COLLEGIATE ATHLETICS a Report of Court Decisions, Legislation and Regulations Affecting Collegiate Athletics

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Route To: ____/____/____/____ May 2008 Volume 9, Issue 7 Legal Issues in COLLEGIATE ATHLETICS A Report of Court Decisions, Legislation and Regulations Affecting Collegiate Athletics

IN THIS ISSUE

2 University of 7 College Coaches-in- Kansas Secures Waiting: Good Idea, or Victory in Trademark Unnecessary? Infraction Case Why do some colleges and profes- A federal judge has granted, sional franchises designate head- in part, a summary judgment coaches-in-waiting, and others motion brought by the Uni- do not? What are the upsides and versity of Kansas in a trade- downsides of both methods? mark infraction case, finding some clothing merchandise 9 Ineligible Transfers being sold by a retailer is Land Long Beach State so similar to KU’s licensed in the Hot Seat merchandise that there would The NCAA Committee on be confusion. Infractions penalized the Long Beach State University men’s 3 Evidence Exists to Deem the NCAA a State basketball program for major and secondary infractions March 6, Actor after an investigation exposed such violations as improper benefits, A paper presented at the inaugural College Sport Research Institute impermissible transportation and phone calls, and unethical con- (CSRI) conference held at The University of Memphis presents evi- duct by the coaching staff. dence and the legal underpinnings which could lead a future court to hold the NCAA to be a state actor. 12 New Conduct Policies Set to be Implemented at Missouri State University 4 University Of Colorado Appoints Gender A broad panel of academicians, attorneys, student athletes and Equity Expert Nancy Hogshead-Makar as Title IX athletic department officials at Missouri State University has Consultant recommended a student athlete-conduct policy that would require Prominent attorney, professor and national Title IX legal expert uniform punishment for serious criminal offenses. Nancy Hogshead-Makar is named as the University of Colorado at Boulder’s Title IX adviser. CU-Boulder agreed to create the adviser’s 12 Jerry Jones Will Give Keynote Address at position as part of the settlement of Ms. Simpson’s Title IX lawsuit. Upcoming NACDA Convention Jerry Jones, Owner, President and General Manager of the Dallas 4 Vaccaro, Others Discuss NCAA and Cowboys, will give the keynote address at the 43rd Annual NACDA Amateurism at Symposium Convention, which will be held June 9-12 in Dallas. Sonny Vaccaro spun around, almost tripping on the wire attached to his microphone. The controversial 68-year-old sports marketing Legal Issues in Collegiate Athletics is a publicaton of Hackney genius ranted against the NCAA. “Student. Athlete. Non-profit. Publications. Copyright © 2008. Don’t you see? It’s a trick,” said Vaccaro. Departments 5 Court Sides with NCAA on Discovery Motion in Long-Running Eligibility Suit 6 Calendar A district judge has denied a plaintiff’s motion to compel in a case 10 News in Brief involving a parent’s attempt to force the NCAA to continue to broaden its acceptance of learning-disabled student athletes. 11 Personnel Moves May 2008 /

University of Kansas Secures Victory Holt Hackney Editor and Publisher in Trademark Infraction Case

Bill Newton A federal judge has granted, in part, a university. In fact, some of the merchandise Associate Publisher summary judgment motion brought by the included suggestive language, which could University of Kansas in a trademark infrac- be deemed by some to be in bad taste. Gabriel Hernandez tion case, finding some clothing merchandise In a letter dated May 30, 2006, KU Ath- Contributing Editor being sold by a retailer is so similar to KU’s letic Director Lew Perkins requested that the defendant discontinue selling certain Rachel Upshaw licensed merchandise that there would be confusion. T-shirt designs sold by his company, and Design Editor The court also rendered numerous eviden- that it “cease production and sale of any other items that infringe on the University’s Please direct editorial queries to Hack- tiary rulings in the lengthy opinion, which trademarks, including the term Kansas, ney Publications at: are not addressed in this summary. As background for its summary judgment and cease the use of designs that are closely P.O. Box 684611 rulings, the court noted that “KU does not identified with the University.” Austin, TX 78768 manufacture apparel, but … licenses its Perkins went on to state that many of (512) 632-0854 the designs sold and produced through [email protected] trademarks to hundreds of different persons or entities and its marks appear on a wide variety the Joe-College.com business were of- Legal Issues in Collegiate Athletics is of competing products with varying levels of fensive to the University, or dispar- published monthly by Hackney Pub- quality. KU licenses its marks to businesses in aged the athletic programs or coaches. lications, P.O. Box 684611, Austin, TX KU ultimately sued, asserting the following 78768. Postmaster send changes to Lawrence as well as nationally. The licensing Legal Issues in Collegiate Athletics Re- of KU’s trademarks is managed by cross-claim claims: (1) Federal trademark infringement port. Hackney Publications, P.O. Box defendant Collegiate Licensing Company of under 15 U.S.C. § 1114, (2) federal unfair 684611, Austin, TX 78768. Atlanta, Georgia. KU’s licensees are provided competition under 15 U.S.C. § 1125(a), (3) federal trademark dilution, (4) trademark Copyright © 2008 Hackney Publica- with art slicks that are incorporated into all tions. Please Respect our copyright. license agreements. The art slicks detail KU infringement under K.S.A. § 81-213, (5) trademark dilution under K.S.A. § 81-214, Reproduction of this material is prohib- indicia, including trademarks, service marks, ited without prior permission. All rights and (6) common law trademark infringe- trade names, designs, logos, seals, and symbols. reserved in all countries. ment and unfair competition. The license agreements make clear that KU After reviewing an extensive series of fac- “This publication is designed to provide owns and licenses additional trademarks that tors, the court found that summary judgment accurate and authoritative information may not appear on the art slicks. An account in regard to the subject matter covered. “is only appropriate as to the few T-shirts representative for CLC routinely reviews KU It is sold with the understanding that the that the Court has singled out as displaying licensees’ products in the retail marketplace to publisher is not engaged in rendering marks that are overwhelmingly similar to legal, accounting or other professional make sure that they comply with product and KU’s marks. These striking similarities trigger services. If legal advice or other expert licensing standards. KU does not permit the a presumption that defendants intended to assistance is required, the service of use of offensive language or references to sex a competent professional should be infringe. These two factors weigh so heavily or alcohol on officially licensed products. KU sought” -- from a Declaration of Prin- in favor of a likelihood of confusion that no monitors authorized uses of its color scheme ciples jointly adopted by a Committee reasonable jury could find otherwise. of the American Bar Association and a and has set standards to instruct KU repre- “Additionally, it is uncontroverted that Committee of Publishers and Associa- sentatives and licensees as to how the crimson tions. no disclaimers were present at the Joe-Col- and blue color scheme is to be presented.” It lege.com store or website during the time went on to note that KU’s licensed products ISSN: 1527-4551 these T-shirt designs were offered for sale. produce millions in sales each year. Accordingly, summary judgment on the The court then described how one of the Legal Issues in trademark infringement claims is granted defendants in the case, Victory Sportswear, Collegiate Athletics in favor of plaintiffs with regard to these pushed the envelope with its Joe-College. specific T-shirt designs.” com subsidiary, selling KU-related mer- lica chandise, which was not licensed by the See KU SECURES VICTORY on Page Legal Issues in Collegiate Athletics Copyright © 2008 Hackney Publications (hackneypublications.com) / May 2008

Evidence Exists to Deem the NCAA a State Actor

By Kadie Otto, Ph. D., Assistant Professor of Sport Management, Western Carolina University

Most recently, my colleague and I pre- voluntarily withdraw from unconstitutional tives, in part, through athletics—which sented a paper at the inaugural College behavior is not determinative of whether they have delegated control of to the Sport Research Institute (CSRI) conference state action exists where the relationship NCAA, (b) schools have a financial stake held at The University of Memphis. In this is otherwise so interdependent as to make in the system. Consider the following paper, entitled “The NCAA: A case for state that “choice” a nullity. Brentwood is also annual university athletic department action,” we presented the factual evidence important in that it acknowledges the budgets: Oregon $50 million, Alabama and the legal underpinnings which could modern-day practical reality that public $82 million, Michigan $89 million, Ten- lead a future court to hold the NCAA to schools must depend upon private athletic nessee $95 million, Texas $105 million, be a state actor. associations to carry out an integral part of and Ohio State and Florida, each, at $109 First, we gave an overview of the Su- their educational mission and that their joint million. What’s more, tax payer dollars preme Court’s “entwinement” analyses participation in that endeavor is a factor in contribute to funding coaches “educa- as applied in the cases of Burton v. Wilm- finding state action. tional” salaries (over 100 college coaches ington Parking Authority(1961) and Evans Finally, we analyzed the relationship make $1 million/annually or more and v. Newton(1966), and described how the between the public school members and over a dozen coaches make $2 million) lower courts found private athletic associa- the NCAA and applied Brentwood and (c) there is a need for a mechanism to tions to be state actors in the high school Burton to conclude the NCAA, like the regulate competition; setting and the NCAA to be a state actor high school athletic associations, should 5) associations’ money making capacity is pre-Tarkanian(1988). Then, we highlighted be deemed a state actor: derived from public schools; and, the Blum-trilogy (Blum v. Yaretsky, 1982; 1) public membership—while the NCAA’s 6) existence of association depends on public Rendall-Baker v. Kohn(1982); and, Lugar v. total membership is 44% public, Divi- school member—An examination of Edmondson Oil Co. (1982) which restricted sion I (which brings in over 98% of the championship revenue revealed that 98% the state action doctrine and described how NCAA’s total revenue) consists of 66% of the NCAA’s total revenue is generated courts subsequent to the Blum-trilogy con- public schools. Further, the NCAA by the Division I men’s basketball tour- cluded the NCAA was not a state actor. allocated $420 million to Division I nament ($6 billion/11-year television In the Supreme Court’s Tarkanian and just $27million to Division II and contract with CBS). Of the teams who analysis, in which it concluded that the $19.5 million to Division III; have made the NCAA tournament from NCAA was not a state actor, it relied in 2) voting members who adopt rules/ 1939-2006, 63% are public. Therefore, large part on the rationale that a member regulations are public—The four most 98% of the NCAA’s annual revenue is school has a voluntary choice to withdraw powerful committees in the NCAA are being generated by just 6% of its total from the NCAA should it disagree with a the Executive Committee (71% public), membership, of which 63% are public. NCAA sanction. The reality of big-time the Board of Directors (78% public), Based on existing case law, the factual college athletics, however, is that a NCAA the Management Council (80% pub- evidence exists for a court to deem the member school’s voluntary withdrawal is lic), and the Committee on Infractions NCAA a state actor. For a court to hold oth- not actually voluntary but rather a case of (80% public); erwise ignores the dilemma public schools “economic duress” . 3) enforcement—Since the inception face when they are subject to constitutional Additionally, Brentwood(2001) and of the NCAA’s enforcement arm in standards but are not in a position to with- Burton(1961) recognized that the ability to 1953, 67% of all members charged draw from the NCAA when those standards with a major violation have been public conflict with the NCAA rules. Further, it Kristal Stippich, J.D., Gass Weber and Mullins, schools. Furthermore, of those members overlooks the incentives (or disincentives) LLC who have committed three or more of the business of intercollegiate athletic April 17-20th, 2008 major violations (up to eight), 86% competition. While it is certain that the Economic duress is “an unlawful coercion to are public.; NCAA does need the ability to enforce its perform by threatening financial injury at a time 4) public schools’ educational obligation: rules uniformly, it should not be granted when one cannot exercise free will” (Black’s Law (a) athletics integral—Public schools the ability to do so at the expense of con- Dictionary, 7th ed., p. 521). meet a portion of their educational objec- stitutional rights. n

University Of Colorado Appoints Gender Equity Expert Nancy Hogshead-Makar as Title IX Consultant

The University of Colorado at Boulder and programmatic improvements in these areas, tion and currently serves as its legal adviser. the law firm of Hutchinson, Black & Cook, as well as acting as a resource for students Her book, “Equal Play: Title IX and Social counsel for Lisa Simpson jointly announced who have experienced sexual harassment Change,” co-authored with sports economist last month the appointment of prominent on campus. Andrew Zimbalist, was recently released. attorney, professor and national Title IX “I am eager to begin my visits to Boulder Professor Hogshead-Makar is a graduate legal expert Nancy Hogshead-Makar as the and to begin working with a group of com- cum laude of Duke University in political school’s Title IX adviser. mitted educators, administrators, student- science and women’s studies (1986) and CU-Boulder agreed to create the adviser’s athletes and community members for the holds a Juris Doctor degree from the position as part of the settlement of Ms. betterment of the university community, and Georgetown University Law Center (1997). Simpson’s Title IX lawsuit. especially for the women of the CU-Boulder While at Duke, she set school swimming Hogshead-Makar will work with CU campus,” said Hogshead-Makar. records in eight different events. She quali- officials in athletics, the office of univer- Hogshead-Makar is a tenured professor fied for the 1980 Moscow Olympics (which sity counsel and the office of CU-Boulder at Florida Coastal School of Law in Jackson- the United States boycotted) and swam in Chancellor G.P. “Bud” Peterson to review ville, Fla. She is one of the country’s foremost the 1984 Los Angeles Olympics, where she the university’s policies and practices re- experts in Title IX and has been a dedicated won three gold medals and a silver medal. garding sexual violence and harassment advocate for the advancement of women’s She has been inducted into 11 halls of for CU students. She will make recom- issues, particularly in athletics. She is a past fame for her athletic accomplishments and mendations on creating enhancements and president of the Women’s Sports Founda- contributions to sports. “In our view, there is no one in the Vaccaro, Others Discuss NCAA and country better qualified to take on the Amateurism at Symposium role of Title IX adviser envisioned in the settlement,” said Baine Kerr, legal counsel Sonny Vaccaro spun around, almost tripping on the wire attached to his microphone. for Lisa Simpson. “Her appointment is an The controversial 68-year-old sports marketing genius was yelling now, ranting against the important step in the university’s commit- NCAA. “Student. Athlete. Non-profit. Don’t you see? It’s a trick,” said Vaccaro, surveying ment to address the problems that gave rise a room of about 50 sports law practitioners. to Ms. Simpson’s lawsuit, and we believe it Vaccaro was a controversial selection as keynote speaker for the Columbia University is a measure that will become a model for Sports Ethics Symposium, which was held April 24 at NFL Headquarters in New York City. universities across the country.” He showed why in a 30-minute warmup speech, before settling back into a panel discussion In the settlement of the Title IX litiga- with Chris Bevilacqua, Co-Founder of CSTV Networks; Adolpho Birch, General Counsel of tion, the university agreed to appoint an the National Football League; Gary Charles, a power broker with regard to youth basketball independent Title IX adviser to assist it in select teams in the New York area; Robert Lipsyte, an Award-winning sports journalist; and identifying any further reforms that will Chris Monasch, the AD at St. Johns University. Gus Johnson, a Play-by-Play Announcer prevent sexual harassment and miscon- for CBS Sports, moderated the symposium. duct. The university has also committed Vaccaro is widely credited with introducing the concept of show contracts for contracts, to add a violence prevention coordinator summer camps for high school basketball stars and identifying other revenue-producing on the Boulder campus. That position has niches in the sports marketing world. been posted and the campus is accepting So it would surprise no one that Vaccaro painted the NCAA as a self-serving and domineer- applications. ing when it comes to taking advantage of underprivileged student athletes. “One percent of “I’m excited the university is appointing the athletes pay for 90 percent of the budget of the typical athletic department,” he said. someone of Professor Hogshead-Makar’s Pity poor Monasch, who had the primary responsibility of defending the NCAA in an stature,” said Simpson. “I’m hopeful this anti-NCAA environment. More than once, he pointed out that if the NCAA is indeed will lead to continuing changes that will self-serving, what does that make Vaccaro. To his credit, Vaccaro didn’t disagree, but rested prevent what I went through from hap- on the position that the NCAA portrays itself as a “non-profit.” pening to other women at this and other See AMATEURISM DISCUSSED AT SYMPOSIUM on Page 11 universities.” n

Court Sides with NCAA on Discovery NCAA to achieve its goal of ensuring that student athletes succeeded academically Motion in Long-Running Eligibility Suit in college. The NCAA countered that the Court should deny the plaintiff’s motion A district judge has denied a plaintiff’s mo- in the NCAA’s bylaws, policies, rules and on all of the grounds set out in Federal Rule tion to compel in a case involving a parent’s practices in place to determine the initial of Procedure 26(b)(2)(C). attempt to force the NCAA to continue to eligibility of student-athletes with learning The court concluded that “the discovery broaden its acceptance of learning-disabled disabilities who seek qualifier status to the sought by the plaintiff in the instant motion student athletes. NCAA’s Division I and Division II member to compel is disproportionate to the needs A decade ago, Kathleen Bowers sued the institutions, 1995-96 to the present. of the case for two reasons. First, the Court NCAA and two of its member schools, Temple 2. All documents concerning the research, agrees with the NCAA that the plaintiff has University and the University of Iowa, for data, analysis, reports, and other information had more than ‘ample opportunity’ to explore discrimination after her son, Michael, was concerning the reasons for the changes in the the issues she seeks to probe in the proposed allegedly denied an opportunity to compete in NCAA’s bylaws, policies, rules, and practices deposition. F. R. Civ. P. 26(b)(2)(C)(ii). college athletics because of a learning disability. concerning initial eligibility for students with The plaintiff seeks to depose an NCAA Specifically, she alleged that the defendants learning disabilities and the impact on their witness in order to update the evidence she had violated Titles II and III of the Americans academic success and graduation rates, from has collected regarding the organization’s with Disabilities Act of 1990. 1995-96 up to and including the present, initial eligibility requirements and the fact Bowers initially lost at the district including all communications with DOJ that those requirements have changed since court level when a trial judge granted the concerning initial eligibility for students with the 1995-1996 academic year. When the defendants’ motion for summary judgment, learning disabilities. plaintiff initially deposed Mr. Lennon, Mr. which relied in large part on a finding of 3. All documents concerning the re- Dempsey, and Mr. Petr in 1999, however, discovery violations. Specifically, the court search, data, analysis and other informa- she had the opportunity to ask about the determined that the plaintiff’s failure to tion concerning the effects of the changes evolution of the eligibility requirements over disclose the information about her son’s in the NCAA’s bylaws, policies, rules, and the course of three years, and, in fact, took drug abuse problem and depression in a practices concerning initial eligibility for advantage of this opportunity. Indeed, the timely fashion was a willful one, in bad students with learning disabilities, from NCAA policy of 1995-96 at issue here had faith and that it irreparably prejudiced 1995-96 up to and including the present, been superseded by the new policy reflected Temple’s ability to prepare a defense to his including the effect of these changes on in the 1998 Consent Order. The plaintiff could and did inquire into all the reasons mother’s claims. academic success and graduation rates, and why the 1995-96 policy was implemented, The 3rd U.S. Circuit Court of Appeals including all communications with DOJ how it affected the plaintiff’s son, and how breathed new life into the case last year when concerning initial eligibility for students the new improved mechanism worked for it overturned the trail court’s decision. with learning disabilities. applicants from a special education back- On remand, the plaintiff moved to 4. Data, analysis, reports and other in- ground. In the plaintiff’s deposition of Mr. compel the deposition testimony of a formation from the NCAA’s Clearinghouse Lennon in 1999, for example, Mr. Lennon Rule 30(b)(6) witness from the National and its Academics/Eligibility/ Compliance was asked ‘[a]nd today, the process that Collegiate Athletic Association and the Cabinet on the rules, policies and practices the NCAA uses to make a determination production of related discovery materials. concerning the initial eligibility for students about the eligibility for students with learn- Specifically, the plaintiff wanted the NCAA with learning disabilities from 1995-96 up ing disabilities, how does it differ from the to produce a witness to testify about the to and including the present, including the process that was in place in 1996?’ (Def.’s changes in the organization’s initial eligi- certification of special education courses as Opp’n Br. Ex. 3.) By the time Mr. Lennon bility bylaws and policies relating to high core courses, the acceptance of untimed SAT was deposed, the 1998 Consent Decree that school students with learning disabilities and ACT scores and the waiver process for Plaintiff points to as evidence of the NCAA’s that have occurred since the 1995-1996 students with disabilities. changing eligibility policies had been in place academic year. In support of her motion, the plaintiff for nearly a year. Plaintiff’s observation that argued that the requested discovery is rel- The plaintiff also sought four cat- the terms of the Consent Decree expired in egories of documents at least fourteen evant to the defendants’ potential defense at 2003 and that she does not know the current days prior to the requested deposition: trial that the initial eligibility requirements 1. All documents concerning the changes were necessary in 1995-1996 in order for the See COURT SIDES WITH NCAA on Page

Court Sides with NCAA on Discovery Motion in Long-Running Eligibility Suit Calendar May May 18-23, 2008 Continued from Page tion “is not a situation where Michael Bowers NCAA Regional Rules Seminar was denied admission to college, as he indeed state of the NCAA’s eligibility policies does Boston, Massachusetts not diminish the opportunities she had to matriculated at Temple University. This is For more info, visit: www.ncaa.org depose witnesses about the changes in such not a class action, nor is injunctive relief policies that occurred in the years following available to Plaintiff. If Plaintiff succeeds in June her son’s alleged injury. The plaintiff has no proving actionable discrimination, monetary June 1-6, 2008 standing to challenge the current policies, relief is sought. The costs of litigating this NCAA Regional Rules Seminar nor is the NCAA obliged in this case to case over these ten years, in this Court and San Antonio, Texas explain or defend those policies, whatever the Court of Appeals, has surely dwarfed For more info, visit: www.ncaa.org they may be. the financial stakes that remain at issue. It June 9-12, 2008 “Moreover, the plaintiff’s prior op- is for just such circumstances that the rule National Association of Collegiate portunities to discover the changes that of proportionality was adopted.” Athletic Directors have taken place in the NCAA’s policies “Furthermore, it is not insignificant Dallas, Texas regarding initial eligibility determinations that the NCAA concedes that its policies For more info, visit: nacda.cstv.com were not limited to these depositions. As changed between 1996 and 1999 and have January the NCAA explained at the February 25, continued to change in succeeding years. 2008 hearing, over the course of two full January 14-17, 2009 See Boody v. Township of Cherry Hill, 997 NCAA Annual Convention discovery periods it has produced approxi- F. Supp. 562, 574 (D.N.J. 1997). mately 18,000 documents pertaining to the Washington, D.C. (Gaylord National) “The plaintiff has had ten years to gather For info, visit: www.ncaa.org adoption of its eligibility bylaws, its policies support for the claims filed in 1997. In short, concerning core course requirements and the Court finds that Plaintiff has had more eligibility waivers, and the 1998 Consent than an ‘ample opportunity’ to discover in- KU Secures Victory Decree. At the same hearing, the plaintiff formation bearing on the issues in this case, acknowledged having received documents Continued from Page and that the burden of embarking on yet pertaining to the changes in the NCAA’s University Of Kansas et al. v. Larry Sinks another round of discovery at this point in eligibility policies through July 2001, five et al.; D. Kan.; Case No. 06-2341-JAR, the case considerably outweighs any marginal years after the alleged act of discrimination 2008 U.S. Dist. LEXIS 23765; 3/19/08 benefit that such efforts might yield. underlying this case took place. Attorneys of record: (for plaintiffs) Kathleen Bowers v. NCAA et al.; “In short, these discovery periods, de- D.N.J.; Civil Action No. 97-2600 (JBS), Alicia Grahn Jones, Jerre B. Swann, R. positions, and document production have Charles Henn, Jr., William H. Brewster, afforded Plaintiff an ‘ample opportunity’ 2008 U.S. Dist. LEXIS 14944; 2/27/08 LEAD ATTORNEYS, PRO HAC VICE, to discover information pertaining to the Attorneys of Record: (for plaintiff) A. Rich- Kilpatrick Stockton LLP - Atlanta, Atlanta, NCAA’s eligibility policies in 1995-1996 ard Feldman (Argued), Richard L. Bazelon, and the changes in those policies that oc- Noah H. Charlson, Bazelon, Less & Feld- GA; Douglas M. Greenwald, LEAD AT- curred over the following years. F. R. Civ. man, Philadelphia, PA; Barbara E. Ransom, TORNEY, McAnany, Van Cleave & Phil- P. 26(b)(2)(C)(ii). Public Interest Law Center of Philadelphia, lips, P.A. -- KCK, Kansas City, KS. (for “The second reason for the Court’s de- Philadelphia, PA. (for Temple) John B. Lan- defendants) Mark T. Emert, William J. termination that the proposed discovery is gel (Argued), Shannon D. Farmer, Ballard, Skepnek, LEAD ATTORNEYS, Skepnek Spahr, Andrews & Ingersoll, Philadelphia, disproportionate to the legitimate needs of Fagan Meyer & Davis PA, Lawrence, KS., PA. (for NCAA) J. Freedley Hunsicker, this case is the fact that evidence pertaining Charles T. Schimmel, LEAD ATTORNEY, to the evolution of the NCAA’s eligibility Jr. (Argued), Drinker, Biddle & Reath, Hill, Beam-Ward, Kruse, Wilson & Wright, policies beyond that which the plaintiff has Philadelphia, PA. (University of Iowa) Jack already discovered is at best only ‘marginally J. Wind, Margulies, Wind & Herrington, LLC, Overland Park, KS; Mark T. Emert, relevant’ to the plaintiff’s stated need for Jersey City, NJ; Gordon E. Allen, Mark William J. Skepnek, LEAD ATTORNEYS, the evidence.” Hunacek (Argued), Office of Attorney Skepnek Fagan Meyer & Davis PA, Law- The court continued, noting that the ac- General of Iowa, Des Moines, IA. n rence, KS. n

College Coaches-in-Waiting: Good Idea, or Unnecessary?

By Daniel A. Etna, Esq.

The University of Kentucky recently des- eventual head coaches and CEOs before the ● Your customers – consumers of products ignated offensive coordinator Joker Phillips office-holder resigns or retires include: and services in the business world, and ticket-buying fans in the athletic world as its next head football coach, effective ● Retention of current talent and recruit- – also want to know that there is a plan when Rich Brooks retires. At Texas Tech, ing of future talent. The athletics-busi- and continuity. when Bob Knight decided mid-season that ness analogy holds here, and it centers enough was enough, the handoff to his on continuity. College teams want their ● In the world of collegiate sports, the son Pat was relatively seamless because the key players to know who the next head boosters and alumni – who tend to school had publicly pronounced that the coach will be if the current head coach donate money – also tend to prefer younger Knight was the eventual successor. plans to leave – or is at an age where continuity (although, truth be told, In Happy Valley, however, the octogenar- he might depart suddenly – before that they really crave being in on the decision ian Joe Paterno is working with neither a actually happens. Recruits want to know itself.) And the university at large, which contract nor an heir apparent. whom they will play for, and uncertainty stands to gain revenue from appearances Why do some colleges and professional about the near future might cause them in bowl games and on television, has a franchises designate head-coaches-in-wait- to look elsewhere. Professional athletes stake in knowing. ing, and others do not? What are the upsides have the same options, to declare free There is no one-size-fits-all approach to and downsides of both methods? agency or re-sign with their teams. And succession planning, however. A school, There are strong parallels between in the business world, retaining and pro franchise or widget manufacturer corporate America and collegiate and attracting key employees at all levels is would probably be well advised not to professional sports teams when it comes equally important. In both cases, the designate a successor – publicly, at least to succession planning. My law practice styles of the CEOs or head coaches is – when the current job-holder is fairly spans both worlds; I am primarily a cor- important to the talent. Quarterbacks young. Who among the assistants would porate attorney, advising companies on all with million-dollar arms generally prefer want to be the designated successor behind matters of business, including succession to play for coaches who like to throw, a 45-year-old? planning, but I also have a sub-specialty in and running backs with million-dollar The parallels between the corporate world and the world of big-time athletics advising professional sports franchises on legs prefer those who lean toward a are strong but not infinite. There is more their business matters. In these roles, I see ground game. interaction between a head coach and the similarities and differences – and the ● Among the most crucial retentions is his starters, for instance, than between a commonalities are far greater – between that of the assistant coach – or execu- CEO and mid-level executives who ulti- succession planning in athletics and in tive vice president or chief operating mately report to him. Also, shareholders commerce. officer – whom the team or company have more of an entitlement than fans Most entry-level employees – graduate has identified as the best choice to lead to know who will lead a company once assistant coaches and mailroom workers in the future. Publicly designating the the CEO is finished. Fans can choose to alike – dream of someday sitting in the successor gives that person ample reason continue buying season tickets or let their corner office. The head coach is analogous to to stay and no reason to leave. It gives subscriptions lapse, but shareholders must the chief executive officer, and the assistant both the house and the talent comfort decide whether to hold – or sell – their coaches are positioned similarly to corporate and the ability to plan their futures. With stock. Finally, the high-ranking business executives, most of whom covet the top job. every upside comes a downside, and this executives who are passed over as successor There is no objective right or wrong way is no exception. The assistant coaches to the CEO may stay with the company to plan for the replacement of the person and high-ranking executives who are not regardless because they have equity posi- at the top. The issues are too fact-sensitive next in line will probably start looking to tions or pension entitlements. to generalize and conclude that it’s better leave when the announcement is made. Another consideration when deciding to announce a successor ahead of time or But the fact is that most will scatter once whether to designate is the state of the wait until the moment arrives. the change is made, regardless of whether Factors that argue in favor of anointing it was announced ahead of time. See COLLEGE COACHES... on Page

College Coaches-in-Waiting: Good Idea, or Unnecessary?

Continued from Page will stay aboard, and the designee has the right or wrong way to plan for the replace- franchise or the company. If a company is comfort of knowing he has been selected. ment of your top person, or to disseminate in the middle of a reorganization or restruc- It is often difficult to keep information that information. Fact patterns can drive turing, and the CEO is not likely to stay like that under wraps, however, and if the the decisions. But all other things being for the long haul or through a significant news leaks, the assistants surely would be equal, let’s consider a hypothetical high corporate event, it becomes more pressing alienated and the institution would lose school junior who is on the A-list of every for the company to designate the person credibility on a variety of issues with a major college football program. Penn State who will carry the torch through the chal- number of constituents. In general, the – with all its tradition and success over the lenging times. Leaving aside momentarily risk-reward paradigm argues against the years, but an 81-year-old head coach with the needs of the shareholders, creditors and no contract and no successor named? Or lenders will be eager to know who is in Kentucky, where the virtual certainty is line to lead the company. And if the team that either Rich Brooks or Joker Phillips is losing games or the company is losing In athletics and in business, will be in charge? money, by announcing early you send a there is also a middle ground to Daniel A. Etna, Esq., is a partner in the signal to all your constituents that there is consider: designating privately corporate department at New York City-based a plan to improve, and that the status quo without announcing publicly. is unacceptable and will not be tolerated. law firm Herrick, Feinstein LLP. His practice Such a signal can energize talent, recruits, focuses on general corporate representation, shareholders and other stakeholders. corporate finance and mergers and acquisi- In athletics and in business, there is also a middle ground. By announcing publicly, an tions, with a sub-specialty in sports law. His middle ground to consider: designating pri- institution gets to measure fairly accurately clients include professional sports teams and a vately without announcing publicly. That who is disgruntled and should be removed wide variety of private and public companies. approach, too, has its own set of upsides and from the landscape, and who can tolerate He played college football at the University downsides and risks and rewards. Assistants being passed over for the head job and is of Colorado and the University of Pennsylva- and vice presidents who were not chosen glad to continue as an underling. nia, from which he took his undergraduate as next-in-line will not be alienated and As I opined earlier, there is no objective degree. n

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              

           

                                                             

Ineligible Transfers Land Long Beach State in the Hot Seat The NCAA Committee on Infractions responsibility that the committee says ● The second former assistant coach’s cur- penalized the Long Beach State University universities should place high on their rent employing institution self-imposed a men’s basketball program for major and priority lists. number of penalties, which are detailed secondary infractions March 6, after an “There were multiple deficiencies in the in the public report. In addition to investigation exposed such violations as academic records of all six prospects at the these penalties, the committee imposed improper benefits, impermissible trans- time they were trying to transfer to Long a penalty prohibiting him from recruit- portation and phone calls, and unethical Beach State,” said Josephine Potuto, chair ing and/or signing any two-year college conduct by the coaching staff. of the NCAA committee on infractions, transfer student-athletes for the 2008-09 The committee wrote that between Au- in a conference call with the media. “A academic year. lot of the prospects needed to complete gust 2004 and August 2005, the basketball ● A four-year show-cause order for the junior college course work and there was coaching staff recruited six junior college second former assistant coach effective a lot of pressure on the coaches to see that transfers whose academic records made from March 6, 2008, through March it happened.” them unqualified for admittance. Some 5, 2012. students needed to complete as many as A list of penalties, some of which were ● A vacation of all wins, including any nine credit hours in a short period of time self-imposed, was created by the committee recorded in conference tournaments or to become eligible. In their efforts to catch as consequences for the blatant violations and insufficient monitoring by both the the NCAA Division I Men’s Basketball the students up academically, two assistant coaches and the athletic department. Ac- Tournament, in which the six two-year coaches violated NCAA rules by paying cording to the committee’s report, they transfer student-athletes competed while the athletes’ class fees, providing them are as follows: ineligible. The individual records of the six impermissible transportation, and even ad- young men shall also be vacated. Further, ministering unproctored exams and forging ● Public reprimand and censure. the university’s records regarding men’s signatures to cover for their behavior. Ad- ● Three years of probation (March 6, basketball as well as the record of the former ditionally, they provided false information 2008, to March 5, 2011). head coach will be reconfigured to reflect to members of the committee during the ● A prohibition from recruiting two-year the vacated records and so recorded in all investigation and asked student-athletes to college transfers or permitting such publications in which the men’s basketball follow suit, the committee reported. transfers to participate in men’s basket- records are reported, including, but not The entire coaching staff was let go at ball for those student-athletes entering limited to, media guides, recruiting materi- the conclusion of last season, and the two the university for the 2008-09 academic als and institutional and NCAA archives. assistant coaches were punished addition- year. (Self-imposed by institution). Finally, any public reference to tournament ally by the committee’s imposition of a ● Reduction of scholarships in men's appearances and performances during this four-year show cause order for one and a basketball from 13 to 12 in each of the time shall be removed, including, but not five-year order for the other. These orders 2007-08 and 2008-09 academic years. limited to, athletics department stationary require that, should either coach be hired by (Self-imposed by institution). another institution, he will be required to and banners displayed in public areas such appear before the committee to determine ● Reduction in the number of official as the arena in which the men’s basketball if his responsibilities should be limited. visits to nine (from the maximum of team participates. The two assistants were not held solely 12) for each of the 2007-08 and 2008- The team’s new head coach, Dan Mon- responsible for the violations though, ac- 09 recruiting years. (Self-imposed by son, was hired knowing that the investiga- institution). cording to the committee. The head coach’s tion was ongoing and would likely lead to insufficient monitoring of the program ● Reduction from three to two in the such punishments. “We knew some of this and failure to involve the compliance number of coaches who can recruit off was coming,” he said in a statement, “but department in the process of bringing campus during the summer recruit- that doesn’t make it any easier.” the transfers in led to his reprimand. In ing period of 2007. (Self-imposed by Athletic Director Vic Cegles said that, addition, the entire athletic department institution). fortunately, vacating wins involving in- was castigated by the committee for fail- ● A five-year show-cause order for one for- eligible players should not mean that the ing to sufficiently regulate the arrival of mer assistant coach effective from March 49ers would have to give up the Big West transfer student-athletes on campus—a 6, 2008, through March 5, 2013. Conference title they won last season. n

News in Brief

Basketball Coach Sues School, AD and coach and conducted an internal investigation. After reviewing Attorney the findings, FGCU Athletic Director Carl McAloose reinstated The former men’s basketball coach for the University of San Fran- the coach and issued a written reprimand, which read, in part, cisco men’s basketball team has sued the school and several officials that: “placing your hand on a student-athlete’s chest protector is for defamation. Jessie Evans alleged that USF, its athletic director not acceptable behavior. and an attorney defamed him when stipulated that the firing was Settlement Reached Between Downtown for “just cause.” Evans’ attorney, Dan Siegel, claimed in the media Atlantic Club and Dick Butkus that AD Debra Gore-Mann and USF attorney Michael Vartain The Downtown Athletic Club of Orlando has reached a settle- used that tag so they would have “to pay him anything. … They ment with Hall of Famer Linebacker Dick Butkus, which calls made statements telling the world he’s not employable.” for it to surrender the rights to presenting the Butkus Award to college football’s top linebacker. The agreement resolves a year-long Phil Knight’s Construction Company To Build trademark fight. Butkus filed a law suit last year, claiming that the Athletic Building Orlando club didn’t raise enough money for its charitable causes or for his. He also rescinded rights to his name and likeness. Last More renowned for being a successful show salesman, Nike Founder month, a federal judge from the Central District of California is- Phil Knight will reportedly construct a building for the University sued a partial summary judgment in Butkus’ favor. The judge also of Oregon’s athletic department. Knight’s company will build the ruled that DACO was responsible for Butkus’ legal fees, which had Academic Learning Center for Student Athletes, a 35,000-square- soared to more than $200,000. The settlement relieved DACO foot building. Knight, Oregon’s biggest booster, will give ownership from paying Butkus’ legal costs and gave the club permission to use of the building to the university once the project is completed. Butkus’ name in conjunction with two other fundraising events, However, as part of the deal, Oregon will be required to run the an annual golf tournament and a growing Pop Warner football center “at the leading edge of excellence,” “substantially expand” program. Butkus was represented by attorney Robert F. Helfing. personnel, “exceed nationally accepted staffing ratios,” and make “a significant investment in technology.” COIA Wants Athletic Departments To Improve FGCU Reinstates Softball Coach Course Monitoring Florida Gulf Coast University has reinstated a softball coach, who The Coalition on Intercollegiate Athletics, a faculty-based organiza- days before had been accused of assaulting player. The coach, Dave tion partnered with the NCAA, has issued a call for athletic depart- Deiros, was initially suspended last month after senior catcher Roz ments to be more diligent about ensuring that student-athletes take Tyre had accused him of grabbing her twice by her chest protector appropriate courses. Specifically, COIA wants universities to adopt after she said she didn’t want to take part in catching drills because a proposal to collect data on enrollment and grading patterns of of a sore arm during a practice. Tyre went so far as to file a report student-athletes to prevent situations where student-athletes take with campus police after the incident. The school suspended the easy classes to remain eligible. “(S)uch data should be designed to reveal whether there are clusters of athletes enrolled in identical courses or in courses with identical instructors, unusually high Keep Current, Maintain Your Edge class GPAs in such courses or from such instructors, or grades significantly higher than predicted for athletes as compared to For the past nine years, Legal Issues in Collegiate Athletics others in such courses or from such instructors.” has kept its readers informed of the changing legal landscape. Published monthly by Hackney Publications, Legal Isses in JC Will Initiate Women’s Wrestling Program Collegiate Athletics provides information crucial to you and Jamestown College will start a women’s wrestling program, the your institution. school announced last month. The Jimmies already had 11 athletes Annual subscriptions are available for $165. signed up when they made the announcement. Men’s Coach Cisco Subscribe today! Cole will coach the team. “Since adding men’s soccer two years ago, http://www.hackneypublications.com/lica/subscribe.php we have been evaluating possibilities for a new women’s sport, and we are excited to lead the way in this region with women’s wrestling,”

Legal Issues in Collegiate Athletics Copyright © 2008 Hackney Publications (hackneypublications.com) 11 / May 2008 said Jamestown College president Robert S. Badal. “We anticipate Amateurism Discussed at Symposium the addition of more teams in the years ahead and the opportunity Continued from Page to compete in Canada and the U.S.” There are currently eight other Monasch was central to another story line that emerged during colleges in the U.S. that offer women’s wrestling, including NAIA the symposium, concerning whether today’s college athlete are schools Cumberlands (Ky.), Oklahoma City University, Missouri truly amateurs, or not by virtue of the scholarship they receive. Valley, Menlo (Calif.) and Missouri Baptist. Other schools with Monasch maintained that the scholarship was a valuable commod- programs include Northern Michigan, Pacific (Ore.) and Yakima ity. He had the support of Bevilacqua, who used to be a wrestler Valley CC (Wash.). Wisconsin-River Falls has a club program. In at Penn State University. addition, there are 15 colleges in Canada that have teams. ——— Birch empathized with athletes and the level of scrutiny they Report: Tennessee Sent Letter in 2006 must endure. He noted that if actor Kiefer Sutherland is arrested Alleging UConn Violations for a DUI, he isn’t suspended by the network from a few episodes ESPN.com reported last month that the University of Tennessee of his hit show “24.” An athlete, by contrast, would typically face accused the Connecticut women’s basketball program of “a pat- an immediate suspension. tern of violating NCAA rules, including allowing former players Birch also spoke of the indignity an athlete faces when being drug tested in front of witnesses. to practice with the team on a regular basis, arranging a tour of In addition, he highlighted the double standard that athletes ESPN for a highly touted recruit and permitting former players face when using performance enhancing drugs. He noted that to serve as recruiters.” The charged was leveled in a letter that was newscasters use Botox to improve their appearance, which sets sent to the Southeastern Conference in July 2006. In response to a bad example for young people, and yet they are not penalized the report, UConn issued the following statement: “The allega- for using such drugs. Athletes face punitive penalties for using tions received from the SEC produced only one highly publicized them. To be fair, Birch was not suggesting that penalties for result. The NCAA and UConn both consider the matter closed steroid use be modified, only that professional athletes sacrifice and that has been shared with the SEC.” n and earn their compensation. n

Personnel Moves Longwood University announced that Troy department’s day-to-day operations with will oversee 12 athletics programs at Tuske- Austin, a former Duke football player who direct oversight of football and men’s gee—a member institution of the Southern has acted as Longwood’s interim athletic basketball. Intercollegiate Athletics Conference. director since August 2006, has been named Former Buffalo Bill, Joe Cribbs, has ac- University of North Dakota athletic direc- AD. He will continue to oversee the school’s cepted a position at the helm of the United tor position will be filled byBrian Faison, 14 athletics team, which underwent an National Football League, a developmental the school’s vice president announced. NCAA Division I Reclassification during league scheduled to start play in January Faison, who was formerly Special Assistant the 2006-7 school year. 2009. He previously held a position with to the President and Major Gifts Officer at Effective July 1, 2008, Corey Bor- the All American Football League, but New Mexico State University, assumed his chardt—the first ever Upper Midwest when its debut was postponed to April post in late April, replacing co-acting ADs Athletic Conference Sports Information 2009, he was let go. The Connecticut- Betty Ralston and Steve Brekke. Director—will become the conference’s based UNFL hopes to compliment the Former Missouri gymnastics stand-out and first full-time Commissioner. He replaces NFL, Cribbs said, pointed towards fans 2006 Big XII Conference Female Sport- Jim Unke, who served as part-time com- who crave more football. sperson of the Year, Jodie Heinicka, was missioner for 10 years. appointed Senior Women’s Administrator at Stacy L. Danley II will be moving from Northwestern State University. She replaces Jeff Compher will replace Jim Phillips Auburn to Tuskegee, Alabama, as he has Julie Lessiter, who stepped down to enter as Northern Illinois University’s AD. He accepted the AD position at Tuskegee private business early this year. n comes from the University of Washing- University. The former associate AD/men’s ton, where he was in charge of the athletic athletics coordinator at Auburn University

New Conduct Policies Set to be Implemented at Missouri State University

A broad panel of academicians, attorneys, felony and a player is arrested in ‘sport B’ ● Jodie Adams, Director of Parks, Spring- student athletes and athletic department for a felony, it’s recommended that the same field-Greene County Park Board officials at Missouri State University has sanctions apply,” said Dr. Bruce Johnson, ● Kellington Boddie, student-athlete Professor of Agriculture, Athletics Repre- recommended a student athlete-conduct ● sentative and chairperson of the panel. Larry Catt, Attorney at Law, Catt, Cole, policy that would require uniform punish- & Martin ment for serious criminal offenses. The panel modeled its code of conduct ● Casey Comoroski, Associate Director of The panel was formed in November after one used by Fresno State University, Athletics/Senior Woman Administrator after a spate of highly publicized criminal which left coaches with the authority to (SWA) incidents brought negative publicity to the implement discipline for lesser violations. There were two other significant recom- university and its athletic department. ● Don Hendricks, Director of University mendations, according to Johnson. In response to these incidents, MSU Communications President Michael T. Nietzel initiated the ● Introduction to rules: All coaches should ● Mr. Michael Jungers, Associate Dean formation of panel that would receive the hold an orientation session with stu- of Students dent-athletes shortly after their arrival following four-point charge: ● Dr. Tom Kane, Professor of Psychology on campus. ● Examine our policies and practices to and chair of the Faculty Senate ● Point of contact: When an athlete is determine how well we are communicat- ● Michelle Nahon, Attorney at Law ing our standards and expectations for involved in an issue categorized as be- ● Miles Sweeney, Retired Senior Circuit appropriate behavior by our student- ing serious under the overall policy, the Judge athletes, beginning with recruiting and initial spokesman will be the director continuing through competition at of athletics. For more details on the report and Missouri State. The new policies are scheduled to be recommendations, visit: http://www.missouristate.edu/ ● Examine our policies and practices implemented by Aug. 1. athleticsreview/report.htm n for monitoring behavior of student Aside from Johnson, the rest of the committee included: athletes to enable and ensure as high a level of compliance with expectations as possible. Jerry Jones Will Give Keynote Address at ● Examine our policies and practices to Upcoming NACDA Convention determine if we are adequately prepared to react to different levels of legal in- The National Association of Collegiate Directors of Athletics (NACDA) has announced volvement that a student athlete may that Jerry Jones, Owner, President and General Manager of the Dallas Cowboys, will give encounter, ranging from arrest, to facing the association’s keynote address at the 43rd Annual NACDA Convention, which will be criminal charges, to being convicted of held Monday-Thursday, June 9-12, at the Hilton Anatole Hotel in Dallas. a crime. Jones, who will give the Keynote Address on Tuesday, June 10 at 8 a.m., took over as general manager of the club in 1989, becoming the first owner in NFL history to guide ● Examine our policies and practices his team to three league championships in his first seven years of ownership (1992, 1993, regarding how we respond to requests 1995). for public information and/or comment In 2009, the new Dallas Cowboys Stadium is scheduled to open for the 2009 NFL about students who may find themselves season in Arlington, Texas. The Cowboys new home will serve as a catalyst to attract a wide in potential legal jeopardy. range of national and international events that will help define North Texas. Following The most significant recommendation the 2010 NFL season, the Dallas Cowboys Stadium will host Super Bowl XLV. by the panel was to establish a threshold, Jones serves on various NFL committees, including Management Council Executive where a decision of discipline would no Committee, the Broadcast Committee, the Special Committee on League Economics and longer be left to the head coach. the Los Angeles Stadium Working Group. Jones was also on the committee that landed “If a player is arrested in ‘sport A’ for a current NFL Commissioner Roger Goodell in September 2006. n