- Sports antitrust lawyer's latest target: NCAA scholarship limits
- Putting the Amateur Myth to Rest
- College sports would be better reformed through federal regulation than lawsuits (essay)
- Essay: Longtime critic applauds NCAA action on multiyear scholarships for athletes
- Mixed ruling in athletes' likeness lawsuit against the NCAA
- A fix for the big-time college football mess (essay)
- Essay: Big-time college athletes deserve financial support and security
- Lawsuits pose existential threat to the NCAA (essay)
College Sports Reform: Now? Never?
From The Atlantic to sports radio, talk of a "crisis" in big-time college athletics is rampant. If you pay attention to history, the likelihood of transformative change is tiny. Unless ...
Virtually no matter where you turn for your news and commentary -- from sophisticated publications like The Atlantic to rants on sports radio for the lowbrow among us -- you're likely to have been left in recent months with the overwhelming impression that big-time college sports is in a state of crisis, and that momentum is building for some kind of radical action that would result in a wholesale transformation of the enterprise.
Don't hold your breath.
That’s not to say that all is well in college sports -- it’s impossible to argue otherwise given recent scandals at some of the highest-profile universities in the country -- or to write off as meaningless various efforts by the National Collegiate Athletic Association and others to toughen academic rules, increase financial support for athletes, or otherwise alter the landscape.
But the long and surprisingly stubborn history of intercollegiate athletics argues for intense skepticism about arguments that transformative, fundamental change is likely, or even possible.
The basic arc of big-time college sports -- ever-growing commercialism driven by rapidly escalating sums of money, increasing erosion of the enterprise's amateur nature -- has been left largely undisturbed by the periodic "reform" movements that, like the current one, have followed spurts of scandal and produced frenetic and sometimes meaningful changes. Given the basic tension between the nature of the academic enterprise and the highly commercialized athletics programs in which the top football and basketball programs engage, there are really only two ways to fundamentally "fix" college athletics: make college athletics fully "amateur" again (or perhaps for the first time, since histories suggest it was never thus) or more openly professionalize it. (An important caveat: We're speaking here primarily only of Division I football and men's basketball, since much of what happens in other sports and in other NCAA divisions remains closer to the actual educational activity originally envisioned.)
The sorts of reforms that the NCAA has begun in the current cycle -- increasing scholarship amounts for players, strengthening penalties on rule breakers, raising academic standards for freshman and transfer athletes -- are well-intentioned tinkering around the edges in the first direction. Radical changes that truly would transform the enterprise -- such as ending the requirement that players be students, or openly paying salaries to athletes, as advocated by the historian Taylor Branch in The Atlantic and other commentators, meanwhile -- would head in the second, but are so unlikely that they aren’t worth spending much time on.
“We’re in one of those periodic cycles where a bunch of things have aligned to put the industry into crisis mode, and they will do some things that make it appear like they’re going to clean up their act,” says Gary R. Roberts, dean of the law school at Indiana University and, for many years, a faculty athletics representative to the NCAA. “But they’ll try to get out of it with as little disruption as possible. The truth is that you’re not going to fundamentally change the nature of the enterprise in our lifetimes.”
NCAA President Mark Emmert concurs with Roberts's overall assessment, though he obviously believes in the NCAA’s capacity to improve the situation.
“There is an enormous amount of uninformed, emotion-driven debate and conversation going on right now,” Emmert said in an interview this fall. “It’s clearly the case that we’re in one of what has been an episodic sequence in the history of intercollegiate athletics. You have problems, and then you get a moment of change, an inflection point of ability to get things done that are very, very important. That’s what we’re doing.”
In a set of interviews with nearly a dozen longtime observers and leaders of big-time college athletics, consensus emerged that given the political, financial and other forces that support and benefit from the current system of big-time college sports, it would take an external “asteroid” of major proportions to bring about truly transformative change (though it was difficult to find consensus on the likelihood of any one such thunderbolt actually happening).
Charles Clotfelter, an economist at Duke University and author of the 2010 book Big-Time Sports in American Universities, says a ruling against the NCAA in pending lawsuits challenging its use of athletes’ likenesses, for instance, could undermine the longstanding argument that athletes are amateurs and, with it, alter the financial underpinnings of major college sports. He also says he believes that concerns about brain injuries to players in football and other sports could escalate to a point that created mammoth legal liabilities for universities and the enterprise as a whole.
Jeff Orleans, former executive director of the Ivy League, imagines a scenario in which advocates for women’s sports brought a lawsuit against scores of colleges alleging systemic violation of federal sex-discrimination laws in athletics. Findings that many colleges are out of compliance with federal requirements governing equitable treatment of female athletes, he says, could force the sort of major cutbacks in spending on football programs that institutions are loath to make.
Perhaps the most serious threat to big-time college sports – and one that most observers have long viewed as unlikely ever to happen – is the potential stripping of the federal tax exemption that college athletics programs, because they use “amateur” athletes and are part of educational institutions, enjoy. Among other things, the exemption allows much of the programs’ revenue to be accumulated tax-free, and treats the players as students receiving scholarships rather than employees getting paid. The loss of the tax exemption could well force sports programs to pay salaries and workers' compensation benefits to players and taxes on their television and other revenues, and make the economics of the enterprise fall apart.
“There is an enormous amount of uninformed, emotion-driven debate and conversation going on right now.”
--Mark Emmert, NCAA
The idea that members of Congress would ever end the tax exemption remains unlikely. But the recent, almost-out-of-control round of conference realignment -- if taken to the extreme that some observers see it heading, in a splintering of the NCAA -- could create a scenario that so infuriates lawmakers that what was once thought impossible seems less so.
The Current 'Crisis'
There is probably little need to recount the litany of recent controversies and problems in big-time sports, since some of them have been so dramatic that they have been front-page news.
But from the heart-rending child abuse scandals involving former coaches at Pennsylvania State and Syracuse Universities, more-traditional alleged (and in some cases acknowledged) violations of NCAA recruiting and other rules at such highly visible institutions as Ohio State University and the Universities of Miami, North Carolina at Chapel Hill, etc., the number and high-profile nature of the cases and their settings have created the impression that college sports is out of control.
In his much-cited Atlantic article last fall, Branch, the well-regarded historian, compared the NCAA to a slavery-era plantation that “in its zealous defense of bogus principles” of amateurism, “sometimes destroys the dreams of innocent young athletes.”
He continued: “The time has come for a major overhaul. And whether the powers that be like it or not, big changes are coming. Threats loom on multiple fronts: in Congress, the courts, breakaway athletic conferences, student rebellion, and public disgust. Swaddled in gauzy cliches, the NCAA presides over a vast, teetering glory.”
It will come as no surprise that Emmert, the NCAA president, takes issue with those and other analyses. People who “think we should completely throw in the towel to commercialism, and go to professionalism … are just wrong,” he says. “As long as this is affiliated with higher education, as long as these programs are a part of our universities, then they simply philosophically must be amateur in nature.
“Are there contradictions and a collision between the commercial model and the collegiate model? Yes. And what I’m saying doesn’t mean I don’t think we need fundamental change. We do. We are changing a lot of things in very fundamental ways.”
Last summer, in the wake of the Miami and Ohio State scandals but before Penn State exploded into the headlines, Emmert called a retreat for university presidents that produced a set of recommended actions that, for an organization that usually acts with almost painful deliberation, represented lightning-quick movement.
Among the changes, on which the NCAA’s presidential leaders acted within weeks, were:
- New rules that toughened the academic standards that freshman and transfer athletes must meet to be eligible to compete and raised the Academic Progress Rate that teams must reach to stay in good standing with the NCAA.
- Gave athletic conferences the flexibility to give athletes multiyear athletic scholarships (as opposed to single year grants) and to award athletically related financial aid equal to the full cost of attendance at their institutions (though those rules have since been challenged by significantly numbers of less-wealthy NCAA members).
- Prune the NCAA's rulebook to eliminate "nuisance rules" and revamp the NCAA's penalty structure in ways that both enforce the rules more consistently and punish major rule breakers harshly.
Those changes, Emmert says, show that the association under his leadership is both serious about and capable of making major changes that can respond to the sorts of concerns raised by Branch and other critics, by treating athletes more fairly and punishing rule breakers more harshly. “I have great concern about the problems that we have right now in intercollegiate athletics, and we have to fix intercollegiate athletics,” he says. “But we have plenty of authority if the membership wants to exercise it and move in that direction, and we’re seeing that it does.”
But as Clotfelter points out in his book, and as Branch recounts in his article, the history of college sports is defined by a time-honored tradition of periods of scandal followed by reform. The NCAA itself was formed, at the urging of President Teddy Roosevelt, amid concerns about football-related deaths.
Four decades later, in 1948, amid widespread reports of payments to athletes, the NCAA established a “sanity code” that toughened penalties for rule-breaking, but a slew of scandals in the mid-1980s – most notably a major case of academic wrongdoing at the University of Georgia – led the association to restructure its governance to put presidents more firmly in charge, create a so-called death penalty on repeat rules violators, and institute tougher academic eligibility requirements for freshman athletes.
Is This Time Different?
Yet despite all those episodes, the basic arc of college sports has been maintained. The fact that the dollar totals have more zeroes -- football coaches earn more than $5 million a year; the biggest sports programs have budgets of more than $130 million a year – have increased critics’ arguments about the inequitable treatment of players, and the financial and other incentives to break the rules. But does anything differentiate the current spate of rule breaking and scandal from previous ones, in a way that might prompt a more dramatic response or suggest that more transformative change might result this time around?
No, argues Murray Sperber, a visiting professor in the Graduate School of Education at the University of California at Berkeley and author of such books at Beer and Circus: How Big-Time College Sports Is Crippling Undergraduate Education. While the rash of recent scandals may seem more widespread or serious than others, “what’s really changed is the Internet, which gives the illusion that there are more scandals,” he says. “The spotlight has gotten a lot more intense. Schools can’t turn it off like they could for generations and generations.”
Donna A. Lopiano, president of the Sports Management Resources consulting firm and a former director of women’s athletics at the University of Texas at Austin, says that “tremendous amount of money going into athletics as part of the arms race” is one factor that differentiates the current round of problems from those of the past. But she also cites the “increasing independence of athletics programs and power coaches,” which was widely viewed as a contributing factor in the scandals at Penn State and Ohio State, among other places.
Roberts, the Indiana law dean, agrees that the ever-growing sums of money flowing through the college sports enterprise are certainly increasing “the incentives to win at all costs. When you make millions, you need to win to keep making those millions, so cheating is probably increasing at a marginal rate.”
But that does not mean that today’s scandals are any likelier than those in the past to prompt significant changes, Roberts says. “As somebody who’s been in this business a long time, I’ve watched the cycles come and go. I don’t think it will fundamentally change things.”
Given how steadily lurching big-time college sports has moved in the same basic direction for decades, despite persistent efforts to moderate it, is anything likely to change that dynamic?
Totally independently, Orleans and Clotfelter both cited the “asteroid theory” of change – that only an unlikely external event of monumental proportions might do so. In addition to the concussion-related concerns raised by Clotfelter and the potential for a broad sex-discrimination lawsuit cited by Orleans, others mentioned the possibility that the federal government could declare that the Bowl Championship Series – big-time college football’s current method for determining a national champion – violates federal antitrust laws.
The possibility most commonly mentioned by those interviewed is the prospect of a major loss for the NCAA in one of a series of lawsuits challenging the association’s use of the “likeness” of players in video games and other commercialized activities.
"I have been at Congressional hearings and have seen otherwise reasonable members of Congress become blithering idiots."
--Gary Roberts, Indiana U.
Legal experts are deeply divided on whether the players will ultimately win such a lawsuit, but “all it takes is one rogue judge,” Orleans says, to rule that the case raises “significant issues about amateurism in college sports and the propriety of how money is distributed. And as soon as a judge writes this, bells go off in the Justice Department [about possible antitrust violations], and anything can happen,” he says.
Roberts, the Indiana dean, calls the suit’s antitrust claims “absurd” and says that even if a judge were to rule in the players’ favor and say that they deserved compensation, it just means that when kids graduate from college, universities will either pay them a little money and give them a license” for some of the revenue.
And if by chance a court were to declare the NCAA to be a monopoly, Roberts says, “Congress would pass an [antitrust] exemption in a week.” Politicians are overwhelmingly supportive of college sports programs in their states; “I have been at Congressional hearings and have seen otherwise reasonable members of Congress become blithering idiots” around prominent college football and basketball coaches,” he says.
“There is no way that the political system is going to drive fundamental change in big-time college sports,” he says.
The Breakup Scenario
If it is true both that (1) the stripping of a tax exemption is one of the biggest potential threats to college sports, and (2) that, as Roberts suggests, members of Congress are loath to hurt the big-time sports programs in their states, does it follow that the loss of nonprofit tax status for college sports could never happen? Not necessarily -- and a scenario exists (and has grown in likelihood in recent months) in which some big-time-sports-playing universities themselves kill the golden goose.
This possibility flows from the continuing, even intensifying, process of conference realignment in which the members of the NCAA's Division I (and especially those that play football at its highest level, the Football Bowl Subdivision) have engaged over the last few years. At various points over the last year, in particular, the wheeling and dealing that has unfolded as several major football-playing conferences have sought to expand (or defend) their memberships to increase (or maintain) their attractiveness to television networks has appeared on the verge of spinning out of control, with university presidents trading charges of backstabbing and the entire process being derided as an unadulterated money grab, leaving longstanding regional and other affiliations in the dust.
At times in recent months, the situation has seemed momentous enough and uncontrollable enough (despite public and backroom efforts by NCAA leaders to calm it) that it could lead to an outcome that has hung over the NCAA for literally decades: that a few dozen universities, tired of being constrained in their ambition and spending by the association's less-wealthy members, could form themselves into a handful of "superconferences," create their own national football playoff system, and possibly even peel away from the NCAA and create their own basketball tournament, destroying the NCAA's gold-plated chief asset in the process.
There have always been, and remain, reasons why this is unlikely to happen -- longtime non-sports alliances among colleges and universities, fear of alienating state legislators, etc. -- and many observers believe those reasons will prevent any such mutiny. But other college sports experts perceive a greater likelihood of this happening than they have at any time in recent decades, and say that the outcome could ultimately destroy the underlying foundation of big-time college sports, by shredding the political support that Roberts and others believe protects it. Here's how.
It's 2013, and after a period of calm, the conference merry-go-round cycles up in earnest again. This time, four superconferences of 16 teams each emerge, and the leagues, frustrated by NCAA-imposed limits on football scholarships and season lengths, create their own playoff system that goes beyond the current Bowl Championship Series and formally excludes all others. Even at that stage -- far short of a full-scale withdrawal from the NCAA -- the more than two dozen senators in the numerous Western and Northeastern states that have no universities in one of the four conferences grow more furious and step up calls we've already heard for antitrust investigations into big-time football.
Those senators might not be the only ones unhappy. While a list of those institutions included and excluded from such a superconference setup is always open to debate, it's not hard to envision a U.S. senator with South Texas roots taking offense at the University of Houston and Rice University being left behind, or a California senator being unhappy with most members of the University of California system being left in the dust by Berkeley and UCLA, or the equivalent in the University of North Carolina System (with UNC-Chapel Hill and North Carolina State). It's also possible that a university like Rutgers or the University of Connecticut could be left out of a superconference mix, giving New Jersey's and Connecticut's senators reason to fume.
If the greed were to go a step further, with the superconference members contemplating their own basketball tournament and putting the many billions of dollars from the existing NCAA tournament that flow to the association's other 1,000-plus members at risk, the legion of Congressmen and women whose constituent colleges and universities see their financial and athletics futures threatened would grow to include all lawmakers who represent historically black institutions (since all of them would be left behind) and colleges that more or less ignore football but have high-octane basketball programs, like Georgetown, Gonzaga and Villanova, to name a few.
And while it is often suggested that the most-visible and richest sports programs own all the power in the NCAA, the Ivy League, Division III and other nonscholarship programs have something on which the sports powerhouses arguably depend: the ability to cloak themselves in the "amateur" mantle that the most competitive and commercialized football and basketball programs have increasing difficulty claiming.
In a restructured college sports landscape in which the "haves" and the "have-nots" are much more clearly and formally separated, it is not too farfetched to envision a group of angry members of Congress looking very differently than they historically have at the question of whether big-time sports is truly an amateur enterprise that warrants tax exemption as an educational activity.
And a "No" answer to that question -- forcing colleges to pay taxes on their sports revenues, to pay athletes market wages and workmen's compensation, etc. -- would truly transform college sports in a way that nothing being discussed now can.
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