Ex-Felons and College Coaching

I noted below that the EEOC is now attacking broadly worded employment policies that prohibit the hiring of convicted felons.  The Commission's enforcement guidance is, at least in my opinion, badly thought out and will make it impossible for employers to maintain control over their hiring standards by using and enforcing criminal background checks.


An example of how this silly policy is going to play out arose recently in the college athletics context.  Up until 2011, the NCAA allowed people with nonviolent felony convictions more than seven years old to coach at NCAA-sanctioned youth basketball tournaments. The rule changed, and the NCAA now bars all individuals with felony conviction from coaching in these tournaments.

The rule change had an immediate impact on several youth and high school coaches with nonviolent drug convictions in their pasts. In this latest case, a girls high school basketball coach is suing because the NCAA rule prohibits him from taking his high school teams to NCAA sanctioned tournaments. These tournaments are important because they are frequently the only way that college coaches can see high school kids playing during the summer, a prime scouting period for basketball.

I'm thinking that the NCAA will be able to at least articulate a reason why it does not want felons associating with junior athletes in its sanctioned programs.  The potential liability issue is all too obvious to those of us who have dealt with employers that hired people with felony convictions, only to have that come back and bite the company on a negligent hire or negligent supervision lawsuit. Although not employment cases, how these lawsuits play out may provide some important help for the rest of us struggling with the EEOC guidance.

New BCS Playoff?

May it come to pass.  Or run.  Or option.  Just get it done.

Paying College Athletes?

It's been a particularly brutal off-season for college football, with scandals at North Carolina, Ohio State, and Miami making plenty of headlines. This comes on top of the scandals that occurred in-season last year, including the heavily compensated recruitment of Cam Newton, presently enjoying a spectacular NFL debut.
And now, on top of the NCAA investigations, we have the shameless, but thoroughly understandable, pursuit of the big bucks that is conference realignment. I really think the seeds for this were set 25 years ago, when Notre Dame got its own TV contract with NBC. Once some other big football schools realized that they could cut separate deals for their games with networks, notably ESPN, and keep all that revenue for themselves, the traditional loyalty to conferences, and the interlocking relationships that made the conference alignments so secure, began to fall apart. There is no reason for Texas A&M, for example, to stay in a Big 12 conference dominated by the University of Texas Longhorn network. Similarly, BYU-a major draw in the Mountain West-saw no reason to be saddled with the small-market woes of Wyoming, Colorado State, Air Force, and New Mexico, and set out on its own. I think wrathful football gods (there are potentially many in Mormonism) may still smite BYU, but the message to other schools was clear: If you are not strong enough to have your own television network, you'd better be aligned with other schools of caliber and heft in order to compete in the sports marketing world.
As the mercenary nature of college football becomes clearer (and let me be clear, I'm under no illusion that the nature of college football has changed in the slightest in the last hundred years or so-it's always been about the money; it's just now there is a lot more of it, and it's harder to hide the machinations of the schools and the players), sportswriters start revisiting the idea of paying college athletes who, after all, are the people generating all this revenue. In other words, given that they are bringing in so much dough, shouldn't these players be treated like employees?
By any comparison, the numbers associated with big-time college athletics (i.e. football and basketball, the major revenue sports) are significant. One study reported that the average Football Bowl Subdivision player is worth about $121,000 per year based on the value of revenues received by NFL players. It's even worse for basketball, a Division I college basketball player, using the NBA's now expired pay system is worth about $265,000 per year.
But treating these players like employees, rather than "student-athletes" has some troubling ramifications. Things like workers compensation coverage, unemployment compensation coverage, unionization, etc. start coming up very quickly once you start down the slippery slope. Moreover, the payout suggestions that I've heard are ludicrous, because even the most generous student athlete payment plan doesn't approach what many of these kids receive from agents, runners, and starstruck alumni.
In other words, paying college football or basketball players is not going to reduce college recruiting and money scandals unless we are prepared to pay them at something approximating the going rate for their celebrity. And that going rate, ladies and gentlemen, is really high. I'm talking Cadillac Escalade/Jaguar XJL/tricked out Hummer -land. Just to get Cam Newton in school apparently cost somebody close to $200,000. And that was before he started lighting up the SEC.
So let's approach this problem realistically-giving players a living stipend of $300 a month is not going to cut down on the sale of uniforms, favors, hookers, flashy cars, and every other type of bling imaginable. If anything, a small payment would likely make the situation worse. At least at this point, the kids know they are not supposed to be receiving money. Once the system agrees to give them something, it then becomes a matter of degree, rather than a prohibition. See Winston Churchill's classic put down over haggling about price for a more salacious explanation.
And, for whatever reason, the courts are not proving to be as friendly to the idea of these players being able to control their own likeness (like an employee could) as we might hope. Electronic Arts just won a major victory in a lawsuit alleging it improperly used a college player's likeness in sports games without his permission. A federal district court judge determined that the game maker had a First Amendment right to use the player's likeness, which outweighed his individual right to control its marketing. I think this is a terrible decision, and one that may not hold up on appeal, but it's currently occupying the space in this area.
The situation is not going to go away. The NCAA does not have the high ground here, financially or morally, and I think it's only a matter of time before teams now setting up their own conferences start setting up their own eligibility rules, as well. Stay tuned.