Defending the Shards of Amateurism

October 28, 2008

When CBS Sports began to use Division I college football players’ names this season in its online fantasy game, the National Collegiate Athletic Association was none too pleased. The NCAA stated that this usage violated its rules and threatened its commitment to amateurism but went no further, admitting that its hands may be tied by a federal court decision that upheld the use of names.

Monday, at its first meeting since the move, the Knight Commission on Intercollegiate Athletics -- an athletics reform group made up of college presidents, former athletes and other officials -- criticized the commercialization of athletes in such fantasy games and urged the NCAA to show more leadership in the fight against them.

“College athletes in fantasy games and video games may seem trivial to some, but these and other forms of new media pose new challenges to the long-held distinction between commercial activity featuring teams and that which focuses on individual athletes,” said R. Gerald Turner, the commission's co-chairman and president of Southern Methodist University. “We continue to believe that universities need to treat athletes fairly and equitably, and for third parties to use them in commercial products and advertisements violates that principle.”

Testifying before the commission, Wallace I. Renfro, vice president and senior adviser to NCAA President Myles Brand, said that while the NCAA does not approve of the use of names in fantasy games, this “does not appear to tip the scales of amateurism.” In the fight against the commercialization of college athletes -- particularly regarding the CBS fantasy game -- Renfro said that the NCAA, by itself, does not have the legal standing to fight a case on behalf of all athletes at its member colleges. Still, he qualified that the NCAA’s lack of action in this instance did not indicate "a lack of passion" for the issue. Nevertheless, this sentiment did not sit well with some of Commission members.

“I’ve always been suspect of the NCAA because I don’t think they represent what’s best for student-athletes but what’s best for the universities,” said Nick Buoniconti, a commission member, University of Miami trustee, and former National Football League star. “To have such a weak response to this fantasy football league … I’m abhorred by what I’ve read. [The NCAA] should be leading the way.”

Also critical of the NCAA’s response to the CBS Sports case was William E. Kirwan, the panel's other co-chairman and chancellor of the University System of Maryland. He said he would like to see the NCAA take the initiative in organizing universities and athletes to respond to this violation of its bylaws.

While the NCAA might not be able to make a case against companies that run fantasy games, legal experts testifying before the commission argued that colleges and athletes could stand a better chance.

Glenn M. Wong, professor of sports management at the University of Massachusetts at Amherst, said athletes would be the best suited to win such a lawsuit, as many do not sign a right-to-publicity waiver when they enter their collegiate programs. This would give them legal standing to challenge the use of their names and likenesses in fantasy games. More than half of all states recognize a “right to publicity” either by virtue of explicit statutes or common law. Wong said that a class action suit that was filed in one of these states and identified many examples of this commercial usage could potentially garner the most success.

Although individual athletes can sue fantasy game operators for the use of their names, they cannot receive damages from such legal cases. Any proceeds an athlete received from a lawsuit would count as payments based on his or her athletic skill, in violation of NCAA rules. If a case were successful, it would probably be able to require only that the fantasy game operator cease and desist from using an athlete’s name. A successful class action suit could create a precedent, changing the rule for all fantasy game operators.

Kerry Kenny, NCAA Division I Student-Athlete Advisory Committee chair and former Lafayette College basketball player, said fantasy games added no value to college sports. He said they merely allowed fans to live vicariously through athletes. Kenny said a young player might not be able to handle additional heckling from fellow students and fans, adding that no college athlete should hear, “Hey, you screwed up my fantasy team this week.”

Marvin Lewis, associate athletic director at Georgia State University and former Georgia Institute of Technology basketball player, said he and his fellow teammates were generally excited to see their numbers and likenesses in college video games. Unlike fantasy game operators, video game creators have abided by NCAA rules and not used athletes' names in their products. He added that a similar excitement would likely pervade in the event that names were also used. In the instance of likenesses in video games, Lewis said he and his teammates were not concerned about the money but simply enjoyed being a part of the fabric of college athletics and the exposure.

Kenny and Lewis, however, agreed -- as did most members of the Commission -- that third-party businesses should not be allowed to profit from the names and likenesses of college athletes. Both suggested that the education and other assistance provided to them by their supporting institutions was enough to justify the profit -- if any -- that their institutions garnered from their play. Only 19 institutions in Division I recorded a net profit from their college athletics programs in 2006, according to the most recent data from the NCAA.

While all of the recent athletes who testified before the commission -- the panel also included Jeremy Bloom, a former University of Colorado football player, and Craig Krenzel, a former Ohio State University quarterback -- agreed that college athletes should not be paid for their play like professionals, they suggested that the NCAA should consider other methods of supporting its athletes. A few commission members agreed.

“If college athletes’ names and likenesses are to be used in commercial products, advertisements or fantasy sports games, there must be a way to balance the inequities by providing some sort of benefit to athletes through mechanisms other than ‘pay for play,’ ” said Len Elmore, a commissioner and ESPN analyst.

Aside from an "all-in" or "all-out" approach to commercialism in college athletics, Wong offered two additional models for athlete compensation that fall somewhere between the extremes. He suggested the creation of an “exceptional student-athlete fund” in which profits and other money generated from an individual institution's athletics program would be pooled and divided among athletes for explicit purposes. Individual institutions would have to determine who would be eligible for such funds and how it would be divided, whether equitably or based on what an athlete would have earned from promotion. This fund would financially assist athletes with expenses associated with student services, insurance and, potentially, graduate school. Additionally, he suggested a similar model in which institutions could set up a trust fund for certain athletes who showed professional promise; this fund could be drawn on for similar expenses during their career or at its conclusion.

These potential models -- though simply broad suggestions for consideration and discussion -- were met with some resistance by some commission members. Henry Bienen, Northwestern University's president, said that if such measures were taken, it would exacerbate the perception and argument among some commentators that universities already privilege their athletes above other students. He said these models of alternative forms of support -- aside from direct compensation -- would put amateurism at the “tipping point.”

The Knight Commission will meet again in January to further consider the financial issues facing college athletics.

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