Mr. Jeremy Bloom

U.S. House of Representatives Judiciary Committee Testimony

 September 14, 2004

 

 

 

Distinguished Committee Members,

My name is Jeremy Bloom and I am a 22 year old former NCAA student-athlete (effective August 24, 2004) from Loveland, Colorado and the defending World Champion in Moguls Skiing.  I have been a professional skier and member of the U.S. Ski Team since I was 15.  I represented the United States in the 2002 Olympic Games in February, 2002 in SLC.  In 2002 at 19 years of age, I became the youngest person ever to win the World Grand Prix Title and the third ever American.  I enrolled at the University of Colorado in the fall of 2002 and I currently hold a number of receiving, punt return and kick return records at the University of Colorado.  I also hold the Big XII Championship Game record for the longest punt return.  Additionally, I earned Freshman All-American honors in 2002 and All-Big XII honors in 2003.  In 2003 I also became the first American to win a World Championship Gold Medal in Mogul Skiing.  My cumulative GPA is a 3.0.   On August 24th of this year the NCAA declared me ineligible and as a result I have lost the last 2 year of my football eligibility.      

I submit to you my testimony today not to try and improve upon my own situation, nor to attempt to alter or change past injustices.  Rather, I submit to you today to expose the injustice and hypocrisy of the NCAA in an effort to create change for the millions of student-athletes to come.  My objective is to demonstrate to you today through my experiences with the NCAA, that the organization does not provide due process, as

defined in the U.S Constitution, to its student athletes.  I intend to show to you that the NCAA enforces its by-laws governing student athletes in an arbitrary and capricious manner and that its process of resolving disputes with student athletes is prejudiced and partial.    

 

 

 

 

 

 

 

 

NCAA BACKGROUND

In 2001, after I was offered a scholarship to the University of Colorado, but prior to my enrollment at the University, I began to inquire at the University Compliance office about the NCAA rules on competing as a professional in another sport, which I had been doing as a skier since 1998.  The compliance officer informed me that NCAA by-laws allow a student-athlete to compete as a professional, but they do not allow a student-athlete to receive endorsements.  Unfortunately, in my sport, skiing, the only way a professional skier can make money is through endorsements (there is nominal prize money if you win a World Cup event).  The U.S Ski Team pays no salary, but it does fund a fraction of an athlete’s training, provides a uniform, and covers in- season travel costs (only for A & B Team).  All other equipment, training expenses, living expenses, insurance, food, travel, etc. is paid for by the athlete.  It is customary for professional skiers to endorse ski equipment, resorts and other products to pay for these expenses.  In this instance the two separate rules in the NCAA by-laws conflict with one another.  Because of the contradiction in terms of these NCAA by-laws, the University of Colorado Compliance Officer advised me that the only approach to resolve the situation was for the University to file a waiver on my behalf, essentially asking the NCAA to make an exception in my unique case.  Ironically, while I was actually competing in the Olympic Games, the NCAA denied my waiver request.      

 

Following the NCAA’s denial of the waiver, I sought relief from the District Court of Colorado.  Unfortunately, in part because of the NCAA rule 19.7 (which was referred to as 19.8 back in 2002), District Court Judge Hale ruled against my request for preliminary injunction.   His judgment is attached.

 

Subsequently, due to my desire to play college football, I relinquished all of my endorsements and enrolled at the University of Colorado.  During this time I submitted an Appeal to the Colorado State Court of Appeals.  While I felt that I could sacrifice, in competitive terms, to be under-funded in 2003 and 2004, I was certain that with the Olympic Games looming only 2 years away that I could not afford to continue in this manner and have a chance to achieve my objective of winning an Olympic Gold Medal for my country in 2006.  As a result, after playing football for the University of Colorado for two years while forfeiting all endorsement revenue, in January of 2004 I announced that I was beginning to except endorsements and planned to play football for the University of Colorado.

 

In March of 2004, I signed my first endorsement contracts since enrolling at the University of Colorado.

 

On April 7, 2004 the Colorado State Court of Appeals heard my case and six weeks later upheld the original ruling. 

 

At this point, I believed my football career was essentially over.  However, in the days leading up to my appeal being heard (on 4/7/04), information was brought forward that, until then, only the NCAA, the University of Iowa, Tim Dwight and Dwight’s representative had available to them.  This information established that in 1999 that Tim Dwight, a professional football player who had accepted promotional and endorsement monies related to his professional sport of football was reinstated by the NCAA and allowed to run track for the University of Iowa, and was allowed to keep those monies and arrangements.  The Tim Dwight case is virtually identical to my own case.  (I will cover the Dwight case in further detail later in this testimony in order to establish to the committee that the NCAA practices are prejudiced, unfair and arbitrary). 

 

With this newly discovered information, the University of Colorado submitted a reinstatement request, on my behalf.  The basis of the request was the precedence that had been set in the Tim Dwight case.  Although Mr. Dwight’s case was virtually identical to my case, the NCAA denied my request.  The only rationale that the NCAA provided that I am aware of (because I have never been provided with one document from the NCAA during the entire administrative process within the NCAA system) in ruling for Mr. Dwight, while denying me, is that I “knowingly” violated the NCAA by-laws.  Apparently, the NCAA believes that Mr.  Dwight did not, although he provided my attorney with a signed affidavit that says that he did.   

 

My final opportunity to gain reinstatement was to have the University of Colorado, on my behalf, appeal this decision.  They did so, and I was allowed ten (10) minutes to state my case to the Reinstatement Appeals Committee.  Like all of the NCAA committee’s that made decisions on my eligibility, the Reinstatement Appeals Committee is solely made up of people that work directly for the NCAA or are directly affiliated with the NCAA.  In the case of the five (5) members of the Reinstatement Appeals Committee: Two (2) representatives came from Conference’s within the NCAA and three (3) representatives were from three separate NCAA member institutions (Universities).  Needless to say, the make-up of this committee does not seem to promote impartiality.  They ruled against me and officially ended my college football career.

   

One monumental and first time finding which Judge Hale established in the District Court, and which was later affirmed by the Colorado State Court of Appeals, is that a student-athlete is a third party beneficiary of the contract between the NCAA and it’s member institutions.

 

Judge Hale’s ruling states:

The NCAA has conceded its Constitution and By-Laws constitute a contract
between it and its members which approximately 1,267.  Mr. Bloom claims that
he is a third party beneficiary of that contract.  As a threshold matter I
deem it appropriate to determine whether Mr. Bloom is a third party
beneficiary of the Contract.  If he is not, that is the end of the inquiry
for the claimed breech of contract.  I find that Mr. Bloom is a third party
beneficiary to the contract between the NCAA and its members and CU in
particular.

 

 

   

 

NCAA ADMINISTRATIVE PROCESS FAILS ON THE BASIS OF IMPARTIALITY

The NCAA’s administrative process as it relates to disputes with student-athletes has been constructed to be many things, but fair and impartial it certainly is not.  This system is inherently biased and is designed to produce almost exclusively prejudiced results.  The NCAA architecture is diametrically opposed to the one that our forefathers carefully and painstakingly crafted over two hundred years ago.  The NCAA internal judicial process resembles more that of tyrannical regime than it does a democratic process.  All student athletes are appointed, by virtue of NCAA rules, sole and exclusive representation during any proceedings within the NCAA administrative system by an NCAA member institution; in my case, the University of Colorado.  Furthermore, every NCAA panel, committee and appeals committee member that reviewed and/or rendered a decision “on my behalf” was directly associated with the NCAA, a member institution, or one of its conferences.  There is no independence within the NCAA administrative process; therefore there can be no impartiality.

 

The NCAA has consistently defended its position by claiming to be a voluntary club, which the U.S. Courts have demonstrated great reluctance to interfere upon.  The NCAA may be correct in that it is a voluntary club with regards to the member institutions, however, student athletes, while third party beneficiaries to the contract between the NCAA and its voluntary members, are not voluntary members of the club.  And, in fact, the NCAA does not operate as, nor remotely resemble, a voluntary club with regards to its student-athletes.  In most instances it acts and operates as a well insulated and neatly protected monopoly.  In the instance of football, like many other men’s and women’s sports, the NCAA is the only game in town.  It is the minor league system for the NFL.  If a young person aspires to play professional football in this country they have to, almost exclusively, go through the NCAA’s college football system. While the Arena Football League has been established, comparing it to the NCAA would be like comparing Microsoft to Apple Computers. Furthermore, the Arena Football League gets the vast majority of its players from the NCAA ranks as well.       

          

Unfortunately, it has proven to be virtually impossible for a student athlete to get relief or due process within the courts as well, as a result of the NCAA’s restitution by-law, 19.7.  Through this by-law the NCAA has effectively imposed partiality and prejudice even within the U.S. court system.  NCAA by-law 19.7 states:

19.7 RESTITUTION

If a student-athlete who is ineligible under the terms of the constitution, bylaws or other legislation of the Association is permitted to participate in intercollegiate competition contrary to such NCAA legislation but in accordance with the terms of a court restraining order or injunction operative against the institution attended by such student-athlete or against the Association, or both, and said injunction is voluntarily vacated, stayed or reversed or it is finally determined by the courts that injunctive relief is not or was not justified, the Management Council may take any one or more of the following actions against such institution in the interest of restitution and fairness to competing institutions:

(a) Require that individual records and performances achieved during participation by such ineligible student-athlete shall be vacated or stricken;

(b) Require that team records and performances achieved during participation by such ineligible student-athlete shall be vacated or stricken;

(c) Require that team victories achieved during participation by such ineligible student-athlete shall be abrogated and the games or events forfeited to the opposing institutions;

(d) Require that individual awards earned during participation by such ineligible student-athlete shall be returned to the Association, the sponsor or the competing institution supplying same;

(e) Require that team awards earned during participation by such ineligible student-athlete shall be returned to the Association, the sponsor or the competing institution supplying same;

(f) Determine that the institution is ineligible for one or more NCAA championships in the sports and in the seasons in which such ineligible student-athlete participated;

(g) Determine that the institution is ineligible for invitational and postseason meets and tournaments in the sports and in the seasons in which such ineligible student-athlete participated;

(h) Require that the institution shall remit to the NCAA the institution's share of television receipts (other than the portion shared with other conference members) for appearing on any live television series or program if such ineligible student-athlete participates in the contest(s) selected for such telecast, or if the Management Council concludes that the institution would not have been selected for such telecast but for the participation of such ineligible student-athlete during the season of the telecast; any such funds thus remitted shall be devoted to the NCAA postgraduate scholarship program; and

(i) Require that the institution that has been represented in an NCAA championship by such a student-athlete shall be assessed a financial penalty as determined by the Committee on Infractions.  (Revised: 4/26/01 effective 8/1/01)

 

This single by-law grants the NCAA absolute power.  The NCAA is the only organization (that I am aware of) with the power to retroactively penalize a person, community, and/or member institution because they followed a court order.  In practicality, by the time the NCAA exhausts a dispute through the U.S. Courts, always with a chance that a decision could be overturned on appeal at some point by the U.S. Supreme Court, a student athlete will have grown from a teenager to a young man or woman in their mid-twenties (possibly without ever competing).  In my own proceedings the process took 2 years and I was only at the State Appeals Court level.

 

Here is the real affect on the judgment that was delivered in my own case at the district court level in Colorado.  At that time the by-law was referred to as 19.8.  Judge Hale wrote in his decision:

The harm to CU (University of Colorado) would be that an injunction mandating that they declare Mr. Bloom eligible and allow him to compete on the football team would risk the imposition of sanctions pursuant to by-law 19.8, which would allow the NCAA to impose sanctions if an injunction was erroneously granted.  These sanctions could include: forfeiture of all victories, of all titles, TV revenue, as well as others; forfeiture of games would irreparably harm all of the member of the CU football team who would see their hard earned victories after great personal sacrifice nullified; the loss of revenues would harm all student athletes at CU who would find their various programs less economically viable; imposition of NCAA sanctions would harm CU's reputation; and sanctions would reduce the competitiveness of various sport teams at CU.

 I find that the harm to CU and the NCAA is more far reaching, especially because it could harm other student athletes, than the harm to Mr. Bloom.  Therefore, the public interest would not be served by an injunction.

   

These findings in no way diminish my belief that an accommodation without court involvement could have been reached without causing harm that would arise from an injunction

 

Clearly this by-law prohibits a student athlete the right to due process and is against public policy.     

 

    

NCAA ADMINISTRATIVE PROCESS FAILS ON THE BASIS OF FAIRNESS

As I briefly described previously in the Background section of this testimony, The University of Iowa’s Mr. Tim Dwight had a virtually identical situation to mine back in 1999 and one which would normally constitute precedence and be referred to as a basis for decisions in future cases like mine.  However, as the NCAA has no oversight, no one to answer to, and is essentially self-governed and self-policed, the NCAA failed to even mention or cite this case, and when I requested information about his case via the NCAA administrative process, I was supplied with false, misleading and deceptive facts.

 

In 2001, following procedure, my agent, Andy Carroll, on my behalf inquired through the University of Colorado’s Assistant Director of Compliance, Sherri McKelvey, and requested that she look into the Tim Dwight case, which we had been informed was similar to mine.  Ms. McKelvey inquired to her colleague, Mr. Fred Mims, at the University of Iowa about the details of the case and was incorrectly informed that Mr. Dwight returned all of his endorsement money and ended his agreements in order to be reinstated. Ms McKelvey also inquired within the NCAA Administrative offices and was informed of the same thing.  In an e-mail dated January 25, 2002 to Mr. Carroll, Ms. McKelvey wrote: “Nothing on Tim Dwight – he paid back all his endorsement money to get reinstated.”  The e-mail is attached.   The NCAA never submitted to Ms. McKelvey the actual ruling in this case.  Either due to systemic administrative failure, or through a conscious effort to mislead and suppress information in order to subvert my request, or just by insufficient effort or incompetence by my sole representative to the NCAA, I was delivered the false facts with regard to this case.  As a result, this course of action was never really further pursued. 

 

Not until much later, April 4 2004, was I able to attain the actual ruling and it was provided to me not by the NCAA but by Tim Dwight’s agent.  It is attached for your review.  The rationale given by the NCAA is:

 

The staff informed the institution that it would not require repayment inasmuch as the SA’s promotional monies related solely to his football participation.

  

 

After the newly surfaced and accurate details of Tim Dwight’s NCAA reinstatement was revealed to me by Tim Dwight’s agent, the University of Colorado compliance office used this as the basis for my reinstatement request in August, 2004.  The University of Colorado was of the understanding from the NCAA, that if I agreed to suspend my endorsement contracts while enrolled, that I may be reinstated.  Just as the NCAA decided in the Tim Dwight case.  In this instance the NCAA arbitrarily decided that my situation was different because I “willfully violated numerous NCAA bylaws.”  Apparently, the rationale was that Tim Dwight accidentally violated the rules and therefore was allowed to be reinstated.

 

Subsequent to this ruling, the University of Colorado issued the last and final appeal on by behalf (as per NCAA bylaws) to the NCAA (Sub) Committee on Student-Athlete Reinstatement.  As part of this appeal, we provided a signed-written affidavit from Mr. Tim Dwight that states:

To: Whom is may concern

The purpose of this statement is to clarify my thought process and actions during my time as a NCAA track athlete and professional football player.

 

I want to make it clear that I “knowingly and willfully” accepted endorsement and appearance monies, which is considered a normal part of my salary as a professional football player, even though my intentions were to run track for the Univ. of Iowa after my first year as a professional athlete.

 

Being “well aware” of the NCAA rules governing amateur athletes, it was my assumption that I “could” accept endorsement monies as a professional football player but not as an amateur track athlete.  I had based my assumptions on the NCAA precedent that you can be a professional in one sport, and an amateur in another.

 

The NCAA (Sub) Committee on Student-Athlete Reinstatement was unmoved by this new information and upheld the original subcommittee’s ruling that I am ineligible.

 

 

 

 

 

 

 

 

 

 

 

SUMMARY

In summary, the courts have ruled that student athletes are in fact third party beneficiaries of the contract between the NCAA and the member institutions.  As a result they do in fact have rights in the NCAA contract.  I hope that I have effectively demonstrated from my experience that the present procedures and bylaws that exist under the NCAA strongly inhibit the student-athletes ability to receive a fair and impartial hearing within the NCAA or in the court.  Given the fact that impartiality is a guaranteed right in the 5th and 14th amendment under due process, I do not believe that student-athletes receive due process in the present system that the NCAA currently has in place.