• Kaburakis, A., Potuto, J., Katz, R., and Hilbert, R. (2010). Amateurism Compliance, 21^st Century Law, Intellectual Property and Student-Athletes’ Rights of Publicity, institutional promotions, marketing, and commercial activity.
  2010 National Association for Athletics Compliance Annual Conference as part of the National Association of Collegiate Directors of Athletics Annual Convention, Anaheim, California – June 21-22, 2010
  Continuing Legal Education (CLE) credits session
• Yakovee, V. & Kaburakis, A. (2010). International Risk Management Considerations for the Global Sports Lawyer.
  36^th Annual Sports Lawyers Association Conference, Phoenix, Arizona – May 20-22, 2010
  CLE credits session
• Kaburakis, A., Miller, K, Dahlberg, E, and Patel, S. (2010). Science, Law, Policy and Inclusion leading to the London Olympics. Changing Perspective: Gender in Sport Competition.
  Ithaca College Conference on Law, Policy and the Olympic Movement, London, England – May 13-15, 2010
• Sharp, L. & Kaburakis, A. (2010). The National Letter of Intent: A Contract Analysis.
  2010 College Sport Research Institute Scholarly Conference, University of North Carolina at Chapel Hill – April 21-23, 2010
• Kaburakis, A., Kposowa, A., Paule, A., and Glyniadaki, A. Race, ethnicity, and the globalization of sports: stories of college athletes.
  (under review)
• Kaburakis, A. Sport talent, labor migration, and the adventures of youth. A comparative analysis of the Junichi Tazawa and Brandon Jennings cases.
  (under review)
• Kaburakis, A., Grady, J., Clavio, G., and Pierce, D. Delineating the Boundaries of Marketing Innovation Versus 21^st Century Intellectual Property Theory in the Entertainment & Sports Industry.
  (under review)

Journal Articles

• Kaburakis, A., Sharp, L., and Pierce, D. Integrating fields in Sport Law: Using the O’Brien v Ohio State University case to teach principles of Contract Law, NCAA Compliance, and International Arbitration.
  (under review)
• Pierce, D., Lawrence, H., and Kaburakis, A. Creating Synergy between Athletics Compliance and Academic Programs. Student Workers in the Compliance Office.
  (under review)

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:

First Session was Thursday, October 1st, 6p, at ACS (new library):
Bridges to Higher Education. Combining Education and Athletics.
Administrators, Academic Advisors, Coaches, Parents, and Prospective Student-Athletes session.
Various key constituents and administrators attended. Pleasant surprise to see approximately 80 attendees there. Everyone in this session contributed in making it a very informative, insightful, and enjoyable evening in view of assisting young student-athletes who wish to pursue both their academic and athletic dreams internationally.

Second and third sessions were held at the new library above the ACS gym on Saturday, October 3rd, 9a:
The Bridge to the World of US College Basketball.
Session I: “How you can help your players…” Scholarship opportunities for Greek and international athletes in US colleges and universities. Amateurism policy and recent developments.
Session II: “How you can help yourself…” Coaches’ opportunities for graduate studies, involvement with NCAA coaches, and NCAA teams.

Coaches and basketball constituents from all parts of Greece and Cyprus attended the event.
Time was well spent, discussing important issues of impact on young people’s academic and athletic pursuits.
Thanks to all the coaches who attended during the national election weekend. Your presence was much appreciated and organizers trust you enjoyed a productive experience. Hopefully this interaction and ensuing opportunities for further cooperation will allow coaches and administrators to offer valuable service to young athletes.

The clinic was an outstanding event, featuring top-level NCAA Division I Men’s and Women’s basketball coaches with long records of success in highly competitive settings, NCAA post-season participation, NCAA Final Fours, USA basketball and international coaching experience, as well as Greek coaches with recent unprecedented international competitions’ success in FIBA events. The clinic was accredited by the Greek Basketball Coaches Association and the Greek Basketball Federation.

The clinic’s homepage is found here.

Schedule is found here.

Coaches and presenters bios here.

Links from the Coaches Association here and here.

Images from the clinic:

More images from the clinic can be found here.

• Kaburakis, A., Pierce, D., Fleming, O., Clavio, G., Lawrence, H., and Dziuba, D. (2009). “It’s in the likeness”. NCAA Student-Athletes’ Rights of Publicity, EA Sports, and the video-game industry. The Keller forecast. Entertainment and Sports Lawyer (American Bar Association’s Forum on the Entertainment and Sports Industries), Vol. 27, No. 2, Summer 2009, 1-39

• Kaburakis, A. (2009). Litigation opportunism, or systemic change de jure?
  The ongoing legal war and impending crucial battles that may change the NCAA… or confirm its unique position in the world of sport.
  World Sports Law Report, Vol. 7, Iss. 9, 1-4

There has been considerable work invested into the project and it promises to be a top quality event. According to the latest updates from ACS Athens and the Coaches Association, coaches and basketball constituents from all parts of Greece will attend the event.

The clinic’s homepage and registration forms found here.

UPDATE:

Due to the general national elections in Greece October the 4th, the clinic updated schedule is found here.

Coaches and presenters bios here.

Links from the Coaches Association here and here.

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

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.

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