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.

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.

Did NCAA Really Agree to Allow College Athlete NIL Compensation? Nope

NCAA Name Image Likeness NIL Pay college athletes

On Tuesday, the NCAA’s working group released its decision on the college athlete name, image, and likeness (NIL) compensation issue. Or did they? All of the headlines immediately read that the NCAA allows college athlete NIL compensation. At first glance, the NCAA’s statement would lead one to believe that they did just that. The statement read that “the NCAA’s top governing board voted unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image, and likeness.” However, when looking a bit closer it becomes very apparent that the NCAA never used the word compensation in the context of allowing NIL payments. The NCAA danced around the compensation issue without ever calling it compensation.

In fact, the NCAA was not clear at all about how they plan to address the college athlete NIL compensation issue. They essentially addressed the issue without truly addressing the issue. Their statement is riddled with unclear ambiguous language that essentially renders the NCAA’s true stance on the issue unclear. The NCAA’s lack of clarity should come as no surprise. After all the NCAA is only addressing NIL compensation after being forced to do so.

The NCAA was Strong-Armed into Addressing College Athlete NIL Compensation

2019 has been a volatile year for the NCAA. State and federal lawmakers have become increasingly vocal about the injustices that plague the college athletics system. Several lawmakers introduced legislation to remedy those injustices. In January, Washington State Senator, Drew Stokesbary, introduced legislation to allow college athletes in Washington state to profit from their NIL. Soon after, Congressman Mark Walker introduced the Student-Athlete Equity Act. Under the Student-Athlete Equity Act, the NCAA would lose its tax-exempt status if it does not allow college athlete NIL compensation. While these bills were being introduced, lawmakers in California were debating the Fair Pay to Play Act. All of this led the NCAA to create a working group to address the NIL compensation issues.

However, the working group did not work fast enough for California. California Governor Gavin Newsom signed the Fair Pay to Play Act into law. Under the law, college athletes in California will be allowed to profit from their name, image, and likeness and sign with agents starting in 2023. In spite of the NCAA’s efforts to thwart the Fair Pay to Play Act, it still became law. As a result, the NCAA’s working group had no choice but to acknowledge the need to “modernize” their rules in favor of college athlete NIL compensation. The NCAA was forced to either move towards NIL compensation or to at the very least appear to be moving towards NIL compensation. It seems as though the NCAA has chosen to appear to be moving forward with college athlete NIL compensation.

The NCAA Has Chosen to Give the Appearance of Moving Towards College Athlete NIL Compensation Instead of Truly Moving Towards it

While the NCAA has everyone saying that they have decided to allow college athlete NIL compensation, that is not exactly true. In fact, the NCAA never used the word compensation in that context. The NCAA voted to allow college athletes to “benefit” from the use of their name, image, and likeness, not to be compensated. It is not clear what “benefit” actually means. What kind of “benefit” will the NCAA allow? How are NIL benefits different from NIL compensation? However, what the NCAA did make clear is that the “benefit” will be done “in a manner consistent with the current collegiate model.” In true NCAA fashion, the NCAA spared no expense in making it clear that they are dedicated to preserving as much of the current collegiate model as possible. In fact, the NCAA set out a list of guidelines that are dedicated to doing just that.

The NCAA’s Rule Modernization Guidelines

As a part of its effort to allow college athletes to “benefit” from their NIL, the NCAA has urged each division to consider modernization of its bylaws and policies. To help each division with doing that, the working group created a set of guidelines for each division to consider. However, those principles and guidelines seem to be more about ensuring that the divisions create bylaws that maintain the NCAA’s commitment to amateurism.

For example, the NCAA has urged its divisions to amend their rules so that athletes receive similar treatment as other students. However, the guidelines provide a caveat that will allow athletes to be treated differently when there is a compelling reason for doing so. However, in true NCAA fashion, there is no clarity on what is a permissible compelling reason for different treatment. Additionally, the guidelines require that the amended bylaws maintain a “clear distinction between collegiate and professional opportunities.” This is clear amateurism perservation language.

The NCAA also urged that the bylaws be amended so that it is clear that “compensation for athletic performance or participation is impermissible.” In fact, that is the only context in which the NCAA made reference to compensation. They mentioned it to reiterate that compensation related to athletic performance is not permissible. Furthermore, the NCAA instructed that the bylaws be amended with the caveat that “student-athletes are students first and not employees of the university.” Again, their true focus is on preserving amateurism.

The NCAA’s Statement is not the Earth Shattering Development it was Made out to be

While the NCAA’s statement is noteworthy, it is not the groundbreaking development it was made out to be. It is noteworthy because the NCAA finally acknowledged that college athletes should be allowed to “benefit” from their NIL. However, it is not groundbreaking because the NCAA is still committed to preserving the farce of amateurism. After all, the NCAA is only addressing this issue after realizing that they had no choice. The NCAA was very careful not to say that college athletes are allowed to receive compensation. They strategically used the word “benefit” and neglected to define what a “benefit” would be.

While some of the guidelines addressed the betterment of college athletes, there was a heavy focus on protecting amateurism. The guidelines also created more questions than answers. It is for these reasons that the NCAA’s statement feels like a half measure that was intended to slow down the momentum of related legislation. Furthermore, the statement does not address college athletes’ ability to sign with agents. The NCAA addressed this issue during the summer for elite men’s basketball players. The NCAA needs to address this in the broader context as the Fair Pay to Play Act and other proposed legislation seeks to allow college athletes to sign with agents. The most useful finding that comes out of this statement is the fact that the NCAA has acknowledged the need for change. However, what form the NCAA will allow that change to take is still very unclear.

What is the New NCAA Independent Investigation Unit

NCAA Announces New Independent Investigation Unit

The NCAA has formed an independent investigation unit to oversee “complex cases.” Only a school representative, NCAA enforcement staff, or member of the NCAA Division I Committee on Infractions can bring a case under the new investigation process. What is the unit’s purpose and how does it plan to effect change?

The Independent Accountability Resolution Process

The unit is broken up into four committees:

Independent Accountability Oversight Committee: oversees the entire investigation process, appoints members to the other three committees, and develops policies and procedures to ensure fairness and impartiality. 

Infractions Referral Committee: reviews and confirms requests for complex cases.

NCAA investigation unit
Credit: NCAA

Complex Case Unit: carries out factual investigations regarding approved complex cases and guides the case through the review process. The Complex Case Unit is made of independent investigators and advocates with no school or conference affiliations and various NCAA enforcement staff.

Independent Resolutions Panel: reviews Complex Case Unit findings and the school’s response, oversees case hearings, and determines penalties. This group consists of fifteen members with legal, higher education, and/or sports backgrounds, and who have no affiliation with any NCAA school or conference. A rotating panel of five members hears each case. All decisions are final and not subject to appeal.

Should We Trust the Process?

The Independent Accountability Resolution Process (IARP) was created upon the recommendation of the Condeleeza Rice Commission to fix college basketball. Its main purpose is to defeat perceived conflicts of interest. However, the IAOC is made entirely of NCAA officials who determine the other members of the unit. Furthermore, the NCAA decides what qualifies as a complex case. If the NCAA truly wanted to promote independence, it would have been better served outsourcing the entire process instead of tethering it to its brand.

The IARP also fails to include methods to protect student-athletes. Noticeably, student-athletes have no right to request a hearing. There’s no mention of how mitigating factors or the effects of institutional control may affect an investigation. It appears the “why” and “how” of a situation is irrelevant in analyzing a case. Strict decision-making may be effective to govern administrations, but a number of variables come in to play when teenagers are involved. The IARP fails to take such factors into consideration. 

The IARP is The Same As Current NCAA Policy

The NCAA already has the NCAA Infractions Program. The NIP was designed to “uphold integrity and fair play among the NCAA membership, and to prescribe appropriate and fair penalties if violations occur.” Like the IARP, the Infractions Program requires decisions to be made by a panel of independent arbiters. Specifically, Section 19.3.4 of the NCAA Division I Manual states:

No member of a hearing panel shall participate in a case if he or she is directly connected with an institution under investigation or if he or she has a personal, professional or institutional affiliation that may create the appearance of partiality. It is the responsibility of the panel member to remove himself or herself if a conflict exists. Objections to the participation of a panel member in a particular case should be raised as soon as recognized but will not be considered unless raised at least one week in advance of the panel’s review of the case. Objections will be decided by the committee chair.

One of the unit’s first cases may be the investigation of corruption in college basketball. But it’s odd that the NCAA would create a new committee just for this purpose. What more is there to learn from this subject outside what the federal cases already provided? 

The NCAA Independent Investigation Unit is the latest in a string of new committees put in place to advance the administration. In May, the NCAA formed the NCAA Board of Governors Federal and State Legislation Working Group. The purpose was to analyze proposed federal and state legislation focused on student-athletes receiving benefits based on the use of their name, image, and likeness. The thought was this group would bring the NCAA into the 21st century. Instead, the NCAA has spent the past months challenging California legislation and threatening schools.

Will the NCAA Independent Investigation Unit Work?

Until more transparency is provided, the IARP appears simply another measure meant to provide hope that will ultimately fail to make a significant impact on the landscape of college sports.

Follow Alan Wilmot on Twitter and Instagram.

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Compensation and Education: Launch of the Historical Basketball League

historical basketball league cities map compensation and education
compensation and education HBL map

The Historical Basketball League who’s aim is to focus on compensation and education announced the following eight cities for the launch of the league’s inaugural season set to take place in June 2020:

  • Atlanta, Georgia
  • Baltimore, Maryland
  • Charlotte, North Carolina
  • Raleigh, North Carolina
  • Philadelphia, Pennsylvania
  • Norfolk, Virginia
  • Richmond, Virginia
  • Washington, DC

Focusing on the east coast with the intent to expand to other parts of the United States in the near future, the HBL seeks to challenge the NCAA-model by offering top players the opportunity to earn compensation while also obtaining a college degree. The HBL will offer players up to $150,000 based on their market value and will assist each player “in building a personal and professional brand that will extend on and off the court.”

Promoting Personal Brands Through Use of Name, Image, and Likeness

The NCAA Board of Governors Federal and State Legislation Working Group was created to analyze proposed federal and state legislation and determine whether student-athletes may receive benefits (i.e. compensation) based on the use of their name, image, and likeness. The NCAA provided the committee with a strict mandate: (i) potential benefits must be tied to education, and (ii) no models that could be perceived as “pay-for-play” may be considered.

These guidelines make it virtually impossible for student-athletes to receive benefits in exchange for the use of their likeness. However, California’s bill (and other states) should force the NCAA to loosen up its parameters. In the meantime, there are a number of ways the HBL can help build player brands through increased fan engagement and other means that could also benefit the league.

One platform is INFLCR, a software that allows athletes and teams to deliver personalized content across social media. INFLCR has partnered with a number of universities and athletes to build brands, and the Historical Basketball League could benefit greatly in the promotion and marketing of its product by doing the same.

Another is Gatorade’s “Highlights” app. Though catered to younger athletes to help capture and share athletic feats, Gatorade’s app provides another great branding tool and way for athletes to control their marketing. Users can brand their highlights with their names, numbers, teams or positions. This provides the most popular players with a way to increase their marketability and commercial value.

Historical Basketball League: The Future of College Basketball

The NCAA Basketball corruption case resulted in prison sentences for each of the individuals involved. The universities implicated at trial have resorted to claiming “victim” as a way to alleviate their roles. That stance, coupled with the NCAA’s refusal to take overt investigative action, have some questioning whether corruption in the college ranks will ever be addressed.

HBL’s Andy Schwarz notes that schools violate rules because the value of obtaining a five-star recruit exceeds any punishment the NCAA can provide. This finding emphasizes the HBL’s importance. The recent decisions of RJ Hampton and Kenyon Martin Jr. show athletes are tired of being exploited. The NCAA rules are arbitrary and antiquated, but change is on the horizon. Boasting a management team led by two-time champion David West and an advisory board featuring two individuals with Google-experience, the forward-thinking Historical Basketball Leauge has a real shot of establishing itself as the premier college basketball league for domestic and international talent. The HBL has already begun scouting athletes for its inaugural 2020 Season, identifying potential coaches, and engaging individuals to serve as ambassadors for its respective teams.

Credit: Myles Brand

CEO Ricky Volante often states, “Amateurism is a con,” and that the collegiate model should first benefit the student-athletes, not the coach or institution who profits from their labor. The HBL is coming, and many – including the NCAA – are beginning to take notice of compensation and education.

For more information about the HBL, check out CEO Ricky Volante’s interview with Unafraid Show’s Kassandra Ramsey

Follow Alan Wilmot on Twitter and Instagram @alanwilmotlaw

RJ Hampton Going Pro Basketball May Change College Basketball

RJ hampton turning pro instead of playing college basketball

On Tuesday, the number 5 ranked college basketball recruit in the ESPN Top 100 RJ Hampton, shocked the college sports world when he announced that he would forego college to play professionally in Australia. He made the announcement on ESPN’s Get Up. Hampton will play professionally with the National Basketball League’s (NBL) New Zealand Breakers.

Immediately after Hampton’s announcement, the sports world was abuzz about what this will mean for the NCAA and college basketball. The NCAA, the schools, the conferences, and coaches are facing criticism for the current college sports model where they make billions of dollars while the players are limited to a cost-of-attendance scholarship.

The Current College Sports Model

The current college sports model can be summed up in one word – UNFAIR. The NCAA governs college sports. The NCAA makes rules that it’s member schools follow. The bedrock of those rules is the principle of amateurism. College sports are regarded as amateur sports that the players only engage in for their love the game. Thus, college athletes do not receive any payment but may receive a scholarship. Meanwhile, the NCAA, the schools, the conferences, the coaches, and sports administrators make billions of dollars off of college athlete labor. Does this really seem fair?

No, it is not fair. More and more people are acknowledging the unfairness of the current college sports model particularly in regards to D1 men’s basketball and football. The issue has been litigated in court in several cases. Recently state and federal lawmakers have proposed legislation challenging the college sports model. The bills propose allowing college athletes to profit from their name, image, and likeness. Due to the progress of these proposed bills, the NCAA has created a working group to address the issue. Now, whether Hampton realizes it or not, his decision poses another challenge to the current college sports model. Hampton’s decision could have a detrimental effect on college basketball especially if future top recruits follow in his footsteps.

Will RJ Hampton’s Decision Detrimentally Effect College Basketball

Hampton is the only one of the five top recruits to decide not to play college basketball. From a college basketball fan entertainment perspective his absence is not likely to have a profound effect this upcoming season. College basketball will still be the same product that it has been and fans will surely tune in. However, Hampton’s decision could have an effect on college basketball down the road. This is especially true when considered with the mounting challenges that college sports is rightfully facing.

As the NCAA addresses the proposed legislation and continues to fight in court, the college sports model is also being challenged directly. Specifically, the NBA’s G-Leauge new program presents a competitive problem for college basketball. Last fall, the G-League announced that it would allow elite athletes who are 18 years old to enter the G-League and receive a select contract valued at $125,000.

Furthermore, the NCAA may soon be threatened by a start-up basketball league that seeks to pay its players and give them scholarships. That league is the Historical Basketball League (HBL). Projected to start in 2020, the HBL plans to give it’s players an option where they are not forced to choose between pay and education. These new options and the example set by Hampton may encourage future top recruits to take a non-traditional route to the NBA. If this happens, college basketball may be in for a real change.

Change is Inevitable to the Current College Sports Model

RJ Hampton is not the first player to opt out of college for a professional overseas league. However, his decision is still a big deal. Hampton is a top 5 recruit who chose to “buck the system” and pursue his NBA dream another way. Hampton echoes the sentiment that so many others are thinking. That sentiment is that athletes can always go back to college. However, athletes only have a finite amount of time to make money off their athleticism. Why should athletes be forced to spend that time playing in college for drastically under their fair market value? The answer is they should not.

Hampton’s decision and reasoning has the potential to have a domino effect. Others are likely to follow suit, especially if Hampton makes it to the NBA. Hampton will get paid to play professionally and prepare for the NBA. It is a really attractive option for similarly situated prospects. Given this realization, the NCAA will eventually have to make a change. Hampton’s decision may be even more incentive for the NCAA’s working group to do the right thing and allow college athletes to profit from their name, image, and likeness. One thing is for sure, the current college sports model is going to have to change if it wants to retain elite talent.

Follow Kassandra Ramsey on Twitter @Court_2_Court

How the NCAA Tournament Generates Billions From March Madness

NCAA Tournament generates billions for coaches bonuses from March Madness

March Madness 2019 is in full swing. The NCAA’s cash cow basketball tournament started on March 19th and is slated to make billions in revenue. The NCAA tournament has college basketball fans abuzz about who will be this year’s victor. In the midst of all of the excitement, the NCAA continues to face well-deserved criticism for its exploitive college athletics system. Even famed sports broadcaster Dick Vitale weighed in and stated that he believes that it is time that college basketball players get paid. Well-respected industry leaders addressing the injustices of college basketball’s premier event leads one to seriously question just how much money is at stake in March Madness?

March Madness is the NCAA’s Cash Cow

2017 was a monumental year for the NCAA. It was the first year the NCAA cleared one billion dollars in revenue. That is right the NCAA, a non-profit organization, cleared one billion dollars in revenue. Where on Earth did all of that money come from?

College T-shirts at Fanatics.com

The Bulk of the Money Comes From Marketing and Television Rights for March Madness and a few Other Sources

A huge chunk of the NCAA’s revenue comes from its broadcasting deal for March Madness. In 2016, the NCAA extended their contract with CBS Sports and Turner, a division of Time Warner, for the broadcasting rights of the Men’s March Madness basketball tournament. The extension, which runs through 2032, added 8 years and 8.8 billion dollars to the original contract. Essentially, the new deal will pay an average of 1.1 billion dollars per season.

As a result of the contract extension, the NCAA made $817,517,801 from television and marketing rights fees in 2017. Also in 2017, the NCAA made $128,113,594 from ticket sales, concessions, parking, and other tournaments such as the National Invitational Tournament (NIT). The average price paid for tickets in 2018 was $1,845 for the full Final Four experience and a mere $1,010 for the championship game only.

From these numbers, it should be clear why Dick Vitale and college athlete rights advocates contend revenue generating athletes should be paid. Clearly, there is enough money. Without the athletes, the NCAA would not have a product to negotiate a deal like the one with CBS Sports and Turner. Fans tune in to see the best of the best compete. That very fact is what gave the NCAA the leverage for that billion dollar deal.

NCAA tournament television revenue coaches bonuses

The NCAA is not the Only Beneficiaries – Colleges, Conferences, and Coaches Benefit too

The Big Payday for Colleges and Conferences

After the net is cut and the trophy is presented, colleges and their respective conferences await a big payday. A portion of the March Madness revenue is paid out to the colleges and conferences. Colleges use the money for a variety of things, including scholarships and funding for non-revenue sports. Division 1 conferences get the bulk of the money. The NCAA considers a variety of factors when distributing the money. Those factors include support of non-revenue sports, performance in the tournament over six years, and the number of full-rides given to athletes.

College T-shirts at Fanatics.com

In 2016, the Big 10 received the biggest payout at $57,540,348. The Western Coast Conference came in at number ten on the list at $8,192,085. The conferences funnel the money down to the schools. The largest payment to a school came in 2016 when Stanford University was paid $3,250,544. From these numbers, is it is clear why the debate regarding payment for revenue-generating college athletes is such a hot topic. Clearly, there is enough money. 

Coaches Receive Huge Bonus Incentives

Similar to Division 1 college football coaches receiving bonuses for bowl game appearances, Division 1 college basketball coaches receive bonuses for March Madness appearances. Basketball coaches receive bonuses for merely advancing to the tournament. Some even receive a bonus for a victory in the first round of the tournament. The bonus incentive increases as the team progresses to each level of the tournament. The levels include the Sweet Sixteen, Elite Eight, and the Final Four.

If Arizona State’s head coach Bobby Hurley won the 2018 title, he would have received up to $1.4 million in bonuses above his base salary. The simple fact that $1.4 million in bonuses could have been paid to Hurley for coaching a winning team totally disproves the argument that there is not enough money floating around to pay the athletes. Clearly, there is enough money.

March Madness is Big Business for Everyone Except the Athletes

It appears that everyone, expect the labor force is able to profit from March Madness. Everyone from the NCAA down to the locales where the games are held rake in millions of dollars from the tournament. Even the least watched games will generate millions of dollars for their universities. However, the players will be limited to their scholarship. For the next few weeks, fans will be bombarded with March Madness ads using the likeness of athletes who would be guilty of NCAA violations if they individually promoted that same image. This is March Madness, the NCAA’s billion-dollar cash cow.


College Football Coaches are Threatened ​by ​NCAA Transfer Portal

Transfer Portal NCAA college football

What an interesting college football off-season this is shaping up to be. College football players are wielding their newly found freedom with the NCAA’s transfer portal. Last summer, the NCAA announced the creation of a new transfer portal that would allow college athletes to pursue transferring to another school without first obtaining their coaches permission. […]

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NCAA needs the Eddie Robinson Rule like NFL needed the Rooney Rule

Eddie Robinson Rule

Why isn’t there more diversity in D1 college athletics coaching staff?

An article was recently published that pointed out the continued lack of diversity in the coaching staff of college football.  College football is not the only sport with a diversity problem.  A systemic lack of diversity in regards to race and gender is a problem across all of college athletics.  Accordingly, scholars have suggested the implementation of a variation of the NFL’s “Rooney Rule” for college athletics.  The  “Rooney Rule” rule requires NFL teams to interview minority candidates for head coaching and general manager positions.[i] Specifically, scholars have suggested the implementation of the “Eddie Robinson Rule” for college athletics.  This rule would require colleges to interview at least one minority candidate for all head coaching and leadership positions.[ii]

Critics of this rule may argue that its implementation may not make much of a difference because the interview would only be a “token” interview.  Even if the interview is a “token” interview, it is still helpful because it gives the candidate exposure for when another opportunity arises. Moreover, diversifying the interview pool may help the hiring committee in ensuring that they have the best person for the job. The rule may force the hiring committee to consider candidates that they would not have interviewed otherwise.  In the process, the committee may find that the perceived least likely candidate is actually the best person for the job.

Universities Should be the Biggest Supporters of the “Eddie Robinson Rule”

Universities seek to provide their students with the best cultural and well-rounded experience possible.   Thus, they seek to have diversity in their student body, their course offerings, and professors. College athletics is an integral part of the collegiate experience.  Therefore, universities should strive for diversity in that arena too. Furthermore, college athletics provides its participants with a chance to attend college at some of the countries finest universities.

Accordingly, the “education” along with the experiences of playing a collegiate sport is supposed to place the athletes in a better position for success and make them well-rounded individuals.  However, colleges may be failing to provide college athletes with a well-rounded experience due to the racial disparity between players and coaches.  This is especially true with regards to D1 football and men’s basketball players and their coaching staff.

The majority of college football players are persons of color. At FBS schools, roughly fifty-five percent of the players are African-American, and sixty percent are persons of color.[iii] Only eleven percent of D1 college football head coaches are African-American.[iv] Assistant coaching positions and offensive and defensive coordinator positions also lack diversity.[v] Roughly thirteen percent of D1 men’s basketball head coaches are African-American, while roughly fifty-three percent of the players are African-American.[vi] Given the racial disparity between the players and the coaches, it is very unlikely that college athletes are truly receiving a well-rounded experience.  This is why universities should be the biggest proponents of the “Eddie Robinson Rule.”  While no university should be forced to have a certain number of minority coaches, the rule could help universities ensure a more well-rounded and cultural experience for their athletes.

The importance of College Athletes being Coached by a Diverse Staff

College athletes spend the bulk of their time dedicated to their sport.  It is almost as if their sport is a full-time job. Hence, many athletes spend over forty hours per week in a sport related activity.  Therefore, college athletes spend the majority of their time with their teammates and coaching staff.  Accordingly, it is safe to assume that their coaches are some of the most influential people in the athletes’ lives.  Due to the vast amount of influence that coaches have over their players, diversity in the coaching staff is of optimal importance.

Students should leave college feeling emboldened and like they can be successful in their future endeavors.  For that to happen, students must be able to look around their environment and see relatable examples of success. This means that students need to see representations of themselves in positions that they may one day aspire to be in. Studies have proven that the lack of diversity in teachers has a negative effect on students at the K-12 level.[vii] This is particularly true for African-American boys.[viii] Students benefit from having teachers who look like them. Does it not stand to reason that minority college athletes would benefit from having head coaches and coaching staff who look like them?

Unfortunately, some college athletes will have to realize that their dream of playing professionally may not come true.  Those athletes may aspire to work in the game they love.  Accordingly, some may aspire to be a coach, a trainer, an athletic director, or even a conference commissioner.  How are minority college athletes supposed to believe that they can achieve those goals if no one in those positions represents the demographic group of which they identify?

[i] Adam Stites, NFL’s Rooney Rule:  What is it and How Does it Work?, SBNation (Jan. 6, 2018, 8:30 AM),  https://www.sbnation.com/2018/1/6/16856550/rooney-rule-nfl-explained-how-it-works-coaches

[ii] Myron Medcalf, Proposed Eddie Robinson Rule Would Lead to More Chances for Minority Candidates, ESPN (Feb. 4, 2016), http://www.espn.com/college-sports/story/_/id/14530019/national-association-coaching-equity-development-proposes-eddie-robinson-rule-requiring-interviews-minority-candidates.

[iii] Richard Lapchick, NCAA Leaders Get Poor Marks for Diverse Hiring Practices, ESPN (Oct. 3, 2018), http://www.espn.com/college-sports/story/_/id/24881558/ncaa-continues-get-poor-grades-diversity-their-hiring-practices.

[iv] Paul Myerberg, Lack of Black Head Coaches in Major College Football is Still Crucial Issue for Universities, USA Today (Sept. 27, 2018, 7:07 AM), https://www.usatoday.com/story/sports/ncaaf/2018/09/27/black-head-coaches-fbs-adopt-rooney-rule-policy/1437792002/.

[v] Id.

[vi] Dr. Richard Lapchick, The 2017 Racial & Gender Report Card:  College Sport, (2018), https://www.insidehighered.com/sites/default/server_files/media/2017%20College%20Sport%20Racial%20and%20Gender%20Report%20Card.pdf.

[vii] Claire Cain Miller, Does Teacher Diversity Matter in Student Learning?, The New York Times (Sept. 10, 2018), https://www.nytimes.com/2018/09/10/upshot/teacher-diversity-effect-students-learning.html.

[viii] Id.

Maryland Football: Booster Removed From Team Plane over Jordan McNair Comments

Maryland Football

College athletes have power and influence when they rally together.  The football team at the University of Maryland, College Park (Maryland) proved this the players caused a highly regarded booster removed from the team’s flight prior to their game against the University of Michigan.  The booster, Rick Jaklitsch, made insensitive comments about Jordan McNair, a former Maryland football player who died on June 13, 2018. McNair died as a result of a heat stroke he suffered in a team practice on May 29, 2018.

Jaklitsch essentially blamed McNair for his own death. His comments did not sit well with the remaining members of the team. Accordingly, when the players learned Jaklitsch was scheduled to fly with them to Michigan, they demanded that he be removed from the flight.  Thereafter, Jaklitsch was removed.

The Unrealized Power of College Athletes

Maryland’s football players successful effort to remove Jaklitsch from their team flight shows just how powerful college athletes can be.  It seems as though college athletes may think they are powerless. However, the opposite is true. College athletes have the power to effectuate real change because they are the labor force driving a billion-dollar industry.  There is so much money at stake in college athletics.  All of that money rides on the athletes’ willingness to compete.

Accordingly, when athletes are unwilling to compete things change. This was proven in 2015 when the University of Missouri (Missouri) football team forced the resignation of the university president, Tim Wolfe.   Members of the student body called for President Wolfe’s resignation due to his failure to adequately address the volatile racial climate on the campus.  Very little was accomplished in the student body protest until members of the Missouri football team refused to play unless President Wolfe resigned. Two days later, President Wolfe resigned. Missouri would have faced a one million dollar payout to Brigham Young University if they forfeited the game.  The football players’ refusal to give their labor forced the university to take action or suffer a major financial penalty. Accordingly, this situation proves that college athletes have power because of the financial incentives that are tethered to their labor.

College Athletes Are Their Most Powerful Advocate

Several people advocate on behalf of college athletes’ rights in a variety of ways.     Some advocate for their rights in court while others create documentaries exposing the ugly truth about the NCAA and the billion-dollar college athletics industry.  This advocacy is needed and serves the greater purpose of helping the rights of college athletes to finally be recognized.  However, the college athletes themselves have the most power to be their best advocate and effectuate immediate change. The labor of college athletes is what drives college athletics.  Without their willingness to give their labor, there would be no one to coach and no content to leverage billion-dollar television deals.

If college athletes used their labor as a bargaining tool for more freedom, they would likely see immediate change. They could bargain for the right to profit from their own name.  It is true that college athletes do have some incentive to give their labor because they may receive a cost of attendance scholarship.  However, many college athletes are uniquely situated to receive other benefits and should be allowed to do so.  College athletes have the power to be the change that many of them may want to see.