Wednesday, August 17, 2011

Menswear story listing badly

STORY SINKING FOR MANY DIFFERENT REASONS

image Last Saturday, IBCR cited NCAA, legal and compliance sources torpedoing the T-Town Meanswear story, wherein a pair of gossip blogs had attempted to cobble together a plausible scenario in which current and former Alabama Football players had forfeited their eligibility via a relationship with the owner of a menswear store in University Mall. University Mall is the only mall in Tuscaloosa and is located approximately three miles—walking distance—from the University of Alabama campus.

This piece relies on additional experts, shows the reader why this thing is listing badly and explores the treacherous legal waters behind NCAA amateurism legislation.

The story sounded like a Carnival Cruise to the ears of rival fans: At first blush, a nebulously written by-law in the NCAA rules manual appears to render current and former Alabama student-athletes ineligible for competition if they knowingly endorse a commercial product, service or establishment. The rules in question are 12.5.2.1 and 12.5.2.2, respectively:

12.5.2.1 Advertisements and Promotions After Becoming a Student-Athlete. After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual:
(a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind; or
(b) Receives remuneration for endorsing a commercial product or service through the individual’s use of such product or service.

12.5.2.2 Use of a Student-Athlete’s Name or Picture Without Knowledge or Permission. If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student-athlete’s knowledge or permission, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics. Such steps are not required in cases in which a student-athlete’s photograph is sold by an individual or agency (e.g., private photographer, news agency) for private use.

When the gossip blogs are breathlessly showing photo after photo of memorabilia depicted in store window displays, they don’t have time to explain that neither of these two by-laws can be read without the context of the other, nor can they be read without the context of overall NCAA policy.

Under the strictest construction of the by-law—the construction used by the gossip blogs and the rival fans—a violation has occurred when pictures, autographs and other items appear in a commercial establishment. That is only partially correct, if at all.

“The display of a photograph of current student-athlete is not permissible. If a jersey has the student-athlete’s name, that is also not permissible, says Stacey Osburn, NCAA spokesperson. Osburn goes on to say, “but there would not be eligibility consequences for the student-athlete as long as they did not have any knowledge and the school issues a cease and desist notice.”

The NCAA only speaks in general terms and their comments are not meant to be applied in any particular case, warns Osburn. But in this situation, “knowledge” means granting a commercial establishment the permission to use his/her photo and memorabilia to promote the establishment’s business.

“I think your interpretation on 12.5 is likely correct. Although some interpretations have been nebulous and inconsistent in the past. From personal experience, it is often in the eye of the beholder,” Dr. David Ridpath, Assistant Professor of Sport Administration at Ohio University, told IBCR via email.

IMPORTANT TIMELINE IGNORED

The gossip blogs and message board posters not only ignore the context of the NCAA by-laws attached to their story, they also completely ignore the timeline of events. The video below represents one of the earliest known indications that T-Town Menswear was enjoying a close relationship with Alabama football players, but note also that none of the players in the video are or were current student-athletes at the time the videos were shot and uploaded to YouTube. The timestamp is June 7, 2010.



Incidentally, skip to the second to last 30-second spot for the spokesman’s statement regarding its respect in “the community.” The significance of that comes a bit later.

In a letter dated December 22, 2010, the University of Alabama Compliance Division issued a cease and desist letter to the owner of T-Town Menswear, in which the university informed the store that it was likely in violation of 12.5.2.1.

image A reading of the cease and desist order shows that the University initially feared that T-Town Menswear may have been selling or distributing memorabilia. The date of this letter is significant as well—as this was the approximate timeframe that media reports revealed the ugly Ohio State “TattooGate” story. It’s reasonable to conclude that the University of Alabama (indeed, many institutions) learned the details of the Ohio State matter and decided to check their own programs for anything similar. Alabama discovered the T-Town Menswear relationship and took action.

After a review conducted over approximately three months, the University determined that the store was not in violation of 12.5.2.1 but on March 30, 2011, disassociated the store owner from the program out of what school officials have told IBCR was “an abundance of caution.”

Ohio’s Ridpath also noted the Ohio State matter in another email, speculating that the University may have been “paranoid” in the wake of the troubles in Columbus and decided to launch a preemptive strike.

Not one of the photographs or videos that the gossip bloggers and rival fans stalked mined off of Facebook is dated after the cease and desist or the disassociation.

The dates of the compliance actions—in context with the dates of images and videos purported to show punishable violations—are important in understanding this matter because again, neither 12.5.2.1 nor 12.5.2.2 can be interpreted and understood without the context of the other, according to compliance experts interviewed by IBCR.

BYLAW INTERPRETATIONS CAN DIFFER…

“As I mentioned last week, 12.5.2.1 was not meant to prohibit businesses from displaying memorabilia, nor is it intended to prohibit current student-athletes from signing autographs. The intent of that legislation is to keep enrolled student-athletes from jeopardizing their eligibility status by selling their autographs or receiving benefits for endorsing a particular product or service,” said another NCAA source who has asked not to be identified.

“Student-athletes can’t endorse or recommend a particular business and can’t be paid for using that business’ product or service. If a student-athlete’s image or representation is used by a business to imply endorsement without the knowledge or permission of the student-athlete, the student-athlete or the institution must take steps to protect his/her eligibility.”

That last statement is important, because the two by-laws together require current student athletes to avoid endorsing a commercial establishment, but also provides a process by which their eligibility is retained when a business goes too far in exploiting a relationship with the student-athlete.

“12.5.2.1 and 12.5.2.2 were established to prevent third parties from benefiting from an implied or direct endorsement and to provide a means for student-athletes to retain their eligibility in the more nebulous situations where third parties step into a grey area,” said Dr. Anastasios Kaburakis, Assistant Professor of Management and Sports Business in the John Cook School of Business at
Saint Louis University.

“Enrolled student-athletes can't expressly endorse a product, a service or a local establishment and the by-laws establish the process for the student-athlete to retain eligibility should the establishment push the limits and appear to be exploiting the relationship,” explained Kaburakis.

“These by-laws are not intended to prevent commercial establishments from being part of the same community as the university and its athletics teams. There are instances where establishments such as the menswear store were treated by NCAA as on campus locations due to their proximity to the campus. The university, a key part of the local community, displays autographs and memorabilia. A mall, a sports bar and other commercial establishments are also part of that community. Having photos, autographs and memorabilia in these establishments is an endorsement of the university and the community as a whole,”

Go back to the YouTube video above, and fast forward to the 2:00 mark, and listen to that 30-second spot, again.

FINDING OF NO VIOLATIONS

Unfortunately, the general public does not have easy access to official NCAA by-law interpretations. The public can search the NCAA database for current legislation, but the individual by-law interpretations are behind a password protected firewall.

To get a sense of the law of the land, IBCR turned to compliance offices at eight schools located in the southeast. Two schools each were contacted in Alabama, Mississippi, Florida and Georgia. Each was provided with the following hypothetical situation and, based on their interpretations of 12.5.2.1 and 12.5.2.2, they were asked how they would respond:


A small restaurant and sports bar is located near a university and is a popular hangout for the local citizens and students, including enrolled student-athletes. The walls of the establishment are decorated with sports memorabilia, including jerseys, helmets, posters and photographs of the university's sports teams.

Included among these items are photographs and other memorabilia autographed by both former and current student-athletes. There is no clearly apparent "quid pro quo" agreement of endorsement of the establishment, and none of the current student-athletes have received remuneration or any other benefit from the restaurant owner.

But there are also numerous photographs of team members at the restaurant.


Of the eight member schools contacted by IBCR, four responded. One response was that the school would look into the matter to determine the context of the displays. All three of the others responded that while they would continue to monitor the situation, the following interpretation indicated that the displays are permissible:

image

Go back to the statement issued by Mike Ward, UA Compliance:

“It is not a violation for student-athletes to sign autographs and it is not a violation for a business to display photos, jerseys or other items depicting current student-athletes. We found no evidence that any student-athlete received any extra benefits.”

Osburn, the NCAA spokesperson, explained that interpretations are not available to the general public, but are accessible by NCAA staff and member institutions. This means that the average fan (or average blogger, in this case) can’t readily determine how a specific by-law is being interpreted or applied by the league or compliance officials. They aren’t searchable or easily retrieved for a variety of reasons, but compliance experts explain that the date and Case No. can often be used to identify the school or student-athlete involved in a particular case, in possible violation of federal privacy law.

It’s unfortunate, because without reasonably accessible interpretations of NCAA bylaws, purveyors of “sensational journalism” are free to make up their own interpretations, pile a gigabyte of pictures and video on a website and generate traffic.

Enter a rabid rival fanbase and two gossip blogs eager for traffic, and a non-scandal is born.

LITIGATION

Unsurprisingly, clashes over the two by-laws and their application are not new phenomena. IBCR noted court action in what could be a landmark case over a very similar situation but with staggering consequences. That case is now two years old and is at least years away from being finished.

Ridpath, an outspoken critic of the NCAA’s amateurism model and member of the Drake Group, was quoted in a Des Moines Register article (archived) from November 2005:

"Amateurism is dead - that train left a long time ago," Ridpath said. "But if we are going to continue to stretch the amateurism principle and rationalize using college athletes as unpaid endorsers of commercial products and cheap labor, then we need to decide to either pay them or let them participate as professionals who can accept endorsement money."

The subject of the Des Moines Register article was the NCAA’s use of student-athletes in the Pontiac Game Changing Performance promotions and Ridpath, along with others interviewed for the story, strongly suggested that the NCAA was in violation of its own rules. The Buick Human Highlight Reel mentioned in last Saturday’s piece notes that promotion as the successor to the Pontiac promotion.

The NCAA itself has struggled with the 12.5 section of the manual, and Kaburakis' research finds that there have been several 12.5 amendment proposals over the course of the past five years.

”Either because of the backlash that a perceived turn toward commercialization generated, the proposals were either tabled or terminated. Or, perhaps it was because of the membership's distrust of flexible and practical policy that would allow more relations with commercial entities,” he said.

Nearly everyone interviewed by IBCR for this story agreed that the Keller/O’Banlon consolidated case linked above scares the wits out of both the NCAA and the member school administrations. If the courts find that student-athletes need not capitulate clearly defined rights in exchange for their Letter of Intent, the result will be a polar shift in the college athletics business model.

Kaburakis has argued that had the NCAA voting membership been more proactive and aware of the potential legal risks and the loopholes within 12.5 (intensified by digital commercialism, such as fantasy and video games) that allowed for the pending litigation, this case would not have had much chance.

Kaburakis provided IBCR with a list of more than two dozen cases similar in nature to the menswear store and the hypothetical case posed to the member school compliance offices. In each of the 26 similar cases, the NCAA notes a “violation” of 12.5.2.1, but in none of the cases did the student-athletes involved suffer eligibility losses. More importantly, none of the cases, which range from 2006 through 2011, were institutional violations that resulted in the member schools receiving sanctions and being placed on probation.

A trademarks and patents attorney who has worked with many SEC and NCAA schools and contacted by IBCR put it this way: “If you, the NCAA or any of those other websites used a picture of a professional like Tiger Woods, Tom Brady or LeBron James to promote the business, they’d have your site shut down and have you in court. But because these student-athletes are deemed ‘amateurs,’ anyone and everyone uses their [stuff].

“In most situations, it’s completely above board. I have autographed pictures of student-athletes hanging throughout my office. A car dealership right around the corner has signed helmets and posters. There are some businesses who stretch the rules, but universities that are supposed to control the rights to their likenesses can’t go after everyone. So they only go after those who go way over the speed limit and pose a risk to the student-athlete’s eligibility and compliance. Ohio State did it all wrong. Alabama did it right,” he said.

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2 comments :

Hitting for the Cycle said...

Well written and researched which is more than can be said for certain other writers.

Joe said...

Thanks you for this post. What do you know about the picture showing Julio signing a stack of jerseys? I noticed it is not time stamped. When was it taken? This photo has been used to say that Julio signed a stack of jerseys which would not merely be displayed in the store.