1 Table of Contents

Table of Contents Symposium Agenda p.1 Letter from the Editor p.5 Speaker’s Biographies p.6 Background Note on Sports Ethics By: Kirk O. Hanson and Matt Savage p.19 Amateurism, Professionalism, Commercial Activity and Intercollegiate Athletics: Ambivalence about Principles By: Wallace Renfro p.32 The NCAA’s Indirect Regulation of Lawyer-Agents: In Direct Conflict with the Model Rules of Professional Conduct By: Richard T. Karcher p.46 The Impact on Demand from Winning in College Football and Basketball: Are College Athletes More Valuable than Professional Athletes? By: Daniel A.Rascher and Chad D. McEvoy p.74 Don’t Allow Pay-for-Play to Fool You By: Linda Robertson p.81 National Letter of Indenture: How College Athletes are similar to, and in many ways worse off than, the indentured servants of colonial times. By: Andy Schwarz and Jason Belzer p.84 Cash Interference: Why the NCAA should be Flagged for Prohibiting Student- Athletes from Capitalizing on Their Image Rights By: Tim English p.98 America’s Dumbest Right of Publicity Cases By: Kevin Greene p.119 The Price of Poverty in Big Time College Sport By: Ramogi Huma and Ellen Staurowsky p.126 Courts, Sports And Video games: What's In A Game? By: Ronald S. Katz p.165 Protecting the Rights of Amateur Athletes: Transforming the Judicial Tests for Balancing Publicity Rights and the First Amendment By: Lateef Mtima p.171 The Penn State Scandal: Lessons for Universities Confronted with a Public Relations Crisis By: Terry Fahn p.182 The Why (and Why Not) of NCAA Punishment By: Richard H. Larson and Josephine (Jo) R. Potuto p.198 Transformational Developments at the Interface of Race, Sport, and the Collegiate Athletic Arms Race in the Age of Globalization By: Harry Edwards p.206 1 Editors Editor-in-Chief Jacob Vigil Content Editors Content Editors Damon James Lauren Jones Brittni King Drew Miller Caitlin Reynolds Business Editor Corey Van Houten Tim English Associate Editors Ryan Adcock Stav Cohen Amanda Demetrus Will Dugoni Jack McMorrow Amanpreet Muhar Tom Wahl Letter from the Editor Welcome to the Third Annual Santa Clara Sports Law Symposium. This year we discuss the widely disputed role of athletics in higher education. We are proud to 2 present to you the second edition of the Selected Proceedings of the Santa Clara Sports Law Symposium. We were pleasantly surprised by the large number of article submissions we received for this year’s edition. Thank you to all of the authors who took the time to send us these fourteen articles to share with the Symposium attendees. I must personally thank Professor Ron Katz, who continues to be instrumental in the success of this young publication. Certainly this publication would not exist without the help of Professor Katz. Thank you, Professor Katz, for your dedication, support and advice throughout this process. I must also thank our editors. This year our editors worked extremely hard to prepare nearly three-times more articles than were prepared for last year’s edition. The large variety of topics and viewpoints that appear in this year’s edition would not be possible without the hard work of these editors. Finally, thank you for attending this year’s Symposium and taking the time to read our publication. We hope you find both the Symposium and the Selected Proceedings enjoyable and informative. Respectfully Submitted, Jacob Vigil BACKGROUND NOTES ON SPORTS ETHICS By Kirk O. Hanson and Matt Savage 3 The Institute for Sports Law and Ethics is unique in its dual emphasis on both sports law and sports ethics, and on the relationship between the two. But what really is sports ethics? What topics do you talk about when you are concerned with ethics as well as the law? On the following pages, we have summarized our understanding of the concerns of sports ethics. These background notes are only the start of a multiyear dialogue and are meant to stimulate questions and discussion at this Symposium. The following notes address: I. What Role Does Ethics Play in Sports? II. Ethics in Professional Sports III. Ethics in College Sports IV. Ethics in Youth Sports We hope you will respond to these background notes by giving us your suggestions for additional sports ethics topics and questions to be addressed. We will post additional ideas on the Institute’s website. Please send your suggestions for additional sports ethics topics to Matt Savage at [email protected]. Matt is a 2012 graduate of Santa Clara University, a college athlete, and a former “Hackworth Fellow in Ethics” at Santa Clara’s Markkula Center for Applied Ethics. He will be working with the Institute and Ethics Center to map the issues to be addressed. I. What Role Does Ethics Play in Sports? To understand the role ethics plays in sport and competition, it is important to make a distinction between gamesmanship and sportsmanship. Gamesmanship is built on the principle that winning is everything. Athletes and coaches are encouraged to bend the rules wherever possible in order to gain a competitive advantage over an opponent, and to pay less attention to the safety and welfare of the competition. Some of the key tenants of gamesmanship are: Winning is everything It’s only cheating if you get caught It is the referee’s job to catch wrongdoing, and the athletes and coaches have no inherent responsibility to follow the rules The ends always justify the means Some examples of gamesmanship are: 4 Faking a foul or injury Attempting to get a head start in a race Tampering with equipment, such as corking a baseball bat in order to hit the ball farther Covert personal fouls, such as grabbing a player underwater during a water polo match Inflicting pain on an opponent with the intention of knocking them out of the game, like the Saint’s bounty scandal The use of performance-enhancing drugs Taunting, or intimidating an opponent A coach lying about an athlete’s grades in order to keep him or her eligible to play All of these examples place greater emphasis on the outcome of the game, rather than the manner in which it is played. A more ethical approach to athletics is sportsmanship. Under a sportsmanship model, healthy competition is seen as a means of cultivating personal honor, virtue, and character. It contributes to a community of respect and trust between competitors, and in society. The goal in sportsmanship is not simply to win, but to pursue victory with honor by giving one’s best effort. Ethics in sport requires four key virtues: fairness, integrity, responsibility, and respect. Fairness All athletes and coaches must follow established rules and guidelines of their respective sport Teams that seek an unfair competitive advantage over their opponent create an uneven playing field which violates the integrity of the sport Athletes and coaches are not discriminated against, or excluded from participating in a sport based on their race, gender, or sexual orientation Referees must apply the rules equally to both teams, and cannot show bias or personal interest in the outcome Integrity Similar to fairness, in that any athlete that seeks to gain an advantage over his or her opponent by means of a skill that the game itself was not designed to test demonstrates a lack of personal integrity and violates the integrity of the game 5 For example, when a player fakes being injured or fouled in soccer, they are not acting sportsmanlike because the game of soccer is not designed to measure an athlete’s ability to flop. It is a way of intentionally deceiving an official into making a bad call, which only hurts the credibility of the officiating, and ultimately undermines the integrity of the game Responsibility To be sportsmanlike requires players and coaches to take responsibility for their performance, as well as their actions on the field. This includes their emotions. Many times athletes and coaches will make excuses as to why they lost the game. The most popular excuse is to blame the officiating. The honorable thing to do instead is to focus only on the aspects of the game that you can control, i.e. your performance, and to question yourself about where you could have done better. Responsibility also requires that players and coaches be up to date on the rules and regulations governing their sport Responsibility also demands that players and coaches conduct themselves in an honorable way off the field, as well as on it Respect All athletes should show respect for teammates, opponents, coaches and officials All coaches should show respect for their players, opponents, and officials All fans, especially parents, should show respect for other fans, as well as both teams and officials The sportsmanship model is built on the idea that sports both demonstrates and encourages character development, which then influences the moral character of the broader community. How we each compete in sports can have an effect on our personal moral and ethical behavior outside of the competition. Some argue for a “bracketed morality” within sports. This approach holds that sport and competition are set apart from real life, and occupy a realm where ethics and moral codes do not apply. Instead, some argue, sports serves as an outlet for our primal aggression, and a selfish need for recognition and respect gained through the conquering of an opponent. In this view, aggression and victory are the only virtues. For example, a football player may be described as mean and nasty on the field, but kind and gentle in everyday life. His violent disposition on the field is not wrong because when he is playing the game he is part of an amoral reality that is dictated only by the principle of winning.

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