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

More subsequent to the NCAA Convention this week.

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) will proceed with the necessary review of the membership override request and may decide to follow the recommendation of the Amateurism Cabinet (supported by several sports’ governing actors, coaches associations, and member institutions), deferring the effective date of the delayed enrollment portion of the legislation to one year later than the original adoption.

The legislative process diagram here, and the 09-10 calendar here.

Some interesting findings at this point and whilst the proposal follows its way through the legislative cycle:

1) As many would foresee at the advent of this proposal, we do have an override request. Ironically, however, considering past history, the override did not target the deregulation portion, i.e. the preemptive treatment of prospects who would have been in the past deemed professionals due to the surrounding circumstances of their sport participation (frequently on clubs playing at the top professional level prior to High School (HS) graduation but w/o otherwise compromising amateur status but for i.e. being teammates of professional players).

2) The override targeted the delayed enrollment portion of the legislation (Bylaw 14.2.3.2 et seq.), which the several policy-drafting actors and membership feedback framed in a way to counterbalance the above deregulation direction. In essence, other than the three sports treated separately in Prop. 2009-22 (men’s ice hockey, skiing, and tennis), every other sport would see prospects, who participated in organized competition following the “one-year grace/testing the waters period” subsequent to post HS graduation, charged with a season of eligibility as well as having to red-shirt their first year in residence. The major criticism revolved around a) cases of early HS graduation (such as prospects from the UK and other educational systems where HS graduation can come as early as the age of 16) and b) cases of international and Olympic-level competition training post-HS graduation and pre-enrollment at a DI member institution.
This particular focus of the override for most submissions, has been a sign that there was legitimate concern over the negative impact on select classes of prospects, as well as certain sports featuring more absolute numbers of such student-athletes. On the other hand, others hold that this is another confirmation that a growing number of the membership wants both deregulation, as well as the benefit of the doubt whilst recruiting (“have the cake and eat it too” commentary).

3) Considering the conflicting arguments above and the always difficult balancing act that the proverbial sausage-making process of policy entails, it appears that there is significant support for “giving it a year” (delaying the commencement of the effective date) to tease out any membership reactions and after some time has elapsed consider new regulation perhaps amending the delayed enrollment portion of the legislation. Conceivably, the ones who requested an override on that note, would be satisfied. Conversely, the few that might have still held that the deregulation portion fundamentally compromises DI Amateurism (“failed professionals” arguments of the past), or any voices to defeat Prop. 2009-22 altogether, would still like to see 2009-22 reach the DI membership vote on the floor of the 2011 Convention, and enter the maelstrom of the fun vote-clicker where as recent history shows… anything goes. However, the only way to see that taking place would be for both the Legislative Council and the Board of Directors to assume a passive (or others would deem it consistent with prior adoption decisions) stance in the upcoming April meetings. At this time, this appears highly unlikely, and many feel that we are approaching another modification and yet another 60-day override period, which would take us into the end of June, at which point sufficient time will have elapsed to truly gauge where the membership stands on 2009-22 and everything it entails. This latter scenario appears convenient and prudent, considering the above comments and the fact that, possibly, had the ones who requested the override known that there would be a one-year deferment of its effective date, they would not have  submitted the legislation override requests in the first place. Of course, during that second 60-date override period… anything can happen, such as more voices from membership’s old-time proponents of an original interpretation of amateurism (Con. Law theory would refer to them as originalists) gaining more support over the ones (the vast majority as recent voting confirms) who favor flexibility and a contemporary interpretation and application of amateurism policy (the evolutionists or proponents of a dynamic, living amateurism). In that case, the prospect of an up-down vote on the floor of the Convention in Jan remains an intriguing one.

4) In the extreme “no-way” scenario category, as of Friday, March 12, 2010, the number of total override requests was almost halfway there to the 100 mark for suspending the full effect (deregulation and delayed enrollment combined) of 2009-22 (best way of following the # of requests is via a quick LSDBi search under DI Props and plugging in “2009-22″). Should the above defined as originalists wish to pursue that route, there would still be five full days of lobbying and convincing membership constituents that 2009-22 in its entirety was a bad idea and it should be defeated/and at this point in time immediately suspended. Yet, there is also a fascinating twist to this: should the several coaches’ associations, conference and member institutions’ staff, etc who wanted to submit overrides to stall the effective date of the delayed enrollment portion, continue to submit requests, with some originalists’ help, they run the risk of losing what most everyone agreed on and adopted in January, the deregulation portion and treatment of the “vicarious professionalization” problem. That would indeed be absolutely captivating to observe… and remarkably disappointing for the main contributors to the deregulation portion of 2009-22.

Update: Indeed no-way.

5) Bottom line, what does all this mean?
Reiterating what has been written elsewhere… we have come a long way. From conservative applications of amateurism and “failed professionals” preemption, narrowly interpreting the letter of the policy, to a liberal, flexible, and even arguably risking inconsistency reality. Per the recent Amateurism Cabinet’s report and significant discourse to that end, there needs to be continued monitoring of the benefits prospects receive for pre-enrollment athletic participation. It needs to be herein repeated that the continuation of the expense valuation methodology pilot program initiated by the amateurism certification (ACP) staff, utilizing the US Census Bureau Web site (w/ links to country-specific rates and standards), needs to be continued for the long-term. The main disagreement these lines would pose to recent discussion in the Amateurism Cabinet and among ACP staff would be that it is precisely now that this program is needed to start compiling the data that both recruiting institutions and overseas prospects would need to particularly define what is the extent of compensation/benefits a young athlete can receive in each region, to remain below the professionalization threshold and within the actual and necessary expenses rules of Bylaw 12.02.4. The reason for this being a more pressing necessity now, with the advent of the deregulation portion of 2009-22 effective Aug 1, 2010, is that overseas prospects will continue to be recruited, at higher rates, and now even from a higher competitive plane due to 2009-22′s amateurism deregulation and the reconsideration of withholding conditions for such prospects who play on top pro teams; thus, it will be imperative to ensure everyone has benchmarks and as clear data as possible to utilize during the “difference-makers” recruiting attempts, as it is these difference-makers, that will pose 12.02.4 interpretation problems in regard to their compensation limits, so now — correctly — it won’t be their teammates that affect their amateur status, rather their own (financial) relationship with a club; and that is exactly where each institution would love to have immediate financial reference points updated constantly per each region, for each sport and for each recruited prospect. If legislation continues to move along this deregulation path, it is conceivable that very meaningful research, practically useful for ACP staff, coaches and compliance personnel, would yield lists of allowable compensation limits for each region, broken down per sport, level, league, etc, i.e. hypothesize that in A1 Women’s basketball in Greece a prospect’s benefit from a club should not go over appx. 500 Euros/month as a total deemed permissible per several of the 12.02.4 actual and necessary expenses, in Paris and London those would be higher due to higher cost of living, in other parts of the world considerably lower…
And there is still a tremendously significant point that policy-drafting bodies featuring learned colleagues and especially the ones trained in the fine art of the Law cannot discount. And that is the valid concern raised in various courtrooms of this country this past year and surely in ensuing ones as well, barring anticipated waves of litigation settlements, that progressive compromise of what traditionally has been the most successful line of defense and the one most appreciated and upheld by courts, amateurism, will lead to dangerous pitfalls in legal cases’ management, where more and more lower courts and even the appellate adjudication levels will hold that NCAA interpretations and applications of amateurism may no longer pass muster as effortlessly as in the past. On this more here and 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.

UPDATE II: As requested by USA Hockey and the entire US Hockey community (see Update I below), the DI Amateurism Cabinet agreed to exclude men’s ice hockey from Proposal 2009-22 in regard to involvement with professional teams prior to collegiate enrollment. The concerns of the US Hockey community are important to note and on several points may be shared by other team sports. The Cabinet’s 9/24 meeting report is available here.

UPDATE I:

In view of the DI Amateurism Cabinet’s September 24th meeting, it is worth perusing the official opposition to Proposal 2009-22 (analyzed below) by USA Hockey, which is found here, and an official position by the Women’s Water Polo Committee for inclusion in Bylaw 14.2.3.2 (along with tennis, swimming and diving).

New 2009-2010 legislative cycle NCAA policy proposals — The reconsideration of the withholding conditions for preenrollment amateurism violations for participation on professional teams

Five years after the doctoral dissertation research found herein, and related articles promoting the reconsideration of withholding conditions for prospective student-athletes who did not compromise their amateur status other than participating on teams deemed professional (i.e. their teammates rather than themselves receiving above and beyond permissible expenses or having contracts and professional agreements in violation of Bylaw 12), the contributors of this research need to feel excited and justified at the announcement of NCAA Division I Proposal 2009-22, which is attached below in its entirety.

For general reference and other issues of interest in regard to 2009-2010 NCAA Division I legislative proposals, refer to the complete publication as of August 14, 2009.

For the current 2009-2010 DI Manual refer to the full pdf.

Barring an override, and considering the heretofore unanimous position of the Amateurism Cabinet, as well as the broad acceptance of this policy direction by the DI membership, it is expected this proposal will pass and beginning August 1st, 2010, prospective student-athletes’ cases will be treated through this new standard, allowing for competition on the top-professional levels (i.e. professional leagues in soccer, basketball, etc in Europe), as long as they did not jeopardize their amateur status by receiving more than the allowable actual and necessary expenses under 12.02.4 (a) .

What has been somewhat intriguing, impressive even for the contributors of this research and longtime advocates of such policy directions, and perplexing to the level of concern on practical enforceability, is the proposal’s (2009-22) amendment of 12.2.5, under which: “…Prior to initial full-time collegiate enrollment, an individual may enter into an agreement to compete on a professional team (per Bylaw 12.02.4), provided the agreement does not allow for receipt of more than actual and necessary expenses to participate on the team.” The concern lies in the fact contracts/participation agreements from overseas signed by youngsters would rarely feature precise amounts of compensation in most cases, and a lot of the money involved is referred to as “black” money, i.e. appearing nowhere on the official record-keeping books of clubs, in order to avoid taxation and other state/professional leagues’ intervention (increase in the sums clubs have to provide as down payments in order to be licensed to participate on the professional level, frequently up to 10% of the total “declared” budget of the team).
It could be said that this new direction is rational and practical by NCAA governance… possibly even to a fault. Indeed, it makes absolute sense and within perfect reason to allow contractual agreements for a year post-HS graduation when such contracts would not pertain to compensation above the allowable limits generally and broadly set by 12.02.4. Again, the fear is that it may become considerably burdensome for recruiting coaches and institutions, as well as Amateurism Certification staff, to try and recoup all pertinent contractual documents and calculate the actual and necessary expenses against any sums mentioned in the contract, let alone against any sums that may later surface from further research, usually via competing “whistle-blowing” institutions’ due diligence. Then again, this involved and time-consuming research is now taking place anyway, plus the prospects that are in the favorable “prior to the first opportunity to enroll” phase still are treated with withholding conditions, which Proposal 2009-22 now officially, and fairly, reconsiders.
Still, combined with the fact Proposal 2009-22 creates a broader application of a “testing-the-professional-waters” period up to a year post-HS graduation, certain critics and speculators may argue that this may lead to the creation of a new pro-am reality in sports such as basketball, where professional teams would sign players for sums which would not go beyond the permissible amounts allowed under 12.02.4 per situation, hoping they would eventually yield a solid return on their meager investment. Concurrently, young players would feel they are giving it their all to make it to these professional teams’ final rosters, eventually landing good contracts, so they would not have to worry about taking up an offer for an intercollegiate athletics career and the more conservative (and definitely less lucrative) route of the university scholarship. Should they fail in this “professionalization” attempt, they can always take up the scholarship offer. This is a problem, which has been dealt by the membership in the past under the scope of early 2000s amateurism deregulation proposals (see pertinent scholarship in the articles’ section) on preempting “failed professionals”, and it might just render the Association’s defenses (below) of amateurism less convincing.

Perhaps the most alarming of concerns comes in view of past, current, and ensuing litigation (see research updates and articles in press for more). That is, amateurism in its most conservative interpretation has traditionally been the most successful defense weapon in antitrust cases and other suits the Association has been confronted with, and consistently won (and in select cases settled). At times of new political realities, economic paradigm shifts, and whilst state and Fed. District Ct. judges continue to make statements of their wishes on policy matters, any “extreme” turn or bend of amateurism policy might be used against the Association, and perhaps difficult to defend at times, or at least more difficult than in the past.

Hence, this research group’s position is that the reconsideration of the withholding conditions for prospects who participated on professional teams prior to enrollment,  and who did not otherwise compromise their amateur status under Bylaw 12 and specifically 12.02.4 (a), was brilliant, inspired, an outstanding shift in policy, and a clear indication that knowledgeable members of governance bodies are indeed in touch with reality and in tune with the membership’s concerns. Considering this research stream’s contributions and past policy discussions with higher level stakeholders of the Association, in member conferences, and on key positions of influence for the membership, this reconsideration has been indeed long-time coming. The coaches and student-athletes that were hit with such conditions, up to losing a full year of intercollegiate athletics eligibility, should have a bittersweet, yet distinct feeling of vindication nonetheless. On the other hand, the risky extension of new policy encompassing contracts post the first opportunity to enroll may open up certain Pandora’s boxes in the US system of Jurisprudence that the truly gifted, thoughtful, and sensitive to the needs of student-athletes and member institutions sponsoring actors of this legislation might not have foreseen. Thus, by the end of October 2009 a minor adjustment by the sponsors of Proposal 2009-22 might be forthcoming. Undoubtedly, the membership will possess the fundamental preemptive sensitivity and demonstrate forecasting ability on what might become a contentious issue at a later point, if not soon.
This is precisely where academic contributions and legal-policy analyses from colleagues are needed, and truly necessary. Commentary invited both herein, and in the usual targets of academic scholarship.

The body of Proposal 2009-22 below:

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.