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?

TEXT MESSAGES AND THE NCAA:   THE PERFECT IS ENEMY TO THE GOOD

When a team isn’t winning, the most popular quarterback on the team is the back-up sitting on the bench.  Whatever the NCAA does, observers always see a different, more popular, option on the bench.  The latest example is the controversy over whether recruiting phone calls and text messages should be deregulated.

The NCAA ban on text messages had been widely and repeatedly criticized.  Examples:

·         On April 27, 2007 Ivan Maisel (ESPN.com) described the ban as “Score One for the Luddites,” saying that “most coaches” were dismayed at the 2007 action to ban text messages and that the American Football Coaches Association tried to get the NCAA to wait and hear from the coaches before implementing the ban. 

·         Others opposed to limits included Andy Staples (SI.com 7/20/2011); Rob Dauster (Inside College Basketball 6/15/2012); and Wade Neely (Clarksville Sports 6/1/6/2012).

The recent move to eliminate the ban and permit unlimited text messages (and also phone calls to recruits) after their sophomore year, is also widely criticized.  Examples:

·         College football coaches, including George O’Leary and Jumbo Fisher, opposed the new rule while collectively those in the Big Ten asked for a delay.

·         Others opposed to unlimited text messages and phone calls included Mitch Sherman (Recruiting Nation 1/22/2013); Mike Bianchi (Orlando Sentinel 2/7/2013); and Drew Sharp (Detroit Free Press 2/10/2013).

So, who’s right and who’s wrong?  Actually, both sides, and neither.  No solution is perfect.  Whatever policy the NCAA implements will have negative consequences.   My own view is that elimination is a very good idea.  But, whatever policy is in place, the more popular option continues to be the one on the bench.

Mondey, Michael Jordan, and Subdividing NCAA Division I

I like having money.  I’d like having more money.  I don’t want anyone telling me I can’t spend my money.   Or dictating how I should spend it.  Michael Jordan can build a $40 million home.   I can’t afford to own a house like Michael’s, and I don’t expect him to live as I do.  If I can’t keep up, then I don’t belong in his neighborhood.

There is a lesson in this for the world of college athletics and the NCAA.  Some college programs have a history of investing in the infrastructure of their athletics programs.  They may have earned their way there, as did Michael Jordan.  Or they may have had advantages from the start that eased the way, as do those with inherited wealth.   Nonetheless they spend to build and maintain their programs, with the result that their conferences have the programs fans want to watch, the media clout, and the big revenues.   It seems un-American (or at least un-Potuto) to deny them the advantages they have earned.  (In saying this, by the way, I don’t by any means defend the excesses in spending or the differences between athletic funding and funding of the greater campus.)

Certainly athletic competition requires a requisite number of teams with some level of competitive balance among them.  Is that number 64?  Or 80?   We need to decide.  But then those programs need to be able to chart their own course and decide on their rules.   In other words, we need further subdivision of NCAA Division I.  The Michael Jordans of college athletics can’t continue to be thwarted by those schools that don’t have the money to keep up with the Jordans.   Even within this smaller group there will be variances, with some still trying to contain the better endowed Jordans or operating in the red to keep up with them.  But at least the neightborhood won’t run the range from my house to Michael’s.