Republican lawmakers and the National Collegiate Athletic Association file amicus briefs urging National Labor Relations Board to reverse a regional director's decision allowing football players to unionize.
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.
The collegiate athletic model is under attack. A Greek chorus chants the refrain: college athletics are professional athletics; college athletics are divorced from campus life; college athletes are students in name only. Second verse same as the first.
The NCAA has three choices.
1. Do nothing. Hope the noise goes away. Bet that neither college athlete unions nor Congress will step in to fill the void.
2. Give up on the collegiate model, go pro, and pay college athletes.
3. Recalibrate the collegiate model to get closer to what colleges and campuses are all about while finding ways to enhance services and benefits to college athletes.
The NCAA Division I Board, comprising university presidents and chancellors, chose Door Number 3. It created a Steering Committee to get it done. (Division I includes all major football powers; its teams compete in the lucrative men’s basketball tournament.) So far, so good.
No issue in college athletics is exclusively academic/campus or exclusively athletics. Both perspectives need to be at the table if policy solutions are to be well-vetted and balance the requisites of athletics and the campus.
Directors of athletics (ADs) administer athletic programs. Of course they need to be heard, loud and clear, on the rules that govern their operation. Faculty athletic representatives (FARs) are faculty members with oversight of athletics on their campuses. Their voice is critical to re-energizing the “college” part of college athletics and monitoring to prevent relapse.
Suppose, however, that one believes, against all evidence, that issues can be neatly cubbyholed as academic or athletic. Suppose one believes that the collegiate model over all, in perception and substance, can be recalibrated with minimal faculty input. Suppose one believes the faculty role can and should be restricted to deal with academic issues only.
Well, let’s see where that takes us. In the current Division I structure, the Academic Cabinet, with nine faculty representatives out of 23 members, deals with academic matters – initial eligibility, continuing eligibility, academic integrity, evaluation of transcripts, etc. In the current structure, authority to develop a metric for assessing acceptable team overall academic performance, and the enforcement mechanism to push improvement, vests in a 16-member Committee on Academic Performance (CAP), where two FARs serve along with presidents and chancellors and campus athletic and academic administrators.
In the proposed new Division I, the functions of the Committee on Academic Performance and the Academic Cabinet will merge. It looks like the new Cabinet will have 20 members and report directly to the Division I Board. Best guess is that its membership will mirror CAP rather than the current Academic Cabinet. If so, faculty members will have two or at most three seats out of 20.
In the Division I governance model proposed by the Steering Committee, the Board will move from an operational policy-making role to one of oversight. The reason: presidents and chancellors have neither the time nor the focused operational expertise to be hands-on administrators.
But the Division I Board plans to stay active and hands-on with regard to the Academic Cabinet. Writ large, this makes sense. Athletic academic reform needs presidents and chancellors at the helm. For the most part, they were faculty members before they were administrators, and they understand academic issues from the inside.
Academic issues are neither understood nor resolved in a vacuum, however. Issues in a medical college also are academic. But a university president would not try to perform surgery. Or to set the criteria for how an operating room should function.
Under the Steering Committee’s proposal for how all other (non-academic) policy will be adopted, a new Division I Council will do the heavy lifting. Twenty-three of its 38 members (60 percent) will be ADs. Another four will be conference commissioners. Two spots are reserved for athletes. The remaining nine spots will have conference and other campus athletic administrators and, oh yes, FARs will be included in the mix. Unless my math fails me, that works out to maybe five FARs. And these five will come from schools in all three Division I subdivisions.
Schools in the five major conferences -- ACC, Big Ten, Big 12, Pac 12, and SEC -- are the main target for claims that the collegiate model is a sham. They also face the greatest external pressures, from litigation to potential legislative intervention. These schools will have autonomy to handle some matters. For everything else the new Division I Council will be in charge.
The five conferences will have a weighted vote equal to about 38 percent of all Division I votes. Right now, one representative from each of the five major conferences will cast the conference vote. The Steering Committee declined to guarantee a strong FAR voice from these conferences by having 10 representatives -- an AD and FAR -- from each of the five conferences.
No doubt the Steering Committee faced a massive task in devising a new governance model. A lot of divergent interests were on the table, and a lot of stakeholders had to be accommodated. Liaisons to the Steering Committee met with Conference commissioners and ADs to get their input as the governance model was being built. FARs were not included.
With so many moving parts, any proposal had to be a compromise. Some compromises optimally weigh all interests. Some, like the present governance proposal, do not. Hopefully, there still is time to get it changed.
The Steering Committee’s task was to frame a new Division I governance structure to preserve and enhance the collegiate model. Try defining a university without mentioning faculty. It can’t be done.
But the proposed new Division I governance structure for college athletics leaves faculty as the odd person out. Go figure.
Josephine J. (Jo) Potuto is the Richard H. Larson Professor of Constitutional Law and faculty athletics representative at the University of Nebraska College of Law.
Under a new governance structure endorsed by Division I leaders, universities in the five biggest conferences would be free to make their own rules to spend more money on athletes, and players and athletic directors would have unprecedented voting rights.