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CURRENT CHALLENGE TO THE EXPLOITATIVE NCAA RULES

The NCAA has made billions of dollars from the commercial exploitation of college athletes.  While many college athletes are given scholarships, free room and board, the benefit is nothing compared to the hard work these athletes perform while earning millions for the NCAA.  Serious college athletes give up their time and substantial privileges and rights.  NCAA athletes also give up control of their own names when they sign up with their college or university team.  Here is an interesting current legal challenge to the exploitative system filed in federal court for the Northern District of California:

In Re NCAA Student-Athlete Name and Likeness Licensing Litigation:   This is a class action lawsuit brought by former and current NCAA basketball and football players.  Initially, the damages  sought were for commercially exploiting their images in perpetuity (forever).   The complaint was amended to add current athletes.  Essentially, the class plaintiffs claim that the amateurism and eligibility rules violate antitrust laws (Section 1 of Sherman Act).  Class plaintiffs argue that despite the prohibition against the use of athletes’ likeness and names, NCAA, EA, and CLC conspired and contracted to permit use of athletes’ names and likenesses for their own substantial monetary gain, while athletes receive no compensation, and while athletes are prohibited from using their own names and likenesses for profit. [anti-competitive scheme for NCAA’s, EA’s, and CLC’s benefit]   Class plaintiffs also argue that the players are forced to sign the contract and NCAA has a monopoly,  that the NCAA and its business partners reap millions of dollars from revenue streams, including TV contracts, rebroadcasts, DVD game and highlight film sales and rentals, on-demand streaming and sales of games and clips, stock footage sales to corporate advertisers and others, photograph sales, video game sales, and jersey and apparel sales. The plaintiffs seek both injunctive relief and damages.

  • Summary of Challenged NCAA Rules:
    • NCAA may use name or picture of enrolled student athlete for promotion
  • Each student-athlete must sign these forms annually
  • Failure to complete and sign form will result in student-athlete’s ineligibility, unless the violation resulted from an administrative error and student

subsequently signs the form

  • Student-athletes must sign and agree to authorize NCAA (or a third party acting on behalf of NCAA) use of the student’s name or picture to generally promote NCAA championships or other NCAA events, activities or programs

Rules Copied from Complaint:

The NCAA’s Anticompetitive Form 08-3a.

  • Bylaw 12.5.1.1.1 (“Promotions Involving NCAA Championships, Events, Activities or Programs”) states the following:

The NCAA [or a third party acting on behalf of the NCAA ( e.g., host institution, conference, local organizing committee)] may use the name or picture of an enrolled student-athlete to generally promote NCAA championships or other NCAA events, activities or programs.

  • Article 3.2.4.6 of the Constitution (“Student-Athlete Statement”) states the following:

An active member shall administer annually, on a form prescribed by the Legislative Council, a signed statement for each student-athlete that provides information prescribed in Bylaws 14.1.3 and 30.12.

  • Bylaw 14.1.3.1 (“Content and Purpose”), referred to in Article 3.2.4.6 of the Constitution, details the contents of the required form and states the following:

Prior to participation in intercollegiate competition each academic year, a student-athlete shall sign a statement in a form prescribed by the Legislative Council in which the student athlete submits information related to eligibility, recruitment, financial aid, amateur status, previous positive drug tests administered by any other athletics organization and involvement in organized gambling activities related to intercollegiate or professional athletics competition under the Association’s governing legislation. Failure to complete and sign the statement shall result in the student-athlete’s ineligibility for participation in all intercollegiate competition. Violations of this bylaw do not affect a student-athlete’s eligibility if the violation occurred due to an institutional administrative error or oversight, and the student-athlete subsequently signs the form; however, the violation shall be considered an institutional violation per Constitution 2.8.1.

  • Bylaw 14.1.3.2 (“Administration”) continues that “[t]he institution shall administer this form individually to each student-athlete prior to the individual’s participation in intercollegiate competition each year. Details about the content, administration, and disposition of the statement are set forth in Bylaw 30.12.”
  • Bylaw 30.12 (“Student-Athlete Statement”), referred to in Article 3.2.4.6 of the Constitution and in Bylaw 14.1.3.2, states the following:

The following procedures shall be used in administering the student-athlete statement required in Bylaw 14.1.3:

(a) The statement shall be administered individually to each student-athlete by the athletics director or the athletics director’s designee prior to the student’s participation in intercollegiate competition each academic year;

(b) The statement shall be kept on file by the athletics director and shall be available for examination upon request by an authorized representative of the NCAA; and

(c) The athletics director shall promptly notify in writing the vice president of NCAA’s education services group regarding a student-athlete’s disclosure of a previous positive drug test administered by any other athletics organization.

  • Form 08-3a states that it is “required by NCAA Constitution 3.2.4.6 and NCAA Bylaws 14.1.3.1 and 30.12,” and that its purpose is “[t]o assist in certifying eligibility.” It further notes that “[t]his NCAA Division I statement/consent form shall be in effect from the date this document is signed and shall remain in effect until a subsequent Division I Student-Athlete Statement/Drug-Testing Consent form is executed.” Form 08-3a has seven parts, including the following: “[a]statement concerning eligibility;” “[a]n affirmation of status as an amateur athlete;” and “[a] statement concerning the promotion of NCAA championships and other NCAA events.”
  • Under Part IV (“Promotion of NCAA Championships, Events, Activities or Programs”), student athletes must sign and agree to the following:

You authorize the NCAA [or a third party acting on behalf of the NCAA (e.g., host institution, conference, local organizing committee)] to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs.

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