Author Archives: nicholasrhector

Pop Culture – League Dress Code

As promised, THIRDandFOUR will occasionally mix in pop culture to keep things fresh and exciting.  This week, we address the various dress code policies that have been implemented within the professional sports leagues.  Our focus concerns the manner in which certain professional athletes, e.g., Amar’e Stoudemire, have taken advantage of these restrictions to further their professional image and create new professional opportunities for themselves either away from the field or off of the court.

***

As an attorney, I have grown accustomed to regularly wearing either business casual attire or suits.  I’ve accepted that this attire—though uncomfortable at times—is necessary for co-workers, clients, and adversaries to perceive me as professional and as someone who takes his work seriously.  The key to enjoying such attire, however, is to have a little fun with it.  I accomplish this level of fun by wearing immaculately shined shoes, custom-fitted shirts, uniquely lined blazers, colorful pocket squares, and signature argyle socks.  Often, I stand out in a room full of people.  But who doesn’t like a little attention? It can be the deciding factor as to whether you get your dream job or meet your future wife.

For many professional athletes, loafers, wingtips, slacks, dress shirts, blazers, and ties are as foreign to them as a consistent golf swing is to me.  Understandably, these athletes consider this attire bizarre, when their typical daily attire throughout high school, college or the minors consisted of either athletic shorts, sweats, t-shirts, or hoodies.  In comparison to most young Americans, Individuals who strive to become professional athletes never partake in semester or summer-long internships that require a business attire “uniform.” They work on their game.  Thus, this conservative attire never becomes an integral part of their professional lives.

That being said, once professional athletes reach the “league,” most of them yearn to stand out and fully project themselves.  As entertainers, they are drawn to the spotlight and naturally crave attention.  Unlike me or someone else who maintains that 9 to 5…6…7…8…9…10…11 job, they are naturally less worried about what their teammates, their boss, or the opposing players think about their attire.  Generally, professional athletes are of the mindset that if their clothing or jewelry draws attention—any attention—to them, they have accomplished what they set out to achieve.  It’s natural for them to think this.  These material things display their personality, wealth, and level of success.  Moreover, some, but certainly not all, professional athletes believe that once they strip away the uniform and step off of either the field or the court, their bosses, the media, and the fans no longer judge them.  Thus, they aren’t required to present themselves in a manner that is considered professional by either the league, the media, or the fans.  These individuals are misguided.  Professional athletes—as entertainers—are under a spotlight 24 hours a day, 7 days a week.  To be successful, at all times, they must cater to the audience (i.e., white-collar fans) that roots for them, purchases expensive tickets to their games, buys ridiculously overpriced beers and hotdogs, and ultimately pays their salaries.  As a result, most professional sports leagues have recognized this principle and implemented some sort of off-the-court dress code policy that controls what players can wear while conducting league business.

For instance, the Commissioner of the National Football League—probably the most lenient of the big-four leagues when it concerns attire—retains jurisdiction over the players’ attire for ninety minutes after the end of games.  Thus, according to the Houston Chronicle, players are not permitted to conduct interviews while wearing clothing with visible logos of non-NFL licensed apparel.

According to the Communications Manager of the Major League Baseball Players Association, no MLB dress code exists.  However, individual clubs have the discretionary authority to compel players to abide by certain standards.  Many teams, such as the Yankees, have taken advantage of this authority.  The Yankees, for instance, prohibit all facial hair other than sideburns and mustaches.  Similarly, NFL teams maintain the discretion to instill a dress code, for instance, when traveling to and from the hotel or the stadium.

The National Hockey League is quite unique with respect to its dress code.  ESPN columnist Scott Burnside sums it up best: “hockey players have been told what to wear for years, long before they reach the NHL.  Most junior and minor-pro teams have some form of dress code covering what is and isn’t to be worn to games and around the rink.  Dress codes for minor hockey teams are also common and are seen as a way of fostering team unity and cohesion.”  According to Tampa Bay Lightning star Vincent Lecavalier, “everybody wears a suit.  We’re just used to it.”  Burnside also noted that although an unofficial dress code exists in hockey, Exhibit 14, Paragraph 5 of the collective bargaining agreement officially checks those players who have a tendency to venture offsides (pun intended).  It states: “[p]layers are required to wear jackets, ties and dress pants to all Club games and while traveling to and from such games unless otherwise specified by the Head Coach or General Manager.”

***

Over the past two decades, the National Basketball Association has been synonymous with hip-hop culture.  For instance, during the 1990’s, Shaquille O’Neal—now, the “Big AARP”—rapped his way through his entire career with the Orlando Magic and three seasons with the LA Lakers.  He produced such great hits, like “What’s Up Doc? (Can We Rock)” on his 1993 album Shaq Diesel; “Freaky Flow” on his 1994 album Shaq-Fu: Da Return; “Strait Playin” on his 1996 album You Can’t Stop the Reign; and “48 @ The Buzzer” on his 1998 album Respect.  And let’s not forget about his favorite Lakers’ teammate Kobe Bryant, who collaborated with model Tyra Banks to produce the hit song KOBE.

So during the 2005-06 season, when—to the surprise of most of their players—the NBA implemented a very strict dress code, the new restrictions created quite an uproar.  In a memo issued to NBA players on October 17, 2005, commissioner David Stern required players to wear “business casual” attire while engaging in “team or league business” (i.e., all activity conducted on behalf of the team or the league during which the player is seen by, or interacts with, fans, business partners, members of the public, the media, or other third parties).  During players’ attendance at games in which they are not playing, they must additionally wear a “sport coat” along with “dress shoes or boots, and socks.”

Following his review of the memo, then Phoenix Suns guard Raja Bell expressed his discontent regarding the new rules, stating in a quote to ESPN, “I understand they’re making it out to make us look better to corporate and big business.  But we don’t really sell to big business…  We sell to kids and people who are into the NBA hip-hop world.  They may be marketing to the wrong people with this.”

Wrong!  Try again, Raja.  As explained above, “corporate and big business” pay your bills.  David Stern understood this principle in 2005 and certainly wasn’t going to let something as simple as his players’ attire drive away the substantial amount of revenue obtained by the league through corporate America.

Editor-In-Chief of Vogue Magazine Anna Wintour and Amar’e Stoudemire attend the Tommy Hilfiger Spring 2011 fashion show

So when life gives you lemons, make lemonade.  Since the inception of the NBA dress code policy, the Knicks’ star power forward Amar’e Stoudemire (aka STAT – Standing Tall And Talented) has done just that.  In the illustrious words of Vogue’s editor-in-chief Anna Wintour, over a five-year period, Amar’e has become a fashion icon.  He has enlisted the help of stylist Rachel Johnson and 6’5″ tailor Waraire Boswell to conquer his 6’10” height–a fashion barrier for many.  While Lebron James and Dwayne Wade sit beside each other during post-game press-conferences dueling over whose windsor knot is larger, Amar’e consistently appears before the media solo, dressed confidently for success.

Lebron James and Dwayne Wade address each other and the media after Game 6 of the NBA Finals

Amar'e Stoudemire addresses the media following a First Round Playoff Game against the Boston Celtics

Amar'e Stoudemire addresses the media following a First Round Playoff Game against the Boston Celtics

THIRDandFOUR applauds Amar’e Stoudemire.  He has taken the restrictions imposed upon him by the NBA and turned it into a love for fashion and a way to further himself professionally off of the court.  His new friend Anna Wintour has featured him on the cover of and within Vogue Magazine.  There, he is complimented for “his fashion instincts” that “are remarkably honed.”

Moreover, he has partnered with fashion designer Rachel Roy to design and release a women’s fashion line in fall 2011.  As for the rest of the NBA, many players should take notice:

Friday Morning Workout

Former UGA football coach Jim Donnan accused of making millions via a Ponzi scheme.

Mendenhall Sues Champion based on his terminated endorsement deal.

15 Popular Athletes who squandered their millions—many of whom you’d never guess.

Odds are good that Clemens will face another trial despite his argument regarding double jeopardy.

USC’s Kiffin suspends senior starting running back Marc Tyler for making inappropriate comments to TMZ.

Lance Armstrong fights back against prosecuting attorneys, claiming they leaked inappropriate grand jury investigation information to the media.

Laker’s Odom was a passenger in a vehicle that struck and seriously injured a motorcyclist and killed a young pedestrian in New York.

Bengals’ Cedric Benson jailed on assault for the second consecutive off-season.

Deron William and Zaza Pachulia officially sign contracts to play in Turkey contingent upon the NBA work stoppage continuing through the start of the season.

LA Lakers longtime trainer Gary Vitti recounts the days leading up to and after Magic’s announcement to the world that he had contracted HIV.

Once the NFL season commences, replay officials will automatically review every scoring play during NFL games, likely lengthening games considerably.

Insurance costs could hinder NBA player participation in the London 2012 Olympic games.  Stern and FIBA are scheduled to meet this coming Tuesday to discuss.

The Women’s World Cup final set the record for tweets per second.

Tiger Woods abruptly fires caddie Steve Williams after a 12-year relationship in which Tiger won 72 times and 13 major tournaments.

Rick Reilly’s suggestions to Tiger concerning how he can revamp his image and his game.

SEC Commissioner Slive opened the Southeastern Conference media day on Wednesday by pushing the NCAA to make extreme changes, including toughening academic requirements for student-athletes and broadening recruitment rules.  Interestingly, Slive chose to push for these changes in a year when more than one of his schools faces sanctions or an investigation by the NCAA.

Continuing to ride the comeback wave, Vick snags additional endorsement deals.

75 Ex-players sue the NFL and Helmet maker Riddell, claiming defendants intentionally withheld from players their knowledge about the long-term, adverse impact of multiple concussions on the brain.

Former NFL GM Vinny Cerrato offers five rules that the 32 NFL teams should follow when tackling this year’s abnormally short free agency period.  Can these teams feasibly sign hundreds of players in a number of days?

Ivy League football decreases full contact practices from five to two a week to limit the risk of concussions.

The NCAA strikes again, sanctioning the LSU football team after an assistant coach improperly provided a JUCO player transportation and housing.

A generation with a strong sense of self-entitlement is rewarded for pouting.

Chad Ocho Cinco, allergic to the sun?!?

 

Weekly Correction – Let the Kid Pout!

This past Tuesday evening, the San Francisco Giants played the Los Angeles Dodgers before a uniquely tense home crowd.  The crowd was emotional, not because a Giants’ win against L.A. would have decided whether the team maintained its NL West Division lead (the Giants are in the driver’s seat with respect to the division, holding a 4-game lead over their closest competitor the Arizona Diamondbacks), but because a Giants’ foul ball went to its rightful owner.

For those of you who missed the fiasco that transpired in the Giants’ stadium Tuesday night, here’s a quick synopsis: In the fourth inning of the game, first baseman Brandon Belt zinged a foul ball into the upper deck stands.  As the ball headed directly at an adult male fan, in true first, second or third date form, the fan sacrificed his left hand to snag the ball, and then gifted it to the beautiful lady that accompanied him to the game.  Upon receiving the gift, the “damsel in distress” smiled and celebrated, while her man described to the people around him the pain he endured while seizing her prize.

Concurrent with this celebration, a young male child, sitting just one row behind the guy who snagged the ball, threw an absolute fit before his father and, unbeknownst to him, the viewers watching at home, at bars, and wherever else people watch baseball games in San Fran.  Shockingly, this child’s reaction was not reminiscent of the childish fit you expect from someone his age—in other words, the fit most children throw when they can’t eat candy before dinner.  This kid pressed his chin tightly into his chest, squinted his eyes, stared intently at the man and his date, and reminiscent of a scene from the 1988 movie Child’s Play, gave the couple the look of “Chucky” (i.e., death).  Notwithstanding his father’s attempts to reason with him, the kid continued this spectacle for close to a minute and a half, until the Giants’ television announcers arranged for the stadium’s staff to deliver to him and the calm child sitting next to him two baseballs similar to the one in the lady’s possession.

***

Now, as a preface to what I’m about to say, I do like children.  I even love certain children.  In fact, I hope to be a father one day.  Nonetheless, the manner in which the Giants’ announcers and stadium staff reacted to and dealt with this kid absolutely infuriates me.

I understand that at a young age, it’s natural for a child to have a strong, yet unrealistic sense of entitlement.  However, those individuals around the child must curtail it immediately.  Under the circumstances described above, even though the foul ball travelled and eventually landed in an area far from the pouting child, he still believed that he deserved the ball because of this unrealistic sense of entitlement.  I can just imagine the thoughts that ran through his head after he didn’t receive the foul ball: “I’m seven.  I usually get whatever I want from my family.  I want this ball.  I will pout until I get what I want.”

This line of reasoning and natural reaction is absurd—even for a child his age—and should not be rewarded.  Here, I pat the father on the back for not succumbing to his son’s moaning and whining.  The father generally ignored him, and when the child eventually threw his hands up in disgust, the father shook his head, as if to say, “your reaction is not okay.  This is life.”  Thank you, dad!

On the other hand, the Giants’ announcers supported, and essentially advocated for, a thriving generation of individuals who believe that they can obtain whatever they desire without earning it.  For a case in point, look at all the Wall Street snobs and Ponzi schemers who defrauded Americans of their hard-earned money and still don’t quite understand why everyone, including the government, hates them.  These guys and gals were probably raised with this same unrealistic sense of entitlement.

 

In final, let’s give it up for the boneheaded Giants’ announcers—the guys who fed the bear when the sign specifically said, “Don’t Feed the Animals.”

Friday Morning Workout

Friday Morning Workout

Welcome to your Friday Morning Workout, THIRDandFOUR’s new weekly post for those of you who missed the week’s news concerning sports law, sports business, sports media, or sports public relations.  Dig in and make sure you break a sweat!

Selig fully supports David Einhorn’s purchase of one-third of the Mets from principal owners Fred Wilpon and family, notwithstanding the $1-billion plus lawsuit that has been brought against the Wilpons by Trustee Irving Pickard on behalf of victims of Bernard Madoff’s ponzi scheme.  The Court recently granted the Wilpons’ motion to move the case from the bankruptcy court to a federal district court, where Judge Rakoff likely will limit the plaintiffs’ recovery based on a theory that the Wilpons’ failure to investigate Madoff’s investments did not constitute “willful blindness” or culpable intent.  Read more.

Erin Andrews opens up about her stalker.  Read more.

The assistant to Canadian sports doctor Anthony Galea claims that though the doctor treated Tiger Woods after his 2009 knee surgery, he did not inject Woods with any illegal substances.  Read more.

Shaquille O’Neal decides to join TNT’s NBA Coverage. Read more.

Former Cowboy’s wide receiver and sports commentator Michael Irvin appears shirtless on the cover of the gay men’s magazine Out, where he explains that his passion for marriage equality is a direct result of his relationship with his gay brother who died from cancer in 2006.  Read more.

ESPN Now Making Candy Bars too?  Read more.

The NFL and the NFL Players Association project that they will ratify a new CBA by July 21, 2011 in order to save the entire NFL pre-season.   The most complex issues yet to be resolved through negotiations are veteran free agency and the rookie wage system. Read more.

See how sports figures use Twitter. Read more.

The NFL salary cap will undoubtedly be lower than before once a CBA is adopted.  With a hypothetical $120 million cap, the following six teams already exceed it: (1) the Dallas Cowboys; (2) the Oakland Raiders; (3) the New York Giants; (4) the Pittsburg Steelers; (5) the Minnesota Vikings; and (6) the Indianapolis Colts. Read more.

CNBC’s SportsBiz expert Darren Rovell provides 100 rules for using Twitter. Read more.

Pursuant to the 1999 NBA collective bargaining agreement, the NBA withholds 8% of player salaries and places it into escrow each season to ensure that these salaries do not exceed 57% of league revenues.  Unlike every other season, the NBA will soon return this year’s money to the players due to increased revenue throughout the 2010-11 season—a welcome surprise for certain players and fuel to the players’ argument that the League does not need to overhaul the current financial system.  Read more.

Julie Roe Lach, the NCAA’s Vice President of Enforcement, has made it clear that the NCAA is not done investigating Auburn with respect to its dealings with Cam Newton.  Read more.

ESPN initiates suit against Ohio State University, accusing the school of violating the state’s public records law by denying requests for information concerning the NCAA’s investigation of Tressel and Pryor.  Read more.

Despite Prince Fielder’s displayed adoration for his sons during the MLB All-Star festivities this week (a true image booster), he has no intentions of rebuilding the torn relationship between him and his father, former all-star first baseman Cecil Fielder.  Read more.

Sports Illustrated’s List of 100 people in Sports To Follow on Twitter.  Read more.

Adam Pacman Jones may have, for once, been profiled and improperly targeted leading up to his July 10th arrest.  Read more.

The NCAA nabs its next victim: Georgia Tech over a mere $312. Read more.

Breaking News Analysis: The Roger Clemens’ Trial

Roger Clemens in 2008 before the Congressional Committee

Yesterday afternoon, multiple media outlets broke the news that U.S. District Judge Reggie Walton had declared the Roger Clemens’ perjury trial—just two days into witness testimony—a mistrial due to improper prosecutorial conduct.  Here’s the gist of what transpired: Judge Walton clearly understood entering the trial that testimony by Clemens’ former teammate Andy Pettitte (a future witness for the prosecution) would likely dictate the outcome of the trial.  Pettitte was scheduled to testify that Clemens represented to him in 1999 or 2000 that Clemens actually used human growth hormone—a statement in complete contradiction to Clemens’ prior testimony in 2008 before the Congressional House Oversight and Government Reform Committee.  Had the prosecution sufficiently established this contradiction, the jury likely would have found Clemens guilty of perjury, and the Government would have prevailed in its “fight” against banned performance enhancing substances.  However, the prosecution royally screwed up in the following manner before it could even place Pettitte on the stand:

During the first few days of trial, the prosecution demonstrated that it intended to initially set a foundation concerning Clemens’ congressional testimony prior to putting on the witness stand important witnesses, such as Pettitte, who would draw a stark contrast between Clemens’ congressional testimony and the supposed truth.  As part of this tactic, yesterday morning, the prosecution played to the jury a video of Clemens’ 2008 testimony, in which Representative Elijah Cummings (D-Md.) described Pettitte as being “credible” and then made the following statement about an affidavit provided to congress by Pettitte’s wife Laura: “Let me read to you what his wife said in her affidavit.  I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones.”

D’oh!!!!!!

To agree with and quote District Judge Walton, “I think a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence.”  From the point of view of a former first-year law student and now an attorney, I’ll explain to you the problem with what the prosecution did.  Apparently, the other media outlets think America is too dumb to understand simple evidentiary rules.

The primary principle you need to understand is “hearsay,” which is an out-of-court statement used to prove the truth of the matter asserted.  Hearsay evidence is generally inadmissible in a court of law. Here, the prosecution attempted—maybe by accident—to use the out-of-court statements of Rep. Cummings and Pettitte’s wife to (i) add credibility to Pettitte’s character; and (ii) corroborate/bolster Pettitte’s future testimony that Clemens previously confessed about using human growth hormones.  So you’re probably thinking to yourself, isn’t Clemens’ testimony before congress also hearsay, and therefore inadmissible?  Well, no.  As an exception to the hearsay rules, generally, former testimony of an individual is admissible, so long as the testimony was provided under certain conditions.  Additionally, an admission by a party-opponent—i.e., a prior statement by a party (i.e., Clemens) offered as evidence against him/her—is also generally admissible.  As a result of the prosecution’s actions, the jury saw and heard evidence that (i) should not have been admitted; (ii) was certainly prejudicial to Clemens; and (iii) would have likely prevented the court from providing Clemens a fair trial.  What’s more, the prosecution had already been informed by Judge Walton that it could not call Pettitte’s wife as a witness because she never actually spoke with Clemens.  Her testimony would lack credibility because she would be providing a perception of Clemens based solely on hearsay!

Nonetheless, stay tuned.  These prosecutors may get another bite at the apple.  Should Judge Walton determine on September 2nd that a new trial would not violate Clemens’ protection via double jeopardy, we could watch these same bumbling idiots present the same case before the court and this country in a couple months.  Sigh…

Weekly Correction – Chad Ocho Cinco

Ocho Cinco: The Man, The Legend

It’s that time of the week again when THIRDandFOUR highlights an athlete who would have benefited by consulting our website prior to painfully stumbling before either the media, a professional team or college program, a professional league, an officiating crew, and/or similar individuals and entities.  Welcome to Weekly Correction—the Ocho Cinco addition.

Because we consider Ocho Cinco such a unique individual, today’s edition of Weekly Correction is somewhat of an aberration.  Instead of providing Ocho advice as to how he should have approached the media in one of his recent television interviews, we will push him to answer the most critical question regarding his career: what do you really want to do?!?

Ocho takes on Dancing With The Stars

The Cincinnati Bengals’ veteran wide receiver Chad Ocho Cinco certainly has enjoyed an above-average NFL career since exploding into the league in 2001.  From 2002 through 2007, he averaged per season 1,339 receiving yards and 8 touchdowns, leading the Bengals to the AFC North division title in 2005.  Since then, however, he has been the “King of Distractions,” while his performance on the football field has noticeably declined.  Though he logged 1,047 receiving yards in 2009—a year in which the Bengals won the AFC North title—he has averaged a mere 806 receiving yards and 5.7 touchdowns over the last three seasons.

Ocho's tryout with Sporting Kansas City

While Ocho has been anything but stellar as a wide receiver for the Bengals during this time period, he has successfully “caught” every non-football challenge thrown his way. Over the past four years, he has starred in the VH1 dating show The Ultimate Catch; raced and beat (with a head start) a professional horse at River Downs Racetrack in Cincinnati, Ohio; starred in ABC’s Dancing with the Stars; tried out for a spot on Kansas City’s Major League Soccer team Sporting Kansas City; rode a bull for 1.5 seconds at a Professional Bull Riders event in Georgia; and driven a racecar at 190 mph on a NASCAR track in Atlanta with Sprint Cup driver Jeff Burton.  Oh, and I shouldn’t forget to mention, in August 2008, Chad Johnson—number eighty-five for the Cincinnati Bengals—legally changed his name to Chad Javon Ocho Cinco in Broward County, Florida.  Get it: eighty-five translates to ocho cinco in Spanish.  Wait, what?  No, it doesn’t.

Dhani Jones

Anyway, I will momentarily digress: You are probably thinking, Ocho Cinco is not the first Bengal to tackle alternative sports during the NFL offseason.  You’re right; linebacker Dhani Jones stars in the Travel Channel’s show Dhani Tackles the Globe, which began airing in 2009 and features Dhani attempting to excel at sports that define cultures in different countries around the globe.  Dhani has taken on the ancient martial art of Pradal Serey in Cambodia; dragon boat racing in Singapore; cricket in Jamaica; polo in Croatia; and rugby in England, just to name a few of his adventures.  In an attempt to show that the love of sports is universal around the globe, Dhani immerses himself in the culture of the countries he visits.  He creates an educational experience for the Travel Chanel viewers, himself, and the individuals who live in the countries he visits.

Thus, Dhani is a true example of what THIRDandFOUR strives to foster: a professional athlete who is dedicated to his sport, yet aspires to create a professional image that will make the transition from football to his subsequent desired profession seamless.  From July through January/February, Dhani dives headfirst into the NFL season.  However, during the offseason, Dhani is, among other things, a television personality for the Travel Channel; a guest correspondent for ESPN2 and the NFL Network; and a writer for Page2 on ESPN.com.   Dhani runs a high-end bowtie company and occasionally serves beverages and food at his Bowtie Cafe in the historic Mount Adams neighborhood of Cincinnati.  Moreover, he writes books; on June 7, 2011, Dhani released his first book The Sportsman: Unexpected Lessons from an Around-the-World Sports Odyssey.

Now, I bring you back to your regularly scheduled programming on OCNN—the Ocho Cinco News Network.  On June 30, 2011 following Ocho Cinco’s recent NASCAR event, he participated in an ESPN interview on Sportscenter Express, where he opined about his upcoming challenge.  There, he informed us that he will make the trip to Okeechobee, Florida in the coming weeks to “catch a couple of gators.”  When asked, “are you really going to try to wrestle live alligators,” Ocho Cinco confidently responded, “have I ever steered you wrong any other time?  If I say I’m going to do something, I’m going to do it…  Wait and see what’s after the alligators.  I mean, if I get hurt—lose an arm—I can always be the kicker for the Bengals.”

Ocho Cinco’s June 30th announcement validated two things: (i) he is a living, breathing marketing ploy; and (ii) his marketing exploits do nothing to further either his professional football career or his seamless transition from football into another profession.

Indeed, Ocho’s offseason adventures cause people to take notice.  However, most individuals—including those involved with the Bengals organization—take notice and cringe.  First, most recently, Ocho Cinco has done everything possible to void his NFL contract with the Bengals.  Should he lose an arm wrestling alligators in the coming weeks, I’m pretty confident the Bengals won’t reserve a spot for him on the roster as a kicker (See former Chicago Bulls star Jay Williams and his non-existent basketball career following his 2003 motorcycle accident).  Second, unlike Dhani Jones, Ocho has not been selective about the avenues through which he markets himself professionally.  For the lack of a better term, he’s been all over the place.  He has failed to show that he is qualified to excel in alternative professions.

In sum, keep it coming, Ocho!  Sleep in a bed of snakes.  Take on Wladimir Klitschko…I’m pretty sure you can connect more punches than David Haye.  Swim with the sharks.  Shucks, juggle balls, while riding a unicycle and breathing fire!  I think it’s safe to say, Barnum and Bailey Circus will reserve a spot for you on their roster.

The NCAA: Part of the solution or part of the problem?

Over the past few years, the National Collegiate Athletic Association (the “NCAA” or the “Association”) has flexed its muscles via the enforcement arm of Division I Collegiate Football. The Association has investigated and/or sanctioned a number of elite programs and former or current student athletes, including my alma mater the University of Southern California (USC) and former USC running back Reggie Bush.[1] Many individuals and organizations perceive the NCAA as the guardian of student athletes and an organization that takes extreme measures to clean up the environment surrounding intercollegiate athletics by, among other things, preventing the infiltration of the NCAA and its collegiate institutions by agents, boosters and other outsiders that aim to exploit student athletes. However, a cursory review of the NCAA’s Compliance Rules and their actions related thereto exposes the Association as an antagonist. While declaring that it prioritizes providing to student athletes a quality education and ensuring that student athletes experience college in a manner no different than other students, the NCAA derives annually hundreds of millions of dollars by monetizing the same student athletes it purportedly protects from commercial exploitation.

The NCAA is the organization that oversees and regulates all of the intercollegiate athletic programs. The NCAA is funded by revenue generated from, among other things, (i) regular-season and post-season play; (ii) television and marketing rights; (iii) sponsorship deals[2]; and (iv) merchandise sales. According to the NCAA’s official website, each collegiate institution benefits greatly from the success of the NCAA, as it purportedly distributes more than ninety percent of its annual profits to its member conferences and collegiate institutions in the form of direct distributions and services. However, though it maintains a not-for-profit status, the NCAA maintains many of the characteristics of a for-profit organization. In particular, a measure of its success is the Association’s ability to maximize profits and to funnel these profits to the NCAA’s leadership.  Indeed, the NCAA has its own marketing and licensing arm, and in 2009, it doled out over $6 million to compensate its core executive team[3]. Surely, these simple facts will cause you to question whether the Association’s goal is to fulfill the student athletes’ needs or to maximize profits for the benefit of its executives.

The NCAA has structured its Compliance Rules to sustain the revenue that it has grown accustomed to realizing. After delving into the NCAA’s 2010-11 Division I Manual (the “NCAA Manual”)—consisting of the Constitution, Operating Bylaws, and Administrative Bylaws governing Division I institutions and student athletes—I liken the NCAA Manual to the final act of stage play that comprises two scenes, wherein the audience fails to realize until the final fifteen minutes of Scene II that the apparent protagonist is actually the antagonist. While the NCAA’s Compliance Rules regulate nearly twenty different intercollegiate sports, this article will focus on the relationship between the NCAA Manual and the “big two” revenue-generating machines: college football and college basketball.

SCENE I

For many student athletes, an athletic scholarship primarily represents a stepping-stone to success. These young adults understand that under the tutelage of a knowledgeable and skilled coaching staff, they stand a good chance of reaching their respective professional leagues. Even so, in Scene I of the NCAA Manual, the Association paints itself as being the guardian of student athletes, where these young adults have chosen to participate in intercollegiate athletics on a “recreational” basis.  In such a role, the NCAA purportedly ensures that student athletes, first and foremost, excel in academics and assimilate with the general student body and, secondly, maintain their amateurism.

Constitution, Article I of the NCAA Manual declares:

“[t]he purposes of this Association are to initiate, stimulate and improve intercollegiate athletics programs for student-athletes and to promote and develop educational leadership, physical fitness, athletics excellence and athletics participation as a recreational pursuit… A basic purpose of this Association is to maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.”

Similarly, Constitution, Article II of the NCAA Manual states:

“[i]ntercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student athletes…  Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived.  Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.”

SCENE II

In Scene II of the NCAA Manual, the NCAA continues to paint itself as being the protagonist who invests in student athletes.  Constitution, Article II further declares:

“Intercollegiate athletics programs shall be administered in keeping with prudent management and fiscal practices to assure the financial stability necessary for providing student-athletes with adequate opportunities for athletics competition as an integral part of a quality educational experience.”

Shortly thereafter, the NCAA wholly adopts the role of antagonist. Indeed, in Constitution, Article II of the NCAA Manual, the Association transitions from playing the role of a friend to that of a foe by placing restrictions on student athletes where it impacts them the most—their pockets.

Section 2.13 states, “[a] student athlete may receive athletically related financial aid administered by the institution without violating the principle of amateurism, provided the amount does not exceed the cost of education…  Any other financial assistance, except that received from one upon whom the student-athlete is naturally or legally dependent, shall be prohibited unless specifically authorized by the Association.”[4]

Bylaw, Articles 12, 15, and 16 of the NCAA Manual further describe the restrictions that the NCAA places on financial aid received by student-athletes. Article 12 emphasizes that a student athlete loses his/her amateur status by receiving improper compensation, aid, awards, benefits or other forms of remuneration.  In particular, “[improper compensation] is the receipt of funds, awards or benefits,” constituting “more than actual and necessary expenses for participation on the team.”  A student athlete may receive benefits and remain an amateur only where (i) the benefits constitute meals, lodging, apparel, supplies, transportation and similar benefits directly tied to competition; or (ii) “it is demonstrated that the same benefit[s] [are] generally available to the institution’s students…or to a particular segment of the student body (e.g., international students, minority students) determined on a basis unrelated to athletics ability.”  Amateur status is lost where the student-athlete receives “any direct or indirect salary, gratuity or comparable compensation,” any abnormal “educational expenses,” or “preferential treatment, benefits or services because of the individual’s athletics reputation or skill or pay-back potential as a professional athlete.”

Similarly, the student-athlete may not receive “[c]ash or the equivalent thereof…, as an award for participation in competition at any time, even if  such an award is permitted under the rules governing an amateur, non-collegiate event in which the individual is participating.”

Moreover, should the student-athlete garner a job or establish his/her own business, he/she may not use his/her “name, photograph, appearance or athletics reputation…to promote the business.”  With respect to a job, (s)he may be compensated solely “for work actually performed…at a rate commensurate with the going rate in that locality for similar services.”  Student athletes may not accept compensation for advertising, recommending, or promoting a commercial product or service.

That’s a lot to digest, I know, but essentially, student athletes are entitled to minimal remuneration from the NCAA and their collegiate institutions, outside of the costs associated with education and their essential needs for participating and competing in intercollegiate athletics.  Further, student athletes may not use their status as athletes to garner income.

To be clear, I do understand the NCAA’s justification for prohibiting a student athlete from receiving aid, benefits or gifts from agents, boosters, commercial establishments or other organizations outside of his/her collegiate institution, where such aid, benefits and gifts would objectively interfere with the student athlete’s ability to perform as an amateur. Where the aforementioned individuals and organizations are permitted to infiltrate intercollegiate athletics, you open up the door for these individuals and organizations to dirty the water such that student athletes are conflicted and incapable of fairly performing on the field or court. However, where does either the NCAA or the student athlete benefit by the NCAA prohibiting him/her from receiving compensation “because of the individual’s athletics reputation or skill or pay-back potential as a professional athlete”?

Bylaw, Article 12 of the NCAA Manual states that “[t]he NCAA [or a third party acting on behalf of the NCAA (e.g., host institution, conference, local organizing committee)] may use the name or picture of an enrolled student-athlete to generally promote NCAA championships or other NCAA events, activities or programs.”  Member institutions may exploit the student-athlete in the following additional ways: (i) to support its charitable or educational activities; (ii) “to promote generally its fundraising activities at the location of a commercial establishment”; (iii) to “distribute…player/trading cards that bear a student-athlete’s name or picture”; and (iv) to advertise an institution’s wallet-size playing schedule that includes the name or picture of a student athlete.

Well, there’s your answer to my question above. The NCAA and its collegiate institutions benefit immensely by prohibiting student athletes from monetizing their own name and likeness.

CONCLUSION

In short, the NCAA could conceivably reinvest a portion of its hefty profits in student athletes as reasonable compensation for the time that each athlete devotes to practicing and competing away from the classroom and his/her family and friends. Arguably, this compensation would be no different than the weekly payments that I received from the University of Southern California as compensation for my on-campus job that the university completely understood would supplement my full-tuition Trustee Scholarship. Further, the NCAA could similarly grant student athletes an opportunity to work outside of their collegiate institutions to support themselves and their families. Commercial establishments regularly compensate non-athletes based on their value to an organization. Rather than support these student athletes with resources that are generally available to the student body, the NCAA has structured its rules in such a way that it benefits from what it guards against—commercial exploitation.


[1] The NCAA has also recently investigated and/or sanctioned the Ohio State University (OSU); former OSU quarterback Terrelle Pryor; Auburn University; former Auburn University quarterback Cam Newton; the University of North Carolina Chapel Hill; Florida State University; and the University of Alabama Tuscaloosa.

[2] The NCAA has or recently had sponsorship agreements with AT&T, Coca-Cola, CapitalOne, Nissan (Infiniti), Hershey’s (Reese’s), LG, Lowe’s, Kraft (Planters), Unilever, and UPS.

[3] In 2010-11, the NCAA generated $680 million in revenue as a result of its “Television and Marketing Rights Fees,” $67.8 million in revenue through its “Championship Revenue,” and $9.2 million in revenue via “Sales, Fees and Services.”

[4] As an exception to the general rule, a student athlete may receive aid from a source other than his/her institution or an individual upon whom the student athlete is a dependent, where such aid is primarily received for reasons other than his/her athletic ability.

Happy Father’s Day from THIRDandFOUR

The NCAA Compliance Rules

Earlier this week, I made a promise to many of you that by weeks end, I would publish an article regarding the NCAA Compliance Rules.  Well, as I’ve done quite often, I spoke too soon.  To my surprise, the Compliance Rules consist of a 444-page compilation of verbose confusion, compelling me to postpone my criticism of the NCAA for at least another week.  Nonetheless, There’s no need to get your underwear in a bunch.  THIRDandFOUR consistently aims to please and refuses to deprive you of your regular installment of NCAA controversy, so please checkout our new feature Weekly Correction.

Weekly Correction: Terrelle’s Apology—A Special Shout Out to Tressel

Terrelle sends a "special shoutout" to Jim Tressel

THIRDandFOUR would like to introduce the Sports World to our new baby Weekly Correction.  Consistent with our theme concerning critical decisions, image cultivation and the professional athlete, THIRDandFOUR now provides a weekly note that highlights an athlete who would have benefited by consulting our website prior to painfully stumbling before either the media, a professional team or college program, a professional league, an officiating crew, and/or similar individuals and entities.

For our inaugural Weekly Correction, I highlight Terrelle Pryor, the newly announced former football star for the Ohio State University.  For those of you who are not familiar with Terrelle (sometimes confused with Terrell—as in Owens—even by his newly hired agent Drew Rosenhaus), he led the Buckeye Nation as their quarterback for the last three years.  During this time period, he amassed quite the statistical “trifecta,” while improving upon his overall game and becoming a more balanced quarterback each year.[1]

As evidence of Pryor’s gifts as a football player, he is OSU’s all-time leading rusher among quarterbacks, and his career total of 57 touchdown passes ties a school record.  Further, last year, he ranked among the top ten of NCAA quarterbacks with respect to passing efficiency.  Tellingly, those who ranked ahead of him include Cam Newton of Auburn (the no. 1 pick of the 2011 NFL draft), Kellen Moore of Boise State (who is considered by many to be the no. 1 college football player entering the 2011 season), Andrew Luck of Stanford (who is easily the second ranked college football player entering the 2011 season), Andy Dalton of TCU (the no. 35 pick of the 2011 NFL draft), and Ryan Mallett of Arkansas (the no. 74 pick of the 2011 NFL draft).  Those that ranked below him certainly didn’t ride the pine in 2010.  These quarterbacks include Jake Locker of Washington (drafted no.  8 to the Titans), Blaine Gabbert of Missouri (drafted no. 10 to the Jags), and Christian Ponder of Florida State (drafted no. 12 to the Vikings).

Just prior to the 2011 college football bowl season, however, news reports surfaced that Pryor, along with several of his teammates, had accepted improper benefits, including cash and tattoos, in exchange for OSU paraphernalia that they had obtained for free from the University.  However, instead of preventing these players from playing in the upcoming Allstate Sugar Bowl, the NCAA suspended each player for the first five games of the 2011-12 season.[2]  Subsequently, the Buckeyes went on to beat Arkansas in the Sugar Bowl, 31-26, and over the next four months, Pryor consistently expressed his intentions of coming back to OSU for his senior season, notwithstanding the suspension awaiting him.

However, by May 30, 2011, reports concerning the severity of OSU’s infractions had grown worse than anyone could ever imagine.  Buckeye Coach Jim Tressel had acknowledged that he knew as early as April 2010 that his players had violated NCAA compliance rules, yet he didn’t disclose this information to the school and the NCAA—a clear breach of his coaching obligation and the NCAA compliance rules.  These facts along with mounting pressure from the University’s Administration ultimately compelled Tressel to resign on this date.  Soon thereafter, on June 7, 2011, Terrelle Pryor announced that he also was withdrawing from OSU.

As speculation concerning Pryor’s future increased following his June 7 announcement, Pryor hired Drew Rosenhaus—an NFL agent who is infamous for his brazen aggressiveness—and together, they conceivably planned the absolute farce that occurred on June 14, 2007.  Reminiscent of the scene from Sunset Boulevard when Norma Desmond pronounces, “all right, Mr. DeMille, I’m ready for my close-up,” Pryor’s and Rosenhaus’ press conference on June 14 did absolutely nothing to bolster or buoy Pryor’s image—or as most NFL teams refer to it, strengthen his character.

In a red polo, oddly resembling the color previously worn by Terrelle on football Saturdays, Pryor sat before the media and exclaimed:

“I say sorry to all the Buckeye nation and all the Buckeye fans across the country…  I never meant to hurt anybody directly or indirectly with my conduct off the field and I am truly sorry.” 

As for his feelings towards his former coach and mentor Jim Tressel, Pryor opined:

“In terms of coach Jim Tressel, a special shoutout.  I’m sorry for what all went down and I apologize with all my heart.  I love you just like a father.  You taught me a lot and I apologize for putting you in a situation and taking you out of a job and place that you loved.”

And after 97 seconds of Terrelle pouring his “heart” out on the table, he was done.  Rosenhaus stepped in and wrapped up the press conference with a six-minute marketing presentation to the NFL.  As if he was selling a ketchup packet to a lady wearing white gloves, he boasted:

“[Terrelle] is very sad about what has happened to his college career and Ohio State…  I can tell you that he is extremely, he is responsible for the mistakes that he has made.  He has owned up to that.  There are no excuses here, guys.  No excuses at all.  But the past is now the past for him and we have to move ahead.  There is no point in him looking back.”

Rosenhaus further projected that Pryor will be a first-round pick in the supplemental NFL draft this summer, emphasizing that “Terrelle Pryor will be a great—not a good quarterback—a great quarterback in the National Football League…  He is going to be a star.  This experience that he has gone through will galvanize him and make him a better person, a stronger person.”

Finally, in true Rosenhaus fashion, he ended the press conference without fielding a single question from the media: “I think I’ve said it all…  So I’d like to thank everybody for coming.  Guys, we’re going to shut it down right now and I appreciate your time.  Thank you.”

THE DECISION

I genuinely respected Pryor’s initial decision to remain at Ohio State for his senior season.  Every potential NFL quarterback (aka the “field general”) could use a few extra snaps before entering the pros.  In college, there’s no comparison to the fast-paced nature of the NFL game.  Further, despite his accolades and stats as a quarterback, Pryor was a future NFL wide receiver in the eyes of many sports commentators.  Moreover, notwithstanding his physical capabilities, Terrelle had also just displayed to the nation through his repeated violations of the NCAA compliance rules that he had not fully matured into a responsible adult and professional.

That being said, I can also understand Pryor’s rationale for finally deciding to leave OSU after (i) putting up great stats in the former season; (ii) losing his head coach and mentor; and (iii) learning that he would participate in, at most, 7-8 games during the 2011-12 season following his five game suspension.  Thus, I am in full support of Pryor “taking his talents to the NFL” (Sorry, I couldn’t resist).

THE APOLOGY

My absolute disgust with Terrelle Pryor arises from his and Drew Rosenhaus’ version of a nationally televised “apology.”  Now, correct me if I’m wrong.  Maybe Pryor and Rosenhaus never intended for their June 14 press conference to constitute an apology to the Ohio State University and its fans.  I’m actually going to go out on a limb and assume that at least Rosenhaus primarily intended for it to be a tool to market Pryor to potential NFL employers.

Nonetheless, everything about that press conference irked the hell out of me from a total objective point of view.  As if I was their mother, I naturally wanted to grab Rosenhaus and Pryor by their left ears and scold them while pronouncing their full names.  I’ve finally come to the realization that I felt this intense emotion because the Ohio State University and their fans DO deserve a sincere apology from their quarterback as a result of his transgressions.  As the team’s former leader, he should apologize for pouring the program’s future scholarships and post-season play directly down the drain.  Moreover, I’m willing to bet my entire savings—yes, my entire savings—that the NFL teams that were fixated on the television when Pryor conducted his press conference were also hoping and expecting that Pryor would provide a sincere apology to the University and its fans.  From their perspective, an apology represents, among other things, that Pryor has matured from his prior mistakes and now has the strong character most NFL teams look for in a franchise quarterback.

THE CORRECTION

In the future, should you find yourself in Terrelle Pryor’s shoes, here’s a bit of advice concerning press conferences in which you intend to or at least should apologize for your transgressions.  First, wear a suit, guys!  It’s really not that hard to throw on a suit and a tie as if you’re interviewing for a job.   In essence, Terrelle Pryor interviewed with each of the 32 NFL teams on June 14.  Second, prepare, prepare, prepare.  Here, both Pryor and Rosenhaus sounded like bumbling idiots.  If you don’t believe me, just re-read the above transcript and count the number of confusing statements made by both parties.  I lose count each time!  Coming from a litigator, it actually doesn’t appear unprofessional when you use note cards.  Third, apologize to those who are deserving of the apology.  On June 14, Terrelle Pryor primarily apologized to—sorry, gave a “special shoutout” to—his conspirator.  Remember, Tressel is ultimately just as guilty as Pryor in the eyes of the NCAA.  Fourth, hold the apologetic press conferences separate from the press conferences marketing your skills.  Similar to what occurred here, you risk overshadowing the intended apology with a marketing presentation.  Finally, don’t permit your newly hired, highly conflicted, and overly aggressive agent to run the show.  This was Terrelle Pryor’s debut to the World as a professional.  Contrary to what transpired, he should have spoken for 80 percent of the press conference, not his agent.

– NRH


[1] In 2008, as a freshman, Pryor split time with senior Todd Boeckman before taking over the fulltime starting role as quarterback by midseason.

[2] I imagine that all kinds of questions are running through your head regarding the timing of the punishment received by the OSU players.  However, stay tuned next week for my lambasting of the NCAA for its inconsistent enforcement of the compliance rules, particularly in instances that are financially beneficial to the Association.