Universities, as seats of learning and powerhouses of research, are stepping up to assume a new role. In the wake of a global financial meltdown and consequent challenges to the fabric of many societies, universities are emerging as powerful catalysts and indeed drivers of socioeconomic growth – not only through research or technology transfer, but by assuming responsibility for preparing students for jobs in delivering today’s highly skilled workers and tomorrow’s innovators and leaders of industry.
That’s why the employability of our graduates needs to take center stage and why I applaud the Obama administration’s recent call to action in this regard. The emergence of new institutional rankings to compare the "value" delivered, such as graduate employment and earnings across institutions, means that employability has become "our job." And we need to take this responsibility seriously if we want to successfully compete in the global marketplace for higher education. Universities need to understand that we have a social duty and perhaps a moral one too, to help successfully launch our talented graduates into society.
Here in Britain, employability outcomes are already part of our world and feature heavily in the key performance indicators of British universities. Our Higher Education Statistics Agency collects and reports national data on our publicly funded institutions, including employment rate overall from each university and type of employment outcome. And while our American cousins are decades ahead in areas such as philanthropy and have helped our journey, Britain's experience of the employability agenda is one where we can perhaps return the favor. It's this spirit of sharing and exploring wider global education trends that moved me to share some insights into how the employability agenda is influencing behavior among our students and faculty, and in the administration team, too.
It’s clear in Britain that the move to show a return on investment through enhanced employment opportunities – the so-called "graduate premium" – is strongly correlated with the recent significant increase in student fees, or what would be considered tuition in the American context. This was a key part of a public policy shift, across successive UK governments, to recognize more overtly that graduates are beneficiaries of their education and as such should contribute to it directly, in turn reducing the public subsidy for higher education. The fees, covered by a public student loan, are repaid only once the graduate is earning a salary deemed appropriate for a graduate (approximately $35,000) and no payments are needed up-front.
A few things have happened as a consequence. The first, perhaps rather unexpected but of high value, was that we have seen a positive impact on the social inclusion agenda as more students from poorer backgrounds progress to university; analysis from the University and Colleges Acceptance Service (UCAS) indicates that compared with entry rates in 2011, the year before the introduction of higher tuition fees in England, 18-year-olds in disadvantaged areas in England were 12 percent more likely to enter in 2013. The second was, however, anticipated, and is the subject of this commentary, in that students are now much more savvy as education "consumers" and are fiercely attuned to understanding the job opportunities at the end of their degree.
As such, the student voice is being heard right at the heart of university administration and across the faculty. Newly introduced UK websites such as Unistats (similar to the College Scorecard) allow prospective students to directly compare courses and institutions. Of course, when first introduced around two years ago, such public comparison sites were disruptive – and this perhaps echoes the current disquiet in the United States as similar plans are rolled out across the pond. Britain’s "Key Information Set" (KIS) data, which populates the site, comprises the items of information which students have said they would find most useful when making informed choices about where to study. The "empowered" student wants to know what the likelihood is of getting a job after graduation in various fields, what type of job they may get (professional or non-professional), and what salary they could expect. Nationally, total employability and a new measure of professional versus non-professional employment are both used in national university league tables, which are used by students to pick institutions and by the government to award funds.
With this public interest in outcome measures, university presidents and the wider administration are acutely aware of the potential impact on reputation, and by extension, recruitment. There are risks to both if we do not continue to produce graduates who are highly employable, who can obtain graduate-level jobs and who can deliver on the investment they have made in their education through the "graduate premium" on earnings. Placing such key institutional risks to one side, the wider public policy agenda surely means that governments, industry and indeed society at large need to pay attention to employability given the economic and indeed social impact of skilled labor in the global market place. Research consistently shows that graduates are more likely to be employed than those who left education with lower qualifications. In 2013, there were 12 million graduates in Britain and the graduate employment rate stood at 87 percent; this compares to 83 percent employment rate for those with A levels – approximately equivalent to the high school diploma.
But it’s not quite as simple as that. A degree, once considered the passport to a graduate-level career, needs to now come in a total package – "graduate plus" – as employers seek well-rounded employees who are "work-ready" with clear evidence of both job-specific skills and, prized graduate attributes. Given the fact that more people are achieving graduate status, we need to help our students develop employability attributes and skills throughout their time at university while they study. This needs careful curriculum and indeed pedagogic innovation and stewardship, including partnerships with business, industry and the professions.
This is why at my own institution, Plymouth University in Britain, we embed employability throughout the curriculum from day one and we then continue to focus on developing the entrepreneurial skills of our students through academic courses as well as support, mentoring and networking opportunities. For example, curricular experiential learning projects across the university range from business (such as management students conducting consultancy work for local businesses in a program called Inspiring Futures) to health (dental, medical and optometry students are all trained in primary care settings, ensuring they have to develop communication skills with real patients in order to better understand their needs), to the whole institution, such as the Wonder Room consultancy, which brings together students from business, arts and science to pitch for, and undertake, live projects in the region.
We are also focusing on developing internships and placements for our students to enable them to enhance their resumes and gain real work-place experience. Our Plymouth Graduate Internship Program develops graduate-level internship positions with employers where recent graduates are given the opportunity to apply a range of skills, assume real responsibilities, make an impact and progress quickly from new graduate to successful professional. Last year alone, 40 percent of our students embarked on paid industry placements. I shared this fact on social media whilst at a conference in the U.S. earlier this year and was overwhelmed by the impact of the response stateside to something that we see here as very much just "business as usual."
For us, at Plymouth, a key factor in our success has been to establish our unique "students as partners" charter which, rather than a transactional relationship that places the student as a customer, we feel that the we take joint responsibility with our students for their educational outcomes. This means that as well as supporting employment opportunities, whether through internships or placements, we recognize that we are preparing graduates for jobs that don’t even exist yet and for a career that will be multidimensional and more akin to a career portfolio. And so, in line with our focus on enterprise, we foster an entrepreneurial mindset with our students so that they are set up to thrive as socially responsible, highly employable global citizens. Testament to this success has been national success as our students and student societies win major entrepreneurial and business competitions. We are also seeing more of our graduates progress to set up their own business ventures and also to engage in community volunteering work with a social purpose. So, for students, the employability metrics impact their decision-making as they make more informed decisions.
Our faculty have embraced the employability agenda through curriculum and pedagogic innovations and by creating partnerships with employers; this in turn, has served to connect us as a university to the society we serve, leading to research opportunities and live commissions for students and staff consultancy. And for the senior administrative team around the president’s table? Well, that’s an interesting one. Of course, we always had awareness of the demand for our programs, and an interest in student satisfaction – but there’s been a real shift in emphasis and we talk a lot more about the student experience which sits comfortably alongside other top table issues such as financial sustainability and risk. We are now more acutely aware that our brand is firmly aligned to the quality of our graduates and their market value, and that employability metrics are a clear proxy measure of our university standing. So jobs for our students now sit very much as one of our jobs, too.
So, dear American colleagues, if I may be so bold – I would say please embrace employability metrics as a powerful direction of travel. Be aware that public and private supporters of higher education are keenly interested to know more about the returns on their investment and on the role universities are playing now and can go on to play in driving economic and social inclusion. Universities can respond on their own terms in powerful and compelling ways to drive the narrative around employability. We should be clear that employability is very much part of the learning continuum, and learning – well, that is our job, isn’t it?
Wendy Purcell is president of Plymouth University, in Britain.
On Friday, June 6, 2014, the United Negro College Fund accepted a $25 million donation from the Koch brothers. I urge the historic organization to consider giving it back. This money is tainted and there will be strings attached.
I authored a book titled Envisioning Black Colleges: A History of the United Negro College Fund in 2007. The book tells the story of the creation of the UNCF and its delicate relationship with white philanthropy, mainly the Rockefeller family. Research tells us that white industrial philanthropists supported black colleges in order to educate a semi-skilled labor force for their businesses and those of their friends, and to control the education of black people. The money created opportunities during desperate times for some black students at UNCF institutions, but that doesn’t make the motives irrelevant. Given these historical motives, I’m compelled to ask: What are the motives of the Koch brothers, given their past affiliations and activities?
Since its establishment in 1944, the UNCF has worked across party lines and has taken money from people of all political persuasions. They have often had little choice, given the lack of access to capital that African Americans have had throughout American history. However, in the 1970s, under the leadership of Vernon Jordan and Christopher Edley Sr., the UNCF began to push back against the control that came bundled with white philanthropic support – control that manifested in the organization not being able to write a check for over $250 without the authorization of Rockefeller’s associates. The UNCF took on a stronger position, began hiring more black fund-raisers, and launched an edgy Ad Council campaign – "A Mind is a Terrible Thing to Waste" – that pushed back against American racism and the oppression of blacks.
Alternative Point of View
The UNCF's goal of helping students at black colleges requires a focus on the value of philanthropy, not the politics of the donor, writes Brian K. Bridges. Read more.
Times have changed. Taking a donation from the Koch brothers hammers away at the integrity of the UNCF. Yes, $25 million is alluring and could be used to help black students. However, the costs are too high. The end does not justify the means. The Koch brothers have a considerable history of supporting efforts to disenfranchise black voters through their backing of the American Legislative Exchange Council. In addition, the Koch brothers have given huge amounts of money to Tea Party candidates who oppose many policies, initiatives, and laws that empower African Americans.
The UNCF has also given the Koch brothers two seats on the five-person committee that determines who will receive the scholarship money that the Koch brothers donated. Specifically, “An advisory board consisting of two UNCF representatives, two Koch representatives, and one faculty member from an existing school will be created to review scholarship applications and select recipients.” This is dangerous and gives the Koch brothers too much influence.
I urge the UNCF to consider returning this money to the Koch brothers. Yes, I know the organization needs it, but the cost is too high. Call Warren Buffet and beg him to give you the money instead. Call Oprah and ask her to help. Call every wealthy celebrity/athlete/business person who cares about education and the rights of African Americans and ask them to give. Make a plea to every black college alumnus, noting that you need him or her to save the UNCF’s integrity.
As designed by Tuskegee University President Frederick D. Patterson, the United Negro College Fund is a hallmark of African-American ingenuity and entrepreneurship. It is the organization that taught all of us that a mind is a terrible thing to Waste. Please join me in letting the UNCF know that an organization’s integrity is also a terrible thing to lose.
Oh, and while you are at it, please make a donation to the UNCF and support historically black colleges and African-American students. It’s not right to complain unless you put your money where your mouth is. I’m making my donation right now.
Marybeth Gasman is professor of higher education in the Graduate School of Education at the University of Pennsylvania. She also serves as director of the Penn Center for Minority Serving Institutions. Gasman is the author of Envisioning Black Colleges: A History of the United Negro College Fund (John Hopkins University Press, 2007).
UNCF, the nation’s largest minority scholarship organization, recently announced a $25 million grant from longtime supporters Koch Industries and the Charles Koch Foundation. The grant will support nearly 3,000 merit-based scholarships for undergraduate, graduate, and postdoctoral students and offer $4 million in financial relief for the 37 UNCF-member historically black colleges and universities (HBCUs) that were affected by the Parent PLUS loan crisis.
It’s important to note that for over 70 years, UNCF has welcomed all donors. Our only litmus test has been: Do you share a deep commitment to our mission — a mission designed to create better futures for African Americans by helping students realize their dream of a college education?
For those of us at UNCF who devote all our time to helping young African Americans realize their dreams of a college education, we are grateful for this grant as it represents a major opportunity to support our students through college and prepare them for careers and leadership after they graduate.
As the head of UNCF’s Frederick D. Patterson Research Institute, my focus has always been on understanding what it takes, financially and academically, for our students to succeed in and after college. Our research has identified critical findings about the impact of UNCF scholarships on the lives of students. As our most recent major grantor, the Koch partnership is designed to maximize these findings.
It’s important to understand who our students are and why scholarships are so important to them. Their need for assistance is 29 percent greater than other African-American college students – the racial group which is already the highest recipients of Pell Grants. At the same time, our students demonstrate enormous persistence, despite these lack of resources. Almost all first-year UNCF scholarship recipients -- 94 percent -- return for their sophomore year. 70 percent graduate within six years -- far exceeding the national average for all students.
Remarkably, a $5,000 scholarship awarded to an African-American freshman increases his or her likelihood of graduating by over seven percentage points. Looking at the big picture, an across-the-board rise in graduation rates of seven percentage points would graduate 16,000 more African Americans every year, as evidenced in our recent report: "Building Better Futures: The Value of a UNCF Investment."
The UNCF/Koch Scholars Program was created with this research in mind and includes 1,400 annual awards of $5,000 for undergraduate students. In addition, the activities of the program, focused on innovation and entrepreneurialism, are designed to meet the expressed desires of our students. Twenty-two percent of all our students major in business. Many of them tell us they are interested in starting their own businesses. Our students are hungry for opportunities to succeed in their communities, and many will start their own enterprises.
The UNCF/Koch partnership also provides critical support to our HBCUs, which have been hard-hit by recent changes to the Parent PLUS loan program. HBCUs – already a best buy in higher education, with lower tuitions than comparable four-year private colleges – play a vital role in providing educational opportunities for millions of minorities, many of whom currently come from low-income families and are first-generation college students. Though they represented only three percent of all four‐ and two‐year colleges and universities in 2012, HBCUs enrolled 10 percent of African American undergrads, produced 19 percent of the nation's African‐American bachelor’s degrees, and generated 27 percent of African-American bachelors’ degrees in STEM fields.
As we worked with Koch Industries and the Charles Koch Foundation to develop this program, they also brought deep expertise from their longstanding commitment to higher education. The Charles Koch Foundation currently supports 340 programs at more than 250 colleges and universities across the country – both public and private schools, Ivy Leagues and HBCUs.
This year, UNCF awarded $100 million in scholarships to 12,000 deserving students, yet we still must turn down 9 out of every 10 qualified applicants. That is why we are asking all Americans to join in supporting UNCF and young African Americans who want a better future for themselves and their communities. These students deserve our support and we hope more Americans – of all political stripes and views -- will step up to meet this great need.
Brian K. Bridges is the executive director of UNCF’s Frederick D. Patterson Research Institute, which has produced considerable research on the value proposition of HBCUs and African American parent perceptions of education reform. Forthcoming reports investigate HBCU graduation rates and UNCF HBCU costs. For links to their reports please visit www.uncf.org/fdpri.
Two Temple U. professors are under fire for allegedly not disclosing in a working paper and in newspaper op-eds that their private prison-friendly research findings were funded in part by the private prison industry.
I admit it: I may have been wrong. As recently as a year ago, I wrote an essay in these pages explaining why the National Collegiate Athletic Association’s so-called amateur model would not break apart.
It has not occurred yet, but many signs point toward the end of the NCAA’s unpaid, never-allowed-to-be-paid college athlete.
Twenty-five years ago, I wrote College Sports Inc. and in the introduction disputed the NCAA’s “myth” that “College athletes are amateurs.... Reality: A school gives an athlete [particularly football and men’s basketball players] a full-ride grant in exchange for the athlete’s services in a commercial entertainment venture, namely playing on one of the school’s sports teams.”
More on the O'Bannon Case
Antitrust lawsuits could force much-needed change in college sports -- but Congress should step in instead, write Matt Mitten and Steve Ross. Read more.
As the trial gets under way, NCAA settles related lawsuit over video game images for $20 million. Read more.
The main reaction to that argument by college sports fans, at least those who wrote or spoke to me, was “You’re crazy,” or, more politely, “You don’t understand the reality of the amateur student-athlete”; in addition, many members of the sports media, in interviews and book reviews, echoed those sentiments. Both groups also dismissed the book’s title and denied the commercialism of big-time college sports. (The editors of Inside Higher Ed, in their previous capacity, were among the few who took the book’s arguments seriously.)
In the years since then, as the commercialism of big-time college football and basketball multiplied geometrically, fewer and fewer people told me that I was “crazy” and that the NCAA’s “student-athlete” model worked well, especially in the major revenue sports. Many more people started to share my point of view and argue for better compensation for athletes than athletic scholarships.
When asked whether anything could change the system, I always replied that reform could not come from within -- the NCAA had billions of reasons, most of them in U.S. currency, to maintain the status quo. But change could come from outside, especially if an athlete brought a lawsuit challenging the NCAA’s “amateur model” and the courts found in the athlete’s favor.
Frankly, I was skeptical about that ever happening: the athlete would need to find a high-powered law firm that could fight and beat the NCAA’s legion of well-paid lawyers; in addition, if the athlete was still playing college sports, he or she would have to deal with a head coach and assistants who would probably be very hostile to the lawsuit and who also controlled the athlete’s playing time.
I did not foresee that a former college athlete, Ed O’Bannon, would begin the legal challenge to the NCAA by claiming that he deserved some money from the association’s use of his image in an EA Sports video game. But I totally agreed with his argument. Then an excellent law firm took his case and he was joined as plaintiff by some other former players, including Oscar Robertson. Nevertheless, I still believed that victory for the O’Bannon group was a long shot and I argued in my piece for Inside Higher Ed last year that if the NCAA lost, it would fight the case through higher courts and to the Supreme Court itself, and very well might, in the end, prevail.
The case has now progressed through the pre-trial stages, and recently O’Bannon’s lawyers narrowed the focus to concentrate on what the lead lawyer Michael Hausfeld described as “their priority ... to cause change to the system and structure of college sports” i.e., blow up the NCAA’s “amateur model."
In addition, O’Bannon’s lawyers intentionally avoided a jury trial and ensured that the presiding judge, Claudia Wilken, will hear the case. So far in her pre-trial rulings, she seems sympathetic to the arguments of the O’Bannon side but, of course, that is still far from a final verdict in their favor. (See news article about the trial's first day here.)
What happens if O’Bannon wins and the NCAA’s “amateur model” is ruled invalid? Will the NCAA, with almost infinitely deep pockets, take the fight through higher courts and eventually overturn the original verdict?
The consensus of many lawyers familiar with the case is that appeals succeed when the judge and/or trial lawyers screw up in a major way, e.g., seriously misinterpret the law or make some other egregious blunder. These same lawyers take the view that Judge Wilken so far has been very careful not to make errors, making a successful appeal unlikely.
If O’Bannon’s team prevails, the post-mortems will begin, as well as predictions and plans for a model of college sports to replace the amateur one. In last year’s essay, I predicted that if the courts rule against the NCAA, the association will get Congress to institute college athlete amateurism as law. I am much less certain about that outcome: the combination of legislative gridlock and, as recent Congressional hearings on college sports demonstrated, opposition to the NCAA makes a new law more like a NCAA “Hail Mary” pass than a two-yard plunge for a TD.
Thus, if O’Bannon wins, the future of the current college sports model could be seriously threatened.
I know one thing for certain: I hereby resign from the fortune-telling business.
Murray Sperber teaches in the Cultural Studies of Sport in Education program at the University of California at Berkeley.
Yesterday, a federal judge heard opening arguments in one of several antitrust lawsuits challenging National Collegiate Athletic Association rules restricting the compensation intercollegiate athletes may receive for their sports participation. Some commentators herald these cases as a potential way to effectively resolve the problems inherent in commercialized college athletics.
In contrast, we believe that the potentially adverse consequences if these rules are invalidated make antitrust litigation a less attractive means of reforming college sports.
While the outcome of these cases could significantly change the way big-time college sports traditionally has operated, a free market solution mandated by antitrust law would inhibit universities from providing many athletes with a college education they would not otherwise receive, severely limit colleges’ ability to cross-subsidize women’s and men’s non-revenue sports with surplus funds from football and men’s basketball, and probably reduce the economic value of scholarships currently offered to many college football and basketball players, while providing greater economic benefits (including cash payments) to a relatively few star college football and basketball players.
More on the O'Bannon Case
A year after predicting that big-time college sports is invulnerable to legal challenges, Murray Sperber changes his mind. Read more.
As the trial gets under way, NCAA settles related lawsuit over video game images for $20 million. Read more.
As an alternative, we propose an open and transparent system of federal regulation combined with antitrust immunity for intercollegiate athletics reforms that are approved by a federal regulatory commission and voluntarily adopted by the NCAA.
Most sports sponsored by the NCAA and its 1,100 member universities -- particularly Division II and III sports, as well as Division I non-revenue sports -- are based on an idealized “amateur/education” model of intercollegiate athletics. The NCAA Constitution expressly states that the NCAA’s objective is to “retain a clear line of demarcation between intercollegiate athletics and professional sports” and that “[s]tudent-athletes shall be amateurs,” meaning “their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived.” Intercollegiate athletes “should be protected from exploitation by professional and commercial enterprises,” and university athletic programs should be operated with “prudent management and fiscal practices.”
The enormous popularity of and public demand for Division I football and men’s basketball, particularly games played by ACC, Big Ten, Big 12, Pac 12, and SEC universities, have given rise to a “commercial/education” model for these college sports, which collectively generate very substantial revenues. For example, the NCAA men’s basketball television contracts will generate $10.8 billion over 14 years. The broadcast rights for the Division I FBS College Football Playoff that will begin this year has an estimated worth of $7.3 billion over 12 years.
The pervasive commercialization of “big-time” college football and basketball directly reflects marketplace realities. Fueled by new media technologies needing popular content to attract viewers and advertisers, sports is one of the few things that millions of people watch live. Universities’ use of big-time sports as an entertainment product and marketing tool is a rational response to marketplace realities in an increasingly competitive higher education environment.
However, university leaders have often allowed this rampant commercialization to trump, rather than serve, the broader goals of higher education. For example, financial resources are often misallocated from academics to athletics. Each year, relatively few Division I athletic departments (approximately 20-25) generate net revenues, and university subsidies to balance their budgets are prevalent. Too often, the educational aspects of intercollegiate athletics are marginalized. As former Ohio State football coach Woody Hayes stated: “The coach will squeeze every bit of football from each player that he can, but in return the coach must give that man every legitimate measure of help he needs to get ‘the rest’ of his education.... We feel that the man who plays college football and does not graduate has been cheated." This is particularly true for students from underprivileged backgrounds, disproportionately students of color.
In addition, commercialization economically exploits elite Division I football and men’s basketball players. Big-time football and basketball programs generate billions of dollars of annual revenues, and many coaches are paid multimillion-dollar salaries. But the value of the players’ athletic scholarships is less than the full cost of attendance at their respective universities, and because of the extensive time demands of playing football or basketball at this level of competition, their lifestyle during the season generally is less than that enjoyed by their classmates, alumni, and fans. Although they receive high-quality coaching and training, only about 1 percent of them will ever play professionally in the NFL or NBA. Virtually none will earn enough from playing professionally to achieve lifetime financial security.
These realities are inconsistent with the NCAA’s constitutional objectives. Big-time football and basketball are not played by “amateurs,” and the “clear line of demarcation between intercollegiate athletics and professional sports” is blurred. Ironically, big-time intercollegiate athletics is the commercial enterprise causing the academic and economic exploitation of student-athletes. Prudent management and fiscal practices also are lacking because so few Division I athletic program generate net revenues.
At the same time, professionalization of big-time football and basketball programs is not socially optimal. Although commercialized college sports operate in a fundamentally different way from the amateur sports ideal -- because university athletics directors seek to maximize the commercial return on big-time sports -- they are not subject to the same economic forces as purely commercial enterprises like professional sports.
The “commercial/education” model is distinct from the “commercial/professional” model embodied by the NBA and NFL in several important respects. First, nonprofit universities use excess revenues generated by commercially successful football and men’s basketball programs to cross-subsidize women’s and men’s non-revenue sports rather than distributing these “profits” to owners or investors as professional leagues and clubs do.
Second, the commercial/education model features important social benefits not feasible for a “minor professional league,” including access to college educational opportunities for athletically gifted persons of all socioeconomic backgrounds, offering a very popular distinctive brand of sports entertainment, cross-subsidizing athletic participation opportunities for women, and potentially providing additional financial support for academic programs if university athletic departments exercise prudent fiscal management.
Third, maintaining this model will avoid the numerous collateral labor, tax, worker’s compensation, and other legal issues if intercollegiate athletics are professionalized by the unionization of college football and basketball players or they receive salaries for playing services greater than scholarships covering the full cost of university attendance through the operation of free market forces mandated by antitrust law. Refining this model to ensure student-athletes participating in commercialized sports receive the educational, physical, mental, and social benefits of intercollegiate athletics, which distinguishes them from professional sports, is a better alternative.
History demonstrates that economically self-interested NCAA internal reform will not effectively achieve these objectives. The former Congressman and NBA and college basketball player Tom McMillen correctly observes that “[t]here is just too much money involved in the multibillion-dollar industry that is college athletics to expect the participants to police themselves.” As evidenced by the current debate among Division I universities regarding full cost of attendance scholarships, universities’ economic interests inhibit the development of NCAA rules to remedy student-athlete exploitation and prevent subordination of academic values to the forces of commercialization.
Although external reform is necessary, micromanagement of intercollegiate athletics through contract and antitrust litigation is not the optimal solution. Courts will enforce the express terms of athletic scholarships, but will not otherwise use contract law to remedy any perceived unfairness in the relationship between a university and its athletes. Regardless of the outcome of the O’Bannon litigation, which challenges NCAA rules prohibiting college basketball and football players from being compensated for the use of their likenesses in video games and television broadcasts, and other pending antitrust cases, piecemeal antitrust analysis of individual NCAA rules will not broadly resolve systemic problems inherent in the production of intercollegiate athletics.
Although antitrust law prohibits unreasonable conduct, it does not require socially optimal policies (e.g., ensuring college football and basketball players receive educational and other non-economic benefits) and may inhibit the continuing cross-subsidization of women’s and non-revenue sports by refusing to recognize this practice as a procompetitive economic justification for NCAA rules that restrain competition in the production of college football and men’s basketball.
A Better Way
To better promote the educational values and economic sustainability of intercollegiate athletics, our proposed Congressional intercollegiate athletics reform legislation would have three mandatory substantive requirements: (1) at least a four-year athletic scholarship with limited university termination rights; (2) medical care or health insurance for all sports-related injuries and scholarship extensions for injuries; and (3) elimination of the NCAA requirement that Division I universities operate at least 14 intercollegiate sports. It would create an independent intercollegiate athletics oversight commission authorized to propose non-binding rules regulating intercollegiate athletics originating from Congress, of its own accord, or with any intercollegiate athletics stakeholder.
The commission would establish procedures providing transparency and access to all intercollegiate athletics stakeholders, including student-athletes and members of the public, akin to the Administrative Procedure Act’s notice and comment requirements for informal rule-making. NCAA, athletic conference, or university conduct taken in compliance with the commission’s rules would receive antitrust immunity, provided that any intercollegiate athletics stakeholder allegedly harmed by one of these entities’ conduct in compliance with the subject rule(s) may seek independent arbitral review to ensure the rule(s) have a reasoned basis consistent with the public interest.
In our recent Oregon Law Review article, “A Regulatory Solution to Better Promote the Educational Values and Economic Sustainability of Intercollegiate Athletics,” we suggest that the commission consider adopting rules creating financial incentives and funding to increase graduation rates for Division I football and men’s basketball players such as requiring universities to offer a graduation bonus (at least to those at-risk academically) and scholarship aid to those who leave school in good academic standing and later seek to complete their college education.
We also suggest rules that would define a “full athletic scholarship” to include modest stipends beyond tuition, fees, books, supplies and room and board to allow poor athletes to have a lifestyle consistent with many of their non-athlete classmates, which would not compromise the “clear line of demarcation” between college and professional sports. In addition, financial self-sufficiency rules would give each Division I university the flexibility to determine which mix of sports to offer and invest in to achieve its individualized academic and intercollegiate athletics mission consistent with Title IX, should be considered.
This federal regulatory commission would have the necessary authority to establish rules that effectively prevent intercollegiate athletics from crossing the line between a commercial/ education model and a commercial/professional model for intercollegiate sports, enhance the academic integrity of intercollegiate athletics, promote more competitive balance in intercollegiate sports competition, and require university athletic departments to operate with fiscal responsibility. The “carrot” of antitrust immunity would provide the NCAA, athletic conferences, and their member institutions with a significant incentive to adopt and comply with its rules to achieve these objectives, which would be the product of a transparent process in which all stakeholders (including student-athletes) and members of the public would have a full opportunity to be heard by the independent commission.
Matthew Mitten is professor of law and director of the National Sports Law Institute at Marquette University. Stephen F. Ross is Lewis H. Vovakis Faculty Scholar, professor of law, and director of the Institute for Sports Law, Policy and Research at Pennsylvania State University.