Advertisement
Sports

Mo'ne Davis and Exploiting Exploitation

To the NCAA, getting paid to play sports on TV is exploitation; getting other people paid is amateurism.

by Andy Schwarz
Oct 24 2014, 11:19am

Photo by Evan Habeeb-USA TODAY Sports

During the first game of the World Series, Chevrolet released a commercial in which Little League phenom Mo'ne Davis was used to pitch cars—hardly surprising, given Davis' status as one of the best-known, most-popular amateur athletes in the country.

More unusual? Davis' endorsement apparently received the advance blessing of athletic amateurism's most vocal guardians, the National Collegiate Athletic Association:

Unusual situation. Flexible approach. Eligibility waiver. About all that: you may remember another teen star who wanted to pocket sponsor cash in one sport while playing a totally separate NCAA sport. His name is Jeremy Bloom (you can catch him as an analyst on the Pac-12 network, unless you have DirecTV). Bloom was an Olympic skier and a speedy football player, and after lengthy litigation in which the NCAA claimed that letting him receive skiing-related endorsements would forever sully college athletics by violating the sacred principle of amateurism, he gave up the slopes to return kicks for The University of Colorado. Meanwhile, Davis gets to collect her Chevy check and still remain eligible to play any college sport, including baseball.

Read More: The NCAA's Psychotic Quest to Shut Down a Charity

So why did the NCAA treat Davis differently?

An optimist might argue that the NCAA is changing. Slowly. Fitfully. But evolving nonetheless. Moving away from the antiquated notion that college athletes should not be allowed to be compensated for their fame or skill because, I don't know, ancient Athenian Olympians or something, and moving toward the modern, market-based notion that duh, this is America, and you should probably be free to profit from your hard work while people still want to pay you. Indeed, in a perfect world, the Davis decision would mean that NCAA is realizing that one of its core advertising tropes—almost all of its revenue-generating athletes won't go on to make money playing sports after college—is actually a sign that amateurism rules are cheating young men (and women) out of the four best athletic earning years of their lives. And if that also was true, it might in turn signal that the multibillion-dollar college sports monopsonists busy deciding University of Georgia running back Todd Gurley's playing fate are about to abandon their self-serving, bizarro world definition of exploitation, in which being on TV for free is cool, but getting paid for that same appearance is a moral crime, and somehow anti-education, too.

A realist knows better.

Jeremy Bloom: not as lovable as Mo'ne Davis. Photo by Howard Smith-USA TODAY Sports

Here's why Davis was granted a waiver: because she's beloved. Because unlike Bloom, she was a hell of a feel-good story, a 13-year-old female pitcher dominating boys, America's lone relief during a bummer summer news cycle dominated by ISIS and ebola. The NCAA couldn't have told Davis to choose between cash now and playing college sports later, not without inviting an avalanche of unfavorable press and righteous indignation from the general public. After a century of denying athletes basic economic rights in a miasma of sanctimony, the NCAA didn't suddenly decide to do the right thing because it's the right thing to do; it decided to do the expedient thing in order to keep the con going with a minimum of outside fuss.

Want proof? Look no further than the recent federal antitrust lawsuit brought by former UCLA basketball star Ed O'Bannon against the NCAA, in which current and former campus athletes sued the association over the uncompensated use of their names, images and likenesses.

At one point during the June trial, association president Mark Emmert attempted to justify his organization's upside-down concept of exploitation:

Emmert: "… the fundamental notion is that you—you don't want to have student athletes, amateur student athletes, be in a position where they are pitching for—for products and for commercial interests and being—being essentially pitchmen for various products."

U.S. District Court Judge Claudia Wilken: "Okay. So maybe you don't want that, but do you consider that to be exploitation of them? Or is it just something you don't want to be happening?"

Emmert: "The—when this—when this rule, again, has been discussed by the membership, the answer to that would be both."

Wilken: "You think it's exploitation of them personally."

Emmert: "Yes."

Wilken: "It's harming them in some way."

Emmert: "Yes."

Wilken: "What would that be?"

Emmert: "The assumption is that by providing them with a—again, conversion into—into a professional athlete, that they are no longer a student athlete; they're not part of an academic environment; they're not in a position to gain the advantages of being a student athlete. And being a student at that university there, they're then not avocationally but vocationally in order to make a living off of—off of that process.

Wilken: "And that is what you consider exploitation of them."

Emmert: "Yes."

In other words: allowing athletes to make money will harm them because if they make money, we won't let them play college sports. Except Davis. She can play. And get paid by Chevy. Because "unique circumstances." Even though we, the NCAA, are fighting tooth, nail and countless billable hours to make sure other athletes can't do the same.

Does that make sense? Of course not. Then again, we're talking about the NCAA. The same organization that also made a big deal at the O'Bannon trial about—oh, delicious irony!—how if schools, broadcasters or video game makers started paying campus athletes to use their names, images and likenesses, Little League baseball players would soon expect similar payments from corporate sponsors. The. Horror. Indeed, this slippery slope argument was trotted out with great sanctimony, as if the NCAA was manning the pass at Thermopylae, holding firm against compensating adult men with tremendous market value lest tweens everywhere be corrupted by filthy lucre.

From an ESPN report, here's how it played out in court:

In cross-examination by NCAA lawyer Glenn Pomerantz, O'Bannon was pressed on his belief -- central to the case brought by the plaintiffs -- that college athletes should be able to get paid for the use of their images in live broadcasts of games.

Pomerantz asked if that should be the case as well with high school athletes who appear in nationally televised games.

"If they are generating revenue for their school, I believe they should be compensated," O'Bannon responded.

Pomerantz then asked about the Little League World Series, which provides nearly a month's worth of popular television programming each August for ESPN.

O'Bannon, sticking with his theory, said yes.

O'Bannon hardly seemed resolute in his response. But the moment was a win for the NCAA, which has held itself up as the guardian of amateurism … the implied, potential impacts to entertainment-based sports activity at lower levels could provide another layer of protection for the NCAA as it tries to win in any appeal, as well as in the court of public opinion. So far, the issue has only been framed as a college sports issue.

Speaking with reporters after the hearing, [Donald] Remy, the NCAA's chief lawyer, stoked the notion that the ripple effects of this case could extend down to the preteen level. Asked if he believed Little Leagues could lead to payments for media revenues if the NCAA loses, he said: "That's a possibility. That would be the logical extension of the legal argument."

Logical extension or not, Wilken ultimately ruled that the NCAA's rules against compensating college athletes violate the nation's antitrust laws—the third time since 1984 that one of the association's bylaws has been found to constitute illegal price fixing. But Wilken also found that the O'Bannon suit didn't specifically cover whether the NCAA's prohibition on endorsements or other individualized commercialization of athletes' names and likenesses, such as commercials for car manufacturers or payments for autographs, was legal or not. And so, for example, Gurley has been suspended for two games and counting for signing autographs, possibly in exchange for money. You might ask yourself, what's the harm in selling a few autographs? But if Gurley is allowed to do that, pretty soon Little Leaguers will be starring in Chevy commercials.

Oh, wait.

Unlike Gurley, Davis has the NCAA's explicit blessing. What became of Remy's once fearsome slippery slope? Rather than trying to protect Little Leaguers from whatever it actually is about money that Emmert (2012 salary: $1.7 million) considers harmful to people who don't have it, the association was simply using them as the legal equivalent of human shields. But what about the children? Now that the O'Bannon trial is over and the NCAA's current endorsement prohibition appears safe, at least for the time being, the need for a shield is gone, and with it the need to protect poor (but now somewhat less poor) Mo'ne Davis from the association's backwards version of exploitation, where being on TV for free is cool, but getting paid for that screen time risks perdition or worse: permanent ineligibility.