Sports Law Blog
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Monday, August 13, 2012
Why Missy Franklin retains her NCAA eligibility: The Operation Gold Exception
Over the past several weeks there has been a considerable amount of attention given to the United States Olympic Committee’s “Operation Gold” program. This program was created to provide additional incentive for our Olympic athletes by granting awards -- $25,000 to gold medal award winners, $15,000 to silver medalists and $10,000 for those who earn bronze medals. There is nothing unique about the efforts by the United States as a slew of other countries provide similar, if not larger,financial rewards for their athletes.
What is unique in this country is the NCAA, its self-created definition of “amateurism,” "initial eligibility," and its relationship to the Operation Gold program. Article 12 in the2011-12 NCAA’s Division 1 Manual defines the scope of amateurism and this is where one can find a unique exception for Olympic athletes. In Article 12.1.2 the NCAA defines a multitude of ways in which an individual can lose amateur status—including using their skill for pay, signing a professional contract,entering into a professional draft (a few exceptions), or signing with an agent.
Furthermore, the prohibited forms of pay are outlined, ad nauseum, in Article 220.127.116.11 which includes payment for performance. Specifically, Bylaw 18.104.22.168.5 “Payment Based on Performance” defines the following type of payment as a trigger for losing one’s amateur status:
“Any payment,including actual and necessary expenses, conditioned on the individual’s or team’s place finish or performance or given on an incentive basis, or receipt of expenses in excess of the same reasonable amount for permissible expenses given to all individuals or team members involved in the competition.”However, tucked into page 64 of this 426 page manual are two rules that are now critically important to a slew of Olympic athletes as they carve out exceptions. Specifically, 22.214.171.124.4.3.2 “Expenses/Benefits Related to Olympic Games” holds that:
“It is permissible for members of an Olympic team to receive all nonmonetary benefits and awards provided to members of an Olympic team beyond actual and necessary expenses, including entertainment, equipment, clothing, long distance telephone service, Internet access, and any other item or service for which it can be demonstrated that the same benefit is available to all members of that nation’s Olympic team or the specific sport Olympic team in question.”Additionally, 126.96.36.199.4.3.3 “Operation Gold Grant” holds that:
“An individual(prospective student-athlete or student-athlete) may accept funds that are administered by the U.S. Olympic Committee pursuant to its Operation Gold program.”The end result? Olympic athletes who received a significant amount of money from Operation Gold are allowed, under NCAA rules,to maintain their college eligibility.
Note, however,that in 2004 the courts, in the case of Bloom v. National Collegiate Athletic Ass'n, 93 P.3d 621 (Colo.App. 2004), made it very clearly that an individual’s NCAA amateurism status would be lost if they entered into any endorsement or marketing deals. [Bloom was a college football player at the University of Colorado and also an Olympic skier. Bloom was paid to participate in endorsements in connection with his professional skiing career and the NCAA subsequently held Bloom to be ineligible for the final two years of his college football career. The courts upheld the determination, finding it impossible to determine which endorsement and media activities were, in fact, unrelated to his athletic ability or prestige as Bloom contended.]Thus, USA swimming star Missy Franklin will take home $100,000 for each individual gold ($25,000 from the US Olympic Committee and $75,000 from USA Swimming) in the 100- and 200-meter backstroke events. And, per NCAA rules, these payments are allowed and do not cause her to lose her amateur status. Surprisingly, and in my mind this speaks to the arbitrary nature of some of the NCAA’s rules, Franklin is not allowed to receive a $50,000 bonus from USA Swimming for setting the world record in the 200-meter backstroke. Nor could she receive a free pair of shoes from Nike or a cup of coffee from a college coach recruiting her.
[Editor’s note:Missy, Boston College has a wonderful swimming team……]