Judge grants class action status for former and current players in challenging NCAA amateurism policies -- but rejects broadening of pool of athletes eligible for potential damages. Outcome appears to increase odds of a settlement.
The endless conversation about big-time football appears to be reaching a point of decision and change. While some would like to see big-time football disappear from the collegiate enterprise, this is not likely or desirable. We like our football, our constituents like our football, the nation tunes into our football, and for many universities, nothing is more visible or engaging about their operations than their football.
So we will have football. Success in the big-time has created a variety of conflicts between ideal models for amateur competition and real behavior that the current system finds increasingly difficult to manage. Much of the difficulty stems from the problem of money: too much of it. The money is not going away because we like our football, but we need a better model to manage the money and the game.
Part of the difficulty comes from trying to reconcile the notion of a college-based student activity with the exceptionally high profile and revenue of a previously unimaginably popular and commercial viable enterprise. Football at the top level of American’s institutions, exemplified by the five major athletic conferences, is a big business that depends for its success on the recruitment, retention, and development of superb athletes who must also function as students.
Among the many issues and controversies (academic, ethical, financial, and operation) that complicate our current operating arrangements, refined over many years, is the mismatch in the eyes of our constituents between the revenue scale of the football enterprise and the compensation provided football players (especially the celebrity players of the most successful teams). The current model limits compensation to direct payments for tuition and other college expenses and the indirect compensation by providing players with a high-cost platform for the development of their potential professional value and their possible future value from a professional contract.
Boxed in by our definition of amateur student-athlete, we have found it difficult to construct imaginative ways of reflecting market circumstances that affect the players. We sometimes think that without the strict amateur definition, the college football enterprise would collapse into an uninteresting minor league activity divorced from its academic sponsorship. This may well underestimate the potential creativity of the university, which has, in other contexts, developed mechanisms that could provide a useful model for the football dilemma.
Any model would need to (1) address the market issue of the value of football players within the five major conferences, (2) redefine the organic connection between college education and the student-athletes in the football enterprise, and (3) retain the connection between football and the rest of the college intercollegiate athletic enterprise.
Fortunately, universities have mechanisms for dealing with similar issues that might be adapted to meet the needs of the football enterprise. Think, for a minute, about the university medical center hospital. In many cases this is a separate not-for-profit enterprise, affiliated with the university. Its relationship with the parent university is contractual, and transactions that involve university and hospital are done not through university internal governance mechanisms but by contract that specifies how the hospital economy and the university economy will interact.
The agreements also specify how the academic activities of the university in medical education and research will engage the hospital and how the hospital activities related to patient care and other services will engage the university.
But the two enterprises are financially, legally and operationally separate organizations. They may well have interlocking boards of directors/trustees, but the labor and financial structure of the hospital is not the same nor is it constrained by the circumstances of the university, and the university’s labor and financial structure is not the same nor is it constrained by the circumstances of the hospital.
Adapting this notion to football, imagine that we spin off the football enterprise out of our university and athletic department into a private not-for-profit corporation affiliated with the university, let’s call it the University Football Corp, or UFC (and we could substitute the name of the University for each institution’s football not-for-profit). We license our name and trademarks to our UFC, we lease our football-related sports facilities to the UFC, we contract for various management services that the university may provide the UFC. The coach and other athletic personnel who operate the football activity will be employees of the not-for-profit UFC, and will not be constrained or managed by the university. The financial structure of the football enterprise will require that it be self-supporting. This should not be a problem for the football programs in the five major conferences since almost all of them do indeed make a profit, even if their universities’ intercollegiate sports programs over all lose money.
Students who perform as football players will be employed by the UFC not-for-profit to perform football duties, but requirements for a football player employee will include an age limit between 18 and 24, eligibility limits, enrollment in the university, maintenance of academic good standing, and progress toward a degree. This is not unusual for other student employees of the university.
The football employee will receive a two-part compensation. The first part will be equivalent to the full cost of attendance at the university, to match the requirement that the football player be a student. This amount will be paid by the UFC not-for-profit to the university that will award the financial aid as it would for any student. The second part will be variable and will depend on the market value of the football player to the UFC not-for-profit. This second amount can vary by season and the market for college-age football players, and might well follow norms and procedures established in the National Football League.
This model bears a close resemblance to what we do for medical students, for faculty physicians, and for other university people who have duties and obligations associated with an independent hospital affiliated with the university.
Where is the NCAA in this model? Like hospitals, the UFC not-for-profit will be regulated by an external agency, in this case the NCAA, that will establish the game rules as it does now, and specify the academic eligibility requirements for football players to be considered students, but the NCAA will not regulate payments to players. These will be managed by each institution’s UFC, but probably in accord with rules established by the five major conferences. The NCAA may well require these organizations to have transparent and independently audited financial records so that the public is clear about the way in which the athlete who is also a student is being paid and managed and clear about the financial arrangements between each UFC and its parent university.
Football players must be students in good standing and making appropriate progress toward a degree and can only have four years of eligibility, but they can test their value in the commercial sports marketplace at any time and choose to leave for professional work.
Once hired for professional play, of course, they will no longer be eligible to participate in the university-related not-for-profit UFC.
Athletes within the UFC can also contract for commercial endorsements and other sports-related (but not sports competition) activities and earn stipends or fees, but they must do so through the UFC not-for-profit so that the organization can identify conflicts of interest or commitment. Similarly, employees of the UFC (coaches, athletic directors, and others) can earn outside income related to sports but must report this income and receive approval for outside commitments from their institution’s UFC (again to prevent conflicts of interest and commitment). Alumni and other fans can contribute to the football enterprise, either to support players or to subsidize athletic facilities, but again, always through the institutional UFC to ensure transparency.
The UFC not-for-profit will create various funds and arrangements for player health and safety and compensation for injuries or other insurance-related functions. Whether it decides that it is better to hire the football players as employees or deal with their football participation as independent contractors will be an issue to be resolved as the market for football players indicates. Either solution would work, although of course the players are likely to emulate the professional marketplace and create a union to represent their interests. In some universities this would mirror the union representation of other student employees. Players can have agents, lawyers or other advisers to help them negotiate the contracts that govern their college-related football participation, although not the academic requirements that define them as students. The five major conferences may well establish salary caps and other financial constraints proved useful in the professional marketplace.
Because each UFC football enterprise is affiliated and ultimately controlled by its parent university, if indirectly through its board appointments, and because it is required to manage its enterprise through contracts with the university that are publicly available, the university can reap the benefits of big-time football without the constraints of trying to fit the football juggernaut into the university’s normal academic infrastructure. However, the university can require that the football UFC provide a significant payment to the university for the use of its name and other marks, a payment that will serve to subsidize the university athletic program for other sports as happens currently.
Finally, because this arrangement puts the academic scholarships for football players who must be students inside the university (but paid by the UFC not-for-profit), the current commitment to women’s sports driven by Title IX requirements to keep scholarships reasonably equivalent will remain.
Any university can create this model and participate, although they will need conference support, television revenue, and other characteristics of big-time programs to succeed. Such an opportunity may well help institutions decide that they want good football but not big-time football.
While endless details will need to be worked out, as were required to create the arrangements that govern independent not-for-profit hospitals affiliated with major research universities, the model offers an approach to the growing difficulty of managing big-time football within the current university context.
John Lombardi is president emeritus of the University of Florida and served most recently as president of the Louisiana State University System. He is the author of the forthcoming How Universities Work (Johns Hopkins University Press).
It is fashionable to talk of “bubbles” these days -- unsustainable, somewhat speculative ventures nearing the bursting point: the dot-com stock market bubble in 2000, the housing crisis bubble of a few years ago, and maybe a college tuition bubble today. Broadly defining “bubble,” maybe we are nearing one in major-college intercollegiate sports.
If you ask alumni of the University of Oxford, Moscow State University, the University of Tokyo, or even the nearby University of Toronto, to describe their most successful intercollegiate sports team, you likely will get blank stares. While amateur, intramural sports activities occur at campuses around the world, the U.S. is unique in having hugely popular, high-revenue collegiate teams. While Great Britain has both top and secondary-level football (soccer) teams, as is the case in American baseball, in the high-revenue American sports of football and basketball, there are overtly professional teams as well as ostensibly amateur college teams comprising so-called “student athletes.”
Yet this model is undergoing a good deal of strain:
The financial viability of major college sports importantly derives from “paying” the best “student-athletes” a small fraction of what they would earn in a competitive market; the cartel enforcing low payments to athletes, the National Collegiate Athletic Association, is facing the possibility of losing a potentially extremely costly lawsuit.
At many schools, an athletics arms race is forcing students to pay largely hidden fees to sustain costly sports programs, and there is evidence of a growing disconnect between the desires of older alumni and other sport supporters for good teams and the tastes and preferences of the students being increasingly asked to pay the bills.
To sustain noncompetitive labor market practices, the NCAA imposes draconian and Byzantine rules on member schools, but incentives are huge to break those rules, leading to repeated scandals creating an aura of corruption hurting not only collegiate sports but higher education generally.
A moral crisis is increasingly apparent: relatively innocent young persons (talented athletes) have income many would say is rightly theirs taken from them by their mentors (coaches) for their own personal use, leading to coaches often earning as much as 10 times as much as the university presidents who run the educational aspects of the institution.
Graduation rates of athletes, especially members of minority groups, in the top revenue-producing sports are scandalously low, even below the deplorably low rates of the general student population. Student status for some athletes is increasingly more nominal than real.
In a competitive labor market, workers usually earn on average roughly what they add to their firm’s revenues. Professional football, baseball and basketball players, for example, sometimes receive salaries reaching several million dollars annually. Top-flight college football and basketball teams generate revenues rivaling those of professional teams, but the workers receive scholarships worth at most $50,000 annually, and that’s only at the most expensive institutions. Very good football and basketball players are very lucrative at top sports schools, so coaches able to recruit them receive a large portion of the millions of dollars that ordinarily would go to the athletes. It is not too far-fetched to say that middle-aged adults are exploiting the children under their guidance.
The NCAA enforces this practice. The NCAA forces players to sign a contract in effect abrogating their labor bargaining rights. Even income earned from, say, t-shirts featuring the name and number of the athlete revert to the colleges. A lawsuit challenging this practice filed by the former UCLA basketball player Ed O’Bannon is moving forward, with very high-powered lawyers representing O’Bannon and other athletes.
If the lawsuit is certified as a class action as early as next month, the stakes become huge, and in one plausible scenario the NCAA could be forced into bankruptcy. More likely would be an out-of-court settlement costing the NCAA and maybe major conferences many millions of dollars. The long-term impact would likely move some of the income received by coaches to players, perhaps also crowding out non-revenue sports funded from football or basketball profits, etc.
Even the NCAA’s own data suggest that only 22 major programs break even or make a profit. In the second-tier athletic conferences, such as the 13-university Mid-American Conference (MAC), schools typically need $10-20 million annually to balance their athletic budget, increasingly met by student fees that can approach $1,000 a year. A survey of students at MAC member colleges directed by David Ridpath suggests that most students are unaware of the extent of the fees, and unhappy when informed of them, given their general low level of interest in collegiate sports and the increasing financial strains of attending college.
The spectacularly tawdry sex scandal at Penn State that led to the imprisonment of the former coach Jerry Sandusky is the worst example of immorality run amok, but dozens of colleges have been found guilty of violating the NCAA’s rules -- giving money to athletes, making illegal recruiting visits, etc. It is not uncommon to read “Ohio State admits to rules violations,” or “Miami faces NCAA sanctions.”
Increasingly, the public perception of universities as intellectual oases, centers of learning and moral probity, is being tarnished by intercollegiate sports.
What to do? Why haven’t university presidents, who nominally run the NCAA, done anything? First, they are afraid of losing their jobs if they anger their fanatic fans (and sometimes their boards). Second, they love the funds from television contracts and other sports commercialization of their schools -- money may trump principle. I know several ex-university presidents strongly promoting reform, but few actively serving ones.
Still, as costs rise faster than revenues, as scandals persist and grow ever more spectacular, and as multimillion-dollar coaches become ever more arrogant and plutocratic, change will likely come, probably ultimately for the good of college sports, higher education, and the nation.
Richard Vedder directs the Center for College Affordability and Productivity, teaches economics at Ohio University, and is an adjunct scholar at the American Enterprise Institute.
On the first Wednesday of February, big time college football coaches in America sign the latest batch of phenoms to restock the shelves and renew their fans’ dreams of future championships. The sporting public is fascinated by this annual ritual of unofficial verbal commitments, recommitments, de-commitments and signings of the National Letter of Intent by 17-year-old late adolescents who represent new hope for college teams.
Recruiting sites rank the potential harvest of each university and the recruiting acumen of each head coach. Special television shows are created for the speculation of who is going where. All of this hoopla and speculation often occur before any serious considerations are made regarding the players’ academic preparation and institutional fit on campus and in the classroom. It has become common for high school juniors to verbally commit to coaches before they ever step foot on campuses.
Inside football offices, recruiting coordinators and coaches gather to conceive ever-more-elaborate enticements to impress and convince prize recruits that their athletic programs’ value their talents more than the school down the road. The futures of head coaches ride on the talents of the athletes. This year’s prize for successful antics goes to Missouri Coach Gary Pinkel, who arrived at the high school of the nation’s top recruit, Dorial Green-Beckham, in a helicopter. One wonders which school Green-Beckham would have chosen if Coach Pinkel had arrived in his car.
Making Peace With the NCAA
A longtime critic of the association praises the recent decision
to let big-time sports programs
offer multi-year scholarships.
College programs, with the support of their athletic departments and administrations, will cast aside propriety and logic to woo high school stars with perceived talent. With the help of boosters, coaches too often resort to unethical behavior to persuade athletes to sign National Letters of Intent (NLI). The recruiting frenzy infects boosters who are intent on helping head coaches bag their game.
The most recent allegations from a former University of Miami booster and convicted felon Nevin Shapiro may implicate as many as 114 players for illegal inducements and extra benefits including parties for players, bounties for injuring opponents, and arranging prostitutes for recruits and abortions for the girlfriends of players. One of Shapiro’s alleged targets in 2004 was Willie Williams, a talented linebacker with a history of legal problems. After considerable angst, University of Miami President Donna Shalala permitted Willie Williams to enroll at Miami in spite of 11 juvenile arrests. The competition to sign the most athletically talented athletes is so fierce and intense that the criminal history of the players seems to be of little consequence to many college coaches and their administrations. Under pressure from celebrity coaches and major donors, directors of admissions and college presidents often capitulate.
Another recent example of the zeal for athletic talent is the case of Chris Collins; a talented high school linebacker who was arrested for aggravated sexual assault of a 12-year-old after his high school prom. After the withdrawal of a scholarship offer from the University of Texas at Austin, Mr. Collins simply committed his talents to Oklahoma State University, where he played for the Cowboys for two years until he pleaded guilty to the charges and was convicted as a sex offender. Coaches use the rationale that athletes can be rehabilitated and deserve a second chance. While it is doubtful that second chances would be afforded to non-scholarship players, it makes one wonder what sort of crime a talented recruit would need to commit to become disqualified for a second chance. The need to win football games trumps criminal history and reason.
In 2009, at the request of the University of Tennessee football offices, two football hostesses traveled to the high school games of recruits to entice them to join the volunteers. In 2004, the University of Colorado attempted to lure recruits to campus through well-coordinated parties involving call girls and allegations of rape, launching several ineffectual changes in NCAA recruiting practices and legislation.
As unscrupulous as these recruitment activities may be in college football, it is sadly well-documented that the identification of prospects in men’s basketball starts earlier and that prospects are more likely to be represented by handlers who restrict access to their players to the highest bidders.
Recruiting has become high-pressure coercion of young adults by celebrity coaches. We offer some suggestions to ensure academic primacy and fairness in the recruiting process.
Ban verbal commitments until the prospective athlete has been deemed admissible to the four-year institution. When a coach offers a recruit a scholarship, he acts as an agent for the university. A celebrity coach's offer of a scholarship to a recruit is a powerful implied offer of both admissions and financial aid. It places enormous pressure on the director of admissions and the president of the university to admit the committed recruit irrespective of his academic qualification or institutional fit. To deny admission would certainly create media headlines and angry fans and donors.
Instead, require the institutions’ examination of academic records and a tentative approval of admissions before offers of athletic-related aid are extended to recruits. Scholarships should not be offered unless there is some assurance that the recruit will be admitted to the college of his choice and that he has a reasonable chance of graduating. Without a serious review of the recruit’s academic qualifications, his verbal commitment will often rule out the recruit’s options to attend other colleges.
With the NCAA’s passage of the ability for institutions to offer multiyear financial aid grants, athletes will once again be afforded a measure of security to pursue a meaningful education without fear of losing their scholarships. As such, it will become crucial for coaches and institutional admissions officers to make accurate decisions about the long-term academic and athletic viability of recruits. Poor assessments will result in costly and expensive mistakes to sport teams.
Abandon the National Letter of Intent and Releases for Transferring. The NLI document clearly disadvantages the athlete. By signing the contract, the recruit ends the formal recruiting process. The document presumes that the student-athlete has committed to the institution, and it attaches eligibility penalties for attending a different school or transferring prior to the completion of an academic year. Should the coach who recruited him leave for a more lucrative job such as Greg Schiano’s departure from Rutgers for the NFL, the student remains bound to the institution under penalty of loss of athletic eligibility. In spite of signing long-term contracts, coaches often abandon their obligations to take offers of million-dollar raises at other institutions. Universities do not penalize their National Merit Scholars for transferring or changing their minds about enrolling, nor should they penalize their athletes. Signing a financial aid agreement is adequate protection for the student to receive a scholarship, while offering him the freedom to transfer without a penalty of loss of eligibility. While the National Letter of Intent may be good for photo opportunities, the current contract unfairly favors the interests of the coach and university.
Maryland coach Randy Edsall refused to release three players to schools in the Atlantic Coast Conference, and non-conference schools that Maryland was scheduled to play in the upcoming two seasons. Coach Edsall felt free to leave Connecticut to accept the job at Maryland without any restriction whatever. Athletes should be afforded the same freedom to transfer to explore other schools and programs as their coaches and the student body.
Redesign official visits to follow those offered to the general student body. Abandon the orchestrated entertainment offered by hosts and volunteer recruiters. Official visits for prospective athletes should be designed to be learning opportunities about the institution and the athletic program rather than the circus and party atmosphere they have become. Recruits should stay in campus residential facilities rather than five-star hotel suites. Their visits should be the same process offered to prospective students by the campus and simulate common campus life.
Limit official visits to three institutions. Prospective athletes may take as many as five official visits paid by the institutions. Today, official visits often are formalities for verbally committed prospects to be entertained at the cost of the institutions. By the official visit season of the athlete’s senior year, most have visited campus on unofficial visits, attended the coach’s athletic camps, attended multiple games, and narrowed down their choices. We believe that de-emphasizing and reducing the number of official campus visits would represent a cost savings to institutions and possibly reduce the party atmosphere.
Require police background checks of recruits and all athletic personnel. Information which could legally be gathered on the past criminal activities of recruits should be sought and reported to the president of the university before offers of admissions or financial aid are executed. Police background checks should periodically be conducted for coaching staffs and all full-time athletic staff. The instant celebrity attached to big time college sport coaches and athletes may influence inappropriate off-the-field behavior that endangers the reputation and integrity of the university. Athletic programs that have been embarrassed by recruits and athletic staff are slowly adopting this practice, but we recommend that it become established national policy.
We should expect athletic staff to represent our universities to recruits with accurate depictions of campus and athletic life without taking advantage of youth who are too often from disadvantaged backgrounds. For when the press conferences and celebrations fade, star recruits encounter the stark regimen of athletic program routine and are often disillusioned by the unfulfilled promises of their coaches.
The reality does not mirror the hype they heard from their coaches. When recruiting has ended, athletic programs will often attempt to reduce the expectations of highly recruited athletes, but the athletes are often left feeling betrayed. Campus, classes and sport do not quite measure up with what was described. The academic major they had hoped to pursue interferes with athletic commitments and academic majors are changed to accommodate athletics. Their hopes of playing time often do not materialize immediately as they were told, and recovering from injury in rehabilitation becomes their new reality. Institutions should eliminate the party atmosphere for prospective athletes, and ensure that campus visits represent the reality of campus life without gimmicks.
Gerald S. Gurney is assistant professor of adult and higher education at the University of Oklahoma and immediate past president of the National Association of Academic Advisers for Athletics. Jerome C. Weber is Regents Professor of Education and Human Relations at Oklahoma.
For decades I have used events like March Madness, the NCAA’s season-ending basketball tournament, to bash the NCAA for transforming big-time college athletes into underpaid employees in a multibillion-dollar industry. Even worse, in my opinion, was the myth that these athletes were merely engaging in an extracurricular activity during their free time, like members of the drama club.
Much to my surprise the NCAA, under the leadership of President Mark Emmert, has recently enacted financial aid reforms that may have brought my years of NCAA-bashing to an end. Critics have argued that the changes amount to little more than "window dressing," but a strong case can be made that the revival of multi-year scholarships represents one of the most significant educational reforms in recent NCAA history.
In 1956, the NCAA decided to openly subsidize college athletes by offering scholarships covering room, board, tuition and fees. But it was not until the introduction of one-year renewable scholarships in 1973 that coaches could cancel aid for just about any reason, including injury or poor athletic performance. At this point scholarships became binding contracts.
Over the next four decades, one-year renewable scholarships have provided the burgeoning college sports industry with a reliable and disciplined source of cheap labor. Athletes who do not meet a coach’s performance expectations are often encouraged to transfer or simply stripped of financial aid. Coaches’ jobs often depend on getting rid of “dead wood.”
It is difficult to overstate the kinds of demands coaches can make on players as a condition for the yearly renewal of financial aid. Coaches ask that athletes play with injury, and control their lives on and off the field. Because each season is a tryout for financial aid the next, sports takes priority. An NCAA survey carried out a few years ago found that big-time college football players spend an average of 44.8 hours a week on their sport in addition to time in the classroom.
A number of reform organizations, including the Knight Foundation Commission on Intercollegiate Athletics, have recommended a return to multiyear scholarships over the years, but to no avail. The NCAA ignored such suggestions in deference to coaches who feared losing control over their players. Media pundits generally labeled proposals to return to multiyear scholarships as quixotic. Only two years ago, two ESPN basketball analysts, Andy Katz and Fran Fraschilla, assured me on "Outside the Lines" that the idea had no traction.
Rationalize Sports Recruiting
Recent scandals and embarrassing
escapades show that big changes
are needed in how big-time
programs recruit players, two professors argue.
All of the skeptics have been proved wrong; the media silence is deafening. In the wake of one of the most tumultuous years in college sports, which included conference realignment motivated by greed, several lawsuits that challenged the NCAA on antitrust grounds, and a massive scandal at Penn State that raised questions about the role of big-time college sports in university governance, multiyear scholarships made a Rocky Balboa-like comeback.
The fact that the NCAA’s scholarship proposal barely survived an override vote lends credence to the argument that the NCAA has finally done something significant. For decades, universities have denied canceling scholarships for injury or poor performance. If they were telling the truth, why did so many oppose this new policy? The large number of dissenting votes suggests that in many schools, scholarship athletes have become expendable commodities.
The NCAA’s new legislation makes the adoption of multiyear scholarships optional, thus allowing athletes and their parents to chose between a one-year contract and a multiyear educational gift. If highly talented athletes choose programs that offer multiyear scholarships over those that do not, the NCAA will have rigged the recruiting game in favor of academic values. And this is how it should be.
At schools that decide to adopt multiyear scholarships, college athletes will be students, not cheap labor. Coaches will have to focus on teaching and player development because they will have to live with their “recruiting mistakes.” Federal Graduation Rates, the best measure of whether athletes graduate within six years from the university they entered as freshmen, will likely increase dramatically. And even though these scholarships can be canceled if an athlete voluntarily withdraws from sports, no court of law will mistake them for employment contracts.
Much more remains to be done. Academic standards must be raised to prevent special admits from playing as freshmen, and the minimum GPA for playing college sport should be 2.0 in all conferences. The clustering of athletes in classes that give high grades for little or no work -- a practice for which faculty must take responsibility -- should be eliminated. Faculty senates should review coaches' rules of conduct to make sure they are consistent with academic best practices. The list could go on, but the NCAA has taken a huge step toward meaningful reform.
Allen Sack, professor and interim dean in the College of Business at the University of New Haven, played on Notre Dame’s 1966 national championship football team. He is also president elect of the Drake Group, a faculty organization committed to academic integrity in collegiate sports.