Bloom v. National Collegiate Athletic Association: No Endorsements for a Two Sport Athlete
July 29, 2004
In a recently issued opinion, the Colorado Court of Appeals, Fifth Division, denied a preliminary injunction sought by a state college football player seeking relief from the NCAA bylaws, which restrict him from engaging in paid entertainment and commercial endorsement work in connection with his professional skiing career. Bloom v. National Collegiate Athletic Association, No. 02CA2302, 2004 WL 964322 (Colo. App., May 6, 2004).
Background
Colorado University (CU) recruited Plaintiff Jeremy Bloom to play football. Prior to enrolling, Bloom, a high school football and track star, competed in Olympic and Professional World Cup skiing events, becoming the World Cup Champion in freestyle moguls. Bloom’s performance in the World Cup led to appearances on MTV, an offer to host a show on Nickelodeon, endorsement opportunities for ski equipment, and a modeling contract with Tommy Hilfiger. His various endorsement opportunities led to concerns regarding Bloom’s eligibility to compete in intercollegiate football at CU. On Bloom’s behalf, CU petitioned the NCAA for a waiver of its rules restricting student-athlete endorsement and media activities. The NCAA denied CU’s request and Bloom discontinued his various endorsement activities, but later filed suit against the NCAA for declaratory and injunctive relief asserting that his endorsement, modeling and media activities were necessary to support his professional skiing career. The trial court ruled that although Bloom was a third-party beneficiary of the NCAA bylaws, he was not entitled to a preliminary injunction as he failed to show (1) a reasonable possibility of success on the merits; (2) that granting the injunction would not disserve the public interest; and (3) the balance of equities favors the injunction. Bloom appealed the trial court’s ruling.
NCAA Bylaws
Bloom relied on NCAA Bylaw 12.1.2 which states that “[a] professional athlete in one sport may represent a member institution in a different sport.” However, the NCAA Bylaws also prohibit every student-athlete from receiving money for advertisements, stating:
Subsequent to becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual: (a) accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend, or promote directly the sale or use of a commercial product or service of any kind, or (b) receives remuneration for endorsing a commercial product or service through the individual’s use of such product or service.
A student may receive remuneration for activity initiated prior to enrollment, but only if “the individual became involved in such activities for reasons independent of athletic activity.” NCAA Bylaw 12.5.1.3. Finally, a student-athlete is prohibited from receiving “any remuneration for value or utility that the student-athlete may have for the employer because of that publicity, reputation, fame, or personal following that he or she has obtained because of athletics ability.” NCAA Bylaw 12.4.1.1.
The Appeal
On appeal, the court first held that Bloom had standing to contest the meaning of or applicability of NCAA eligibility restrictions as a third-party beneficiary. The court also found that Bloom had standing to pursue a claim of “arbitrary and capricious” action against the NCAA to the extent that he asserted a “violation of the duty of good faith and fair dealing.”
Interpreting the NCAA Bylaws, the court stated they “express a clear and unambiguous intent to prohibit student athletes from engaging in endorsements and paid media appearances, without regard to (1) when the opportunity for such activities originated; (2) whether the opportunity arose or exists for reasons unrelated to participation in an amateur sport; and (3) whether income derived from the opportunity is customary for any particular professional sport.” The court noted that “although student-athletes have the right to be professional athletes, they do not have the right to simultaneously engage in endorsement or paid media activity and maintain their eligibility to participate in amateur competition.” Specifically with regard to Bloom, the court noted that a CU official stated there would “be no way to tell whether he is receiving pay commensurate with his ... football ability or skiing ability.” The court also focused on the fact that Bloom’s agent marketed him as a multisport athlete and that his media activities were related to his athletic ability and prestige, which could not be separated from his participation in CU’s football program. Finally, the court addressed Bloom’s claims that the NCAA is arbitrary and capricious in its application of its guidelines and bylaws by finding that the NCAA’s review process was reasonable in general and reasonably applied in Bloom’s case.
Based on the reasoning set forth above, the Appellate Court agreed with the trial court that Bloom failed to demonstrate a reasonable possibility of success on the merits, and, therefore, upheld the denial of his preliminary injunction. While Bloom may be able to appear on television while participating in skiing, (his professional sport), he is unable to engage in paid entertainment and commercial endorsement work while he remains a student-athlete at CU. As the opinion is currently unpublished, a petition for rehearing in the Court of Appeals or a Petition for Certiorari in the Supreme Court may be pending.
For more information, e-mail Brooke Savage at brooke.savage@hklaw.com or call toll free, 1-888-688-8500.
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