Sports Law Newsletter - February 2020
Name, Image and Likeness
By: Joseph "Ricky" Lefft
The National Collegiate Athletic Association (“NCAA”) has enjoyed unprecedented autonomy as a non-profit association representing approximately 1098 member institutions. Its members are both public and private universities and colleges throughout the United States divided into three divisions. The NCAA enjoys a great degree of latitude in the governance of the association members, their staff and student athletes by virtue of the voluntary nature of its membership. As a condition of membership institutions contractually agree to strictly adhere to the Constitution and Bylaws of the association which restricts the benefits which a member can provide to its student athletes as well as third parties affiliated with the institutions such as alumni and boosters.
Courts have historically been reluctant to interfere in the governance of the NCAA unless its policies or the application of its policies run afoul of state or federal laws, such as antitrust laws. This governance structure has provided the association with many economic and market advantages evolving into a multibillion dollar sports and entertainment enterprise, much of which has been made possible by its business model (otherwise referred to as the “Collegiate Model”). Through its adherence to the Collegiate Model, the NCAA promotes amateurism as a core principle of competition and fairness in intercollegiate athletics. A byproduct of amateurism is that the cost of labor, as compared to professional sports, is arguably far less expensive than its professional counterparts which compete for the same entertainment dollars. In order to preserve its amateurism status, the NCAA Bylaws have prohibited student athletes, both prior to entering member institutions and after, from leveraging their athletic prowess in exchange for a financial benefit. However, recent court decisions, recent state legislation and the reality of the free markets are challenging the NCAA’s notion of amateurism which denies student athletes the opportunity to exploit for compensation their name, image and likeness (“NIL”).
In addition to state legislatures, Congress has decided to weigh in on the issue creating the impetus for the NCAA and its members to reevaluate the propriety of such restrictions on student athletes. Congress has taken a particular interest in this issue as evidenced by the formation of a bipartisan working group led by U.S. Senators Mitt Romney, Corey Booker and Chris Murphy. Senator Murphy summarized his sentiments about NIL as follows:
“College athletes are being used as commodities to make money for the NCAA, colleges and corporations, while not being compensated for the work they do, nor given the appropriate health care and academic opportunities they deserve,” Murphy said in a statement. “That’s plain wrong. The majority of executives and coaches who are getting rich off college athletics are white, while the majority of players at the big time sports programs are black. This is a civil rights issue and I’m glad to launch this bipartisan working group to fix the inequities in this broken system.”
U.S. Senator Chris Murphy of Connecticut, by Steve Berkowitz, USA Today December 17, 2019.
The growing controversy threatens to dismantle the framework of the NCAA’s “Collegiate Model”. In recent cases the courts have called into question the purity of the NCAA’s definition of amateurism. The question being asked, by those outside of the NCAA is why is it not permissible for a student athlete to leverage his or her NIL for remuneration? The common response from the NCAA and its members is that i.) it undermines the “Collegiate Model”, ii.) it will create a competitive imbalance in intercollegiate athletics, iii.) it could become a Title IX/gender equity nightmare.
What is missing in much of the discussion about NIL is not every person or student athlete has a commercially marketable NIL, only a select few will have the ability to leverage their name, likeness and image. The exploitation and/or monetization of one’s NIL is fundamentally the legal right of a person, who enjoys a certain amount of notoriety or popularity in the marketplace to financially benefit from their celebrity. In the world of intellectual property NIL is also referred to as “rights of publicity” which legally inure to the individual, not to any institution or organization by which they may be employed and/or in which they may be participating in some form of sports or entertainment activity. The assumption is that student athlete’s marketability will be exclusively tied to their affiliation with their college or university which in many cases may be an inaccurate assumption. Zion Williamson arrived at Duke University with a national brand or profile honed in AAU and high school basketball. Thus giving rise to a preexisting financial valuation of his NIL and persona prior to arriving at Duke. The NCAA is looking for a global solution which fits within its current framework, however, it is more likely market forces and technology will shape the contours of the present and future opportunities for student athletes. What is certain is the lid to “Pandora’s” NIL Box is open and will lead to sweeping changes in the way that the NCAA currently conducts business.
The NCAA Investigative Process: Knowledge of the Bylaws Can Make or Break You!
By: Tiffany M. Releford
The NCAA investigative process can be difficult to maneuver. However, having knowledge of and understanding the Bylaws used by NCAA staff responsible for investigations and processing is key. While this article will not address all the Bylaws involved in the investigative process, it will identify some important Bylaws with which individuals and institutions should be familiar as part of the NCAA infractions process.
Enforcement is one component of the infractions process. According to the NCAA, “the mission of the enforcement department is to uphold integrity and fair play among member schools; ensure that compliant schools and student-athletes are not disadvantaged by their compliance and provide fair procedures and timely resolution of cases.” As part of the infractions process, NCAA enforcement staff receives information about potential violations, as well as conducts investigations to discover facts.
Understanding Article 19 of the NCAA Division I Bylaws on the “Infractions Program” is pertinent in the investigative process. While there are many provisions in Article 19, this article will focus on the Bylaws relating to the importance of cooperation such as production of materials, participating in interviews, protecting whistleblowers, and the consequences if an institution or individual fails to cooperate.
- Importation of Facts (Bylaw 126.96.36.199.1)
The investigative process allows importation of facts by a decision or judgment of a court, agency, accrediting body, administrative tribunal, commission, etc., authorized by a member institution or its board of trustees, to be accepted as true in the infractions process. This means evidence submitted and positions taken in another proceeding may be considered in the NCAA infractions process, although it is a separate proceeding. So careful review of prior testimony, facts presented, or other issues that were addressed or raised in one of the above forums should not be ignored or disregarded if an institution or individual finds themselves involved in the NCAA infractions process.
- Failure or Refusal to Produce Materials (Negative Inference) (Bylaw 188.8.131.52.1)
The purpose of this Bylaw is to hold individuals involved in the investigative process accountable and maintain a timeline for efficiency. The Bylaw allows a hearing panel to infer that a violation may have occurred if a party fails to cooperate in the investigation. For example, if an institution or individual fails to produce requested materials, the hearing panel may infer that those requested materials would support the alleged NCAA violation. While the negative inference cannot be solely relied upon to support the existence of a violation, it certainly could harm the credibility of an institution or individual that fails to produce materials requested by enforcement staff.
- Failure or Refusal to Participate in Interview (Negative Inference) (Bylaw 184.108.40.206.2)
Similar to Bylaw 220.127.116.11.1, this Bylaw holds institutions and individuals accountable for not participating in an interview. Thus, if an individual fails to or refuses to participate in an interview requested by the enforcement staff, and that individual is later deemed to be an involved individual, the hearing panel could deem the failure to be interviewed as an admission to the alleged violation. The individual may then be subject to penalties, which cannot be appealed. So, unless one has a compelling reason not to sit for an interview, an individual would be best served by cooperating with enforcement staff.
- Responsibility to Cooperate (Bylaw 19.2.3)
Institutions and individuals should be careful not to violate this Bylaw, which is very broad. Bylaw 19.2.3 makes cooperation by school presidents and athletics staff a term (and condition the way the Bylaw reads) of their employment. In fact, the Bylaw mandates that language pertaining to this Bylaw “must be included in contracts or appointments executed on or after August 8, 2018” with penalties for failure to do so effective February 1, 2019. So, if this Bylaw is applicable to you, it is recommended that you review your contract to make sure you are in compliance.
The broad language in the Bylaw provides that “full cooperation” consists of timely reporting of violations; timely sharing of information with the enforcement staff; providing access to “all electronic devices, social media and other technology”; maintaining integrity and confidentiality of the investigation; and “instructing legal counsel/representatives to cooperate.” This Bylaw, while intended to be built on cooperation from both sides, puts the burden squarely on the alleged violator. For example, if an institution’s or individual’s counsel files a series of motions close to a hearing date that inhibit the efficient processing of the case, the actions of counsel can be held against the institution or individual. As such, it is important to timely respond and cooperate with NCAA enforcement staff, as well as be strategic with motions or other filings in a case, to avoid penalties.
- Protection for Cooperation (Whistleblower Protection) (Bylaw 18.104.22.168)
Those who come forward with complaints of NCAA violations are protected. A whistleblower is defined broadly in Bylaw 22.214.171.124 as a “current or former institutional staff member or prospective or enrolled student-athlete who voluntarily reports information about potential violations to his or her conference, member institution and/or the Association.” Similar to laws protecting employees against retaliation, the NCAA will not tolerate retaliation against a whistleblower. If there is retaliation, it could result in an allegation by the NCAA against the institution. Thus, once an institution learns of a complaint by a whistleblower, in addition to cooperating with the NCAA in investigating the matter, although the institution may not know the identity of the whistleblower, it should make sure those involved in the infractions process understand that retaliation is not permitted.
In addition to understanding an institution’s or individual’s duty to cooperate in the NCAA infractions process, it is also important to know the consequences for lack of cooperation in the enforcement process.
- Immediate Penalties for Failure to Cooperate (Bylaw 126.96.36.199.3)
Pursuant to this Bylaw, the NCAA Division I Committee on Infractions (“Committee”) or the Independent Resolution Panel (“Panel”) can impose “immediate penalties” on schools and individuals, including, but not limited to, a loss of revenue sharing during a postseason ban, a five-year postseason ban, suspension, and up to a full year of recruiting visit reductions. In addition, the lack of cooperation can be considered an admission to a violation. Think of this as an interlocutory order where the hearing panel has not yet heard an enforcement case and issued a decision; however, due to failure to cooperate, immediate sanctions can be imposed before a hearing is held. No institution or individual should want to be struck with any penalties during the enforcement process which may undermine the institution or individual’s credibility and ability to present their case.
- Authority and Duties of Committee (Bylaw 19.3.6-(j))
Lastly, this Bylaw expressly permits the Committee to issue sanctions to parties “and/or their representative(s) for behaviors that inhibit the committee’s ability to effectively manage the docket, ensure a professional and civil decorum in all proceedings or otherwise efficiently resolve infraction cases.” So, as noted above in the discussion about the duty to cooperate, not only can the named party in the allegation be subject to sanctions, but also their counsel or other representative. Thus, institutions and individuals need to recognize the broad power the NCAA has with regard to enforcement proceedings to maintain a good light before the Committee or Panel.
In closing, the NCAA has implemented the above Bylaws to facilitate an effective investigation. While the duty to cooperate may appear to be only on the institution or individual, it is important that an institution or individual understand what is expected of them during the infractions process to avoid incurring unnecessary penalties or negative inferences that could affect their ability to defend and/or present a case to a Committee or Panel.
Negotiated Resolutions and the Independent Accountability Resolution Process: Jump In or Walk Away?
By: Jennifer S. Jackman
There are two new options for use in NCAA infraction cases that, on the surface, seemingly encourage quicker remedies and the possibility of independent review. But are these new processes options that schools and coaches should consider? While they can certainly be considered, these options are not without risk, as set forth below, and institutions and coaches should tread carefully before jumping in.
Negotiated Resolution Process
The Negotiated Resolution Process is brand new to the NCAA in 2019. This option can be used when all parties and the NCAA agree on the violation, level, classification and penalties in a matter. While the idea of coming to an agreed outcome may seem appealing, this process is not without risk and is no guarantee of a specific result, even if the parties agree to all terms.
To use this process, at least for now, every aspect of the case has to be agreed upon by all parties. For now, if the institution and coach do not agree on all aspects of the case, this process is not an option for either party because the NCAA is not allowing for bifurcated cases, at least for the foreseeable future, until the NCAA gets some experience with this new process.
Assuming there is an agreement on all issues, the parties submit a report to the Committee on Infractions (“COI”) for preliminary assessment. The report includes, inter alia,
agreed upon violations, violations considered but not alleged, the level of agreed upon violations, agreed upon penalties, and a waiver of appeal. The major downside is that even if the parties agree on all terms, including penalties, the COI can still reject the proposed negotiated agreement. Upon receipt of a proposed agreement, the COI will weighs factors to determine whether there should be aggravation or mitigation, which could subject the parties to higher or lower penalties. Even worse, it is possible that a rejected negotiated resolution could potentially be considered by the peer review panel at the subsequent hearing, which could be viewed as an admission. While the underlying settlement discussions would not be admissible, the fact that a settlement agreement was drafted and agreed upon would be known by the COI. Accordingly, significant consideration should be given to what facts are “admitted” in a proposed negotiated resolution since those admissions could come back to haunt a party if the agreement is rejected.
As of the date of this article, the NCAA has already approved seven negotiated resolutions. All seven were initially rejected by the committee, subsequently amended and resubmitted to the COI for final approval.
While the negotiated resolution process may sound appealing, parties need to tread carefully. The process is not intended to allow a party to plead guilty to a much lesser infraction. Instead, it is being offered to provide a fast track to guilty pleas.
Independent Accountability Resolution Process
The newly created Independent Accountability Resolution Process (“IARP”) was purportedly designed to hear complex infractions cases and to minimize potential conflicts of interest. The system is brand new, with multiple layers of committees overseeing and involved in the process, and the final investigatory unit still includes an employee from NCAA enforcement as part of that team, which calls into question whether this system is truly “independent”. As of the date of publication of this article, no cases have been heard by the IARP and there is no body of case law to serve as precedent for rendering decisions in the IARP.
There are only three ways that a request for referral to the IARP can be made: (1) the Institution; (2) the NCAA Vice President of Enforcement; and (3) the Chair of the Committee on Infractions (“COI”). Thus, individual coaches and student-athletes have no right to request referral to the IARP, though they do have an opportunity to respond to a request made by any of the three entities with the authority to make such request.
When a request is received, the standard of review used by the IRC is whether it is in the best interests of the NCAA to resolve the case under the IAR structure. The IRC’s decision is final. Once a case is referred to the IARP, it cannot go back to the regular process. And, while the NCAA does not comment on infraction matters in the peer review process, if the request for IARP is approved, the NCAA will make a limited public disclosure that the case is being handled by the IARP.
If a matter is accepted for IARP, the NCAA enforcement team that was working on the case exits the process and a new “team” called the Complex Case Unit (“CCU”) enters the matter. The CCU is comprised of one or more external investigators, one or more independent external advocates and one NCAA enforcement staff member. The CCU is responsible for reviewing the investigation that has occurred up to the point of referral to the IARP and determining if additional investigation or amendments to the charge are appropriate. This could involve subjecting witnesses to a second interview if the CCU is not satisfied with the prior investigation. The CCU then completes the investigation and continues with the case through review by the Independent Resolution Panel (“IRP”).
The panel for a case before the IARP consists of 5 members of the IRP, including one alternate. A Chief is assigned to handle procedural matters. Although no IARP hearings have occurred, according to the NCAA, the hearing process will be similar to the peer review side. Hearings will be confidential and only the hearing panel can ask questions of witnesses.
Notably, the NCAA does not intend for the IARP to be an attractive process that institutions will want to choose as an alternative to the peer review model. Instead, the NCAA intends for the IARP process to encourage parties to remain in the peer review process and to engage in what the NCAA views as cooperative behavior. The NCAA has not yet decided whether decisions from the peer review process will have any precedential value in the IARP model. Concerns have already been raised as to whether the inclusion of a member of the NCAA enforcement staff defeats the stated mission of independence of this process. That said, the IRP – the panel reviewing the case – will not have any individuals from member institutions serving on it which eliminates concerns raised from parties concerned with being peer reviewed. With the possibility of an “additional” investigation once the CCU enters the case, the lack of any precedential history, and the inclusion of an enforcement member on the CCU – will any institution voluntarily choose to be part of this process?