NCAA’s Top Lawyer Talks Amateurism, Offers Take from Bloom Case

Nov 19, 2004

Say what you want about Elsa Cole, but the NCAA’s general counsel is more than willing to speak her mind when it comes to controversial topics.
Such was the case at the National Sports Law Institute in Milwaukee last month where she tackled one of the most controversial issues confronting the association – amateurism.
In a talk that was titled “In Defense of Amateurism,” Cole put music to the NCAA’s belief that exceptions to amateurism rules would be a recipe for disaster, pointing specifically to the controversial case involving former University of Colorado football player Jeremy Bloom.
Before getting into that case, Cole gave an overview, noting that some people have this “romantic” longing for the way things used to be. “They lament the loss of amateurism with the belief that somehow they are not amateurs if they are playing in front of 105,000 or a television audience of millions,” she said. “They say that only the student-athletes are not being paid. Well, that has always been the case. It is no different than it used to be.”
After pointing to bylaws 1.3.1 and 2.9 under Article 1 as a foundation for the NCAA’s philosophy, she turned to the courts and their support for the NCAA’s interpretation. “The courts have held that the protection and fostering of amateurism is a legitimate objective of the NCAA,” she said, citing Justice v. NCAA, 577 Supp. 356, 371 (D. Ariz. 1983).
Cole went on to quote the U.S. Supreme Court as describing the NCAA “as a guardian of important American tradition.” NCAA v. Board of Regents, 468 U.S. 85, 101, 104 1984). It also “unquestionably has an interest in enforcing its regulations and preserving the amateur nature of intercollegiate athletics.” NCAA v. Lasege, 53 S.W. 3d 77 (KY 2001).
She defended the NCAA’s stance in the case involving Jeremy Bloom. “There was no way to determine whether his endorsement money came from his ability on the ski slopes of the football field,” she said. “If we had been talking about prize money earned from his skiing, this would not have been an issue. But endorsement? No.
Honing in on specific findings made by the court in Bloom v. NCAA, 93 P3d 621, 626 (Colo App. 2004), Cole wrote in her presentation that “courts review the amateurism rules under a rational basis test, that is, whether a rule furthers some legitimate purpose. Shelton v. NCAA, 539 F.2d 1197 (9th Cir. 1976). That purpose can be retaining the clear line of demarcation between intercollegiate athletics and professional sports. Bloom, at 626.
“In Bloom, … the court noted the NCAA had received insufficient information to determine which such opportunities were related to Bloom’s athletic ability or prestige and which were not.
“The Bloom court also distinguished, from Bloom’s situation, the receipt by colleges of endorsement income by having students wear certain equipment, with identifying logos and insignias, while engaged in intercollegiate competition. (The court held) that the receipt of such money by NCAA institutions had a rational basis in economic necessity in that the financial benefits inured not to any single student-athlete but the schools themselves and thus to all student-athletes, including those who participate in sports that generate no revenue.”


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