Student-Athlete Contract Rights in the Aftermath of "Bloom v. NCAA"

I. INTRODUCTION Jeremy Bloom is the defending World Champion in moguls skiing, representing the United States in this discipline at both the 2002 and 2006 Winter Olympics.1 Bloom also played football for the University of Colorado from 2002 to 2003 where he established two Colorado football records.2 Before enrolling at Colorado in 2002, Bloom had endorsed numerous products and desired to continue doing so throughout his time in college so that he could fund his skiing career.3 The National Collegiate Athletics Association ("NCAA") allows student-athletes ("athletes" or "student-athletes") to compete professionally and receive salaries in sports other than those for which they compete in college.4 However, it does not allow athletes to receive endorsements of any kind.5 When Bloom decided to attend the University of Colorado, the school applied to the NCAA for a waiver of the prohibition on student-athletes receiving endorsements so that Bloom could use these endorsements to enable him to pursue his skiing career while playing college football. However, the NCAA refused this request.6 Bloom sought relief from the Colorado state court system where a trial court ruled against his request for a preliminary injunction in 2002.7 After relinquishing his endorsements for two years so that he could play college football, Bloom accepted an endorsement deal in March of 2004 because, in his words, "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. "8 After accepting these endorsements in violation of NCAA policy, Bloom's only hope of continuing his collegiate football career, in the absence of a softened stance by the NCAA, lay in his pending appeal. A Colorado appellate court, however, affirmed the lower court's denial of the preliminary injunction.9 Nonetheless, the court held that Bloom had standing to sue the NCAA as a third-party beneficiary to the contract between the NCAA and its member schools.10 Although previous cases had indicated that student-athletes might be third-party beneficiaries, this decision marked the first time that a court acknowledged unequivocally that student-athletes have contract rights under the NCAA Constitution and Bylaws ("NCAA Constitution" or "Constitution"). 11 In granting student-athletes standing to sue the NCAA, the Colorado court of appeals implicitly recognized that the interests of universities, the NCAA, and student-athletes are often misaligned as a result of the pervasive commercialism in big-time college sports. The NCAA enumerates many responsibilities that universities must observe in their dealings with student-athletes. Among the most important of these duties are the dual responsibilities of providing for student-athlete welfare (which includes protecting the health of athletes and providing them with a safe environment)12 and setting sound academic standards for student-athletes.13 If considered third-party beneficiaries to the contract between the NCAA and its member universities, student-athletes would be able to seek injunctive relief to enforce these contractual responsibilities14 and sue for money damages for foreseeable losses.15 Before Bloom, courts analyzed most suits brought by athletes using a highly deferential standard of review that seemingly gave the NCAA unfettered discretion. However, due to the dearth of cases involving the NCAA and the consequent nationwide importance of each case, the Bloom court's ruling may signal a change in the way that courts will view NCAA actions that directly affect student-athletes. After Bloom, for example, student-athletes may be able to bring previously unavailable claims against the NCAA as a result of the Bloom court's third-party beneficiary determination. This Note argues that the Bloom court's decision recognizes the unequal relationship between big-time NCAA student-athletes,16 their institutions, and the NCAA by allowing student-athletes to bring their own claims based on the contract rights given to them by the NCAA Constitution. …