Friday, September 2, 2011

Instances similar to T-Town Menswear led to no eligibility loss, no program sanctions

CASE DISMISSED

image In August, IBCR filed a lengthy story on why the T-Town Menswear issue isn’t one and why it represents nothing more than a rival fanbase’s wet dream.

I interviewed four experts on NCAA compliance, amateurism and trademark law. I posted the NCAA’s public statement regarding by-law 12.5.2, explored the context of the legislation and what it really meant. I surveyed member institutions and received feedback on how schools are applying the by-law and I also described the legal landscape that could shake up the NCAA’s amateurism model and change the allocation of billions of dollars in the years to come.

I also explained that in nearly two dozen recent incidents where member schools sought guidance or requested reinstatement of student-athletes involved in possible violations of 12.5.2, not one of the student-athletes suffered lost eligibility beyond their reinstatement, and not one of the schools involved were given sanctions, placed on probation or forced to vacate contests.

In some of them, the student-athletes actually received remuneration for their appearances or likenesses. The fact that these instances resulted in no probation and no permanent loss of eligibility also show one thing in stark, undeniable clarity: When student-athletes have told compliance officials or the NCAA that they were unaware of potential rules violations or had no knowledge that the businesses or individuals were using their reputation to promote their product or service, they were given the benefit of the doubt.

Here are the summaries of those cases, provided to IBCR as a courtesy by Dr. Anastasios Kaburakis, Assistant Professor of Management and Sports Business in the John Cook School of Business at
Saint Louis University.

1. Second-year (SA No. 1) and third-year (SA No. 2) baseball student-athletes (SAs) provided implied endorsement of a commercial product (wrist bands) on a social networking site. Specifically, representative of the commercial product met SAs at a local restaurant October 15, 2010. SAs purchased wrist bands at full retail value ($35). Representative of the commercial product took a photograph of SAs and posted the photograph on his social networking site. In addition, the representative sent an e-mail blast stating SAs endorsed the commercial product. Institution provided that although SAs agreed to pose for the photograph wearing the wrist bands, SAs were unaware of the representative's intention to post the photo on a social networking site or to send out an e-mail stating SAs endorsed the commercial product.

2. Subsequent to initial collegiate enrollment at an NCAA institution, fourth-year, football student-athlete (SA) was impermissibly involved in a promotional activity for a magazine. Specifically, SA is a subscriber to muscle and performance magazine and he entered a sweepstakes contest advertised in the magazine that required SA to submit his picture and state why he enjoyed the product. SA stated that he thought entering contest was not a violation because contest was open to all, did not involve athletics and did not involve gambling. SA's statement was selected and SA received a free sample of the product valued at $80. SA's photo and statement appeared in September 2010 issue of muscle and performance magazine. SA was not identified as a SA in the photo or in his statement, nor did he wear clothing that identified him as a football player at institution.

3. September 2010, four football student-athletes (SAs) created a club card/flyer to promote an after-game party at a country club scheduled for September 25, 2010. SAs were working with an entertainment company and distributed the flyers on campus during the week prior to September 25 contest. SA Nos. 3 and 4, both third-year SAs provided photos of themselves for use on flyer to assist with promotion. SA No. 1's photo was also used on the flyer without his knowledge. Because SA No. 2 paid for the creation of flyer, SAs did not believe that their actions were a violation of any NCAA bylaws. SAs did not receive any compensation for event.

4. In September 2010, four football student-athletes (SAs) allowed their names and pictures to be used by a fellow student to promote an after-game party at a local nightclub scheduled for September 18, 2010. The student posted a flyer on his social networking site. The SAs indicated they were asked by the student for permission to use their photo on a flyer for an after-game party. The SAs did not know, however, that the student planned to promote the nightclub. Further, none of the SAs gave permission for their name or picture to be used to promote or advertise a commercial entity. Violation was discovered after it was brought to the attention of institution's compliance office that a student was using football SAs' names and pictures to promote a party.

5. During summer 2010, photograph of recruited, first-year men's basketball student-athlete (SA) appeared in an advertisement for his local YMCA and was published on a website. Specifically, SA was asked to appear on website by YMCA owner, who is a friend and former training partner of SA. Photo shoot for advertisement included former athletes who had trained at YMCA. Website editor used group picture as main picture for website. After picture was posted, SA sent e-mail to compliance director to verify permissibility. After SA discovered posting his picture constituted a violation, SA asked website editor to remove picture and was taken offline immediately. Advertisement did not indicate SA was a SA nor did SA receive any compensation.

6. During 2010 spring semester, a recruited, third-year football student-athlete (SA) impermissibly allowed use of his name to promote a social event via fliers and a social networking site. Specifically, SA and his cousin hosted a party at a nightclub in their hometown. SA's parents and cousin each paid $500 to rent facility. SA's cousin designed a digital poster to promote party using SA's name and photo that included name of commercial establishment where party would be held. SA's cousin sent poster to SA's friends via a social networking site. SA did not sign a contract with either commercial establishment, nor did he receive any compensation or remuneration for use of his name and picture. SA stated he did not realize using his nickname on a flyer would be a violation and believed he had followed all applicable rules given he had paid for use of the nightclub and did not receive any remuneration. SA was only hoping to promote his party. SA attended party and paid cover charge but did not receive any benefits.

7. During 2010 spring semester, a third-year football student-athlete (SA) used his name and picture in the promotion of a commercial entity. Specifically, SA joined a local real estate company as an independent contractor. Each contractor provides a biography and a photograph for their personal page on the company's Web site at the beginning of their employment. SA provided the company with a brief biography which referenced his status as a student-athlete at his institution, and included a photo of himself which was copied from the institution's athletics Web site. The biography and photo were then added to the company's Web site and remained on the Web site until compliance staff discovered the page. During the time SA's picture was posted on the Web site, both SA and the company indicated SA did not obtain any new clients.

8. During 2010 spring semester, a recruited, third-year men's basketball student-athlete (SA) impermissibly allowed use of his name and photograph to promote a social event via a social networking site. Specifically, a friend who works for a local promotional firm contacted SA asking if he would be interested in having a birthday party at a local nightclub. SA agreed. Without SA's knowledge, his friend designed a digital poster to promote party using SA's name and photo that included name of promotional firm and commercial establishment where party would be held. SA's friend sent poster to SA via a social networking site. SA did not sign a contract with either commercial establishment, nor did he receive any compensation or remuneration for use of his name and picture. SA stated he did not realize that sending poster to others via his social networking site would be considered an advertisement for promotional firm and commercial establishment. SA was only hoping to promote his own birthday party. SA attended party and paid cover charge, but did not receive any benefits.
During 2010 spring semester, a first-year women's soccer student-athlete (SA) participated in an impermissible promotional activity subsequent to enrollment. Specifically, January 2010, SA permitted her picture to be featured on a promotional card to advertise a club promotion. SA did not receive any remuneration or compensation for her participation in the advertisement. SA did not believe she violated any NCAA rules since she was not identified as a SA, her name was not used and she did not wear apparel associated with institution. SA was not selected to be in the photo because of her athletics ability and was not pictured performing any athletically related activity.

9. Men's junior volleyball student-athlete (SA) participated in a photo shoot for a sportswear company June 2009 and received three pairs of board shorts valued at $40 each for a total of $120. In addition, institution permitted SA to compete prior to being reinstated. Specifically, SA was contacted by the owner of a volleyball uniform and apparel company to appear in an ad for the company. SA and owner became acquaintances during SA's sophomore year in high school when SA's former girlfriend worked for owner's company. Owner called SA to ask if he would be willing to appear as a model for a new line of products. Owner initially called SA as a favor due to the model who was scheduled for the photo shoot having to cancel. When the photo shoot was complete, owner allowed SA to take three pairs of board shorts as compensation, which totaled $120. Violation was discovered when head men's volleyball coach noticed SA modeling in an ad in VB Magazine. Coach subsequently contacted director of compliance October 24, 2009, knowing it was a violation. Director of compliance interviewed SA October 26 asking why he thought it was permissible to model. Although institution had conducted a rules compliance session with men's volleyball team October 20, specifically about promotional activities, SA did not come forward about modeling in June as he did not believe his participation in the photo shoot was a violation since he was simply doing a favor for a friend. Subsequent to discovery of violation, institution allowed SA to compete November 6 and 7 prior to seeking reinstatement from NCAA. Director of compliance believed SA could compete in dates of competition as they were during nonchampionship segment of season and any withholding condition would be placed during championship segment of season. Institution contacted NCAA student-athlete reinstatement staff for application and discovered reinstatement must be requested prior to any competition, regardless of nonchampionship or championship segment of season.

10. Men's sophomore football student-athlete (SA) participated in an impermissible promotional activity for an outdoor clothing and equipment retailer. Specifically, SA is good friends with two individuals who work for local outdoor clothing and equipment retailer and they approached SA to see if he would do a photo shoot for company. One individual told SA he had already called institution's compliance office to ask if it would be permissible for SA to participate and compliance said it was alright. It was later determined conversation between individual and applicant institution was misunderstood. SA did not think about asking coaching staff if he could participate in photo shoot because these individuals are his good friends and he trusted they were both telling him truth about permissiblit of photo shoot. SA's participation occurred fall 2009 during which he was photographed with other models wearing sweaters. In addition, SA and his parents learned a Web site other than one he was modeling for had posted his pictures on its site. Applicant institution sent cease and desist letters to both companies. Photographs of SA on Web sites of both companies have been removed. SA did not receive any payment for his participation in photo shoot nor did he sign any type of contract for his participation.

11. During summer 2009, a recruited, rising second-year women's swimming student-athlete (SA) appeared in an advertisement for a national clothing catalog which featured her picture and a few paragraphs about her swimming career. Specifically, SA was asked to appear in catalog's photo shoot because the clothing company wanted to feature SA's father's National Sailing Hall of Fame project. The clothing company contacted SA's father and asked him to find people associated with him or the Hall of Fame to be in 2009 fall catalog. SA and her brothers were asked if they would be willing to participate. SA was not paid, although she was given a $250 gift card as a thank you gesture. SA returned the unused gift card to institution at its request. Inasmuch as SA did not receive any remuneration and the photo shoot was initiated because of SA's father's project, SA did not believe there would be any issues related to her eligibility. Violation discovered August 19, 2009, when the men's and women's water polo head coach's wife received catalog in the mail and head coach recognized SA in the photo and corresponding commentary. Institution stated it provides rules education twice a year to all teams with regard to promotional activities.

12. Beginning fall semester 2009, numerous football student-athletes (SAs) permitted their names and photos to be used on the Web site of a local business. Specifically, owner of the local business indicated that at his request, the SAs' photos were taken and their names were placed on the Web site. Institution and SAs provided that no SA received any discount on any product or service provided by Sound Performance. Further, no SA received any type of compensation from local business in exchange for the use of their name and picture appearing on the company's Web site. SAs stated they did not ask compliance if allowing their photo to be used on Web site would be permissible as they did not realize the photo would constitute advertising for the local company.  Institution informed owner of the NCAA rules which prohibit the use of SAs' names and photos for the purpose of endorsing a commercial product and service. Institution requested owner to remove SAs' names and photos immediately from the Web site. Institution also sent a cease and desist letter to owner that same day. Institution noted SAs' names and photos had been removed from the Web site September 11.

13. In January 2009 while attending Institution No. 1, student-athlete (SA) along with a women's soccer SA, served as models of new team jerseys for a professional soccer team, in a picture that was distributed by e-mail with professional team's schedule included. Institution No. 1 reported that when models for photo shoot suddenly cancelled, an intern with the professional team suggested SAs from Institution No. 1 be contacted to participate. Professional team staff indicated they thought given SAs were not compensated, it would be permissible and did not consult with institution's compliance personnel. Institution No. 1 confirmed SA was not compensated and she did not keep any clothing from photo shoot.

14. During spring 2009 semester, a sophomore women's soccer student-athlete (SA) permitted her picture to be featured on a billboard for a business in institution's locale. SA had been an employee of business for a year when her boss mandated that SA, along with other employees, must participate in a photo shoot for an advertisement for the business, which would be on a billboard. SA did not receive any remuneration or compensation for her participation in the photo shoot. SA did not believe that she violated any bylaws because she felt that she had to participate in the photo shoot as an employee. SA was not identified as a student-athlete on the billboard and her name was not used in the advertisement. SA was not selected to be in the photo because of her athletic ability and was not pictured performing any athletics related activity. Violation was discovered by compliance coordinator when compliance officer saw billboard with SA's picture. Compliance coordinator informed SA of violation and SA immediately contacted her boss to let him know that the billboard must be removed.

15. During fall 2008, student-athlete (SA) participated in a full-page photo and congratulatory advertisement placed in athletics magazine/journal. Advertisement highlighted SA's world championship title and included a statement from SA thanking several people who assisted her in preparing for competition. Among people SA thanked were two individuals who operate commercial businesses that cater the sports industry. SA's trainer and coach as well as her custom gear designer were both thanked for their part in SA's preparation for world championship and were listed as business owners.

16. During 2008 fall semester, 12 women's soccer student-athletes (SAs) were involved in a promotional activity subsequent to enrollment. Specifically, a local chain restaurant sponsored a promotion September 29, 2008, indicating the first 50 individuals in line at the restaurant's opening 11 a.m. Tuesday, September 30, would receive free burritos for a year. Promotion was open to the general public and was advertised in local newspapers and radio stations. SAs were among the first 50 individuals in line at a restaurant location eight miles from campus and were required to provide their names, telephone numbers and e-mail addresses and spend the night at the location until the restaurant opened September 30 in order to win burritos for a year. Employees of the restaurant took photographs of all 50 winners. Among the photographs was a group photo of SAs, two wearing T-shirts identifying the institution's name and three wearing T-shirts identifying the restaurant's name. Restaurant manager called two of the SAs September 11 and asked SAs for the names of the SAs in the group photograph because the manager wanted to get the photograph published in a local newspaper. A free local newspaper published the photograph September 27 and a caption beneath the photograph identified all SAs by name and institutional affiliation. Institution found out when one of SAs in the photograph brought a copy of the newspaper to practice September 30, 2008, to show to the team.

17. Men's track and field student-athlete (SA) participated in a photo shoot for the men's clothing line of a commercial company's summer 2008 catalog and received expenses totaling $1,247.10. A photographer friend of SA's asked if SA wanted to participate in the event that was conducted as a "tryout" for potential models with no compensation other than expenses and no guarantee that any of the photographs would be used by the company. SA checked with the assistant track and field coach to make sure the activity was permissible. Assistant track and field coach stated he had discussed with SA the modeling opportunity and at no time did he ever think there would be a problem with SA being involved as coach considered the modeling as employment rather than a promotional appearance issue. SA received air fare, lodging and meals for the days of the photo shoot which occurred December 2-10, 2007. SA was not chosen due to his athletics ability nor are the ads related to sports or athletics. As of the date of the reinstatement request, the photographs of SA have not been published.

18. Men's basketball student-athlete (SA) permitted his photo to be used in a television commercial for a local sporting goods store during his junior year of high school which was aired during recent football contest. SA did not receive any compensation for being in the commercial and was told his eligibility would not be affected because SA did not receive any form of payment. Violation was discovered by the compliance officer when the commercial aired during a recent telecast of the institution's football game. SA omitted his participation in the commercial on his conference paperwork regarding participation in promotional activities because the promotion occurred while in high school. SA was drafted out of high school and played minor league baseball before full-time collegiate enrollment and at the time he appeared in the commercial SA did not plan to participate in collegiate sports. SA has since retracted permission for the local sporting goods store to use his photo in the commercial.

19. Women's track and cross country student-athlete (SA) allowed a photograph of her to be used in a newspaper advertisement promoting the running shoe store where she was employed. In addition, SA's picture and biography were displayed on the workplace's Web site, and SA took part in the workplace photo for a holiday card. These activities were part of her job performance as an employee of the store, and SA received no remuneration. SA was unaware that these activities were impermissible promotions. The violation was discovered when SA attended an eligibility meeting several months after the impermissible promotional activity and came forward to notify institution's compliance office of the violation.

20. Football student-athlete (SA) participated in a promotional advertisement for men's apparel store at which he was employed part time. Specifically, SA's employer asked all employees to participate in advertisements that were published in the local newspaper. SA was photographed and a photo of him modeling a men's suit appeared in the advertisement promoting men's apparel store. SA was not compensated for his appearance nor did he receive any clothing and the advertisement did not identify the sport in which SA participates. Since SA was an employee of men's apparel shop, he perceived the advertisement to be part of his job. Institution's sports information director discovered the advertisement while reviewing the local newspaper.

21. During the 2009 fall semester, the sports marketing department placed an image of the student-athlete in an advertisement for a store. Specifically, the student-athlete's photo appeared in an advertisement for a store that ran on the video board. The student-athlete, however, was unaware that his image would be included in the advertisement.

22. During the 2009 fall semester, the institution permitted the use of a men's ice hockey student-athlete's (SA) picture to promote a commercial product. Specifically, the institution's sports communication department provided filmmakers with photos and footage of men's ice hockey SAs with eligibility remaining for use in a film highlighting the institution's rivalry with a local member institution in the sport of men's ice hockey. The filmmaker requested additional photos for the film's cover and for promotional posters. The institution provided the additional photos, which included a picture of the SA. The filmmaker included the photo of the SA on the cover of the film and several promotional posters. The filmmaker sent the senior assistant director of athletics communications proofs of the artwork prior to it being printed and distributed seeking his approval; however, due to the size of the email, the senior assistant director of athletics communications never opened the email to view the proofs.

23. During the summer of 2008, two wrestling student-athletes (SAs) received remuneration and travel expenses associated with photographs and videos of the SAs appearing on a Web site. The two SAs were invited to fly to California to take part in a photo shoot and video production for a Web site. Subscribers to the Web site were able to view the photos and video recordings of the SAs for a fee of $24.95. The institution believes that both SAs were provided round-trip, first class airline transportation, over-night lodging and entertainment expenses, and were paid for appearing on the Web site. The institution interviewed both SAs and the owner of the Web site; however, all refused to provide any information concerning the benefits the SAs received. Both SAs were dismissed from the wrestling team and neither currently attends the institution.

24. On January 18, 2007, the institution permitted a picture of a men's basketball student-athlete (SA) to appear in an advertisement. Specifically, an account representative for the institution's student newspaper cooperated with representatives from a local restaurant to publish an advertisement for an after-game party at the restaurant. The advertisement featured a photo of the SA. The SA was not aware that his photo was being used for the advertisement.

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