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Monday, September 30, 2013

Why Congressional Regulation Should Be Embraced by the NCAA

In a letter to Mark A. Emmert, Ph.D., President of the NCAA, dated October 29, 2011, I asked the following question:
I believe that given the current circumstances of the NCAA, its sustainability is questionable, and I believe that the only hope that it has for survival is to seek regulatory approval and supervision by the Congress. Given the paradox of its genesis juxtaposed with what it has become, this is something the NCAA would cringe at, but in terms of crisis management, what other choice do you really have, if you impartially consider the factors now impinging upon your organization? I am very interested to learn if you actually appreciate the severity of the current situation, and I am fascinated by crisis management or the lack thereof in such circumstances. 
In Dr. Emmert’s letter back to me, dated November 18, 2011, he chose to ignore answering this question.

So is the NCAA on its slow decline into oblivion?

Certainly, the current onslaught of major lawsuits threatens the NCAA's very existence, and the recent settlement by EA and CLC leaves the NCAA left holding the bag it created.  At the end of the day, in regards to the broadcast rights, which is the vast bulk of the money, nobody can explain how the NCAA or its members have the right to be paid for recording or televising college athletes at play, since they do not receive releases from any of them for this.  Essentially, the networks just assume that they can contract with the NCAA and its members without ever having considered why that would be so.  Video games and t-shirts won’t sink the business model, but a redistribution of this broadcast money will sink the NCAA and the major conferences like an iceberg at sea.

As the outgoing Princeton A.D., Gary Walters, said recently, the current tension is between the NCAA and its Division 1-A members and the major conferences on one side, who make the vast majority of the men’s football and basketball revenue, and everyone else in the NCAA, who do not run for-profit football and basketball programs.  These are irreconcilable.  When the NCAA gets hit for the recording and television revenue in one of these pending lawsuits, the major conferences will pick-up and go, if they haven’t by then already left, and those conferences will then negotiate a business deal with their players rather than kill the golden goose.  As they say, that will be that.  Whether the NCAA continues to exist to serve the interests of its unprofitable members, who knows, because there’s not much benefit for the remainder of Division 1 to be allied with Division II or Division III, and vice versa.

Assuming that the money issue is resolved by paying college athletes, how does this solve all of the other problems affecting college sports, other than taking a pot of gold off the table to pay for everything else that needs to be done, from the concussion issue to the insurance issue to the student welfare issue and so on?

I previously wrote about why Congress should regulate the NCAA, but if the NCAA was smart, it would have already gotten the Department of Education on board and proposed comprehensive legislation to Congress.  The fact that it hasn't shows a complete failure in leadership in the top, not just in the executive office, but also on the executive board or whatever they call it now that actually runs the NCAA, some sixteen college and university presidents.  The time is now for the NCAA leadership to actually start thinking about controlling the NCAA’s own destiny, and this cannot be done without regulation by Congress.

140 Law - Legal Headlines for Monday, September 30, 2013

Here are the leading legal headlines from Wise Law on Twitter for Monday, September 30, 2013:
- Rachel Spence, Law Clerk

Sunday, September 29, 2013

Then how do you enforce rules?

I am going to take issue with Geoff on this: Penn State University as an institution was being punished. And if Penn State cannot be punished, then the entire scheme of NCAA regulations is unenforceable (and humor me for the moment and assume NCAA regs are worth enforcing). Any long-lasting institution survives its individual members; old members are replaced by new members, but the institution is understood to survive uninterrupted. And the institution bears responsibility for the conduct of its members--past, present, and future. The players and coaches who break rules are always gone by the time enforcement comes down. If that punishment is wrongful because current (rather than rule-breaking) players are in the institution at the time of enforcement, then punishment of the institution always becomes wrongful. Even in a case of lack of institutional control (as Penn State arguably was), the institution could always argue that its failure was to control previous players, but that shouldn't be taken out on current players. But then the university gets off scott-free and has no incentive to police its future members, because it always can argue against punishment falling on its current players.

Taken to its conclusion, Geoff's argument applies to any institution and institutional punishments. Germany should not be made to provide reparations or other compensation to Holocaust victims because the punishment falls on the current German government and citizens; ditto for arguments with respect to slavery. International law (which I rarely cite or discuss) recognizes the concept of successor governments. Why not for universities in the field of NCAA enforcement?

All that said, I agree with Geoff that this is an example of "punisher's remorse", a term I wish I had used in a radio interview I did last week. But the remorse is over punishing Penn State--the NCAA does not want one of its flagship institutions under such a harsh punishment.

Geoffrey Rapp: the NCAA's "Punisher's Remorse"

Geoff and I were interviewed by Mike Dawson of the Centre Daily to talk about the NCAA reducing Penn State's penalty and other challenges for the NCAA (O'Bannon case; concussions etc.).  Geoff has some powerful and smart quotes in it.  Here's a a couple of excerpts:
* * *

“I think what’s going on here is largely ... punisher’s remorse of sorts,” said Geoffrey Rapp, a sports law expert at the University of Toledo in Ohio. “As they now have lived with the sanction for a year, they realized the victims are the current players. It’s not really putting any hurt on the people that we think are really responsible.”

* * *

“All of these are examples of duplicitousness and double standards on the NCAA, which then makes them uncomfortable with the moral high horse they were riding last summer,” Rapp said, referring to the time the Penn State sanctions were handed down.

Read more here: http://www.centredaily.com/2013/09/28/3812610/ncaa-acting-on-punishers-remorse.html#storylink=cpy

To read the rest, click here.

Read more here: http://www.centredaily.com/2013/09/28/3812610/ncaa-acting-on-punishers-remorse.html#storylink=cpy
 

Friday, September 27, 2013

140 Law - Legal Headlines for Friday, September 27, 2013

Here are the leading legal headlines from Wise Law on Twitter for Friday, September 27, 2013:
- Rachel Spence, Law Clerk

Electronic Arts' Settlement is a "Win" for Consumers

Electronic Arts' settlement of the O'Bannon-Keller litigation, assuming it gets approved by the court, is a big win for the consumer because it creates a new market opportunity for numerous video game producers.  These companies can now compete against each other by negotiating with college players, collectively as a group, over the payment of a licensing fee for the exclusive right to use clear images and actual names of players, which will result in a better quality game with better graphics for the consumer.  And the payment of a licensing fee to the players might not increase the price of the game for the consumer.  Case in point, EA pays a licensing fee to NFL players for the use of their names and images, yet the price of EA's Madden NFL game is the same as the price of its NCAA Football game in which a licensing fee is not paid to the players.  According to basic principles of supply and demand, price is determined by what the consumer is willing to pay.

The underlying basis for recognition of publicity rights is the prevention of unjust enrichment.  For years EA has been profiting from the free use of college players' identities, and now they must disgorge the unjust gain.  The "Principles of Amateurism" should not be used as an excuse by a video game company or anyone else, including the hundreds of people who run big-time college sports and pay themselves multi-million dollar salaries, to unjustly enrich themselves at the expense of the players whose efforts make such revenue generation even possible.

The NCAA, the conferences and the universities can continue to dig their heels in and keep fighting this battle but, even if they end up winning the legal battle, the principles of supply and demand will ultimately prevail.  Baseball won the battle in Curt Flood's antitrust lawsuit but it ultimately lost the war, and not necessarily because of the National Labor Relations Act but essentially due to principles of supply and demand.  There is a small supply of elite college football players with unique skill and talent known as Four- and Five-Star recruits who are not fungible and are in huge demand because the product of big-time college sports, and the revenue it generates for all of those who produce it, simply does not exist unless these players agree to participate.  Can big-time college football make the same money with "scab" college players?  What would happen if these players ultimately got together and simply decided not to participate unless certain conditions were met, and not necessarily the right to compete for wages (which these players would concede changes the product of "amateur sports") but rather the right to receive payment for the commercial use of their names/likenesses, the right to have an agent negotiate with professional teams, or the right to better insurance and more scholarship funds?  And they do not have to be declared employees by law nor form a labor union to do it.      

Wednesday, September 25, 2013

140 Law - Legal Headlines for Wednesday, September 25, 2013

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, September 25, 2013:
- Rachel Spence, Law Clerk

Aaron Hernandez Discussion at UNH Law on Friday September 27

On Friday at 2:45 p.m., I'll be giving a talk at the University of New Hampshire School of Law alumni weekend on the Aaron Hernandez case and the range of legal and business issues at stake.  Those issues include (obviously) criminal law, but also issues in tort law, contract law and labor law. I've reported on this case for Sports Illustrated and SI.com, and I'm looking forward to talking about it.

Here's an outline of my discussion:


Outline


  1. A Brief History of Aaron Hernandez : From Bristol, Connecticut to Bristol County (Massachusetts) Jail.

  1. The murder charges and associated evidence for the death of Odin Lloyd.  Discussion will include analysis of:

·         Roles played by the alleged accomplices, Carlos Ortiz and Ernest Wallace;

·         Possibility of federal charges;

·         Hernandez’s possible defenses, including those connected to drug use; and

·         Hernandez reportedly being target of a Suffolk County (Boston) grand jury investigating the 2012 deaths of Safrio Furtado and Daniel Abreu.

  1. Can Hernandez Receive a Fair Trial?  Lessons from People of the State of California v. Orenthal James Simpson and Samuel Sheppard v. E.L. Maxwell.

  1. Possible Wrongful Death Action against Hernandez and Possible Vicarious Liability for New England Patriots.

  1. Dispute between New England Patriots and Hernandez over money purportedly owed to him under his NFL contract.

  1. Duty of Fair Representation of National Football League Players’ Association to advocate for Hernandez.

  1. Expectations for how Hernandez saga will impact the ways in which NFL and college teams investigate and evaluate players.


Although seating is reserved for alums of the school, a limited number of seats will be made available to others.  If you're interested in attending, please contact Matthew Solo at matthew.solo[at]law.unh.edu.

For more information about our law school's sports and entertainment law institute, click here.

Tuesday, September 24, 2013

140Law - Legal Headlines for Tuesday, September 24, 2013

Here are the leading legal headlines from Wise Law on Twitter for Tuesday, September 24, 2013:
- Rachel Spence, Law Clerk

Monday, September 23, 2013

AALS Section Call for Papers on O'Bannon v. NCAA

The AALS Section on Law and Sports is looking for one speaker to join a panel in January to explore the theme, O'Bannon v. NCAA: Is There An Unprecedented Change To Intercollegiate Sports Just Over The Horizon? The deadline is Oct. 1.  HT to the Legal Scholarship Blog.

140 Law - Legal Headlines for Monday, September 23, 2013

Here are the leading legal headlines from Wise Law on Twitter for Monday, September 23, 2013:

- Rachel Spence, Law Clerk

Friday, September 20, 2013

140 Law - Legal Headlines for Friday, September 20, 2013

Here are the leading legal headlines from Wise Law on Twitter for Friday, September 20, 2013:

- Elysia Cherry, Legal Assistant 

Wednesday, September 18, 2013

140 Law - Legal Headlines for Wednesday, September 18, 2013

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, September 18, 2013:
- Rachel Spence, Law Clerk

Tuesday, September 17, 2013

140 Law - Legal Headlines for Tuesday, September 17, 2013

Here are the leading legal headlines for Tuesday, September 17, 2013 from Wise Law on Twitter:
- Rachel Spence, Law Clerk