NCAA could face trouble in courtroom
An influx of gambling revenue — a revenue stream still considered somewhat unsavory — might not mean death to amateurism, but it’s at least another dent.
What changes will regulated sports betting bring?
Hardly anything, Bilas said. It’ll be more orderly, if anything, and much more profitable.
“I think it’s going to be exactly the same,” he said. “The NCAA, every time there has been an opportunity to bring in new revenue, they bring it in. It’s like asking what changes you expect with alcohol being sold at games. People lamented for years alcohol was some evil and you shouldn’t sell beer at college games. They’re doing it now, and the world is still spinning on its axis.”
On a smaller scale, some long-standing rules already are changing. Three days after the Supreme Court’s decision in May to strike down the Professional and Amateur Sports Protection Act, the NCAA announced it temporarily was suspending its policy of not holding championship events in states offering legal sports wagering.
The NCAA also might soon prohibit coaches in certain sports from concealing injuries. Last month, the Big Ten Conference asked the NCAA to require football teams to submit injury reports, as professional leagues have done, to ensure gamblers don’t gain an edge by obtaining insider injury information. On Tuesday at ACC media days in Charlotte, N.C., league commissioner John Swofford said the conference would drop its typical injury reports this year, but he expects there to be a national mandate for injury and availability reports as soon as 2019.
An NCAA spokesperson declined to be interviewed for this story.
It remains to be seen whether student-privacy laws will present complications. An injury report wouldn’t be applauded by tight-lipped coaches — West Virginia men’s basketball coach Bob Huggins told 247Sports in June coaches will just “lie anyways” — but new laws present new realities.
Financial implications
Few anticipate gambling revenue to persuade the NCAA to start handing its athletes paychecks — beyond the scholarships and small stipends some already receive — but player-rights advocates
“... A degree-completion fund ... say[s], ‘Hey, you’re part of this industry. We respect that. If you play by the rules and don’t break the law, you can complete your degree and be rewarded.’ That is the most effective counterweight there could be. But telling a broke player from a family that’s struggling back home to keep the lights on not to receive money for point-shaving is a much harder sell.” — Ramogi Huma, executive director of the National College Players Association
are lobbying for the NCAA to consider alternatives.
Ramogi Huma, executive director of the National College Players Association, has called for a degree-completion fund in which a portion of athletic revenue is placed in a trust fund a player could access after graduating. Receipt of the money would be conditional on good conduct.
“Instead of giving a school money to basically put in their own pockets and have an administrator walk around campus and wag their finger,” Huma said, “a degree-completion fund ... say [s], ‘Hey, you’re part of this industry. We respect that. If you play by the rules and don’t break the law, you can complete your degree and be rewarded.’ That is the most effective counterweight there could be. But telling a broke player from a family that’s struggling back home to keep the lights on not to receive money for point-shaving isa much harder sell.”
Huma called the concept of integrity fees, which some schools are pursuing to pay for increased compliance and gambling-education costs, “bogus.” Rather than pull a flat fee from sportsbook partnerships, schools are shooting for a small percentage. Whether that percentage yields $50,000 or $5 million, Huma said, “players aren’t going to be any more informed than they could already be without any integrity fee. It’s just cover for capitalizing on the gaming revenue.”
“What is a better use of some of this revenue — protecting the players who are vulnerable and lacking basic help or giving a cash giveaway to NCAA sports?” Huma asked. “We know that revenue is just going to find its way into increased salaries and luxury boxes in stadiums.”
West Virginia athletic director Shane Lyons and Marshall athletic director Mike Hamrick, however, denied the funds from integrity fees in their state will go toward coach salaries or capital improvements to athletic facilities.
Daniel Wallach, a prominent gaming attorney, said the NCAA would be wise to “rectify the kind of inequity” that currently exists and begin paying players.
To that theory, Tom McMillen, CEO of Lead1 Association, which represents Division I athletic directors, replied, “Well, you’re never going to pay college athletes like these NBA players get paid,” so they still will be more susceptible to participating in scandal than well-paid pros.
Other experts suggested that once schools receive their share of gambling revenue, they should earmark it for player pensions or longterm health care. One idea is to use the funds to fill scholarships for the general student body. John Wolohan, a professor of sports law at Syracuse, said schools should work with states to trickle the money down to high schools, funding athletics, extracurriculars or underfunded art and music programs.
Legal implications
The fusion of college athletics and legal sports gambling also prompts questions about evolving legal issues, particularly as it relates to player likeness.
Although leaders such as Pitt athletic director Heather Lyke have proposed limits on prop bets — which player will score the first touchdown, whether a certain player will total over 17.5 points — the names and statistics of college athletes fuel betting on their respective sports.
Does use of a player’s likeness in a commercial setting entitle them to a cut of proceeds? That issue was addressed in part by a circuit court decision in 2007, CBC Distribution and Marketing v. Major League Baseball Advanced Media. CBC, a fantasy sports operator, sued over its right to use player names and information in fantasy games without license. The court ruled in favor of CBC, noting while the company’s use of the information was meant to provide entertainment, speech that entertains, like speech that informs, is protected by the First Amendment.
The court’s decision, while limited geographically to its region, still carries weight.
“I don’t suspect on a gambling site they need to use a picture or the person in uniform, but just the name and statistics,” said Mark Conrad, a law and ethics professor at Fordham’s Gabelli School of Business. “If that’s the case, it’s going to be difficult to win because of that ruling, which basically says statistical information is more First Amendment speech and that it trumps the commercial right of publicity issues. I think the players have a tough time.”
The debate over right of publicity versus First Amendment rights is far from settled, though, especially since right of publicity laws vary by state.
The Indiana Supreme Court is hearing a case in which three former college football players sued daily fantasy sports operators FanDuel and DraftKings over using their names, pictures and statistics (the companies stopped using college sports for games in 2016). If the court decides the use of images and performances falls outside the news-gathering exemption, a federal court will determine whether that use is protected bythe First Amendment.
“This case could be a bellwether for future legal disputes that arise in other states,” Wallach said.
In December, the NCAA will once again stand trial before U.S. District Judge Claudia Wilken to defend the principle of amateurism. Four years ago, Judge Wilken sided with the players in O’Bannon v. NCAA, an antitrust lawsuit regarding whether players shouldbe compensated for the commercial use of their names, images and likenesses. This time, in Jenkins v. NCAA, a lawsuit brought against the NCAA by former Clemson football player Martin Jenkins, the NCAA must convince Judge Wilken that athletic scholarships are not an unfair cap on wages.
So far, the NCAA has weathered storms in court, but trouble could be brewing. The more money the NCAA and its member schools make on the backs of their athletes, the greedier they look, Wolohan said. “[If] we’re going to call them amateurs because they’re getting an education yet we’re gambling on them, we’re profiting off them, we’re making them look more and more like a professional league.
“The question of the antitrust implications, whether their scholarship and cost of attendance is enough to try to compensate them for the services they are providing,” Wolohan continued, “it gets really hard to believe the NCAA is going to keep winning those arguments.”