documentsn.com

2013NCAA STUDENT-ATHLETI; III ALTll CAR5565individuals and organizations to call for the NCAA tomandate that its member institutions provide health careinsurance coverage for all student-athletes. 1 3This note will set forth and analyze concerns facing theNCAA specifically related to health care coverage ofstudent- athletes for athletically-related injuries. Thoseconcerns implicate numerous public policy issues andpotential antitrust liability. Initially, section II will examinethe relationships between the NCAA, athletic conferences,member institutions, and the student-athletes (includingactive student-athlete representational groups), addressingthe stated intents of the parties where applicable. SectionIII reviews the financial situations of the NCAA, memberconferences and member institutions; specifically, briefaudits of the NCAA Revenue Report for 2004-2010 and theNCAA Membership Report for 2009-2010 will be conducted,along with a review of recent financial developments for themembership, followed by an explanation of the "scholarshipshortfall" problem. Section IV analyzes recent attempts atregulatory changes by the NCAA, NCAA antitrustjurisprudence including the recent development of studentathletes as a relevant labor market, and the increasingvolume of public policy concerns over the Association'sgovernance. Section V assesses the merits of an antitrustchallenge to the current NCAA bylaws regarding studentathlete health care coverage certification and voluntarycoverage by member institutions, and the NCAA revenue2003-04, there were reported more than 182,000 student-athleteinjuries sustained during competition and practice in fifteen majorsports, citing data published in The Journal of Athletic Training).13Press Release, Nat'l College Players Ass'n, California andIndiana Lawmakers to Push Athletes Bill of Rights (Feb. 12, 2012),available at http://ncpanow.org/releasesadvisories?id 0020(NCPAModel Legislation seeks to mandate institutions with financialresources to provide for all student-athlete medical costs); White v.NCAA, No. CVO6-0999 VBF (MANx) (C.D. Cal. 2008) (showingstipulation and agreement of settlement) (including plaintiffs' claim forhealth care costs in complaint); of Peterson, supra note 6 (" 'The onlyway to increase coverage would be to make it mandatory,' " said JoeD'Antonio, the chairman of the N.C.A.A.'s legislative council andassociate commissioner of the Big East Conference. 'It could be toodemanding financially on some of our institutions.' ").

566INDIANA HEALTH LAW REVIEWVol. 10:2distribution formula. Section V also suggests measures forthe NCAA and its membership to avoid potential litigationand possible financial strategies to fund the most accessiblecomprehensive health care program for student-athletes.II. THE NCAA, ATHLETIC CONFERENCES, MEMBERINSTITUTIONS, AND THE STUDENT-ATHLETESIt is a common misconception that NCAA regulationsgovern all of the structural aspects and decision-makingprocesses of the athletic conferences and memberinstitutions. To an unversed observer, conferences appearmuch like divisions in professional sporting leagues. This isnot the case. While there is some overlapping of governanceand indeed a hierarchy of command, both the athleticconferences and member institutions are left with a widerange of discretion in numerous facets of athleticoperations. The most obvious difference is that theindividual contract rights of the NCAA, the athleticconferences and the member institutions are restricted farless in relation to one another than the contract rights ofsimilarly situated parties in professional sports leagues(imagine if you will the Atlanta Hawks contracting to movefrom the Southeast Division to the Atlantic Division of theEastern Conference in the NBA, a move similar to the enmasse conference realignments taking place in moderncollege sports). Beyond the respective contract rights of theparties, each have their own economic structures and makedecisions based on individualized goals that may or may notconform with the goals of the other parties to a greaterextent than is typical of professional sports leagues.A. The NC4A[T]heNationalCollegiateAthleticAssociation[ I is a voluntary, non-profitstandard- setting association that promulgatesthe rules of competition for and operatesannual national championships in [231 sportsacross three divisions. Its membership includes

NCAA STUDENT-ATHLiTH HEALTH CARE2013567over 1,200 educational institutions, athleticconferences, and related organizations. Itpromulgates rules of play, recruiting, length ofequipmentandseason,amateurism,andregulations, operates championships14maintains intercollegiate athletics records.The NCAA consists of over 440,000 student-athleteswho compete in eighty-nine national championships. 15, 161. The Early YearsIn the beginning, college football was more reminiscentof ancient Roman gladiator games than the comparablydocile contest it is today. Between the years 1890-1905,football game-related injuries resulted in the deaths of 330players.17 With national concern over the brutal nature ofthe sport generating an overwhelming call for reform or thetotal abolition of the sport, President Theodore Rooseveltconvened collegiate athletic leaders to two White Houseconferences to discuss reform in 1905.18 Later that sameIn re NCAA I-A Walk-On Football Players Litigation, 398 F.Supp. 2d 1144, 1146 (W.D. Wash. 2005) (since publication, the NCAAhas increased the operation of national championships from 22 sports to23). See NAT'L COLLEGIATE ATHLETIC ASS'N, 2009-10 NCAAMEMBERSHIP REPORT 36 (2010) available at http://catalog.proemags.142013)(last visited Mar. 1,com/publication/Oaffe96d#/Oaffe96d/1[hereinafter MEMBERSHIP REPORT].15 NAT'L COLLEGIATE ATHLETIC Ass'N, 1981-82 - 2010-11 NCAASPORTS SPONSORSHIP AND PARTICIPATION RATES REPORT 5 (2011),available at ip-and-participation-rates-report.aspx (last visitedMar. 1, 2013) [hereinafter SPORTS SPONSORSHIP AND PARTICIPATION RATESREPORT].Who We Are, NCAA, http://ncaa.org/wps/wcm/connect/public/ncaa/about the ncaa/who we are landing page (last visited Mar. 1,162013).17Daniel E. Lazaroff, The NCAA in its Second Century: Defenderof Amateurism or Antitrust Recidivist?, 86 OR. L. REV. 329, 332 (2007)(citing ANDREW ZIMBALIST, UNPAID PROFESSIONALS 8 (1999) [hereinafterZIMBALIST]).18History, AA/About the NCAA/History (last visited Mar. 1, 2013).

568INDIANA HEALTH LAW REVIEWVol. 10:2year, Chancellor Henry M. MacCracken of New YorkUniversity convened a meeting of thirteen institutions toratify the needed reformation of college football playingrules with a focus on the health and safety of studentathletes. At a subsequent meeting held on December 28,1905 in New York City, less than a month after ChancellorMacCracken's initial meeting, sixty-two colleges anduniversities became charter members of the IntercollegiateAthletic Association of the United States (IAAUS).19 OnMarch 31, 1906, the IAAUS was officially constituted. Itwould operate under that name until 1910, when theAssociation took its present name, the National CollegiateAthletic Association. 20 From its formation, the overarchingpurpose of NCAA regulations was to protect the health andsafety of student-athletes.For the first fifteen years, the NCAA was almostexclusively a discussion group and rulemaking body. Whilefootball violence was the initial trigger for the creation ofthe NCAA, early NCAA rules turned their focus stronglytoward regulations "relating to amateurism and eligibilityrules."2 1 These early amateurism and eligibility rulesbanned all institutions from awarding any scholarships orfinancial aid based on athletic rather than academicability. 2 2 The NCAA officially defined "amateur athlete" in1916 as "one who participates in competitive physical sportsonly for the pleasure, and the physical, mental, moral, andsocial benefits directly derived therefrom." 23 Beyondreforming the rules of college football and definingstandards of eligibility, the NCAA did little more duringthis initial period.The NCAA expanded its role in college sports in 1921,holding the first NCAA national championship: theNational Collegiate Track and Field Championships. The19Id.20Id.Lazaroff, supra note 16, at 332 (citing ALLEN L. SACK & ELLEN J.STAUROWSKY, COLLEGE ATHLETES FOR HIRE 33 (1998) [hereinafterSACK]).212223Id.Id. (citing NAT'L COLLEGIATE ATHLETIC ASS'N, PROCEEDINGS OFTHE ELEVENTH ANNUAL CONVENTION 118 (1916)).

NCAA STUDENT-ATHLETr HEALTH CARE2013569following year, the NCAA altered slightly its definition of"amateur athlete" to "one who engages in sport solely for thephysical, mental, or social benefits he derives therefrom,and to whom the sport is nothing more than an avocation."24This definition reaffirmed the restrictions barring athletesfrom receiving financial aid based on athletic abilities. Overthe next three decades, the NCAA expanded further,creating more rules committees and forming additionalnational championships (most notably, the Men's BasketballChampionship in 1939).25 Yet, with the tremendous growthin the popularity of college football it became exceedinglydifficult to enforce the NCAA amateur code. 26 The NCAAhad no enforcement powers. Policing of the regulationspromulgated by the NCAA was left to the conferences andmember institutions to self-enforce. 27 "Increasingly, it hadbecome evident that reliance upon voluntary compliance byNCAA member institutions would not solve the myriadproblems created by the dramaticexpansion ofintercollegiate athletics and the [financial] opportunitiessuch growth presented." 28 Absent a credible enforcementagency, the financial rewards associated with athleticsuccess presented an enticement that led too manyinstitutions and individuals to ignore NCAA regulationswith tremendous regularity. 29 Voluntary compliance was anillusory agreement among the membership.2. The Modern EraIn 1948, the NCAA adopted the "Sanity Code" in anattempt to effectuate compliance with its rules and24Id. (citing NAT'L COLLEGIATE ATHLETIC ASS'N, PROCEEDINGS OFTHE SEVENTEENTH ANNUAL CONVENTION (1922)).2526History, supra note 17.Lazaroff, supra note 16, at 332 (citing ARTHUR A. FLEISHER IIIET AL., THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION: A STUDY INCARTEL BEHAVIOR 42-45 (1992) [hereinafter FLEISHER]) (documentingthe growth of college sports and its commercialization during the"golden age" for college football (i.e., 1920s-1950s))).27 Id. (citing SACK, supra note 20, at 35).28Id.29Id

570INDIANA HEALTH LAW REVIEWVol. 10:2regulations. 30 The Sanity Code established guidelines forrecruiting and financial aid. The Sanity Code restricted theamount and type of financial aid student-athletes wereeligible to receive by requiring that student-athlete"recipients utilize the 'normal channels' that other studentswere compelled to follow. Aid was restricted to tuition andfees and could not be awarded based on athletic ability."3 1The Sanity Code failed to curb abuses. The potential foreconomic gain remained too great. The commercial appeal ofcollege football led to a sustained increase in the number ofpostseason contests and the new medium of televisionpresented many issues which had never before beenaddressed by any industry. In response to the complexity ofproblems plaguing enforcement of its rules and regulations,the NCAA appointed Walter Byers as its first executivedirector in 1951 and established a national headquarters inKansas City, Missouri in 1952. 32Over the course of the 1950s, the amateurism idealevolved drastically. The NCAA adopted new regulationsgoverning financial aid to student-athletes that replaced theoriginal amateurism ideal. The Association abandoned itsrestriction that limited the basis of grant-in-aid awardssolely to financial need or academic ability and "financialinducements could be used to entice gifted athletes toparticipate in sports . . ."33In 1956, the NCAA began topermit full grants-in-aid based on athletic participation.The full grants-in-aid were calculated to include tuition,fees, room and board, books, and 15 per month for"laundry money." 3 4Yet, despite the liberalization of financial aidregulations, opportunities for generating high volumerevenues from successful athletic programs continue toincentivize noncompliance. 3 5 Today, the temptations forinstitutions, players, and fans to ignore NCAA rules and303132333435Id. (citing FLEISHER, supra note 25, at 47).Id. at 333.History,supra note 17.Lazaroff, supra note 16, at 333-34.Lazaroff (referencing ZIMBALIST), supra note 16, at 23-24.Lazaroff, supranote 16, at 334.

NCAA STJDENT-ATHLETE HEALTH CARE2013571regulations is greater than ever before, continuing todemonstrate the importance of regulatory enforcement bythe NCAA if the amateurism model of collegiate sports is tocontinue. NCAA regulations serve a legitimate functionwhen they repel excessive commercialization and otherpotential distractions that may interfere with the primarypurpose for which student-athletes are attending theinstitutions: their education.3. The NCAA TodayCurrent NCAA regulations address a wide array ofissues from rules for game play, defining the playing andpractice season, employment of athletics personnel, studentathlete academic and amateurism eligibility standards,student-athlete benefits, employment of agents, andparticipation in professional league drafts, to highlight onlya few. Current rules cap the amount of financial aid awardsstudent-athletes can receive at "cost-of-attendance thatnormally is incurred by students enrolled in a comparableprogram at that institution," regardless of the source fromwhich the financial aid is provided. 36 The NCAA establisheslimits on the number of athletics-based grants-in-aid eachschool may award. 37 Student-athletes may not berepresented by an agent. 38 Student-athletes may not usetheir athletic skills, either directly or indirectly, for pay inany form in that sport, nor may the student-athlete signany contract or commitment to play professional sports,even should the contract postpone its effective date untilafter that athlete has exhausted collegiate eligibility. 39Compensation that student-athletes may earn from nonathletic employment is regulated heavily as well."Compensation may be paid to a student-athlete . . [onlyfor work actually performed . . . [alt a rate commensuratewith the going rate in that locality for similar services." 4036DIVISION I MANUAL, supra note 1,37§ 15.01.6, at 192.DIVIsIoN I MANUAL, supra note 1, § 15.01.7, at 192.38DIVISION I MANUAL, supra note 1,39DIVIsION I IANUAL, supra note 1, § 12.1.2, at 62-63.40DIVISION IMANUAL, supra note 1,§ 12.3.1, at 70.§ 12.4.1, at 71.

INDIANA HEALTH LAW REVIEW572Vol. 10:2Student-athletes cannot receive any compensation relatedto "the publicity, reputation, fame or personal following thathe or she has obtained because of athletics ability."4 1 Thisdenies student-athletes the opportunity to endorse anyproducts even if that endorsement is not directly related totheir participation in NCAA athletics. 42 "It is notpermissible for a donor to contribute funds to finance ascholarship or grant-in-aid for a particular studentathlete." 43 The receipt of any prohibited compensation(improper benefits) renders that student-athlete ineligiblefor NCAA competition. 44"The NCAA's core purpose is to govern competition in afair, safe, equitable and sportsmanlike manner, and tointegrate intercollegiate athletics into higher education sothat the educational experience of the student-athlete isparamount." 45 The NCAA lists seven core values on itswebsite NCAA.org:* The collegiate model of athletics in whichstudents participate as an avocation, es.* The highest levels of integrity andsportsmanship.41DIVISION I MANUAL, supra note 1, § 12.4.1.1, at 71.See Bloom v. Nat'l Collegiate Athletic Ass'n, 93 P.3d 621 (Colo.Ct. App. 2004) (Jeremy Bloom gained fame as an Olympic freestylemogul skier prior to enrollment at Colorado University, where heparticipated in intercollegiate football. Due to his success as a skier,Bloom was offered numerous paid entertainment and endorsementopportunities. The NCAA denied Bloom's request for a waiver of theNCAA restriction on student-athlete endorsement and media activities.The court denied Bloom's request for a preliminary injunction againstthe NCAA regulation, finding that he did not have a constitutionallyprotectable property interest in NCAA athletic participation and thatthe NCAA had not arbitrarily applied its restriction in denying Bloom'srequest for a waiver.).43 DIVISION I MANUAL, supra note 1, § 15.01.4, at 191.44 DIVIsIoN I MANUAL, supra note 1, § 15.01.2, at 191.45 NCAA, LINKEDIN.CoM, http://www.linkedin.com/company/ncaa(last visited Mar. 1, 2013).42

NCAA STUDENT-ATHLETE HEALTH CARE2013573* The pursuit of excellence in bothacademics and athletics.* The supporting role that intercollegiateathletics plays in the higher education missionand in enhancing the sense of community andidentity of memberstrengthening theinstitutions.* An inclusive culture that fosters equitableparticipation for student- athletes and careeropportunities for coaches and administratorsfrom diverse backgrounds.* Respect for institutional autonomy andphilosophical differences.* Presidential leadership of intercollegiateathletics at the campus, conference andnational levels. 46These goals emphasize the important role of education inNCAA athletics. There is also specific mention of the goal topreserve institutional independent decision-making andleadership. Yet, there is an obvious absence of any attentionto student-athlete well-being. One might draw theconclusion from the stated core values of the Associationthat the NCAA aims to operate as an association of multipleeducational entities, attempting not to interfere with theindependent decision making of those entities as much aspossible. So long as the institutions equally encourage theirstudent-athletes to succeed academically and athletically,do not discriminate, and do not pay the student-athletes asCore Values, NCAA (June 29, 2010), http://ncaa.org/wps/wcm/connect/public/ncaa/about the ncaa/who we are/core values landing page. See also, Powerpoint: Division I Welcome to the World ofCompliance, 2012 NCAA Regional Rules Seminars, http://www.google.com/url?sa t&rct j&q &esrc s&source web&cd 2&ved 0CDkQFjAB&url 2520World%2520of%2520Compliance.ppt&ei tx4-UbDnKoSvygGbn4Bo&usg AFQjCNESNjBYe7yPVoYrUeZAVtbLPmGyg&sig2 OspFhuZ6X2NSFs2lPF682w&bvm bv.43287494,d.aWe (scroll to slide twelve entitled "NCAA CoreValues Cont'd.').46

574INDIANA HEALTH LAW REVIEWVol. 10:2professionals, there is no further duty to be met by themembership regarding the student-athletes.B. Athletic ConferencesAs of 2010, there are 137 active athletic conferencessupporting NCAA sponsored athletics across threedivisions. 47 By contrast, in 1950 there were eleven activeathletic conferences.4 8 The modern trend in NCAA athleticsdemonstrates that the value of conference membershipcontinues to increase dramatically for the individualmember institutions as well as the NCAA as a whole."Independent" member institutions, forsaking conferenceand financialmembership for greater contractualautonomy, have decreased to virtual nonexistence savesome notable exceptions, and even in those cases,independence is generally retained on a sport-specificbasis. 49 The conference-based model has proved to providegreater financial security and potential for growth,especially in Division I. NCAA Division I revenuedistributions are determined chiefly based on thecumulative economic statistics and the performance in theMen's Basketball Championship of the member institutionsin affiliated conferences.5 0It will be important to observe what ultimately resultsfrom the extensive conference realignments currentlytaking place. 51 With dozens of teams abandoning traditionalrivalries and geographical proximity to their conference foesfor more lucrative competitive and economic scenarios, thedriving force behind the realignment movemen

Jul 05, 2012 · insurance program.4 The amount of coverage the institutions must certify shall be equal to or greater than the deductible amount of the catastrophic injury insurance provided by the NCAA.5 That deductible amount is 2 NAT'L COLLEGIATE ATHLETIC Ass'N, 2011-2012 NCAA DIVISION IFile Size: 3MB