The Best Defense Is A Good Offense:
Student-Athlete Amateurism Should Not Become A Fantasy
Jennifer A. Mueller
I. Introduction
Fantasy sports leagues are widespread and popular, and have grown into a multi-billion dollar industry.[1] Many companies offer different fantasy options, and fantasy sports leagues are available for professional football, basketball, and baseball, as well as golf, hockey, and racing, among others.[2] The new “player” in fantasy sports is college fantasy football. While college fantasy football has been available for a number of years, until this season it has differed significantly from traditional fantasy sports leagues in an important way.[3] In the past, college fantasy football did not use student-athletes’ names but instead referred to players by position. For example, statistics were listed for “Florida quarterback,” but this season fantasy sports league providers are posting statistics of the Florida quarterback by name.[4] Apparently, this lack of player personalization left something to be desired, as college fantasy football was not as popular as the professional fantasy leagues which use the names and statistics of the professional athletes.[5]
The Eighth Circuit Court of Appeals in a case between Major League Baseball Advanced Media[6] and a fantasy sports league provider recently ruled that Major League Baseball (“MLB”) players’ names and statistics are not owned by the individual players or the league, but instead are in the public domain.[7] This decision gives rise to the question of whether the ruling applies to amateur athletes and, in particular, college student-athletes who are not compensated for their participation and cannot earn money from endorsements. Fantasy sports league providers say yes.[8] As of the Fall 2008 football season, college fantasy football leagues now use the names and statistics of current student-athletes.[9] It is this intersection of amateurism and the recent actions taken by fantasy sports league providers that is the focus of this Note.
Part II discusses the history and evolution of fantasy sports. It explains the origin and development of fantasy leagues for professional sports, and their expansion to college sports. Part II also presents the National Collegiate Athletic Association (“NCAA”) Principle of Amateurism and discusses the current issues surrounding amateurism for college student-athletes related to fantasy sports leagues. Lastly, Part II summarizes C.B.C. Distribution & Marketing Inc. v. Major League Baseball Advanced Media, L.P.[10] and examines what the Court’s holding means for fantasy sports leagues and, in particular, for college fantasy sports leagues. Part III of this Note discusses whether the ruling in C.B.C. Distribution applies to amateur college student-athletes, and the options available to the NCAA, colleges and universities, and student-athletes. Part IV presents ways for the NCAA, colleges and universities, and student-athletes to preserve the amateur status of college student-athletes. Finally, Part V will offer concluding remarks regarding college fantasy sports leagues going forward.
II. Background
A. Background of Professional Fantasy Sports Leagues and the Impact of Technology
1. Brief History and Evolution
The first two fantasy sports leagues were for professional football and professional baseball. The first fantasy football league was formed in the early 1960s in a New York City hotel room by Oakland Raiders part-owner Bill Winkenback, as well as Oakland Tribune staff members Scotty Sterling and George Ross.[11] They called the league The Greater Oakland Professional Pigskin Prognosticator’s League.[12] A decade later fantasy football was still a little-known hobby, with the center of its activity found in a sports bar in Oakland, California.[13] It was not until the early 1990s that fantasy football popularity started to increase, becoming a mainstream hobby within the last decade.[14]
The first fantasy baseball league can be traced back to Daniel Okrent, a now well-known sportswriter, who invented the league—named the Rotisserie League[15]—thirty years ago.[16] Despite the intriguing story behind Okrent’s development of the fantasy baseball league[17] and the quick-growing interest among members of the media and other journalists, mostly sports journalists,[18] the league was not well-known by the general public at that time.[19] Like fantasy football, all of this started to change in the 1990s. One main factor behind the growth in popularity of fantasy football and baseball, as well as other professional fantasy sports leagues that were starting (e.g., basketball), was that fantasy sports league gamers could more easily compute statistics and monitor their teams due to computer and Internet advancements.[20]
2. The Impact of Technology
As noted, the fantasy sports business today is a complex, multi-million dollar industry in the United States.[21] The Internet is largely responsible for this.[22] When fantasy leagues started and before widespread access to the Internet, “fantasy leagues were conducted using pens, calculators[,] and lots of patience.”[23] Prior to Internet advancements, fantasy sports league gamers relied on printed statistics in newspapers and had to calculate statistics by hand.[24] Statistics are now more readily available because of the Internet and fantasy sports league gamers can easily analyze statistics that once required manual calculations.[25] “Records . . . are a big deal” with fantasy sports league gamers today, and “millions . . . are using the Internet to learn everything they can about pro[fessional] athletes to help them judge how well the players might perform.”[26]
The impact of technology on the fantasy sports industry extends beyond the Internet and computers. For example, satellite radio companies have signed contracts with the MLB and the National Football League (“NFL”) to provide greater game coverage and “allow fans to hear any game from anywhere in the U.S.” [27] Direct TV and other satellite television providers offer packages that allow subscribers to watch their favorite team from anywhere in the country.[28] For fantasy sports in particular, ESPN’s cable network has added fantasy segments to its popular “SportsCenter” and “NFL Live” television programs.[29] A cable television feature that is especially attractive to fantasy sports league gamers is the NFL Network’s ten-minute highlights of every NFL game each week; this allows
viewers to put several games on their screen at the same time, select what replays and camera angles they want, or watch a “red zone” channel, which will constantly switch from game to game in progress as teams are about to score. Viewers will also be able to search for and view just the plays of their favorite NFL players.[30]
Another gaming option brought about by technological advancement is called NanoGaming, which is “a real-time predict-to-play solution [that] can turn any live event into hundreds of real-time prediction opportunities. NanoGaming transforms the passive viewing experience into an interactive game—where every batter gives viewers a chance to win points, challenge friends, support their team, and climb the leader board.”[31] NanoGaming was launched at the start of the 2007 MLB season and has now spread to other professional sports.[32] NanoGaming is advertised as a way for fantasy sports league Web sites, TV networks, and sports Web portals to increase consumer interest and improve consumer experiences.[33]
Cell phones and other mobile devices also play a big role in the fantasy sports industry. Like on the computer, real-time statistics can now be sent directly to cell phones and other mobile devices, allowing fantasy sports league gamers to have access during everyday activities like commuting to/from work and while running errands.[34] Mobile devices are the newest forms of media terminals,[35] and fantasy sports leagues provide clients with increased sports access through mobile Web updates, podcasts, and instant message updates.[36]
The fantasy sports industry also has had an impact on technology and Internet use. Traffic on fantasy sports league Web sites noticeably peaked during the start of professional sports seasons, especially football and baseball.[37] In addition, fantasy sports leagues have enabled an Internet site like Yahoo! to gain a competitive advantage over other search engines that do not provide fantasy sports leagues, as well as over other fantasy sports league providers.[38] Internet Web sites like ESPN and Yahoo! Sports, among others, have seen “traffic go through the roof” in recent years as fantasy sports continue to spread into the mainstream.[39]
Seemingly intertwined with the fantasy sports–technology relationship is the impact of fantasy sports on the workplace. Employers attribute losses in productivity with fantasy sports league gamers using the Internet through their work computers or other mobile devices during the workday to check on their fantasy sports team(s) and track players’ statistics and performance.[40] While many fantasy sports league gamers claim that participation does not interfere with their work productivity at their job,[41] a study conducted by consultants Challenger, Gray & Christmas showed that employers lose a collective $1.1 billion a week in productivity as a result of fantasy sports.[42]
While employee access to fantasy sports league Web sites during the workday is not the only type of “cyberloafing” occurring during work hours,[43] it is one of which employers are acutely aware. Losses in workplace productivity have driven some employers to restrict employee access to fantasy sports league Web sites.[44] However, some people do not share such strong concerns about loss in workplace productivity,[45] and some companies have reported benefits, including networking, employee camaraderie, and employee interaction.[46]
Through fantasy sports leagues and technology, sports fans have embraced new methods of involvement with their favorite sports.[47] In the end, it seems that technology will continue to feed sports fans’ insatiable “hunger for information”[48]—for good or for bad.
B. Expansion of Fantasy Leagues to College Sports
College fantasy sports leagues have been around for some time, but have remained low on the public radar until recently.[49] The first major college fantasy sports league was created by CBSSports.com for football starting with the 2005 season.[50] This college fantasy football league allowed gamers to draft college football players from all Division I schools.[51] At the time of its creation, there was one important distinction between this new fantasy league for college sports and fantasy leagues for professional sports: college student-athletes were categorized by position and school.[52] Under this format, statistics for a specific position accumulated based on all statistics earned by whoever played that position for the school.[53]
But unlike professional sports, college fantasy sports leagues have not experienced the same growth in popularity or spread to other sports.[54] It is argued that this was due, in part, to the key distinction between professional and college fantasy sports leagues: that college fantasy sports leagues did not use student-athletes’ names but referred to players by position. This key distinction seemed to stem from NCAA policies aimed at preserving the amateurism status of college student-athletes, thus precluding fantasy sports league providers from individually identifying student-athletes.[55]
This distinction remained until the 2008 season. As of the 2008 football season, college student-athletes in the CBSSports.com college fantasy football league are no longer categorized by position and school.[56] Each student-athlete is now named and statistics are reported individually for that player.[57] In addition, CBSSports.com has rolled out a similar college fantasy basketball league.[58]
C. Amateurism
1. NCAA
The NCAA began more than 100 years ago as a discussion group and rule-making body to oversee college athletics.[59] Today, the NCAA continues as a voluntary organization that serves as a governance and administrative structure through which its members,[60] among other things, govern their athletics programs through enacting legislation, conducting research, and maintaining committees to write and interpret playing rules.[61] The NCAA’s stated purpose is to “govern competition in a fair, safe, equitable[,] and sportsmanlike manner, and to integrate intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount.”[62] One of the values held by NCAA member institutions, conferences, and national office staff[63] is that “the collegiate model of athletics [is one] in which students participate [in athletics] as an avocation,”[64] i.e., an activity that is outside their principal occupation,[65] which in this case is being a student.
2. NCAA Principle of Amateurism
Amateurism is a core principle of the NCAA.[66] The NCAA aims to “maintain intercollegiate athletics as an integral part of the student body, [and] retain a clear line of demarcation between intercollegiate athletics and professional sports.”[67] Furthermore, only amateur student-athletes are eligible for participation in intercollegiate athletics.[68] Violations of the bylaws associated with this principle are “among the most serious because amateurism is the principle that separates college sports from professional sports.”[69]
One component of the NCAA Principle of Amateurism is that student-athletes should be protected from exploitation by professional and commercial enterprises.[70] For this reason, student-athletes’ names and images may be used only to promote their teams and their games.[71] “In fact, neither the NCAA nor the [institutions] acquire any other publicity rights to athletes; they simply cannot license the use of their names or images—not to fantasy leagues, not to video game companies, not to sportswear companies.”[72]
3. Amateurism Today[73]
College student-athletes are considered amateur athletes per the NCAA Principle of Amateurism, and they must abide by that principle in order to be eligible to participate in college sports.[74] This has remained unchanged since the NCAA became the governing body of college athletics.[75]
However, in recent years, the Principle of Amateurism has come under increased scrutiny. Critics argue that the NCAA Principle of Amateurism seems to be at odds with the “real world” of college sports today—high coach salaries, luxury suites, and television contracts.[76] One of the primary problems critics point to is that current NCAA regulations do not allow student-athletes to be compensated for their participation (and/or performance) in college sports.[77] Critics argue that current regulations governing the use of student-athletes’ images and likenesses are outdated.[78] Many make pay-for-play arguments for why student-athletes should receive compensation for participation (and/or performance) in college sports.[79] Others base their arguments on fairness: seemingly everyone else, including coaches, is making money and the student-athletes should likewise benefit.[80] Some argue that the college sports model should be more like the professional sports model and allow for compensation, letting the free market control.[81]
At this time, the NCAA Amateurism Cabinet[82] with representatives from all three Division I subdivisions (Football Championship, Football Bowl, and Division I) have started meeting to study the issues surrounding college student-athlete amateurism.[83] Members of the Amateurism Cabinet believe that the legislation governing the amateur status of prospects needs to be re-examined with the goal of enhancing the intercollegiate athletics experience for all student-athletes.[84] At this juncture, the Amateurism Cabinet faces a challenging task, and critics will certainly continue to voice their opinions.
D. Fantasy Sports Leagues and the NCAA Principle of Amateurism Collide
In 2005, MLB Advanced Media agreed to pay the MLB Players Association $50 million for exclusive fantasy sports rights.[85] This gave MLB Advanced Media the exclusive right to MLB players’ names and statistics in connection with all interactive media.[86] Under that agreement, MLB Advanced Media provided fantasy baseball games on its Web site, MLB.com,[87] and also sold a limited number of licenses to fantasy baseball league providers.[88] In 2006, the minimum license fee charged to fantasy baseball league providers to have access to the MLB’s statistics was increased from $25,000 to $2 million.[89] One fantasy sports league provider, CDM Fantasy Sports, through its parent company C.B.C. Distribution and Marketing (“C.B.C.”), decided to fight back after it was denied a license and filed suit against MLB Advanced Media.[90] C.B.C. argued that the professional players’ names and statistics are part of the public domain, whose publication and use is protected by the First Amendment;[91] whereas MLB Advanced Media argued that right of publicity laws protect the identities and statistics of the professional players.[92]
In August 2006, a U.S. District Court judge granted summary judgment in favor of C.B.C., stating that First Amendment rights took precedence over the players’ rights to control publicity.[93] Thus, the use of the players’ names and statistics by C.B.C. and other fantasy sports league providers is protected by the First Amendment. MLB Advanced Media and the MLB Players Association appealed the district court’s ruling.[94]
In October 2007, the Eighth Circuit Court of Appeals affirmed the district court’s ruling, holding that MLB players’ names and statistics are not owned by the individual players or the MLB, but instead are in the public domain.[95] Furthermore, the Court said that the “First Amendment free speech right . . . of fantasy baseball games, to use the names and statistical information regarding major league baseball players took precedence over players’ rights under Missouri law, to be protected from unauthorized publicity”[96] and that the “information was already available in the public domain.”[97]
Prior to this decision, most believed that the “NCAA’s rat’s nest of rules and regulations designed to preserve student athletes’ amateur status . . . would seem to preclude fantasy sports providers from using athletes’ names and likenesses . . . in much the same way that college sports video games generally identify players using positions and numbers only.” [98] But CBSSports.com and other fantasy sports league providers have interpreted the decision by the Eighth Circuit as a loophole to the amateurism restrictions thought to apply to college fantasy sports leagues.[99] This raises the question of whether the ruling in C.B.C. Distribution applies to amateur athletes and, in particular, college student-athletes. Legal scholars have disagreed;[100] fantasy sports league providers say yes;[101] the NCAA says no.[102]
III. Analysis
This section discusses whether the ruling in C.B.C. Distribution applies to amateur college student-athletes, presenting arguments for why the ruling may or may not apply. This section also looks at options available to the NCAA, colleges and universities, and student-athletes going forward.
A. Why C.B.C. Distribution May Apply to College Student-Athletes
Arguments in support of fantasy sports league providers being able to use student-athletes’ names and statistics are based on the same reasoning the Eighth Circuit used in C.B.C. Distribution: First Amendment rights trump athletes’ publicity rights.[103] First Amendment rights should take precedence because the same information about the student-athletes is available in the public domain. The information is published in newspapers, and colleges and universities make the information available in programs published by the institutions and also on the institutions’ own Web sites.
In the past, the Supreme Court has instructed that rights of publicity must be balanced against First Amendment considerations,[104] and in the use of athletes’ names and statistics by fantasy sports league providers the Eighth Circuit ruled that “the former [rights of publicity] must give way to the latter [First Amendment rights].”[105] As the Court stated in C.B.C. Distribution, “…it would be strange law that a person would not have a [F]irst [A]mendment right to use information that is available to everyone.”[106]
Another reason given by the Court in C.B.C. Distribution for upholding the use of athletes’ names and images by fantasy sports league providers is that there is great public value in the information about baseball and baseball players.[107] This is attributed to baseball being considered the national pastime in the United States.[108] While college sports may not be as prominent in our sports history as baseball, the tradition of college sports has a long history and continues to be increasingly popular today. The Court further stated that it found persuasive the argument from Gionfriddo v. Major League Baseball,[109] that the “recitation and discussion of factual data concerning the athletic performance of players . . . command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection.”[110] It would not be unreasonable to extend this reasoning not only to other professional sports, but also to college sports. Therefore, the same First Amendment protection afforded in C.B.C. Distribution to the use of MLB players’ names and statistics could likewise protect the use of college student-athletes’ names and statistics by fantasy sports league providers.
B. Why C.B.C. Distribution May Not Apply to College Student-Athletes
1. Student-Athletes’ Rights of Publicity
In Missouri,[111] elements of a right of publicity action include “(1) [t]hat defendant [i.e., college fantasy football league] used plaintiff’s [i.e., student-athletes’] name as a symbol of his identity (2) without consent [and (3)] with intent to obtain a commercial advantage.”[112] First, the student-athletes’ names used by the college fantasy football leagues are understood by it and its subscribers as referring to actual college football players. The name alone is sufficient to establish identity; thus use of the student-athletes’ names is enough to satisfy the burden to show that a name was used as a symbol of identity.
The second element—without consent—is easily established: the student-athletes, colleges and universities, and the NCAA have not given permission to fantasy sports league providers to use the student-athletes’ names or statistics. In the third and final element, the intent to obtain a commercial advantage, the focus is on the “defendant’s intent or purpose to obtain a commercial benefit from use of the plaintiff’s identity.”[113] The fantasy sports league providers use the student-athletes’ identities in their college fantasy football products for purposes of profit; therefore, student-athletes’ identities are being used for commercial advantage.
In C.B.C. Distribution the Court did not find persuasive the arguments put forth in support of the economic and non-economic interests that states typically intend to be protected by providing rights of publicity to individuals.[114] The economic interests include the right of an individual to earn a living and be rewarded for his endeavors, to provide incentives for individuals to do so, and to protect consumers from misleading advertising.[115] Non-economic interests include “safeguarding natural rights, securing the fruits of celebrity labors, preventing unjust enrichment, and averting emotional harm.”[116]
Unlike professional athletes who are compensated for playing in games, amateur student-athletes cannot receive compensation[117]—they do not have, as the Eighth Circuit put it, “the right . . . to reap the rewards of his or her endeavors.”[118] Also, professional athletes have the opportunity to earn a lot of money from endorsements and sponsorship arrangements.[119] Again, student-athletes do not have this same opportunity.[120] So where the incentives argument is usually not compelling for professional athletes (or celebrities),[121] it is certainly a more compelling justification for protection under rights of publicity for college student-athletes.
The idea is that “publicity rights induce people to expend the time, effort, and resources to develop the talents prerequisite to public recognition.”[122] Professional athletes get immediate benefit from expending these efforts because they are paid to play in games and because their identities are commercially valuable. Student-athletes, on the other hand, do not—and cannot—immediately benefit like professional athletes. Some may argue that student-athletes’ identities are commercially valuable, but any commercial value student-athletes may have while competing in college sports cannot be realized at that time. Again, the significant difference is that student-athletes cannot receive compensation, whether direct or indirect, for their participation in college sports.[123]
An amateur student-athlete’s current popularity (commercial value) may help the student-athlete in the long-run, translating into an opportunity to play at the professional level. This is exactly the reason why the incentives argument is a compelling justification for publicity rights protection for student-athletes. The prospect of a professional career is an incentive for student-athletes to expend time, effort, and resources to develop the talents needed to play at the professional level and hopefully bring about public recognition and financial benefits.
Equally important when talking about student-athletes is the concern about misleading consumers. In C.B.C. Distribution the Court focused on whether consumers would get a false impression that some star professional players endorse a specific fantasy sports league provider.[124] The Court said there is no need to worry about this because all baseball players are included in fantasy baseball games.[125]
However, the concern about misleading consumers is very real in college fantasy sports leagues. The concern is not whether consumers would get the false impression that one or a few athletes endorse a certain fantasy sports league provider, but that consumers would get the impression that amateur student-athletes endorse fantasy sports leagues at all. The impression would not be a false one. Consumers could get the impression that by amateur student-athletes’ names and statistics now being used in college fantasy sports leagues, that the student-athletes have somehow endorsed the fantasy sports league or condoned their “participation” in it. Fantasy sports league providers are putting amateur student-athletes “in a position in which the natural interpretation by a reasonable person is that they are endorsing or advertising a commercial product or service.”[126] This is a clear violation of the third element in a Missouri right to publicity action; the fantasy sports league providers are using student-athletes’ names and statistics (their identities) for the purposes of profit and, thus, for commercial advantage.
The non-economic interests advanced by providing rights of publicity to individuals are not supported by every court; some courts have indicated that non-economic interests are better protected under rights of privacy.[127] However, non-economic interests are particularly applicable to student-athletes, who cannot currently financially benefit from athletic success but one day may reach a marketable status and deserve the opportunity to control and profit from the commercial value of their identities.
Where non-economic interests are discussed in terms of publicity rights, one justification found by courts is unjust enrichment.[128] The reasoning is that there would be no social purpose served by allowing others to “get [for] free some aspect of the plaintiff [i.e., student-athlete] that would have market value”[129]—a possible market value student-athletes cannot capitalize on without violating the NCAA Principle of Amateurism. It is unfair for a third party, i.e., fantasy sports league providers, to be able gain a commercial advantage and benefit from—and potentially impact—a student-athlete’s status when the student-athlete cannot at the same time.[130]
2. The First Amendment
For student-athletes, the balance of First Amendment rights and the right of publicity does not tip in favor of the fantasy sports league providers, with First Amendment protections trumping publicity rights as it did in C.B.C. Distribution. The right of publicity violation for amateur student-athletes is much greater than the violation of that right for MLB professional athletes,[131] and First Amendment rights are out-weighed by this violation.
Information about student-athletes does not exist in the public domain in the same way it does for professional athletes. While names and statistics of student-athletes, like professional athletes, do appear in newspapers and published programs, information about student-athletes in the public domain differs in one significant way: student-athletes are prohibited from endorsing a commercial product or service or profiting in any way from their participation in college sports.[132] Use of professional athletes’ names and statistics in fantasy sports leagues is permitted, as the Court in C.B.C. Distribution said, because professional athletes are compensated.[133] But for student-athletes, who cannot be compensated, the use of such information goes against the NCAA Principle of Amateurism.[134] As noted recently by one member of the Knight Commission on Intercollegiate Athletics,[135] the use of student-athletes by third parties “in commercial products . . . violates [the amateurism] principle.”[136] Simply, student-athletes are not to be exploited in commercial activity.[137]
Fantasy sports league providers are attempting to gain from the commercial advantage of student-athletes, one which the student-athletes themselves cannot likewise benefit. First Amendment protection cannot be claimed to outweigh the right of publicity when this is the case.
3. Student-Athletes Are Not Compensated
One of the major justifications for the ruling in C.B.C. Distribution is that professional athletes are compensated “handsomely for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements.”[138] In fact, a professional athlete is defined as a person who receives payment of any kind, directly or indirectly, for participation in athletics.[139] College student-athletes, however, do not and cannot receive payment for their participation in the same way as professional athletes. Furthermore, compensation would jeopardize student-athletes’ amateur status, making them ineligible to compete in college sports:
An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual: (a) [u]ses his or her athletics skill (directly or indirectly) for pay in any form in that sport; (b) [a]ccepts a promise of pay even if such pay is to be received following completion of intercollegiate athletics participation; . . . (d) [r]eceives, directly or indirectly, a salary, reimbursement of expenses or any other form of financial assistance from a professional sports organization based on athletics skill or participation, except as permitted by NCAA rules and regulations . . . .[140]
The only “compensation” student-athletes are allowed to receive is grant-in-aid.[141] A student-athlete may receive scholarships or educational grants from a college or university up to and including the “cost of attendance,” which is the total cost of tuition and fees, room and board, books and supplies, transportation, and other expenses related to attendance at the college or university.[142] This permissible grant-in-aid is given by the college or university to the student-athlete and is not considered “pay” or the “promise of pay” for athletics skill.[143] This furthermore distinguishes professional athletes from amateur athletes.
Maintaining this clear line of demarcation between college student-athletes and professional athletes, and college sports and professional sports, is critical to the preservation of the NCAA Principal of Amateurism.[144] Violations of the NCAA bylaws governing amateurism are “among the most serious because amateurism is the principle that separates college sports from professional sports.”[145]
Thus, the question becomes how can fantasy sports league providers be permitted to benefit from the use of student-athletes’ names and images, when the student-athletes cannot benefit and would suffer severe penalties if they were to do so.
In sum, C.B.C. Distribution does not create a loophole. The Court said that the use of names and statistics of professional athletes is permissible because they are compensated.[146] But student-athletes cannot receive any type compensation beyond permissible grant-in-aid under current NCAA legislation.[147] Thus, the Court’s rationale in C.B.C. Distribution does not apply to amateur student-athletes. The NCAA and institutions do not acquire publicity rights to student-athletes because of their amateur status, and likewise fantasy sports league providers should not be able to use or benefit from the use of the student-athletes’ names or images.
C. Take Action? Possible Options Going Forward
1. Do Nothing
One option is to not take any action. After CBSSports.com announced in July 2008 that it was going to use the names and statistics of student-athletes in its fantasy college football league,[148] it appeared that a “sit back and wait” strategy was adopted: the NCAA reinforced its position on amateurism and focus on protecting student-athletes, but “action” ultimately only amounted to “monitoring it closely” and that “NCAA lawyers will be watching closely.”[149]
Colleges and universities, as well as student-athletes, also did not take the issue up directly with college fantasy sports league providers.[150] Coaches who did comment preferred to stay out of the fray. For example, in response to media questions about the use of student-athletes’ names and statistics in college fantasy sports leagues, the Texas Tech head football coach began his answer with “I really don’t have an opinion on it . . . .”[151]
While initially each party may have had different reasons for choosing a “do nothing” position, it is likely this will not be a prudent strategy going forward.
2. Explore Legal Options
Legal options may exist at three levels: NCAA, college and university, and student-athlete. However, the possibility of legal options at three levels does not necessarily equate to resolution at all or any of those levels, either because action could be barred or because a party may not want to bring a lawsuit.
An association like the NCAA has standing in its own right to sue when it is seeking “relief from injury to itself and to vindicate whatever right and immunities the association itself may enjoy.”[152] The NCAA also can have standing to sue on behalf of its members and represent them even when the association itself has not directly suffered an injury.[153] But despite having organizational standing to secure judicial review in some circumstances, the NCAA may be barred from bringing a lawsuit against fantasy sports league providers who use student-athletes’ names and statistics. According to the NCAA’s legal counsel, “the NCAA does not have standing to sue on behalf of student-athletes to protect what is an individual right.”[154] Likewise, standing would also probably bar a college or university from bringing a lawsuit on behalf of a student-athlete. If the NCAA and/or a college or university were to be involved in a lawsuit against fantasy sports league providers, one or both would likely have to join a lawsuit brought by a student-athlete.
As stated, a student-athlete is the only party who would likely have standing to bring a lawsuit against a fantasy sports league provider for use of the student-athlete’s name and statistics. This is because the violations are of individual rights, i.e., right of publicity. Also, student-athletes as a group might be able to bring a lawsuit against one or more fantasy sports league providers. At the professional level, the lawsuits have involved the professional athletes’ players associations, who participated on behalf of all athletes in that sport.[155]
One group that is already organized to some degree is the National Collegiate Players Association (“NCPA”), which presents itself as an advocacy group for college student-athletes.[156] While this organization is not equivalent to a professional athlete players union, as it is not a recognized collective bargaining representative per se, it has been successful in getting the NCAA to make changes to some of its policies[157] and has been part of lawsuits involving student-athletes.[158] At this time, the NCPA has not taken a position on or made public statements about the issue of potential NCAA amateurism violations due to fantasy sports league providers using college student-athletes’ names and statistics.[159] The NCPA, or a group like it, could assist student-athletes, individually or as part of a class action, who want to take legal action against fantasy sports league providers.
However, it is possible that a student-athlete may not be willing to bring a lawsuit on his or her own because of the fear of backlash from fellow student-athletes and/or the public, pressure from fantasy sports league providers, and/or negative repercussions on his future career (i.e., as a professional athlete). Also, even if a student-athlete did want to pursue legal action, he may not have the resources to do so on his own.
The fear of being the first student-athlete to challenge a fantasy sports league provider is a legitimate one, especially when other parties—the NCAA and colleges and universities—have yet to take a formal position on the issue or begin to take any action. In addition, there is the potential for the market value of a student-athlete to be negatively impacted. For student-athletes who have the opportunity to move on to the professional level, success at the college level increases the market value of the student-athlete. Another aspect of an athlete’s market value is popularity with fans. Fantasy sports leagues can lead to an increase in the fan base of a student-athlete,[160] especially for athletes who have a fan following in the geographic area in which they compete but do not yet have national prominence.[161] Taking legal action against a fantasy sports league provider may cause a student-athlete to lose favorability among sports fans, and a student-athlete likely is not willing to take action in a way that may negatively impact his, or one of his teammate’s, market value.
That said, it is important to note that student-athletes have an affirmative obligation to take action to stop non-permissible promotional activities, i.e., if a student-athlete’s name or image appears on a commercial item, or is used to promote a commercial product.[162] Failure to do so can impact the student-athlete’s eligibility for participation in college sports.[163] According to NCAA bylaws, action to stop such an activity can be taken by the student-athlete or the college or university acting on behalf of the student-athlete.[164] This may allow a college or university to bring a lawsuit against a fantasy sports league provider on behalf of student-athletes because it does not solely involve an individual right but also a violation of an NCAA bylaw.[165] But if a student-athlete must be the party to bring a lawsuit against a fantasy sports league provider, based on either or both his individual rights (i.e., right of publicity) or obligations under NCAA bylaws, what is the likelihood that a student-athlete is going to challenge a fantasy sports league provider like CBSSports.com? There have not been any efforts to date.[166]
3. Compensate Student-Athletes
This Note does not focus on whether student-athletes should be compensated for their performance; that discussion is beyond the scope of this Note. This Note focuses on the issue of amateurism, as it stands today. However, compensation of student-athletes is a possible solution to the problems presented by fantasy sports league providers using student-athletes’ names and statistics. There are various ways suggested to compensate student-athletes, ranging from money put into a savings account of sorts that student-athletes get upon graduation, to some sort of “bonus” for performance, to out-right payment for playing (like in professional sports).[167] Pay-for-play is not the most popular model for student-athlete compensation, but even some close to college sports are in favor of changes to the current model.[168]
IV. Recommendation
A. NCAA and Colleges and Universities Need to Stand Up to College Fantasy Sports League Providers
Since legal action does not seem to be a clear option for addressing the issue of fantasy sports league providers using student-athletes’ names and statistics, other alternatives need to be explored. The focus herein is on actions the NCAA, colleges, and universities can take. Alternative actions by student-athletes are not discussed, although they may play a role in the actions taken by the NCAA and/or colleges and universities. A reason why alternatives for student-athletes are not discussed is because student-athletes appear to be the only party that clearly has standing to bring a lawsuit against fantasy sports league providers based on individual rights, i.e., right of publicity. This is the best option for student-athletes to pursue against fantasy sports league providers.
1. Launch a Public Relations Campaign
The issue of increasing commercial activity involving student-athletes, including the use of student-athletes’ names and statistics by fantasy sports league providers, has received a lot of attention over the last year,[169] and it was a focal point of the NCAA Convention in January 2009.[170] The NCAA is taking seriously the issue of increasing commercial activity involving student-athletes; it is not going to go away: “…this invasion of commercialism appears to be inevitable given new technologies that are intersecting with consumer demand for interactivity and reality-based gaming.”[171]
One of the first steps the NCAA is taking is to share the responsibility of making good judgments about commercial activity (that are consistent with NCAA principles) among the NCAA national office, conferences, and colleges and universities.[172] Also, the NCAA is exploring new systems for determining whether student-athlete exploitation has occurred in conjunction with commercial activity.[173] These steps should be watched to see what results from the increased study of the issue by the NCAA and the solutions the NCAA proposes.
In addition to these initial steps taken by the NCAA and colleges and universities, it is necessary for a proactive public relations campaign to be launched. The NCAA often is criticized for being reactive not proactive, but in this case the best defense will be a good offense. Leadership must come from the top. As Rick Karcher, associate professor of law and director of the Center for Law and Sports at Florida Coastal School of Law, said, “When you’re talking about a third party [i.e., fantasy sports league providers] outside of the NCAA and its member schools profiting off the athletes, to me it’s the NCAA’s job, if their mission is amateurism, it’s their job to prevent it as much as possible.”[174]
Colleges and universities are member institutions of the NCAA, and furthermore student-athletes are represented by their colleges and universities and ultimately the NCAA. The obligation sits with the NCAA to take action and do what is right on behalf of thousands of student-athletes. Legal action is not always best, and like here, it may not always be an option. Instead, a full-out lobbying effort by the NCAA, reinforced by colleges and universities, to the fantasy sports league providers is a good first step. A second part to this first step is an equally strong public outreach and information campaign. Is this issue on the radar of every fantasy sports league gamer? Is this issue regularly talked about on television and radio sports programs? If not, it should be.
2. NCAA Needs to Evaluate Its Contracts
The NCAA’s broadcasting function includes network and cable television, radio, and Internet presentation of NCAA games and championships.[175] The NCAA oversees the broadcasts of eighty-eight championships, while CBS owns the rights to sixty-six championships and ESPN has the rights to twenty-two championships.[176] In addition, CBS and ESPN have the rights to broadcast NCAA games, for example, weekly football and basketball games.[177] CBS Sports owns the national radio syndication and satellite radio distribution rights to all eighty-eight NCAA championships.[178] The NCAA also has granted CBS Sports exclusive Internet rights through an 11-year bundle agreement that includes the rights to cover all rounds of all eighty-eight NCAA championships, the production of the official Web site for all NCAA sports, and the rights to all Internet representation of the NCAA championship events.[179] These television and radio broadcasting contracts with CBS and ESPN and the Internet contract with CBS are very lucrative contracts for the NCAA, totaling in the billions of dollars.[180]
Is there a conflict of interest? The NCAA is supposed to act in the best interest of student-athletes, including when fantasy sports league providers use student-athletes’ names and statistics. But it is hard to resist asking how the NCAA can do this if it is so intimately tied to two fantasy sports league providers: CBS and ESPN. The NCAA is a non-profit organization (although this has been the subject of some controversy in recent years[181]), and to provide the vast services it does, it must earn money. Member institutions pay yearly membership fees,[182] but this amounts to an extremely small portion of the overall operating budget of the NCAA.[183] Broadcast and marketing contracts are the biggest source of income for the NCAA.[184] The ultimate question becomes: In whose best interest is the NCAA going to act?
V. Conclusion
The decision by CBSSports.com and other college fantasy sports league providers to interpret C.B.C. Distribution as a loophole that allows the use of student-athletes’ names and images in college fantasy sports leagues goes against the NCAA Principal of Amateurism long upheld by the NCAA. Student-athletes are not commodities; use of their names and statistics in fantasy sports leagues should be prohibited. The NCAA, with colleges and universities and student-athletes, should take a firm position that the Eighth Circuit’s ruling does not apply to college sports and demand that fantasy sports league providers stop using student-athletes’ names and statistics. It is incumbent upon the NCAA to stand up for their student-athletes and the amateurism principles that guide college sports.
[1] Nick Williams, Living the Dream: Fueled in Part by the Internet, Fantasy Sports Have Exploded Into a Billion-Dollar Industry, The Post-Star, July 2, 2006, available at http://www.poststar.com/articles/2006/07/02/news/ doc44a7b0adee47e799624131.txt. There are 34.5 million people in the United States and Canada who have played fantasy sports, with 19.4 million people actively playing fantasy sports. Press Release, Fantasy Sports Trade Association, Fantasy Sports Conference Demographic Survey Shows Continued Growth (Aug. 2, 2007) (http://www.emediawire.com/releases/2007/8/emw543818.htm). Fantasy sports has a total economic impact of almost $4.5 billion dollars, with consumer spending $800 million directly on fantasy sports products and an additional $3 billion on media products related to the hobby like cable and/or satellite television packages and satellite radio. Fantasy Sports Ad Network, About Fantasy Sports, http://www.fantasysportsadnetwork.com/aboutfantasy.htm (last visited Feb. 28, 2009).
[2] Joshua Chaffin, All to Play For, Financial Times Online, Nov. 9, 2007, http://www.ft.com/cms/s/0/1cc2ad14-96bd-11dc-b2da-0000779fd2ac.html. Fantasy sports companies even tried fantasy bass fishing, but that effort was short-lived for some companies. Id. ESPN, though, still provides fantasy fishing. ESPN Fantasy Fishing, http://games.espn.go.com/bass/frontpage (last visited Feb. 28, 2009).
[3] Posting of Myles Brand to NCAA Double-A Zone, Fantasy Leagues May be Less Than They Seem, http://www.doubleazone.com (Sept. 9, 2008, 15:41 EST).
[4] Brand, supra note 3; Nandio Di Fino, College Football Fantasy Game to Name Names, The Wall Street Journal Online, July 31, 2008, http://online.wsj.com/public/article_print/SB121733679819593215.html.
[5] Di Fino, supra note 4 (“A fantasy college game has never been widely accepted or attempted before because of a reluctance to utilize anything but broad signifiers in identifying college athletes.”); Fantasy Baseball Dugout, Fantasy College Football Offered by CBS Sports, http://www.fantasybaseballdugout.com/ 2008/08/02/fantasy-college-football (last visited Mar. 1, 2009).
[6] Major League Baseball Advanced Media is the Internet and interactive branch of Major League Baseball. The Official Site of Major League Baseball, www.mlb.com (last visited Feb. 10, 2009).
[7] C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007).
[8] William K. Kirwan & R. Gerald Turner, Tackling College Football Fantasy Leagues, Los Angeles Times, Aug. 30, 2008, available at www.latimes.com/news/opinion/sunday/commentary/la-oe-kirwan30-2008aug30,0,7890950.story.
[9] Brand, supra note 3.
[10] C.B.C. Distrib., 505 F.3d. 818.
[11] Stephen Dorman, The Fantasy Football Phenomenon, The Acorn, Aug. 3, 2006, http://www.theacorn.com/news/2006/0803/Sports/076.html; Jerry Magee, It’s No Fantasy—NFL Puts Its Stamp on Gambling, San Diego Union Tribune, Aug. 17, 2003, http://www.signonsandiego.com/sports/nfl/magee/20030817-9999_1s17nflcol.html. Oakland Raiders’ public relations officer Bill Tunnell is also credited in some accounts as being part of the creation of the fantasy football league. Dorman, supra.
[12] Dorman, supra note 11.
[13] Id.
[14] Id.
[15] The league was named after La Rotisserie Francaise, the restaurant where the Okrent and his friends initially agreed to form the league. Chris Colston, Revisiting Roto’s Roots, USA Today Baseball Weekly, Dec. 8-14, 1999, http://www.usatoday.com/sports/baseball/bbw/v96/bbw9605.htm. For this reason, fantasy baseball is sometimes referred to as “Rotisserie baseball.” Id.
[16] History of Fantasy Sports, http://iml.jou.ufl.edu/projects/spring06/Antonio/ historyoffantasy.html (last visited Feb. 28, 2009).
[17] In 1979, Okrent invented the rules to the baseball league on the back of a cocktail napkin on a long cross-country flight. Initially, Okrent pitched his idea to Texas Monthly magazine, but they were not interested. He then turned to several friends, many of whom were sportswriters, in a New York City restaurant a few weeks later. Three of the five expressed interest, and this group soon expanded to ten franchises. The following winter seven of the ten charter members met and founded the first fantasy baseball league. Colston, supra note 15; History of Fantasy Sports, supra note 16.
[18] Id.
[19] Id.
[20] See Matthew G. Massari, When Fantasy Meets Reality: The Clash Between On-Line Fantasy Sports Providers and Intellectual Property Rights, 19 HVJLT 443, 445 (2006) (“The advent of powerful computers and the Internet has revolutionized fantasy games, reaching many new players, allowing scoring to be done entirely by computer, and allowing leagues to develop their own scoring systems and game play options. Real-time statistics are now recorded and distributed to the public almost instantly via the Internet.”).
[21] Williams, supra note 1. See How Does Fantasy Baseball Work?, http://www.wisegeek.com/how-does-fantasy-baseball-work.htm (last visited Nov. 15, 2008) (explaining how fantasy baseball, for example, has “transformed from a hobby practiced only by those with an extreme interest in baseball statistics to a multi-million dollar industry.”). See also C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007).
(noting that “[t]o date, the business of fantasy sports games is a multimillion dollar industry . . . .”).
[22] See Massari, supra note 20 (“Before the aid of technology, early fantasy leagues were manually operated and used statistics from media box scores and from weekly information published in USA Today because they were easy to tabulate”). See also History of Fantasy Sports, supra note 16 ("It used to be thought of as [something for] just geeks and hard core fans. But this isn't a small closet hobby anymore. This son of *#$%* is a big, big industry, and it's all due to the Internet." (quoting Greg Ambrosius, president of the Fantasy Sports Trade Association)).
[23] Jim Hu, Sites See Big Season for Fantasy Sports, CNET News, Aug. 8, 2003, http://news.cnet.com/2100-1026-5061351.html.
[24] Massari, supra note 20 (“Before the aid of technology, early fantasy leagues were manually operated and used statistics from media box scores and from weekly information published in USA Today because they were easy to tabulate.”).
[25] Hu, supra note 23.
[26] Gregory M. Lamb, Will Technology Ruin Sports?, The Christian Science Monitor, Dec. 16, 2004, http://www.csmonitor.com/2004/1216/p13s01-stct.html.
[27] Id.
[28] Id. (explaining that through Direct TV’s NFL Sunday Ticket “a displaced New England Patriots fan in Dallas can still watch his team play or read all about it online.”).
[29] Hu, supra note 23.
[30] Lamb, supra note 26.
[31] Press Release, LiveHive Systems, Inc., LiveHive Systems to Unveil New Predict-the-Play Fantasy Baseball Solution at the FSTA Spring Business Conference (Jan. 10, 2007) (http://www.livehivesystems.com/2007/01/unveils-fantasy-baseball-solution).
[32] See LiveHive Systems, Inc., News, http://www.livehivesystems.com/news/ (last visited Mar. 1, 2009) (press releases announcing new NanoGaming sports.)
[33] Press Release, LiveHive Systems, Inc., LiveHive Systems to Unveil New Predict-the-Play Fantasy Baseball Solution at the FSTA Spring Business Conference (Jan. 10, 2007) (http://www.livehivesystems.com/2007/01/unveils-fantasy-baseball-solution) (explaining that NanoGaming “is ideal for fantasy sites looking to provide their players with a more interactive experience during game time; for TV networks seeking new and creative ways to engage and grow their audience; and for Web portals in expanding their presence in the online sports industry.”).
[34] Cashing in on Fantasy Football (Marketplace, American Public Media radio broadcast Aug. 11, 2006); Lamb, supra note 26.
[35] Lamb, supra note 26 (“Mobile phones ‘are really becoming like media terminals, the so-called third screen’ after TVs and PCs.”).
[36] See, e.g., CBSSports.com, CBSSports Mobile, http://www.cbssports.com/wireless/football/companion (last visited Mar. 1, 2009); ESPN.com, ESPN Mobile, http://proxy.espn.go.com/mobile/products/index (last visited Mar. 1, 2009); FoxSports.com, Fox Sports Mobile, http://msn.foxsports.com/FoxSportsMobile/index.jsp (last visited Mar. 1, 2009).
[37] Tim Faulkner, Sports Traffic No Fantasy For Yahoo, Valleywag, Dec. 21, 2007, http://valleywag.gawker.com/336833/sports-traffic-no-fantasy-for-yahoo; Posting of Adam Tornes to Compete Blog, Fantasy Round-Up: Yahoo! Gets the W, http://blog.compete.com (Dec. 21, 2007). The graph tracking the number of visitors to fantasy sports sites clearly shows peaks during the start of the professional football season in the fall and the start of the professional baseball season in the spring. Faulkner, supra.
[38] Faulkner, supra note 27 (explaining that in the area of fantasy sports Yahoo has a big lead over search engine competitors like Google, which does not have fantasy sports; and Yahoo has a much larger share of fantasy traffic than traditional sports properties ESPN and CBS); Tornes, supra note 27.
[39] Greg Sandoval, Fantasy Football Leagues Score Big with Fans, CNET News, Nov. 27, 2006, http://news.cnet.com/Fantasy-football-leagues-score-big-with-fans/2100-1026_3-6138083.html?tag=nefd.top.
[40] Liz Ecker et al., Betting on an Industry: Uncertain Future for Booming Fantasy Sports, http://depot.northwestern.edu/~ese913/fantasysports/fantasysports.html (last visited Mar. 1, 2009).
[41] Fantasy Sports by the Numbers: Quotes and Statistics, http://depot.northwestern.edu/~ese913/fantasysports/fantasysportsbythenumbers.html (last visited Mar. 1, 2009). The Fantasy Sports Trade Association collected data in 2005 that looked at fantasy sports and the workplace. Eight out of ten people surveyed agreed with the statement “fantasy sport participation does not interfere with work productivity at my job.” Id.
[42] Liz Ecker et al., supra note 40. Challenger, Gray & Christmas also estimate company losses of up to $7.4 billion during the 17-week NFL season. Id. Tom Van Riper, The Costs of Online Football: Pure Fantasy, Forbes.com, Sept. 26, 2007, http://www.forbes.com/2007/09/26/fantasy-football-office-lead-cx_tvr_0926productivity.html.
[43] Parry Aftab, The Privacy Lawyer: Cyberloafing’s Drain on Productivity, Information Week, Nov. 10, 2003, http://www.informationweek.com/news/showArticle.jhtml?articleID=16000567 (explaining that with the advent of music downloading, online shopping, auction sites, and fantasy sports the percentage of employee productivity during the workday has reduced quickly and radically).
[44] Liz Ecker et al., supra note 40 (explaining that Lehman Brothers has restricted employee access to all major fantasy Web sites).
[45] Critics point out that the demographics of fantasy sport players shows that most are salaried, not hourly, employees, many of whom likely make up any time spent on fantasy sports (or other cyberloafing activities) at the end of the workday. Critics also point out that there are risks associated with limiting or banning employee access to fantasy sports league Web sites during the workday, like employee alienation. Van Riper, supra note 42. The author notes that “[t]he [Challenger, Gray & Christmas] study doesn’t consider the fact that the $60,000 to $100,000 fantasy football demographic is mostly comprised of salaried employees who aren't punching a clock. Many of them no doubt stay later to counter any wasted time during the day.” Id.
[46] Liz Ecker et al., supra note 40; Fantasy Sports by the Numbers, supra note 41; Van Riper, supra note 42.
[47] John McGuire, A Review of: Arthur A. Raney and Jennings Bryant. Eds. Handbook of Sports and Media, 11 Mass Communication and Society, 364, 366, (2008) (http://web.ebscohost.com.proxy2.library.uiuc.edu/ehost/detail?vid=2&hid=114&sid=6f2e0b75-31fd-4148-bd56-1b88aca996f6%40sessionmgr104) (last visited Mar. 1, 2009).
[48] Lamb, supra note 26 (“The hunger for information by sports fans is never to be underestimated.”).
[49] History of Fantasy Sports, supra note 16.
[50] Press Release, CBS Sportsline.com, CBS SportsLine.com Unveils College Fantasy Football (Aug. 2, 2005) (http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/08-02-2005/0004080543&EDATE=) (“Until this time, the fantasy football market has almost exclusively revolved around professional football.”). CBSSports.com is a unit of CBS Interactive, an online content network for information and entertainment. CBS Interactive is a division of CBS Corporation. CBSSports, About Us, http://www.cbssports.com/info/about (last visited on Mar. 2, 2009).
[51] Id.
[52] Id. (“CBS SportsLine.com ‘College Fantasy Football’ will allow users to draft a team of college football players from any of the . . . Division I programs or customize their player pool to include any conference they choose . . . . Players will be categorized by position and school. [For] [e]xample: ‘Team QB, Michigan’ would accumulate all points generated by anyone that played the quarterback position for Michigan”).
[53] Id.
[54] Charlie Zegers, Fantasy Sports go to School: CBS Decision to Add Player Names May Spark a Major Expansion in Fantasy Games, http://collegebasketball.about.com/od/fantasygames/a/college-fantasy.htm (last visited Mar. 2, 2009) (Professional fantasy sports leagues exist for the MLB, the NBA, the NFL, “[t]he NHL, professional golf…even bass fishing has a fantasy league.”).
[55] Id. (Professional fantasy sports leagues exist for the MLB, the NBA, the NFL, “[t]he NHL, professional golf…even bass fishing has a fantasy league.”). See infra Part II.C.
[56] Brand, supra note 3 (“In the past, producers provided the statistics for ‘Florida quarterback.’ No name. This season, they are posting the statistics of the Florida quarterback by name.”).
[57] Id. (“In the past, producers provided the statistics for ‘Florida quarterback.’ No name. This season, they are posting the statistics of the Florida quarterback by name.”). At first, CBSSports.com was the only college fantasy sports league that permitted gamers to choose players by name. CBSSports.com, College Fantasy Football, http://collegefb.cbssports.com/splash/collegefb/spln/single (last visited Nov. 15, 2008) (“CBSSports.com features the only college fantasy football game where you can choose your favorite players by name.”). Other fantasy sports league providers, for example Yahoo! Sports, also now identify players by name and report statistics individually. Yahoo! Sports, Fantasy on Yahoo! Sports, http://sports.yahoo.com/fantasy (last visited Mar. 2, 2009).
[58] Charlie Zegers, supra note 54 (“A [CBSSports] basketball version is expected to follow.”). See, e.g., CBSSports.com, NCAA College Basketball, http://www.cbssports.com/collegebasketball (last visited Mar. 2, 2009) (showing that CBSSports.com now has a fantasy college basketball league that lists players by name with statistics available for the individual players).
[59] History of Fantasy Sports, supra note 16.
[60] The terms “‘membership’ or ‘members’ [include the] colleges, universities and conferences that make up the NCAA. The members appoint volunteer representatives that serve on committees which introduce and vote on rules called bylaws. The members also establish programs to govern, promote and further the purposes and goals of intercollegiate athletics.” NCAA.org, NCAA Organizational Overview, http://www.ncaa.org/wps/ncaa?ContentID=435 (last visited Mar. 2, 2009).
[61] NCAA.org, About the NCAA, http://www.ncaa.org/wps/ncaa?ContentID=246 (last visited Mar. 2, 2009); NCAA.org, NCAA Overview, http://www.ncaa.org/wps/ncaa?ContentID=1355 (lasted visited Mar. 2, 2009).
[62] NCAA.org, NCAA Mission, http://www.ncaa.org/wps/ncaa?ContentID=1352 (last visited Mar. 2, 2009).
[63] “The ‘national office’ [has] [a]pproximately 350 paid professionals that implement the rules and programs established by the membership. The national office staff is located primarily at the headquarters office in Indianapolis, Indiana.” NCAA.org, NCAA Organizational Overview, http://www.ncaa.org/wps/ncaa?ContentID=435 (last visited Mar. 2, 2009).
[64] NCAA.org, NCAA Mission, http://www.ncaa.org/wps/ncaa?ContentID=1352 (last visited Mar. 2, 2009).
[65] Avocation, Merriam-Webster Online Dictionary (Mar. 2, 2009), http://www.merriam-webster.com/dictionary/avocation.
[66] National Collegiate Athletic Association, 2008-09 NCAA Division I Manual, 4-5 (2008) [hereinafter NCAA Manual] (Constitution, Article 2.9).
[67] Sherman Act Invalidation of the NCAA Amateurism Rules, 105 Harv. L. Rev. 1299, 1299 (1992). See NCAA Manual, at 61 (Bylaw, Article 12.01.2) (explaining the clear line of demarcation between college athletics and professional sports).
[68] NCAA Manual, at 61 (Bylaw, Article 12.01.2).
[69] Press Release, NCAA, Statement from Carolayne Henry, Chair of the NCAA Division I Student-Athlete Reinstatement Committee and Associate Commissioner, Mountain West Conference (Aug. 24, 2004) (http://www.ncaa.org/wps/ncaa?ContentID=8262).
[70] NCAA Manual, at 4 (Constitution, Article 2.9) (“[S]tudent-athletes should be protected from exploitation by professional and commercial enterprises.”). See generally NCAA Manual, at 71 (Bylaw, Article 12.5) (explaining permissible and non-permissible promotional activities).
[71] See, e.g., NCAA Manual, at 71-73 (Bylaw, Article 12.5.1) (explaining permissible promotional activities); William K. Kirwan and R. Gerald Turner, Tackling College Football Fantasy Leagues, Los Angeles Times, Aug. 30, 2008, available at www.latimes.com/news/opinion/sunday/commentary/la-oe-kirwan30-2008aug30,0,7890950.story.
[72] Kirwan & Turner, supra note 8.
[73] This Note does not discuss the intersection of amateurism and compensation related to whether student-athletes should be compensated for their performance. This current hot-button issue is beyond the scope of this Note. This Note focuses on amateurism as it stands now. For further discussion of whether student-athletes should be compensated for their performance and the issues in that debate, see, e.g., Posting of Myles Brand to NCAA Double-A Zone, Pay for Play is Fine. But Not in College Sports, http://www.doubleazone.com (Aug. 21, 2008, 12:20 EST); Malcolm Moran, Not Just Another Number, NCAA Champion Magazine, Winter 2009, available at http://www.ncaachampionmagazine.org/ Championship%20Magazine/ChampionMagazineStory/2009/Winter/Articles/tabid/107/articleType/ArticleView/articleId/251/Default.aspx.
[74] NCAA Manual, at 4 (Constitution, Article 2.9) (“Student-athletes shall be amateurs in an intercollegiate sport . . . .”). See also NCAA Manual, at 61 (Bylaw, Article 12.01.1) (“Only an amateur student-athlete is eligible for intercollegiate athletics participation in a particular sport.”).
[75] Kirwan & Turner, supra note 8.
Since it was founded in 1989, [the NCAA] . . . has advocated policies that protect college athletes from commercial exploitation. We believe that the creation of college sports fantasy leagues, if unchecked, is a step toward undermining the NCAA’s bedrock amateurism principles, which require colleges and their business partners to treat athletes like other students and not as commodities whose names, likenesses and/or images can be sold or licensed. Id.
[76] Posting by Michelle Brutlag Hosick to NCAA Double-A Zone, Amateurism is a Serious Issue for NCAA, http://www.doubleazone.com (Sept. 30, 2008, 11:44 EST).
[77] Id.
[78] Id.
[79] Posting by Myles Brand to NCAA Double-A Zone, Why the Capitalism Argument on Pay for Play Doesn’t Work, http://www.doubleazone.com (Aug. 7, 2008, 10:24 EST).
[80] Posting by Myles Brand to NCAA Double-A Zone, Why the Fairness Argument on Pay for Play Isn’t a Fair Argument, http://www.doubleazone.com (Aug. 12, 2008, 16:07 EST).
[81] Posting of Myles Brand to NCAA Double-A Zone, Pay for Play is Fine. But Not in College Sports, http://www.doubleazone.com (Aug. 21, 2008, 12:20 EST).
[82] In Division I, the job of upholding the value of amateurism is assigned to a group of 23 people serving on the Amateurism Cabinet. Hosick, supra note 76.
[83] Hosick, supra note 76. Some of the issues they will be looking at include what triggers professionalism for a prospect, the involvement of agents and advisors in intercollegiate athletics, and how to integrate international student-athletes into the NCAA's amateurism standard. Id.
[84] Michelle Brutlag Hosick, Pre-Enrollment Amateurism Issues to Undergo Review, The NCAA News, Sept. 29, 2008, http://www.ncaa.org/wps/ncaa?ContentID=37545.
[85] Chris Isidore, Fantasy ‘Rights’ and Wrong, CNNMoney.com, Aug. 11, 2006, http://money.cnn.com/2006/08/11/commentary/sportsbiz/index.htm.
[86] Scott L. Walker & Matthew Savare, The Debate Regarding Fantasy Sport Leagues Rages On: CBSI Sues the NFLPA, The Metropolitan Corporate Counsel, Feb. 2009, available at http://www.metrocorpcounsel.com/current.php?artType=view&EntryNo=9371.
[87] Id.
[88] Kurt Badenhausen, Foul Ball, Forbes.com, Feb. 27, 2006, http://www.forbes.com/forbes/2006/0227/052.html (explaining that in 2005 MLB “sold to fantasy baseball providers 18 licenses that gave them the right to use the statistics.”).
[89] Id.
[90] Id.
[91] Alan Schwartz, Baseball is a Game of Numbers, But Whose Numbers Are They?, N.Y. Times, May 16, 2006, available at http://www.nytimes.com/2006/05/16/sports/baseball/16license.html?pagewanted=1&_r=2&sq=Baseball%20is%20a%20numbers%20game,%20but%20whose%20numbers%20are%20they&st=cse&scp=1.
[92] Fantasy Leagues Permitted to Use MLB Names, Stats, ESPN.com, Aug. 8, 2006, http://sports.espn.go.com/mlb/news/story?id=2543720.
[93] C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007).
[94] Id. On appeal, MLB Advanced Media and the MLB Players Association were joined by the National Football League (“NFL”) Players Association, NFL Players Inc., among others. Id.
[95] Id.
[96] Id.
[97] Id.
[98] Zegers, supra note 54.
[99] Kirwan & Turner, supra note 8.
[100] See id. (“Legal scholars disagree about whether this ruling applies to amateur athletes who are not compensated for their participation and cannot earn money from endorsements.”); The Business of Sports, Fantasy Sports: What’s in a Name?, http://blogs.trb.com/sports/custom/business/blog (Aug. 30, 2008 22:01 EST) (presenting contrasting opinions by a sports law professor and an intellectual property attorney on the amateurism and fantasy sports).
[101] Id.
[102] Brand, supra note 3.
[103] C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007).
[104] Id. at 823 (citing Zacchini v. Scripps-Howard Broad., 433 U.S. 563 (1977)).
[105] Id.
[106] Id.
[107] Id. (explaining that the public value of information about baseball and baseball players is attributed to baseball being considered the national pastime).
[108] Id.
[109] Id.
[110] Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307, 315 (2001).
[111] For the purposes of this analysis, Missouri right of publicity law will be used because that was the state law reviewed by the United States Court of Appeals for the Eighth Circuit in C.B.C. Distribution. C.B.C. Distrib., 505 F.3d 818.
[112] Doe v. TCI Cablevision, 110 S.W.3d 363, 369 (Mo. 2003) (en banc).
[113] Id. at 370-71.
[114] C.B.C. Distrib., 505 F.3d 818 at 824.
[115] Id.
[116] Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 973 (10th Cir. 1996). It is noted that some courts have said that economic interests are the focus of right of publicity protection, and that non-economic interests are more directly served under rights of privacy. C.B.C. Distrib., 505 F.3d 818 at 824.
[117] Student-athletes cannot receive any kind of payment, directly or indirectly, for participation in athletics. NCAA Manual, at 61 (Bylaw, Article 12.01.4, 12.02.2). See also NCAA Manual, at 63-66 (Bylaw, Article 12.1.2.1) (explaining prohibited forms of pay). See infra Part III.B.3.
[118] C.B.C. Distrib., 505 F.3d 818 at 824.
[119] See, e.g., C.B.C. Distrib., 505 F.3d 818 at 824 (explaining that professional baseball players can earn “large sums of money from endorsements and sponsorship agreements”).
[120] Student-athletes cannot receive any kind of payment, directly or indirectly, for participation in athletics. NCAA Manual, at 61 (Bylaw, Article 12.01.4, 12.02.2). See also NCAA Manual, at 63-66 (Bylaw, Article 12.1.2.1) (explaining prohibited forms of pay). See infra Part III.B.3.
[121] Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 973 (10th Cir. 1996) (“Most sports and entertainment celebrities with commercially valuable identities engage in activities that themselves generate a significant amount of income; the commercial value of their identities is merely a by-product of their performance values.”).
[122] Id.
[123] Student-athletes cannot receive any kind of payment, directly or indirectly, for participation in athletics. NCAA Manual, at 61 (Bylaw, Articles 12.01.4, 12.02.2). See also NCAA Manual, at 63-66 (Bylaw, Article 12.1.2.1) (explaining prohibited forms of pay). See infra Part III.B.3.
[124] C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 824 (8th Cir. 2007).
[125] Id.
[126] Knight Commission on Intercollegiate Athletics, 2009 NCAA Convention – Future of Commercial Activity, http://www.knightcommission.org/index.php?option=com_content&view=article&id=263:spotlight-2&catid=21:spotlight (last visited Mar. 4, 2009).
[127] C.B.C. Distrib., 505 F.3d 818 at 824.
[128] Zacchini v. Scripps-Howard Broadcasting Co., 422 U.S. 562, 576 (1977).
[129] Id. See also Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 976 (10th Cir. 1996) (“In this view, whether the commercial value of an identity is the result of a celebrity’s [or athletes’] hard work, media creation, or just pure dumb luck, no social purpose is served by allowing others to freely appropriate it.”).
[130] “Natural rights” is a non-economic justification that is not often supported by courts because it rests more on the notion of fairness than on a more reasoned argument. Cardtoons, 95 F.3d at 975. However, fairness does seem carry more weight relative to the rights of student-athletes, in comparison to rights of professional athletes or celebrities.
[131] See infra Part III.B.1.
[132] NCAA Manual, at 73-75 (Bylaw, Article 12.5.2) (explaining non-permissible promotional activities).
[133] C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 824 (8th Cir. 2007).
[134] NCAA Manual, at 4 (Constitution, Article 2.9).
[135] The Knight Foundation Commission on Intercollegiate Athletics was formed by the John S. and James L. Knight Foundation in October 1989 in response to more than a decade of highly visible scandals in college sports. The goal of the Commission was to recommend a reform agenda that emphasized academic values in an arena where commercialization of college sports often overshadowed the underlying goals of higher education. Knight Commission on Intercollegiate Athletics, Mission & Statement of Principles, http://208.112.86.5/knightcommission/joomla/index.php?option=com_content&view=article&id=15&Itemid=17 (last visited Mar. 9, 2009).
[136] Knight Commission on Intercollegiate Athletics, 2009 NCAA Convention – Future of Commercial Activity, http://www.knightcommission.org/index.php?option=com_content&view=article&id=263:spotlight-2&catid=21:spotlight (last visited Mar. 4, 2009).
[137] Id.
[138] C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 824 (8th Cir. 2007).
[139] NCAA Manual, at 61 (Bylaw, Article 12.02.3).
[140] NCAA Manual, at 62-63 (Bylaw, Article 12.1.2).
[141] NCAA Manual, at 61 (Bylaw, Article 12.01.4).
[142] NCAA Manual, at 170 (Bylaw, Articles 15.02.1, 15.02.2). See generally NCAA Manual, at 172-192 (Bylaw, Article 15) (explaining financial aid and grant-in-aid in more detail, including general principles, elements, limitations, and terms and conditions).
[143] NCAA Manual, at 61 (Bylaw, Article 12.01.4).
[144] NCAA Manual, at 61 (Bylaw, Articles 12.01.1, 12.01.2).
[145] Press Release, NCAA, Statement from Carolayne Henry, Chair of the NCAA Division I Student-Athlete Reinstatement Committee and Associate Commissioner, Mountain West Conference (Aug. 24, 2004) (http://www.ncaa.org/wps/ncaa?ContentID=8262).
[146] C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007).
[147] NCAA Manual, at 61 (Bylaw, Article 12.01.4).
[148] Di Fino, supra note 4.
[149] The Business of Sports, supra note 100; Di Fino, supra note 4. The portrayal of the NCAA’s position in this section reflects its initial position, observations, and statements. The NCAA did have conversations with CBS around that time, communicating that using student-athlete names and statistics was a violation of NCAA bylaws, but at that time it wasn’t known what was going to happen. RedRaiders.com, College Fantasy Football: Players Like It, NCAA Doesn’t, Aug. 29, 2008, http://www.redraiders.com/2008/08/29/college-fantasy-football-players-like-it-ncaa-doesn%E2%80%99t. By October 2008 the Knight Commission started to more closely examine the issues involved. Press Release, Knight Commission on Intercollegiate Athletics, Knight Commission Criticizes Commercialization of College Athletes in Fantasy Sports, New Media (Oct. 27, 2008) (http://knightcommission.org/index.php?option=com_content&view=
article&id=242:knight-commission-criticizes-commercialization-of-college-athletes-in-fantasy-sports-new-media&catid=1:content&Itemid=11). At the 2009 NCAA Convention in January, the focus was on increased commercial use of athletes’ names, images, and likenesses. Knight Commission on Intercollegiate Athletics, 2009 NCAA Convention – Future of Commercial Activity, http://www.knightcommission.org/index.php?option=com_content&view=article&id=263:spotlight-2&catid=21:spotlight (last visited Mar. 4, 2009). See infra Part IV.A.1.
[150] A Google search performed on Mar. 9, 2009, revealed no results pertaining to the issue of amateurism, fantasy sports, and challenges by colleges and universities or student-athletes.
[151] RedRaiders.com, College Fantasy Football: Players Like It, NCAA Doesn’t, Aug. 29, 2008, http://www.redraiders.com/2008/08/29/college-fantasy-football-players-like-it-ncaa-doesn%E2%80%99t.
[152] Warth v. Seldin, 422 U.S. 490, 511 (1975).
[153] Hunt v. Washington Apple Advertising Commission, 432 U.S. 333 (1977). In Hunt, the Supreme Court announced a three-part test for when an association has standing to sue on behalf of its members: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at 343.
[154] E-mail from Julie Roe, Director of Enforcement, National Collegiate Athletic Association, to Jennifer Mueller (Dec. 9, 2008, 10:46 CST) (on file with author). See also Bob Dart, College Athletes Say Fantasy Leagues Exploit Them, DailyDaytonNews.com, Oct. 28, 2008, http://www.daytondailynews.com/shared/content/shared/money/stories/2008/10/COLLEGE_SPORTS28_COX_S9635.html (explaining that the NCAA likely does not have standing).
[155] See, e.g., C.B.C. Distrib. & Mktg. Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007) (the parties who joined the lawsuit include the MLB Players Association and the NFL Players Association). See generally Walker & Savare, supra note 86 (explaining that CBS Interaction sued the NFL Players Association in September 2008 alleging that the NFL Players Association monopolized the fantasy football market by requiring CBS Interactive to purchase a license to use NFL player statistics for CBS Interactive’s fantasy sports products).
[156] National College Players Association, http://www.ncpanow.org (last visited Mar. 9, 2009). The mission of the NCPA is “[t]o provide the means for college athletes to voice their concerns and change NCAA rules.” National College Players Association, Mission & Goals, http://www.ncpanow.org (last visited Mar. 9, 2009).
[157] National College Players Association, NCPA Victories for College Athletes, http://www.ncpanow.org (last visited Mar. 9, 2009).
[158] Press Release, National College Players Association, NCPA-Backed Lawsuit Makes Over $445 Million Available to Athletes (Aug. 11, 2008) (http://www.ncpanow.org/news_detail.asp?ArticleID=38); Press Release, National College Players Association, The National College Players Association Helps Jump Start Class Action Lawsuit Against NCAA (Feb. 23, 2006) (http://www.ncpanow.org/news_detail.asp?ArticleID=35).
[159] See generally National College Players Association, http://www.ncpanow.org (last visited Mar. 9, 2009) (there is no information on the NCPA’s Web site pertaining to the issue of amateurism and fantasy sports leagues). A Google search performed on Mar. 9, 2009, also revealed no results.
[160] See generally Mike Masnick, Major League Baseball Continues to Tilt at Windmills; Insisting It Owns Facts, Techdirt.com, June 14, 2007, http://www.techdirt.com/articles/20070614/165928.shtml.
Fantasy baseball has been a huge boost to Major League Baseball. It’s helped increase interest in the game—and especially increased interest in players outside of one’s hometown team. That means more watching of games (more commercial money), more attending games (more ticket and food money) . . . . It's been hugely successful. Id.
[161] Id.
[162] NCAA Manual, at 74 (Bylaw, Article 12.5.2.2).
[163] NCAA Manual, at 74 (Bylaw, Article 12.5.2.2).
[164] NCAA Manual, at 74 (Bylaw, Article 12.5.2.2) (explaining that the student-athlete, or college or university acting on behalf of the student-athlete, is required to take steps to stop the impermissible use of a student-athlete’s name or image on a commercial item in order for the student-athlete to retain his eligibility for participation in college sports).
[165] The issue of whether a college or university and/or the NCAA may have standing, possibly based on an NCAA bylaw violation or as an association, will require further analysis. If my Note is chosen for publication, I am committed to further developing this aspect of the analysis.
[166] A Google search performed on Mar. 9, 2009, revealed no results pertaining to the issue of amateurism, fantasy sports, and challenges by student-athletes. However, some former college athletes have spoken out on the issue. Dart, supra note 154.
[167] See, e.g., Dart, supra note 154 (explaining that funds “could be collected into a trust fund or used to pay for . . . some other acceptable payment for student athletes”); Bob Kravitz, NCAA Should Let Athletes Choose Pay or Scholarship, Indystar.com, Mar. 6, 2009, http://www.indystar.com/article/20090306/ SPORTS15/903060345/1034/SPORTS15 (putting forth an idea that student-athletes should get a choice of a full-ride scholarship or a salary of $25,000 per year with no academic requirements). As if in anticipation of his critics, Kravitz points out that his proposal is not a “blanket pay-for-play idea” and posits that most student-athletes would take the scholarship over the salary; only basketball prodigies that must spend one year in college before going to the NBA would be more inclined to take the money over the scholarship. Kravitz, supra. For more discussion, including the response by the NCAA to Kravitz’s article, see, Posting by Myles Brand to NCAA Double-A Zone, NCAA President Tackles Bob Kravitz Column, http://www.doubleazone.com (Mar. 10, 2009, 11:19 EST); Posting by David Pickle to NCAA Double-A Zone, Salary vs. Scholarship: Should Student-Athletes Decide?, http://www.doubleazone.com (Mar. 10, 2009 11:27 EST).
[168] As one Knight Commission member said, “there must be a way to balance the inequities by providing some sort of benefit to athletes through mechanisms other than ‘pay for play.’” Knight Commission on Intercollegiate Athletics, 2009 NCAA Convention – Future of Commercial Activity, http://www.knightcommission.org/index.php?option=com_content&view=article&id=263:spotlight-2&catid=21:spotlight (last visited Mar. 4, 2009). Malcolm Moran, in his article Not Just Another Number, suggests that “athletes should have their full cost of attendance covered in exchange for greater commercial use of their names and images in products other than game broadcasts.” Id. See Moran, supra note 73.
[169] See, e.g., Di Fino, supra note 4; Kirwan & Turner, supra note 8; Brand, supra note 3; Brand, supra note 81; Brand, supra note 80; Brand, supra note 79; Hosick, supra note 76; Posting by Marta Lawrence to NCAA Double-A Zone, Do Fantasy Sports Threaten Student-Athlete Amateurism?, http://www.doubleazone.com (Oct. 28, 2008, 14:15 EST).
[170] Knight Commission on Intercollegiate Athletics, 2009 NCAA Convention – Future of Commercial Activity, http://www.knightcommission.org/index.php? option=com_content&view=article&id=263:spotlight-2&catid=21:spotlight (last visited Mar. 4, 2009).
[171] Id. See supra Part II.A.2.
[172] Knight Commission on Intercollegiate Athletics, 2009 NCAA Convention – Future of Commercial Activity, http://www.knightcommission.org/index.php? option=com_content&view=article&id=263:spotlight-2&catid=21:spotlight (last visited Mar. 4, 2009).
[173] Id.
[174] The Business of Sports, supra note 100.
[175] NCAA.org, Broadcasting, http://www.ncaa.org/wps/ncaa?ContentID=113 (last visited Mar. 9, 2009).
[176] Id.
[177] Id.
[178] NCAA.org, Broadcasting Manual, Section 5 - Radio, http://www.ncaa.org/wps/ncaa?ContentID=637 (last visited Mar. 9, 2009). CBS has subcontracted the rights to all 88 NCAA championships to Westwood One. Id. And IMG College administers the NCAA local radio rights. Id.
[179] NCAA.org, Broadcasting Manual, Section 6 - Internet, http://www.ncaa.org/wps/ncaa?ContentID=638 (last visited Mar. 9, 2009). CBS has named CBS College Sports as the official producer of NCAA.com. CBS College Sports staffs and administrates all content on the Web site. Staff members who contact host institutions regarding content on NCAA.com are speaking on behalf of the NCAA national office as it pertains to requests for support. The NCAA works in conjunction with the CBS College Sports staff responsible for NCAA.com in supplying contact information, as well as overall direction in producing the Web site. Id.
[180] For example, CBS will pay the NCAA $6 billion over the next 11 years to broadcast the Division I men’s basketball tournament. RedRaiders.com, College Fantasy Football: Players Like It, NCAA Doesn’t, http://www.redraiders.com/2008/08/29/college-fantasy-football-players-like-it-ncaa-doesn%E2%80%99t (last visited Mar. 1, 2009).
[181] See, e.g., Aaron Steinberg, Mr. Brand Goes to Washington: Does the NCAA Deserve Non-Profit Status?, ReasonOnline, Jan. 4, 2007, http://www.reason.com/news/show/117618.html; Pete Thamel, Amid Questions, Brand Says N.C.A.A. Tax Status Is Merited, N.Y. Times, Oct. 31, 2006, http://www.nytimes.com/2006/10/31/sports/ncaafootball/31colleges.html.
[182] NCAA Manual, at 16 (Constitution, Article 3.7).
[183] According to the NCAA Current Budgeted Revenues Chart for 2007-08, membership dues account for 0% of the NCAA’s revenues. NCAA.org, Current Budgeted Revenues Chart, http://www.ncaa.org/wps/wcm/connect/resources/file/eb7d8101a49fe13/2007-08%20Budgeted%20Revenue%20Pie%20Chart.pdf?MOD=AJPERES (last visited Mar. 9, 2009). See also NCAA.org, Current Budget Details, http://www.ncaa.org/wps/wcm/connect/resources/file/ebca1c0e7492aa3/2007-08%20BUDGET%20(06-07%20Budget%20with%20moves).pdf?MOD=AJPERES (last visited Mar. 9, 2009) (detailing the NCAA revised budget for the 2007-08 fiscal year).
[184] According to the NCAA Current Budgeted Revenues Chart for 2007-08, television and marketing rights fees account for 89% of the NCAA’s revenues. NCAA.org, Current Budgeted Revenues Chart, http://www.ncaa.org/wps/wcm/connect/resources/file/eb7d8101a49fe13/2007-08%20Budgeted%20Revenue%20Pie%20Chart.pdf?MOD=AJPERES (last visited Mar. 9, 2009). See also NCAA.org, Current Budget Details, http://www.ncaa.org/wps/wcm/connect/resources/file/ebca1c0e7492aa3/2007-08%20BUDGET%20(06-07%20Budget%20with%20moves).pdf?MOD=AJPERES (last visited Mar. 9, 2009) (detailing the NCAA revised budget for the 2007-08 fiscal year). The NCAA also is supported by food and beverage companies like Coca-Cola and Hersey and other companies who participate in the NCAA Corporate Champion and Corporate Partner programs. NCAA.org, NCAA Corporate Champions and Corporate Partners, http://www.ncaa.org/wps/ncaa?ContentID=742 (last visited Mar. 9, 2009).