Submitted by Bob Kustra on August 5, 2014 - 3:00am
I recently left the confines of Division I athletics and delivered a commencement address at a Division III college where athletes compete without scholarship in true amateur fashion. If you travel far enough back in the last century, that’s the way it was in intercollegiate athletics, as evidenced by Daniel James Brown’s fine book on the University of Washington rowing team, The Boys in the Boat. It was the 1930s and the young men who won the gold medal in crew at Hitler’s Olympics were not on scholarship. They were just glad to get on the team so the university could line up a part-time job on campus to help pay their tuition.
The NCAA has ranged far afield from the amateur athletics model of days gone by and most of the reforms recently proposed by the NCAA would move it even closer to professional sports. Of course, Division I athletics is already big business, producing millions of dollars in revenue for universities willing and able to make the most expensive investments in their programs -- programs that look less and less like they bear any relationship to the university’s mission and role.
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Over the past three decades, the NCAA has regularly tweaked its governance structure to perpetuate the dominance of a few dozen universities. The so-called “big five” conferences, which have the most resources, continue to pull the strings, with two conferences (the Big Ten and Southeastern Athletic Conferences) taking the lead in calling the shots for the others.. It seems they are never satisfied with their bloated athletic budgets, especially when threatened in recent years by upstart, so-called mid-major programs that steal recruits, oftentimes beat the big boys, “mess with” the national rankings and sometimes take postseason bowl games and revenue away from the anointed few. If they have the resources to outspend their Division I colleagues, then why not fix the NCAA rules to let them do so.
The latest round of NCAA reforms proposes a new governance structure that President Harris Pastides of the University of South Carolina described in a New York Times op-ed piece as allowing universities “to independently determine at what level they can provide resources to benefit students.” Now there’s a surefire way to kick off a race for larger athletics budgets. At the very least, they are to be commended for their honesty.
Of course, this grab for money and power is couched in the noblest of terms -- it’s all about the athletes and paying them beyond the scholarship because they generate revenue for the programs.
Forget the fact that only two Division I sports -- men’s football and men’s basketball -- produce the millions of dollars that fuel the NCAA sports empire and member universities, although all but a couple of dozen operate in the red anyway. All other athletes, while valuable members of the university community, play little if any role in revenue generation for the university. Their teams are called non-revenue sports for a reason.
So what do full scholarship athletes receive now for competing in Division 1 athletics? They receive a scholarship consisting of full tuition, room and board, books and fees, and will leave the university primarily debt-free, unlike the average university student, who will leave with $23,000 of debt.
In some of the most expensive sports -- football and basketball come to mind -- special training tables give athletes access to a quantity and quality of food not provided to other students. Athletic programs provide academic support in the form of study halls, computer access, tutoring, advising and life skills programming, usually not available to their non-athlete counterparts. Athletes receive special academic privileges such as signing up for class before the rush of other students, guaranteeing athletes get the classes of their choice. Athletes receive free professional-level coaching, strength and fitness training, nutritional guidance and access to athletic trainers and physical therapists. In the case of football, athletes travel to games in chartered jets with first-class luxury.
It is sometimes hard to believe that our finest universities and their presidents are behind this effort to fuel what the former NCAA President Myles Brand termed the “arms race” in Division I athletic budgets. You would think that the primacy of the academic mission and the long-held principles of amateur athletics would trump the drive toward commercialism and professionalism in the athletic department. You would think that university presidents would be up in arms at the way the NFL and the NBA use the universities’ athletic departments as training camps and minor league clubs for professional sports.
It is beyond me why university presidents are so quick to fall in line with powerful conference commissioners who seem to be calling the shots with these NCAA reforms. But I have no doubt why the power conferences are working to separate themselves from some Division I universities who still see the value of equity and fairness in athletic funding. Lately, those pesky mid-major programs such as Boise State -- my university -- and many others have showed up the big boys for what they are -- wasteful models of athletic spending that cannot be justified.
The year that Boise State beat Oklahoma in the Fiesta Bowl our entire football budget was less than the salary alone of the Oklahoma football coach. Today, as a USA Today database shows, the Boise State budget for the entire athletic program is $37 million -- and I’m sure there are some who think that excessive. But contrast that budget to the University of Alabama at $124 million, the University of Illinois at $77 million, the University of Nebraska at $83 million or the University of Missouri at $64 million.
What accounts for the difference, you ask? The absurd specialization in staffing and coaching accounts for some of this, with recruiting coaches’ assignments reaching as far down as the sophomore year in high school. How embarrassing to spend all that money and then have someone with half the budget or less beat you on Saturday afternoon or, more problematical, beat you in the academic progress department, as Boise State has done to most of Division I for the past four years!
It’s time for the NCAA to take a stand for fiscal responsibility and the rightful place of intercollegiate athletics in American higher education and put a stop to the arms race by rejecting all reforms that turn an already premier and first-class experience for athletes who are also students into a system that simply models professional sports.
Three aspects of the NCAA reforms do make sense and should take precedence over all other issues. First, improved medical monitoring and changes in some rules on the field can avoid the serious aftereffects of concussion injuries. Second, student-athletes deserve the opportunity to come back after their playing days and finish their education at the university’s expense. Finally, there must be rules about how to protect a student from loss of an athletic scholarship because of a career-ending injury.
In the end, it’s about getting our priorities straight and focusing on the real student-athlete issues, not those fabricated by the elite few with ulterior motives.
The NCAA cannot fall prey to phony arguments about student welfare when the real goal of some of these so-called reformers is to create a plutocracy of athletic programs that serves no useful purpose in American higher education.
Bob Kustra serves as President of Boise State University.
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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.”
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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.
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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.