By Cale Byers, posted April 18, 2018
Update: September 28, 2018 - There is another NCAA Bylaw worth quickly discussing. In the initial email from Lisa Macy-Baker, our college's NCAA compliance officer, 126.96.36.199 was brought into question:
188.8.131.52 Promotion by a Third Party of Photographs.
Any party hired by the member institution, the member conference or NCAA may sell and distribute a picture of a student-athlete only if: (Adopted: 1/10/05)
a. The member institution, the member conference or the NCAA specifically designates the agency that is authorized to receive orders for the film/photograph;
b. Sales and distribution activities have the written approval of the member institution's athletics director, the member conference's commissioner or the NCAA; and
c. If the third party advertises the availability of the photograph, the third party is precluded from using the name or picture of an enrolled student-athlete in any poster or other advertisement to promote the sale or distribution of the film/photograph; and there shall be no indication in the make-up or wording of the advertisement that squad members, individually or collectively, or the institution, the conference or the NCAA endorses the product or services of the advertiser.
So this bylaw only applies to parties "hired by" the college or its NCAA partners. Since I was never hired by either the NCAA or Linfield, this bylaw did not apply whatsoever at the time of the disagreement, and the college was wrong in its assessment of the facts. That's all for my update.
I printed out 100 copies of the following short essay and am distributing them to my friends and professors. If you don't know who I am, here's my About Page. Yes, I'm a currently enrolled student at Linfield, and I posted Linfield sports photos online for sale, causing a controversy with the administration and NCCA. Here is what I have to say, featuring some links inside the essay, along with commentary and more links at the end:
A Statement from Cale Byers Regarding Photography, NCAA Bylaws, and Linfield's Threats of Force
I have been restricted from photographing NCAA sporting events and risk arrest from local police, merely by showing up to a game with a camera. Rather than narrowly enforce the sales dispute, Linfield has extended their restrictions, banning me from all campus athletic events, regardless of the nature of my photography. The college is enforcing the NCAA’s mis-interpretation of a bylaw concerning sales of photographs without an athlete’s knowledge or permission. The entire NCAA Division 3 rulebook can be found online, and this particular bylaw begins on page 62 of the document:
184.108.40.206.3. Use of a Student-Athlete’s Name or Picture without Knowledge or Permission.If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student-athlete’s knowledge or permission, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics. Such steps are not required when a student-athlete’s photograph is sold by an individual or agency (e.g., private photographer, news agency) for private use [Emphasis mine]. (Adopted: 1/14/02, Revised: 4/17/07)
There is a clear distinction between commercial products and the photographs themselves. It’s a violation of policy to sell commercial derivatives of photos, but photos are not restricted when sold only as photos. Even though NCAA policy clearly provides an exception for private photographers and news agencies, I have been banned unless I leave my camera at home. If I show up with a camera, I will be trespassed and potentially arrested by the McMinnville Police. The NCAA, in responding to Linfield’s Interpretation Request, claims that Linfield must stop the sales of photographs, but they maintain in their actual bylaws that “such steps are not required…” This is a blatant contradiction that can only be resolved before the courts, but I won’t have time for a lawsuit until this summer.
Sadly, Linfield is willing to do whatever is necessary to enforce the NCAA’s misinterpretation of bylaws. Rather than resist, the college has submitted to tyranny and is eager to enforce injustice. As a result, Linfield has become the tyrant and committed injustice. Their threats of force and violence run counter to the ideals of a free society. Rule by threats and intimidation is not a proper way to lead an intellectual community. Linfield fears the vigorous and open debate of ideas, so they threaten violence, carried out by local police, to silence voices of dissent or demonstrations of resistance.
What restraints are placed on college officials? Are there no boundaries? Do we have any rights? This private college offers fewer protections than we have in the outside world. How ironic! There should be a greater degree of personal liberty in this institution, but we lack due process, rule of law, equality, and other components necessary for a healthy, functional society. If we wish to have individual rights, we must fight for them by seizing power and restoring liberty. Rights are not won in a passive manner.
Linfield can no longer claim to “[engage] thoughtful dialogue in a climate of mutual respect,” nor can it promise to “[inspire] the courage to live by moral and spiritual principle and to defend freedom of conscience.” The college’s mission statement should be amended to reflect the true nature of this institution. Linfield claims to support individual rights, including the freedom of speech and academic freedom, but their inaction and cowardice leave me deprived of any rights, facing arrest and criminal trespassing by selling photographs.
I will not be photographing any NCAA events, nor am I selling prior photos. All images are still available online, and all copyright provisions are still in effect. The absence of purchase rights doesn’t grant additional rights in my copyright licensing. I look forward to the public discussion of this matter and hope the college reverses its capricious decisions.
"Linfield emphasizes lifelong learning, embraces diverse cultures and international study, and recognizes moral principle and the freedom of conscience... You will find that Linfield is committed to educating the whole person, both within and outside the classroom, and that it offers something that students crave but rarely find elsewhere in today’s America: a sense of genuine community and civil intellectual exchange."
(I have annotated the policy guide, as indicated by parenthesis and italics).
"Academic freedom and freedom of inquiry are values to which Linfield College subscribes and which it protects by prescribing boundaries on the extent to which college officials may regulate discourse, speech, and the articulation of conscientiously held beliefs. So long as an opinion is delivered in a civil manner that invites and respects argument to the contrary, academic freedom demands that the college protect its expression. Maintaining academic freedom requires an atmosphere of trust and mutual confidence such that dishonesty, intimidation, harassment, exploitation, and the use or threat of force are incompatible with the preservation of this freedom... All members of the college are entitled to use speech to convey disagreement, agreement, inquiry, or commentary in keeping with the principles underlying constitutionally protected free expression." — Page 18.
(So there you have it. Linfield claims to protect opinions, academic freedom, and constitutionally protected free expression).
"The College may be both a quiet sanctuary for contemplation and research and a forum for free discussion of contemporary issues." — Page 39.
"Examples of misconduct which renders a member of the College [including administrators, faculty, staff, etc] liable for discipline, up to and including separation, may fall into the following categories:...11. Threats, intimidation, harassment, stalking, bullying, coercion or other conduct which threatens or endangers the health, safety, personal property or academic success of any person.
20. Failure to comply with the direction of College or public officials acting in the performance of their duties."
(What if they aren't acting in the performance of their duties?)
21. Conduct which adversely affects the member’s suitability as a member of the College community or which interferes with the rights and privileges of another member of the College community.22. Failure to comply with rules, regulations, or standards or conduct approved by the College, provided they have been published, distributed, or posted in such a manner as to furnish adequate notice to students."
(If policies are not clearly published or sufficiently intelligible, then you aren't liable for breaking them. This relates to the legal principle of vagueness doctrine. When laws are not clear, they can be struck down for being ambiguous or confusing. Further, the college cannot create policies retroactively to enforce its desires. It may try, but it will lose in court. See this Wikipedia page on Ex post facto laws).
23. The commission of any act which is a crime under the laws of the state of Oregon or of the United States which results in a criminal charge and conviction in any competent jurisdiction."
(Until alleged crimes result in criminal charges and conviction, this point does not apply, and people can't be found in violation. After a conviction, however, the college is free to consider criminal behavior as a component of their charges and disciplinary efforts. So until you're found guilty in a court of law outside the college's authority, you're free to engage in criminal behavior, but doing so likely violates other policies. It's possible the college will try to revise this handbook as the saga continues. For that reason, I'm saving copies and looking for any changes. I will post a webpage that details changes to policy, so we aren't bamboozled.
24. Failure to comply with the terms of any disciplinary sanction imposed in accordance with the code of students conduct."
(What if displinary sanctions are not imposed in accordance with the code of students conduct? Then you aren't obligated to follow the sanctions. If the college isn't willing to follow its own procedures to impose sanctions, any sanctions are automatically invalid, having been created without proper authority. For the most part, the handbook is fairly good, and these policies are written with sufficient leniency to protect individual freedom. In my case, the college isn't following any system of conduct, so that's the core issue. And Susan Hopp, our Dean of Students, threatened that any efforts to challenge these sanctions will result in a hearing before the conduct board. But that's precisely what should have happened to create the sanctions! I would love for the college to actually follow its policies. Susan also mentioned that I would jeopardize my status as a student; in other words, pointing out their misconduct and asking for fair treatment could lead to my suspension or expulsion. It's not very nice to threaten retaliation when all I'm asking is that the college adhere to its policies in determining sanctions. I have so much juicy material for a lawsuit. This is going to be fantastic. Linfield College must be held to account in a court of law, and the truth must be known).
I don't have time to annotate the conduct procedures beginning on Page 40, but I'll quickly point out that the denial of a lawyer during a hearing is inappropriate and cowardly. It enables Linfield to violate the rights of its members by denying them access to legal counsel at a critical time. Imagine if our courts wouldn't allow lawyers during trials...(the horror!)... Thankfully, we can seek help and advice from faculty during a hearing.
On Page 44, there's a section about the responsibilities of the conduct board chair person. They must "decide all procedural matters during the hearing in accordance with established written guidelines and normal due process." Perhaps Linfield College will adhere to their policies and respect my rights. But so far, it hasn't been the case.
I'm available for hire, doing photography or web design (contact me), or if you'd like to send donations, you can visit my Cash profile, $calebyers. Thanks!