International student athletes and NCAA amateurism: setting an equitable standard for eligibility after proposal 2009-22.

• Author: Roth, Zachary R.
• Position: National Collegiate Athletic Association

ABSTRACT

The United States is often called the land of opportunity. In many ways it has proven so, but this is not always the case. International student athletes are not granted equitable treatment with their American peers under National Collegiate Athletic Association (NCAA) amateurism rules. While the NCAA bylaws, through Proposal 2009-22, grant international student athletes the right to participate on professional teams, the proposal does not give the athletes the ability to truly exercise that right. Through the lens of Turkish basketball player Enes Kanter, this Note explores amendments to NCAA bylaws that are necessary for the NCAA to promote such an opportunity for international student athletes. The value of education and the acknowledgment of cultural differences require further steps to protect these athletes. This Note advocates for the recognition of education expenses as necessary and for a "pay-back" provision for excess compensation to protect athletes from issues arising from cultural and language differences.

TABLE OF CONTENTS I. INTRODUCTION II. THE STORY OF ENES KANTER III. DIFFERING SYSTEMS OF ATHLETICS AND ACADEMICS A. The American System: The NCAA B. Scholastic vs. Club Systems C. Club Scheduling IV. PROPOSAL 2009-22 AND CURRENT NCAA RULES A. NCAA Rules Prior to Proposal 2009-22 B. Amendments to Proposal 2009-22 V. PROPOSED SOLUTION A. Education Expenses Are Necessary B. Bylaw 12.2.3.2.1 Should Feature a "Pay-Back" Provision C. Application of Proposed Rules to Enes Kanter V. CONCLUSION I. INTRODUCTION

Since the inception of the National Collegiate Athletic Association (NCAA) and its first rules governing foreign students, the impact of international student athletes (ISAs) on NCAA competition has grown tremendously. (1) The NCAA estimated that in 1991-1992, approximately 6,833 ISAs competed in NCAA-sponsored athletic competitions. (2) This number nearly tripled to 16,063 (or almost 4 percent of the total student-athlete population) in 2007. (3) The globalization of NCAA sport (4) is the result of several factors, including the emergence of the internet, institutional desire for athletic prestige, and the desirability of diversity. (5) Today, many prospective ISAs spend their formative years in cultures very different from the United States. The experiences of these ISAs differ in numerous ways, from local education and regulatory structures to national athletic and cultural backgrounds. (6)

The NCAA has attempted to keep pace with the growing number of ISAs through various rules changes. (7) One crucial change, adopted June 28, 2010, and effective on August 1 of that year, was Proposal 2009-22. (8) Proposal 2009-22 made several changes to existing NCAA bylaws relating to amateurism, including various tweaks to delayed enrollment rules in various sports. (9) Most important to ISAs was the modification that the Proposal made to Bylaw 12.2.5; with certain exceptions, athletes may now compete on professional teams prior to NCAA enrollment. (10) Athletes maintain their status as amateurs for NCAA eligibility purposes if they do not receive more than actual and necessary expenses (as defined by Bylaw 12.02.4). (11) This significant rule change opens the world of American collegiate athletics and, more importantly, American higher education to many new ISAs. It demonstrates an understanding of cultural differences and accommodates ISAs who make sincere efforts to maintain their amateur status abroad. However, more must be done.

These new provisions still do not fully protect innocent ISAs, as two issues make evident. First, Bylaw 12.02.4's definition of actual and necessary expenses requires modification. Currently, educational expenses are not deemed "necessary" for an amateur's participation on a professional team. (12) Cultural differences may foreclose American notions of education to many ISAs. (13) For ISAs to compete in their sport while maintaining NCAA academic eligibility, these expenses are necessary.

Second, a "pay-back" provision is essential. ISAs experience issues that domestic student athletes do not. For example, there are often language barriers between a student's home country and the United States. (14) Cross-language interpretation of rules and the systems of reimbursement and payment in other countries may cause confusion as to what is actual and necessary, even when an athlete makes a sincere effort to follow NCAA rules. Thus, the NCAA should create a provision allowing the ISAs (and their families) to pay back any funds found to be greater than actual and necessary. Such a rule would allow ISAs to right any perceived wrong associated with payment by professional teams. Many athletes turn down major contracts in order to maintain eligibility, (15) and these ISAs should be protected.

Such an argument about NCAA bylaws rather than true governmental "law" has broad ramifications for general legal conceptions. This issue involves conceptions of equal rights and opportunity. The NCAA opens its doors to ISAs who often choose to pursue both an education and athletic experience at member institutions. (16) Such a regime that, even if inadvertently, discriminates against others due to cultural and economic differences is one that must be adjusted. American society is founded and maintained upon the thought that all are created equal and should be treated as such. (17) In a system that plays a critical role in future athletic and career success, (18) individuals must be treated equally. Therefore, although NCAA bylaws are not traditional "law," they impact core legal principles. Even outside the realm of traditional law, protection of these principles is essential.

In Part III, this Note analyzes the differences between foreign and U.S. athletics systems. (19) Part IV explains the changes made by Proposal 2009-22 and impact of those changes on ISA eligibility today. Part V argues for two modifications, with examples illustrating current inconsistencies in NCAA rules. This analysis occurs through the story of Enes Kanter, a Turkish ISA ruled permanently ineligible for violation of the actual-and-necessary expense provision in Proposal 2009-22. (20) The subject of Part II, Kanter's story garnered national media attention and illustrates the need for further changes with regard to ISAs.

2. THE STORY OF ENES KANTER

   "Free Enes" became a rallying cry for an entire fan base. The phrase could be seen all over the country, from Fenway Park and Yankee Stadium to the U.S. Capitol in Washington D.C. (21) It was written in lights on a water fountain at the World Equestrian Games and placed in apartment listings in Florida. (22) It was even seen in Afghanistan and at Pearl Harbor. (23) On January 7, 2011, the NCAA Student-Athlete Reinstatement Committee silenced that cry when it determined that Enes Kanter was correctly adjudged permanently ineligible. (24)

   Born in Switzerland in 1992, (25) Enes Kanter spent the first seventeen years of his life in Turkey, where his father is a well-respected doctor and professor. (26) Between 2006 and 2009, Kanter played three seasons for the Turkish club Fenerbahce. (27) Fenerbahce, like many clubs in Europe, competes in multiple sports on multiple levels. (28) It sponsors teams in soccer, basketball, volleyball, and several other sports. (29) Kanter primarily participated in the club's under-eighteen junior basketball team, although he spent the 2008-2009 season with its senior team. (30) During his time with Fenerbahce, Kanter never signed a contract with the team. (31)

   In 2009, Kanter moved to the United States. (32) At the time, he rejected reported offers from the largest and most popular Greek club, Olympiacos, (two years, $2 million) and from an unnamed Turkish club (five years, $6 million). (33) Kanter cited his desire to experience the NCAA game and to compete in the bigger arena of the National Basketball Association (NBA) as his motivations behind the move. (34) With his "aggressive rebounding and physical style of play," Kanter was predicted to be a lottery pick (35) before ever playing a high school game in the United States. (36)

   Upon arrival in the United States, Kanter attended multiple prep schools before landing at Stoneridge Prep in Merced, California. (37) Some considered him to be the best post player in the world for his age. (38) Described as "a man playing with boys at the high school level," (39) Kanter was rated as high as the third overall player in his recruiting class, (40) Though motivated in his educational pursuits, he knew little of the English language and required a translator. (41) Kanter initially committed to play basketball at the University of Washington, but reopened his commitment because "[h]e [had] been learning more about the U.S. and wanted to find out more about what's out there." (42) Ultimately, Kanter committed and signed to play for John Calipari and the University of Kentucky Wildcats. (43)

   Throughout his recruitment, Kanter's past led to concerns about his potential eligibility. Fenerbahce's General Manager, Nadim Karakas, was upset with his decision to leave Turkey and Fenerbahce, (44) and is reported as claiming the team paid Kanter over $100,000 in cash and benefits for his play. (45) Karakas claimed Fenerbahce paid Kanter a salary of $6,500 per month during his final season with the club, in addition to housing, food, and pocket money. (46) Kanter's agent characterized it differently: "They paid the necessary expenses, like any other kid who goes to prep school and gets the $30- or $40,000 scholarship." (47) Karakas was widely reported to have ulterior motives in his disclosure of information, as he stood to benefit from Kanter being ruled ineligible to play at Kentucky. (48) Upon making his assertions, Karakas claimed he gave the relevant paperwork to the NCAA, but refused to divulge any information to reporters to corroborate his statements. (49)

   Nonetheless, from March 2010 through...