Des Moines Register NCAA car ad bends rules, critics charge By TOM WITOSKY REGISTER STAFF WRITER November 29, 2005 Several critics say the NCAA now appears willing to allow college athletes to be used by the association to help promote the sale of specific commercial products or services - as long as they don't get paid for it. Critics say a popular Web site - the Pontiac Game Changing Performance poll - puts the NCAA dangerously close to violating its own rules, as well as the rights of athletes for use of their image and name for commercial purposes. "This is a line they have never crossed before," said Peter Rush, a Chicago lawyer who unsuccessfully battled the NCAA last year over whether former Colorado football player and U.S. Olympic skier Jeremy Bloom could receive ski-related endorsement money and maintain his college eligibility. "The real question is, what right do they have to use players' images to sell Pontiacs?" Fans vote for a play on an ESPN Web site they believe to be the best of four that changed the outcome of an NCAA Division I-A football game the previous week. One example: Northwestern kicker Joel Howells' perfectly executed onside kick against Iowa on Nov. 5 earned him and Reggie McPherson, the player who recovered the ball, a ballot nomination. NCAA officials say players whose videos are shown aren't being used to promote product sales, despite the top-of-page display of Pontiac automobiles. "I would disagree that players are being used to bring people to a commercial promotion," said Wendy Walters, an NCAA spokeswoman. "The promotion is an NCAA Football promotion, so coming to the Web site gets you involved in NCAA Football, which is sponsored by Pontiac. But it is not a commercial promotion." Walters acknowledged that the process used by the NCAA Division I-A Board of Directors to allow the promotion was "slightly unusual" because the change was temporarily implemented without review by any other NCAA committee. Use of athlete names and images to sell commercial products has long been banned by NCAA rules. B. David Ridpath, a former Marshall University compliance officer and now a Mississippi State sports management professor, characterized the promotion as the continuing erosion of amateurism in college athletics. Ridpath also said that this illustrates how the NCAA will interpret or change its rules to serve its own purposes. "Amateurism is dead - that train left a long time ago," Ridpath said. "But if we are going to continue to stretch the amateurism principle and rationalize using college athletes as unpaid endorsers of commercial products and cheap labor, then we need to decide to either pay them or let them participate as professionals who can accept endorsement money." The Web site carries the NCAA trademark, meaning the association has been paid for its endorsement. The NCAA and Pontiac began the promotion in 2004 - with product images being added this season. The site now prominently displays the Pontiac Torrent and other models, including links to allow a review of the Torrent's features and specifications, other Pontiac products and dealers throughout the United States. The university that has its play picked by voters receives a weekly $5,000 scholarship fund contribution. The play of the year earns an additional $100,000. Rush, the Chicago lawyer, contends that a professional athlete or celebrity would challenge the NCAA and Pontiac for using his or her name or image to promote product sales. "If they took Brad Pitt's image and put it on this Pontiac commercial like a player's image, he would sue their (butt) faster than you can say Brad Pitt," Rush said. NCAA officials said athletes are asked to sign a waiver to allow their image and name to be used in marketing efforts before the season, as long as their institution controls the use. Mark Levinstein, a labor lawyer who has represented both the NFL Players Association and the Arena Football League Players Association, said the promotion could raise serious legal concerns. "The question is whether there is an implied endorsement of the products by the players," Levinstein said. The NCAA appears torn over the issue. After the promotion began, NCAA staffers initiated proposed legislation to permit such promotional activities permanently. The proposal initially had been cleared by the board of directors for quick approval through an emergency or non-controversial process. But that changed after objections arose in September when members of an NCAA cabinet strongly objected. Minutes from a September meeting of the NCAA's Academics/Eligibility/Compliance Cabinet show the group voted, 21-6, against the proposal, claiming concerns that the change "compromises the philosophy of amateurism and is not consistent with the limitations on the use of names or pictures of student-athletes in other bylaws." As a result, the rule change is now to be reviewed through the regular NCAA process, Walters said. Walters said the rationale for the change is to allow products to be promoted, but not as the central message of the promotion. She said the use of athletes' names and images on the site is proper because the promotion carries the trademark of NCAA Football - a non-profit arm of the NCAA. Under NCAA rules, such promotions are permitted as long as they are done for charitable, educational or non-profit purposes, she said. Changes in technology, such as the Internet, are forcing the NCAA to rethink many current bylaws, Walters said. "This was one of the areas where we were having difficulty applying our existing bylaws to what is happening and what the technology is today," she said. The proposal provides a clearer standard, Walters said, to permit athletes' images and names to be used in the era of Internet advertising. Commercial messages would be limited to 25 percent of the site, she said. "If 75 percent of a promotional site is related to a non-profit, educational or charitable purpose, we are comfortable," she said. NCAA bylaws permit the use of student-athlete names and pictures to appear in an advertisement of a particular business only as long as "the advertisement does not include a reproduction of the product with which the business is associated or any other item or description identifying the business or service other than its trademark." Another bylaw requires any student-athlete to be declared ineligible for competition if the individual "permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind." That prompted one critic to contend that the NCAA likely is breaking its own rules with the Pontiac promotion. "Clearly, the Web site is devoting space to a commercial advertisement and specific products and using player names and images. It should be a violation," said Ridpath, who also is president of the Drake Group, a sports reform advocacy group founded after a conference at Drake University in 1999. This isn't the first such controversy. In September, NCAA officials ruled that a $40,000 agreement between San Diego State University and the Denny's restaurant chain to distribute schedule cards bearing the photos of individual Aztec football players fell within the NCAA rules. The schedule cards were part of a promotional agreement between Denny's and San Diego State entitled "Athletic Sponsorship Agreement," according to the San Diego Union-Tribune. Rush said the Pontiac promotion is the latest example of how athletes are exploited by the NCAA and their schools. Bloom, Rush's client, gave up his college football career after court rulings upheld the NCAA's right to rule him ineligible for competition if he accepted endorsement money from ski companies. Bloom said he needed the money for ski training to compete for the U.S. in Olympic mogul freestyle skiing. "Apparently, exploitation is acceptable as long as the NCAA or its members collect the money," Rush said. "These guys can't help themselves. I just wonder when they are going to end this." NCAA bylaws The following bylaws address the issue of the use of player names and images in commercial advertising. An NCAA official said that the following bylaws don't apply to the Pontiac promotion because it is actually sponsored by NCAA Football, a non-profit arm of the NCAA. Pontiac's is a Corporate Champion booster of the NCAA. Bylaw 12.5.1.4 — It is permissible for a student-athlete's name or picture or group picture of an institution's athletic squad, to appear in an advertisement of a particular business, commercial product or service, provided: b.) The advertisement does not include a reproduction of the product with which the business is associated or any other item or description identifying the business or service other than the name or trademark. Bylaw 12.5.2.1 — Advertisements and Promotions Subsequent to Enrollment. — Subsequent to becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual. a) Accepts remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale of or use of a commercial product or service of any kind.
