Social Media and athletes have a tricky relationship. On one hand, interacting with fans and other athletes on social media can have a positive effect on the athlete's brand. On the other hand, misstatements, insults, or inflammatory comments can cause immense harm for the athlete's brand. This damage can be especially evident if a company the athlete endorses determines the statement to violate a morals clause in their contract. In some cases, negative social media posts may impact an individual's career as a professional athlete before it even starts.
It has been standard practice for college athletes to have their social media accounts monitored by their team. College sports teams also monitor/review the social media accounts of prospective athletes.
Three years ago, an unnamed college coach was recruiting two basketball prospects from Fairport High School. However, upon reviewing the recruits' social media accounts, the college coach determined that one of the recruits did not represent the College's values and standards. Subsequently, the college coach ceased recruiting the athlete. Interestingly, the recruit's Twitter was not filled with illegal activity, but contained frequent use of vulgar language and made several references to partying. Those posts were enough to cost the young man a potential scholarship.
Undoubtedly, athletes are public figures. In the hyperconnected world of today, aspiring professional athletes must be prepared to act as professionals at an early age. Young athletes must realize/be instructed that anything they have ever posted on a social media account is available to anyone that wants to dig deep enough. Here are some tips for aspiring, young athletes to easily control their public image by navigating the minefield of social media:
Social media can be tricky for the young athlete, but following some of these best practices will help enhance their budding brand as they progress in their careers.
Recently, strong allegations have surfaced that eSports is suffering from a performance enhancing drug ("PED") use problem. These PEDs are not the steroids and human growth hormones of other sports, but are instead neuroenhancers.
These kinds of drugs (Adderall, Ritalin, Selegiline, etc.) are known as "smart drugs" due to their abilities to enhance focus, calmness, and act as stimulants, which debatably enhance performance in professional gaming. Although there appears to be much confusion as to whether such neuroenhancers are banned from professional gaming (a quick Google search reveals many questions on the topic and few actual answers), if it is banned, there appears to be little enforcement as noted in the link above.
Irrespective of neuroenhancers' status as potentially banned substances in professional gaming, utilizing such substances can have an impact upon a player's/team's existing sponsorship agreements.
As I noted previously, sponsorship agreements generally contain morals clauses. A morals clause allows a sponsor the opportunity to cancel a sponsorship should the athlete or team act in a way that is harmful or damaging to the sponsoring brand. In other words, morals clauses allow sponsors a means of exiting a sponsorship agreement with an athlete engaged in a scandal or otherwise illegal activity.
The use of neuroenhancers in pro-gaming, regardless of whether the substance is banned, can trigger a sponsorship's morals clause in several ways:
Any of the above reasons, which certainly is not an exhaustive list, could also be the cause of a scandal within the sport. Although scandals could be sufficient to independently trigger a morals clause, when combined with any of the above points, a scandal makes it much more likely.
Similarly, a team sponsorship may be impacted by a team member's use of neuroenhancers. Depending on how the morals clause is written, a single team member's actions may be sufficient to trigger the morals clause and permit the sponsor to cancel the sponsorship agreement.
As the eSports industry determines methods for curbing its PED problem, teams should keep in mind that any PED use can impact the sponsorships that they have worked hard to obtain. No team would want to lose its sponsor because a morals clause was triggered in an effort to perhaps gain a competitive advantage. Even worse, future sponsors may be hesitant to sponsor a player and/or their team due to past PED use.
Crowdfunding has been a popular platform for start-ups and small businesses to raise money on the internet. Given the success of crowdfunding platforms, such as Kickstarter, and the costs of playing sports, it was only a matter of time before platforms were introduced solely directed at crowdfunding athletes. Now, several platforms for crowdfunding athletes exist, including:
represent their countries in the Olympics.
Although these crowdfunding platforms can be vital for organizations, olympians, professional athletes, or some amateur athletes, crowdfunding is an attractive and potentially unknown danger for athletes with collegiate eligibility.
NCAA Bylaw 12.01.1 states that "Only an amateur student-athlete is eligible for intercollegiate athletics participation in a particular sport." However, Bylaw 2.9, the NCAA's core principle of amateurism, states "student-athletes should be protected from exploitation by professional and
commercial enterprises." Although the NCAA's definition of amateurism has shifted over the years, receiving any form of compensation (including having something paid for) has been violative of the NCAA's amateurism principles, and has resulted in fines as well the loss of athletic eligibility. For example, Georgia running back Todd Gurley is currently suspended pending investigation into whether he received payment for autographs.
With the increasing prevalence of costly training camps and showcases for young athletes, meaning those who are not yet college eligible, it is easy to see how crowdfunding can be an attractive means of funding attendance at training camps and showcases. Although young athletes may be aware that they cannot be "paid," crowdfunding raises the following questions:
Young athletes and their parents, assuming they are aware that athletes cannot receive compensation, may not inherently view crowdfunding to attend specific events as compensation. Taking a simplistic view, the young athletes and their parents may assume that the rule barring payment prohibits salary-like payments for on field performance. Therefore, those athletes and parents may believe that crowdfunding for a specific event is not violative of NCAA regulations.
This dangerous assumption could be problematic when the young athlete attempts to play in college. Should the NCAA become aware of previous crowdfunding, the player could be fined an amount equal to the funding received and/or suspended. Such a fine could be prohibitive to a college athlete if they used the crowdfunding service several times.
Potentially, the NCAA could hold the young athlete accountable for his or her parents' crowdfunding in support of their athletic endeavors. The NCAA's prohibition against players receiving extra benefits also extends to their parents. The NCAA's investigation into Reggie Bush and his family is a good example of this, although the investigation took place after he turned pro.
While attending USC, Bush's family rented a home from Michael Michaels, who at the time was establishing a sports agency that hoped to sign Bush. Throughout their time in the house (approximately a year) Michaels provided multiple impermissible extra benefits and inducements, including rent free housing, transportation, and money to pay off debts. Although it was alleged that Bush was aware of Michaels providing the benefits to his family (under the purported agreement that he would repay Michaels when he turned pro), Bush's knowledge was immaterial as parents are also prohibited from receiving extra benefits and inducements. The NCAA found multiple violations to have taken place (including violations not mentioned here), and retroactively sanctioned Bush, as he was now a pro player. Bush's experience should serve as a cautionary tale to crowdfunding parents, as an athlete can be sanctioned for their parents' actions as they relate to the athlete.
Lastly, there is a question of whether athlete crowdfunding sites should be responsible in some way for the potential repercussions of athletes utilizing their service. Although there is little, if any, legal recourse against such a site for an athlete unknowingly committing NCAA violations, there is no question that the websites should include a warning regarding college eligibility when signing up for the service, especially if the websites are hosted domestically. That warning should not be buried in their terms of service agreement, but should be explicit. If these sites are truly supporting the advancement of athletes, then they should seek to protect their aspirations by at least providing a warning.
Of course, crowdfunding for athletes is only problematic from an NCAA perspective if the user plays an NCAA sport. For those that don't play such sports, crowdfunding could be instrumental to their amateur and/or professional career. It is unfortunate that NCAA regulations would stand in the way of future NCAA athletes going to specialized camps, or showcasing their abilities, that will help them reach the next level. However, it makes sense. Allowing crowdfunding for future college athletes would create a vehicle by which highly touted young athletes could be financially swayed by colleges, professional teams, and agents. Such inducements are not only banned by the NCAA, but also the professional sports leagues.
Crowdfunding can be positive for many athletes, just not those athletes who plan on playing in the NCAA.
Last week, my blog post regarding equity for endorsements focused on the benefits and disadvantages of the athlete/celebrity endorser. This post will focus on the companies, and why they should or shouldn't offer equity for endorsements.
Startups have long sought celebrity endorsements under the misguided notion that the endorsement will equate to the company's success by harnessing the celebrity's star power. In fact, there are many articles on how to attract celebrity endorsers (See here and here) Not surprisingly, offering equity for endorsements is a common suggestion on these "How To" articles. But, companies should be mindful of how they distribute their equity, as a celebrity endorsement does not always work out well for the company (see here).
In sum, all of the benefits of getting endorsements for equity necessitate sales increases and discount the loss of equity.
Celebrity endorsements of products and companies have long been commonplace. However, where these celebrities were once paid with money, many are instead accepting equity. This is particularly true when it comes to celebrities endorsing start-ups and their products.
Last week, The New York Times ran an article which stated that equity for endorsement agreements are gaining in favor with celebrities due to the recent explosion of the start-up scene, especially in California, and the deal's ability to create substantial income should the company become successful. This is especially true for professional athletes.
Professional athletes have particularly taken to equity for endorsement agreements. This is likely due to the potential of receiving a windfall and the players' understanding that athletic careers can be lost at any time. In recent years, several athletes have made headlines by entering into equity agreements. One of the most notable equity for endorsement agreements was David Wright's acquisition of .5% of Glaceau, the creator of Vitamin Water. When Glaceau was bought in 2007 by Coca Cola for $4.1 Billion, Wright's .5% was worth an estimated $20 Million. In 2010, Tom Brady entered into an equity deal with Under Armour, a now ubiquitous athletic apparel company. Most recently, in June, 2014, Richard Sherman entered into an equity for endorsement agreement with BODYARMOR SuperDrink.
However, accepting equity for endorsements has significant benefits and disadvantages for the endorsing athlete.
Although athletes and celebrities may be agreeable to equity for endorsements due to the low risk/high reward potential, companies do not freely offer such opportunity. Many companies are protective of their equity, and within good reason. My next post will discuss the benefits and disadvantages of equity agreements to companies, who bear a much bigger risk when offering equity for endorsements.
On September 8, 2014, TMZ Sports released the video of Ray Rice striking his fiance in the elevator of an Atlantic City Casino. Until this point, the NFL claimed it had not seen the video, despite requesting it from the police. Thus, the video played no part in determining Rice's initial two game suspension (which I initially discussed here).
Although the NFL now faces questions about the sufficiency of its investigation process, the League should also be faced with a lawsuit. After TMZ released the video, Rice was released by the Baltimore Ravens. More importantly, the NFL indefinitely suspended RIce from the League, despite having initially suspended Rice for two games. In other words, the NFL punished Rice for the same offense twice.
Conceptually, punishing a player twice for the same offense is a problem. This would allow the League's Commissioner to reserve seemingly unending power to exact punishment and then change his mind as he sees fit. Importantly, although the Commissioner is granted the authority to punish players under Article 46 of the Collective Bargaining Agreement ("CBA") entered into by the NFL and the NFL Players Association ("NFLPA"), which is further specified in the NFL Personal Conduct Policy, the CBA is silent as to multiple punishments by the Commissioner for the same offense.
The Commissioner's second punishment should be challenged in court. In order for Rice to succeed in challenging that the Commissioner exceeded his authority by disciplining Rice a second time for the same offense, he would have to prove that the indefinite suspension was arbitrary and capricious. This burden of proof, although deferential to organizations as decision makers, may be achievable for Rice.
In support of his claim, Rice would rely heavily on the NFL's investigation process which led to his first suspension. During the investigation, the NFL gathered evidence it deemed necessary to discipline Rice. The NFL recently stated that it requested "any and all information about the incident, including the video from inside the elevator" and that "[The elevator] video was not made available to us and no one in our office ha[d] seen it until [TMZ released it]."
Despite being aware of the existence of the elevator video and knowing the League had not seen it, the Commissioner decided to discipline Rice by suspending him for two games. Therefore, the Commissioner's second disciplining of Rice can be seen as arbitrary and capricious because there is no rational connection from the indefinite suspension to now seeing the contents of the video they implicitly rejected to pursue. In essence, the NFL cannot claim that the contents of the video are new evidence, as they were aware of the video's existence and chose not to ensure they saw the video before exacting discipline.
Another point that Rice could raise, albeit a weaker one, is that he was disciplined a second time absent any investigation, which is arbitrary and capricious as the League violated its own rules. Within less than a day of the tape's release, the NFL suspended Rice indefinitely. The NFL Personal Conduct Policy states that "Upon learning of conduct that may give rise to discipline, the League may initiate an investigation" and "Upon conclusion of the investigation, the Commissioner will have full authority to impose discipline as warranted." The Personal Conduct Policy only discusses an expedited disciplinary process with respect to repeat offenders. However, Rice's single incident of known domestic violence is the only time his conduct had given rise to an investigation or discipline. Therefore, under its own terms, the NFL would be treating the viewing of the elevator video as a separate disciplinary incident due to the lack of an investigation. However, as the video portrayed the known actions in the same event as the first disciplinary matter, any additional discipline would be arbitrary and capricious.
Further evidence that the NFL is treating the elevator video as a separate discipline-worthy incident comes from the recent changes to the Personal Conduct Policy. In the fallout from the perceived leniency of Rice's initial two game suspension, the Commissioner mandated that enhanced penalties for domestic violence be placed within the Personal Conduct Policy. Under these enhanced penalties, a second domestic violence offense mandated that the player would be indefinitely suspended from the NFL, and would only be allowed to apply for reinstatement after a year. Such discipline is identical to that received by Rice following the release of the elevator video. However, as noted above, the release of the elevator video cannot be effectively said to be a separate disciplinary event.
Should Rice be able to meet the arbitrary and capricious burden, the Court would then overturn his indefinite suspension and instead, his previous two game suspension would hold. However, Rice may not wish to bring suit out of public relations concerns. Certainly, his image has been rightfully tarnished by his actions, and bringing suit to be reinstated in the NFL may create additional negative perceptions. However, the NFLPA has the ability to bring suit on his behalf. The NFLPA is particularly interested in this matter because of the precedent that it could set on player discipline. Simply put, the NFLPA does not want the Commissioner to be able to discipline a player twice for the same offense. Should it bring the suit on behalf of Rice, he would still have the benefit of having his indefinite suspension overturned if the NFLPA succeeds.
Although Rice's actions were truly despicable, League officials must be forced to correctly discipline players on their first attempt. Otherwise, no discipline is ever final.
Earlier today, I added a Media page to the website, where I will post videos and articles I am featured in. Currently, there are two videos and an article posted. Stay tuned for more, and also keep an eye on the blog for video posts.
Below is the most recent video, which you can find on the Media page. In the video, I discuss my practice and the O'Bannon v. NCAA ruling on the Price of Business show on Business KTEK 1110 in Houston.
On August 8, 2014, one of the most important Sports Law cases was decided. The case, O'Bannon v. NCAA, was a class action lawsuit brought by current and former college athletes that sought to challenge the NCAA's rules prohibiting compensation for FBS football and Division 1 basketball players on antitrust grounds. Specifically, the athletes were challenging the rules that disallowed athletes from receiving a portion of the revenue the NCAA, and its institutions, receive for the use of the athletes' names, images and likenesses in video games, game broadcasts, and other forms of media. The athletes alleged that these rules violated the Sherman Antitrust Act.
Ultimately, the Court found in favor of the athletes, holding that "the challenged NCAA rules unreasonably restrain trade in the market for certain educational and athletic opportunities offered by NCAA Division I schools. The procompetitive justifications that the NCAA offers do not justify this restraint and could be achieved through less restrictive means." Based on its findings, the Court imposed an injunction to:
This case is notable for the implications it has on college sports in both the present and the future. Although the remedies were limited in scope, much of the decision reads of contempt for the NCAA's business practices under the guise of amateurism. This decision may not be the deathblow to the NCAA and/or its practices, but it certainly provides a step in the right direction for athletes to be compensated. Further, and perhaps more importantly, this decision provides the foundation for future legal challenges to the NCAA's practices. Currently, there are multiple challenges to the NCAA's business practices, and since the O'Bannon decision was filed, another class-action antitrust suit has been commenced against the NCAA.
Effects of the O'Bannon decision
Unfortunately, this ruling does little to put money in the players' pockets during college, when they need it. Athletes who have full scholarships can struggle financially during their time in college, as scholarships do not cover the full cost of attendance. Further, there is a public perception that all collegiate football and basketball players are scholarship athletes. This notion is simply untrue. Many athletes, even at the Division 1 level, do not have scholarships. For instance, per NCAA regulations, a FBS football team can have up to 85 players on full scholarship at any given time. However, prior to the college's first day of classes or the team's first game (whichever is sooner) a team's roster cannot exceed 105 players. This means that football teams are allowed to have 20 athletes, approximately one-fifth of the total roster, who are not on scholarship prior to their first game. These walk-on athletes must attend college on their own dollar, and many struggle financially to do so.
However, this decision is still a victory for players' rights. The NCAA has hidden behind its principles of amateurism and the "student-athlete" since its inception, and has vehemently refused (by both actions and omissions) measures that it believed would align it with professional sports leagues. Some of these measures include:
Although this decision did not provide remedies that impact athletes during their college careers, it effectively obliterated the NCAA's concept of amateurism. In discussing the inconsistencies of how the NCAA has defined amateurism throughout its history, Judge Wilken opined that "Rather than evincing the association's adherence to a set of core principles, this history documents how malleable the NCAA's definition of amateurism has been since its founding." The NCAA's convenient principle of amateurism is the foundation of many, if not all, of players' rights issues that should be addressed in further litigation. Most notably, amateurism is one of the NCAA's primary oppositions to the unionization of college athletes.
Importantly, the O'Bannon case has provided a roadmap for future lawsuits on how to challenge many of the NCAA's practices. The decision itself has provided a large amount of language for Courts to utilize in decisions for years to come. The NCAA is currently facing several similar class action cases. One of the current class action antitrust cases alleges that the NCAA has unlawfully capped player compensation to the value of the scholarship. This effectively seeks a free market for player compensation. This case is similar in theory to the O'Bannon case, and could benefit from utilizing the analysis of the O'Bannon decision, particularly Judge Wilken's discussion of amateurism. Certainly, at least some of Judge Wilken's analysis from the O'Bannon decision will be used to frame that case moving forward. Time will tell whether or not the case succeeds, but the O'Bannon decision has exposed a weakness in what has been the NCAA's strongest argument.
Changes through legislature?
In her conclusion to the O'Bannon decision, Judge Wilken opined "It is likely that the challenged restraints, as well as other perceived inequities in college athletics and higher education generally, could be better addressed as a policy matter by reforms other than those available as a remedy for the antitrust violation found here. Such reforms and remedies could be undertaken by the NCAA, its member schools and conferences, or Congress." This statement, while not a ringing endorsement of change through antitrust challenges, also highlights the ease (technically speaking) by which the NCAA's inequitable practices can be remedied, or solidified, through negotiation or petitioning Congress. As the NCAA has refused to budge thus far on these athletes' rights issues, the only remaining path (other than litigation) is by seeking Congressional action.
In light of the several cases the NCAA was facing recently, the NCAA spent $240,000 on lobbying in the last six months. Not only is this amount approximately $80,000 more than the NCAA spent all of last year on lobbying, it is also the most the organization has ever spent on lobbying. There are likely two reasons the NCAA is pursuing this lobbying campaign. Either the NCAA is attempting to solidify its practices with respect to athletes by seeking Congressional action, or their lobbying is a means of damage control.
Despite the NCAA's lobbying, college athletes' rights have become a topic of discussion in Congress. Recently, Congress formed a bipartisan caucus "to inform Congressional members about physical, academic and financial issues college athletes face so they're treated fairly." The Congressional Student-Athlete Protection Caucus, as it has been named, was designed to foster discussions that would "lead to greater accountability on the part of the NCAA" (Charles Dent [R-Penn]). Perhaps as Judge Wilken opined, Congressional action may obviate the need for further litigation to give athletes the rights they are entitled to.
Although the O'Bannon decision did not result in sweeping changes to NCAA practices, the ruling importantly exposed a weakness in the NCAA's arguments that future litigants may be able to utilize to their advantage. Certainly, the several ongoing actions against the NCAA will borrow some of the analysis from the O'Bannon decision. However, as Judge Wilken opined, Congressional action may obviate the need for further litigation. Hopefully, the Congressional Student-Athlete Protection Caucus yields legislation supporting college athletes' rights. Otherwise, the lawsuits will continue until these athletes get the rights they deserved.
In late February, 2014, Ray Rice was charged with assault after striking his fiancee, rendering her unconscious. Subsequently, a video of Rice dragging his fiancee through their hotel on the night in question went viral on the internet. Although the charges against Rice were ultimately dismissed, punishment by the NFL was nearly guaranteed.
Late last week, the NFL announced that Rice would be suspended for the first two games of the 2014-2015 season and fined an additional game's salary, $58,823. The totality of Rice's suspension has widely been perceived as too lenient and offensive to women. This notion is especially realized when Rice's punishment is compared with recent penalties for drug abuse.
In early May, 2014, Josh Gordon was suspended for at least the entire 2014 season after testing positive for marijuana use. Although this was at least Gordon's third offense, the severity of his punishment vastly outweighs Rice's. Similarly, Justin Blackmon is also suspended for at least the 2014 season for his repeated use of marijuana. However, a player who fails a drug test for the first time is suspended for four games, as explained below, which is twice the suspension that Rice received.
The specific punishments for substance abuse are mandated by the collectively bargained NFL Policy and Program for Substance Abuse (hereinafter, "NFL drug policy".) In contrast, punishment for conduct detrimental to the league (which includes illegal conduct) is determined by the Commissioner of the NFL. The differences in how player misconduct is governed is one of the main reasons that punishment for substance abuse offenses varies from conduct detrimental to the league, such as Rice's alleged assault.
The NFL Policy and Program for Substance Abuse
In 2010, the current NFL drug policy was agreed upon by the league and the NFL Players Association. Its primary purpose is to "assist players who misuse substances of abuse, but players who do not comply with the requirements of the Policy will be subject to discipline." The policy establishes a comprehensive substance abuse program where players are put on treatment plans and monitored based upon what stage of the program the player is classified in.
Players enter the program by failing a drug test, behavior (such as an arrest related to substances of abuse), or self-referral. Once in the program, players are evaluated and placed in Stage One.
In stage one, upon evaluation, the medical director will determine whether the player should be referred for clinical treatment and subsequently develop a treatment plan. Entering this stage does not necessarily mean that the player has a substance abuse problem, but that treatment may help prevent such a problem in the future. Under the purview of a treating clinician, the player will be treated according to the treatment plan, and given as many substance abuse tests as necessary to evaluate the player, at the discretion of the medical director. Players may remain in stage one for up to 90 days, which can be extended to six months under certain circumstances.
A player being released from stage one or advanced to stage two can occur as follows:
In stage two, players must comply with the treatment plan as developed, be evaluated further, and be subjected to unannounced substance abuse testing. The tests may not be given more than 10 times a month. Should a player fail to adhere to the treatment plan, testing, or fail a substance abuse test, the player is subject to discipline. If the player successfully completed stage one, then the player is fined four weeks pay. In contrast, if the player did not complete stage one, then the player is suspended four consecutive games without pay, including the post-season and Pro Bowl, if selected. Should a player violate stage two a second time, the player will be suspended four consecutive games if his first violation resulted in a fine, a suspension of six consecutive games if the player was suspended for his first violation, as well as forfeit a percentage of his signing bonus to his team proportional to the length of the suspension.
Players remain in stage two for 24 months or two full seasons, whichever is shorter. A player is advanced to stage three if while in stage two he has two failed substance abuse tests, two instances where the player fails to comply with testing or treatment as defined by the treatment plan, or one failed test and one instance of noncompliance with the treatment plan. A player who completes stage two and is not advanced to stage three is released from the program.
Stage three is much more serious than the two which precede it. Once a player is in stage three, they remain there the rest of their NFL career. The player is subject to unannounced drug testing up to 10 times per month and after three years may request the number of tests to be reduced at the discretion of the medical director. Most importantly, a player who fails to comply with the treatment plan, testing, or fails a substance abuse test is to be banished from the NFL for at least one year. During the player's banishment, he still must adhere to the treatment plan and his contract with the team is tolled. This is the stage that Josh Gordon and Justin Blackmon are in, as they are facing being banished for a year as a result of at least their third failed drug tests.
The punishments defined in the NFL drug policy are a binding agreement upon the Commissioner to impose the specified penalties in the circumstances defined in the policy. There is no altering of the penalties unless there are additional circumstances which amount to conduct detrimental to the league. Effectively, this means that penalties can be enhanced in rare instances, but not reduced.
Conduct detrimental to the NFL
In clause 15 of the uniform NFL Player Contract (Appendix A in the link,) the integrity of the game clause, the Commissioner expressly reserves the right to discipline players for conduct "detrimental to the [NFL] or professional football." This is a very broad power reserved to the Commissioner, which is only checked by an appeals process. Unlike the NFL drug policy, there is no agreement by which specific infractions which are detrimental to the NFL, which means that the Commissioner must attempt to use the totality of the circumstances in determining a punishment for each offense.
In Rice's case, the Commissioner surely took note of Rice's criminal charges which were ultimately dismissed after he entered a pretrial intervention program. Additionally, the Commissioner met with Rice and Janay Palmer, Rice's then-fiance and now wife, at the League office to discuss the incident. Additionally, NFL VP of Labor and Government Affairs, Adolpho Birch, offered some insight as to the Commissioner's process in disciplining Rice. Appearing on ESPN's "Mike and Mike" radio show, Birch stated:
"I think the way we [determined Rice's punishment] is the way that we determined discipline in all of these types of cases, and that is, the Commissioner elicits a number of perspectives. He doesn't sit in a vacuum when he's making these types of decisions, but instead consults with people, listens to the perspectives of the Players Association, and others at the League office, and ultimately makes a decision that he thinks is appropriate based on both the conduct and the importance of making the right message for the League and others moving forward."
It is important to note that Birch's statement highlights the way the NFL "determined discipline in all of these types of cases," which is somewhat arbitrary. And unfortunately, that's all that is known of the Commissioner's process in determining this suspension as of right now. The Commissioner has yet to speak about the suspension, but may do so when he meets with the media this weekend.
Importantly, the NFL has not said anything about how it justified the degree of Rice's punishment, which is what most people are taking issue with. Birch correctly noted that Rice's suspension and fine costs him hundreds of thousands of dollars (due to his large contract), but a player who fails a drug test for the first time has a mandatory suspension that is double what Rice received. Birch also noted that by disciplining Rice, the NFL has shown that it does not tolerate domestic violence. While this statement is correct on its face, as Rice was punished to some degree, the severity of Rice's punishment when compared with any of the marijuana use punishments creates the perception that marijuana use is more serious than domestic violence. Simply put, Rice's two game suspension shows fans that taking an illicit substance, or harming oneself, is more serious to the NFL than domestic abuse, because the suspension is longer.
The Rice disciplinary matter has highlighted the fact that the NFL's arbitrary disciplinary system is broken. Although a collectively bargained system exists for substance abuse offenses, which specifies mandatory disciplinary action under certain circumstances, the Commissioner's power to discipline players for conduct detrimental to the NFL is too broad as it currently stands. The Commissioner is free to discipline offending players as he sees fit, with little regard to severity as compared to other offenses.
Although it would be impossible to create a comprehensive list of offenses and their mandatory suspensions, it may be worthwhile for the Players Association to push for the creation of disciplinary guidelines. These guidelines would classify offenses, and each class would have a range of disciplinary actions based on aggravating factors. Although it may be difficult to come to an agreement on appropriate discipline and aggravating factors, it behooves the NFL to avoid seemingly arbitrary disciplinary decisions, such as Ray Rice's suspension, due to the public relations nightmare it has the potential to create.
Last week, the NCAA eliminated a controversial provision of the contracts it requires DIvision 1 athletes to sign. That is, the organization removed the provision that allows the NCAA, or an assigned third party, to use the name and likeness of the athlete to promote NCAA events without compensation.
Currently, the NCAA is awaiting the decision of a Federal Judge in the O'Bannon v. NCAA trial, which is a class action lawsuit brought by former, and current, Division 1 athletes principally challenging the NCAA's use of the athletes' names and likenesses in television broadcasts, rebroadcasts, and video games without compensation. The NCAA's elimination of the name and likeness provision appears to be an effort to distance the organization from the practices which resulted in the O'Bannon lawsuit.
Name and likeness rights, also known as publicity rights, are the personal rights to control the use of one's name, image, or likeness for commercial use. These rights continue to exist after death and are freely assignable. Publicity rights are State specific.
Publicity rights are an important issue for collegiate athletes because intercollegiate athletics, particularly Division 1 football and basketball, is a multi-billion dollar industry where the athletes do not get paid to play, nor for the use of their names and likenesses. Meanwhile, some NCAA conferences and schools have been making millions on media deals and broadcast rights for their sporting events which rely on the use of the athletes' names and likenesses. Additionally, the NCAA had been licensing the use of these athletes' likenesses, at a profit, for video games. In some cases, athletes' likenesses were used years after their college career had ended, capitalizing on players' success and popularity as a professional. Not only were the athletes unpaid for their on-field performance, but they were also unpaid for the use of their likeness, seemingly in perpetuity prior to the O'Bannon lawsuit.
Although there has yet to be a decision by the Federal Judge in the O'Bannon case, it is telling that the NCAA is removing its name and likeness provision from its athlete contracts. However, some individual colleges and conferences still require athletes to sign name and likeness releases. It will be interesting to see how the Court rules on the O'Bannon case, as it has the potential to reshape the business of intercollegiate athletics.
Quiles Law is an esports and sports law firm based in New York City.
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