRACTIONS CASE: SHOULD THE CRIMINAL GO FREE BECAUSE THE CONSTABLE BLUNDERED? This is a famous question explored by Judge Benjamin Cardozo back in 1926 (People v. DeFore, 150 N.E. 585, 587). It is one also raised in the University of Miami Infractions case. Judge Cardozo was looking at a criminal prosecution and the dictates of the U.S. Constitution. In this contest, the Supreme Court ultimately decided that evidence obtained contrary to the dictates of the U.S. Constitution would be excluded. But the Court has applied the exclusionary rule ONLY to criminal trials. And evidence DERIVED from the constitutional violation often still is admissible. Moreover, even in a criminal trial, a prosecutor can use the evidence to impeach testimony. If you lie on the stand, even unconstitutionally obtained evidence can be used to refute the lie. (You are shielded from the use of illegally obtained evidence; you are not handed a sword to go forth and say what you please, immune from being confronted with the excluded evidence.) In the Miami infractions case, Nevin Shapiro, currently serving a lengthy prison sentence, is the main source of information. The NCAA enforcement staff paid Maria Perez, a lawyer representing Shapiro, to ask questions in a bankruptcy proceeding of individuals who had refused to cooperate with them. Miami cries foul, loudly. Miami complains because: 1. Shapiro is the main complainant against it, and a convicted felon. 2. Using Perez to ask questions violated the “understanding” of NCAA members about the scope of NCAA enforcement staff investigative authority. 3. The case has taken too long, and Miami’s self-imposed penalties are enough. OK. So let’s consider. 1. The NCAA purged its allegations of any use of the testimony. This is more than the legal system requires: NCAA proceedings and penalties are not criminal trials. 2. The NCAA also purged its allegations of information DERIVED from the testimony. This is more than the legal system might require EVEN IN a criminal trial. 3. Infractions hearings are administrative. There will be no testimony under oath by members of the University of Miami or by coaches charged with violations. The Infractions Committee will not be told of the contrary statements and excluded evidence. There therefore will be no opportunity to impeach what is said. 4. Yes, Shapiro is a convicted felon. And, yes, what he says needs to be examined closely. But this is no different than what happens at trials all the time. Fact finders are expected to assess credibility. To consider motive to lie. To evaluate the internal consistency of information. To evaluate information against other information in the record. To consider the past track record of witnesses. The testimony of convicted felons is not excluded simply because they are convicted felons. Even in capital cases. The testimony of known liars is not excluded simply because they are known liars. Even in capital cases. 5. What NCAA enforcement staff did was against NCAA protocols and what the national office believes to be the understanding of NCAA members. NCAA president Mark Emmert made that clear in his press conference. But according to published reports, not denied by Miami, both Miami’s general counsel and the lawyers handling the infractions case were told by NCAA enforcement staff that the staff intended to use Perez to ask questions in the bankruptcy proceeding. And neither objected on the ground that this would violate unstated, but understood, NCAA policy. So where is Miami’s responsibility here? In legal proceedings its failure to object might be considered an estoppel to raise the issue later. 6. What NCAA enforcement staff did was contrary to legal advice of NCAA general counsel. Certainly a fire-able offense for any employer. But that’s a matter of internal management policy. 7. The investigative process took too long. Certainly the process took quite a long time. It could be that that the enforcement staff could have moved more quickly. It could be that enforcement staff investigative limits lead to longer cases. It could be that the case was very complicated and the time taken was time needed. I am not in a position to evaluate this. 8. Miami’s self-imposed penalties are enough. This one is hard to evaluate, without knowing all the evidence. That’s what the Infractions Committee is for. 9. The enforcement staff’s interest, obviously, was to obtain as much information as it could regarding the Miami violations. Hardly an illicit interest. And that gets me to the crux of the problem here. Just what is it that NCAA members want from the enforcement/infractions process? Police investigations are clearly adversarial. Police use subpoenas to get documents. They place wires on individuals and send them to extract confessions from suspects. They pay informers to infiltrate groups to get information. They lie during interviews. Aggressive law enforcement results in more arrests and more convictions. In the current scheme of things, NCAA enforcement staff are expected to act cooperatively with a member school under investigation. They do not use informers or wires. They have no subpoena power. They are not permitted to lie. In some circumstances at least, they are not permitted to use others to acquire information they cannot themselves get. Should these tactics be over the line in NCAA enforcement? Should it be over the line to use the lawyer of the chief accuser of a member school to get evidence against the school? Or to get witness cooperation on a promise to describe that cooperation to a sentencing judge? Is it wrong to base allegations, even in part, on information provided by a felon? By someone with motive to lie? By someone with a grudge against a school or coach? Are we willing to let schools and individuals skate because we don’t like the investigative techniques, even if the information is corroborated to demonstrate reliability? There is no necessarily right answer to these questions. We can impose stringent limits on what NCAA enforcement staff do. And live with schools and coaches getting away with major rules violations. And the competitive advantage gained. (NOTE. In saying all this I do not take a position on whether Miami committed the violations alleged against it. I have not seen the file, and I do not know. I simply ask what evidence and tactics should be used to develop a case.) We can let the NCAA enforcement staff operate aggressively. And live with member schools unhappy with the tactics of a national office staff that works for them. And with claims that the NCAA enforcement staff is not even-handed in how aggressive it elects to be. Adam and Eve ate that apple in Paradise. There is no perfect answer. But NCAA member schools need to decide, and be clear. I know what side I am on.

THOUGHTS ON NCAA RULES ENFORCEMENT The NCAA is a big club. Its member colleges and universities get to set the rules of the club. Competitive sports need a central administrative body to manage competition. Enter the NCAA – or NFL or FIBA. Once you have competition rules, then you need referees and umpires to enforce them evenhandedly. Conduct off the field can also tilt the playing field. Consider performance-enhancing drugs. What makes the NCAA different from other sports organizations is that the athletes compete only because they are enrolled students at member schools – and that pulls in rules regarding academic eligibility and academic fraud as well as scholarship limits to equalize competition among the better and less well funded schools. With no rules limiting money paid to athletes, schools with major programs might find well-heeled boosters to pay big money to get a recruit to sign with their school. Even with rules prohibiting payments, some boosters are willing to cheat to get there. (See the Alabama Infractions case involving the recruitment of Albert Means.) With no rules setting a floor on academic eligibility to compete, some schools might be willing to “adjust” their academic standards to assure that athletes not ready for college work nonetheless are admitted and get to compete. Indeed, it is claimed that the “true” story of Notre Dame’s George Gipp is that he did not attend class, did not make the grades, liked bars and pool halls more than classes, and needed booster help to be re-admitted after dismissal from school. NCAA club members want to be fair to each other, and to treat each other in a principled way. They also want to assure serous punishment for major violations that bring competitive advantage. A question long percolating was brought to a head in what recently happened in the University of Miami infractions investigation involving Nevin Shapiro and the employment of his lawyer to ask questions for the NCAA in a bankruptcy proceeding. Just what is it that NCAA club members want from the enforcement/infractions process? Police investigations are clearly adversarial. Police use subpoenas to get documents. They place wires on individuals and send them to extract confessions from suspects. They pay informers to infiltrate groups to get information. They lie during interviews. Aggressive law enforcement results in more arrests and more convictions. In the current scheme of things, NCAA enforcement staff are expected to act cooperatively with a member school under investigation. They do not use informers or wires. They have no subpoena power. They are not permitted to lie. Should these tactics be over the line in NCAA enforcement? Should it be over the line to use the lawyer of the chief accuser of a member school to get evidence against the school? Or to get witness cooperation on a promise to describe that cooperation to a sentencing judge? Is it wrong to base allegations, even in part, on information provided by a felon? By someone with motive to lie? By someone with a grudge against a school or coach? Are we willing to let schools and individuals skate because we don’t like the investigative techniques, even if the information is corroborated to demonstrate reliability? A conversation among club members is long overdue. Just what are we willing to tolerate to get at the facts and catch rules violators? Just what are we willing to forego with less aggressive investigative methods?