- Tom Farrey, ESPN Staff Writer
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While presenting a unified front publicly and in the courts that athletes are being treated fairly, NCAA leaders privately agonized over the growing use of athlete images in commercial products, with one senior executive proposing to drop the term "student-athlete" after a half century of official use.
The philosophical divide emerges in depositions and frank emails unsealed this week in a class-action lawsuit by former UCLA basketball star Ed O'Bannon and other players who challenge the NCAA's licensing of their images to video games manufacturers and other third parties.
In one internal email sent after the lawsuit was filed in 2009, University of Nebraska chancellor Harvey Perlman wrote to then-Big 12 commissioner Dan Beebe that he disagrees with the NCAA's legal defense that it can sell publicity rights without any compensation to the players.
"This whole area of name and likeness and the NCAA is a disaster leading to catastrophe as far as I can tell," wrote Perlman, a former member of the NCAA Board of Directors and law professor specializing in intellectual property. "I'm still trying to figure out by what authority the NCAA licenses these rights to the game makers and others. I looked at what our student athletes sign by way of waiver and it doesn't come close."
Objecting strongly to Perlman was Chris Plonsky, a longtime University of Texas administrator who oversees women's sports for the Longhorns. She wrote that athletes "voluntarily" sign the standard release waiver that is required for participation in NCAA sports.
"We're like a version of the Army," Plonsky wrote. "We have certain things we have to do a certain way to raise funds and pay for the scholarships and other things s-a's (student-athletes) and their parents expect."
In a separate exchange, Wallace Renfro, NCAA senior policy advisor, wrote a memo to new president Mark Emmert after Emmert was hired to run the organization in 2010. Lawyers for the plaintiffs cited the memo, an analysis of issues confronting the NCAA titled "Looking Forward," in a deposition of Renfro on June 26.
"Maybe we don't call them student-athletes any longer and just refer to them as students," Renfro wrote.
In the email to Emmert, Renfro, who has worked at the NCAA since the 1970s, notes that the term student-athlete is one "that Walter Byers created to counter the criticism that we are paying college athletes when we began providing grants-in-aid." Byers was the first executive director of the NCAA, retiring in 1988 after 37 years, and a grant-in-aid is the term of art used by the NCAA to describe an athletic scholarship.
The lawsuit claims the NCAA violates anti-trust laws by preventing universities from allowing athletes to be compensated above the value of a grant-in aid -- room, board, books and fees. The discovery submitted to the court represents a small fraction of the documents collected in what has become a landmark test of the NCAA's governance and notions about college athletes.
"I'd rather not comment on the evidence itself," said Michael Hausfeld, lead attorney for the plaintiffs, when contacted Tuesday by ESPN. "But I will say the documents expose how the principle of amateurism was not a bedrock against the NCAA's commercialization of college sports."
An NCAA spokesman did not respond to an ESPN request for comment on the legal disclosures, and how they might affect the viability of the NCAA defending itself in the case. The O'Bannon case is scheduled to go to trial in early 2014, pending a judge's ruling on class certification.
A stalwart of the NCAA's economic model that redistributes money from revenue sports to other parts of the athletic department and university, Renfro proposed a re-focusing of sports on the educational mission of universities. At the same time, he conceded that the philosophy underpinning the model has become antiquated -- and even posed whether the time has come to allow athletes to hire agents.
"We have always had a cradle-to-grave approach to amateurism," Renfro wrote. "You are born an amateur, but like innocence once lost, it cannot be regained. But our commitment to amateurism and the commitment of our public's has often been based on something other than how we define amateurism in our own constitution. In the most romantic sense we think of amateurism as playing sports for the love of the game, for the camaraderie among competitors, for the pride of victory for school or colors, and then we use this romanticized sense of amateurism to define the entire enterprise of collegiate athletics."
Renfro said that Emmert never responded to his memo. When pressed by lawyers in the deposition, he characterized his ideas in the memo as discussion points, not endorsements.
In one note, Plonsky disparaged football and men's basketball players for bringing the lawsuit. Plaintiffs include former Arizona State quarterback Sam Keller, and basketball stars Oscar Robertson, Bill Russell and Tate George, whose lawyers have proposed to the court that athletes receive a cut of licensing and broadcast contracts with monies going into a fund that can be accessed after their college careers.
"I view these cases as being the result of the entitlement attitude we've created in our revenue sports," Plonsky wrote. "We now have threatening s-a's -- many of whom, based on grad rates of the '80s and '90s, sucked a whole lot off the college athletics pipe -- and now want to buckle the system at the knees of the expense of today's s-a's."
Perlman, after reading her note, pushed back. "I am very much opposed to her suggestion," he wrote, "I have yet to have anyone define for me the 'values of higher education' in a way that is consistent with commercial exploitation of a student athletes name or likeness. As soon as it becomes commercial--tied to selling a product -- I don't think we should be doing it."
The NCAA and Electronic Arts, which produces a video game on college football, argues that the avatars depicted in the game are not based on the likenesses of actual players. The plaintiffs counter that the characteristics of individual players are so similar to those shown in the video game that there must be a direct connection.
Correspondence released Monday appears to support that athletes' contention. In one email exchange from July 2007, an executive with the Collegiate Licensing Company (CLC), which represents the NCAA and its member schools, noted that EA Sports was using real player names to develop the latest game internally, with plans to strip them out before release to the public.
"Just a heads up, in case schools ask you this -- all of EA's latest 2008 March Madness basketball submissions have current players names on the jerseys in the game," wrote Wendy Harmon, a CLC marketing coordinator. "I have called Gina Ferranti at EA about this (she submits all of these basketball ones) and she assured me that they will not be using those in the final version. She said they have to put the players names in so it will calculate the correct stats but then they take them off. Just don't want the schools to freak out -- she said a few have already commented on it in their approval."
An hour later, CLC senior vice president and managing director Derek Eiler forwarded the email, notifying other top executives. He wrote, "Just an FYI on this in case word reaches the NCAA. This is exactly the type of thing that could submarine the game if it got into the media."
A division of IMG, CLC is the nation's leading trademark licensing and marketing company, representing more than 200 universities, bowl games and athletic conferences, as well as the NCAA in the $4 billion college licensing space. In that capacity, according to the CLC website, the company helps institutions protect, manage and develop their brands.
Despite that relationship with the NCAA and its members schools, the CLC explored the possibility of representing players after the Keller-O'Bannon lawsuits were filed, according to documents. At a company retreat in September 2009, senior leadership introduced the idea of organizing former players into an entity called the "College Vault Players Association," whose purpose, according to an email by one CLC executive, would be to "do whatever is necessary to assure that the licensing and marketing rights of former collegiate student athletes are protected and revenue opportunities are pursued."
The CLC's proposed 16 founding members of the CVPA would include Michael Jordan, Brian Bosworth, Dick Butkus, Joe Montana, John Elway, Deion Sanders and the Manning brothers. It is unclear from the document whether those players had been contacted or were on board with the plan to negotiate with their schools. The CVPA would pursue deals with companies in a range of sectors, including trading cards, games, videos, jerseys, books, photographs and collectibles.
One of CLC's top executives was intrigued enough with the idea that he wondered if the group should expand beyond former players. On December 30, 2009, senior vice president Cory Z. Moss asked, "Should we really begin work on a formal College Student Athlete Players Association (current and former) to be ready depending on the results of the EA lawsuits?"
While CLC was moving fast to capitalize on new revenue opportunities related to athlete images, so was the NCAA under former president Myles Brand -- until the lawsuit was filed. In 2007, a CLC executive reported that the NCAA, with the aid of former senior executive Greg Shaheen, had begun to embrace the potential of its relationship with the EA Sports games.
"The NCAA now (finally) sees EA as an important tool to allow them to reach young people with the values associated with intercollegiate athletics," wrote Pat Battle, a CLC manager. "As a result of all this, Greg has gotten me in front of Myles, and they are now viewing what they do on our behalf as mission critical. It has been pretty cool to watch.
"The primary purpose of this meeting was to lobby for the rights to use rosters in video games, including the names of players on jerseys within the game. While it will still take some time (probably 12-18 months) to go through the NCAA legislative process, Greg is now confident that we will get this done. That will be a huge win for us and EA."
The NCAA did not move forward with the proposal through its legislative process. However, gamers later did gain the ability to use a back door to attaching names to the avatars, through software available on the internet that was compatible with the EA Sports game.
In his interview with ESPN, Hausfeld characterized the documents released by his legal team as insightful into the NCAA's business model, as a trade organization for member colleges.
"For the first time, we are getting behind the veil of the so-called principle of amateurism," he said. "The principle is being tested by what was known by the NCAA and what they did to address its challenges."
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