Who can profit from a student-athlete’s success? Surprise! It’s everyone BUT the student-athlete

It’s a well-known fact that the NCAA and its member schools reap the benefits of having over 460,000 NCAA stellar student-athletes participate in the organization’s 24 sanctioned sports.  They make extraordinary amounts of revenue off of the talents of amateur athletes, and so do the major sports brands who serve as sponsors.  But what benefits do the student-athletes enjoy for drawing huge numbers of fans, immense tv and news coverage, and profits to their schools and the NCAA? Oh right, scholarships (which may or may not cover the full cost of attendance).  And that’s where the buck stops.  Just look at the circumstances that followed Tennessee State linebacker Christion Abercrombie’s tragic head injury this past weekend.  Crowd-funding efforts were started to support Abercrombie, who is still in critical condition, and his family.  But those crowd-funding pages may have threatened the player’s NCAA eligibility, so were subsequently taken down.

THE WINNERS

THE NCAA’S & MEMBER SCHOOLS’ WINDFALL

In 2017, the NCAA reportedly profited more than $1 billion (yes. BILLION. with a B), while member schools raked in the cash.  March Madness Champion, UNC, had a cool 3-year average men’s basketball revenue of $21,174,115 as of 2017, while the runner-up, Gonzaga, saw an 825% spike in merchandise sales during last year’s tournament.  But the student-athletes, who are putting in the blood, sweat, and tears to be excel both in athletics and academics may struggle to make ends meet, with or without scholarships.  So too, the star athletes (arguably the ones putting the butts in the seats) may not receive any additional enrichment or compensation for their successes – as required by the NCAA’s system of amateurism.

The NCAA has faced increased pressure on the issue of compensation for student-athletes, and the organization’s feet are being held to the fire even more as of late.  Senior District Judge for the Northern District of California, Claudia Wilken, is a central player and she may hold the NCAA’s fate in her judicious hands.  Back in 2014, she presided over O’Bannon v. NCAA – a class action suit against the NCAA for failing to adequately compensate students for the use of their NIL (name, image, likeness); the court ruled that the NCAA’s long-held practice of barring payments to athletes violated antitrust laws.  She currently has two related cases on her docket: Jenkins v. NCAA and In Re: NCAA Grant-in-Aid Cap Antitrust Litigation v. NCAA, which arguably both center on the legality of the NCAA capping the value of athletic scholarships.  The outcome of these cases may have a huge bearing on the future of amateurism and the NCAA’s long-term survival.

MAJOR BRANDS CAPITALIZE

Other examples of those who benefit from the successes of student-athletes are major sports apparel brands and sponsors, like Adidas.  College sports teams require uniforms and some require sponsorships from the big athletic brands (Adidas, Nike, Under Armour, etc.) – this can create a mutually-beneficial relationship for both the teams and the companies.  But as we’ve seen with the FBI probe into Adidas’ possible misdeeds and subsequent charges against the company and coaches, compensation for student-athletes in any form is risky territory.

Last year, Adidas was implicated in what has been called a black market scheme to entice rising young basketball prospects to receive what can only be described, in NCAA terms, as “impermissible benefits” (see Bylaw 13.2.1.2).  An Adidas executive is facing criminal charges for an arrangement with a sports agent, a major university, and a top high school player in which the player agreed to attend the school, for which his family would receive $100,000, and also promised to sign with the apparel brand upon going pro.  The complaints include charges for bribery, fraud, and other types of corruption.

As far as the NCAA is concerned, under the organization’s regulations, amateur athletes may not work with a sports agent, “accept[] a promise of pay […] to be received following completion of intercollegiate athletics,” (see Bylaw 12.1.2) or receive any impermissible benefits – which is a giant umbrella under which falls just about anything beyond scholarships and financial aid through the institution.  A $100,000 gift to the family and a promise to sign with Adidas undoubedtly fall under that umbrella.

The trial is taking place this month in the Southern District of New York.  It remains to be seen what impact this case may have on the involvement of major apparel brands in college sports and what trickle down effects it may have on the student-athletes.

THE LOSERS

ZILCH FOR STUDENT-ATHLETES

Finally, let’s discuss the student-athletes.  The ones at the bottom of the totem pole.  The ones trying to make sense of the complicated web of rules and regulations imposed on them by the NCAA and their institutions.  The ones trying to capitalize on whatever stardom and benefits they can, for what could be a short athletic career.  The ones trying to balance a rigorous schedule of academics and athletics.

The latest: crowd-funding efforts to support a student-athlete in critical condition and his family may threaten the player’s NCAA eligibility, so are subsequently taken down.

This past Saturday, the Tennessee State Tigers faced off against the Vanderbilt Commodores.  Instead of the typical news stories about how an underdog fared against an FBS opponent, coverage focused on Christion Abercrombie’s life-threatening head injury.  Towards the end of the first half, without any collision of note having occurred, Abercrombie came over to the sideline and collapsed.  He has been in critical condition since.  At least a couple of GoFundMe crowdfunding pages were setup to help him and his family with expenses during this difficult time.  But as of Monday evening, TSU has asked that those pages come down so as not to be an “impermissible benefit” in violation of NCAA regulations.  Instead, TSU has setup its own NCAA-approved GoFundMe page to funnel any contributions through the school rather than directly to Abercrombie and his family.  The NCAA has also stated through a spokeswoman that “Contrary to inaccurate statements, the NCAA is working with Tennessee State and supports its efforts as the community rallies around Christion Abercrombie and his family.”

While this may be a six-in-one hand, half-dozen-the-other situation, there are possible downsides to having TSU manage the contributions.  There’s always a chance that the funds are delayed in getting to the family, that they could be misused in some way, or that TSU places restrictions on how they are used.  It would seem that the simplest, fastest, and best mode would be to send the funds directly to Abercrombie and his family, but let’s not forget the NCAA’s rules hanging over all that student-athletes (and their families) do.

While TSU and the NCAA have not stated what bylaw would have been violated by the crowdfunding pages, we can venture a guess that it’s one having to do with a student-athlete losing his amateur status, therefore losing his eligibility to play a collegiate sport, for receiving any compensation, financial aid, or anything of value beyond what the institution distributes or the NCAA specifically condones. (See Bylaws 12.1, 12.4, et al).

Although it’s now a moot issue with TSU’s NCAA-sanctioned GoFundMe page, it’s interesting to see where Abercrombie’s unique situation may fall between the cracks of the NCAA’s regulations.  For example, NCAA Bylaw 12.4 governs employment of student-athletes, specifically stating “compensation may not include any remuneration for value or utility that the student-athlete may have for the employer because of the publicity, reputation, fame or personal following that he or she has obtained because of athletics ability.”  If this rule were to be implicated, I would argue that the charitable donations were not necessarily made because of Abercrombie’s fame or personal following, but rather that crowdfunding pages are created all the time for all sorts of causes, and many are for medical expenses.

Other amateurism-related bylaws like 12.1.2, 12.1.2.4, and 12.4 only involve ineligibility when the student-athlete receives compensation because of his or her athletic ability.  I would argue that is not the case here.

Interestingly, Bylaw 15.01.3(b) dictates that “[a]ny student who receives financial aid other than that administered by the student-athlete’s institution shall not be eligible for intercollegiate athletics competition, unless […] the aid is: Awarded solely on bases having no relationship to athletics ability.”  While it might be stretch, given that Abercrombie is likely at TSU at least in part due to his athletic ability, he’s certainly on the football team because of it, and fans know who he is and know of his injury in part because of his athletic ability, this would likely be Abercrombie’s strongest argument.

What’s striking in this situation is the NCAA’s reach into so many aspects of a student-athlete’s life.  And while it’s not clear what NCAA rule(s) the GoFundMe pages could break, given that the NCAA is a private association, it makes its own rules and can interpret those rules however they choose, so it was a safe bet for TSU to create a separate page.

This story is just another chapter in the evolving nature of the NCAA.  It’s anyone’s bet how the pending cases will turn out and what impact they will have on the future of amateurism.  The NCAA strives to preserve their idealistic view of amateurism, which requires caps on compensation to student-athletes, and strives to maintain a balance of academics and athletics.  But let’s be real… the NCAA has always and will always look out for #1.  The organization itself.

The UB Law Sports & Entertainment Forum and the University at Buffalo community hope for a full and speedy recovery for Christion Abercrombie.

Featured Image Credit: Huffington Post; youthvoices.net 

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