Ethical College Admissions: College Athletics

The National Collegiate Athletic Association has had an interesting couple of weeks in its struggle to maintain control over the business of intercollegiate athletics. On June 30 the NCAA announced an interim “waiver” allowing athletes to be compensated for the use of their names, images and likenesses (NILs), including on social media platforms. That probably wasn’t coincidence, because on July 1 new laws went into effect in multiple states making compensation for NILs permissible. The NCAA waiver will remain in effect until a more permanent NCAA rule or federal legislation is passed.

Earlier in June the United States Supreme Court ruled unanimously in National Collegiate Athletic Association v. Alston that the NCAA may not prohibit athletes from receiving payments or benefits that are “education-related.” That includes things like scholarships for graduate school after an athlete’s eligibility has run out and paid internships.

Some pundits have interpreted the opinion from Associate Justice Neil Gorsuch as opening the door for college athletes to be compensated beyond the athletic scholarships they already receive. The decision, though, is narrowly tailored, applying only to a small group of education-related benefits. Gorsuch’s opinion gives the NCAA latitude in defining what is and is not educational. He makes it clear that the association would be within its rights to prohibit member institutions from awarding student athletes Lamborghinis as a means of getting to class, and also recognizes that paid internships provide an opportunity for abuse.

The long-term danger to the NCAA emanating from the case lies not in the opinion from Gorsuch but rather from a concurring opinion written by Associate Justice Brett Kavanaugh. Kavanaugh seemed to open the door for a broader consideration of possible antitrust issues emanating from the NCAA’s monopsony over college sports.

Kavanaugh states that “the NCAA’s business model would be flatly illegal in almost any other industry in America.” The NCAA controls the market for student athletes, and its compensation rules result in student athletes being paid at a below-market rate. Kavanaugh sees that as “price-fixing labor,” which he describes as “a textbook antitrust problem.”

Kavanaugh’s opinion also raises some of the questions that make payment of college athletes a complicated proposition. He asks, “How would paying greater compensation to student athletes affect non-revenue-raising sports? Could student athletes in some sports but not others receive compensation? How would any compensation regime comply with Title IX? If paying student athletes requires something like a salary cap in some sports in order to preserve competitive balance, how would that cap be administered? And given that there are now about 180,000 Division I student athletes, what is a financially sustaining way of fairly compensating some or all of those student athletes?”

I happen to think those are great questions, but "Ethical College Admissions" readers are all too aware that I am fonder of and better at posing questions than I am at providing answers. But both Kavanaugh and Gorsuch ignore, probably intentionally, an essential elephant-in-the-room question. Has the time come to rethink what intercollegiate sports represent, especially when it comes to big-time football and basketball?

The NCAA’s defense of its position is based on preserving what it calls the “revered tradition of amateurism” as the foundation of college sports. That phrase is taken from a 1984 Supreme Court case, NCAA v. Board of Regents of the University of Oklahoma, which dealt with the NCAA’s control of television revenues. The NCAA even seems to argue that amateurism is part of its brand, distinguishing college sports from the professional version, and an NCAA press release about the NIL waiver emphasized that the new policy does not conflict with the NCAA prohibition on “pay for play.”

But did the “revered tradition of amateurism” ever exist? The opinion by Gorsuch points out that “American colleges and universities have had a complicated relationship with sports and money” dating back to the very first intercollegiate athletic competition, a boat race on New Hampshire’s Lake Winnipesaukee in 1852 pitting teams from Harvard and Yale against each other. Long before Poulan/Weed-Eater sponsored the Independence Bowl, in fact long before the advent of college football itself, the regatta on Lake Winnipesaukee was sponsored by a railroad executive promoting train travel to the lake. He offered the “student-athletes” an all-expenses-paid vacation with lavish perks, including unlimited alcohol.

Both Gorsuch and Kavanaugh’s opinions dismiss the NCAA’s contention that the references to amateurism and student-athlete compensation in NCAA v. Board of Regents serve as any kind of precedent for the issues facing college athletics today. But even if 1984 was a time of Orwellian purity in college sports, with the NCAA as Big Brother, the landscape has shifted dramatically since.

In 1984 the NCAA basketball tournament had not yet been trademarked as “March Madness,” and national champions in football were determined by voters rather than players. ESPN was five years old, just emerging from the days when it relied on sports like Team Rodeo and Australian rules football for its content. The era of superconferences had not arrived, meaning that the Atlantic Coast Conference had nine members and the Southwest Conference still existed.

What all those developments have in common is that they have brought more money into the world of college sports. The only sector not profiting handsomely is the talent, the athletes producing the labor and the product.

The focus on amateurism and payment of athletes has precluded an equally important question. Is it time to rethink the “student” in “student athlete”?

At the very least, it may be time to reverse the order to “athlete student.” For many college athletes, maybe most, the commitment to athletics is the driving force in their college experience. Both in and out of season, athletes’ schedules are built around training and practices, with classes fit in to ensure eligibility. Even when athlete students are getting college degrees, are they getting college educations? Will managing their NILs and personal brands cut into athletic time or study time?

Nothing reveals the myth of the student athlete more than the NCAA transfer portal. It may be a helpful tool bringing transparency to the transfer process, but it’s become a form of free agency for college athletes. The athlete students in the portal aren’t looking for a college to attend, but rather a team to play for. The number of athletes entering the portal is frightening, with close to 1,700 basketball players as of a month ago, enough to fill the rosters of nearly one-third of the colleges playing Division I basketball.

The more fundamental question is whether intercollegiate athletics should be considered part of the educational mission of higher education or part of the advancement arm of the university. The compensation packages provided to coaches and athletic administrators dwarf the salaries for almost any other employee, including presidents. We may want to consider coaches educators, but the language and behavior exhibited by many coaches in their interactions with players would never be permitted for any other faculty or staff member.

I have always believed that athletics have educational value and that the playing field is its own classroom. But it is hard to square educational ideals with the reality of big-time sports. Athletic programs long ago became powerful avenues for marketing and institutional branding, and there is too much money at stake for that genie to return to the bottle.

I generally believe in evolutionary rather than revolutionary change, but I think big-time college athletics needs revolutionary change. Modest payments to college athletes and reversing “student” and “athlete” is evolutionary. What would be revolutionary, and honest, would be to hire and pay college athletes, at least those for whom college serves as an apprenticeship for a pro sports career, as employees of a university’s marketing or advancement offices, with the opportunity to take classes as a benefit. I’ll leave the details for others.

I don’t claim that my modest proposal will end all that is wrong with college athletics, just the hypocrisy.