Why National Signing Day May Be Forever Changed

Why National Signing Day May Be Forever Changed
Robert Nkemdiche, right, the nation's top recruit, is congratulated by his brother Denzel during Nkemdiche's announcement to play college football for Ole Miss, at a Grayson, GA signing ceremony. Denzel Nkemdiche also plays for the Rebels. (David Tulis/AP Photo)

National Signing Day arrives to cheering auditoriums, dorm rooms, and college administration offices as high school seniors sign their National Letters of Intent and pledge to play NCAA football.

The National Letter of Intent is a contract. Players accept financial aid from schools they attend for the right to play intercollegiate sports.

Players are bound by various conditions including preventing other institutions from recruiting them and also forbidding later transferring (or face a one year penalty from competing).

The National Letter Intent is only the first step in participating in big time college sports.

Players have to also sign a “Student-Athlete Statement” (current form entitled “12-3a”; next year most likely to be called 13-3a) which certifies the players’ amateur statues before they can begin play on the field.

Ed O'Bannon was a far bigger college star than a pro. Now he may become a bigger college star. (Stephen Dunn/Getty Images)

Ed O'Bannon was a far bigger college star than a pro. Now he may become a bigger college star. (Stephen Dunn/Getty Images)

The Student-Athlete Statement was a normal part of the recruiting, signing, and playing process until the recent Ed O’Bannon cases.

The antitrust portion of the litigation alleges through the existing Student-Athlete Statement, the NCAA requires players to give up their rights in perpetuity of their name, image, and likeness.

Because players enter “contracts of adhesion” (take it or leave it) the NCAA restrains trade by preventing players from negotiating and profiting  off the use of their own name, image, and likeness while they are in college (or after college for those names, image, and likeness captured during college).

The rights to publicity portion of the litigation alleges athletes have a right to publicity and deserve a constructive trust, meaning players past and present, deserve a share of all revenues made of the exploitation of college players’ name and likeness.

The relative portion of the Student-Athlete Statement is Part IV:

“Part IV: Promotion of NCAA Championships, Events, Activities or Programs.

You authorize the NCAA [or a third party acting on behalf of the NCAA (e.g., host institution, conference, local organizing committee)] to use your name or picture in accordance with NCAA Bylaw 12.5, including to promote NCAA championships or other NCAA events, activities or programs.”

NCAA Bylaw 12.5 allows for college institutions, either through them or third parties to use players’ name or likeness in an immeasurable variety of ways.

The Ed O’Bannon plaintiffs allege the language in the Student –Athlete statement is overly broad and allows the NCAA and its member schools to do whatever they want with players’ names, images, and likenesses.

The Ed O’Bannon cases have a long way to go before the underlining issues are resolved. The cases will possibly redefine what it means to be an amateur athlete and whether organizations like the Former College Athletes Association can negotiate collective rights like unions in professional sports.

In the short run, the Ed O’Bannon cases potentially may change the language in the new 2013-2014 Student-Athlete Statement.

For as many rights as students give up, it may be prudent for the NCAA to make such an important clause in a contract longer than one paragraph and articulate its terms more fully.

On the other hand, the NCAA may elect to keep the language the same as it defends it position and may not risk having the changed language used against it.

Because the Student-Athlete Statement and the National Letter of Intent are essentially separate parts to the same contract, the NCAA may in the future change the language of the National Letter of Intent.

National Signing Day may ultimately forever be forever changed to a day focusing on the excitement of an institution to a day which starts negotiation.

Innocence may become lost, but rights would be gained.

Revenues would be shared.

Exavier B. Pope, Esq. is a nationally award winning entertainment and sports attorney, on air legal analyst and personality, syndicated writer, Fortune 500 speaker and peak performance strategist, author, philanthropist,  and sports business and law blogger for ChicagoNow All opinions expressed are those solely of Mr. Pope.

(c) 2013, Exavier Pope, 528 Media Group, LLC

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