Third down and long for student athletes?

College football games represent so much more than two teams running, passing and tackling: At play each Saturday in September and October are massive implications for the legal rights for students and institutions. That cute and funny mascot? Oh, there are intellectual property and copyright issues with implications to multi-million branding campaigns. Students partying? Um, what about school’s liabilities and responsibilities?

And, just last week, as football pushed into the middle of its season, two major issues relating to student rights pushed their way to centerfield: The first, another defeat for student-athletes trying to claim they should share the billions in profits generated from the games and marketing associated with the games they play, and the second, an abrupt decision by Syracuse University to ban the so-called “kiss cam.”

Last week, a three-judge panel for the Ninth Circuit affirmed that the NCAA is within its rights to restrict colleges from paying anything more than tuition for its student-athletes. Although student-athletes have increasingly been making demands that they should share in the revenue from football and basketball games they play in, the judges’ ruling further entrenches the standard that colleges do not need to pay student-athletes.

The case arises from a complaint by a former UCLA basketball player, Ed O’Bannon—and is representative of many similar complaints, formal and informal. In 2009, O’Bannon sued the NCAA for a portion of earnings generated by using his name and image in TV broadcasts and video games. At the time, his attorneys argued that the use of his likeness helped generate millions of dollars and, quite simply, he was entitled to a slice of that lucrative pie.

The NCAA pushed back with the standard argument, saying that college athletes are amateurs and providing profit-sharing would amount to pay-for-play and distort college sports beyond anything recognizable.

On Wednesday, September 30, the three-judge panel agreed, and sided with the NCAA.

“The Rule of Reason requires that the NCAA permit its schools to provide up to the cost of attendance to their student-athletes,” the legal opinion reads, adding, “It does not require more.”

That legal opinion redoubles the prevailing attitude. In August, the National Board of Labor Relations (NBLR) rejected a ruling that NCAA student-athletes qualify as “employees” for the college, and yanked the rug out from underneath an attempt by football players at Northwestern to unionize.

On a conference call with reporters last week, NCAA President Mark Emmert, “I was particularly pleased that the court recognized the fundamental difference between providing support for student-athletes that’s education related and, to use their words, ‘cash sums’ that were untethered to educational expenses.”

Although the two recent requests by student-athletes to expand their rights and financial claims have been defeated, by these cases reaching such high levels of consideration—the full administrative board of NLRB in the Northwestern football players’ case, and the Ninth Circuit for the UCLA case—there is an indication about the seriousness with which these cases are being treated.

The second issue to emerge from football games came from Syracuse University, which banned the use of the so-called “kiss cam” at a recent—and subsequent—football games.

At first blush, the kiss cam may seem innocuous enough: A couple sitting in the stands is shown on the jumbotron and encouraged to kiss each other.

But, one student was not so smitten with the kiss cam at a recent football game.

After a September 12 match between Syracuse and Wake Forest, a male student wrote a letter to the school’s newspaper saying he saw two incidents when men kissed two women who were clearly saying no. He indicated that such behavior could constitute sexual assault.

The letter sparked hundreds of comments—for and against the kiss -cam. In an interview with Fox News, Syracuse University senior Elaina Crockett, who writes a column about gender and sexuality for The Daily Orange, pointed out that the behavior encouraged by the kiss cam clearly goes counter to the recently-enacted “affirmative consent” laws in New York. “Just because I'm sitting somewhere doesn't mean that I'm entitled to kiss this stranger,” she told Fox News. “That's a horrible assumption that we've created.”

In response, Syracuse has stopped the kiss cam feature at its home football games. There are no reports yet whether any other colleges have followed suit.

Posted in Student Rights

Subscribe to Campus Law Considered Blog