UnafraidShow Quick Take: Reggie Bush’s Heisman Trophy Still Belongs to Reggie Bush

Reggie Bush gave his 2005 Heisman trophy back in 2012 following several years of NCAA investigations into the allegations that sports agent Lloyd Lake and business partner Michael Michaels gave Bush gifts that included hotel stays, a rent-free home for his family, and a limousine ride and suit for the 2005 Heisman Trophy ceremony.

Lake had expectations that Bush would return the favor by being his meal ticket, and when that didn’t happen, Lake sued Bush for $300,000 and cooperated with the NCAA investigation.

Now that the NCAA has relented on the idea, though they were forced to do so, that players are able to capitalize on their Name, Image and Likeness while in school, and make money off their notoriety, Reggie Bush wants his Heisman Trophy back.

His request has been denied.

But at UnafraidShow, we know exactly who that trophy belongs to:

Reggie Bush doesn’t need to be in physical possession of the Heisman Trophy for us to acknowledge who it belongs to. His 2,218 yards from scrimmage, and 9.4 yards per touch that season electrified college football fans everywhere, and fueled an undefeated Pac-10 season that capped off 23-consecutive conference wins.

The trophy is not only his, but because of the NCAA contending that it isn’t his, much like with the Baseball Hall of Fame keeping Pete Rose on the outside looking in, the first name we’re going to think of every time we hear the word Heisman is Reginald Alfred Bush Jr.

Here are his highlights to remind you of exactly what the NCAA is trying to make you forget:

Here are some of the better takes out in the Twittersphere:

And, for fun, here’s this wild take as well:

2021 NCAA Tournament: The Bracket Manifesto

Gonzaga Basketball NCAA Tournament

After a two-year wait, the NCAA Tournament is finally upon us. As Upper East Side resident and CBS analyst, Jon Rothstein, likes to say…

The NCAA Tournament is one of my favorite events of the year. For three weeks, college basketball will dominate the sports world. In particular, the first day of the tournament is one of my best days of the year. 12 hours of basketball, food, gambling, and anarchy. Sign me up.

With the tournament comes the bracket. According to American Gaming Association, 36.7 million Americans say they will fill out a bracket. I’d venture to say that more than half of those people don’t watch college basketball, which isn’t necessarily a bad thing. It just means that a lot of people are going to fill out brackets and enter gambling pools.

Let’s just call a spade a spade. It takes a lot of luck to win your pool. However, there are some tips and trends to follow that could set you up for success. As someone who won a national tournament challenge and spoke on CBS Sports Radio about my victory, I may know a thing or two about the bracket…

This is my bracket manifesto.

I’m not going to tell you which teams to pick. However, I’m going to give you the keys on how to fill out your bracket. This manifesto is your tour guide. You still have to arrive at the destination, but I’m giving you the map to follow.

*Disclaimers are hot in the streets right now thanks to the “I am not a financial advisor, but I’m going to buy this stock” tweets. I want to state that I am not an expert. I’m just a guy who has found some success filling out brackets. This is MY strategy.

When In Doubt, Pick The Favorite

This is my number one rule. When in doubt, pick the favorite. It sounds simple, but so many of us fall into the trap of picking the perfect upset instead of focusing on who wins titles, which are the top seeds. There have been four champions since 1983 that have been seeded worse than five. The last team to do it was UCONN in 2014. If you picked UCONN in 2014 to win it all, you probably won your pool. Congrats, but that was an anomaly. Stick to a team in the top 5 as your champion.

Focus On Keeping Your Sweet Sixteen Intact

In most pools, brackets will be rewarded for advancement. If your pool rewards an upset win with more points, then pick more upsets. However, there are more points up for grabs in the later rounds. Don’t freak out if you don’t pick the correct #12 over #5 or #11 or #6 in the first round. If you had that team losing the next round, then it’s not a huge loss. Focus on having as many Sweet 16 teams as possible. If your bracket has 12 of 16 teams heading into the second weekend of the NCAA Tournament, then you’re in great shape.

First Time Final Four Participants Rarely Win It All

There’s a first for everything. Teams like Alabama and Tennessee may be trending in the right direction. Both squads are looking to reach their first Final Four in school history. However, only one team in the last 35 years has won a title during their first trip to the Final Four and that was UCONN in 1999. As someone who loves this Alabama team and will pick them to go far, it would be unwise to pick them as my champion.

The #11 over #6 Is The New #12 Over #5

One of the most popular pieces of advice shared during tournament week is the #12 over #5 upset. “You need to pick at least one 12-seed to win,” said one of your coworkers who thinks he’s an expert. Although your coworker is probably a snob, they’re right. In the past 40 years, at least one 12-seed beat a 5-seed in all but five tournaments. You should pick at least one 12-seed to win in the first round, but the 11-seeds are becoming the new must-have upset. 11-seeds are 21-19 against 6-seeds in the last 40 tournament games. So which Syracuse 11-seed wins a game in the first round?

Blue – The Color Of Champions

With apologies to red, orange, yellow, green, purple, white, and black, blue is the official color of champions. Since Syracuse won in 2003, only one other champion did not have a shade of blue on their uniform and that was Louisville in 2013. Technically, that championship never took place! This year, Gonzaga, Michigan, and Illinois are all 1-seeds not because of their resume, but because of the blue on their jerseys. Sorry, Baylor.

Cherish this NCAA Tournament. We were all robbed of March Madness last year. COVID-19 can’t ruin this one, right?

Right?

Please don’t ruin it, COVID.

What are your tips for filling out brackets? Leave your thoughts in the comments below or tweet us, @unafraidshow.

Cancellation of College Sports: Conference Executives’ Hasty Decision

Justin Fields Ohio State

Last week, the Big Ten and Pac-12 Conferences decided to postpone their next football season until the spring of 2021. This decision was made in concert with conference executives, medical advisors, and the universities themselves.

Regardless of one’s opinion on these decisions, it has become abundantly clear there needs to be an overhaul of how conferences and the NCAA as an entity make decisions when it comes to the welfare of their players.

Should there be more centralized leadership in the NCAA? Sure. However, players’ demands will probably not be granted by a corporation who upholds the archaic ideal of amateurism.

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Schools Will Be at Loss with Cancellation of College Sports

Patrick Rishe, the Sports Business Director at Washington University in St. Louis spoke on CNBC’s Power Lunch show on August 11. He stated that the cancellation of football would result in a four billion-dollar loss, which would amount to about 62 million dollars for each Power 5 school. The Big Ten and Pac-12 have already made the decision to take this loss.

Colorado athletic director Rick George said despite the losses the school will endure because of the cancellation of fall sports and was adamant that CU is “not cutting sports.” He said that the budget for a potential 2020 season was already being allocated to account for little fans and a 10-game, conference-only, schedule. He said it will become necessary for furloughs and layoffs of employees, however.

On the bright side, George said that all CU sports could and would be able to take place in the Spring of 2021 if conditions allow. He also said that athletes should still be around their teams despite not playing in the fall, citing the need for coaches to connect and work with student-athletes.

League Executives Had Tough Decision, But Did Not Consider All Outside Factors With Cancellation of College Sports

As far as league executives go, making decisions to cancel seasons are hard. However, it seemed like players and coaches were not heard from by the executives making these decisions. Medical experts should be the number one source that executives listen to, but the medical experts were also the people telling players they had to follow protocol. The fact of the matter is that many teams followed the model they created to minimize spread of the virus.

Coaches from the Big Ten Conference expressed their dismay with the process. Michigan head coach Jim Harbaugh wrote a letter to the conference stating that the season could be played not because they wanted to, but because of the facts in how teams have minimized the spread of the virus. Of course, there are going to be cases that pop up throughout the season. That arguably makes a fall college sports season too risky in the eyes of some. However, when players and coaches are given strict protocols and they try to adhere for guidelines, there is going to be pushback from players when conference executives make final decisions without inquiring with the people taking part in the season.

Ohio State quarterback Justin Fields has started a petition to advocate for the reinstatement of the conference-only Big Ten season this fall. Fields is looked at as one of the top prospects for the 2021 draft and may not be able to suit up for the Buckeyes if a Spring 2021 football season takes place. The players want to play and have been using social media as an avenue to express this desire.

This Whole Episode Shows NCAA May Not Be Able to Uphold Ideal of Amateurism

The NCAA prides itself on helping student-athletes achieve their goals on the field and in the classroom. However, the NCAA is a multi-billion-dollar industry. The players are the ones who contribute the most to the NCAA being able to make all this money. Some could argue that the point of going to college is to get an education or develop skills to help with a profession, but athletes are still being exploited.

The decisions made by the Pac-12 and Big Ten were made in part because the players wanted medical benefits and what could be considered salary this season, in the case of the Pac-12. As an institution, the NCAA should be scared about the power that players have had. They want these leagues to take care of players better and show a commitment to causes that the players champion, such as the #WeAreUnited initiative. NCAA executives cannot stand idly by and must acknowledge that the ideal of amateurism has become archaic in a sense.

Players will get more avenues by which they can make money off their name, image, and likeness. No one league has picked up enough steam yet, but the XFL was even experimenting with letting players play before they were drafted into the NFL. In the future, it is inevitable that more opportunities like this will arise, and football players between the ages of 18-22 will be able to provide for themselves through playing the game of football. It will be up to the NCAA if they want to stand by and defend an archaic ideal, or if they will adjust to the times and be able to keep a monopoly on watching 18-22-year-old players play football.

Sports Law Issues Don’t Stop During Coronavirus Shutdown

Coronavirus sports lawsuit LeBron James Jimmy Butler Lamar Jackson

The effects of the Coronavirus is being felt in every industry. The sports industry is no different, but that has not stopped lawsuits involving LeBon James, Jimmy Butler, and Lamar Jackson. Roughly two weeks ago the NBA suspended their season after Rudy Gobert of the Utah Jazz tested positive for the Coronavirus. Soon after, his teammate Donavan Mitchell tested positive. Both players have recently been cleared of the Coronavirus. However, the continued reality of the threat of the Coronavirus led the MBL, NHL, and MLS to suspend their seasons as well. The NCAA was forced to cancel all spring sports and the March Madness tournament. Most recently, Japan and the International Olympic Committee agreed to postpone the 2020 Summer Games to 2021.

Accordingly, sports fans are relying on the rebroadcasts of classic games for entertainment. Even though the entertainment portion of the sports has come to an unexpected halt, the business of sports keeps turning. This is especially true in the realm of sports law. In the last week, three lawsuits involving some of sports favorite athletes came to light. Two cases involve two of the NBA’s most notable players, LeBron James and Jimmy Butler. The third case involves the 2019 NFL Most Valuable Player of the Year, Lamar Jackson.

Hold on King James…That Photo Does not Belong to You

During LeBron James’ 17-year career, he has been the focal point of some pretty iconic NBA photos. There are photos of James blocking Andre Iguodala’s shot in game 7 of the 2016 NBA Finals. There is the iconic photo of Dwayne Wade and King James on the Miami Heat when James lays down a monster slam dunk. Before the NBA season was abruptly halted by the Coronavirus, King James was caught in yet another timeless photo. On December 19, 2019 photographer, Steven Mitchell was working the Lakers versus Heat game. Mitchell caught an awesome moment of King James dunking over Meyers Leonard.

Soon after the game, the photo was cropped and posted to James’s Facebook account. The post, which is still up has received over one thousand likes, has been shared 92 times, and has 61 comments. The picture was also posted on James’ Instagram Account. There it received over 2 million likes. To many, this may not seem like a big deal. What could be wrong with James posting a picture of himself? The answer is that it could be a copyright law violation. Accordingly, the photographer, Steven Mitchell, sued LeBron James alleging that posting the photo onto James’ social media platforms infringed on his copyright law protections.

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Does James’ Post Violate Mitchell’s Rights in the Photo Under Copyright Law?

Copyright is an intellectual property right grounded in the United States Constitution. Authors are granted copyright protection for their original works of authorship that are fixed in a tangible medium of expression. Copyright protection applies to photos. As such, Mitchell sued LeBron James, Uninterrupted Digital Ventures, and LRMR Ventures for copyright infringement. Mithcell alleges that James and the other defendants infringed on his copyright in the photo when it was cropped and posted on James’s Facebook and Instagram pages without Mitchell’s consent. The complaint asserts that Uninterrupted Digital Ventures and LRMR Ventures operate James’ Facebook page. Mitchell requests a jury trial to determine whether the federal Copyright Act was violated. He also seeks damages up to $150,000 per infringement.

Independent Sports and Entertainment Says Jimmy Butler Needs to Pay Up

Independent Sports and Entertainment (ISE) is telling Miami Heat star, Jimmy Butler, to “show them the money.” ISE has sued Jimmy Butler for breaching a Public Relations Agreement (PR Agreement) he entered into with them in July of 2013. ISE is an integrated sport, media, entertainment, and management company that represents talent throughout the entertainment industry. ISE assists professional athletes’ with their off the field and off the court activities. In the complaint, ISE alleges that Jimmy Butler breached their PR Agreement by failing to give them their share of profits from two deals Butler made with Nike.

Per the PR Agreement, Butler is required to pay ISE a 15% gross compensation fee in exchange for ISE’s services assisting with his personal marketing and public relations. ISE alleges that while Butler was under the PR Agreement, he entered into a contract with Nike where he earned $616,666,67. ISE has not received its 15 percent commission in the amount of $92,250. Butler later entered into an addendum on the contract. On the addendum, Butler received at least 5 million dollars. ISE has not received its 15% commission in the amount of $750,000 on the addendum.

In the complaint, ISE stipulates that the non-breaching party must provide notice of the breach to the breaching party and allow the breaching party 30 days to cure the breach. ISE alleges that they provided written notice to Butler and made attempts to collect the amounts due. Furthermore, ISE alleges that they were put in contact with Butler’s financial advisor Ken Kavanaugh who acknowledged that Butler owed the 15% fee and that payment would follow. The payment never came leading ISE to file this suit. Per the complaint, ISE is seeking damages for the amounts owed on the Nike contract and addendum.

Lamar Jackson Tells Amazon to Stop Selling his Unauthorized Merchandise 

Baltimore Ravens’ quarterback, Lamar Jackson, filed suit against Amazon.com and Amazon.com Services, Inc. (hereafter collectively referred to as Amazon) in a federal district court for infringing on his right to publicity. In the complaint, Jackson alleges that Amazon has directly advertised and sold items bearing Jackson’s name, nicknames, and images without being authorized to do so by him or the NFL. The alleged infringing items include items such as a “LAMARVELOUS Vintage Baltimore Football QB Jackson MVP T-Shirt.” In the complaint, Jackson acknowledges that Amazon had received negative publicity for facilitating the sale of items that infringe on others’ intellectual property rights by third parties in the Amazon Marketplace. However, Jackson contends that the sale of his items is different in that the sale of his items are not in the Amazon marketplace.

Jackson contends that the infringing items at issue are directly falsely promoted and advertised by Amazon as they are designated as “ships from and sold by Amazon.com.” Jackson claims to have requested that Amazon remove and stop selling the items in question. However, Amazon has failed to so. As such, Jackson seeks a permanent injunction requiring Amazon to stop the sale of the items in question. Jackson alleges that the unauthorized sale of items bearing his name, image, and likeness on Amazon has negatively affected his own clothing line business. Accordingly, Jackson also seeks damages and disgorgement of Amazon’s profits.

Could Ohio State’s Buckeye Acknowledgement and Pledge be Construed as a Liability Waiver?

Justin Fields Ohio State

Coronavirus brought college basketball to a screeching halt earlier this year. There was no March Madness Tournament, no Final Four. Spring sports did not even get to suit up. Since then, college sports lovers have wondered what college sports will look like in the 2020-2021 season. The college football season is growing closer. States are moving through the phases of re-opening. Fans are beginning to see what issues are at stake for college sports this upcoming season. This issue at stake is how to ensure the safe return of college athletes and students generally during the Coronavirus pandemic. Schools are trying to sort this out while being sure to minimize the school’s liability. Earlier this week, fans learned just how Ohio State University (OSU) intends to accomplish that goal.

What is OSU’s Buckeye Acknowledgement and Pledge?

Last week, Ohio State University began allowing football players to return to campus for voluntary workouts. However, prior to returning the players signed the Buckeye Acknowledgement and Pledge. What is the Buckeye Acknowledgement and Pledge (the Pledge)? OSU created the Pledge for college athletes to sign prior to returning to campus and engaging in sports. The Pledge requires OSU’s athletes to do their part in “help[ing] stop the spread of COVID-19.” It also required the players to acknowledge the possibility of contracting COVID-19 and other infections.

By signing the form, Buckeye athletes agree to a number of COVID-19 safety measures. Specifically, the players agree to get tested for COVID-19. Additionally, the players agree to self-quarantine if they test positive or exhibit COVID-19 symptoms. They further agree to wear masks in public, practice physical distancing, and frequently wash their hands.

The Pledge is not optional. All OSU athletes must sign it in order to participate in OSU’s athletics. For players who are 17 years old, their parents must sign it. However, players will not lose their scholarship if they fail to sign and comply with the pledge. The athletes do not have legal representation.

The Pledge Reads Like a Waiver but OSU Claims it is not intended to be a Legal Document

The pledge certainly reads like a waiver even though OSU does not expressly call it one. In fact, OSU’s athletic director Gene Smith stated that the pledge is intended more for educational purposes than for liability purposes. Specifically, Smith stated We don’t look at [the pledge] as a legal document. It is a Buckeye Pledge.” Smith elaborated that the pledge is there to give an administrator who may see an athlete not wearing a mask the ability to remind that athlete of their commitment to helping stop the spread of COVID-19.

Even though the Pledge may not be viewed by OSU as a legal document, it could possibly be used to shield OSU from liability. Throughout the entire document, the players acknowledge the risk of participation and agree to participate anyway. If an athlete becomes infected with COVID-19, the athlete could claim that OSU was negligent. The athlete could claim that OSU failed to keep the campus and athletic facilities safe, and healthy, and did not do all it could to stop the spread of COVID-19.

What Role Would the Pledge Play if an Athlete Contracted COVID-19 and Claimed OSU was Negligent?

If an athlete becomes infected with COVID-19, the athlete could claim that OSU was negligent. Specifically, the athlete could argue OSU was negligent in keeping the campus and athletic facilities safe and in stopping the spread of COVID-19. To prove negligence, the plaintiff must demonstrate that the defendant owed a duty. The plaintiff must prove the duty was breached and that the breach was the cause of the plaintiff’s injury. To prove that OSU was negligent, the athlete would have to demonstrate that OSU owed him a duty to maintain a safe and healthy campus environment. The athlete would also have to prove that OSU breached that duty and that the breach was the cause of his injury – contracting COVID-19.

Does OSU Owe a Duty?

OSU arguably has a duty to keep its student body safe by maintaining a safe and healthy campus environment. However, the Pledge could be used to refute a negligence claim. The language of the pledge could be interpreted as relinquishing OSU of the duty to ensure that its students are safe and healthy by placing that burden on the student body. For example, the pledge states:

As a member of Buckeye Nation, I know that I must take steps to stay well in order to protect others and promote a safe return to campus for all Buckeyes. Because of this, I pledge to take responsibility for my own health and help stop the spread of COVID-19.”

This statement arguably attempts to take the burden of safety away from OSU and puts it on those who sign the Pledge. Upon signing, the students agreed to take responsibility for their own health. They agree to promote a safe return to campus for all Buckeyes. Accordingly, the students arguably take the responsibility of ensuring that OSU’s student-body stays healthy away from OSU. Thus, the Pledge could be used to argue (albeit a weak argument) that OSU did not owe a duty to the student body to maintain a safe and healthy environment. OSU could argue that those who signed the Pledge agreed to take responsibility for their own health. Therefore, this language arguably attempts to take the duty of maintaining safety away from OSU. Thereby shielding OSU from liability.

The Pledge Could be Used to Argue that the Athletes Assumed the Risk of Contracting COVID-19

If OSU is found to owe a duty to maintain a safe and healthy environment, the Pledge still could shield OSU from liability. The pledge could help OSU prove that the athlete assumed the risk of contracting COVID-19. Assumption of risk is a defense to negligence claims. A plaintiff may not recover damages in a negligence claim if they agreed to a known risk. Upon signing the pledge, it is arguable that those who signed the Pledge assumed the risk of contracting COVID-19 while at OSU. For example, the document reads:

I know that by engaging in campus activities, including attending classes, pursuing my education, living on campus, eating in the dining halls, attending activities, participating in sports and recreation, I may be exposed to COVID-19 and other infections.

The document also reads:

I understand COVID-19 is a highly contagious virus and it is possible to develop and contract the COVID-19 disease, even if I follow all of the safety precautions above and those recommended by the CDC, local health department, and others.”

The language in both statements provides a strong assumption of risk argument. Using this language, OSU can claim that those who signed the pledge knew of all the risks. They can claim that those who signed assumed the know risks and agreed to participate anyway. OSU may not be calling it a waiver. OSU may be claiming that the Pledge it intended more for education than legal purposes. However, Ohio State University could refer to the Pledge in asserting their defense if they are sued by a student who contracted COVID-19.

How are Other Schools Handling the Return Amid COVID-19?

Ohio State University is not the only school to require athletes to sign a document upon return. Indiana, Tennesse, Iowa, and SMU have all required their athletes to sign a similar document. It is a good chance other schools will follow suit. However, Michigan State announced that the institution will not require its athletes to sign a waiver. It will be interesting to see the position the NCAA takes on this issue.

Pac-12 Decides To Slash Non-Conference Games In 2020

Pac-12 Coaches Chip Kelly David Shaw Clay Helton

This past week, the Pac-12 decided against non-conference games for the 2020 College Football season, following the Big Ten’s lead. It seemed like there would have to be some sort of decision about the season being conference-only soon, and that decision got made in a timely manner.

Does Keeping Pac-12 Games In-Conference Help Slow the Spread of COVID-19?

It was interesting to see conferences make this decision when some of the out-of-conference opponents were closer in location for some teams during the 2020 season. For example, Colorado’s game against Colorado State will not be taking place because of the Pac-12’s decision. While a 64-mile distance between stadiums means that the teams cannot play, CU will still have to play against Washington in Seattle. However, it is understandable why the conference would not want to risk its players playing against others outside of their jurisdiction.

With student athletes and college students in general being on campus this fall, the likelihood of players within the conference getting the virus is very high. It will be interesting to hear if schools set specific rules for student athletes. Can a school take away from a student athlete’s college experience? There are so many unknowns with the process still. The best thing that players and fans can do is be patient with the process. This upcoming college football season is going to be imperfect, but players and fans both want to see it happen.

Pac-12 Schools Have Started Campaigns Because #TheyWantASeason In 2020

College football teams have started to encourage fans on social media to wear masks to help slow the spread of COVID-19. There have been many hashtags used, which include #wearamask, #facemasksforfallsports, and #IWantASeason. These hashtags could help some fans be convinced that wearing a mask is the way to go. It seems that the players want to play, and the coaches want to coach.

The fans also want to be in the stands. Unfortunately, this seems like fantasy at this point. The stadiums will most likely be empty or filled at a limited capacity. Other countries, such as England and Germany, have proceeded with soccer matches is empty stadiums despite lower numbers of COVID-19 cases in their countries. It will be interesting to see what individual leagues decide in the United States. There are places that are not considered hotspots, while there are some areas of the country where it may seem like a stretch to condone any sort of congregation of people at a sporting event.

Lack of National Exposure Against Other Conferences In 2020 Will Hurt Pac-12

If the season goes on in a somewhat normal fashion, the preconceived notions of each conference will most assuredly be present in the College Football Playoff meeting rooms. The Pac-12 Conference does not cut it against the other Power 5 conferences as far as football is concerned. Their conference’s network is only available to stream through the fuboTV and Sling platforms. They will probably have to play a good chunk of their games “after dark”, when a lot of people on the East Coast have gone to bed already.

The Pac-12, at the minimum, will need one of their top teams to go undefeated in 2020 to even be considered for the College Football Playoff. With how the past few seasons have played out in conference play, this will probably not happen. Oregon, who many consider to be the frontrunners in the conference, has the benefit of playing USC and Arizona State at home in the current schedule.

There is not a true second threat beyond Oregon in the Pac-12 as of right now. Utah got smoked by them in the Pac-12 championship. Although Arizona State beat Oregon, they have not shown the consistency to be taken seriously as a CFP contender. Jayden Daniels is one of the bright young stars in the conference, however. A game-changing quarterback helps a team’s chances for success out so much, especially in the college game. USC also has a talented quarterback in Kedon Slovis, but their own fans do not have faith in their head coach.

Pac-12 Fans Should Be Excited About the Prospect of a 2020 College Football Season

Having a college football season would be a welcome distraction for fans from hearing about the virus. Also, it may also be a necessary escape during election season. Fans can play their part in ensuring that there will be college football this season by being vigilant and evaluating risks when they decide to venture outside. If the college football community can rally around their want for a college football season by wearing a mask, it will undoubtedly benefit society.

Alston v. NCAA: Athlete Scholarships Fight may go to Supreme Court

Alston v NCAA

Those who wonder why there is such a strong push for college athletes’ rights must look no further than the latest development in the Alston v. NCAA (Alston) case. In Alston, former and current college athletes challenged the NCAA’s amateurism rules on antitrust law grounds. Specifically, the plaintiffs challenged the NCAA’s rules capping grants-in-aid to cost of attendance. The plaintiffs argued that there were less restrictive ways that the NCAA could preserve amateurism. The District Court agreed. The District Court judge ruled that the NCAA could no longer restrict education-related benefits to college athletes. Then the court issued an injunction prohibiting the NCAA from doing so. Education-related benefits include items such as computers or musical instruments. However, the NCAA retained the ability to restrict non-education related benefits. Non-education related benefits include cash payments that may amount to pay-for-play.

Although the NCAA retained the right to prohibit pay-for-play in college sports, the NCAA appealed to the Ninth Circuit Court of Appeals. There, the three-judge panel affirmed the District Court’s decision. The appeals court was scheduled to issue the mandate precluding the NCAA from restricting education-related benefits to college athletes on July 8, 2020. However, on July 6, 2020, the NCAA sought to have the appeals court stay the injunction. The NCAA wants to stay the injunction so they can petition the case to the United States Supreme Court. That is right! The NCAA does not want to allow college athletes to receive extra educational benefits for their athletic prowess. For those who may not understand why there is such a big push for college athletes’ rights, the NCAA actions in the case are precisely why.

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This Case Proves yet Again that the NCAA Cares More About Protecting College Athletics Revenue than Protecting College Athletes

The NCAA does not want to allow its “student-athletes” to receive unlimited educational benefits. They would rather spend time and resources petitioning this case to the Supreme Court. It is amazing how the NCAA can put so much energy into this but leave the schools to fend for themselves in regards to COVID-19 and college athletics. Since the NCAA allowed voluntary workouts to resume on June 1, 2020, athletes at several schools have tested positive for the virus.

With no leadership from the NCAA, Schools are essentially creating a patchwork of guidelines and rules to address COVID-19 and resuming college athletes. However, the NCAA advocates tooth and nail that a patchwork of various state laws addressing college athletes’ names, images, and likenesses will not work and will lead to confusion. COVID-19 has already claimed the lives of over 130,000 Americans. Somehow the NCAA thinks schools should be left to their own devices and handle COVID-19 on their own.

The NCAA’s lack of a unified response has led schools to create documents that amount to a liability waiver for COVID-19. Athletes are required to sign them if they want to resume their sport. Some schools like Ohio State University claim that the document is not intended as a legal document. However, there is plenty of language in the documents that could have legal significance later on. COVID-19 could have a direct effect on college athletes’ health and wellness. The NCAA is again seeing its way out of issues related to athlete health and well-being. However, the NCAA is remaining steadfast in its quest to ensure that college athletes do not receive anything more than the NCAA wishes to give them. That is precisely what the NCAA is doing in its quest to petition Alston to the Supreme Court.

What Exactly is the NCAA Hoping to Achieve by Staying the Injunction to Petition Alston to the United States Supreme Court?

It appears that the NCAA wishes to have the Supreme Court rule that the NCAA’s amateurism rules should not be subject to scrutiny under antitrust law. This should come as no surprise. The NCAA has made it clear that they do not want to be subject to antitrust law anymore.

The NCAA’s Attempt to Persuade Congress to grant it an Antitrust Exemption

In April, the NCAA asked Congress for an antitrust exemption. They made this request when they released their name, image, and likeness report. In the report, the NCAA addressed the numerous antitrust lawsuits that the NCAA has faced over the years. The NCAA essentially plead to Congress that the lawsuits impede the organization’s ability to address the pressing issues facing college athletics. Accordingly, the NCAA wants Congress to grant it an antitrust exemption. If that does not work out, the NCAA appears to be seeking a similar result from the United States Supreme Court.

The NCAA is Planning to Persuade the Supreme Court that any Challenge to Amateurism Rules Based on Antitrust Law Must Fail

Generally, there are three circumstances in which the Supreme Court will review a case. One is where a lower court decision conflicts with a Supreme Court decision. Another is where there are two more conflicting decisions amongst the Circuit Courts of Appeals or a state court of last resort. The third is where the issue involves important questions of federal law. The NCAA asserts that the Ninth Circuit’s ruling conflicts with the rulings of the Supreme Court. The NCAA also asserts that the Ninth Circuit’s ruling conflicts with three other Circuit Courts of Appeals. Specifically, the NCAA argues that the Ninth Circuit’s ruling conflicts with the Supreme Court decision in NCAA v. Board of Regents of the University of Oklahoma.

Brief Summary of NCAA v. Board of Regents of the University of Oklahoma

In that case, the University of Oklahoma Board of Regents sued the NCAA over television broadcasting rights. The University of Oklahoma Board of Regents argued that the NCAA’s rules regarding the broadcast of college football games violated federal antitrust law. The Supreme Court found that the NCAA’s television broadcasting rules did in fact violate federal antitrust law. While the NCAA lost, the Court acknowledged that the “NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports“. The Court further stated that the NCAA “needs ample latitude to play that role“. It is exactly this language that the NCAA plans to amplify when they petition Alston to the Supreme Court.

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The Bulk of the NCAA’s Motion Centers on The Aforementioned Points

In their motion, the NCAA asserts that the Ninth Circuit’s ruling conflicts with the Supreme Court’s aforementioned assertions in the Board of Regents case. The NCAA also asserts that the Ninth Circuit’s ruling conflicts with the Third, Fifth, and Seventh Circuits rulings on similar issues. Those circuits have all held that since the NCAA “needs ample latitude” to preserve college sports that any challenge scrutinizing the NCAA’s amateurism rules conflicts with the Board of Regents’ decision. The NCAA argues that the Ninth Circuits ruling in Alston creates a split between the circuits that it wishes the Supreme Court to resolve.

The NCAA also asserts that there are important questions of federal law to be resolved. They further assert that the injunction will cause irreparable harm to college athletics in terms of budget and competitive balance.

Hopefully, The NCAA is Not Granted a Shield Against Antitrust Law

Hopefully, the NCAA is not granted any antitrust law protection. After all, it is one of the only avenues current and former college athletes have to advocate on their behalf. It was not until the O’Bannon case that the NCAA agreed to allow college athletes to receive scholarships up to the cost of attendance. The O’Bannon case was bought on federal antitrust law grounds. The case gave current and former college athletes one of their biggest wins yet. College athletes must retain the ability to advocate for their rights. It is for these reasons that there is such a big push for college athletes’ rights. The NCAA clearly cares more about protecting capitalism, not doing what is best for college athletes.

NCAA Suffers Blow In Alston v NCAA Scholarship Cost of Attendance Case

Alston v NCAA

Late last month, the NCAA suffered another blow to its amateurism model. The United States Court of Appeals for the Ninth Circuit affirmed the district court’s ruling in Alston v NCAA that the NCAA’s restriction on education-related benefits for college athletes violated federal antitrust law. During the trial in 2018, college athletes forced the NCAA to defend its farce of amateurism.

What is Amateurism?

The NCAA’s amateurism rules preclude college athletes from receiving any pay for their athletic skills. The amateurism rules are the outgrowth of the idea that athletes should only play for the love of the game. It is this concept that the NCAA implores to carry out its mission. The NCAA’s mission is to “maintain intercollegiate athletics as an integral part of the student body and, by doing so, retain a clear line of demarcation between intercollegiate athletics and professional sports”. The NCAA uses this concept to further its mission. It does this by ensuring that college athletes do not receive any payment that is not approved by the NCAA.

Somehow the NCAA believes that making sure college athletes do not receive any pre-approved payment is sufficient to keep college sports separate from professional sports. The NCAA conveniently ignores other facets of college sports that are very akin to professional sports. Those facets include coaches’ million-dollar salaries, the billion-dollar television broadcasting deals, and the multi-million-dollar sports facilities on various college campuses. To the NCAA, the only thing that would professionalize college sports is paying the actual people who make all of the revenue possible. Fortunately, college athletes have begun to have enough of the system that intentionally leaves them out of the revenue sharing. College athletes challenged the system during the Alston v NCAA trial where they chiseled away at the sham of amateurism.

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Alston v NCAA District Court Trial

During the trial, college athletes challenged the NCAA’s amateurism rules by arguing that the NCAA has violated federal antitrust law. An antitrust law violation occurs when an organization conspires to place a restraint on trade in a free market. The plaintiffs, in this case, argued that the NCAA did just that through their amateurism rules. Specifically, they argued that the NCAA’s rules limiting college athletes to cost-of-attendance scholarships violates federal antitrust law. Additionally, the college athletes argued that there were other less restrictive ways that the NCAA could meet its goal.

The NCAA conceded that the rules in question did in fact violate federal antitrust law. However, the NCAA contended that their rules served two procompetitive purposes. Specifically, the NCAA argued that their rules were necessary to retain consumer interest in college sports. The NCAA contended college athletes being unpaid is what keeps college sports separate from professional sports. They argued that it is this separation that drives consumer interest. Additionally, the NCAA argued that its amateurism rules were necessary to keep college athletes integrated into the greater college campus community.

Ultimately, the District Court ruled that the NCAA was violating federal antitrust law with its blanket prohibition on payments beyond a cost-of-attendance scholarship. The court ruled that the NCAA could serve their procompetitive purposes using a less restrictive means. Accordingly, the court ruled that the NCAA could no longer restrict benefits given to college athletes that are tethered to education. Such benefits include things like computers and musical instruments. These types of benefits help further college athletes’ pursuit of their education.

The NCAA Can Still Restrict Non-Education Related Benefits

However, the NCAA may still restrict payments above a cost-of- scholarship that is not tethered to education. Therefore, the NCAA is still able to serve its procompetitive purpose of keeping college sports separate from professionals by ensuring college athletes do not receive any non-education related benefit.

The Appeals Court affirmed the District Courts Decision

While the NCAA did not completely lose the District Court case, they still appealed. On appeal, the court considered whether the District Court erred in their ruling. However, the appeals court affirmed the lower court’s decision. The court reasoned that the NCAA could keep college sports separate from professional sports while allowing college athletes to receive unrestricted education-related benefits. The court further reasoned that it would not adversely affect consumer interest in college sports. When the NCAA allowed college athletes to receive cost-of-attendance scholarships, that did not adversely affect consumer interest in college sports, as the NCAA originally said it would. As such, the court affirmed that allowing the NCAA to limit non-education related benefits while requiring the allowance of educational benefits was a reasonable balance that would allow the NCAA to further its mission.

Undrafted College Football Players Should Be Allowed to Return to CFB

College football players undrafted Hunter Bryant Washington Hawaii

The 2020 NFL Draft was definitely one to remember. It was completely virtual due to the Coronavirus. Potential draft picks watched at home. They awaited a phone call informing them that they were selected by an NFL team. Elite players, like Joe Burrow and Chase Young, accomplished their goal of being a first-round NFL Draft pick. However, many NFL Draft hopefuls did not realize their dream of being selected in the NFL Draft. Unfortunately, for many of those players, their football career as players may be over. It is true that many of them will attempt to earn a spot on a team as an undrafted free agent. Entering the NFL as an undrafted free agent is not easy and will not happen for all of them. This realization is especially unfortunate for draftees who left college early to enter the NFL Draft.

Every year, some college football players decide to forego their remaining college eligibility to enter the NFL Draft. NFL rules require draft entrants to be out of high school for three years and to have used all of their college eligibility before the start of the next college football season. However, college players with remaining eligibility request league approval to enter the NFL Draft early. 99 players were granted special eligibility for the 2020 draft. This means that 99 players who had remaining college eligibility gave up their remaining eligibility for a shot at the NFL. Despite the fact that only 1.5 percent of college football players go pro, 99 players still thought it was best to enter the draft. Why do college football players make the decision to forego their remaining eligibility given the odds of making it to the NFL?

Reasons College Football Players Leave College Early to Enter the NFL Draft

There are many reasons college football players forego their remaining college eligibility to enter the NFL Draft. There are two reasons that stick out the most. One reason is due to the unrealistic sense that many college football players have about their prospects of being drafted. Many college football players prematurely forego their remaining college eligibility to enter the NFL Draft, even though they are not ready. Another reason college football players forego the remaining college eligibility because some from disadvantaged backgrounds and need to make money. College sports is a billion-dollar business but the players’ only compensation is a cost-of-attendance scholarship. While a scholarship is valuable that does not mean that players should be limited to only that.

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College Football Players who Come From Disadvangeted Backgrounds Would Greatly Benefit from Getting into the NFL as Quickly as Possible

Roughly 86 percent of African-American college athletes come from families that live below the poverty line. Since the Coronavirus pandemic, the inequities that many college athletes face have become even more visible. For example, Sam Williams, a University of Mississippi linebacker, tweeted about the hardships he is facing since being unexpectedly home from school. Specifically, Williams tweeted:

We worked so hard to get out of the hood but forced to go back to the hood…Still gotta pay rent so all of our money gone and I can’t swipe my ID nowhere in Alabama. Then if we get help it’s a ‘violation’. I just don’t understand.”

Williams highlighted a problem that may college athletes are facing. A study conducted by the Hope Center for College, Community, and Justice prior to the pandemic highlights many of the issues that college athletes face. 452 Division I athletes were surveyed. 24 percent of them suffered from food insecurity in the 30 days prior. Food insecurity is defined by the United States Department of Agriculture as the lack of consistent access to enough food for an active, healthy life. The survey sheds light on the issue of food scarcity amongst college athletes across all the divisions. Williams’ tweet and the survey’s findings further demonstrate the needs of many college athletes, particularly those who come from disadvantaged backgrounds.

Everybody Gets Rich Except the Players

Furthermore, Williams’s tweet and the survey certainly make it clear why a college football player would leave college football eligibility on the table for a shot at the NFL. Due to the NCAA’s asinine amateurism rules, college football players are precluded from sharing in the billions they generate outside of a cost-of-attendance scholarship. While coaches, athletic directors, and other sports administration personnel make millions, the players are capped to a scholarship.

As Williams tweeted, college athletes cannot receive any assistance that is not first approved by the NCAA. If an athlete does, he will be subject to an NCAA violation, just ask Chase Young. Why would an athlete remain apart of a system that stops them from earning their true worth and risk injury, while everyone else makes millions?

The Good News is that the NCAA Can Fix Both of These Problems and Retain College Football Players

The NCAA can fix these problems and retain college football players if they would simply amend their rules. One way the NCAA can fix this problem is by allowing college athletes to profit from their name, image, and likeness (NIL). After mounting pressure, the NCAA is finally on the track to allow that to happen. If the NCAA does this, it could take the pressure off of players to go pro to make money. Last month, the NCAA announced that they are moving toward allowing college athletes to profit from their NIL. However, only time will tell how much the NCAA will amend their current rules to actually help the athletes.

Currently, college football players cannot return to college football after they enter and go through the NFL Draft even if they have remaining eligibility. Why is this the case? How does this benefit the football players? How does it benefit college football? The truth is that these rules do not benefit the players nor college football. This is another way the NCAA can fix their problems. The NCAA should change its rules to allow players who are not drafted to return to college football. It is time for things in college football to change. Change is more than possible, just look at recent changes in college basketball.

Recent Changes in College Basketball

Sweeping changes have come to college basketball during the last four years. In 2017, a scandal was exposed in college basketball. Soon after, the NCAA amended college basketball rules. The NCAA began to allow NBA Draft entrants with remaining eligibility to return to college. Prior to entering the NBA draft, the player must seek an evaluation from the National Basketball Association’s Undergraduate Advisory Committee. If the player intends to return to college, he must remove his name from the draft list and declare his intent to return to college within 10 days of the conclusion of the NBA Draft combine. These types of rule changes are exactly what the NCAA should adopt in college football.

The NCAA Should Allow College Football NFL Draft Entrants to Return If Undrafted

Two former NFL Players who entered the league as undrafted free agents agree that college football players could benefit if the NCAA made changes to their rules. Patrick Cobbs entered the NFL as an undrafted free agent. He believes that college football players could benefit from being able to return to college after entering the NFL Draft. Cobbs, a running back, led the nation in rushing in 2003. As a junior, Cobbs was projected to be a second or third-round draft pick. He stated that if he had the option to try his chances at the NFL Draft and return to college if undrafted he would have taken advantage of it.

Greg Camarillo also entered the NFL as an undrafted free agent. He also believes that college football players could benefit from being allowed to return to college football after the NFL Draft. Both Cobbs and Camarillo believe that an advisory committee should be created for potential draft entrants. Camarillo stated that the committee should create a program to give the players a realistic sense of their chances in the draft. Potential draft entrants should be required to consult the committee before entering the draft.

Both Cobbs and Camarillo do not think that agents should be a part of the committee due to potential bias. They suggest that the committee be made up of former NFL scouts, former coaches, and former NFL and college players. Camarillo suggests that the advisory committee’s evaluations take place immediately after the college football post-season.

The NCAA Should Be Proactive in Making These Changes in College Football

If the NCAA adopted these changes it could greatly change the landscape of college football for the betterment of the players. A player should not be forced to forego his remaining college eligibility just because he entered the draft. The idea of college football players being able to return to college if undrafted is gaining traction amongst prominent college coaches. Recently, the University of Michigan coach, Jim Harbaugh, released a proposal in support of this issue. He suggested that undrafted players be allowed to return to college. The NCAA needs to take note and make changes before they are forced to like they were with basketball.

Why Top HS Basketball Recruits Will Skip College for NBA G-League

Jalen green nba g league ncaa name image likeness

The NCAA is at a crossroads in regards to the future of big-time college sports. This is true whether the NCAA chooses to acknowledge it or not. It is especially true when it comes to college basketball. Over the last few years, several highly ranked high school basketball prospects have opted out of college and pursued other unconventional paths to the NBA. It is happening again with top-ranked high school basketball prospects Jalen Green, Isaiah Todd, and Daishen Nix. Green, Todd, and Nix have opted-out of college basketball to participate in the NBA G League’s Professional Pathway Program. Once again, the NCAA has to watch as two highly sought after recruits choose different paths to the NBA. If the NCAA wants to continue to survive and thrive, the organization must make some major changes.

What is the NBA G Leagues Pathways Program and Why is it a Viable Option?

In 2018, the NBA G-League became an option for elite basketball players. Then the league announced that it would provide “select contracts” valued at $125,000. The players had to be at least 18 years old and ineligible for the NBA Draft. The G-League has since then revamped the program to make it more attractive to prospective players. Specifically, the G-League now offers higher valued contracts and a full scholarship to Arizona State University.

Accordingly, Green’s contract is said to be for $500,000 or more. Green could possibly net $1 million by the time endorsements are factored in. Todd and Nix will also earn a six-figure salary.

Green, Todd, and Nix will play on a new team with no affiliation to any existing G-League or NBA team. The team will only play 20 games as opposed to the G-League’s usual 50 games. The G-League’s program is so attractive to players like Todd, Green, and Nix because it gives them an opportunity to earn their worth. Players in the G-League program will also get on and off the court training and coaching from top NBA officials. The NCAA currently does not provide that type of opportunity. It is true that many players receive scholarships. The scholarship and the ensuing education are very valuable. However, it is not representative of a player’s full value.

Big-Time College Sports is a Billion Dollar Business

The NCAA makes a billion dollars from the March Madness tournament alone. Coaches and other administrative staff have high six-figure and million-dollar salaries. Meanwhile, the players may only receive a scholarship up to the cost of attendance. While scholarships are valuable, it does not mean that the players should not be able to receive other forms of compensation. The college sports system needs to create a more equitable system or players will keep choosing other options. College basketball has already missed out on quite a few exceptional talents in recent years.

College Basketball has Missed out on Exceptional Talent Over the Last Few Seasons

Recently, top college basketball prospects have skipped college and pursued other paths to the NBA. For instance, Darius Bazley was the 13th best high school basketball player in the class of 2018. He decided to forego playing for Syracuse University to prepare for the NBA Draft on his own. While self-preparing for the NBA Draft, he completed an internship with New Balance where he earned $1 million. Bazley has the potential to earn up to $14 million from the internship if he meets all of his performance incentives. Additionally, RJ Hampton, who was ranked number 5 in 2019, skipped college to play professionally for the National Basketball League’s New Zealand Breakers.

Similarly, LaMelo Ball made it clear he would not be attending college early in his high school basketball career. While in high school, Ball signed with an agent and entered into a contract to play in the Lithuanian Basketball League. At that point, any chance Ball had at playing college basketball ended. LaMelo Ball went on to play professionally for the National Basketball League’s Illawarra Hawks. Earlier this month, it was announced that Ball was in negotiations to purchase the Illawarra Hawks team. The opportunity to purchase the team he is playing is an extraordinary perk and outcome of charting a different path to the NBA.

Ball and Hampton are projected to be picked in the first round of the NBA Draft this year. If Ball and Hampton, like Bazley, are drafted in the first round it is sure to get the attention of future potential college basketball players. More players may decide to follow in their footsteps.

Other Players Have Sought Other Unconventional Routes to the NBA Outside of the G-League and National Basketball League

Green and Todd are not the only players who decided not to attend college. Kyree Walker, another top high school basketball prospect, also announced that he would not be attending college. Walker has opted to train with Chameleon BX. Chameleon BX is a 12-month program ran by Frank Matrisciano. The program is designed to prepare elite high school athletes for the NBA Draft.

The NCAA Better Wakeup and Seize Their Opportunity to Finally Allow College Athletes to Earn Their True Value

The NCAA still has a chance to make college sports more equitable and become a better option for future basketball prospects. Due to increasing pressure from public opinion and several state legislatures, the NCAA has been forced to consider allowing college athletes to profit from their name, image, and likeness. Last year, California became the first to enact legislation requiring schools to allow college athletes to profit from their name, image, and likeness. The law is set to take effect in 2023. Other states quickly followed suit drafting related bills. In March, Colorado joined California and signed a similar bill into law designed to give college athletes the ability to profit from their name, image, and likeness. That bill too is set to become effective in 2023.

However, Florida is currently considering a similar bill that could become effective on July 1, 2021. In the midst of all of this, the NCAA created a working group to address the name, image, and likeness issue. In October the NCAA announced that they were going to allow college athletes to “benefit” from their name, image, and likeness. The NCAA issued guidelines and principles that they are going to consider regarding the issue. Their guidelines left more questions than it provided answers.

The NCAA is scheduled to announce its detailed plan to allow college athletes to “benefit” from their NIL this week. They have another opportunity to make meaningful changes to make college sports more equitable. The billion-dollar non-profit organization must update its rules to adequately compensate the players who make their revenue possible. If they do not, they will continue to lose their top talent to the G-League and the National Basketball Association.