2. College Football Playoff Act of 2009, H.R. 390. University of Illinois law professor Christine Hurt (an alumna of Texas Tech and U. of Texas), writing on the legal blog the Conglomerate. Her post, reprinted in full:
In reading all the legislation during the 110th and 111th Congress that contain the word "windfall," (everybody needs a hobby) this definitely wins in the surprise category.
The College Football Playoff Act of 2009 was introduced by Joe Barton (TX), and it has been referred to the Committee on Energy and Commerce. Now, before you start to wonder where Congress gets the power to redesign NCAA football, note how the legislation works. "A bill to prohibit, as an unfair and deceptive act or practice, the promotion, marketing, and advertising of any post-season NCAA Division I Football game as a national championship game unless such game is the culmination of a fair and equitable playoff system."
Hmmm. Next we have the MLB change the name of the World Series unless they actually invite other countries to participate.
So, where does windfall fit in here? In the findings, of course:Congress finds that. . . the colleges and universities whose teams participate in the post-season football bowls experience significant financial windfall including increased applications for enrollment, recruiting advantages, increased alumni donations, and increased corporate sponsorship that provides s competitive advantage over universities whose teams are ineligible or statistically at a disadvantage from the BCS bowl competitions because of their conference affiliation.
Well, I'll let you quibble with this silliness, but this legislation, even if it passed (which it won't), wouldn't make the NCAA create a playoff. The BCS championship bowl would just have a different name. And it doesn't matter because Texas Tech isn't ever going to make it to the bowl no matter what the name is. You could call it "Bob" or even the "Texas Tech Red Raider Champions of the World Bowl," and Texas Tech would still never make it all the way. OK, that was an aside.
3. SEC media day. Just follow @edsbs on twitter. Thank me later.
4. ESPN will now let its reporters talk about the Ben Roethlisberger case.
5. Michael Vick, underrated? Brian Burke on the NY Times Fifth Down Blog.
6. The Senator asks: How far can the spread, spread? Good stuff, well worth it.
7. More from the NY Times on the O'Bannon vs. NCAA infringment case:
O’Bannon left U.C.L.A. in 1995. Does the N.C.A.A. have the right to continue to make money off O’Bannon and his teammates without compensation?
“Is that part of what an athlete’s grant-in-aid is about?” asked Richard M. Southall, the director of the College Sport Research Institute at the University of North Carolina. “You’ve left the plantation and now 15 years later you have a wife and children and the plantation still owns you, no matter what.”
College merchandise licensing is a $4-billion-a-year industry, and the N.C.A.A. has cornered the market. An N.C.A.A. business partner, Thought Equity Motion, has called the N.C.A.A.’s video content archive “one of the most unique and valuable content collections in the world.” . . .
The N.C.A.A. has had a sweetheart deal for years — using players’ likenesses, selling jerseys with popular players’ numbers and using athletes as uncompensated on-campus entertainment. Of course, athletes and their parents have had their own sweetheart deal, choosing colleges for sports and not for an academic fit.
There is not a lot of sympathy these days for athletes’ woes — at any level. The perception is that scholarship athletes and their families receive a pretty good deal. Yes, the hours are long and daily practices make this a rigorous part-time job.
“The general thinking among the public is that, ‘It could be a heck of a lot worse — you should be just be thankful for what the school has given you,’ ” Southall said. If that means eternal rights to your image, then so be it.
And the public does not care.
Just wait. Come September, college football stadiums from Harvard to Southern California will be filled with fans. Fans do not worry about steroids or licensing issues; they just want to be entertained.
O’Bannon’s case and the others raise an old but still unanswered question: Who protects the college athlete? In the N.F.L., a players association protects players against owners. In major league baseball and the N.B.A., unions look after the players’ interests.
Not so in college.
The N.C.A.A. describes itself as “the organization through which colleges and universities of the nation speak on athletics at the national level.” The N.C.A.A. tries to act as mother, father and paternalistic overseer who supposedly knows what’s best for the young athlete.
But don’t count on it.
Every year, beginning in their freshman season, scholarship athletes are compelled to sign mountains of forms.
How many athletes or parents or guardians read the forms? How many challenge the athletic department? College administrators and coaches pay lip service to “educating the kids,” but how many insist that their new recruits know exactly what they are signing?
More to the point, how many recruits — and parents of recruits — have the nerve to tell Duke’s Mike Krzyzewski or Tennessee’s Pat Summit that, based on a lawyer’s advice, they are not signing anything granting a release of their image.
All involved usually are too filled with gratitude and ego to consider reading between the lines.
“Until someone says something, stuff can go on,” Southall said. “Nobody wants to be the athlete who’s blackballed. Nobody wants to be the test case that’s thrown out.”
Ed O’Bannon wishes he had raised the question and resisted 15 years ago. Perhaps as a result of his suit, future athletes won’t have to.
Again, I think even if the NCAA loses they will just get the players to sign a waiver of their rights as a condition of getting the scholarship.
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12 comments:
Since you can't vote for your own guy in the SEC, "unanimous" is considered to be 11 out of the 12 total votes, i.e. all 11 votes from other coaches. Tebow only got 10 out of the 11 non-Florida votes, and thus wasn't unanimous.
when it comes to voting, there are 12 coaches, 11 votes make it unanimous. Also the players coach is not allowed to vote for him, meaning there were 10 votes for Tebow.
That article is very New York Times -- we should feel bad for an NCAA student-athlete because s/he doesn't have a union. Good job NYT.
The NCAA and its member universities offer a deal: college enrollment and media exposure in return for participation and use of image. In most cases, it's the best deal that a student-athlete has, which is why so many student-athletes take it. It is therefore a "fair" deal by definition. But even if you think the student-athletes are generally under-compensated, comparisons to a "plantation" are vile. No one was or will ever be forced to play NCAA sports. No one was or will ever be forced to sign away the rights to the use of his or her image to the NCAA.
Particularly troubling is that the only named plaintiffs are folks who are no longer directly receving any benefits from the NCAA or its member institutions. They still derive long-term benefits from the publicity and/or college degrees the deal provided them: O'Bannon - who was nothing as a pro - does publicity for car dealerships, and I believe Keller and Hart both got college degrees (which they presumably trade on). So now they attempt to rescind the deal knowing that the benefits which flow and will continue flowing to them cannot possibly be taken back.
I look forward to seeing these cases thrown out.
requiring a waiver allowing the NCAA's use of likeness would be a easy case for the courts - and more evidence of NCAA monopolistic behavior.
Nits: unless Christine Hurt is, unknown to me, plural, she'd be an "alumna", not "alumni". Also, what JD and Ken said about 11 votes being unanimous.
The previous commenter makes a fair point, but misses the overall argument of the plaintiffs. As he states, "No one was or ever will be forced to sign away the rights to the use of his or her image to the NCAA." This may be true, but the cover provided by identifying athletes only by number, rather than name, indicates that the licensing agreement between the NCAA and EA Sports recognizes that the use of the likeness of a student-athlete may be impermissible or actionable in some form or fashion. This is tantamount to an admission that they do not have an all-encompassing right to use (and sell) this information in any matter they see fit.
The case can be made, that by making the effort to provide the most realistic possible experience, and therefore matching measureables such as height, weight, and number, EA Sports is making every effort to identify the unnamed players as their real world counterpart. The design choice made by EA for roster upload functionality supports this argument.
In my opinion, the biggest question will be whether or not EA provided themselves adequate cover by referring to players in the programmer notes as their team, position, and number rather than by name. Such as "Florida QB #15" rather than "Tebow".
I believe that the athletes depicted on the all-time teams will have the best argument. As there was no EA Sports college basketball game published while Ed O'Bannon was playing at UCLA, it's reasonable to assume that he wasn't able to sign away video game likeness rights at that time, because the medium (and therefore the rights) did not exist.
Odds are good that this goes nowhere, but that's not because there is no merit to the argument. EA grossed over a billion dollars last year, and some of it was because of the likenesses of amateur athletes. That should be enough to warrant a hearing.
I have to say that I apparently miss the thrust of the Plaintiff's argument as well.
Are they arguing that the University of North Carolina doesn't have the write to include a team picture of the 1982 Championship team without cutting a check to James Worthy, Sam Perkins, and Michael Jordan?
The NCAA does not own the prospective rights to Michael Jordan's images. What they own is the rights to images of Michael Jordan while he played in the NCAA.
It is beyond me how Ed O'Bannon thinks the NCAA is exploiting him in 2009 by showing clips of the 1995 NCAA championship game.
I do not have never gotten this cottage industry of crackpots who think that the NCAA is an evil monopoly that is profitting off these poor kids, who have some fundamental right to be compensated as professionals in what has clearly been presented at all times as an amateur competition.
The NCAA is nothing more than a non-profit that is composed of individual Universities, also non-profits. Whatever revenues are generating aren't going into the private bank accounts of anyone, they are being plowed back into endowments, scholarships, and academic purposes, along with the associated costs of running these athletic departments that allow guys like Ed O'Bannon to obtain the training and exposure that allows him to compete at the next level.
Apparently, from what I gather from reading the limited reporting on the case -- the LOI that athletes sign already requires them to waive their rights to compensation for the use of their images and likenesses.
Clearly, there is consideration for this: whether the free education, room, board, training, medical treatment, exposure, etc is viewed as important by these players or not, it is provided and it is substantial.
I invite the folks that think they are getting a bad deal to try other routes to the pros if they don't like the deal they are offered by colleges.
Certainly, college isn't for everyone and if they have a better solution they can always go and seek it.
VLB said in such a perfectly condescending tone that it most certainly has to be the word of the Lord...
"I do not have never gotten this cottage industry of crackpots who think that the NCAA is an evil monopoly that is profitting off these poor kids, who have some fundamental right to be compensated as professionals in what has clearly been presented at all times as an amateur competition.
The NCAA is nothing more than a non-profit that is composed of individual Universities, also non-profits."
I absolutely love people who dismiss the opposite viewpoint with the all-encompassing snub "crackpot". You're right VLB. Sorry. We're all just crackpots.
But please do this particular crackpot a favor and grab your Miller Lite or Pepsi and flip on the college game of your choice and have a quick ponder on why it might be that the ad you see is for Pepsi and not Coke, or Bud Light and not Miller. There's a reason and its hallowed name is $money$. If it is so amateur, then why would there even be a reason for licensing fees? What is so darn valuable in the first place?
Or is this really all about money and therefore not so clearly amateur?
Next time you flip on some football game where STUDENTS are playing a thousand miles away from campus on a Thursday night, riddle me this Lord VLB,
What time on Wednesday do you think they left home? What time on Friday do you think that they will be ready for that quiz? Or is it that you approve of the idea that they really don't have to actually go to class?
Yes, I have extensive D1 experience. Your statements stink of couch potato ignorance.
"college football stadiums from Harvard to Southern California will be filled with fans."
Harvard has a full house (kinda) when playing Yale. Anybody else and you'd be hard pressed to count more than two thousand, with free admission to students and 5 dollar tickets to the general public.
I know nobody cares. But Ivy football really is dead.
I guess what you're missing with the strange case of Mr. Tebow is that most of the entertainment coming out of SEC Media Days is coaches taking digs at each other (or subpoenaing each other or whatever). Meyer has been less than subtle, and sometimes creepy, in his undying adoration for his QB. Another coach not putting Tebow as 1st team is more than likely a move made out of spite towards good ol' Urban. Nothing against Snead, but you'd have to vote for Timmy, right? (as a Gator-hater, it pains me to admit that)
The media's quest to uncover the story is really a search for which SEC coach had the balls to do it. Plain and simple.
Bubba,
Non-Profit corporations are allowed to make profits, the distinction is that they don't distribute them to shareholders or put them in their pocket.
I certainly agree with you that the NCAA attempts to maximimize profits for its individual institutions.
the Universities use the money to fund athletic programs, improve facilities, fund scholarships, pay educators and coaches, and in general run their institutions of higher learning.
I wonder why you signed up to be a Division I athlete if it was such a bad deal?
Frankly, if there is a enough interest and funding out there to create a professional league of kids that have no desire to go to college, I think it would be a great idea.
That would clean up college football tremendously and give those folks who don't care about educations and the college experience a place to receive some sort of compensation they would appreciate.
Thank you VLB (for real) for your further comments. I very much agree with much of your additions.
I played D3 football and was fortunate enough to spend a few years coaching D1 at two very successful programs.
I respectfully disagree with the idea that some kid who can barely read at a 4th grade level is being adequately represented at a bargaining table with regard to his future property rights. Believe me, I'm not some big fan of today's litigation happy society, I just think that D1 programs generate a huge amount of revenue (that creates many high paying jobs) and I really find it to be something of a joke that the workhorses, the actual entertainment generators, are not cut a piece of the pie in proportion to their share. Believe me, all that money finds its way into many more areas (pockets) than just the things you listed.
You can say all you want about how the athletes receive "a college education" (what exactly is a Mass Comm degree worth in a job market to a kid with absolutely no work experience?) but isn't that best determined at a table where both sides get to actually bargain in an even-handed manner? What's there to be afraid of? The great lengths that have been taken to avoid such a table seem to warn that maybe there is something more to it all than meets the eye.
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