NFL Play 60: Stay Off Our Bus!
The National Football League's Gambit to Commercialize School Children
Part 3 - The Issues
Just to make sure we cover our bases, this issue is predicated to a large extent upon the notion that the arrangement between the NFL and Cathcart Elementary was an act of commerce. We would like to think the concept that the NFL and the Snohomish School District were engaged in an act of commerce as obvious. However, we will present our arguments that the agreement between the NFL and the school district was an act of commerce. The evidence we would like to present to support our arguments is:
The next question we need to answer is whether or not the any agreement between the NFL, the Snohomish School District, and the parents or guardians of the students at Cathcart Elementary constituted a contract. If so, then we need to determine the validity of any contract and the parties to which the contract applies.
According to an online
"An agreement with specific terms between two or more persons or entities in which there is a promise to do something in return for a valuable benefit known as consideration. Since the law of contracts is at the heart of most business dealings, it is one of the three or four most significant areas of legal concern and can involve variations on circumstances and complexities. The existence of a contract requires finding the following factual elements: a) an offer; b) an acceptance of that offer which results in a meeting of the minds; c) a promise to perform; d) a valuable consideration (which can be a promise or payment in some form); e) a time or event when performance must be made (meet commitments); f) terms and conditions for performance, including fulfilling promises; g) performance."
Again, we are not lawyers, but it seems clear to us that the agreement between the Cathcart Elementary and the NFL constituted a contract as both parties exchanged something of value; Cathcart Elementary received the award grant while the NFL received promotional materials. All of the factual elements described above have been met.
It seems clear to us that the language contained within the announcement from Cathcart Elementary and the NFL’s Waiver is evidence of a contract, if not between us and the NFL, but between the NFL, the Snohomish School District, and all of the student’s parents who signed the NFL’s waiver. In essence, the NFL offered an award in exchange for access to school children for promotional purposes, which we feel constitutes a quid pro quo arrangement between the NFL and Cathcart Elementary School (and other winning schools). Why else ask parents to relinquish their rights to the images and biographical information of their children if these materials did not have tangible value? In fact, we held the images and biographical information of our children so highly as to refuse to sign their waiver.
Now we would like to turn our attention to who had the authority to enter into this contract and its terms.
According to the announcement brought home by our children, “Our (contest) entry was coordinated and submitted by our CPO.” If the school district was not involved in the contest entry, then who authorized the Cathcart Parent Organization to act on behalf of the school and especially our children? Certainly we did not. And if the school district was responsible for entering into this contract, then the same questions regarding proper authority applies to them as well. Perhaps the primary question we pose regarding this situation is who had the authority to speak on the behalf of and to obligate students within a public school to provide a private enterprise with publicity materials during school hours? We contend that nobody does, no matter how much money is offered or how noble they believe their cause to be.
While school districts may engage in business and enter into contracts with private companies to provide products and services for public schools, we contend that nobody from the parent organization or the school district had the authority to represent us (no collective bargaining rights) or to negotiate the commercial value of our children on our behalf, to obligate students to help promote any private enterprise, to use students to engage in commerce, or to penalize any student whose parents refuse to engage activities that promote any private enterprise during school hours.
In simple terms, we don’t believe that the school district had the authority to obligate students to satisfy the performance of the agreement between the NFL and the school district.
As the NFL presented their health and fitness grants, they expected something in return. There is no mistaking this fact. Casey Bowers clearly states in her announcement that, “this is a publicity event for them” (the NFL and the Seattle Seahawks).1 However, it was not the school district that satisfied the performance of the agreement, but its students. Again, we ask, who had the authority to determine the commercial value of our children or to obligate them to perform for the NFL? While there was an opportunity to opt out of the agreement by refusing to sign the NFL’s Waiver of Liability and Release, there should have been no significant impact for choosing this option. This was not the case. And yet, this is not the real point. We contend that school district administrators lack the authority to even put us into the position to even make such a choice.
It seems obvious to us that the following entities are parties of the agreement:
We also assume these entities are also parties of the agreement:
As sponsors or associated enterprises, we wonder if these entities are parties to the agreement:
We also wonder if we are a party to the agreement, even though we refused to sign the NFL’s waiver. Our reasoning for this is:
The first communication we received regarding this event was when our children brought home the announcement of the winning entry on 2011 November 04.1 While we are unsure of the exact date we received the announcement from Casey Bowers, we believe it was on Friday when our children bring home their paperwork for the week. Since the announcement is dated 2011 November 03, we don’t believe this difference to be significant. The actual celebration assembly occurred on 2011 November 15, just 8 days school days (12 calendar days) after the date of the announcement.
What is important here is that we contend that there was insufficient time for parents to adequately question or contest this event. Typically, government entities allow time for public input, especially for events or processes that fall outside of the norm as we believe was typified in this instance.
So why the rush? While we expect the NFL to argue that they were just operating at the speed of any business, we would offer the opinion that this was an intentional strategy on the part of the NFL for less genuine reasons. As we will argue a bit later, we contend that the NFL made material omissions within their contest rules regarding the scope of their desire to collect publicity materials from all of the students and that he NFL wanted to move as quickly as possible in order to restrain any dissent. Additionally, we contend that the NFL wanted to fleece the sheep while they were still starry-eyed and blinded by the prize.
One of our primary concerns raised by the NFL’s Play 60 celebration assembly pertains to a person’s right to choose those private enterprises they wish to support, either by purchasing their products or services or by promoting that enterprise. The primary questions raised here are:
We believe the answer to both questions should be, no. I would like to offer this analogy:
This was not the case in this situation. By refusing to sign the NFL’s waiver, thereby refusing to engage in business with the NFL (by refusing to relinquish our rights to something of tangible value - the images and biographical information of our children), our children suffered the following consequences:
In essence, our children were blacklisted; egged by the NFL and the Snohomish School District based solely upon our refusal to help promote the NFL. It is our claim that both the NFL and Snohomish School District infringed upon our freedom to choose those private enterprises we would support or deny support; that nobody has the right to speak on our behalf, without our prior permission, to obligate us to engage in business with any private enterprise. Furthermore, the NFL should not be absolved from the responsibility of knowing that just a few people cannot and did not represent everybody that would become involved, regardless of what their contest rules may specify.
While we would need to verify the facts, according to our children there were only four children (including themselves) in their classroom during the NFL Play 60 celebration assembly. While we assume these children were attended to by a certified teacher, this should be verified. If this person was not a certified teacher, the school’s argument that our children’s education was not compromised fails on this point alone. However, if the person attending to this classroom was a certified teacher, then this results in a teacher to student ratio of 1 to 4. What a wonderful teaching opportunity! What parent wouldn’t dream of a 1 to 4 teacher-student ratio? However, according to our children, this teaching opportunity consisted of watching a video (The Human Body, from the Magic School Bus series, according to our oldest child), and perhaps some personal drawing activities if there was time remaining after the video had completed. So what happened to individualized attention? Did the teacher even ask any of the children if they had already seen this video, because if they had they would have learned that not only had our children already seen this video, but that we owned it as well. Did this teacher offer to work with the students on math, reading, spelling, writing, or any other core educational component? Not to our knowledge. Talk about squandering the teaching opportunity! This just goes to show that the education of any of the children whose parents refused to sign the NFL’s waiver received no real consideration.
We’re sure everybody can recall a situation during their education when the regular teacher was absent on a given day. No substitute teacher, no matter how qualified, can compete with the regular teacher. Usually, substitute teachers step into a classroom without much preparation. They don’t know where the students are within a lesson plan and the continuity is lost. Substitute teachers do not know the students and lack the ability to interact with them on the same level as the regular teacher. Substitute teachers do not know the discipline or tolerance levels to which the students are accustomed. Most of all, substitute teachers do not know the abilities of these students. All of these factors contribute to a degradation of educational quality.
Substitute teachers are a necessity in most circumstances and school districts must be allowed to utilize these resources. Teachers need sick days like everybody else and no matter how well we attempt to plan our daily schedules, things happen in people’s lives that are important and require urgent attention. In these circumstances, a substitute teacher is necessary. But this wasn’t one of them.
Although the school district had advance warning about the need to accommodate some of their students, you need to consider that our children’s substitute teacher wasn’t present for the day, but only for an hour or so. Also, this teacher was not attending to a regular classroom, but an assembly of students from several classrooms and spanning different grade levels. So how does a substitute teacher plan for such a mix of students and for such a short period of time? The answer is that they don’t; not really anyways. No, they do what they did, and that was to place a video into the machine and keep these kids occupied and out of trouble. Just maintain control during the event and all is well.
In our opinion, this was not the quality of education we would have expected. In fact, we would classify the education our children received during this time as a total loss. Let’s face it; the teacher who was present was converted into a glorified babysitter. And any parent who has sought a babysitter and consulted any resource for advice will run across an almost universal rule number one; you don’t want a babysitter who just allows children to watch television or videos, or play video games. No, a good quality babysitter will spend time interacting with the children under their care. So not only did our children get a babysitter instead of a real teacher, but a poor quality babysitter at that. Just because our children were at school and in a classroom doesn’t mean they received an education. This situation can simply be reduced to one common denominator: money! Quite simply, our children and their education were sacrificed so the school could collect their prize.
One of the most fundamental misconceptions we believe the reader may have would be to make the assumption that we refused to sign the NFL’s waiver just because we didn’t want our children to attend the NFL Play 60 celebration assembly. That is not true. No, we refused the sign the NFL’s waiver because they wanted to use our children to promote their business. For eternity, a piece of our family would be owned by the NFL, to use as they pleased.
While we had a choice in this matter, neither of the options were acceptable. We knew it was likely that our children would be a small minority of students whose parents refused to sign the NFL’s waiver - although we didn’t know we would be such a small minority - but signing the NFL’s waiver was the worst option. This is a type of false choice where one must choose between only two options. We feel that the NFL and the school district had other options available and that none of these options were presented or even considered.
It seems that politicians are the most notable group of people to offer false choices in an effort to sway us to their way of thinking. Perhaps the most common example is, “You are either with us, or you are against us.” Or as President George W Bush said during an address to Congress, “Either you are with us, or you are with the terrorists.” This kind of thinking was used to justify the (re)invasion of Iraq and Afghanistan to root out (alleged) terrorists. Now, when someone questions your patriotism or asks you to switch off any critical thinking so they can justify war should raise a flag, as it did with me at that time. Certainly there were other options to be considered, but in the immediate aftermath of the 9-11 attacks on the World Trade Center and the Pentagon people were angry and wanted action, even revenge, which allowed for this kind of short-sighted pigeon-holed thinking. As we learned later that the information used to justify war - at least the invasion of Iraq - was faulty.
There is another example of a false (albeit a rather extreme one) from the events from 9-11. Most people can recall watching the news footage as Flight 175 struck the south tower of the World Trade Center. Then, news cameras focused on both of the twin towers as they burned and then collapsed. However, perhaps the most horrific film footage that was captured that day occurred before the buildings collapsed, when people began leaping from the upper floors of those buildings. Now those people faced a choice: either be consumed by smoke and/or flames, or leap from the building. Neither option was desirable, but it was a choice just the same.
We faced a choice for the NFL Play 60 celebration assembly: either sign away our rights to the NFL for our children’s education (something we already paid for via our property tax dollars) or have our children be segregated from their peers and face an environment of exclusion. Again, neither choice was acceptable; we just chose the least objectionable option. The result of our choice caused emotional stress for our children and for ourselves as we attempted (futilely) to justify our choice to our children. Our children felt punished and we bore the brunt of their resentment; that we as their parents were at fault, not the NFL, teachers, or school administrators.
The NFL and the school district had other options available. The correct option, in our opinion - the one we are lobbying for - was for the NFL to not film the event, at least not during regular hours. Other options include, but are not limited to the following:
So let us present a false choice of our own: either you like your freedom to choose, or you like the National Football League and their franchise clubs. You see, I’m willing to bet by now you have assumed that we just dislike the NFL. That is not a correct assumption. We do enjoy watching NFL games, although we don’t get much time to do so these days. The point is that we recognized what we felt was an exploitative situation and refused to participate in the NFL’s hypocrisy. Those are not our values. Quite simply, we choose the quality of our children’s education and well being over promoting the NFL.
This past summer we were presented with an angle that should have been obvious; that of freedom of speech. We were so focused on the issue of contractual validity that we overlooked this angle until we read about a case that was decided by the United States Supreme Court concerning the matter of Agency for International Development et al v Alliance for Open Society International, Inc et al. To paraphrase from this decision, the court affirms that no government official can force someone to adopt a particular point of view as their own just because they are the recipient of a source of funding. Although the funding in our case was from a private source as opposed to a public source as in the case referenced, we view the effect as the same; the school district chose to adopt the NFL’s message as their own and then chose to coerce their students and their parents into supporting that same message. In his opinion for the majority, Chief Justice John Roberts sites a passage from Justice Robert Jackson regarding a U S Supreme Court decision some seventy years ago, “If there is a fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or matters of opinion or force citizens to confess by word or act their faith therein.”
While we were not forced to support the National Football League and NFL Play 60, we contend that our children did incur a penalty because we refused to allow the Snohomish School District to use our children in an act which would show their support for the NFL. Please remember that the promotional materials collected by the NFL were not restricted to just the specific message endorsed by the NFL Play 60 program, rather - according to the language in the NFL’s waiver - could be used “for any purpose whatsoever.” We contend that although the NFL, the Seattle Seahawks and all associated franchise teams are private businesses, that they, along with the Snohomish School District, represent a form of nationalism to which they expected our pledge/demonstration of loyalty. In effect, our children were to demonstrate their loyalty to the NFL, the Seattle Seahawks, and Cathcart Elementary, “or else!”
Our constitutionally protected freedom of speech, especially political speech, is one of our most cherished freedoms and the freedom to not be compelled to speak about something is just as important. Just ask any political prisoner, captured soldier or hostage about this cherished right to not speak out for somebody else’s agenda as they are being forced to sign a confession or are being paraded around in a forced protest against one’s own country. It’s just not right. Need we say more?
There is a significant difference between free speech and commercial speech. Commercial speech can and is regulated. Congress has the authority to regulate commerce and they do so under a variety of regulations. You are not allowed to use public resources to sell goods and services unless you first obtain the proper permits. Street fairs operate under this model. How would you like to be a restaurant owner who watches their business siphoned away by the operator of the taco truck parked on the street just in front? The owner/operator of the taco truck does not have the right to advertise for his business in such a manner. How about panhandlers, especially aggressive panhandlers? Courts have ruled that people do not have the right to solicit for pedestrians for money. This behavior has been labeled as commercial speech because they are soliciting money. It is this distinction that allows local governments to police their streets and remove these people.
So let’s be clear here. What we are engaged in here is free speech. We are not asking for money, but for changes in how our public institutions conduct their affairs. What the NFL and their franchise clubs are engaged in is commercial speech because they are displaying the collected materials on their websites which engage in commercial activities such as selling tickets to sporting events, team merchandise, etc. The collected materials effectively become a form of commercial advertisement even though they do not target a particular product or service, rather those materials are posted to draw prospective customers to their commercial websites or storefronts in the attempt to sell other goods and services.
So the right we exercised was to refuse to engage in commercial speech for the Seattle Seahawks and the NFL.
One of the arguments we have encountered when we contacted the Washington State Human Rights Commission was that the Snohomish School District provided reasonable accommodations for our children. This is an issue that will require attention as we are sure both the National Football League and the Snohomish School District will claim that our children were reasonably accommodated when we refused to sign the NFL’s waiver. Of course, we strongly disagree.
As we have learned through our parenting experience, children often don’t see shades of gray; rather the issues they confront as they mature seem black and white at a young age. This is something adults often forget. If you were to have experienced the reactions of our children as they got off the school bus that afternoon you may then better appreciate their perspective. They were angry and felt like they were treated unfairly. They simply didn’t understand why they weren’t allowed to attend the celebration assembly with their peers. Again, from their perspective, the accommodation they received was detention. Although an “educational” video was playing, they checked out.
For the accommodations to be reasonable, they must be equal. But equal to what? The NFL’s celebration assembly? Not from our perspective. Any reasonable accommodation would need to be compared to our children’s regular classroom setting and as we have already pointed out our children’s education while the NFL Play 60 celebration assembly was occurring was far from equal to their regular education.
Varying definitions of equal accommodations have been applied over the years in a variety of settings to justify separating individuals or groups of people; to make a class distinction. Easily the most obvious example is the treatment of people of color in America. For nearly a century, Jim Crow laws dictated that people of color - namely African Americans - be held under “separate but equal” living conditions. Separate? Yes. Equal? No. Unless you’ve been living under a rock or are in extreme denial, that is an obvious fact. It doesn’t take long to find images of the inequality: people of color living is squalid conditions while newer homes are across the road, water fountains that are labeled “Colored Only” that are not as conveniently located as those for white folks, or black children standing outside the fence looking at the amusement park they can't enter with the sign above that reads, “White Only.” Shall we continue?
So while some people may attempt to argue that our children were reasonably accommodated, we use language such as sacrificed and discrimination, because the school district simply had no legitimate reason to separate our children from their peers or to compromise the quality of their education just so they could help to promote a private enterprise. Attempting to justify this as an educational program really has no bearing on this argument. No matter how much money they provide or how noble you believe their cause to be, promoting a private enterprise is simply not the function of a public school. When it comes down to saying our children were reasonably accommodated, then we suggest you explain this concept to them, not us. Look our children in the eye and tell them their accommodations were reasonable. Once you stop viewing this as an adult and view it from our children’s perspective, then you will come know that this argument fails.
If all of the other arguments we have described so far have somehow failed to persuade you that something is just not right, the conflict of interest should be obvious. We simply ask, who was the school district serving during the NFL’s Play 60 celebration assembly, the NFL or their students? Well, we can assure you that Cathcart Elementary administrators and staff did not serve all of their students during that event. As soon as the NFL’s money and their demand for promotional materials enter the equation, along with the school’s acceptance of that agreement, the conflict exists. The Snohomish School District simply cannot deny that they did not serve the Seattle Seahawks and the National Football League.
As for the NFL, their lawyers should have recognized that their demand for promotional materials would present the school districts with a conflict of interest, but instead they provided those school districts with an inducement in the form of an award so they would look the other way. Like other government agencies, school districts are funded almost entirely from taxpayer resources. So what would happen if any other entity attempted to influence the actions of a government agency by providing a financial incentive? Both parties would face disciplinary proceedings. If the conflict is severe enough, professionals may lose their license to practice their trade. However, in this case and through all of our attempts to remedy this situation, our concerns have barely registered a shrug. Ideally, we would like to think that one of the highest honors that a society can bestow upon a person is the title of “Teacher.” This should immediately command respect that a person has gained the skills and wisdom that are necessary to pass along to the next generation(s). Yet, any idea of a conflict of interest seems to be lost upon all of these people who would classify themselves as professionals.
If you look at the bottom of the announcement, you will notice the Cathcart Aim statement: “Cathcart Elementary students will demonstrate on-going academic achievement and responsible citizenship.” Let’s discuss that last part about responsible citizenship. How can our children learn about responsible citizenship when their teachers and school administrators seem to have difficulty recognizing what that is? Their actions basically said, “We represent your commercial interest or else!” What kind of citizenship example did the school district just demonstrate to our children? Our experience tells us that children learn more by example than they do by what they’re told and the example set by the NFL and school district just lowered the ethical bar. To think that these are the people whom we entrust to teach our children the lessons to become responsible citizens has failed on a massive scale. We are trading basic education to produce reality TV media clips and we wonder why America’s educational institutions are falling behind the rest of the world. Hey, why don’t you try looking under this rock right here!
One of the most basic questions we must ask in this situation is this: what educational purpose is served by allowing a private enterprise to collect promotional materials during a student activity that occurs during regular school hours? In other words, what educational purpose was served by allowing NFL cameras into the school during the celebration assembly? We contend that no educational purpose was served by allowing the NFL to film this celebration assembly (or any other celebration assemblies for other team markets) and that school district administrators erred by allowing this event to be filmed.
If school district officials offer any arguments or justification that NFL cameras - or cameras from any private enterprise for that matter - were allowable within public schools, then we would like to propose alternative opinion. If school districts are so enthusiastic to allow cameras into their school, then let’s take this a step further. Why don’t we place a camera in every classroom and connect them to the Internet so every parent can watch the progress of their child at any time during the school day? Unlike the NFL’s cameras, these classroom cameras would serve a public purpose, whereas the NFL cameras served a profitable corporation (or several as each franchise club is a profit driven corporation). And why stop there? Now that parents can observe their children and the teachers, why not include parent input when evaluating teacher performance? How long do you think it would take before concerned parents call upon school administrators to complain that their child’s teacher is devoting much more time to other children? How long do you think it will take the teachers and their union to cry foul and oppose these cameras in the school? However, we must then ask, where were the teacher objections when the NFL brought their cameras into the school?
If school districts administrators object to placing cameras into classrooms, then how about at least installing cameras to monitor the playgrounds? Certainly student safety arguments could be made in this case. What about monitoring the playgrounds for bullying; the favorite school issue du jour? So where’s the school district’s objection now? Ah yes, we would imagine they would be quick to point out the possible liability exposure for rejecting this idea.
We don’t see much gray area here. Either you allow cameras in public schools or you don’t. Quite frankly, we believe that allowing cameras into public schools is a terrible idea and would only serve to put teachers on the defensive; always thinking first of covering their rear end and limiting any liability. We speculate this would eventually result in drive teachers into different careers and degrading the education of our children. This is the motivation behind our challenge; that nobody’s cameras belong in public schools, especially ones that serve private enterprises.
If this hasn’t convinced you yet, all you need to do is look at the controversy surrounding cameras that have been installed at traffic intersections. Those cameras were installed on the premise that better policing of scofflaws who habitually run red lights would yield lower accident rates and increase public safety. It didn’t take long for people to cry foul and argue that these cameras were installed to generate revenue rather than for public safety concerns. The supposed public safety purpose for installing those cameras became debatable and enforcing citations sent in the mail became problematic. Eventually the Los Angeles City Council voted unanimously to have them removed. So just how problematic would placing cameras in public schools become?
We can think of no other providers of goods and/or services to public schools who either demand or gain access to students that serve as publicity as a part of their contract. Book publishers do not gain access to students to create advertisements showing all of those children reading their books, nor do food service providers to show all of those children enjoying their meals. If these service providers use children to advertise their businesses, then they create and pay for the production costs of those advertisements separately, including wages to all of the participants.
Somehow, the NFL occupies a unique position in this instance. The obvious difference is that the NFL is making a payment to the school rather than the school district paying for the goods or services. So we must ask, was the award grant an act of charity or a payment for services to be rendered? This is no small distinction. As the saying goes, “A rose by any other name is still a rose.” So in this case a payment is just that, whether the NFL calls it a grant or an award or any other name. We contend that the NFL expected a return on this investment like they would for any other business activity.
Now that the Snohomish School District has decided to promote the Seattle Seahawks and the NFL, we want access to promote our business (or non-profit) as well. Okay, that is a hypothetical question because we are not independent business owners, but that could change. The point being is that once you grant one business this type of access to your schools, you need to apply those rules equally.
So you may point out that the NFL provided the school with a grant and an educational program. Fine, so can we. You see, we believe we can provide a fine educational presentation to the school; one they apparently need. Our presentation will be about the principles of fairness and equality, personal rights and responsibility, bullying, discrimination and even corruption. Our presentation will also teach the difference between a democracy and a republic, where representatives create rules that protect the rights of minority groups from majorities (or in this instance, a mob). Our presentation will also focus on psychological elements such as peer pressure, coercion, group thinking, diffusion of responsibility, and obedience to authority. And we can accomplish all of this by using our experience with the NFL’s Play 60 program as an example.
If you want to focus on the money by pointing out the payment (grant) provided by the NFL, then we would like to draw your attention to our property tax receipts. We have lived within the Snohomish School District for about 13 years now and we can show that we have paid well over $20,000 in taxes to the school district over that time. Also, this doesn’t include all of the other federal and state taxes we have paid over the years that are allocated to public schools. So please explain to us, just when did the NFL’s grant money trump our tax payments?
There are many parents and professionals who provide their time to our local schools. Many parents volunteer their time to assist teachers with classroom tasks like reading to smaller groups of students or to provide some individualized attention. Various professionals volunteer their time to assist with educational programs. One noteworthy group that seems to stand out is some of our medical professionals. We know that doctors and nurses volunteer their time to provide presentations about health and wellness and dentists and orthodontists volunteer their time to encourage proper oral health care. Yes, they may get some name recognition out of the process, but we don’t think it even occurs to them to film the sessions for promotional purposes. Yet, now it seems that they can, along with anybody else.
But what about the waivers? Wouldn’t we need each parent to sign waivers as well? Maybe not. Perhaps we could ask a court to treat the NFL’s waivers as a type of blanket permission based on the principle of equal access, arguing that once parents signed away their rights to one private enterprise that the essentially signed them away for all private enterprises. But let’s say that argument didn’t prevail and we had to ask for permission. Wouldn’t you want to support you neighbor to promote their business? No? Why not? Are we not as worthy as the NFL? We know we wouldn’t win the popularity contest - especially not now - but doesn’t that seem a bit, well, childish? And if parents wouldn’t sign our waivers, then we simply ask that the go look into a mirror and take a close look at the face of hypocrisy!
To provide additional insight to the issue of equal access, if you’ve been paying attention to the news lately you may have heard that the Satanic Temple is petitioning the state of Oklahoma to erect a seven foot tall monument of Satan (depicted as Baphomet) to “complement and contrast” the monument of the Ten Commandments that was recently located on state capitol grounds. Their argument is simply based on equal access (opportunity) to express their religious beliefs. Many people may view the attempts of the Satanic Temple as ridiculous, but the issue is simply one of equal access. The Oklahoma chapter of the American Civil Liberties Union has sued to remove the Ten Commandments monument because “the state needs to get out of the business of endorsing religion,” according to legal director Brady Henderson. Yet Henderson went on to say that he believes the Satanic Temple has “every right to be there” if the Ten Commandments monument remains.
Not convinced yet? Then let’s propose a hypothetical scenario that is now possible under the NFL’s model. Let’s say we have two medical professionals who have a friendly relationship, but work at separate medical practices. The first is Dr Kidd, a pediatrician. Now let’s say that Dr Kidd makes a donation to the local school and asks to film his presentation about the health benefits of proper diet and good hygiene. Yes, Dr Kidd does require that parents sign a waiver (just like the NFL’s Waiver of Liability and Release) so he can use the materials to advertise his business. In consideration of the sizable donation he made, most parents sign the waiver and give their consent. The event is filmed and Dr Kidd is able to extract several clips where large groups of children are cheering excitedly. Now, what parents didn’t know about was Dr Kidd’s relationship with Dr Delivery, a local obstetrician. After Dr Kidd shows Dr Delivery all of the wonderful video clips he obtained, Dr Delivery asks if she could use them as well. Dr Kidd agrees since he has signed waivers that allow him to use the video of the event “for any purpose whatsoever.” So Dr Delivery produces a promotional video for her business as well. Both videos are professional and impress upon the public their caring for all of these children. Nothing is amiss, at least for a while. Then the rumors begin to circulate that Dr Delivery donates some of her time at another clinic; a clinic where abortions are performed. It doesn’t matter that Dr Delivery is not charging anything for her services or that she doesn’t actually perform abortions. The link has been made and now enraged parents no longer want Dr Delivery (or Dr Kidd for that matter) to air her videos with their children in them. Can’t happen you say? How do you know? Any purpose whatsoever is very broad discretion; about as broad as it can get. These parents signed away the rights of their children and the law is on the side of the doctors. So when you question why we refused to sign the NFL’s waiver it is that exact type of language, “any purpose whatsoever.” It comes right down to trust and we simply did not trust the NFL to act in a professional manner. After all, look at how much they care about player safety and the integrity of the entertainment they provide. Do we really think they cared about our children? Obviously the answer is no.
So how about it? Can we bring our commercial cameras to Cathcart Elementary? And by the way, we also expect the same courteous treatment that the NFL received. We want to see the balloons and banners and the groups of cheering children as we pull up in our limousine. Sounds ridiculous, doesn’t it? Well, it is when you think about it. But then please explain to us how the NFL rates such treatment and we do not.
If public schools are now in the business of providing their students for publicity materials, then we may envision a new business opportunity. Perhaps we can start a consulting firm whose purpose is to help prospective businesses figure just how much money they need to offer and the type of educational program they need to develop to gain entry into our public schools. We will call this the access threshold. However, what we may find is that equal access is not all that equal.
To gain entry into a public school, we believe a rather straight-forward formula may become applicable where:
Access Threshold = Money x Educational Program x Popularity
Where both the applicability of the educational program and the popularity of the business seeking entry to the public school are expressed as coefficient ranging from 0 to 1, with the value of 1 being the most popular business or the most applicable educational program.
Let’s provide a few examples to explain this concept, starting with the NFL. The NFL provided the school with a $10,000 payment, their educational program seems applicable to our nation’s youth so we will credit them with a “1” and we will also credit them with a “1” as they are arguably one of the most popular enterprises in America. So we calculate (monetize) their access threshold to be $10,000. We will use this $10,000 as the baseline for comparing other businesses seeking access to public schools.
But did the NFL actually need to pay that much? Considering their popularity, would they have needed to pay anything at all? To illustrate this we turn our attention to the Seattle Mariners and Major League Baseball. Yes, the Seattle Mariners are bringing their cameras into public schools too via their DREAM (Drug-free, Respect yourself and others, Education through reading, Attitude and Motivation) program. However, what we don’t see is the awarding of any grant money. We would also score the Seattle Mariners with a coefficient of “1” for both their popularity and applicability of their education program, so in this instance the access threshold appears to be zero. We will return to the Seattle Mariners at a later time, but for now we just want to illustrate the characteristics of gaining access to public schools for promotional purposes.
Let’s look at a few more examples. Let’s take look at Gold’s Gym. We believe Gold’s Gym could provide an educational program pertaining to health and fitness on par with the NFL’s Play 60 program. In fact, we believe the trainers at Gold’s Gym may set an even better example of health and fitness because we are willing to bet that as an aggregate the employees of Gold’s Gym are in better physical shape and show a lower instance of obesity than the “athletes” in the NFL. So, we will score Gold’s Gym with a “1” for the applicability of the educational program they could provide. But what about their popularity? Where would Gold’s Gym score on the popularity scale? How large of a payment would Gold’s Gym need to make to reach the $10,000 access threshold? $20,000? $30,000? What would it take to get all the parents to sign the waivers for Gold’s Gym and get all the students to cheer them on as their representatives pull up in their limousine? Of course, we as the consultant will be able to assist in figuring this out and we may not always divulge the size of the payment to the public. That’s not the goal We just want to be able to obtain the desired promotional materials.
If popularity is such an important factor, how would we apply the equation to other celebrities? What about, say, Dr Phil or Judge Judy? Both have popular name recognition and we believe both would have no trouble achieving a score of “1” for the applicability of their educational program. So just where would they fit on the popularity scale? Would they score a “1” or would they have to settle for something a bit less, say a 0.8? In such a case, they would need to pony up $12,500 to reach the $10,000 access threshold. Yes, it may cost them a bit more for all of the cheering kids, but the point is that their access can be monetized.
Now we have no reason to believe that Dr Phil, Judge Judy, or Gold’s Gym would even think of attempting such an act, but we believe we can show that this process of accessing our public schools can be coldly calculated. So it appears that our public schools are now open for business.
Yet, just forking over money may not be quite the right approach. You’ve got to make the schools take the initiative and seek out the funds; to engage in the fundraising activity. You know, like entering a contest or something. Yes, it will help if you call them “winners” or at least make them feel like winners. And this may be the real trick to allow school administrators to pressure parents into going along and getting them to sign the waivers, or at least to keep the uncooperative parents quiet. So the grant money is no longer quite a grant, but becomes a lure. Now anyone can cast their lure disguised as a contest and go trolling for cash-strapped schools. It’s all seems quite clever and effective.
Now, going full-circle and getting back to the topic equal access, we would like to turn your attention to businesses that may pose some controversy. Let’s say, for example, condom manufacturers. What would be their access threshold? We believe they could provide an educational program to promote their products, although it may not quite warrant a score of “1.” Perhaps the primary factor in the equation would be where condom manufacturers fall on the popularity scale, or would they just prove to be too controversial? Can’t we all easily imaging the religious organizations that would be screaming over such an attempt to use public school students to promote condoms, even though they can make the case that their use addresses public health concerns by inhibiting the spread of some communicable diseases? Yet on the principle of equal access, could you really deny access to condom manufacturers if you allow entertainment businesses that access? We don’t think so, yet it seems that school officials just haven’t thought about that.
Typically, we would think that an activity of this nature would require a period which would allow for public input. However, that didn’t happen in this case as the NFL made sure to drive this process to completion in less than two weeks time. We must ask, was this a planned strategy to limit or even eliminate any opportunity for public input and possible objections?
A rather interesting and similar scenario has recently occurred in our local area. As reported in a Seattle Times article on 2012 June 20, the Seattle School Board voted to allow commercial advertising on school athletic fields. However, this school board vote came over the objections of parents and teachers, some of whom were carrying signs stating, “School is for learning, not for marketing.” We find the timing and scope of this development to be rather interesting and would like to perform a quick comparison and contrast between this development and our situation:
So, while the Seattle School District will sell billboard advertising at athletic fields for $1 million per year, the NFL got the Snohomish School District to all a billboard into the school cafeteria spanning multiple years for a mere $10,000. Yes, we’re sure Snohomish School District officials will call it a banner, but when you consider it’s placement (located inside the school cafeteria, not out on the left field fence) where it takes about 15-20 percent of the width of the wall, and its proximity to the target audience (up close) it becomes a billboard. So there’s it hangs, a feel-good personalized billboard sporting the Seattle Seahawk’s logo. While additional cost analysis needs to be performed, the information we have so far indicates that the Snohomish School District may have short changed themselves by accepting the NFL’s no-bid grant. Perhaps the NFL is just acting like any business that has performed cost analysis and found a very cost-effective advertising program. Perhaps the NFL is just practicing good business and is not as benevolent as they would lead us to believe.
On 2014 January 09, the Washington State Supreme Court issued an order in the matter of McCleary v State of Washington, finding unanimously that the state was failing to meet its need under Article IX of the Washington State Constitution. The first sentence of Article IX reads, “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders.” It was noted in this decision that this was the only “paramount” duty the founders inscribed in the state constitution. As a result of this decision, the legislature was ordered (pressured) into finding additional funding for our public schools. Even though the budget is constrained by an economy in a prolonged recession, the state legislature boosted funding of our public schools to the tune of a billion dollars. This is good. But the situation we have now, as evidenced by more than just the Snohomish School District, is that our public schools now have another way to fund our schools; just rent out the students for advertising.
Through their actions, the Snohomish (and other) School District(s) have opened the doors for this type of business through the principle of equal access. We are hopeful by now that you realize what a terrible idea this is, yet this can become the new funding model.
While a cost analysis would need to be performed, it could be argued that the NFL benefited by using school resources for obtaining promotional materials, perhaps enough to go well above and beyond offsetting the $10,000 award presented to the school. In effect, it may be possible that Snohomish School District taxpayers actually subsidized the NFL in their quest to obtain promotional materials. We will address this issue a bit later.
We did find that state law (RCW 28A.335.040) does allow this type of activity, but with limitations. The passage we cite is:
“Every school board of directors is authorized to permit the rental, lease, or occasional use of all or any portion of any surplus real property owned or lawfully held by the school district to any person, corporation, or government entity for profit or nonprofit, commercial or noncommercial purposes: PROVIDED, That the leasing or renting or use of such property is for a lawful purpose and does not interfere with the conduct of the district’s educational program and related activities.”
The first limitation is that the school property needs to be “surplus.” We don’t see the use of school facilities that are in active use for the regular education of elementary school students to be considered as surplus. The next limitation is that it “does not interfere with the conduct of the district’s educational program.” While the school district may argue that both they and a vast majority of parents thought the NFL’s celebration assembly was an acceptable educational program, we argue that our children’s education was impacted and not in a positive manner. So if the law prohibits the use of surplus resources from being used if they interfere with the conduct of the districts educational program, what would this say for resources that were not surplus?
One thing I noticed under Section 7 of the NFL’s contest rules (regarding prizes) was the following statement:
“Sponsor reserves the right to record, photograph and/or videotape all those attending the activities in which the cheerleader(s), mascot or NFL player(s) participate in ("School Attendees") (and such recordings, photographs and/or videotapes shall be owned by Sponsor), and use such recordings, photographs and/or videotapes in any and all media now known or hereafter created throughout the world in perpetuity without compensation to winner or any third party.”
So let me get this straight. The NFL is not only using taxpayer resources, but are using public school resources during regular school hours, yet they are claiming ownership of the videos and other materials collected from this event. We may see about that. You see, like many states, the State of Washington has what is known as public records laws; specifically the Public Records Act (Revised Code of Washington, Title 42, Chapter 56). So the Snohomish School District may soon be receiving a public records request from me for these videos and other materials.
As I have pointed out previously, we pay voter approved taxes for the education of our children and can present property tax receipts to the school board that shows we have paid over $20,000 in taxes to the Snohomish School District over the years. This doesn’t include other state and federal taxes we pay from which the school district receives funding. So now, not only did the NFL’s grant money trump our tax dollars in determining the education of our children, but resulted in a degradation of that education. So if the Snohomish School District doesn’t mind me asking, can we have our tax dollars returned to us so we can pay for a real education for our children?
There are several examples of taxpayer funded entities that are not open to the public. The first that comes to mind is our national defense operations. You want to capture promotional videos inside Fort Mead where the National Security Administration is headquartered? We don’t think so. How about Area 51? Doesn’t even exist (or not admittedly until just a few years ago)! It would be very easy to compile a very long list of examples within our military and intelligence communities that would be off-limits to such activities.
Our local hospital district receives public tax dollars, yet would anyone even think to attempt to ask emergency room doctors and patients to become available for promotional materials just because a pharmaceutical company or medical device manufacturer provided that same hospital with a grant? Nope, we don’t see that happening.
Only on exceedingly rare occasions do we see video cameras inside our courtrooms, yet aren’t judicial proceedings open public records? Well, not always. Crime victims and witnesses are afforded the protection of their privacy and even their identity. While we can return to the example of Judge Judy, those people voluntarily waive their rights - even provided with incentives to do so - yet there is nothing requiring them to have their case aired for public consumption and there are certainly alternatives available (the classic courtroom) that does not impact the quality of the judicial proceedings in which they participate. These people are afforded equal justice no matter what their choice may be (to be on television or to enter the normal courtrooms), yet can the same be said of the equality of our children’s education just because we refused to allow them to be used in promotional materials for the NFL?
How about our correctional institutions? It seems that prisoners may actually have greater protections that public school children, or would prisoners face a lock-down situation if they failed to waive their rights to their yard time if a business wanted to promote their new line of exercise equipment?
With all of these examples of (un)equal public access, do these public school officials not see any conflicts in what they are doing?
Call it bending the rules or just taking liberties with the rules, our challenge here is that we believe the contest rules put forth by the NFL are not just unreasonable, but unenforceable.
At the time I began to seek corrective action I was unable to obtain an exact copy of the NFL Play 60 Super School contest rules that were in effect for the contest that was won by Cathcart Elementary, but I have since been able obtained a copy of the contest rules in effect for 2013. While there could be some differences, I’m willing to bet that they are similar if not exactly the same. I have listed some of these contest rules previously. Let’s address a few of those rules.
Within the section regarding “Prizes” is the following passage:
“The NFL team celebration may not be recorded, photographed and/or videotaped by winner or any third party for any commercial purpose unless otherwise approved by Sponsor. Sponsor reserves the right to record, photograph and/or videotape all those attending the activities in which the cheerleader(s), mascot or NFL player(s) participate in ("School Attendees") (and such recordings, photographs and/or videotapes shall be owned by Sponsor), and use such recordings, photographs and/or videotapes in any and all media now known or hereafter created throughout the world in perpetuity without compensation to winner or any third party. School Attendees (and, if minors, their parents or legal guardians) will be required to execute and return a liability and publicity release prior to the NFL team celebration at the school.”
The last sentence in particular is at the crux of our argument; that no contest entrant, whether it’s a member of the parent organization or a school administrator, had the authority to speak on the behalf of anyone else, let alone all of the school attendees. It would seem to me that any first year law student would recognize this as grossly overstepping the limits of authority, but somehow licensed, practicing attorney’s felt comfortable peddling this paper. I really have to wonder if anyone really read the contest rules. Maybe this is exactly what the NFL was counting on.
Towards the bottom of the first paragraph regarding the “Miscellaneous” rules is the following passage:
“Sponsor reserves the right, in its sole discretion, to modify, suspend, and/or terminate this Contest (or any portion thereof) for any reason, including should virus, bugs, non-authorized human intervention or other causes, including, but not limited to, war, strikes, and/or acts of God, corrupt or impair the administration, security, fairness or proper play of the Contest and, in the case of termination, at its discretion, select winner(s) for Markets(s) at issue from those eligible, non-suspect Entries received for such Market(s) prior to event requiring such termination using the judging procedure outlined herein.”
Interestingly, the NFL’s own contest rules mention “corrupt or impair the administration” and “fairness or proper play” as a reason to modify, suspend or terminate the contest. Yet, obviously, the NFL sees no issue with the corrupting influence their prize money has on school administrators or has any issues with the fairness of the implementation of their contest rules. And I want to remind you that the NFL was informed by me in the days immediately following the celebration assembly at Cathcart Elementary regarding the objectionable and unfair treatment of our children during that event. Yet what was the NFL’s response? Nothing! It was business as usual for the next two seasons. My concerns never mattered to them.
Towards the bottom of the paragraph headed “Ownership/Assignment of Rights” (second paragraph in the “Miscellaneous” rules) is the following passage:
“Entrant's submission of an Entry constitutes his/her representation of eligibility, consent to participate in Contest and consent for Sponsor to obtain, use, and transfer his/her name, address and other information for the purpose of Contest administration.”
Basically this is the same argument as before; that the contest entrant did not have the authority to enter a contest on behalf of all of these students. Regardless of this rule, the NFL has to know this is out of bounds. The contest entrant certainly did not have our consent to enter the contest especially since we never knew anybody from the parent organization or school district even entered this contest.
Before I found the NFL Play 60 contest rules for 2013, I found some contest rules that used the following language:
“Attendees (and, if minors, their parents or legal guardians) may be required to execute and return a liability and publicity release prior to the visit. Grand Prize award is dependent upon applicable school’s or community center’s full approval and cooperation.”
If this was the language used for the contest I am questioning, the NFL uses the weasel-word or phrase, “may be required…” This type of phrasing is used just to give them a way to slip or weasel out of any controversial or compromising situations. If this was the actual language used then I would like to offer a more sinister explanation; that the NFL used a bait-and-switch tactic, where the demand for publicity materials wasn’t made until after the winning school was announced. The potential loss of a substantial monetary award would serve as pressure to comply with their demands for publicity materials.
If one reads the contest rules there are a few things that should be readily noticeable. First, they were written by lawyers. I mean, just try reading the third paragraph of the miscellaneous rules; it’s one long run-on sentence. In my experience, I have never encountered written materials like this except for legal documents. Second, the NFL shifts the burden of compliance to these rules upon the contest entrant or the winning school. Somehow this seems to free them from actual responsibility. But it does not. What these rules should tell you is that the NFL knew exactly what they were doing.
Regardless of the exact set of contest rules in place by the NFL pertaining to the publicity aspects of the Play 60 contest(s), we feel that the language of these rules needs to be addressed, with focus on the breadth and scope of the group to which the rules would apply. From this approach, we see two possible paths:
In the first case, we wrap right back into the argument pertaining to who had the authority to represent us and all of the collective participants in a business agreement with a private enterprise. No individual(s) were given collective bargaining authority and we cannot imagine that this contest met any competitive bidding process which would be customary with a public school district. So just who assumed to have this authority to speak for us and our children? What happened to our freedom to choose?
In the second case, if the NFL used vague language within the contest rules then we may be looking at a variation of the bait-and-switch tactic. Using language like we saw a few paragraphs ago, “Attendees may be required to execute and return a liability and publicity release…” would be so vague that no reasonable person could be expected to interpret as to eventually include a group consisting of several hundred members. If the NFL did not specify that the publicity aspects of the contest would include such a large group of individuals, then we feel that this is a very significant distinction and omission on the part of the NFL. While it may be customary for the contest entrant(s) to agree to be included in any publicity opportunities sought by the contest sponsor, this would be strictly limited to only those individuals who actually entered the contest. Unless the contest entrant(s) had prior knowledge to the breadth and scope of the publicity aspects of the contest (case 1 above), the NFL would have to have made their publicity demands after the award had been announced; effectively dangling the bait in front of the “winner” and pressuring them into complying with their exorbitant demands for publicity materials.
So now the argument converges down the same path. In either case, the NFL had to have acted with the knowledge that the contest entrants lacked the authority to represent such a large group of individuals. We believe this can be proven by observing the actual participation rates of the award winning schools, as we expect that no school achieved a 100 percent student participation rate. We also believe this can be reasonably demonstrated by the forethought the NFL devoted in developing multiple layers of waivers; that the NFL had the foresight to have the ability to preserve some legal protection by having additional layers of waivers should one layer - the one we are challenging (the broadest layer) - fail to stand against any legal challenges.
Since it can be argued that the NFL cannot reasonably expect any school to obtain signed waivers for all of their students, the question that follows is, what did the NFL expect would happen those students whose parents or guardians did not sign the waiver? We argue that it was not unreasonable for the NFL to have projected this scenario and, therefore, can and should be held liable for creating an illegitimate class distinction - between those who cooperated with their desires for promotional materials and those who did not cooperate - and the consequences these children suffered as a result.
So who is claiming to have the authority to act on our behalf? Who entered this contest without any prior announcement to other parents or requesting any public input? Also, did either the parent organization or school district have prior knowledge that there would be conditions attached if they were selected as a winner? If so, who determined the value of our children’s presence in promotional materials? If the NFL, parent organization and Snohomish School District claim that this contest was entered into strictly on behalf of the school, then why involve the children at all? Why not present the award to adult representatives from the parent organization or school? After all, the students did not and could not legally enter such a contest themselves.
The NFL had other options for gathering any promotional materials from their award winning schools and didn’t need to demand that their celebration assemblies be filmed during regular school hours. Options available to the NFL include:
So why did the NFL choose to demand access to the entire student body? We presume it was to maximize the public perception that the NFL was engaged in such charitable good deeds. Perhaps the NFL didn’t think student turnout at voluntary events would be great enough to provide the publicity image they wanted to present. We simply believe that the NFL consciously chose to maximize the public perception of their alleged charitable acts.
It seems like this has become the issue du jour, especially with the recognition of the use of electronic media to engage in acts of harassment, intimidation, or bullying. Some people have suggested that the pendulum has swung too far and that we are too willing to apply the bully label to any type of seemingly offensive actions. While we do want to be mindful of that, we would like to present an argument that the NFL and participating schools are acting in cooperation to commit a form of bullying.
As we have researched bullying, we have run across several definitions so to be as fair as possible we have listed and referenced some of them here. We will start at the dictionaries which provide very brief definitions, then other sources that provide more comprehensive definitions. Please note that some impertinent passages may have been removed.
Pacer’s National Bullying Prevention Center:
"Many definitions also include:
Stop Bullying (government):
"Bullying is unwanted, aggressive behavior among school aged children that involves a real or perceived imbalance of power. The behavior is repeated, or has the potential to be repeated, over time. Bullying includes actions such as making threats, spreading rumors, attacking someone physically or verbally, and excluding someone from a group on purpose."
Like most (hopefully all) school districts, the Snohomish School District has a policy against bullying. We’re going to extract a couple of the pertinent passages from that policy:
"The District is committed to a safe and civil educational environment for all students, employees, volunteers and patrons free from harassment, intimidation or bullying. “Harassment, intimidation or bullying” means any intentional electronic, written, verbal, or physical act, including but not limited to one shown to be motivated by any characteristic in RCW 9A.36.080(3) (race, color, religion, ancestry, national origin, gender, sexual orientation including gender expression or identity, mental or physical disability) or distinguishing characteristics such as but not limited to physical appearance, clothing or other apparel, socioeconomic status or weight when the act:
"Nothing in this section requires the affected student to actually possess a characteristic that is the basis for the harassment, intimidation, or bullying. Harassment, intimidation or bullying can take many forms including, but not limited to, slurs, rumors, jokes, innuendos, demeaning comments, drawings, cartoons, pranks, gestures, physical attacks, threats, or other written, oral, physical or electronically transmitted messages or images. “Intentional acts” refers to the individual’s choice to engage in the act rather than the ultimate impact of the action(s). False reports or retaliation for harassment, intimidation or bullying also constitute violations of this policy."
There’s more to the Snohomish School District’s anti-bullying policy, but that’s the heart of it.
Okay, let’s digest/dissect all of this and see if and/or how it may apply. We are not dealing with physically abusive behavior, but there are several factors that seem directly applicable.
The imbalance of power is present on two levels.
First, the National Football League is a large and powerful organization who employs highly skilled lawyers and professional media managers. Many people probably assume that NFL lawyers would have checks in place that would prevent any illegal or unethical acts on their part so few people, if any, are likely to question what they are doing. The NFL is a highly popular organization who provides a highly desirable entertainment product and their franchise clubs generate a great sense of loyalty, especially within their local market. Let’s not forget about the money and the influence it has to get people to look the other way; to ignore and potential negative associated behaviors. Finally, you have been deemed as a “Winner.” “Woo-hoo, look at us, we’re winners!” Each of these psychological factors on their own could warrant a strong enough argument that the NFL wields significant influence and power, but when you combine all of the factors above their power becomes great, even insurmountable.
Second, school district administrators and teachers wield great power over the students in their care. Like us, we assume most parents teach their children to respect authority figures, such as police officers, firefighters, doctors, teachers and school principals. Remember that saying we tell our children, the way you remember to distinguish the difference in how you spell “principle” and “principal” is that the Principal is your “pal.” Now consider the age difference. What 5-year-old child is going to contest a situation when their teacher led them away from the event in question and into a separate room, all while telling them that they were just following their parent’s wishes.
Now, combine both of those factors above and our children are rendered absolutely powerless.
Present. Not the physical harm, but the emotional harm is definitely present. The extent or degree of harm is debatable. On an individual level it fostered anger and resentment for our children. From their perspective, it represented a breach of trust by both their parents and school staff to treat them fairly. They had incurred a perceived injustice with no remedies available to them. Or children had to suck it up and live with it. Eventually they (seemingly) got over it and moved on… almost. To this day our children show no interest in football. In fact, on the rare occasion the Seattle Seahawks are on the television which is preventing our oldest child from watching one of his/her shows we hear the objection, “I don’t care about no stupid Seahawks.” Yes, you NFL guys really won a fan there and just wait because they’ve been learning some more “colorful” adjectives now.
While the harm on an individual level may not seem all that great we return you to recall the math we did earlier and extrapolated the pool of potential victims to over a thousand. Now we’re no longer talking about something insignificant. Let’s continue this discussion as we address the topic of repeated or habitual behavior.
Although some of you may say that there are only a couple of kids involved here, we are quite certain that this is not the case. Without additional information we can only project, with significant inaccuracy, the true extent of the situation. This is one of the more difficult aspects of the situation that we attribute in our inability to secure help from government officials or legal professionals. On an individual basis it may seem rather insignificant because the duration of the event was not that long and that the bully has gone away… skipped town and isn’t expected to return so everything will somehow be ok. You’re expected to just put it behind you. At least that’s what we believe is a part of the NFL’s strategy. No, you are talking to the wrong parent here. This is wrong and it needs to stop!
When reviewing the definitions of bullying, one of the aspects pertained to the duration which was defined as: “Many definitions indicate that the bullying is “repeated”, but the reality is that bullying can be circumstantial or chronic. It might be the result of a single situation, such as being the new student at school, or it might be behavior that has been directed at the individual for a long period of time.” I believe that what is happening with NFL Play 60 can be classified as both “circumstantial” and “chronic.” On an individual basis the situation is a circumstantial one-time occurrence. However, since the NFL is repeating this circumstance as they move from school to school, then this behavior becomes chronic and habitual.
One important way to look at this - the only way, really - is to employ the concept of “counts” as used by our judicial system. When the perpetrator of a crime is charged in court, the prosecutors will provide a list of counts or the number of times the defendant has committed the acts for which they are being accused. It doesn’t matter whether the accused has robbed a single person on ten separate occasions or robbed ten individuals during the same crime, the number of counts equal ten. So how many counts - whether it’s called exclusion, discrimination or any other name - can we attribute to the NFL under their Play 60 program? A hundred? A thousand? More? What’s important to acknowledge is that the sum total of what the NFL has been doing over the years can be labeled as pervasive. So we ask, just how many children have been displaced from their regular education by the NFL in their desire to promote themselves? Whatever it is, we believe it can be classified as both repeated and habitual.
Call it trickle down coercion that snowballs along the way. It starts with the parent organization, who gets the ball rolling by entering the contest. They put in an effort that nobody wants to see go to waste. Then they get buy-in from school administrators who give their stamp of approval. Then they win. The euphoria rises and before you know it the NFL is asking for promotional materials… from the entire school student body. If there are any questions, the NFL just points back to the rules that states that they agreed to provide promotional materials. If there are any objections they can simply state that if they are unable to abide by their rules - however imprecise they are defined - they simply threaten to move on to the next winner on the list. Eventually they will find a school district that will accommodate their demands. Besides, they now have a track record of success and nobody has challenged them, so everything must be fine. Next comes the delivery of the waivers to the parents. Again, the emphasis is on the money (that every school can use and nobody wants to turn down free money), that this was a cumulative effort on the part of the parent organization and school administrators (but mainly your fellow parents), and that we’re winners. But that isn’t the end of the coercion.
Loyalty! A very powerful emotion. Let’s not confuse loyalty with something that needs to be earned like respect or trust. Yes, loyalty can be earned as well, but loyalty can be and often is blindly attached to something - like the home team - when there is no rational basis for making that attachment. In these instances, a person’s mind is already set; raw emotion is firmly in control and a person may as well remove their brain from their skull because there will be little or no critical thinking involved. At least that’s what it seems for most people. I have discovered that few people consciously recognize just how powerful an emotion loyalty is and how difficult it is to neutralize. And in this case there is the multiplier effect where you not only invoke this emotional attachment to you local NFL franchise, but you include your children’s school as well. Now just who wants to be identified as the ungrateful rat - and that’s probably putting it very mildly - who challenges this scheme?
The peer pressure is enormous and the situation is complex. Not only do you foster an environment to coerce participation, but you become confident that nobody will challenge you. Now, to add another layer of complexity, the children are spared the coercion factor, but the decision makers for these children are not spared. All the while the parents are removed from the feeling of harm so the bullying element becomes less discernible. Now the emotional elements between parent and child must align before the full effect is realized.
The case for justification and rationalization has pretty much already been laid out. The emotional effects of being declared a winner compounded by undesirability to waste the efforts of those who spent the time and made the effort to enter the contest along with the desire to collect a significant prize is cause not only to justify playing along, but stifles any desires to challenge what they’re doing. It then becomes very easy for school officials to justify what they are doing as so many parents decide to sign the NFL’s waiver. Soon, a critical mass is reached and any thoughts to the contrary - if they were ever present - are soon cast aside. And as far as the children are concerned, school officials can simply deflect any real responsibility from themselves back to the parents. After all, “it was your parents who wouldn’t let you go.” But that’s not correct. We would have gladly allowed our children to attend the celebration assembly; we just didn’t want to promote the Seattle Seahawks and the NFL and participate in their hypocrisy. Remember, this is a false choice.
By now you should realize just how complex the situation really is. The NFL creates a nice buffer by getting school district officials to do their dirty work. And like we mentioned before, school administrators and teachers can somehow justify their actions by just blaming the parents because we refused to allow our children to attend the celebration assembly. It all trickles down, but in the end our children were treated like second class citizens just because we refused to show our appreciation, or as Homey D Clown would say, “To kiss the ring of the man.” Well, Homey goes on to say, “Homey don’t do that.” And neither did we.
Although the concept of an impact to a child’s education is not specified in any of the general sources that help define bullying, it is defined in the Snohomish School Districts policy against harassment, intimidation, and bullying. In that policy it states, “(when the act) has the effect of substantially interfering with a student’s education.” We’re sure the focus of the school district’s argument would be on the word “substantially” in their efforts to minimize the impact to our children’s education. We can hear them now, “It was only for an hour.” So what? We don’t care if it was for just a minute.
An analogy to this situation would be to see what happens to a person if they attempt to rob a bank for just a penny. Go ahead and see what happens if you attempt such a foolish act. We doubt the authorities will appreciate your “It was just for a penny” or “It was just a joke” excuse. You will still be arrested and may go to jail. We’re sure you would at least pay a substantial fine. We take our children’s education and well being seriously and our children were essentially robbed of a piece of their education by the NFL for selfish reasons. No excuses!
Not only do we believe that we can make the case for bullying, but we contend that the NFL is acting as a very big bully. Not just that, but that they are acting as the super bully in a complex system that involves school officials who act as lieutenants in which they are able to coerce enough parents to go along as to create a mob. This creates an environment that is very difficult to challenge and break down.
Oh what a complex weave we have here. And in my own opinion I must admit the genius of it all. The stars really line up on this one to create an opportunity that few others can even dream of enjoying. I believe this could become a classic study in group think and diffusion of responsibility. I hope some psychologist(s) pick up this ball and run with it.
In this section, we will address some miscellaneous issues we feel are relevant regarding our relationship with Cathcart Elementary and the Snohomish School District.
Another disturbing and somewhat unique aspect that applies to our youngest child is that we paid $3,310 to the Snohomish School District for half of the cost of the all-day Kindergarten program. Basically, the following is our tuition agreement for the full-day Kindergarten program:
“I understand that the district receives funding from the state for a half-day kindergarten program running 180 days. Because I am interested in an optional program for my student that involves attending Kindergarten for a full day, running 180 days, I agree to reimburse the Snohomish School District for the costs associated with providing my student the full-day program beyond what the state provides. In consideration of the enhanced program, I hereby agree to pay $3,310 per enhanced half-day session, up to 180 total maximum days.”
No longer are we just another taxpayer, but now we are a private client as well. We feel this fact should provide additional leverage in this case. Any penalty we suffered can no longer just be classified as a form of taxation, but was a genuine, out-of-pocket penalty. This is just an additional insult to the injury; that we actually paid part of the cost to have this child face an environment of exclusion and a degraded education.
The Cathcart AIM statement reads: “Cathcart Elementary students will demonstrate on-going academic achievement and responsible citizenship.”
Let’s take a closer look at the “responsible citizenship” portion of the Cathcart AIM Statement. Cathcart students learn responsible citizenship from their interactions with the adults in their lives. This group starts with their parents, but also includes other family members, teachers, clergy, coaches, etc. Children learn their citizenship responsibilities by being taught lessons, but primarily by observing the citizenship examples their adult mentors display in the conduct of their day-to-day living.
So now we ask, what citizenship responsibilities did our children and all of the Cathcart students learn from the NFL Play 60 celebration assembly? Well, presently, we don’t believe many of the Cathcart students are actually aware that some of their peers were excluded from this event. However, our children are acutely aware that they were excluded and feel that they were not treated fairly. This was demonstrated by their behaviors in the days immediately following the celebration assembly. For example:
So, again, we ask, what were our children supposed to learn about responsible citizenship during this event? More importantly, what kind of citizenship responsibility was demonstrated by the people who are supposed to help mentor our children and set the standard? In our opinion, school district administrators and teachers failed in their duties that day.
When we enrolled our children at Cathcart Elementary, one of the forms in the enrollment package from the Snohomish School District pertained to Internet Access for Students and Photo / Videos of Students, along with an Opt-Out section. Within the Opt-Out section was the following options:
We chose to opt-out of the photos or videos option for each child during enrollment, therefore our choosing to decline the NFL’s Waiver of Liability and Release should have come as no surprise. In fact, just having these options within the enrollment package indicates that not only were we not the first parents to request to opt-out of photo or video sharing, but that enough other parents had made this opt-out request previously as to warrant its inclusion on a standard form. Consequently, school district administrators had to have a reasonable presumption that not all students would be included in the NFL Play 60 celebration assembly; that school district administrators had reasonable prior knowledge that some students would be segregated during this event.
Cathcart Elementary has already implemented a successful voluntary extra-curricular exercise program for its students during the lunchtime recess. As evidence of this exercise program, our children possess small plastic feet which they earn after reaching specific milestones. For example, our children earn a white foot after running their first cumulative mile, their black foot for reaching the 5 mile mark, and a different color foot after reaching every 5 additional miles. Both of our children participate in this activity and our youngest has already reached logged in a cumulative 45 miles in just the first 3 months this school year. Obviously, the lessons of exercise and physical fitness have already been instilled by the staff at Cathcart Elementary.
There are state laws regarding the removal of children from their classroom. A scan of the Revised Code of Washington shows that there laws are pertaining to public health and disciplinary matters, but we weren’t able to find any pertaining to the removal of students from their classroom because they chose not to engage in certain activities and especially for promoting a private business or nonprofit organization. The section of law that seemed most applicable was RCW28A.600.022 and the first article of that section reads:
“The rules adopted pursuant to RCW 28A.600.010 shall be intercepted to ensure that the optimum learning atmosphere of the classroom is maintained, and that the highest consideration is given to the judgment of qualified certified educators regarding conditions necessary to maintain the optimum learning atmosphere.”
So here we are again discussing the quality of the education our children received while they were in their “accommodated” classroom setting. Does what we have described sound like the highest consideration was given to maintain the optimum learning environment for our children? We think not.
While we were scanning the state laws, we ran across another chapter that seems applicable. RCW 28A.150.211 is titled, "Values and Traits Recognized" and reads as follows:
"The legislature also recognizes that certain basic values and character traits are essential to individual liberty, fulfillment, and happiness. However, these values and traits are not intended to be assessed or be standards for graduation. The legislature intends that local communities have the responsibility for determining how these values and character traits are learned as determined by consensus at the local level. These values and traits include the importance of:
While law does allow the local communities to determine how those values and traits are learned, they also specified that they need to be determined by a consensus of that community. The dictionary defines “consensus” as a general agreement within a group, group solidarity, and even unanimity. We argue that there was no consensus at all. In fact, there was no discussion at all. The school’s participation in this event was already decided before our children ever brought the announcement home. The word “unanimous” is also associated with the definition of consensus. Yes, a vast majority of the parents went along with the idea which could be construed as a general agreement, but there are elements of coercion present which skews the idea that an actual consensus was formed or that the community was in a near unanimous agreement. There was at least one dissenting opinion that was expressed to more than one school official and on more than one occasion prior to the celebration assembly, but that dissension was stifled.
So let’s look at some of these values and traits that the legislature defines as “essential to individual liberty, fulfillment, and happiness.” Let’s look at the example Snohomish School District administrators set for our children and the effect it has had.
You need to consider that everybody, not just children, learn more from example than any other method and the example set by the school district for my children was not just poor, but damaging. Our children had no liberty, felt no fulfillment, and were very unhappy regarding how they were treated during the NFL Play 60 celebration assembly. In effect, the school’s adherence to this chapter of the law was deficient. Like our children, these principles were sacrificed in the name of fundraising and because somebody made them feel like winners. Well, not everybody felt like a winner.
Let’s not ignore some of the school rules that seem to have been compromised in the process. One of the playground rules simply states, “All games are open to everyone (there are no closed games).” Would someone from the school district please explain that one to us? No, that is not just a rhetorical question because we don’t think anyone from Cathcart Elementary sees the correlation between this school rule and the NFL Play 60 celebration assembly. Yes, this was a planned event and it fell outside of the normal definition of recess so it can be argued that there were reasons for placing limitations on participation. But do you really think that mattered to 5- and 7-year old children? No. They knew this event went to the playground and it was a closed event, especially to them. But what school district administrators really need to explain is the basis for this rule and once they do then we believe you will hear them apply a double standard to make their exception. While they may preach the principles of equal access and equal opportunities for all students, the NFL Play 60 celebration assembly was anything but equal.
To provide another example we would like to turn your attention to an annual school tradition, the Valentine’s Day party. This event was held when I was a kid and it has been held each year at Cathcart Elementary while my children have been in attendance. I would imagine it is an event that is held in most elementary schools across the country. On one of the periodic announcements our children bring home is, “Room 103 News.” This is published by Barbara Wagner who was our oldest child’s second grade teacher at the time and is now our youngest child’s second grade teacher. When Mrs Wagner announced the Valentine’s Day party she states, “Opening the Valentines cards is the highlight of the party. Cards must be written for every student in the classroom or no one.” Got that? "Everyone or no one." So, Mrs Wagner, would please explain the purpose of that specification? Isn’t this to prevent less popular students from being marginalized; to prevent the other students from making certain classmates to feel excluded for superficial reasons? You seem to grasp the concept here, so why could you not grasp this concept when the NFL marginalized our children for superficial reasons? Did the money make the difference? Were you just doing what Casey Bowers told you to do? What caused you to treat this situation differently than the annual Valentine’s Day party?
One thing we shouldn’t overlook is the rights of the teachers. That’s correct, the teachers. We know we have placed blame on the teachers involved for failing to recognize the situation as a violation of the rights of the children under their supervision, but what about their rights? Wouldn’t teachers be required to sign the NFL’s waivers as well? After all, as I view these videos there are plenty of teachers on the sidelines to keep a watchful eye over their students, just like they do at any other school assembly. So we must ask, what kind of employer even asks their employees to sign away their rights to a third party as a part of their job performance? Would this not present a conflict of interest in itself and even constitute a hostile workplace? Did any of these teachers feel pressured into signing away their rights in order to either keep their job or in fear that it could be used against then when it was time to conduct performance evaluations?
This type of pressure is significant and shouldn’t be dismissed. I can recall a time when I felt pressured to donate to the United Way. I was a summer hire working a very good job that paid union scale. For a student who was paying out-of-state tuition and housing expenses, this was a very desirable job and like most students I needed to save every penny to pay for my college education. Then one day, one of the union members - a person very high on the union ladder - came around to solicit donations for the United Way. I was taken back a bit as this was unexpected. I was able to brush this guy off, at least for couple of days, but he was persistent and expressed his desire to meet his goal which was to obtain a donation from every member on his crew. And with a pleasant grin, I was also told I was the only hold-out on his crew. Whether this was true or not was insignificant. I could only take his word at face value. Now I knew that I wanted this job during my next summer break and I didn’t want to make waves. Finally he gave me an out, if that’s what you want to call it, in that he only needed to obtain a small donation to meet this goal. If I recall, about $10 dollars was suggested. This represented just over an hour’s wages (good money in those days). So I gave in. More like caved in. Did I feel pressured? You bet. Many years later the United Way spoke out that they had become aware of this tactic and voiced their disapproval. I suspect that the United Way had knowledge of this type of activity years earlier than they admit and I also suspected that they were just saying this to head off some negative publicity. The validity of this didn’t matter, because I had experienced this kind of pressure tactic and it (obviously) remains fresh in my memory, which is why I will never donate any money or time to the United Way. And by the way, I would like to remind you that the United Way is an NFL Play 60 partner. How about that!
Most workplaces have non-solicitation policies to prevent this kind of conflict from arising. How would you feel if your boss came by with the sing-up sheet to purchase Girl Scout cookies for their daughter or asked you to contribute to their political cause? Wouldn’t you feel pressure to “donate” even though you were facing personal financial constraints or you just don’t want to support your bosses cause? It doesn’t matter how noble that cause may be or how nice your boss is, this is still unwanted pressure and most workplaces acknowledge and discourage this practice. Nobody needs this kind of pressure just to earn a living and this practice is now viewed as an abuse of authority.
So, we’re willing to bet many of these teachers did feel pressured and we are asking these teachers to step forward and voice their concerns. Hopefully we have opened enough eyes to prompt some teachers to step forward and speak out at least on their own behalf, if not for these children. Additionally, we hope that leaders within the teachers unions are paying attention to this issue because we were unable to find a non-solicitation policy for Snohomish School District personnel when we conducted an online search of their public records.
Follow the money. Yes, that popular phrase still applies and this case seems no different. What follows is a brief discussion regarding some of the financial factors behind the NFL Play 60 program.
From the school’s perspective, their motives seem purely financial. Any claim by the NFL that the celebration assembly was strictly to promote physical fitness for children fails for two reasons:
There is physical education (“PE”) teacher on staff at Cathcart Elementary and I know our children attend a physical education class on a regular basis. Stressing the importance of physical activity is the underlying principle for attending a PE class. Additionally, the staff at Cathcart Elementary had already implemented a successful voluntary exercise program during the lunchtime recess. We know this because our children participate in this activity. So we must ask, what new information did the NFL bring to these students? We contend that the NFL presented nothing new in this regards. By restricting the celebration assembly to only students whose parents signed the waiver, the NFL cannot claim their purpose was to present the importance of physical fitness to all children.
The motives of the NFL are more speculative and would require some additional investigation. While we are sure the NFL will be quick to point out the $11,000 in awards and that the purpose of the celebration assembly was to promote physical fitness and healthy lifestyle, we view this as a distraction away from the NFL’s primary motive; that of promoting themselves. We would like to offer the following reasoning behind our opinion:
Evidence of the promotional aspect of the Play 60 program is plentiful. NFL Play 60 commercials are aired during nationally televised games and websites are dedicated to the NFL Play 60 program. So why is the NFL so interested in promotional materials that include children? One possibility is that this is just a standard commercial campaign. Yet another is that the NFL may be attempting to address a negative public image brought on by the bad behaviors of several NFL players. After all, NFL players are supposed to be role models, right? However, it wouldn’t take much effort to compile a list of some of these role-model behaviors… physical assaults (and murder?), weapons use and associated violations, alcohol and drug use and their associated misbehaviors, and animal cruelty just to name a few. Bounty programs have been exposed where coaches reward players for injuring opposing players. Additionally, player safety issues have shed additional light on a corporate culture that simply chose to look the other way. So we ask, what better way can be found to show the NFL in a more positive light than to film NFL players promoting something positive to children. But what the NFL is not showing the public is that not all children are included in these events.
Another reason the NFL may be targeting schools is based entirely on the cost of engaging in business. When one looks closely at the financial aspects, perhaps the NFL has slyly discovered a method for lowering their commercial production costs. After all, how expensive would it be to produce such promotional materials if the NFL had to use a production studio and hire actual actors?
To simplify a financial analysis, let’s say you hold all of the overhead costs to be the same (cost of equipment, technicians, etc.) and focus just on the costs of the location and labor. What would it cost to rent a facility and hire 400 children to film these promotional materials? To use an industry term, many of these children were just “extras,” but up to 50 students were active participants. We do know that the location was obtained free of charge, courtesy of the taxpayers (unless the NFL wants to argue that is what the grant was for, but then that would prove my point and be like shooting themselves in the foot). We must admit that without access to experts in advertising and marketing, the labor costs would be difficult to determine. However, we believe this would be worthy of some investigation. One other thing we would like to know is if the method the NFL is using allows them to skirt those pesky child labor laws.
While we acknowledge that the financial and surrounding legal issues are complex and difficult to determine, we have to wonder if the NFL is just doing what every business attempts to do… control costs and limit liability. We certainly know as evidenced by the waiver that the NFL desired to limit liability. But let’s get real here… property damage and injuries? What kind of property damage was really going to occur by creating a basic obstacle course using traffic cones? What kind of injuries did the NFL expect these children to sustain by running the obstacle course? Of course they did provide some weights weighing up to five pounds and we suppose some kid could drop one on their foot or something similar, but isn’t that what insurance policies are for. How high could the premiums have been for such a low risk activity? Do you really believe this was the real reason for restricting the attendance of audience members? We don’t think so. This leaves only one reason - the real reason - why our children were not allowed to attend the assembly; that the NFL wanted as many children as possible present in their promotional materials at the lowest possible cost. Perhaps the $10,000 “donation” now seems rather frugal.
As we study the financial issues, one of the issues we want to address is the NFL’s concept of what they call an “award” or a “grant.” From the NFL’s perspective, both of these terms are synonymous. We would like to offer some other synonyms: inducement, enticement, and bribe come to mind. However, to be fair, let’s start with a more neutral term, such as “payment,” and let you decide.
We believe when someone hears the term “grant” that the first thing that comes to mind is that money is being provided out of generosity. We hear of many types of grants, such as education grants and research grants. Often these grants are to address specific projects to help communities, to bridge gaps in services, or to provide resources so researchers can complete critical projects and publish results. NFL Play 60 is labeled as a health and fitness grant and it does provide money to local schools to help achieve those goals. We aren’t denying that. However, what we are arguing is that the NFL stepped outside the boundaries of decency by demanding access to entire school student bodies so they could promote their business.
This isn’t just some minor detail, but goes to the heart of what we feel is a part of the deception of the NFL Play 60 program. A payment was made to these schools in exchange for promotional materials; something of value. It’s as simple as that. And when a person -or even an entity - provides money that influences the decision of a public official which benefits the provider of that payment, then isn’t this the basic definition of corruption? It seems obvious to me that the payment made by the NFL acted to induce public officials to operate in contrary to established school rules and principles of fairness and equality to serve the desires of the NFL. What this payment accomplished for the NFL was an ability to gain easy access to entire schools full of children.
So I ask again, was this really an award or a form of corruption? I will address the issue of corruption a bit later. For now, all I want to focus on is what the NFL called their payment and whether or not the name they attached to this payment is appropriate.
According to several websites, NFL Play 60 is a charity that promotes health and fitness to school children. , However, in practice, the NFL’s definition of charity doesn’t seem to conform to our understanding of what constitutes charity. So let’s start with the dictionary:
A more legal definition is stated as:
Our general understanding of charity is to give something to individuals or groups who are in need or some acts that benefit society in general. The underlying principle guiding acts of charity is that of giving. However, the NFL is taking something of value from these celebration assemblies; perhaps something of far greater value than their fitness grants. Now, does this sound like charity?
In our opinion (and that of many others), true charity is practiced anonymously. While we can understand that some organizations would like to obtain some promotional materials, we contend that this should have been restricted to just those few individuals who actually entered the contest. We also believe the NFL could have also obtained plenty of promotional materials through voluntary participation. However, by demanding access to the entire student body for promotional purposes the NFL goes beyond charity and enters into the realm of exploitation, especially when non-cooperative individuals are excluded from their charitable events that are openly advertised as being all-inclusive. While the NFL may not be stating this specifically, the all-inclusive nature of the program certainly seems to be implied. So while the NFL isn’t outright lying, they aren’t telling the truth either. But as many people will agree, an omission of the truth as is our experience shows is a feint, which equates to a lie.
If one dismisses the NFL’s claim that NFL Play 60 is a charity and views the program with an open mind, we believe one will discover that their “awards” or “grants” are actually payments for access to children to conduct an advertising campaign. The evidence lies within the NFL’s waiver: the rights to all of the images, videos, and biographical information of all of these children are not retained by any charity, but by the NFL … “for any purpose whatsoever,” … “throughout the universe in perpetuity” … “without any further action required or any consideration owing to me or my child.” The NFL is acknowledging that these images and videos do have tangible value; otherwise they would not exclude those individuals who refused to give up their rights. Let’s look through the NFL’s smokescreen and view the NFL Play 60 program for what we believe it really is; an advertising campaign contained within a feel-good wrapper that promotes the NFL.
There are many references to hypocrisy in religious texts, with this one probably the most widely recognized by our citizens from the book of Matthew: “Therefore, when you do a charitable deed, do not sound a trumpet before you as the hypocrites do in the synagogues and in the streets, that they may have glory from men.” Or this reference from the Quran: “And (also) those who spend their wealth to be seen by the people, and believe in neither Allah nor in the Last Day. And he to whom Satan is a companion, then evil is he as a companion.”
You be the judge, but from our point of view the NFL’s concept of charity is severely lacking true generosity and is simply hypocritical. In fact, this is what we will refer to as just the first instance of the NFL’s hypocrisy hat-trick.
As I’ve said before, we’re not accountants so we’re not sure what the tax implications may be. I’m willing to bet that the entire cost of the awards and operational expenses for the NFL Play 60 program are claimed as charitable contributions when the NFL submits their income tax returns. To my knowledge, those are deducted after adjusted gross income is calculated. Let’s say, however, that the NFL claimed all of the awards and operations costs as a business expense. Then, to my knowledge, these costs are deducted against any income before adjusted gross income is calculated. Either way, this just seems to become a wash and just a matter of which line the expense is listed. So, I’m not sure what the tax implications may be. Still, the actions of the NFL do not seem to meet the definition of a charitable organization as specified in Section 501(c)(3) of the Internal Revenue Code. The passage in particular from that code reads:
“The organization must not be organized or operated for the benefit of private interests, and no part of a section 501(c)(3) organization's net earnings may inure to the benefit of any private shareholder or individual.”
It sure seems to me that private interests (the franchise football clubs would be considered as the shareholders) did benefit from the collection of the promotional materials. Perhaps it is time to file a Form 211 with the Internal Revenue Service to challenge the classification of NFL Play 60 as a charitable program.
Now that we have asked about the costs to product the promotional materials, let’s look at the flip side and ask about the value of the end product.
It takes time for any marketing method or advertising program to gain a foothold and become successful. As advertising campaigns gain popularity and momentum within their target market, the brand being promoted accumulates value. If the advertising slogan becomes very popular, then brand value soars. When somebody says, “It’s finger lickin’ good” many people will immediately think of Kentucky Fried Chicken. It doesn’t matter whether the person says this while at a KFC restaurant or at the car wash; the name brand association is made. The value of this type of name recognition can be great.
Like any promotional program, you don’t expect to see big returns on your investment right away. These programs take time to nurture and gain exposure. For NFL Play 60 it began as a few isolated events, at least from what I’ve seen. A few years ago it expanded to encompass an annual contest where 34 Super Schools were recognized to receive health and fitness grants (one for each of the 32 franchise clubs and two at-large awards). Individual contests were launched where an individual Super Kid was recognized and received an award which was presented at the Super Bowl. This year, in addition to the Super Kid award presentation at the Super Bowl there were additional regional Super Kid awards presentations during the conference championship games. The presence of the NFL Play 60 logo has become more prevalent as the program has evolved and now includes not just the stadium sideline and end zone walls, but emblazoned within the field itself. The list of NFL Play 60 partners has expanded and this year we have witnessed an expansion of the NFL Characters Unite program. The collection of photographs and media events continues to grow to the point where NFL Play 60 has become a brand in itself. One of the difficulties we face in determining this particular brand value is that it is nested within the NFL brand itself. However, I believe it is undeniable that NFL Play 60 has grown enough to have become its own recognizable brand, complete with catchphrase and logo.
Brand names retain their value, even after a significant time has passed since a brand name has been retired. The best example for this case is the American Football League. The AFL is still retained by the NFL as a brand name even though it is no longer used. But if you mention AFL to a football fan (okay, an older football fan) they know what you mean. Recently I had a chance encounter with a person I never met before in public and the small-talk conversation turned to sports. Then this person made a reference to the Kingdome (currently CentruyLink Field, where the Seattle Seahawks play) which was demolished on 2000 March 26, yet I understood perfectly what he meant. In fact, I believe it is pretty safe to say that if you were to say “Kingdome” to any Seattle-area resident who was around at that time and they would understand what you were referring to. The memory is retained. This goes for any well-established corporate logo or slogan as well.
Brands can decrease in value as well. Brands must be maintained or they simply fade away. Sometimes brands suffer setbacks due to marketing miscues or poor performance of their stated business practices. It would be unfortunate for the market value of a brand to be determined on the amount of damage that the company suffers in cases of brand mismanagement, but perhaps this is what we’re looking at here.
The question I have now is what is the value of NFL Play 60 as a brand? Furthermore, what is the value of the NFL Play 60 brand versus the investment that has been made into building that brand? While I admit this may be a difficult endeavor, we do have some clues which may help answer that question. I would like you to look at two sources for these clues; the valuations for brand management according to Forbes and the endorsement deal between Lance Armstrong and his Tailwind Sports cycling team and the United States Postal Service (“USPS”).
Back in 2011, Forbes published a list of valuations for the NFL teams. The Dallas Cowboys topped the list with a valuation of $1.85 billion and with brand management listed at $193 million or about 10% of the overall franchise value. The Seattle Seahawks were ranked 16th with a valuation of $997 million and with brand management listed at $52 million or just over 5% of the overall franchise value. The total value of all franchise clubs for 2011 came in at about $33.2 billion with the average team valued at just over a billion dollars. This list was updated in 2013 and the Dallas Cowboys still held the top spot with a valuation of $2.3 billion. Brand management for the Dallas Cowboys was listed at $273 million or nearly 12% of the team’s valuation. The Seattle Seahawks moved up to 15th with a valuation of $1.08 billion where brand management accounted for about $58 million or 5.4% of that valuation. The total value of all franchise clubs for 2013 came in at about $37.3 billion with the average team valued at $1.17 billion dollars. Brand management for all teams totaled $2.4 billion in 2013, with an average of $75 million per franchise team. The point being that football is big business and the management of brand value constitutes a significant piece of the overall valuation of each franchise.
In most cases it would be difficult to find any information regarding the value of any endorsement deal, but since the Tailwind Sports deal was with a government agency and is being challenged in court we are now provided with some visibility. According to statements made by Robert Luskin, an attorney for Lance Armstrong, “The Postal Service’s own studies showed that the service benefited tremendously from its sponsorship - benefits totaling more than $100 million.” That’s a lot of money. This contract spanned over a period of four years so applying a simple average to the equation comes to $25 million per year in benefits to the USPS. We do see that the USPS provided incrementally higher payments to Tailwind Sports over the course of the agreement as the relationship evolved. We can see a similar development with NFL Play 60 over the past few years as well.
If we use the deal between Tailwind Sports and the USPS as an example it now appears that the brand value of NFL Play 60 has become substantial. While I have been observing NFL Play 60 for just the past three years and the example of Tailwind Sports spans four years, I believe the comparison has merit. Not only that, but when one considers that football is much more popular than cycling, that the season is longer (spans nearly 26 weeks or half a year when preseason and playoff games are factored in) and is present in most of the major markets across the United States, that it could easily be argued that the benefit to the NFL would be greater than the benefit experienced by the USPS in its deal with Tailwind Sports. In fact, it could be much greater and I don’t think it is unreasonable to project the benefits to the NFL to be better than $100 million annually, especially when one considers that they are projecting an image that they are doing it for the benefit of all these children.
And the cost to the NFL? The only cost I have actually calculated is the total of the award grants to the 34 Super Schools, which comes to $340,000 annually. Giving the NFL some latitude here, I’m willing to bet the total cost of maintaining the NFL Play 60 program is around a couple of million dollars annually. Still, when you consider that the NFL and its franchise clubs generate over $9 billion in revenue each year, the cost of this program isn’t all that much.
The point to all of this is an attempt to determine the real value of these promotional materials to the NFL, the Seattle Seahawks, and all of the other NFL franchise teams. While we would need to engage advertising and marketing professionals to get a more precise determination of their value, if it’s anything on par with Lance Armstrong’s sponsorship deal then it looks like the NFL is making a very good business investment.
There is one other thing to consider here. If the United States Postal Service has the presence of mind to conduct its own studies and analysis of its sponsorship deal with Lance Armstrong and his Tailwind Sports team, what do you think the chances are that the NFL has conducted similar studies and analysis? The NFL deals with advertising and sponsorship arrangements all the time. In fact, this kind of activity comprises a significant portion of their business. Again, if you need the proof, just look at their brand management budgets. So I’m confident that the NFL knows exactly what the brand value NFL Play 60 represents.
So again I ask, does this sound like charity to you? Me neither. Further, doesn’t it sound like these “Super Schools” received the short end of the deal? Perhaps all of those parents shouldn’t have been so willing to sign away the rights of their children.
As the reader looks into NFL Play 60, one thing to keep in mind is the presence of the NFL logo. As we challenge the NFL Play 60 program, we suspect that the NFL will attempt to distance themselves by attaching a more generic “Play 60” name to the program. Don’t let the NFL pull the wool over your eyes. There is nothing generic about NFL Play 60. If someone were to ask me a question about “Play 60” I would respond, “Play 60 doesn’t exist.” However, “NFL Play 60” does exist and this is no trivial distinction. The NFL logo (or associated club logos) is ever-present with this program and there is no mistaking who is sponsoring these events. In fact, NFL Play 60 has become popular enough to warrant its own set of logos. With a few exceptions, the standard NFL logo is embedded within each of these NFL Play 60 logos. In special circumstances, the NFL logo is simply replaced with a local franchise team logo and these logos are used in conjunction with other NFL Play 60 media signs. The NFL logo or associated franchise team logo is the first thing you see when viewing all of the clothing, websites, and even the waiver itself. We will even go as far to say that the NFL Play 60 program is filthy with the NFL logo. Yes, filthy!
Logo placement is an important element of advertising. Just look at a NASCAR driver. Have you noticed how advertising has changed over the years as people are now able to easily record television programs and skip over the ads as they view their recordings at a later time? Advertisers have adjusted for this phenomenon and now products are strategically placed within the shows themselves. The placement of a recognizable logo has become as important as ever.
The presence of the NFL logo has market value and so does NFL Play 60. In fact, NFL Play 60 has become a logo in itself and it is present within the football stadiums; even on the turf. This is evidence that NFL Play 60 has obtained market recognition and value. How much value is an intriguing question and we will address this a bit later.
Along with the promotional images and videos that have been captured during the NFL Play 60 celebration assembly(s), we have encountered several promotional catchphrases. The first one we encountered was, “Get on the bus.” Next, we encountered, “The bus stops with you.” (and there are other variations of this theme). Currently, we have observed a commercial during televised games where the current slogan is “Hop on the bus.” Although the one we saw on television features a different player, an online version features J J Watt of the Houston Texans.
How many millions of dollars do corporations spend to obtain the naming rights to sports facilities? Through an acquisition from Qwest, CenturyLink acquired the naming rights to what was once named Seahawks Stadium (then Qwest Field) for what was originally purchased at $75 million for 10 years. Safeco (Insurance) reportedly paid US $40 million to have its name on Safeco Field (Seattle Mariners baseball team) for 20 years. The ESPN Sports Business website lists many of the sports stadiums, their corporate sponsors and the annual amount they pay for the naming rights to those facilities. Those annual naming rights range from a low of $620,000 up to $9.3 million (Phillips Arena, by Philips Electronics, for the Atlanta Hawks & Atlanta Thrashers markets). Another source indicates that Farmers Insurance paid $20 million per year for 30 years for naming rights to Farmers Field in Los Angeles. Corporations do not make investments without expecting a return on that investment. In fact, every business expects a greater return on those investments. And as one can see, these investments are substantial.
Although these sports stadiums are used for other purposes, keep in mind that the primary purpose of these venues are for playing football games and this is what any visitor naturally associates with the venue they are going to, regardless of the event. In fact, many people will say they are going to Seahawks Stadium even though they may be going to watch a Seattle Sounders FC (soccer) game. So this is just another example of the value of advertising and how simple logo or name placement can generate millions in value. We need to keep this in mind as one evaluates the value of NFL Play 60.
Naming rights for individual sporting events is perhaps even more lucrative. While we have had some difficulty obtaining figures from the NCAA, one report shows that Chick Fil-A paid $22 million in 2006 for naming rights for 5 years to what was the Peach Bowl. That’s $4.4 million per event; not exactly chump change. NASCAR Sprint Cup events are no different where “Tracks typically sell naming rights to a race for $1.5 million to $3 million.” This is big business and it is all profit driven. Take the Pepsi 400 Sprint Cup race for example. Just what do you think your chances are of finding any Coca-Cola products at any of the concession booths under those grandstands? How about Coke Zero!
Corporations spend big money to sell their products or services and sponsorship of sports teams or individuals is no different. The most obvious example is to look at any of the NASCAR race cars and driver and pit crew uniforms, as they are plastered with corporate logos. Of course, logo size and placement are cost dependent.
Perhaps the corporate spending that garners the most attention are the advertising endorsements that star top athletes. Reach the top of your game and you can cash in for big bucks. While Tiger Woods still holds top honors in this regards, the most notable athlete who earns some of the most lucrative product endorsement contracts is Michael Jordan, who still earns $45 million per year even after retiring in 2003. While the lion’s share of these lucrative endorsement contracts are for direct advertising, such as television commercials, print and online media advertisements, these athletes also display the logos of their corporate sponsors on their clothing and athletic gear.
Like naming a stadium, if the corporate name or logo is displayed often enough, their message eventually reaches and influences the minds of prospective consumers. There is only one reason why businesses spend so much on these endorsement deals; these businesses expect to increase profits by increasing sales beyond the cost of these endorsement contracts. Our case in point: Annual sales of Nike’s Jordan brand of sneakers and clothing is thought to be in the $1 billion range. While it’s difficult to say how many sneakers and clothing items Nike would sell without the Jordan brand attached, Nike obviously believes that the millions they pay to Michael Jordan are worth the return on their investment.
One other example is worth mentioning here and the reason will be addressed later. That example is that of Lance Armstrong and the contract he had with the United States Postal Service to sponsor his cycling team, Tailwind Sports. That contract is said to have been worth $31.9 million between the years 2001-2004 (a more recent article places the payments Armstrong received at $41 million ). While Lance Armstrong may have shared this money what is obvious is that it’s a pretty hefty chunk of change. What you need to ask is what kind of return on this investment did the United States Postal Service expect? While the USPS is not exactly a business, it’s pretty safe to assume that they expected a return that exceeded their investment.
Let’s not forget the business of merchandising. Sure, it’s just one jersey or hat at a time, but when you add up the number of items that are purchased that have a logo (not just a NFL logo) the business just gains more name recognition. Quite frankly, we’re rather amazed that people pay as much as they do to help advertise for these businesses, but free markets are what they are. Since all businesses are profit driven, business investments are carefully calculated and you can bet that Nike knows the precise value of the Michael Jordan brand logo.
One thing I would like to point out here is that I saw a number of rather new looking Seahawks jerseys being worn by Cathcart Elementary students and staff just prior to the big event. It makes me wonder how much of the NFL’s fitness grant was covered just by these merchandise purchases alone? Remember, it all adds up.
Like we’ve said before, we are not lawyers. What we have laid out in this section are some of the legal and ethical issues we have encountered along the way. We are providing issues and arguments from a layman’s perspective and we don’t expect that any/all of our arguments to prevail should they ever be presented in a court of law. Still, what we present to you are the issues we have identified and our point of view.
We have already covered the legal issues questioning whether the agreement between the NFL, Seattle Seahawks and Snohomish School District constituted an act of commerce or a valid contract and the issues pertaining to free speech, so we will not cover those issues again.
I have already touched on the issue of corruption previously and would now like to cover this in more detail. When I left off, I was questioning whether the payment made to these schools can really be classified as grants or if this is a form of corruption. I admit to a certain bias on this issue and I will leave it to others - including yourself - to make this determination, but not until after I state my case.
As usual, the best way to begin is with a definition. There are some variances to the definition of corruption so I will focus on a couple of recent definitions from international treaties.
According to the Civil Law Convention on Corruption within the Treaty on European Union, corruption is defined as:
“Requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behavior required of the recipient of the bribe, the undue advantage or the prospect thereof.”
I am going to focus primarily on the definition as provided by the Inter-American Convention Against Corruption since this treaty has been ratified by the United States, who is a member of the Organization of American States (“OAS”).
I would like to think that the definitions speak for themselves, but I am going to dissect and apply these to our situation. I find that the definitions provided within sections a, b, and c to be very similar so I will blend these together as I cover them.
First up is “solicitation or acceptance… of any article of monetary value…” Casey Bowers and/or Snohomish School District officials did accept the NFL’s money and it may even be construed that she/they solicited the NFL’s money as well since her/their signature is on the contest entry form. As for the NFL, they devised a sneaky method to distance themselves from taking responsibility by being able to claim that they never directly solicited any favors. However, by advertising the availability of grant money, the NFL effectively baited a trap and lured in unsuspecting victims. The NFL’s money was never free; there were strings attached and that money was used to influence public officials to act in the interests of the NFL.
Next is “advantage for himself, or for another person or entity (third party)…” This is an important distinction because, as defined by the treaty, the beneficiary of the bribe extends beyond the individual and applies to others and even entities. So in our case, even though Casey Bowers accepted the NFL’s money on behalf of the school, it still conforms to the definition of corruption… as long as…
The activity results in “any act (by the public official) or omission in the performance of his public functions.” This lies at the heart of our complaint; that the acceptance of the award resulted in the loss of our children’s education. I’m not going to restate our entire argument here, but just because our children were present at the school and were in a classroom doesn’t mean they received their education. You need to consider that their situation must be compared to the educational activities they would have normally been engaged at the time. Not only was their classroom setting nowhere comparable to what would be considered as normal, but when you consider their mental and emotional state at the time of the NFL’s Play 60 celebration assembly I believe you can understand why we classify their education as a total loss. Quite simply, our children had checked out and there was no real interaction with our children by a teacher. Casey Bowers and the teaching staff chose to cater to the NFL which resulted in their failure to perform their duties for those children whose parents chose not to yield their rights to the NFL.
Finally, the convention uses the phrase, “directly or indirectly.” It is clear that the school benefited directly from this activity. What I want to focus on is the indirect benefits that any - or even all - of the school administrators involved may have gained personally, beyond the initial exchange of money/favors, even if it is delayed by several years. Those benefits may be realized in the form of bonuses or salary boosts beyond normal standards based upon what is viewed as exceptional performance or in the form of higher salaries by claiming this as an accomplishment when seeking other employment opportunities. What school administrator wouldn’t proudly advertise that won such an award for their school? Yes, this may be difficult to qualify, but I don’t think it can just be dismissed.
Article VII (Domestic Law) of the Inter-American Convention Against Corruption, which was signed by President Clinton on 1996 June 27 and ratified by two-thirds of the United States Senate on 2000 July 27, states that, “The State Parties that have not yet done so shall adopt the necessary legislative or other measures to establish as criminal offenses under their domestic law the acts of corruption described in Article VI (1) and to facilitate cooperation among themselves pursuant to this Convention.” President Clinton’s official remarks at the signing of that treaty included, “Article VII of the Convention sets forth an obligation to adopt legislative measures to establish as criminal offenses the acts of corruption as described in Article VI(1). There is an extensive network of laws already in place in the United States that criminalize a wide range of corrupt acts.” If these laws exist, I am unable to locate them. Also, I was unable to find a clear definition of corruption within the laws of the United States or the State of Washington. Washington State law does define bribery, but the scope of bribery appears to be limited to activities that benefits individuals. Even United States laws appear murky at best. While I did search the Federal Register for applicable laws or rules, most of the search items returned included phrases such as, “The activity cannot result in the corruption of…” etc., but I never found a real definition of what constitutes acts of corruption. Again, I am not a lawyer and I did not perform an exhaustive search of the Federal Register or other legal resources and my lack of legal experience is clearly exposed. Hopefully some legal professionals will chime in to fill in this gap.
The basic scenario is that the NFL made payments which influenced public officials to act in the interests of the NFL and its franchise clubs. When I discussed this issue with Rick Bonner at the Washington State Auditor’s Office, Mr Bonner mentioned that the payment made by the NFL couldn’t be considered as a bribe because no individual benefited from the exchange. I was pleased that Mr Bonner addressed this issue because it told me that at least he looked into that possibility. However, I believe his analysis was too narrow and failed to consider indirect benefits to those public officials that accepted the award. Also, bribery doesn’t need to be a two-way street. Even if the accepting school administrators can escape the legal classification of bribery since no school official benefited directly from accepting the money, I don’t believe the same may be said for the NFL and/or the Seattle Seahawks. I understand that the NFL or Seattle Seahawks are not individuals in the strict definition and that the NFL is not located within Washington State, but the Seattle Seahawks are the ones making use of the collected materials, they do reside within the state and are clearly benefiting from this behavior. So what prevented the Auditor’s office from looking into this? I can only imagine that it is the lack of a clearly identifiable individual.
At the federal level, if these laws against corruption exist, then why did the Department of Justice fail to see their applicability when I contacted them? I realize that I focused on the questions surrounding discrimination, but I was very clear that the money exchanged hands and that our children’s education was compromised as a result of the activity. It would seem to me that any official at the Department of Justice would know that most citizen complainants are from laymen (in fact I stated so) and as professionals would be able to read between the lines and fill in any gaps. Yet, in his response to us, Robert Westinghouse stated that, “Because no federally cognizable right has been violated, there is no applicable criminal offense.” So pardon me if I seem a bit confused over this, but either the Department of Justice overlooked this as an act of corruption or the applicable laws don’t really exist. Yet it seems clear to me that what the NFL and school districts are engaged in do qualify as acts of corruption as set forth in the Inter-American Convention Against Corruption.
If applicable federal laws against corruption don’t exist, the NFL may respond by saying, “These treaties, rules and principles don’t apply to us.” Maybe so, but the absence of applicable law doesn’t mean that the behavior is acceptable. Additionally, can NFL officials really escape their responsibility by shielding themselves behind rules governing organizations - whether they are a non-profit organization, corporation, LLC, or other collective group - because no responsible individual can be identified? I certainly hope not, but this seems to be the case all too often.
What this boils down to is, can this activity be considered as a form of official corruption? It seems obvious to me that the payment made by the NFL acted to induce public officials to operate in contrary to established school rules and principles of fairness and equality to serve the desires of the NFL. Additionally, what this payment accomplished for the NFL was an ability to gain easy access to entire schools full of children. As I have already discussed, the benefits to the NFL may be considerable. So I ask again, was this really an award or a form of corruption?
Another way to view the situation our children found themselves in would be comparable to the theft or denial of a service. The most common example that comes to mind occurs when somebody taps into a cable line to steal television or internet services. Encrypted signals make this type of activity more difficult these days, but it still occurs. The major arguments used by cable companies as to why it is not an acceptable activity when individuals make an unauthorized connection to a cable line include:
The first point seems self-explanatory and the fourth point is based on the cost of the service calls and technician hours required to correct problems caused by the unauthorized connections. The costs of maintaining the infrastructure is paid by the company’s customers and the unauthorized users are passing their costs onto everybody else. Additionally, other services are affected due to lost revenues or improperly working equipment.
The point I want to focus on in this analogy concerns the degradation or even the loss of a service when unauthorized connections are made. As unauthorized connections are made, signal strength is reduced and customers beyond the tapping point may lose their signal. This is essentially what happened to our children’s education. The collective theft occurred when Casey Bowers gave her approval to and encouraged all of the students’ parents to join the NFL’s celebration event. With every returned waiver, a critical mass was soon reached which effectively drained the teaching resources from their regular duties. In effect, our children were at the end of the line and left with no signal.
While Casey Bowers may try to justify her actions by showing that an overwhelming majority of parents agreed with her plan, this wasn’t a service that was hers or the other parents to give away. Further justification that this was an approved educational activity also doesn’t hold water because there was an additional cost attached to the function that was beyond reasonable expectations. We already paid our taxed for this education. Honestly, what do we owe to the NFL and Seattle Seahawks for our children’s education? And the $10,000 reasons the NFL provided to look the other way and/or to justify tapping into these resources doesn’t fly either. This would be like the cable thief claiming innocence because they clothespinned a hundred dollar bill to the cable line where they made their unauthorized connection. No, this does not satisfy the paying customer who just lost their signal.
According to an online legal dictionary, the (abridged) definition of fraud is:
“A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.”
“Fraud is commonly understood as dishonesty calculated for advantage.” …
“Fraud must be proved by showing that the defendant's actions involved five separate elements: (1) a false statement of a material fact, (2) knowledge on the part of the defendant that the statement is untrue, (3) intent on the part of the defendant to deceive the alleged victim, (4) justifiable reliance by the alleged victim on the statement, and (5) injury to the alleged victim as a result.”
As I interpret this, the NFL may be able to slip out from under the classification of fraud based on the second element above; that their contest rules, while vague, were not necessarily untrue. The NFL’s contest rules did say that publicity materials would become a requirement from the contest winners; however, they may not have explicitly said that they would apply to such a large group of people. This may depend on the exact set of contest rules at the time; something we haven’t obtained.
One aspect of the definition of fraud we may be able to focus on is on the phrase, “Concealment of what should have been disclosed.” This may apply to the NFL’s Play 60 contest rules, at least the rules for the contest into which Cathcart Elementary was entered. Even if the NFL’s Play 60 contest rules stated that, “award winning schools will be responsible for all publicity waivers” (paraphrased), we argue that any contest entrant would interpret this to be limited to only those who entered the contest; that if the contest rules actually specified that publicity waivers would be required for all students within an award winning school that none of the contest entry forms would have ever been submitted because these people would know that they could not speak for all of the students. If the NFL never disclosed the true scope of their publicity requirements until after the grant was awarded, thus dangling the bait in front of the winners to coerce compliance, this may pose a bait-and-switch scenario. Again, we are not lawyers and we believe that proving fraud would be difficult. But the bottom line is that we do not believe that the NFL was honest in their desire for publicity which included such a large group of children.
What could possibly change things would be if we could get a court of law to rule that the NFL’s contest rules were invalid on this point. If the contest rules could not be applied to people who did not actually enter the contest, then those requirements may become unlawful demands. Maybe we’ll still get a chance to see.
Another concern we have is that the NFL Play 60 event may not be viewed as a case of discrimination because it does not conform to one of the protected classes as defined by the Civil Rights Act or other applicable law. We would like to argue that this case should be considered as a case of discrimination and a violation of civil rights for several reasons:
If our children do not qualify as a federally protected class, then perhaps Washington State laws apply. After reviewing the protected class definitions on the website of the Washington State Human Rights Commission, we admit that our situation may be difficult to classify. However, we feel we can make a valid argument when one considers a broad definition of creed. While creed typically pertains to religion, one may ask, how would creed apply to an atheist? If a person is an atheist, does their lack of religious conviction or lack of institutionalizing their belief system mean that they are devoid of any morals or guiding principles? Would this mean that atheists are afforded no rights to claim any of their beliefs as creed? Of course not. And as stated on their website, one of the more broad definitions of creed is, “The beliefs can include sincerely held moral and ethical beliefs as to what is right and wrong (see expanded, but incomplete definition below).” This is how we can approach this issue.
RCW 49.60 … “Creed and religion are defined broadly and include observance, practice, and belief. A religion is a belief system or institution relating to or manifesting faithful devotion to an acknowledged ultimate reality or deity. Creed includes those sincere and meaningful beliefs that occupy in the life of that individual a place parallel to that of God or a divine being in a traditional Western religion. The beliefs can include sincerely held moral and ethical beliefs as to what is right and wrong, and beliefs that address ultimate ideas, or questions about life, purpose, and death.” …
Our argument is that the Human Rights Commission should accept (should have accepted) the broad definition of creed in that moral guidance comes from two fundamental principles of American culture: (1) adhering to the rule of law, and (2) that individuals have fundamental freedoms, including the right to choose those private enterprises they wish to deny support without any consequences.
From this perspective, the arguments we would like to present is that our children faced an act of discrimination for these reasons:
Finally, we would like to offer one more possibility:
It strikes us as odd that we can find references to state law that pertains to a person’s rights when it comes to accommodations, purchasing real estate or products and services, yet seems to say nothing if a person refuses to engage in commerce. This is where we hope the recent United States Supreme Court decision regarding “Obamacare” can be applied.
It seems obvious to us that Snohomish School District administrators faced a conflict of interests and sacrificed their responsibilities to our children in order to cater to the promotional demands of the NFL and reap their award. While the legal definition of discrimination has restrictions in place, the broad definition of discrimination is that a class distinction is made between different groups for reasons that are not legitimate. We certainly do not feel that declining to help a private enterprise collect promotional materials is a legitimate reason to segregate children within a public school. We do not feel that the NFL had any right to demand access to every child within a public school for self-promotional materials; no matter how much they paid the school or however noble they believe in their cause.
All children have rights under the United Nations Declaration of the Rights of the Child. From that declaration, we would like to list a few of those rights:
We would like to address some of those rights, ask how they may apply to our children and whether or not school district officials and the NFL infringed upon those rights.
The second right states, “…to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.” What moral lesson did our children learn that day? That somebody else (school officials) can offer them to another party (the Seattle Seahawks and the NFL) for their own benefit and if they refuse they are treated like outcasts; even labeled as disloyal? As we discussed before, while we did have a choice, were the options acceptable or did we face a false choice? Can this choice be classified as a real freedom? We don’t think so. And can you honestly say that our children were treated with dignity? How do you think our children felt as they were in a room in virtual isolation while almost all of their classmates went to an event that had been hyped over the past couple of weeks? We can tell you how they felt and we expressed those feelings to Casey Bowers and other officials, but our concerns fell upon deaf ears.
The seventh right states, “The child is entitled to receive education …. He shall be given an education which will promote his general culture and enable him, on a basis of equal opportunity, to develop his abilities, his individual judgement, and his sense of moral and social responsibility, and to become a useful member of society. The best interests of the child shall be the guiding principle of those responsible for his education…” Again, how are our children to develop their sense of moral and social responsibility when those who are in a position of great influence over these children making decisions that act contrary to these principles? Were the best interests of our children being considered by those responsible for their education? Certainly not!
The ninth right states, “The child shall be protected against all forms of neglect, cruelty and exploitation.” The major question here is whether or not the implementation of the NFL Play 60 program exploits children. We don’t see how this could apply to those who willfully signed the NFL’s waiver and gave up their rights. However, we did not give up those rights and in doing so did not mean that we chose to give up their rights to their education. Again, while the school district may argue (we’re sure they will) that they provided our children with an education while the NFL Play 60 celebration assembly was occurring next door, this education was compromised to the extent that it was no education at all. Where do you think our children’s minds were at, the video or the fun they could be having with their now absent classmates? Our children had mentally checked out. Similar arguments have been made about the impact hunger has on a child’s ability to learn; that they cannot concentrate when their mind is focused on hunger pangs and wondering when the meal may come. The mind must be focused and free from distractions for a learning environment to be effective. The environment our children found themselves in was not free from those distractions. The teacher present in that classroom did not know our children’s abilities or where they were in any lesson plan. Not only that, a real opportunity to provide individualized attention was squandered. So our children effectively lost their education during that time while the NFL walked away with promotional materials. The NFL used their popularity and the lure of easy money to gain entry into these schools and then employed multiple psychological factors to influence parents and school officials to join in the scheme and keep quiet. All of this was done under the cloak of running a contest and calling somebody a winner. Sounds like exploitation to us.
The tenth right states, “The child shall be protected from practices which may foster racial, religious and any other form of discrimination.” Any other form of discrimination. Again, we have come to realize that our children probably did not suffer from an act of discrimination as defined under federal law, but there is more to discrimination than just those protected classes. We have already discussed this and we do believe that the implementation of the NFL Play 60 celebration assembly did result in the discrimination of our children as they were segregated from their peers for no legitimate reason. Unless, of course, you believe that public school students should be subject to the whims of private enterprises. Let’s face it, our children were sent to the land of misfit toys just because we said "no" to the mighty NFL.
We are questioning whether the arrangement between the NFL and the Snohomish School District, including the implementation NFL Play 60 celebration assembly, may have violated Article IX, Section 4 of the Washington State Constitution. The preamble of this section simply states, “All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.”
While we are sure the NFL would argue that they do not meet the definition of a sect, we will argue to the contrary. We would argue for a definition of a sect to include any organization that influences a public school for their own benefit. In this case, we believe that not only did the NFL influence Cathcart Elementary for their own benefit, but actually controlled the school for the duration of their celebration assembly.
On Wikipedia, a sect is defined as, “A subgroup of a religious, political, or philosophical belief system, usually an offshoot of a larger religious group. Although in the past it was mostly used to refer to a religious group, it has since expanded and in modern culture can refer to any organization that breaks away from a larger one to follow a different set of rules and principles.”
We do not believe that the definition of sectarianism should be narrowly defined to include only influences of a religious nature. Rather, we believe that the definition of sectarianism in this context should be broadly construed to include any private entity that seeks to influence students within public schools for their own benefit. But could just any private enterprise enter a public school and get away with demanding access to an entire school of students for their own benefit? Doesn’t that sound like a group that follows a different set of rules and principles, say, like the NFL?
We also argue that the NFL qualifies as a sect as they promote violent behaviors. This can be observed in several ways:
Now we must ask, wouldn’t any organization that promotes this kind of violence qualify as a sect or at least an organization that represents a different set of rules and principles? Again we find ourselves asking whether or not if NFL players are really good role models for children.
If the principle of this constitutional provision can be applied to the NFL Play 60 celebration assembly, then we would like to draw your attention to statements made by Casey Bowers on the video of that event where she can be heard saying, “The NFL helps a lot, they send us a plan for the day and I’m good at making plans, but I’m also good at carrying plans out.” And that’s exactly what Casey Bowers did; carried out the plans that the NFL provided. In essence, Casey Bowers yielded control of that school to the NFL during the NFL Play 60 celebration assembly. If you don’t think what Casey Bowers did equates to yielding control of the school to the NFL, we believe it would be impossible to argue that the Seattle Seahawks and the NFL did not influence the activities of the school during that event. In effect, we argue that the actions of the NFL and the Seattle Seahawks violated at least the spirit of this constitutional provision.
The United States Supreme Court ruling pertaining to the challenge of the Patient Protection and Affordable Care Act (“Obamacare”) of 2010 may have some applicability to our situation. In writing the opinion for the majority, Chief Justice John Roberts made the following distinctions regarding the individual insurance mandate as it relates to the commerce clause of the United States Constitution:
While we are not lawyers, we interpret this recent Supreme Court opinion to be that no government entity can compel an individual to purchase a particular product under the Commerce Clause, but that the individual mandate was upheld only because the financial penalty can be classified as a tax.
We now ask, if the government cannot compel and individual to purchase a particular product (in this case, something that is needed) unless it is classified as a tax, then how can the government compel an individual to promote a particular product or service (in our case, something that isn’t needed) unless it too is classified as a form of taxation? Since the individual mandate was upheld on the basis that the penalty is a tax, then how can the school district penalize our children without calling it a tax as well? I would hope that the school districts position would fail against this argument. Additionally, if any of these award grants were shared with other schools - people without taking any risk or having any skin in the game - then couldn’t this be considered as a form of inequitable taxation? In essence, this would result in a redistribution of wealth to individuals who share absolutely no burden for creating that wealth.
So it seems that we were within our rights to refuse to sign the NFL’s waiver, which we did. However, there was a penalty for refusing to enter into this agreement. Now we need to ask, can the school district legally exclude our children from this event; in effect, to segregate our children from their peers based upon our refusal to enter into an agreement with any private enterprise, especially for promotional materials that benefit that private enterprise? Again, we contend that this was not a valid reason for segregating our children from their peers.
While we do not have legal standing on this particular issue, we think it would be worthwhile to see if students who were similarly situated were excluded from their celebration assemblies simply because a student forgot to turn in their waiver. We raise this issue because the Waiver of Liability and Release that we received was sent home with our children. Using children for delivering legal documents between parents and school administrators cannot be considered as a reliable delivery method. Considering the scope of the NFL Play 60 program and all of the schools and students involved (34 schools received awards this past season alone), we think it would be likely that somewhere in the process that some student was excluded from their respective celebration assembly simply because they either lost or forgot to turn in their waiver, etc. From our experience, it is apparent that the NFL and school district did not maintain adequate control of their legal paperwork. We would think that by excluding any child from their respective celebration assembly because they relied on children to courier legal documents may constitute a form of age discrimination since no child could be held responsible for handling legal documents which would be used to enter into a contract or quid pro quo agreement.
|Copyright 2014 Mark McChesney|