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.
Colleges and universities prepare students for almost all professions of note -- except sports. To be sure, we have students pursuing degrees in sports management, kinesiology, and other related fields, but unlike students who come to study music performance, acting, creative writing and other talent- and performance-based professions, our students who come with athletic talent and seek opportunities to perform are left out of the academic curriculum.
This is a significant omission, for as we all know, sports is big business. It is one of America's major entertainment industries, and surely rivals orchestras, theaters, operas and movies as professional post-college employment venues. We provide degrees in music performance, we have superb academic programs in opera focused on the production of major entertainment products by the university, and we have countless theatrical productions produced on campus by students majoring in acting.
When we teach our students the profession of sports performance, however, whether in football, basketball, tennis, or track, we deny them the structure and benefit of a focused curriculum and degree.
It's time for the sports performance degree. As anyone who watches the college sports enterprise knows, the profession of sports performance (that is, being a professional athlete, whether on the golf tour or in professional baseball) is demanding, highly technical, and requires a combination of talent, skill, training, preparation, and dedication.
One only needs to observe the increasingly sophisticated methods and techniques required of baseball and football players, or the careful analysis that goes into learning golf techniques or tennis strategy, to understand that we should provide our students interested in sports performance with similar opportunities to those we provide students seeking a career as a violinist or operatic tenor.
To be sure, academic programs in music, or theater, or dance with courses in theory and history, as well as performance, have been with us for a long time, and have well-established traditions and curriculums. Sports performance, with its tradition of amateur participation and a longstanding existence outside of the academic program as an extracurricular activity, does not have the benefit of an academic tradition.
Yet today, we know that sports performance is a rigorous, demanding, and highly professionalized career for many people. Some participate as performers; others with a performance background in college athletics move into management, coaching, and other professional roles related to sports. The skills of sports performance are nontrivial and currently have highly specialized training and study required to perform them well, and most professional athletes acquire sophisticated training and understanding of their games to ensure a successful career.
It's now time to reexamine the nature of sports performance and see if we can construct an academically viable course of study analogous to what we have done for music or dance.
How can we make the transition from sports as extracurricular activity to sports as an academic discipline? The first step is to recognize that sports as an extracurricular activity already exists in the university through elaborate systems of intramural and recreational sports, and as well through club sports that play competitions in nonprofessional contexts with other universities. But for those students seeking a career in sports performance, the requirements for a degree would need to be carefully structured and clearly specified.
The best model would follow closely on the academic requirements expected of music performance majors at many of our premier universities: Indiana, Florida State, Michigan, the University of Southern California, to take a few examples. In these programs, the students spend countless hours honing their performance skills and abilities through individual practice and have many performance requirements where they must display their skills before highly critical and expert audiences.
While an opera season at Indiana University may not draw quite the audience of an Indiana University basketball season, it surely would draw an audience that exceeds that of the IU golf or tennis team. It is not the size of the audience in any event that matters; what matters is the rigor of the preparation required of a student pursuing a performance major.
If a student wants to receive a performance degree, they not only must perform at the highest skill level (and be recruited and selected based on auditions that demonstrate the talent and commitment required to succeed), but they must also take a range of academic courses related to their profession. Music theory, composition, music history for the musician, for example. In addition, of course, they must fulfill the university's general education requirements.
In constructing our sports major, most universities already have the academic subjects that would be required through departments of kinesiology, sports management, etc. They have courses in sports history, sports law, sports finance. What they need is a structured curriculum for a student majoring in sports performance with a specialty in individual sports performance or a specialty in team sports performance.
That major would surely require participation on an intercollegiate sports team, and like those who audition and are chosen for music performance majors, they would need to have the requisite skills and abilities to compete at the highest levels. All current intercollegiate athletes already are required to participate in the general education curriculum and be on track to major. The only difference here is to have the opportunity to seek a sports performance degree.
To gain the confidence of our colleagues, we would need to ensure that the sports major achieves academic integrity. This would require an accrediting association for degrees in sports performance composed of representatives from the strong academic fields of sports management, kinesiology, business, and music performance; participation by representatives of regional accreditation agencies; and most likely engagement with the NCAA, especially using faculty athletic representatives and perhaps a designated presidential member. Periodic reviews of sports performance programs with accreditation upheld or denied, the establishment of models and norms for the organization and structure of the sports performance degree, and continuing engagement with the professional world of sports would all be part of the sports degree accreditation system.
Along with the establishment of the rigorous program for an academic degree, universities would need to create opportunities for students to move easily from college to professional performance whenever it appears appropriate. If a student in opera performance tried out for the Metropolitan Opera and was selected to become part of that organization, they would surely leave the university degree program and begin their professional career immediately, and we would celebrate that departure as a recognition of our ability to identify talent, train professionals, and launch a career, even if with an incomplete degree. Similarly, students in a sports degree program in, say golf, might well drop out and join the tour with the expectation of an early start on their professional life. Indeed, we already do this for college baseball players.
Many, but not all students in the sports performance major would receive scholarships based on their talent and performance ability, just as students in other performance related majors receive scholarships based on auditions and assessments of talent and promise. Within this context, the athletic director, coaches, and other personnel who teach the skills, strategy, and operations of athletic programs would carry faculty status, not necessarily tenure-track depending on the nature of their work. The athletic department in collaboration with the university's academic affairs office and in compliance with accreditation expectations, would develop standards for performance instruction.
The university faculty, through its normal process, would determine the appropriate credit to be granted for particular instructional and performance activity. This, too, would draw on the experience of music performance programs. Indeed, in those programs, the faculty are often superstars drawn from the professional world who teach performance in their fields on a temporary or guest faculty basis.
Will it take some effort to construct this sports performance major? To be sure. But the consequence of continuing to operate intercollegiate sports as an auxiliary entertainment enterprise are significantly damaging to the success of the college sports activity and detrimental to the success of students participating in these displays of talent and skill to require colleges and universities to take on this challenge.
What we need now is a courageous university president with a strong athletic program to launch this process and mobilize the support and enthusiasm of like-minded innovators.
John Lombardi is former president of Louisiana State University and the University of Florida and author of How Universities Work (Johns Hopkins University Press).