Reply to Law Professor Neil H. Buchanan

Published on 07 February 2012 by in College Sports, NCAA

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Author of “A Critique of the Misguided Calls to Give Up on the Student-Athlete Ideal”

Forgive me, blogosphere. Because of MLK Day and other obligations, I have neglected a month’s continuing fallout over my survey of NCAA college sports in The Atlantic magazine (“The Shame of College Sports,” October 2011 issue) and its expanded ebook The Cartel: Inside the Rise and Imminent Fall of the NCAA (published by Byliner.com).

There have been many kind reviews and questions mixed with a steady stream of attacks. I have offered numerous comments on Twitter, which in itself has been an adventure in digital media for me. Previous blogs have included two exchanges with CBS Sports commentator Seth Davis.

I am glad that so many lawyers have entered the debate. Neil H. Buchanan, a prominent economist and law professor at George Washington University, posted a sweeping response to me in his January 5, 2012 “Verdict” column for Justia.com. Here is a link: http://verdict.justia.com/category/entertainment-law. Please read the full posting if you are interested in the NCAA controversy. Professor Buchanan reflects mainstream assumptions in sports culture as well as law. I am going to say very harsh things about his argument. Still, I do not wish to distort his position as I believe he distorts mine.

Buchanan makes three essential points. First, he dismisses my work as the product of “righteous anger,” extremism, compromised judgment, and a “morally repugnant” analogy between big-time college sports and the slave plantations of old. To do so in passing, he ignores substance and context along with my explicit qualifications.

Second, Buchanan declares a primary goal of reform to be the protection of college athletes from exploitation. I agree. From there, however, he focuses on physical exploitation (concussions, injuries, etc.) to the exclusion of other kinds of abuse. He glosses over the potential for economic, sexual, academic, or legal exploitation.

Most oddly, for a law professor, Buchanan never discusses legal redress. Not once does he discuss any rights by which college players could or should protect themselves like other citizens. Buchanan treats them as helpless ciphers rather than participants. Indeed, no baby in diapers could be more dependent, excluded, and voiceless than college athletes in his design for their welfare.

Third, Buchanan proposes one catchall solution. He says a strengthened and resolute NCAA should divert money from high-salaried coaches and bloated athletic budgets into scholarship support for higher education. This idea sounds noble until you think. It is irrelevant to his stated goal of protecting athletes. Legally, it overlooks antitrust decisions by the Supreme Court that prohibit collusive limits on sports earnings by colleges and their employees.

Buchanan’s proposal, even if it were practical, would do nothing but transfer funds from athletic departments into the academic reservoir from which he draws his own salary. Thus, by cant and paternalism, NCAA supporters perpetuate the abridgment of fundamental rights for college athletes.

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One Response to “Reply to Law Professor Neil H. Buchanan”

  1. Nando says:

    Neil H. Buchanan is interested in keeping the “higher education” gravy train running. He likewise has attacked those who have argued convincingly – and relying on charts, graphs, figures, industry statements and BLS data – that law schools are producing too many graduates, charging too much in tuition, and not teaching them how to practice law. Of course, he does not bother to back up his knee jerk reactions with any facts.