Richard T. Karcher | Eastern Michigan University (original) (raw)

Papers by Richard T. Karcher

The NCAA and the Exploitation of College Profit-Athletes

South Carolina Law Review, 2012

This Essay addresses the difficulty of proving the financial harm that results when a head coach ... more This Essay addresses the difficulty of proving the financial harm that results when a head coach departs a college or university during the contract term and the institution thereby abruptly loses a valuable asset-a successful and stable athletic program. Due to the unique and specialized nature of head coaches' services and the industry in which they work, ordinary measures for assessing damages based on substitute perjbrmance and transaction costs are insufficient. This Essay offers a theory of measuring a university's damages within the construct of a lost-income-producing-asset valuation, using a methodology based on liquidated damages amounts in comparable coaches' contracts.

Social Science Research Network, Feb 6, 2014

The multi-billion dollar product of major college football is consumed by the public only if the ... more The multi-billion dollar product of major college football is consumed by the public only if the small pool of highly and uniquely talented college athletes chooses to play. That is some serious power — or perhaps leverage is the more accurate term — possessed by this finite group of elite athletes. But, more importantly, these elite athletes are beginning to comprehend the leverage they possess and they are beginning to act on it. Athletes with remaining collegiate eligibility, who at one time feared the NCAA, have increasingly become more outspoken and litigious, and are much more willing to publicly challenge the perceived unfairness of "principles of amateurism" without fear of repercussions. Within just the past two years alone, we have witnessed unprecedented defiance to the current amateurism model by college athletes. This paper addresses what the author believes will be the most viable legal challenges to the principles of amateurism in the future. But taking it a step further, though Ed O'Bannon's pending consolidated class action lawsuit is viewed by many as the potential game changer to the NCAA’s business model, the author opines that basic economic principles of supply and demand will ultimately transform the business model of major college sports, irrespective of any past, present or future decisions by judges, juries or labor relations boards. The paper addresses why financial reporting by universities reflecting that 23 out of 228 public university athletic departments earn a profit is meaningless in relation to the exponentially increasing revenues and profits generated on an annual basis by universities selling the product of major college football, resulting in an increasing suppression of the players' market value that is being funneled into rising multi-million dollar annual compensation packages of all of the coaches, athletic directors, and conference commissioners running it. In order for them to maintain this level of compensation and to maintain a product that requires for its existence the performances of a finite labor pool possessing highly unique skills, they will ultimately need to make concessions with athletes who are becoming more sophisticatedly organized and demanding more rights and benefits in exchange for their services.

Social Science Research Network, Apr 26, 2020

On August 8, 2018, the National Collegiate Athletic Association revised its rules to allow men’s ... more On August 8, 2018, the National Collegiate Athletic Association revised its rules to allow men’s college basketball players, for the first time, to retain agents for representation in the National Basketball Association draft. However, according to the NCAA’s new rules, a men’s college basketball player could only select an agent who first received NCAA approval subject to the association’s new agent certification program, which became operational in August 2019. The NCAA based its new agent certification program on the recommendations of an April 2018 report issued by the NCAA Commission on College Basketball, which concluded that “some” men’s basketball players “needed earlier professional advice to determine whether it is in their best interests to declare for the league draft.” This article introduces the NCAA’s new agent certification program, while providing a critical analysis of its policies and procedures. It explains why the NCAA lacks the legal authority to regulate and certify men's basketball player agents under its new agent certification program and why the program likely constitutes an illegal group boycott that violates federal antitrust law, specifically § 1 of the Sherman Act.

Social Science Research Network, Dec 10, 2007

This Article addresses whether the agent regulations unilaterally adopted by the players associat... more This Article addresses whether the agent regulations unilaterally adopted by the players associations in the four professional sports leagues afford agents a sufficiently fair enforcement process. This issue involves a complicated interplay of multiple bodies of law that govern the competing interests of unions and agents. On the one hand, the union is the exclusive representative of the players under the National Labor Relations Act and, as a private association, the law affords the union great deference to interpret and enforce its own regulations. On the other hand, when the union accuses an agent of misconduct and seeks to take away the agent's livelihood by suspending or revoking the agent's license, the agent is entitled to a fundamentally fair enforcement and adjudication procedure, one that comports with basic notions of due process and affords the level of fairness contemplated by the Federal Arbitration Act. This Article addresses the proper balance of these competing interests throughout the various stages of the agent regulation process.

Social Science Research Network, 2017

This is a quantitative study to determine a drafted player’s chances of making the major leagues ... more This is a quantitative study to determine a drafted player’s chances of making the major leagues based upon round drafted, when drafted (high school or college), and position (pitcher or position player). Historical data was collected from Baseball-Reference.com and The Baseball Cube on all players drafted through the 20th round from 1996-2011 and entered into a master spreadsheet; categorized by high school pitcher, high school position player, college pitcher, and college position player. The study's key findings: (1) Compared against the results of a previous study on the draft from 1965-95, a higher percentage of drafted players in all rounds signed from 1996-2011 than from 1965-95; (2) In each of rounds 1-5, more college players signed in proportion to high school players; (3) In the first five rounds, a greater percentage of college players in proportion to high school players played in the major leagues and played more than three years, with the greatest percentage difference in rounds 1 and 2; and (4) College pitchers were the most drafted players in rounds 1-5 combined, however, a higher percentage of college position players played in the major leagues and played more than three years.

Oxford University Press eBooks, Sep 6, 2017

This research paper analyzes how the cases of National Football League (NFL) players Adrian Peter... more This research paper analyzes how the cases of National Football League (NFL) players Adrian Peterson, Tom Brady, and Ezekiel Elliot have affected the role of the NFL commissioner and the commissioner's disciplinary authority in the NFL. The Peterson, Brady, and Elliot (hereinafter known as the Trilogy) cases each helped shape how the role of the commissioner and the commissioner's disciplinary authority in the NFL are being amplified in light of the language used in the current collective bargaining agreement (CBA) negotiated by the NFL and the NFL Players Association (NFLPA) in 2011, legal precedent that limits a court's ability to review an arbitrator's decision, the law of the shop, and the CBA's missing due process protections traditionally found in the courtroom. The findings and implications learned from the Trilogy show that players were unable to secure by lawsuit what they failed to achieve through collective bargaining, and that the holdings in each case highlight the need for the NFLPA to focus on collective bargaining as opposed to litigation in order to secure gains. This is important because the outcome of the Trilogy was not an aberration; it brings professional football in lockstep with the legal standard within labor relations, signaling a need for the NFLPA to change strategy. The Trilogy illustrates the commissioner's vast authority and conveys the importance of improving the parties' collective bargaining relationship to negotiate player discipline rules. The Trilogy provides a framework for understanding the commissioner's vast powers under a broad CBA and an opportunity for both the NFL and the NFLPA to cooperatively revise the player discipline process to curb a consistent stream of high-profile and public challenges of commissioner discipline, possibly encouraging the sides to move away from an adversarial relationship toward more of a partnership for mutually beneficial gain.

Social Science Research Network, Feb 21, 2007

This paper examines whether the use of professional athletes' names and playing records by fa... more This paper examines whether the use of professional athletes' names and playing records by fantasy sports league operators violates the players' right of publicity. There exists much confusion in this area of law in terms of what constitutes commercial use, what constitutes an identity, and when the First Amendment protects the use. This paper discusses the evolution of the common law right of publicity and embarks upon an in-depth analysis of its application to fantasy sports leagues. Intertwined throughout the discussion is an analysis and critique of the district court's ruling in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. Using this case as a backdrop, this paper attempts to define workable standards in a confusing area of law and concludes that players have a right of publicity in the use of their names and performance statistics by fantasy sports leagues.

Social Science Research Network, Oct 13, 2006

Social Science Research Network, Oct 3, 2012

The NCAA, conferences and universities license to networks the right to broadcast their live game... more The NCAA, conferences and universities license to networks the right to broadcast their live games in exchange for billions of dollars in annual rights fees without anyone questioning either the origin of this right or who constitutes all of the holders of this right. Historically courts recognized a quasi-property right of professional teams to sell the right to broadcast their games; however, team owners put personal funds at risk and are entitled to full ownership of the copyright to the broadcast under the work made for hire doctrine as they pay the players a proportionate share of the rights fees. The putative quasi-property right of NCAA member institutions has gone unchallenged despite the fact that they are tax exempt public institutions lacking the same economic investment and incentive, the rights fees continue to climb at astronomical rates while the grant-in-aid remains stagnant, and the work made for hire doctrine does not protect the entitlement because the players are not employees. Viewed within the construct of common law unjust enrichment which is premised on the idea of distributive justice, this Article argues that universities obtain an unjust benefit at student-athletes’ expense by retaining for themselves the portion of the increasing rights fees that would normally and equitably be paid to the players for their substantial contribution in creating the broadcast. The ill-gotten gains, which do nothing to preserve amateurism, can be disgorged in a fair manner that preserves the amateur sports model.

Social Science Research Network, Dec 1, 2010

See infra Part II. 4 See infra Part II.A. 5 See infra Part II.B. 6 One week before the scheduled ... more See infra Part II. 4 See infra Part II.A. 5 See infra Part II.B. 6 One week before the scheduled trial, Oliver settled the issue of damages for $750,000. This Article does not address the merits of Oliver's underlying claims. The judgment granting declaratory and permanent injunctive relief is reported at Oliver v.

Loyola University of Chicago Law Journal, 2009

School of Law. I want to especially thank my wife, Jennifer, for being extremely supportive in my... more School of Law. I want to especially thank my wife, Jennifer, for being extremely supportive in my efforts to complete this Article. 1. See infra Part l (discussing the tension between journalism ethics codes and tort law). 9 Journalism ethics are defined within written journalism ethics codes that establish industry-wide norms, and virtually every media source has an established code of conduct. 10 Ethics codes are self-policing mechanisms designed to ensure more responsible journalism, and they serve to guide press behavior and symbolize the industry's good faith in its reporting conduct. 1 The Committee of Concerned Journalists (CCJ), affiliated with the

Social Science Research Network, Sep 6, 2012

National Letter of Indenture: How College Athletes are similar to, and in many ways worse off tha... more National Letter of Indenture: How College Athletes are similar to, and in many ways worse off than, the indentured servants of colonial times.

Social Science Research Network, Oct 12, 2006

When one considers what a sports agent does, he or she often recalls the movie Jerry Maguire, in ... more When one considers what a sports agent does, he or she often recalls the movie Jerry Maguire, in which Tom Cruise hustles prospective clients and does whatever it takes to keep or acquire a client, even if it means stealing a client from a competitor. Of course, this reprehensible conduct only takes place among sports agents, not in other industries, right? Sports agents have gained the reputation of being corrupt and "unscrupulous" actors who take advantage visions, an amateur athlete is prohibited from retaining anyone, including a competent lawyer or agent, to represent him or her in the negotiation of a professional sports contract. This is otherwise known as the "no agent rule." According to the NCAA, these regulations are necessary to promote and ensure "Sports agents have gained the reputation of corrupt and "unscrupulous" actors who take advantage of amateur and professional athletes..."

Social Science Research Network, Jan 14, 2013

Fordham Intellectual Property, Media & Entertainment Law Journal, 2009

04-02-brand-salaries_N.htm [hereinafter Wieberg, Hard Questions] (internal quotation marks omitte... more 04-02-brand-salaries_N.htm [hereinafter Wieberg, Hard Questions] (internal quotation marks omitted) (quoting University of Hartford President, Walt Harrison).

The University of Memphis Law Review, 2023

I articulate why the joint employer theory to make the NCAA an employer of college athletes is a ... more I articulate why the joint employer theory to make the NCAA an employer of college athletes is a flawed analysis and should not be used as a tool to give the NLRB jurisdiction over the actual employers that are not covered by the NLRA. Part I addresses the joint employer rule under federal labor law principles. Part II discusses the application of the joint employer rule to the NCAA’s organizational model and governance structure of institutional control. Part III explains the multiemployer bargaining unit phenomenon in league sports and why a conference, not the NCAA, would be an appropriate unit.

$Research paper thumbnail of The Use of Players\u27 Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims$

RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 46 cmt. b (1995). 5. 202 F.2d 866 (2nd Cir. 1953). 6.... more RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 46 cmt. b (1995). 5. 202 F.2d 866 (2nd Cir. 1953). 6. For the first time, a court "recognized a distinction between the personal right to be left alone and the economic right to exploit one's own fame." Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307, 313 (Cal. Ct. App. 2001). 7. Haelan Labs., 202 F.2d at 868. "For it is common knowledge that many prominent persons (especially actors and ballplayers), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses [sic], trains and subways." Id.

The International Sports Law Journal, 2015

The NCAA’s purported philosophical justifications for its “Collegiate Model of Athletics” are emb... more The NCAA’s purported philosophical justifications for its “Collegiate Model of Athletics” are embedded within its seven stated “Core Values” and “Principles”, which are based on a distribution principle of strict, or radical, equality in which it is believed societal benefit or the “greater good” is achieved if universities can lawfully conspire to compensate all athletes at the same level. From this theoretical perspective, the authors scrutinize two ethical frameworks most often asserted by the National Collegiate Athletic Association (NCAA) to justify exploitation of profit-athletes in the revenue-generating sports of Football Bowl Subdivision (FBS) football and Division I men’s basketball: Classical Utilitarianism and Paternalism. From an analysis of several court rulings over the past 40 years involving challenges to the NCAA’s “amateurism” principles, the authors found, in rulings favoring the NCAA, the judges implicitly supported their decisions utilizing the NCAA’s utilitarian and paternalistic justifications for its Collegiate Model of Athletics. They recommend courts should balance considerations of utilitarianism and paternalism against normative principles of honesty, harm, autonomy, justice, and an adult individual’s fundamental right to maximize economic value and self-worth free of conspiratorial restraints.

Torts & Products Liability Law, 2007