Peter Rush of Bell, Boyd & Lloyd in Chicago, the attorney who represents Jeremy Bloom in his bid to play football this fall at the University of Colorado AND receive endorsement checks as a professional skier, told Sports Litigation Alert earlier this week that Bloom is “strongly considering an appeal to the Colorado Supreme Court, although no final decision has been made.”
Earlier this month, the Colorado Court of Appeals affirmed a trial court’s decision, which denied an injunction that would have allowed Bloom to pursue both vocations on his terms.
Now Bloom’s only remaining immediate options are an appeal to the state’s highest court or to hope that the NCAA alters its bylaws or makes an exception that would allow him to play this fall.
“We recognize that, like many others involved in individual professional sports, such as golf, tennis and boxing, professional skiers obtain much of their income from sponsors,” wrote the appeals court judge John Dailey. However, “none of the NCAA’s bylaws mentions, much less explicitly establishes, a right to receive ‘customary income’ for a sport.”
Further, the court noted that “the clear import of the bylaws is that, although student-athletes have the right to be professional athletes, they do not have the right to simultaneously engage in endorsement or paid media activity and maintain their eligibility to participate in amateur competition. And we may not disregard the clear meaning of the bylaws simply because they may disproportionately affect those who participate in individual professional sports.”
In a statement he issued after the ruling, Bloom tried to paint a bigger picture regarding his legal battle with the NCAA, beyond that of a professional skier. “The NCAA needs to evaluate the growing number of athletes competing in alternative sports, such as the Summer X Games and the Olympics. It … is unfair to exclude all of us from college competition.”
Bloom’s point is that many of those athletes competing in “alternative sports” receive the bulk of their income from sponsors. While the NCAA has been open to allowing its student-athletes to retain their amateur status if they accept prize money in other sports, it has been slow to adjust to the shifting trend in “alternative sports.”
Last-Minute Affidavit Gets Ignored
Rush expressed his disappointment with the appeals court’s “interpretation of the endorsement and media provision. We believe that those interpretations cannot possibly be squared with the only substantially similarly situated NCAA two-sport professional athlete, Tim Dwight. It is a shame that the Appellate Court did not consider the evidentiary affidavits and NCAA determination on the Tim Dwight case.”
Dwight is a receiver with the San Diego Chargers, who was permitted to run track at the University of Iowa, even though he had received and kept endorsement money from his football career. Dwight’s agent, Jack Bechta, told Rush by the existence of the Dwight case.
NCAA spokesperson Jeff Howard has gone public with the NCAA’s interpretation of the relevance of the Dwight case. Dwight “was seeking reinstatement. And once that athlete sought reinstatement and reinstatement was granted, any endorsement activity ceased.” Bloom v. NCAA et al.; Court of Appeals No. 02CA2302
Ct. App. Colo., D5; 5/6/04
