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Miller: Examining “The Challenged Restraint” section of the O’Bannon case

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I want to begin my column this week with a short aside. Some writers shamelessly plug or hype their own articles/pieces on social media; others do not. I typically fall into the former group, perhaps because I feel as if what I write is important for people to read. I would like to think I cover relevant issues that matter to sports-minded individuals.

Whether I really do is not for me to decide: It is for the reader and public to determine for themselves. Regardless of the answer, the pride that you feel as a writer when someone else — particularly someone for whom you have great respect —plugs one of your pieces is undoubtedly very special. I had one of those moments late last week, when I saw that the one, the only, the truly incomparable Jay Bilas retweeted one of my previous O’Bannon columns to his nearly three-quarters of a million followers.

For those of you who don’t know, Jay is a former Duke basketball player, author, current ESPN analyst and practicing attorney. He is an incredibly sharp and well-spoken man, and someone who I feel is a critically important role model in my life. Ok, now I’m just gushing, but the point is that I really admire Jay and his outspokenness on the hypocrisies of the NCAA and its amateurism model. He is a great follow on Twitter.

Let’s go back to the O’Bannon v. NCAA ruling. Last week, I touched on the key economic and antitrust issues of the case. Here is a brief recap: In order for any antitrust litigation to proceed, the Plaintiffs (in this case, the athletes) must present an economic market that has been damaged by a restraint of trade. The O’Bannon legal team was successful in this initial step, identifying the “college education market” and “group licensing market” as being unduly restrained by NCAA red tape.

The next section of Judge Wilken’s ruling is titled “The Challenged Restraint,” and that is where we’ll start today. This portion of the decision is dedicated to discussing the various means by which the NCAA and its member institutions essentially conspire with one another to artificially set the price that collegiate athletes are paid for their athletic services at or very close to zero.

This sellers’ cartel (monopoly) is buttressed by NCAA Bylaw 15.1, which reads: “a student-athlete shall not be eligible to participate in intercollegiate athletics if he or she receives financial aid that exceeds the value of the cost of attendance…A student-athlete may receive institutional financial aid based on athletics ability (per Bylaw 15.02.4.1) and educational expenses…up to the value of a full grant-in-aid, plus any other financial aid up to the cost of attendance.”

In short, this section places a limit on both athletic-related financial aid and gross financial aid an athlete may receive from their university, restrictions that obviously, and unfairly, do not apply to non-athletes.

Furthermore, the NCAA explicitly disallows (in Bylaw 12.4.1.1) its athletes (units of labor) from “receiving compensation from outside sources based on his athletic skills or ability.” I happen to have personal experience with said restriction; it is a story I have told once before and, whether Joey Beyda likes it or not, I am telling it again.

Last fall, I had an opportunity to appear in a distance running movie as an extra. The movie, McFarland, is set for a February 2015 release and chronicles the story of a high school cross country team’s rise to local and state dominance in California. The town of McFarland (where the events of the film take place) is small, largely Hispanic agricultural community not far from where I grew up in Bakersfield.

Needless to say, I very much wanted to take full advantage of this unique opening. I mean, how many movies on distance running do major movie companies make? Better yet, how many running movies whose setting is basically in your backyard are made? This was about as “once-in-a-lifetime” as it gets.

Like any “good” NCAA student-athlete, I checked in with the Stanford compliance office to ensure that my participation in the movie would not endanger my eligibility. Rather naïvely, I thought it wouldn’t, and that even if this issue fell into a gray area, my compliance officers would help me take advantage of the opportunity without breaking NCAA rules.

Those hopes evaporated immediately upon being directed to Bylaws 12.1.2 and 12.4.1.1; in an email correspondence, I was told by an individual in the Stanford compliance office that if I chose to accept the role as an extra (for which I would be paid): “we will be required to declare you ineligible.”

True to my argumentative nature, and keen to not let such a special opportunity fall by the wayside, I responded in part: “I disagree that I would be violating 12.4.1.1, because I did not use my reputation as a Stanford student-athlete to gain this opportunity, nor did I use my “publicity…fame or personal following,” because to be honest, I have none of those things! “Cameron Miller” is not a household name and, at last check, I have a paltry 187 Twitter followers. In a coincidence not of my doing, one of my friends on Facebook posted that there was an opportunity to be an extra — all I did was respond to the offer.”

Despite what I thought was solid reasoning in favor of being allowed to accept the role as an extra without any repercussions on my eligibility, my argument was summarily dismissed: “I [the compliance official I was corresponding with] have spoke [sic] with an NCAA official over the summer who gave a verbal interpretation to reflect profiting off of athletics ability when it concerns employment, which would be the case here.”

I briefly considered accepting the role without telling the compliance office and hoping they would not notice (they probably wouldn’t have), but I thought better of it. This whole story may seem very trivial, but it really did mean a lot to me, and to have such an opportunity denied me if only because I am an NCAA athlete was, and still is, incredibly unfair.

Alright, enough ranting. I will get off my soapbox — that is, until next week.

Cameron Miller believes that his weekly salvos at the NCAA and Mark Emmert are so important for people to read that he is petitioning for his columns to be added to the reading list for Thinking Matters. To explain to Cameron why that petition might constitute an NCAA violation, since he would be using his reputation as a Stanford student-athlete to gain this opportunity, contact him at cmiller6 ‘at’ stanford.edu.

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Cameron Miller is a sports desk editor for The Stanford Daily's Vol. 246 and is the men's and women's golf writer. He also writes on NCAA-related matters. Cameron is also a Stanford student-athlete, competing on the cross country and track and field teams. He is originally from Bakersfield, California, but spends most of his time away from the Farm on the state's Central Coast. Contact him at [email protected]