Dr. Anastasios Kaburakis

UPDATE IV: Chronicle of Higher Education plug here. We are keeping at it.

UPDATE III: No go. LGC defeats three, tables one. Very prudently so, with the pending litigation analyzed earlier and in our ensuing pieces. LGC met earlier this week, Apr 11 and 12, on important agenda items. Check back here for full April LGC meeting report. And stay tuned, quite a bit coming up on this amateurism policy front in the near future.

UPDATE II: After the January Convention and the Legislative Council (LGC) sending Proposal 2010-26 for further membership review and commentary, the Amateurism Cabinet provided recently (Feb 2011) some options for adoption of the proposal for the membership (and eventually the LGC) to consider. As usual the LGC will have the key decision in its mid-April meeting in which it can adopt, defeat, or amend legislation, forwarding to the Board of Directors (end of April meeting), which will be charged with the decision triggering the final 60-days’ override period carrying the proposal to its final status as adopted, amended (and adopted), or defeated at the end of June.

As our research group is completing two empirical pieces on related policy matters, and the issues herein (per prior scholarship) are pending before the 9th Cir. in cases which our research group forecasted, we will refrain from further commentary at this time.
—
A week before the NCAA Convention in San Antonio, always useful to refresh our review of certain key amateurism policy proposals. As per recent research and implications for practitioners, arguably the  most interesting and controversial (considering related proposals were tabled a few years ago; UPDATE confirming controversial character and significance of proposal on NCAA News here) is 2010-26, coming after the wave of litigation and policy entanglements over student-athletes’ likenesses and in particular their use in college sports video games. For the time being, find the proposal as it stands below, and more analysis and updates to follow subsequent to NCAA Convention sessions. Proposal 2010-26:
(Update, March 13, incl. new amendments’ links)

AMATEURISM — PROMOTIONAL ACTIVITIES — USE OF A STUDENT-ATHLETE’S NAME OR LIKENESS

Status: 60-Day Comment Period         Process Diagram

Intent: To revise the regulations related to use of a student-athlete’s name or likeness for promotions, advertisements and media activities, as specified.

A.    Bylaws: Amend 12.02, as follows:

12.02 DEFINITIONS AND APPLICATIONS

[12.02.1 unchanged.]

12.02.2 Likeness.  Likeness includes an individual’s image, photograph, likeness (whether actual, simulated, photographic, computer-generated, rendered, caricature or otherwise), voice (whether speaking, rapping, singing, altered or otherwise), personality, biographical information and/or other personal identification.

12.02.3 Name.  Name includes an individual’s name, nickname, sobriquet, signature (whether actual, simulated, photographic, computer-generated, rendered, caricature or otherwise) and/or other personal identification.

[12.02.2 through 12.02.5 renumbered as 12.02.4 through 12.02.7, unchanged.]

B.    Bylaws: Amend 12.5.1, as follows:

12.5.1 Permissible.

12.5.1.1 Institutional, Charitable, Education or Nonprofit Promotions.  A member institution or recognized entity thereof (e.g., fraternity, sorority or student government organization), a member conference or noninstitutional charitable, educational or nonprofit agency may use a student-athlete’s name, picture likeness or appearance to support its charitable or educational activities or to support activities considered incidental to the student-athlete’s participation in intercollegiate athletics, provided the following conditions are met:

(a) The student-athlete receives written approval to participate from the promotional activity must be approved in writing by the institution’s director of athletics (or his or her designee who may not be a coaching staff member), subject to the limitations on participants in such activities as set forth in Bylaw 17;

(b) The student-athlete and an authorized representative of the charitable, educational or nonprofit agency must sign a release statement granting permission to use his or her name, likeness or appearance in a manner consistent with the requirements of this section;

(bc) The specific promotional activity or project in which the student-athlete participates does not may involve co-sponsorship, advertisement or promotion by a commercial agency entity, as approved by the institution, subject to the following conditions: other than through the reproduction of the sponsoring company’s officially registered regular trademark or logo on printed materials such as pictures, posters or calendars.  The company’s emblem, name, address and telephone number may be included with the trademark or logo.  Personal names, messages and slogans (other than an officially registered trademark) are prohibited;

(1) The promotion must identify (e.g., via graphics, voice over, text) the commercial entity’s affiliation with the institution, conference or noninstitutional charitable, educational or nonprofit agency (e.g., entity is the official sponsor of the institution or event); and

(2) There is no indication in the makeup, wording or action of the co-sponsorship that the student-athlete endorses or is directly promoting the use of a product or service of the commercial entity.

(c) The name or picture of a student-athlete with remaining eligibility may not appear on an institution’s printed promotional item (e.g., poster, calendar) that includes a reproduction of a product with which a commercial entity is associated if the commercial entity’s officially registered trademark or logo also appears on the item;

(d) The student-athlete does shall not miss class;

(e) All money’s derived from the activity or project go directly to the member institution, member conference or the charitable, educational or nonprofit agency;

(fe) The student-athlete may accept actual and necessary expenses from the member institution, member conference or the charitable, educational or nonprofit agency related to participation in such activity; and

(g) The student-athlete’s name, picture or appearance is not used to promote the commercial ventures of any nonprofit agency;

(hf) Any institutional commercial items with names, or likenesses or pictures of multiple student-athletes (other than highlight films or media guides per Bylaw 12.5.1.7) may be sold only at by the member institution at which the student-athlete is enrolled, the institution’s conference, institutionally controlled (owned and operated) outlets or other institutionally authorized entities (subject to Bylaw 12.5.1.1.1) or outlets controlled by the charitable, educational or nonprofit organization (e.g., location of the charitable or educational organization, site charitable event during the event).  Items that include an individual student-athlete’s name, picture or likeness (e.g., name on jersey, name or likeness on a bobble-head doll), other than informational items (e.g., media guide, schedule cards, institutional publications), may not be sold; and

(i) The student-athlete and an authorized representative of the charitable, educational or nonprofit agency sign a release statement ensuring that the student-athlete’s name, image or appearance is used in a manner consistent with the requirements of this section.

12.5.1.1.1 Sale of Institutional Commercial Items. A commercial entity may sell an institutional commercial item that includes the names and/or likenesses of multiple student-athletes, provided the following conditions are met:

(a) The sale of the commercial item is approved by the institution’s director of athletics (or his or her designee who may not be a coaching staff member);

(b) The commercial item must be considered to be an institutional item and must include the name of the institution.  Two or more institutions may collectively agree to authorize or license a commercial item that includes the names or likenesses of multiple student-athletes [any commercial item authorized for sale by the institution (or institutions) may be considered to be an institutional commercial item];

(c) The involved student-athletes have signed a release statement granting permission to use their names or likenesses in a manner consistent with the requirements of this section;

(d) The involved student-athletes shall not directly endorse or promote the use of the commercial item; and

(e) The commercial item does not involve or relate in any way to alcoholic beverages, tobacco products or an organization that is involved with or promotes gambling.

12.5.1.1.12 Promotions Involving NCAA Championships, Events, Activities or Programs.  The NCAA [or third part acting on behalf of the NCAA (e.g., host institution, conference, local organizing committee)] may use the name or picture likeness of an enrolled student-athlete to generally promote NCAA championships or other NCAA events, activities or programs.

12.5.1.1.23 Promotions Involving Commercial Locations/Sponsors.  A member institution, a member conference or a charitable, educational or nonprofit organization may use the appearance, name or picture likeness of an enrolled student-athlete to promote generally its fundraising activities at the location of a commercial establishment, provided the commercial establishment is not which may be a co-sponsor of the event activity, provided and the student-athlete does not directly promote the sale of a commercial product or service in conjunction with the fundraising activity. A commercial establishment would become a co-sponsor if the commercial establishment either advertises the presence of the student-athlete at the commercial location or is involved directly or indirectly in promoting the activity.

[12.5.1.1.3 through 12.5.1.1.4 renumbered as 12.5.1.1.4 through 12.5.1.1.5, unchanged.]

12.5.1.1.5 Schedule Cards.  An advertisement on an institution’s wallet-size playing schedule that includes the name or picture of a student-athlete may include language other than the commercial product’s name, trademark or logo, provided the commercial language does not appear on the same page as the picture of the student-athlete.  A violation of this bylaw shall be considered an institutional violation per Constitution 2.8.1; however, such a violation shall not affect the student-athlete’s eligibility.

[12.5.1.1.6 unchanged.]

[12.5.1.2 through 12.5.1.3 unchanged.]

12.5.1.4 Congratulatory Advertisement or Promotion.  It is permissible for a student-athlete’s name or picture, or the group picture of an institution’s athletics squad, to appear in an advertisement of a particular business, commercial product or service, provided:

(a) The primary purpose of the advertisement is to publicize the sponsor’s congratulations to the student-athlete or team;

(b) The advertisement does not include a reproduction of the product with which the business is associated or any other item or description identifying the business or service other than its name or trademark;

(c) There is no indication in the makeup or wording of the advertisement that the squad members, individually or collectively, or the institution endorses the product or service of the advertiser;

(d) The student-athlete has not signed a consent or release granting permission to use the student-athlete’s name or picture in a manner inconsistent with the requirements of this section; and

(e) If the student-athlete has received a prize from a commercial sponsor in conjunction with participation in a promotional contest and the advertisement involves the announcement of receipt of the prize, the receipt of the prize is consistent with the provisions of Bylaw 12.5.2.3.3 and official interpretations.

An advertisement or promotion by a commercial entity may include a student-athlete’s name or likeness (e.g., competition video footage, competition photographs), provided the following conditions are met:

(a) The advertisement or promotion is approved by the institution’s director of athletics (or his or her designee who may not be a coaching staff member);

(b) The student-athlete has signed a release statement granting permission to use his or her name or likeness in a manner consistent with the requirements of this section;

(c) The student-athlete does not miss class;

(d) The advertisement or promotion identifies (e.g., via graphics, voice over, text) the commercial entity’s affiliation with the institution, conference or the NCAA (e.g., entity is the official sponsor of the institution or event);

(e) There is no indication in the makeup, wording or action of the advertisement or promotion that the student-athlete endorses or is directly promoting the use of a product or service of the commercial entity;

(f) If a student-athlete’s name is used in the advertisement or promotion, a reference to the student-athlete’s institution must be used immediately before or after his or her name; and

(g) The advertisement or promotion does not involve alcoholic beverages, tobacco products or an organization that is involved with or promotes gambling.

12.5.1.4.1 Effect of Violation.  A violation of this bylaw shall be considered an institutional violation per Constitution 2.8.1; however, the student-athlete’s eligibility shall not be affected.

[12.5.1.5 through 12.5.1.6 unchanged.]

12.5.1.7 Promotion by Third Party of Highlight Film, Video or Media Guide.  Any party other than the institution or a student-athlete (e.g., a distribution company) may sell and distribute an institutional highlight film or video or an institutional or conference media guide that contains the names and pictures of enrolled student-athletes only if:

(a) The institution specifically designates any agency that is authorized to receive orders for the film, video or media guide;

(b) Sales and distribution activities have the written approval of the institution’s athletics director;

(c) The distribution company or a retail store is precluded from using the name or picture of an enrolled student-athlete in any poster or other advertisement to promote the sale or distribution of the film or media guide; and

(d) There is no indication in the makeup or wording of the advertisement that the squad members, individually or collectively, or the institution endorses the product or services of the advertiser.

[12.5.1.8 through 12.5.1.9 renumbered as 12.5.1.7 through 12.5.1.8, unchanged.]

C.    Bylaws: Amend 12.5.2, as follows:

12.5.2 Nonpermissible.

12.5.2.1 Advertisement and Promotions Subsequent to Enrollment.  After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual:

(a) Accepts any remuneration for or permits the use of his or her name or picture likeness to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind, except as permitted in Bylaws 12.5.1.1 and 12.5.1.4, or

[Remainder of 12.5.2.1 unchanged.]

12.5.2.2 Use of a Student-Athlete’s Name or Picture Likeness without Knowledge or Permission.  If a student-athlete’s name or picture likeness appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to advertise or promote a commercial product or service sold by an individual or agency without the student-athlete’s knowledge or permission in a manner contrary to the requirements of Bylaw 12.5.1.4, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.  Such steps are not required in cases in which a student-athlete’s photograph is sold by an individual or agency (e.g., private photographer, news agency) for private use.

12.5.2.3 Specifically Restricted Activities.  A student-athlete’s involvement in promotional activities specified in this section is prohibited.

12.5.2.3.1 Name the Player Contest.  A student-athlete may not permit use of his or her name or picture in a “name the player” contest conducted by a commercial business for the purpose of promoting that business.

12.5.2.3.2 Athletics Equipment Advertisement.  A student-athlete’s name or picture may not be used by an athletics equipment company or manufacturer to publicize the fact that the institution’s team uses its equipment.

[12.5.2.4 renumbered as 12.5.2.3, unchanged.]

D.    Bylaws: Amend 12.5.3, as follows:

12.5.3 Media Activities.

(a) During the Playing Season. During the playing season, a student-athlete may appear on radio and television programs (e.g., coaches’ shows) or engage in writing projects when the student-athlete’s appearance or participation is related in any way to athletics ability or prestige, provided the student-athlete does not receive any remuneration for the appearance or participation in the activity. The student-athlete shall not make any endorsement, expressed or implied, of any commercial product or service. The student-athlete may, however, receive actual and necessary expenses directly related to the appearance or participation in the activity. A student-athlete participating in media activities during the playing season may not miss class, except for class time missed in conjunction with away-from-home competition or to participate in a conference-sponsored media day.

(b) Outside the Playing Season. Outside the playing season, a A student-athlete may participate in media activities (e.g., appearance on radio, television, in films or stage productions or participation in writing projects) when such appearance or participation is related in any way to athletics ability or prestige, provided the student-athlete is eligible academically to represent the institution, and he or she does not receive any remuneration for such appearance or participation and he or she is not portrayed in a manner as promoting or directly endorsing the sale or use of a commercial product or service. The student-athlete may not make any endorsement, expressed or implied, of any commercial product or service. The student-athlete may, however, receive legitimate and normal expenses directly related to such appearance or participation, provided the source of the expenses is the entity sponsoring the activity.  A student-athlete participating in media activities may not miss class, except for class time missed in conjunction with away-from-home competition or to participate in a conference-sponsored media day.

12.5.3.1 Use of a Student-Athlete’s Name of Likeness by a Media Entity in Conjunction with Coverage of Intercollegiate Competition and Other Activities.  A media entity, or its authorized distributor, may include a student-athlete’s name or likeness in its coverage and promotion of intercollegiate competition and other activities incidental to his or her participation in intercollegiate athletics, provided the student-athlete is not portrayed in a manner as promoting or directly endorsing the sale or use of a commercial product or service.  A media entity may feature a student-athlete’s name or likeness in the course of its journalistic coverage of news (and the promotions of such coverage) related to the student-athlete or his or her institution or conference or the NCAA.

Source: NCAA Division I Amateurism Cabinet

Effective Date: August 1, 2011

Proposal Category: Amendment

Topical Area: Amateurism

Rationale: This proposal is a result of the work of the NCAA Task Force on Commercial Activity in Division I Intercollegiate Athletics. This legislation will help to achieve the balance in intercollegiate athletics that is needed with regard to commercial activities and the use of student-athlete’s names or likeness. This proposal was developed in the spirit of balancing the importance of commercial sponsors in maintaining a comprehensive athletics program and the importance of protecting student-athletes from being exploited by commercial entities. This proposal provides an institution, conference or the NCAA flexibility in developing relationships with commercial entities that benefit athletics programs, while maintaining the principle prohibiting commercial exploitation of student-athletes. The Amateurism Cabinet will continue to evaluate and monitor issues related to commercialism and the use of student-athletes’ names and likenesses and will continue to make policy or legislative recommendations related to such uses. The NCAA Academic and Membership Affairs staff and the Legislative Review and Interpretations Committee will continue to provide interpretations related to student-athlete amateurism. The governance structure ultimately serves as a check on the consistency of such interpretations.

Estimated Budget Impact: None.

Impact on Student-Athlete’s Time (Academic and/or Athletics): None.

History

Update: Kanter wrap-up here.

More subsequent to the NCAA Convention this week.

UPDATE: Tuesday, April 13, 2010

Impressive, and congrats to all involved! The delayed enrollment portion of 09-22 indeed suspended for 2010-2011. Solid work from many constituents in order to maintain the crucial balance embedded in 09-22. Outstanding and inspired work from Amateurism Cabinet and Legislative Council (LGC) members. Also major kudos and congrats to the several coaches associations, compliance professionals, and many stakeholders who presented solid arguments and precedent/research-based data that would build a strong case for the LGC to agree on amending 09-22 and suspending the delayed enrollment portion. And a note of recognition to a group that rarely receives praise, but most frequently is chastised and criticized in popular media: the national office staff… Their efforts should be appreciated by all involved parties, in streamlining the legislative process, engaging in constant educational and communication outreach efforts, learning and teaching key constituents (and each other) in the membership’s usually mercurial course of policy-making. There are good, balanced, hard-working, highly motivated people in Indy right now, trying to maintain the extremely delicate balance between the Association’s principles and contemporary reality, which often just does not allow for maintaining the traditional principles this miracle of higher education and sport entailed from its creation through the 20th Century.
As always, a word of caution to keep the balance: this means that recruiting will be fierce this year (especially during what is left in the spring and summer recruiting periods with 2010 prospects who might have been untouchable until now but will be pursued even for this Aug enrollment) and going into the 2010-2011 season (with coaches further aspiring at recruiting-friendly amendments during the 10-11 legislative cycle). Hopefully coaches will remain constrained by their values and upholding the Association’s fundamental principles. If they do select to go the route of cut-throat intercollegiate athletics recruiting and competition in a take-no-prisoners industry, they may get their wishes fulfilled… On one hand, what most everyone agreed on, they will be able to recruit (pre-HS graduation) kids that will be immediately eligible even though they did play professionally, as long as the 12.02.4 provisions and expenses’ aspects analyzed below are in place. On the other hand, most remarkably, it will not even matter if currently recruited or now recruitable prospects graduated HS as early as the summer of 2006 (!) when they were 16, i.e. in the case of UK soccer SAs, and played pro/semi-pro for the past 4-5 seasons, but without going above and beyond actual and necessary expenses and abiding by 12.02.4 (worth here to put another plug-in to our mystery colleague at the Bylaw Blog for simply outstanding work, truly brilliant and insightful posts, for a creation that the world of Compliance and the industry needed for some time… keep the mystery and solid contributions going).
Shrewd coaches will start today, if not already, to look at such prospects, research their particular academic and amateurism conditions, encourage them to immediately register with the Eligibility Center, and we could be looking at an amazingly competitive recruiting and playing season in 2010-2011, and possibly beyond… This year’s gate might involve hard to control floods in ensuing years, even after a modified proposal on delayed enrollment and organized competition attempting to keep the balance between deregulation and upholding amateurism/institutional control/SA welfare/competitive equity principles in the 2010-2011 cycle.
So go crazy in what is left with this year’s recruiting period, find your athletically seasoned and hopefully academically prepared difference-makers, continue to provide the exquisite opportunities for young athletes to experience the true blessing that is higher education in the US, enjoy the process of building bridges between the worlds, have fun… and please recruit responsibly!

For a retrospect on Proposal 2009-22, refer to earlier entries here.

After considerable deliberation, membership feedback, and Amateurism Cabinet recommendations, the Legislative Council (April 12-13, Indy meetings) Read more…

Next to the amateurism developments elaborated below, it is good to review the article on international student-athletes in the Fall edition of NCAA’s Champion Magazine here. Also interesting to peruse, a recent article on ESPN here, and a very recent one from SI here.

Proposal 2009-22 progress in 2010 and commentary here.

UPDATE III: As anticipated, Proposal 2009-22 was adopted (note: Prop. 2009-22 amendments vote tally; pp 4, 9,  10) last Thursday, January 14, 2010, by the DI Legislative Council, pending Board of Directors review.  There were significant last minute amendments pertaining to the effective date for tennis SAs, now set for Aug. 1, 2011, and the exclusion of skiing from the scope of the proposal.
Prior to the Legislative Council’s voting sessions, there were some additional concerns expressed by stakeholder groups, such as the American Swimming Coaches Association (p.15; Skiing Committee’s position on pp 21-22), recommending defeat or exclusion from the scope of the proposal.
Congratulations to all involved in passing this important legislative piece. During the seven months leading to Aug. 1, 2010 (effective date but for tennis SAs), a broad and in-depth membership educational effort will be needed for coaches, compliance staff, and other athletics administrators to fully realize recruiting opportunities and prepare for new challenges in this evolving era. As elaborated below, more “difference-makers” will be within coaches’ recruiting plans, thus an expansive research effort and cooperation between all constituents will be necessary to retrieve good data and as much sport-specific, case-by-case, useful information as possible on, e.g. allowable actual and necessary expenses in each region and sport.

Many PSAs, especially international prospects, and their families will be relieved to read these lines, as will be the several coaches, compliance personnel, and athletic directors who observed SAs serving withholding conditions and sitting out games due to the fact they played at a high level of competition, albeit without compensation, contracts, or agents, rather due to their country of origin sport system structure. The “no more vicarious professionalization” message disseminated by the membership, through the Amateurism Cabinet, to the Legislative Council, Board of Directors, and back to the membership soon, needs to be greatly valued, and constantly monitored in regard to abuses and possible attempts to circumvent its spirit. Abuses may entail not disclosing important financial data pertaining to PSAs preenrollment participation on high level club teams, or even more alarmingly, not making an effort to investigate and document the true value of, e.g. an IPSAs preenrollment participation in a top-level league or event in their country and region of origin. That is, IPSAs may very well be within the coverage of Prop. 2009-22 by merely playing on the top professional competition in their country and continent, however they may also go beyond the threshold (see below) because they received above and beyond permissible expenses under Bylaw 12. Hence, consistent research by this Faculty group and collaboration between member institutions, conferences, Amateurism Certification and Eligibility Center staff, SAR and Enforcement staff, and hopefully international sport federations and regional sport governing bodies, will allow for a clearer picture in a currently murky plane for recruiting coaches, administrators, and most importantly PSAs and their families. Figures are going to be needed, and data-driven policy is best attained through research such as the one this Faculty-Industry collaborative introduced years ago as elaborated below. Such collaborative research and policy-drafting projects need to carry on the efforts for balanced and informed policy and continued expansion of opportunities at trying times for PSAs and families all over the globe, for the utility and benefit of all involved in a fair manner.

Coaches, you may now seek your “difference-makers”… and please behave.

Read more…

Wonderful… more good food for writing and thinking purposes…

Alex and other colleagues from Portugal, please take this and run for our enjoyment (non-Sport&EU members, consider joining the listserve to receive responses and thoughtful academic discourse).

There goes the establishment clause in EC Treaty (somewhat), importantly the services clause, and the principle of the Country of Origin… In agreement re: balanced tone and limitations to justified restrictions, however it is an interesting blow for UK-based operators (here via Gibraltar)… Let’s monitor. Some links, pertinent sections of today’s ECJ judgment, a manuscript, and a comparative outline of interest below:

GamingLaw link here, contrast here.

The decision (C-42/07) and selected portions:

65…

First, Santa Casa’s long existence, spanning more than five centuries, is evidence of that body’s reliability. Second, the Portuguese Government points out that Santa Casa operates under its strict control. The legal framework for games of chance, Santa Casa’s statutes and government involvement in appointing the members of its administrative organs enable the State to exercise an effective power of supervision over Santa Casa. That system, based on legislation and Santa Casa’s statutes, provides the State with sufficient guarantees that the rules for ensuring fairness in the games of chance organised by Santa Casa will be observed.

66 In that regard, it is apparent from the national legal framework, set out in paragraphs 12 to 19 of the present judgment, that the organisation and functioning of Santa Casa are governed by considerations and requirements relating to the pursuit of objectives in the public interest. The Gaming Department of Santa Casa has been given the powers of an administrative authority to open, institute and prosecute proceedings involving offences of illegal operation of games of chance in relation to which Santa Casa has the exclusive rights.

67 In that connection, it must be acknowledged that the grant of exclusive rights to operate games of chance via the internet to a single operator, such as Santa Casa, which is subject to strict control by the public authorities, may, in circumstances such as those in the main proceedings, confine the operation of gambling within controlled channels and be regarded as appropriate for the purpose of protecting consumers against fraud on the part of operators.

69…

the mere fact that an operator such as Bwin lawfully offers services in that sector via the internet in another Member State, in which it is established and where it is in principle already subject to statutory conditions and controls on the part of the competent authorities in that State, cannot be regarded as amounting to a sufficient assurance that national consumers will be protected against the risks of fraud and crime, in the light of the difficulties liable to be encountered in such a context by the authorities of the Member State of establishment in assessing the professional qualities and integrity of operators.

The paper for interested parties here.

The comparative piece from SLA here.

More fun material for your reading pleasure and profound contemplation later this week.

Enjoy a fabulous Fall.

Tassos

New and recent NCAA Policy Proposals

Pertinent LSDBi Links and resources below:

(Pending Proposal Draft for Competition with Professionals and Definition of Professional Team, namely the reconsideration of withholding conditions for prospects who competed pre-enrollment on teams that featured professionals, but did not themselves receive above and beyond permissible expenses per Bylaw 12, as well as treatment of post-first-opportunity-to-enroll amateurism matters, will be posted herein as soon as it becomes available. Related Amateurism Cabinet Reports from February and June 2009 meetings are important to review.)

DI Amateurism:

2008-79-1

AMATEURISM — INVOLVEMENT WITH PROFESSIONAL TEAMS — PROFESSIONAL BASKETBALL DRAFT — FOUR-YEAR COLLEGE STUDENT-ATHLETE — MEN’S BASKETBALL — DECLARATION TO RESUME INTERCOLLEGIATE PARTICIPATION BY THE END OF MAY 8

Status: Adopted – Final         Process Diagram

Intent: To amend Proposal No. 2008-79 to specify that, in men’s basketball, an enrolled student-athlete may enter a professional league’s draft one time during his collegiate career without jeopardizing eligibility in the sport, provided the student-athlete requests that his name be removed from the draft list and declares his intent to resume intercollegiate participation no later than the end of May 8 of the year in which the draft will occur; the student-athlete’s declaration of intent is submitted in writing to the institution’s director of athletics; and the student-athlete is not drafted.

Bylaws: Amend 12.2.4.2.1, as follows:

12.2.4.2.1 Exception — Professional Basketball Draft — Four-Year College Student-Athlete.

12.2.4.2.1.1 Men’s Basketball.  In men’s basketball, an enrolled student-athlete may enter a professional league’s draft one time during his collegiate career without jeopardizing eligibility in that sport, provided:

(a) The student-athlete requests that his name be removed from the draft list and declares his intent to resume intercollegiate participation by no later than the end of May 8 of the day prior to the first day of the spring National Letter of Intent signing period for the applicable year in which the draft will occur;

(b)  The student-athlete’s declaration of intent is submitted in writing to the institution’s director of athletics; and

(c) The student-athlete is not drafted.

12.2.4.2.1.2 Women’s Basketball.  In women’s basketball, an enrolled student-athlete may enter a professional league’s draft one time during his or her collegiate career without jeopardizing eligibility in that sport, provided the student-athlete is not drafted by any team in that league and the student-athlete declares his or her intention to resume intercollegiate participation within 30 days after the draft. The student-athlete’s declaration of intent shall be in writing to the institution’s director of athletics.

Source: Atlantic Coast Conference.

Effective Date: August 1, 2009

Proposal Category: Amendment-to-Amendment

Topical Area: Amateurism

Rationale: Concern has been expressed by some that the timeline provided in Proposal No. 2008-79 does not provide student-athletes with sufficient time to make informed decisions in the pursuit of a professional career. The NBA has recently changed its policies to permit its teams to conduct individual tryouts beginning in late April. In that regard, extending the deadline to May 8 is more appropriate and should provide a student-athlete sufficient time to gather information about his draft status. Further, it will also allow institutions time to make recruiting decisions and, if necessary, sign prospective student-athletes to financial aid agreements prior to the conclusion of the National Letter of Intent spring signing period.

Estimated Budget Impact: None.

Impact on Student-Athlete’s Time: None.

2008-79

AMATEURISM — INVOLVEMENT WITH PROFESSIONAL TEAMS — PROFESSIONAL BASKETBALL DRAFT — FOUR-YEAR COLLEGE STUDENT-ATHLETE — MEN’S BASKETBALL

Status: Adopted – Final         Process Diagram

Intent: In men’s basketball, to specify that an enrolled student-athlete may enter a professional league’s draft one time during his collegiate career without jeopardizing eligibility in the sport, provided the student-athlete requests that his name be removed from the draft list and declares his intent to resume intercollegiate participation by the end of the day prior to the first day of the spring National Letter of Intent signing period for the applicable year; the student-athlete’s declaration of intent is submitted in writing to the institution’s director of athletics; and the student-athlete is not drafted.

Bylaws: Amend 12.2.4.2.1, as follows:

12.2.4.2.1 Exception — Basketball — Four-Year College Student-Athlete.

12.2.4.2.1.1 Men’s Basketball. In men’s basketball, an enrolled student-athlete may enter a professional league’s draft one time during his collegiate career without jeopardizing eligibility in that sport, provided:

(a) The student-athlete requests that his name be removed from the draft list and declares his intent to resume intercollegiate participation by the end of the day prior to the first day of the spring National Letter of Intent signing period for the applicable year;

(b) The student-athlete’s declaration of intent is submitted in writing to the institution’s director of athletics; and

(c) The student-athlete is not drafted.

12.2.4.2.1.2 Women’s Basketball. In women’s basketball, An an enrolled student-athlete in basketball may enter a professional league’s draft one time during his or her collegiate career without jeopardizing eligibility in that sport, provided the student-athlete is not drafted by any team in that league and the student-athlete declares his or her intention to resume intercollegiate participation within 30 days after the draft. The student-athlete’s declaration of intent shall be in writing to the institution’s director of athletics.

Source: NCAA Division I Board of Directors

Effective Date: August 1, 2009

Proposal Category: Amendment

Topical Area: Amateurism

Rationale: Currently, men’s basketball student-athletes have 30 days after the NBA draft to indicate their intent to return to intercollegiate participation. As a result, such student-athletes have a three month period between April and July during which to make a decision. Such an extended time period is intrusive on academic performance during the spring and increases the potential for outside individuals to have a negative influence on the well-being of student-athletes. Establishing a shorter time frame by which student-athletes must withdraw from the draft and declare their intent to resume intercollegiate participation will encourage student-athletes to refocus on academics sooner and lessen the potential for violations of NCAA rules that will jeopardize their amateur status. In addition, the proposed time frame will assist coaches in roster planning. The proposed deadline will still provide sufficient time for student-athletes to declare their draft intentions. Professional teams devote significant resources to in-season scouting and film evaluation and sufficient information regarding draft projections is available before the proposed deadline to assist student-athletes with making an informed decision regarding an early departure to pursue a professional career.

Estimated Budget Impact: None.

Impact on Student-Athlete’s Time: None.

Position Statement(s):
Amateurism Cabinet The cabinet expressed concern that the timeline provided in the proposal would not provide student-athletes with sufficient time to make an informed decision about their futures. The cabinet discussed whether an early- to mid-May deadline ( e.g., May 8 ) would be more appropriate as it would provide student-athletes more time to gather information about their draft status and would still allow institutions time to sign prospective student-athletes to athletics tenders prior to the conclusion of the National Letter of Intent spring signing period.

Fascinating.
Enjoy and keep monitoring.

http://europa.eu/rapid/pressReleasesAction.do?reference=CJE/09/65&format=HTML&aged=0&language=EN&guiLanguage=en

http://www.courthousenews.com/2009/07/17/EU_Court_Adviser_Backs_Soccer_Development_Fees.htm

http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-325/08

The outcome of the remarkable story of Sweden’s wrestler who rejected his bronze medal in protest.
http://www.tas-cas.org/d2wfiles/document/3016/5048/0/20090216111733485.pdf

Here is the press release:

http://www.tas-cas.org/en/infogenerales.asp/4-3-3012-1092-4-1-1/5-0-1092-15-1-1/

The CAS dismisses the appeal filed by the national Olympic Committee of Sweden & Ara Abrahamian

Lausanne, 13 February 2009 –

The Court of Arbitration for Sport (CAS) has dismissed the appeal filed by the National Olympic Committee of Sweden (SOC) and the Swedish wrestler, Ara Abrahamian, against the International Olympic Committee (IOC), whose Executive Board ruled on 16 August 2008 to disqualify Ara Abrahamian from the men’s Greco-Roman wrestling, 84kg event, and to exclude him from the Games.

The SOC and Ara Abrahamian sought, inter alia, the return of the bronze medal won by the athlete which he took off and placed on the floor before walking away from the medal ceremony, which was still in progress.

The CAS confirmed that the behaviour of the athlete at the medal ceremony was in breach of the Olympic Charter and of the IOC Protocol Guide.  Such behaviour was not justified, even though the athlete had the personal conviction that several sporting decisions related to his semi-final at the Olympic Games were not correct.  The CAS concluded that the decision of the IOC Executive Board was not disproportionate in the circumstances.

Sport&EU, The Association for the Study of Sport and the European Union can be found at http://www.sportandeu.com

(Full archive available upon request)

This interesting link comes from Greece.
(The factual background is intriguing, reminding us why many Greeks are working far from the Motherland!)
Therein, we read that there was a change in the Transportation Code, which apparently did away with ELPA’s influence (heretofore the sole proprietor for both state licensed races and the one who would issue the licenses… something like FIA of old in a way…) and mentioned that licensed motorsports’ races could be conducted after the acknowldgment and preapproval of a Greek motorsports federation (here it was focusing on motorcycle racing)… which the article ironically points out doesn’t exist at this point, and it further ironically points out that it would be too much to expect from the Greek state to recognize officially such a federation, which I gather was what MOTOE was aspiring to be…

So I reckon we’ll be awaiting the news from the administrative court of appeals…

–

As a sequel, please consider reviewing the elaborate inquiry of MOTOE by Sam Miettinen (2008). Policing the boundaries b/t regulation and commercial exploitation: Lessons from the MOTOE case. International Sports Law Journal. 3/4, 13-18.

Perhaps all this fascinating theory could practically lead to a very attractive result for many:
Creation of many separate regulatory bodies of review, ADR mechanisms for each sport or sport-related commercial practice, and several different means of testing the regulatory monopoly entrusted by states to a single entity, which in most cases heretofore also possesses commercial dominance (indeed, with at least a risk of abuse, which would be sufficient under MOTOE for a violation of Arts 82/86). E.g. an independent body would decide on appeal the decisions by ELPA to reject licensing applications to organize motor sports events, another (could it be the same, i.e. Supreme Sport Court/Arbitral Tribunal that some states provide for?) independent body could serve the same purpose for rejected licenses for sport betting offices issued by the state-run/supported monopoly regulator, etc. Suffice to say that the ECJ would again be the ultimate “decider” in cases e.g. of direct state aid to clubs and sport entities, thus distorting competition and prima facie violating EU Competition Law, with the defenses to be tested.

Thus, the call is open for colleagues to become more actively involved with state actors and sport governing bodies, in pursuit of instrumental appointments that would assure objective, transparent, and non-discriminatory appellate review that imposes obligations and restrictions on the traditional regulatory monopolies, some of whom may eventually consider the separation of regulatory/commercial activities.

Enjoy
Tassos

On Sun, Nov 23, 2008 at 6:30 PM, Tassos Kaburakis wrote:

I strongly encourage you to review the ECJ Grand Chamber decision in

C-49/07 Motosykletistiki Omospondia Ellados NPID (MOTOE) v Elliniko Dimosio, 1 July 2008

as well as the excellent as usual commentary by Stephen Weatherill in the Special Addendum to ISLJ 2008/3-4 (“Article 82 and sporting ‘conflict of interest’: the judgment in MOTOE”). Prof. Weatherill therein discusses EC Article 86 application as well, which is also dealt in Kaburakis, A. (2008) International Comparative Sport Law – The US and EU systems of sport governance: Commercialized v. socio-cultural model, Competition and Labor Law, International Sport Law Journal, 3-4, 108-127 (in pp 118. 126-127), and in Dedes, P. (2005). The special liquidation of the athletic joint-stock companies (for translation and a full bibliography from the ISLJ comparative article please advise). Links pertinent to the case and related ECJ cases follow below.

Quick points:

– The theory:

Arts 82 and 86 are violated where undertakings exercise special or exclusive rights and abuse dominant positions. Further, said Arts. are violated where such special or exclusive rights may create a situation in which undertakings are led to commit abuses, and where such rights give rise to a risk of an abuse of a dominant position.

– The application:

Even though as we recognise after Meca-Medina not all ISFs/NGBs restrictive policies are violating the EC Treaty per se, the burden is rather heavy, as confirmed and emphatically declared in the MOTOE case. And even though the separation of the regulatory authority from the commercial activity (see FIA example) is not mandated, it most certainly would minimise risks of abuse.

Objective, transparent, and non-discriminatory criteria would serve well, provided of course they would be so deemed after a court’s review of the restrictive practice (i.e. denial of competitor’s license to organise competing events, denial to operate sport betting offices, etc). Most importantly, after the member state’s exclusive rights allowed the (at the very least risk of) abuse by the state-licensed monopoly, some form of Due Process, a review, and means of challenging a negative decision need to be provided.

This obviously would be terrifically applied to many restrictive policies by a sport governing organisation. Some contemporary cases in re: sport betting operators challenging state monopolies are forthcoming (after Gambelli, Placanica, and Commission v Italian Republic) and links follow below.

Further many of the heretofore litigated, settled, or unsettled restrictive practices in sport would be dealt with interestingly under this lens and the truly heavy burden as verified in MOTOE.

Lastly, the mostly unexplored in scholarship application of Arts 86, 87 et seq. now command more scholars’ attention. What is examined in Kaburakis (2008, above) and elaborated in Dedes (2005, above) deals with the traditional, now, practice of state “salvation” of financially struggling clubs (motivated frequently by political interests and the long-established history of such clubs that would render non-assistance a political suicide, see samples from Greece, Spain, France, and unsuccessful ones in Italy), thus otherwise violating EU Competition policy, but passing muster due to arguable promotion of the general economic interest (86 par 2) or on socio-cultural grounds (87 par 2).

It would be outstanding if the ECJ would preemptively treat state aid to clubs as well, yet this would be beyond the scope of MOTOE. Nonetheless, MOTOE is the closest we’ve ever come to such application of competition distortion defenses under Art 86 et seq. And indeed, these prospective defenses are pretty strict and impose a heavier burden of proof than what ISFs and state entities have been used to in the past.

The one thought we may ponder is:

– Considering the contemporary financial problems in so many sectors of the economy, thus including sport, clubs (especially the ones which feature the administrators who unfortunately decided to once again overspend beyond their means) may assume the role of political “beggars” (if one wishes to attach such commentary in the cases of US and EU Auto manufacturers, airlines, etc.).

If so, considering MOTOE, and the recent history of ECJ Jurisprudence, we should be able to argue that more competition litigation should be forthcoming by adversely affected competitors, with substantial likelihood of success, in view of MOTOE and Meca-Medina.

Final word of optimism:

The Advocate General Juliane Kokott provides us with confirmation that a combination of EU and US legal education offers invaluable service to our field. For our students and colleagues reference, her bio available here:

The judgment:

A legal person whose activities consist not only in taking part in administrative decisions authorising the organisation of motorcycling events, but also in organising such events itself and in entering, in that connection, into sponsorship, advertising and insurance contracts, falls within the scope of Articles 82 EC and 86 EC. Those articles preclude a national rule which confers on a legal person, which organises motorcycling competitions and enters, in that connection, into sponsorship, advertising and insurance contracts, the power to give consent to applications for authorisation to organise such competitions, without that power being made subject to restrictions, obligations and review.

Some links of interest:

A pending case we need to monitor is

C-258/08 Ladbrokes Betting & Gaming Ltd and Ladbrokes International Ltd v Stichting de Nationale Sporttotalisator

and suggested ECJ research links here, here, and here.

Sincere wishes

Tassos