Maybe Harvey Perlman Was Right

Maybe Harvey Perlman Was Right

Image from ESPN

There is a reason that reaching discovery is a major landmark in any legal case. At the start of a lawsuit, a plaintiff has only a theory of recovery. What appears in a complaint or pleading are just allegations. Discovery starts the process of testing that theory and finding out how many of those allegations are based in evidence. That applies especially to litigation that is not designed to recover damages for a single plaintiff, but to change how an institution operates going forward.

Unsealed Documents Will Change Public Perception

As documents are unsealed in the lawsuit between former student-athletes and the NCAA and EA Sports over licensing of video game rights, aside from simply backing up or refuting allegations, will shape the public’s perception of the case. Suffice to say, the plaintiffs have already won such a critical battle that it means little if they ultimately lose the case.

First, a quick word about dropping the term “student-athlete”. At this point, student-athlete is pretty loaded, either because of its history harkening back to defending athletic scholarships and preventing college athletes from being defined as employees or because of cases where it seems the moniker does not really fit (“athlete-student”). But it is also a term-of-art in NCAA regulation that has a very good connection with the term’s definition. They are students, as opposed to athletes who are not college students. And they are athletes, as opposed to college students who are not athletes.

Calling them students requires the NCAA to redefine the word “student” for the purposes of NCAA regulations. So if the term student-athlete is considered offensive or outdated, it still needs to be replaced. And that replacement is likely to be very similar or it will not make sense. So it doesn’t matter if they are called student-athletes, college athletes, or something jargony like “full-time enrolled college students participating on teams” that NCAA members end up always calling FECSPOTs (“fec-spots”). What matters is the set of rights and responsibilities that attach to a person when he or she gets that moniker.

The NCAA Struggles to Deal with the Commercialism, Amteurism, and Student-athlete Likenesses

The other headline of the piece is that despite a strong and vocal legal defense, NCAA leaders—both on campus and at the national office—struggled with how to deal with commercialism, amateurism, and student-athlete likenesses. The implication is that because one specific definition of amateurism is not accepted as the gospel truth throughout the NCAA and its members, the whole notion of any limit is suspect.

But the fact that this battle is being fought both at the largest and most powerful athletic departments in the country as well as in the highest levels of the national office is great news. The NCAA should be wrestling with these issues constantly. Voices of dissent should be allowed, even if their ideas ultimately never make it into the Division I Manual. All of these questions are difficult and require balancing different interests. Unanimous rubber-stamping of the party line would be terrifying.

Even more encouraging to NCAA reformers should be that someone as high up within the NCAA as Wally Renfro is trying to tackle the issue of how to separate amateurism from education so the two can be regulated (or not regulated) separately. The NCAA, always the middle ground and always the voice of compromise, has at least one person looking for a way to give both sides of the college athletics debate what they want. Success may be impossible, but knowing that will do much for pushing college athletics forward.

Pearlman Wants to Turn the Clock Back

This brings us back to Nebraska chancellor Harvey Perlman. Perlman was almost universally criticized for suggesting (threatening?) to roll the clock back rather than move forward with college football’s postseason. Perlman was the chief voice pushing back against more games, seeded playoffs, and selection committees. Perlman went so far as to suggest that even the BCS would be shuttered and college football would return to contractually determined postseason match-ups followed by voting on a national champion.

That seems consistent with Perlman’s objection to the NCAA getting involved in the licensing of student-athlete likenesses. It is a step too far, according to Perlman, from the educational mission of college to be selling the likeness of student-athletes. Note that Perlman is not objecting just to commercialization without compensating athletes, but excessive commercialization of college athletics itself.

So can a president who moved his school to a new conference with a more lucrative TV deal justify this stance? Absolutely. Televising games helps Nebraska’s academic mission by marketing the university, increasing applications, and helping with funding. Selling jerseys or getting extra money from video game licensing because the players look like the real thing does not. Feel free to debate how well Nebraska lives up to these ideals, but they are at least intellectually consistent.

Perlman’s comments are contrasted against those of Texas director of women’s athletics Chris Plonsky. Plonsky’s comments are less about the individual issues and more about the underlying attitude. The NCAA in 2012 sits on the fence between being more or less a government agency and being a private organization. On the one hand, the NCAA and its members are subsidized in the form of tax-exempt status, receive both federal and state funding that support athletics, and carry out what is in many countries a government function.

On the other hand, the NCAA is a private, voluntary membership association. They have the Supreme Court case that says they are not an arm of the government. For a long time, the NCAA has enjoyed the benefits of both, and Plonsky’s comments reflect a desire to continue this hybrid model, referencing the need to raise funds (private) vs. the return athletes should get in the form of an education (public/government).

That balancing act is becoming increasingly untenable. At some point in the not-too-distant future, the NCAA and its members will be forced to choose a side, fall one way or the other, and embrace the challenges and difficulties that come with it. That could mean turning college athletics into a for-profit enterprise only loosely connected to academics. Or it could mean doubling down on protections for athletes and solving the hard questions of how to refocus on education rather than competition.

Perlman and Renfro appear to fall on the side of being like a government entity, even as Renfro searches for a way to reconcile elements of professional athletics with that model. The plaintiffs in the video game cases fall clearly on the side of being a private business. The news is not that the plaintiffs are more likely to have the NCAA land on their side. Rather, the takeaway should be that the NCAA is a little more wobbly on the fence, but far better prepared to handle the fall than suspected.

What do you think is the best direction for the NCAA? Let us know in the comments section below, or connect with us on Facebook, Twitter, or Google+!

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Posted on by John Infante
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4 Responses to Maybe Harvey Perlman Was Right

  1. Question for John says:

    John, you didn’t even touch on what Pearlman referred to-
    Was he right in expressing grave concern over the mandatory waiver all NCAA student-athletes have to sign before being determined eligible which hands over all their rights to their University?Pearlman says this is a contract of adhesion that, if challenged, will not hold up in court, and thus, all money University Athletic Departments receive from the commercial uses of their student-athletes images and likenesses are at jeopardy (not just excessive commercialization), and this includes TV money.

    • John Infante says:

      First, calling something illegal or improper because it is a contract of adhesion is not an answer. The scholarship is a contract of adhesion. Most leases for apartments are contracts of adhesion. Everything you buy in a store is a contract of adhesion. You need something else, like it being a contract of adhesion because of a conspiracy or collusion AND that the law prevents the conspiracy of collusion in that instant, which is exactly what O’Bannon and the NCAA are fighting about.

      Second, O’Bannon can be right, but then the better question is what the remedy is. And that’s what the post is about. Perlman shows there is someone within the highest levels of NCAA governance who might not be ready to simply give athletes whatever they want in order to keep making money. Perhaps the athletes are awarded a share of jersey sales and video games, and schools respond by simply refusing to sell those products.

      • Question for John says:

        I’m not sure I follow your logic. The point about student-athlete’s signing over their rights, is that it is a mandatory requirement for eligibility, and all 1,000 NCAA universities require it. So there is no “option” for a student-athlete not to sign it (unless you consider NAIA viable, which is likely a losing argument).

        An athletic scholarship is not a contract of adhesion in this sense, because a student-athlete has the choice to sign a scholarship agreement with any number of universities, they have options. Similarly, with items in a grocery store, not only do you have options of brand on the aisle, but you also have options of grocery stores. That is not at all the case with the NCAA’s rights waiver.
        I read just the opposite from Pearlman’s remarks. Instead of reading Pearlman as being “someone within the highest levels of NCAA governance who might not be ready to simply give athletes whatever they want in order to keep making money”; it appears Pearlman is very the first within the highest levels of NCAA governance who has expressed that the athletes may have a legitimate legal claim to a fair and equitable share of the revenue they produce.

        • Question for JI says:

          Or put another way, Pearlman may be hinting to his colleagues that the “O’Bannon Lawsuit” against the NCAA is a winner as it relates to all the revenue member institution earn with respect to the commercialization of student-athletes (TV contracts included), since the NCAA’s rights waiver, to quote Pearlman, “is not even close.”

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