By Kadie Otto, Ph. D. Associate Professor, Western Carolina University
Recently, my colleague (Dr. Herbert Otto) and I presented a paper at the 26th Annual Sport and Recreation Law Association Conference (SRLA) in Denver (March 13-16, 2013) titled, “Amateurism & exploitation: A systematic approach to assure logical consistency prompted by In re NCAA Student-Athlete Name & Likeness Licensing Litigation”. This litigation has shed light on the chasm that has grown between the goals and realities of intercollegiate sports as a result of the cross purposes of amateurism and commercialization and the NCAA’s involvement in both (Stippich & Otto, 2010). For example, one of the problems the NCAA is facing in O’Bannon is whether the Student-Athlete Statement is enforceable and whether it is a contract of adhesion. From a contractual standpoint, it is logically inconsistent to require the student-athlete, on the one hand, to certify his amateur status and, on the other hand, require him to consent to use by the NCAA or third party of his name or likeness for commercial exploitation. In order to resolve this dilemma, the definitions of “amateurism” and “exploitation” need to be clarified especially in regard to the relationship between the two (Stippich & Otto, 2010).
Cianfrone and Baker (2010) have suggested that there may be a way to provide student-athletes with a reasonable slice of the pie in exchange for the use of their likenesses while preserving the amateurism of college athletics. But how? No one had been able to show how this could be done—that is, until now! In our paper, “Clarifying amateurism: A logical approach to resolving the exploitation of college athletes dilemma”, which was recently published in Sport, Ethics and Philosophy: Journal of the British Philosophy of Sport Association, we show, by way of linguistic analysis, how athletes can be provided a reasonable slice of the pie while preserving amateurism.
In our paper we investigated the logical consequences of the common understanding of amateurism in the context of big-time college sports, and in so doing, illustrated a method based on linguistic analysis and logic. We began by focusing on the term “amateur” as presupposed by the late Professor Brand in his attempt to justify the “business” of NCAA Division I sports by decoupling the “participants from the enterprise”. Next, we examined a more rigorous definition of the term “amateur” in order to show more clearly the difficulties posed by the current situation in big-time college sports. We also exposed a flaw in the NCAA’s “Orwellian” maneuver to create an ad hoc exception to bylaw 12.02 in their attempt to avoid the charge of exploitation.[6]
Finally, we put forth a new model for big-time college athletics which assures logical consistency pertaining to “amateur” and “exploitation” while adhering to bylaw 2.9. This new model, which we call “The Distribution Fairness Model” (DFM), calls for a “scholarship upgrade” which covers the true expenses during the athlete’s playing years, and also creates a “scholarship attachment” for the athlete in the post-playing years. The scholarship attachment is the “value-added” component which, in order to fairly address the central role the athlete plays in the universities opportunity to secure contracts with commercial entities, includes the establishment of a “derivative-value trust”.
It is likely that in order to come to a resolution regarding O’Bannon, the courts will have to make a decision regarding the notion of amateurism and exploitation in the context of modern-day big-time college sports. The NCAA has recognized this as evidenced by their attempt to amend bylaw 12.02 as well as their most recent moves to “deregulate” college sports, and, by changing language in the NCAA Division I Manual, stipulating that members adhere to “the collegiate model”. Will the NCAA’s move to create exceptions, change definitions, and manipulate language fool the courts? I doubt it. Might our proposal be a better option? We think so. By: 1) illustrating a method based on linguistic analysis and logic; 2) investigating the logical consequences of the common understanding of amateurism in the context of commercialized college sports; 3) using linguistic analysis to expose a flaw in the NCAA’s attempt to avoid the charge of exploitation; and, 4) putting forth the DFM which resolves the amateurism dilemma while at the same time takes into account the reality of the NCAA’s commercial engagements, we have laid out a road map for the courts which is logically sound.
References
2011 DIVISION I OFFICIAL NOTICE. (2010). Legislation for Consideration at the January and April 2011 NCAA Division I Legislative Council and NCAA Division I Board of Directors Meetings. Indianapolis, IN: NCAA.
Cianfrone, B. A. & Baker, T. A. (2010). The use of student-athlete likenesses in sport video games: An application of the right of publicity. Journal of Legal Aspects of Sport, 20(1), 36-74.
Otto, K. A., & Otto, H. R. (2013). Clarifying amateurism: A logical approach to resolving the exploitation of college athletes dilemma. Sport, Ethics & Philosophy: Journal of the British Philosophy of Sport Association.
Stippich, K.S., & Otto, K.A. (2010). Carrying a good joke too far? An analysis of the enforceability of student-athlete consent to use of name & likeness. Journal of Legal Aspects of Sport, 20(2), 151-184.
[6] In August 2011, NCAA Division I Amateurism Cabinet proposed modifications to bylaw 12.02 which would provide the NCAA and its member institutions with greater flexibility to use the name and/or likeness of students for commercial gain without being labeled as ‘exploitative’. For example, as long as ‘the sale of the commercial item is approved by the institution’s director of athletics . . . and . . . the involved student-athletes have signed a release statement granting permission to use their names or likenesses’, then the commercial activity would not be considered ‘exploitation’ (see 2011 DIVISION I OFFICIAL NOTICE. 2010. Legislation for Consideration at the January and April 2011 NCAA Division I Legislative Council and NCAA Division I Board of Directors Meetings. Indianapolis, IN: NCAA. at 52, bylaw 12.5.1.1.1 (a) and (c)).
