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Posts about college athletics appear separately on this site in the Ongoing Debate section under NCAA Sports.
A strike by the University of Missouri’s football team brought down the school’s president. Could similar tactics be used to get campus-sports stars across the country paid?
Read the original article and comments section >
A single weekend has changed the landscape in college sports. At the University of Missouri, where students had been protesting racial slurs and deprivations for more than a month, more than 30 black players announced a football strike on Saturday. On Monday both the campus chancellor and the university system’s president resigned. This swift coup demonstrated a potential for moral and financial power in concerted action by college athletes. The brief Missouri strike raises the prospect that similar tactics could be put to use by college athletes in an uphill struggle for their basic rights. […]
The moment for such a push may not be far off. Public support for the NCAA has declined in recent years and, what’s more, the current system has been the recipient of some less-than-indulgent court rulings. In August, the National Labor Relations Board overturned an earlier decision that would have allowed Northwestern University football players to vote on forming a trade union. Relieved NCAA officials cheered “the right call,†but the NLRB pointedly reserved judgment about whether college players should be legal employees, stressing that jurisdiction was declined largely because labor law does not apply to the many public universities competing with Northwestern in Big Ten sports. The NLRB deliberations raised a startling prospect: that college athletes could achieve union rights even while being denied the ordinary ones that most Americans hold individually, such as the right to seek compensation for work, something NCAA rules strictly forbid.
In September, NCAA lawyers won a mixed reprieve on its rule that college players must forever surrender any right to compensation from sports merchandise bearing their names and images. In the landmark O’Bannon case, the U.S. Court of Appeals for the Ninth Circuit did find the NCAA too restrictive under antitrust law, but the decision overturned a lower court’s corrective order mandating that new earnings be limited to $5,000 per player per year and be sequestered until graduation lest the extra money interfere with an athlete’s studies. While deferring on the question of whether athletes can receive any compensation beyond the costs of attending school, the judges opined that “courts cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules.â€
College administrators are preparing reluctant lines of retreat. Notre Dame’s president John Jenkins told The New York Times that Notre Dame would support changes in NCAA rules to allow athletes to sell their autographs or otherwise make money of their fame—provided that Notre Dame was not involved. “That seems to be where we are going,†he said. Similarly, the Pac-12 has proposed an amendment allowing players to pursue business opportunities so long as they do not identify or market themselves as athletes.
Disputes over money are straining the NCAA’s unity. Early this year, the five major sports conferences (the Atlantic Coast, Big Ten, Big 12, Pac-12, and Southeastern) obtained “autonomy†to promulgate rules that would permit a modest cost-of-living scholarship raise for athletes. These five major sports conferences own the new football playoff system, reaping already an extra $500 million above their $2 billion in annual television revenue. They share none of this aggregate bonanza with the NCAA or its thousand member schools. For now they do let the NCAA collect television’s $770 million annual payment for March Madness, which supplies nearly all NCAA income, but leaders of the five conferences raised a veiled threat to leave and take the basketball tournament with them.
State lawmakers, meanwhile, have stretched in vain to devise legal reinforcement for the economic constraints imposed by the NCAA’s compact among member schools. In 2014, when the NCAA suspended star running back Todd Gurley for four games for selling his autographed jersey, Georgia legislators channeled popular fury. “It hurt our season,†objected Representative Barry Fleming, introducing a criminal bill to incorporate NCAA rules indirectly by scapegoating any sports agent who “entices†an athlete to break them. Fleming lamented that Gurley’s mother “didn’t have funds to properly repair the roof on the trailer she raised him in,†but his bill sought recompense only for Georgia. The “Todd Gurley Law,†approved overwhelmingly in May 2015, authorizes the state to prosecute and sue an offending sports agent for the “loss of scholarships, loss of television revenue, loss of bowl revenue, and legal and other fees…†Although this untested recourse may be wildly impractical, and unconstitutional, the exercise allowed lawmakers to express their frustration with the NCAA.
Pressure has exposed cracks in the NCAA’s professed devotion to the welfare of college athletes. Under prodding from President Theodore Roosevelt, colleges formed the organization in 1906 with a mission to curtail severe and mortal injuries among football players. Even so, defense lawyers filed a blunt disclaimer in wrongful death litigation two years ago: “The NCAA denies that it has a legal duty to protect student-athletes.†This ongoing case arose from head-on “Oklahoma†tackling drills at Frostburg State University in Maryland, during which co-captain Derek Sheely persevered through three days of wooziness and bleeding ear canals before he collapsed to die of brain trauma. Sheely’s parents appealed for an NCAA investigation into possible negligence or worse, but the NCAA closed ranks with Frostburg State. The NCAA’s president Mark Emmert did apologize to U.S. senators in 2014 for “a terrible choice of words created by legal counsel to make a legal argument,†and he emphasized the NCAA’s “clear, moral obligation to do everything we can to support and protect student-athletes.†Yet lawyers continue to resist discovery motions for NCAA communications with Frostburg State about Derek Sheely, arguing that disclosure “may be harmful to the NCAA’s legitimate business interests.â€
These business interests remain foreign to the association’s public stance as a tax-exempt nonprofit service for college athletes, chartered to enhance their education. Less-than-lofty reminders of this conflict, such as semi-literate players, drive the NCAA to acquire—and major sports schools to offload—more authority over admissions and other academic standards, even though this function has pushed athletic regulators into the faculty domain. The NCAA juggles conflicting roles in the wake of egregious revelations at the University of North Carolina, which has admitted that some 3,100 students enrolled in phony “paper classes†and 560 forged grades aimed to keep UNC athletes eligible between 1993 and 2011. While reserving judgment and punishment of UNC in the four-year-old scandal, the NCAA is simultaneously a co-defendant with UNCin a multi-million-dollar class action filed by former UNC players who allege educational fraud. NCAA lawyers contend for a notion of academic guardianship short of responsibility, submitting in U.S. District Court “that the NCAA did not assume a duty to ensure the quality of the education student-athletes received at member institutions.â€
Sports schools debate vague educational improvements. The PAC-12 is circulating a resolution “to establish a contiguous eight-hour period between 9 p.m. and 6 a.m. where athletic activities cannot be required,†which, if passed by the Autonomy Session at next year’s NCAA Convention, would prescribe a sleep break in the grueling sports regimen. One committee proposes to consolidate the many rules about academic misconduct at “one location in the Division I manual.†Another reform would elevate boilerplate language asserting that sports are “a vital component of the educational program and athletes shall be an integral part of the student body.†Beneath this rhetoric, sports schools have rushed to build lavish academic facilities reserved for athletes, such as Texas A&M’s $27 million Nye Center, UNC’s $30 million Loudermilk Center, and Oregon’s $41.7 million Jaqua Center, where tutors accountable to the athletic department supervise a growing portion of the curriculum. As demonstrated by UNC’s track record, this separated sports academy can subject college players to a tragic parody of education, worse than a Division I football team coached by biology professors.
“I think we recognized that all of my football players are at-risk,â€Â Notre Dame coach Brian Kelly admitted of their academic well-being, “all of them—really.†He cited the demands of travel and nonstop training—“playing on the road, playing night games, getting home at 4 o’clock in the morning.†Still, somehow, only one idea provokes a battle cry to defend academic integrity. A right for athletes to seek fair monetary compensation would risk “Armageddon,â€Â as Notre Dame president Jenkins put it.
“That’s when we leave,â€Â he told New York Times reporter Dan Barry. “We will not tolerate that.†He vowed instead to collapse the entire Notre Dame sports machine into sandlot club teams. Shrewd observers have suspected a brazen strategic bluff, but Father Jenkins marshalled ethical and religious defenses grounded in his training. “I don’t think there’s a compulsion,†he said, “or some demand of justice.†He dissected a published charge that NCAA schools violate basic rights of their athletes (disclosure: specifically mine in The Atlantic), and found it “a little overheated.â€
“So the thesis is, we exploit these young people for financial gain,†Jenkins began. “Let’s just think about that.†He said Notre Dame takes money from its high-revenue football and basketball teams “to help soccer players play soccer, help fencers fence, help swimmers swim.†This benevolent practice fits the “essential character†of education. A diversion of funds does take place, he concluded, “but that doesn’t seem to be exploitation.â€
Aquinas and other theologians would look deeper. Only a tiny piece of captured sports revenue goes to the less marketable athletes. The bulk of it raises a golden pyramid in the sports establishment for head coaches, assistant coaches, broadcasters, strength coaches, advertisers, recruiters, builders, administrators, tutors, and so on. A secondary subsidy gives the facilities and non-student workers in money-losing sports a respectable share of the university brand, suchthat Florida paid its volleyball coach nearly $365,000 in 2009. In context, a noble motive to help swimmers and fencers must be weighed against the underlying conduct toward revenue-producing athletes. Schools pursue an aggressive commercial business outside the classroom by stripping the core talent of basic rights that other citizens take for granted. Indeed, NCAA rules forbid college players to seek any material reward, however slight, for athletic value, condemning their enterprise as uniquely unethical.
NCAA officials maintain that economic constraints on college athletes are vital for their own well-being and academic success. Emmert’s 2014 testimony to U.S. senators included an argument to this effect:
The most important thing for young people in college is to focus on education and earn their degrees. Attempts to label student-athletes as employees rather than students due to their participation in a voluntary athletic activity that establishes no expectation of compensation when they enroll can only blur and, in fact, undermine the focus on education. These attempts are ultimately not in the best interest of the student-athlete or the college environment.
Prominent economists, on the other hand, argue that big-time college sports are a textbook illustration of collusion to rig the labor market against the interest of those athletes. Such arguments put academic leaders and NCAA officials on notice that they may yet have to answer for unjust behavior. Gifts to needy athletes become far less righteous when extracted from others by fiat. If a charitable donation were atonement for ill-gotten gains, every thief would enjoy a handy alibi, and FIFA’s soccer executives would not be facing indictment for misappropriated funds.
Yet many outsiders of good will bridle at the prospect of a right to earn money for college athletes. Some fear selfishly that pay would threaten the collegiate sports they enjoy. Others cling to Socratic nostalgia, sensing that paid players would exacerbate sports greed that never should have taken hold at universities in the first place. College leaders promote both these apprehensions by classifying the college player a “student-athlete†of compound nature, fused together for a highly specialized purpose. Accordingly, the NCAA insists that no one can be eligible for pay and remain “first†or “primarily†a student, nor can any true student be an employee. This mantra defies reality along with common sense. When James Franco enrolled at UCLA while working on the set of Spider-Man 3, no one called him a “student-actor†to confiscate his income so that he could focus on schoolwork.
Franco is unusual as a public figure, but multiple roles abound on every campus. Of roughly 20 million undergraduates in the United States, 4 million have full-time jobs on the side, and 10 million more work part-time in every conceivable occupation. All these students and their teachers are charged to uphold academic integrity in class regardless of the separate responsibilities they manage elsewhere. Outside employment is neither rare nor taboo, which leaves the NCAA’s “student-athlete†regimen an outlier from any norm. Its hybrid pretense harms athletes on both fronts, reducing them to jock status in academic life and pupil-serfdom in commercialized sports.
Behind the calls for reform is moral clarity. It starts with the recognition that the NCAA’s economic restrictions on college athletes are bogus, without justification in law or principle. This is the thrust of an ongoing lawsuit filed by antitrust lawyer Jeffrey Kessler. If he wins, most colleges would scarcely notice, because they host humble but spirited games without scholarships or television contracts. The major sports schools will face massively difficult choices, however, in proportion to the cumulative distortion of their sports business. At least for a while, it will hurt for them to prioritize fairness over convenience and temptation.
Several forces could combine to create needed change. Ironically, the NCAA could come apart in ugly fights over skewed largesse. College players themselves, following the breakthrough example at Missouri, might devise symbolic protests. The courts, or Congress, eventually could confront the NCAA’s teetering hegemony. And colleges could set aside their self-interested bromides to launch a free-ranging inquiry on the relationship between education and the sports phenomenon on campus. No one has proved how or whether those two worlds can be made compatible, but intellectual honesty could light a better path.
July 9, 2014
Thank you, Senator Rockefeller. Thank you, Senator Thune. Thank you, members of the Committee. I am honored to be here.
My name is Taylor Branch, from Baltimore, Maryland. My educational background includes an AB degree in history from the University of North Carolina at Chapel Hill (1968) and an MPA (Master of Public Affairs) degree from the Woodrow Wilson School of Public and International Affairs at Princeton University (1970). Since 1976, I have made my living primarily as an independent author of books.
Pertinent to the title for your session today, “Pursuing the Well-Being and Academic Success of College Athletes,†I wrote a capsule history of the National Collegiate Athletic Association (NCAA) for the October 2011 issue of The Atlantic Monthly, entitled “The Shame of College Sports.†Because of widespread public debate that ensued, I expanded the Atlantic article into a digitally published e-book called The Cartel, and I proposed a short “Three-Point Reform Agenda for Sports in Higher Education.†The agenda is available on my website.
What follows are summary comments for possible discussion under three headings: Amateurism, Balance, and Equity.
AMATEURISM
“Amateurism†has become the distinguishing feature of NCAA governance. It is identified in official pronouncements as “a bedrock principle of college athletics .†The NCAA Bylaws define and mandate amateur conduct as follows: “Student athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student athletes should be protected from exploitation by professional and commercial enterprises.â€
The word “amateur†reflects conflicted attitudes about money, youth, and the purpose of recreation. Its broad ambivalence has opened a muddled flexibility in public habits, allowing the United States to become the world’s only nation to develop commercialized sports at institutions of higher learning. Even the major universities involved, which were founded to uphold intellectual rigor, routinely ignore or excuse the contradictions of a multi-billion-dollar side-industry built on their undergraduate students.
Confusion and mythology begin with the word itself. Dictionary synonyms for “amateur†range from a wholesome “enthusiast†or “devotee†to a bumbling “dabbler†or “rookie.†Merriam-Webster gives a stinging illustration of the latter tone: “The people running that company are a bunch of amateurs.†Accordingly, the same word expresses praise and scorn without distinction. This ambiguity gains reinforcement in our uniquely designed world of sports, where fans are encouraged to cheer and boo without thinking objectively.
The ideal of ancient Greek amateurism has always been misleading, because the athletes of Olympus actually competed for huge prizes. Aristotle researched well-rewarded champions back through records of the earliest Olympic festivals, and modern scholars have confirmed evidence of high-stakes victory and loss . “Ancient amateurism is a myth,†noted the classicist David Young . “Purists who refused to mix money with sport did not exist in the ancient world,†concludes Michael B. Poliakoff, “and victors’ monuments boast of success in the cash competitions as openly as they boast of victory in the sacred contests .â€
Golf legend Bobby Jones is enshrined in modern sports history as the model amateur, and gentleman, who declined every championship prize he earned. His reputation fits the true definition of “amateur,†which is derived from the Latin “amator,†or “ lover,†specifying one who chooses to pursue a skill out of subjective devotion rather than the hope of financial gain .
Some non-college sports still allow athletes to declare and renounce amateur status.
Significantly, students called themselves amateurs when they invented intercollegiate sports after the Civil War . Until 1905, students retained general control of the new phenomenon in everything from schedule and equipment to ticket sales. They recruited alumni to construct Harvard Stadium in 1903 with zero funds from the college . “Neither the faculties nor other critics assisted in building the structure of college athletics,†declared Walter Camp (Yale class of 1880), who became the “father†of college football in his spare time.
The NCAA, created in 1906, slowly transformed the amateur tradition inherited from college athletes . Its board declared a goal of “total faculty control†as late as 1922, and the weak NCAA organization could not hire its first full-time staff member until 1951 . After that, however, burgeoning revenue from television contracts allowed NCAA officials to enforce amateur rules as an objective requirement rather than a subjective choice . This is problematic, because attempts to regulate personal motivation and belief commonly run afoul of the Constitution. Even if internal standards were allowed, and somehow could be measured, NCAA rules contradict their requirement that college sports must be an “avocation,†or calling (“vocare,†to call, from “voc-, vox,†voice), by denying athletes an essential voice. NCAA rules govern the players by fiat, excluding them from membership and consent.
BALANCE
Checks and balances are required for sound governance, and the NCAA structure is unbalanced in at least four respects. First, NCAA enforcement suffers an inherent conflict of interest between alleged violations in football, as opposed to basketball, because the organization lost its television revenue from college football and is almost wholly dependent on a sole-source broadcasting contract for the March Madness basketball tournament .
Second, the NCAA structure creates a false impression of common practice between the few schools that aggressively commercialize college athletics—roughly 100-150 of some 1,200 NCAA members—and the vast majority of schools with small crowds and negligible sports revenue. An elastic NCAA “amateurism†stretches all the way from a Division III cross-country race to Notre Dame football on ESPN.
Third, NCAA officials resolutely obscure differences between commercialized sports and the academic mission on campus. In the classroom, colleges transfer highly valued expertise to students, but this traditional role is reversed in big-time sports. Athletes there deliver highly valued expertise to the colleges. This distinction is basic, and is fundamental to your committee’s stated purpose of promoting educational integrity. College athletes are, or should be, students in the classroom and competitors in the athletic department. They face multiple roles, like most Americans, but their conflicting demands cannot be managed or balanced until they are squarely recognized. The NCAA undermines this logical separation by insisting that sports are an educational supplement for a hybrid creature under its jurisdiction, called the “student-athlete.†Universities implicitly concur by offloading some of their academic responsibility to the NCAA.
Fourth, the NCAA and its member schools strip rights from athletes uniquely as a class. No college tries to ban remunerative work for all students, and no legislature could or would write laws to confiscate earnings from one targeted group of producers in a legitimate enterprise. On the contrary, universities sponsor extensive work-study programs, and student-citizens exercise freedom to market skills everywhere from bookstore jobs and pizza delivery to the entrepreneurial launch of Facebook—unless they are athletes. For college athletes alone, the NCAA brands such industry “unethical.â€
EQUITY
Basic fairness requires attention to the rights and freedoms of participants above the convenience of observers. Applied to college sports, this principle would mean that no freedom should be abridged because of athletic status. While I am neither a lawyer nor a professional economist, I find ample historical evidence that experts object to collusion in the NCAA’s regulatory structure.
In Microeconomics, a prominent textbook, professors Robert Pindyck and Daniel Rubinfeld make the NCAA a featured example of an economic cartel that reaps anti-competitive profit . The courts have agreed in two landmark cases. In NCAA v. Board of Regents of the University of Oklahoma (1984), the U.S. Supreme Court struck down the NCAA’s exclusive control of college football broadcasts as an illegal restraint of trade . Overnight, the major football schools won freedom to sell every broadcast their markets would bear, without having to share the proceeds with smaller schools through the NCAA. (“We eat what we kill,†bragged one official at the University of Texas.) In Law v. NCAA (1998), assistant coaches won a $54-million settlement along with an order vacating the NCAA’s $16,000 limit on starting salaries . The compensation of assistant football coaches has cracked the $1 million barrier since then , with salaries skyrocketing even in “non-revenue†sports. By 2010, the University of Florida paid its volleyball coach $365,000 .
Thus, the supervisors of college sports won economic freedom, and they enjoy enormous largesse from a distorted cartel market that now shackles only the most vital talent: the players. “To reduce bargaining power by student athletes,†wrote Pindyck and Reubinfeld, “the NCAA creates and enforces rules regarding eligibility and the terms of compensation .†NCAA officials, of course, steadfastly assert that their whole system is devoted to the educational benefit of college athletes. “Football will never again be placed ahead of educating, nurturing, and protecting young people,†NCAA president Mark Emmert vowed when he announced NCAA sanctions for the recent scandal at Penn State . Such professions must be reconciled with NCAA rules that systematically deny college athletes a full range of guaranteed rights—from due process and representation to the presumption of innocence. These rules can turn words on their head, like Alice in Wonderland. The NCAA’s bedrock pledge to avoid “commercial exploitation†of college athletes, for instance, aims to safeguard them from getting paid too much, or at all, rather than too little in the ordinary usage of the word exploit: “to use selfishly for one’s ends—employers who exploit their workers. â€
In closing, I would suggest one hopeful precedent from the past work of your Commerce Committee. This is not the first time that the governance of amateur sports, together with the education of college athletes, has presented a daunting tangle of passions and vested interests. Fifty years ago, an early bonanza in sports revenue intensified a bitter feud between the NCAA and the Amateur Athletic Union (AAU), which controlled access to the Olympic Games. AAU leaders accused an “unpatriotic†NCAA of sabotaging U.S. chances to win medals. They claimed that college athletes already were “paid,†and therefore not amateurs at all, once the NCAA approved athletic scholarships in 1956. NCAA officials retorted that AAU coaches were “parasites†on college training facilities. The two sides nitpicked, boycotted, sabotaged, and disqualified each other until President Kennedy enlisted no less a mediator than General Douglas MacArthur to mediate U.S. hopes for the 1964 Tokyo Olympics. The squabbling exhausted MacArthur, who recommended Blue Ribbon commissions that brought proposals eventually to this Committee.
Your predecessors shaped what became the Olympic and Amateur Sports Act of 1978 . One key provision of that law secured for active athletes a twenty-percent share of the voting seats on each of the thirty-nine new U.S. Olympic Committees. Though small, this representation soon transformed amateur sports. Granted a voice, athletes tipped the balance on governing committees in the United States and inexorably around the globe. Marathon races, then tennis tournaments, recognized a right for players to accept prize money and keep their Olympic eligibility. New leagues sprang up to popularize volleyball and other games with corporate sponsors. Olympic officials came to welcome “professional†competitors in every sport except boxing. By 1986, when the International Olympic Committee expunged the word “amateur†from its bylaws, the modified Games defied every prediction of disaster. Indeed, most people scarcely noticed the change. Some of you helped recognize success in the revised Ted Stevens Olympic and Amateur Sports Act of 1998.
This example suggests a good place to start. Wherever possible, make the athletes true citizens rather than glorified vassals in college sports. Challenge universities in turn to make wise, straightforward decisions about the compatibility of commercialized sports with education.
Thank you.
[1] Opening sentence of the NCAA website page headed, “Office of the President, Remaining Eligible, Amateurism,†at www.ncaa.com.
[2] NCAA Bylaw 2.9.
[3] Michael B. Poliakoff, Combat Sports in the Ancient World. New Haven: Yale University Press, 1987, pp. 3, 131.
[4] David Young, The Olympic Myth of Greek Amateur Athletics. Chicago: Ares Press, 1985, p. 7.
[5] Poliakoff, Combat Sports in the Ancient World, Â p. 19.
[6] http://www.merriam-webster.com/dictionary/amateur.
[7] Joseph N. Crowley, In the Arena: The NCAA’s First Century. Indianapolis: The NCAA, 2006, p. 37.
[8] Mark F. Bernstein, Football: The Ivy League Origins of an American Obsession. Philadelphia: University of Pennsylvania Press, 2001, p. 72.
[9] Ronald A. Smith, Sports & Freedom: The Rise of Big-Time College Athletics. New York: Oxford University Press, 2006,  pp. 83-88, 118.
[10] Crowley, In the Arena: The NCAA’s First Century, p. 44.
[11] Ibid., p. 67.
[12] John Sayle Watterson, College Football: History, Spectacle, Controversy. Baltimore: The Johns Hopkins University Press, 200, pp. 265-276; Paul R. Lawrence, Unsportsmanlike Conduct: The National Collegiate Athletic Association and the Business of Collge Football. New York: Praeger Publishers, 1987, pp. 71-82
[13] Lawrence, Unsportsmanlike Conduct, p. 148; Keith Dunnevant, The Fifty-Year Seduction. New York: St. Martin’s Press, 2004, pp. 160-167.
[14] Robert S. Pindyck and Daniel L. Rubinfeld, Microeconomics (Eighth Edition). New York: Prentice Hall, 2001, pp. 480-481.
[15] Dunnevant, The Fifty-Year Seduction, pp. 160-167.
[16] Law v. NCAA, 134 F.3d 1010 (10th Cir. 1998).
[17] Kevin Zimmerman, ÚSC’s Monte Kiffen’s Salary Highest Among NCAA assistant coaches,†SB Nation, Dec. 18, 2012.
[18] Joe Drape and Katie Thomas, “As Colleges Compete, Major Money Flows to Minor Sports,†New York Times, Sept. 2, 2010.
[19] Pindyck and Rubinfeld, Microeconomics, p. 455.
[20] Emmert quoted in Taylor Branch, “The NCAA Entrenches Itself as Part of the Problem,†The Chronicle of Higher Education, August 1, 2012.
[21] Listing for “exploit†at www.dictionary.reference.com.
[22] Kenny Moore, Bowerman and the Men of Oregon. New York: Rodale, Inc., 2006, p. 349; Joseph M. Turrini, The End of Amateurism in American Track and Field. Urbana: University of Illinois Press, 2010, pp. 74-83, 140-147.
I have concentrated this year on my career-long commitment to civil rights history, teaching an experimental online seminar at the University of Baltimore while promoting a newly published book, The King Years.
Still, with the NCAA’s March Madness approaching, more questions arrive about my recent foray into college sports. In The Cartel, I concluded that fans and educators have recoiled from basic issues of fairness. A rationalizing inertia undermines not only the rights of college athletes but the integrity of higher education.
(It is not particularly easy to find quick links to purchase The Cartel as an e-book or paperback on Byliner’s site. As such, I have provided them at the bottom of the blog post)
Here is a question to ponder as the annual frenzy over college basketball builds again in the coming weeks. Would it matter if the NCAA’s amateur rules were nullified at the vast majority of its 1,066 member schools that do not pursue commercialized sports?
More than 700 Division II and Division III institutions sponsor intense but relatively inconspicuous games, with few athletic scholarships or none. If permitted, would Pomona College, Florida Southern, and Saginaw Valley barge into the athletic marketplace? Would Middlebury and Texas Lutheran scramble to give athletes salaries on top of new scholarships?
Invariably, officials at such schools tell me no. They could not and would not pay players any more than they would offer wages to the drama club or dance troupe. They say professional shows would violate their educational mission.
I applaud this stance. No college should be compelled to start a side business or to pay anyone. We should recognize, however, that this focus at most colleges is grounded in principles and practicality wholly independent of NCAA rules. Indeed, the heads of smaller schools bristle at any suggestion that they shun commercialized sports because the NCAA requires it.
Here then is the rub. By lending—or renting—their educational idealism to the NCAA, the smaller colleges create a façade of universal amateurism that shields rapacious, predatory sports programs. Roughly a tenth of the NCAA membership has chosen to commercialize campus sports to the hilt. These big-time sports schools chase multimillion-dollar license and broadcast deals to finance a vast, lucrative complex for all but the core talent.  No voices—not even the blue-ribbon reform commissions—forthrightly justify the amateur vows imposed on college players.
A few academic thinkers have begun to cut through this bedrock presumption. In “The Illusion of Amateurism in College Athletics,†for instance, Warren Zola of Boston College dismantles the NCAA’s claim to exist solely for the educational enhancement of students through sports. Zola makes clear that education and big-money athletics are separate worlds, with distinct standards. Managing them starts with honesty.
Suppose for a moment that the 700 smaller colleges either withdrew from the NCAA or used their super-majority within it to renounce one-way amateurism. Nothing would change for most of these schools. They would retain proper responsibility both for their athletes in the classroom and for their students in the sports arena. To address conflict, they could apply the three-point agenda I gleaned from campus consultations last year: [1] Transparency (in academic and financial records); [2] Balance (in goals for education and sports); and [3] Equity (in governance).
By contrast, the powerhouse sports programs fail a key test of equity: “No freedom shall be abridged because of athletic status.â€Â The schools strip from athletes many basic freedoms that all fellow students—let alone other citizens—take for granted. These include the rights of due process, equal opportunity, consent, representation, labor, and fair market value. Such blanket deprivation lies beyond the reach of any single university or conference. It has prevailed by NCAA collusion and fiat, without sanction in law.
March Madness brings into focus the commercial engine of college sports. CBS-Turner pays $771 million directly to the NCAA in broadcast rights for the one-month event. This huge sum accounts for more than 90 percent of the NCAA’s annual income. Of the NCAA’s 340 Division I basketball teams, the 68 entrants selected each year come mostly from 124 BCS (Bowl Championship Series) schools that also dominate college football. An occasional “Cinderella†advances beyond early rounds, but last year, typically, 15 of the “Sweet 16†were BCS teams.
The BCS and NCAA are nervous rivals. Last month, in an interview with NPR host Tom Hall, I described them as “overlapping cartels.â€Â The BCS schools, which negotiate separate football contracts, have been jumping around wildly to consolidate bargaining strength in the BCS conferences that will launch a four-team football championship in 2014. Competitive complaints and legal pressures will push toward a three-round playoff structure, mimicking basketball’s “Elite Eight,†but one thing is certain: the NCAA will have no say or stake in the mammoth television bonuses to be reaped from a BCS gridiron tournament. It was precisely to avoid sharing revenue with NCAA Headquarters, and with its myriad small colleges, that Big Football revolted from NCAA control in the 1980s.
So the NCAA remains dependent on a basketball monopoly while the BCS builds its competing football juggernaut.  Nearly a thousand humbler colleges and universities give this unstable raw casino a fig leaf of amateur purpose. They may see no reason to question their minimal participation, which serves tradition and unity. Yet if dollar-driven campus games rest on the exploitation of athletes, as I contend, corrective action is never wrong.  It might spur a broader wake-up to skewed values in higher education.
To the inevitable howls from our college sports empire, amateur schools have a truly educational response: “If you don’t want to pay your students, don’t use them for business.â€
BUY THE CARTEL ONLINE
Electronic media: iTunes | Amazon | Barnes & Noble | Kobo
Paperback: Blurb
Three-Point Reform Agenda for Sports in Higher Education
1 . TRANSPARENCY
At any college or university that hosts an intercollegiate sports program, the principal stakeholders must be assured candid, complete, and verifiable records for athletic revenues and obligations as well as for academic standards and performance. These records should be open for public inspection and accountability, subject only to appropriate privacy protections for the identity of individual students.
The body of sports stakeholders should include representatives of the school’s trustees and administrative leadership, its athletic department, its faculty, and students both on and off its sports teams.
2. Â BALANCE
Stakeholders must exercise joint responsibility for the separate spheres of academics and sports. To uphold integrity in both areas, they must manage conflict and competing goals.
They should, for instance, address in detail any variance allowed for athletic recruits in college admissions. More generally, they could allocate a percentage of sports broadcasting and advertising receipts to the academic budget. They could adjust the class calendar to accommodate seasonal demands on athletes, and take steps to encourage interaction in campus life between athletes and non-athletes. They should seek external alignments to compete athletically with schools of comparable balance and purpose, as reflected in conference rules.
3. Â EQUITY
Colleges and universities shall respect the basic rights of all students, applied consistently to athletes and non-athletes alike. On campus, as under the law, adult students retain the full attributes of citizenship. These include the rights and duties of informed consent, equal opportunity, representative government, and due process.
No freedom or right shall be abridged because of athletic status. To meet practical needs and aspirations, all students are eligible to seek fair compensation in full- or part-time jobs, entrepreneurial ventures, teaching appointments, work-study programs, and all other legitimate enterprise whether for or separate from their school.
Three-Point Reform Agenda for Sports in Higher Education (PDF)
Author of “A Critique of the Misguided Calls to Give Up on the Student-Athlete Idealâ€
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.
George Dohrmann of Sports Illustrated has launched an ambitious model to investigate the feasibility of paying college athletes. His results so far are posted on the SI site, prefaced admirably as follows: “The mission of our universities is to educate, but college sports is big business, and no one wants young athletes exploited.”
I applaud Dohrmann for this effort. It seems well motivated, and it shows that knowledgable people are thinking seriously at last about the fundamental structure of college sports.
Still, readers should pay attention to the basic design of Dohrmann’s model. Its starting point is the current athletic budget at leading universities, and its question is how much if anything those athletic departments can afford to pay their players. Not surprisingly, he concludes that “the vast majority of athletic departments do not generate enough profit to pay athletes.” Any revenue for such pay has been allocated elsewhere. Dohrmann’s model tracks the difficulty of re-allocation on a presumption that money to pay football and basketball players must come from the elimination of other teams.
This framework seems skewed to me. It purports to be an open-minded exploration while tacitly accepting too much of the status quo. “SI [Sports Illustrated] is not advocating paying college players,” Dohrmann states at the outset. “That’s a decision best left to college administrators.” Embedded there is a presumption that those administrators unilaterally can and should decide whether or not to pay their key talent. Why should they? What boss would give up discounted labor, especially when the resultant savings have been distributed among the bosses and coaches themselves?
I suggest a more basic starting point. Who should be involved in decisions about pay for college players? Does exclusion from the process exploit them inherently? If athletes are entitled to bargain for their own livelihood, like other citizens, then colleges must be free to pay them or not. A market would evolve. Salaries for coaches doubtless would decline. The overall college community, including the players, would make decisions about whether and how big-time sports are compatible with education. Players would cope straightforwardly with separate standards in two careers, academics and (often) commercialized sports.
Currently the system is rigged by a shaky cartel agreement through the NCAA. My survey of NCAA history, which appeared in The Atlantic, is now expanded and current for $3.99 in a Byliner.com ebook, “The Cartel,”. By confronting the hoax of amateurism, Sports Illustrated could re-build George Dohrmann’s worthy model on a sounder basis.
Several domestic and foreign media outlets have asked whether I see connections between the explosive Penn State sexual abuse scandal and the structural flaws I perceived in a recent survey of NCAA college sports.
The short answer is yes. (My inquiry first published in The Atlantic’s October issue, is currently available in an expanded Byliner.com ebook, The Cartel.)
Any prolonged exploitation demands aquiescence that can be imposed only by gross disparities in power. The governance of college sports is telling in this respect. By fiat, the NCAA has concentrated almost complete control in precisely those college officials alreay fired or indicted at Penn State: the coaches and chief administrators.
So far, the NCAA has remained almost silent on the periphery of an unfolding investigation at Penn State. “To be sure,” said NCAA President Mark Emmert in a four-sentence statement, “civil and criminal law will always take precdence over [NCAA] Association rules.”
This deference to law is proper. It is also strikingly humble in contrast to the NCAA’s customary posture of quasi-legal authority. Sports officials speak formally of NCAA “legislation,” and the enforcement process for college scandals mimics the judicial aura of regular courts.
The gruesome allegations from Penn State stripped pretense quickly aside. NCAA rules have no standing in law. Their enormous influence on college campuses, allocating billions of sports dollars nationwide, rest wholly on private collusion without sanction from any level of government.
I think the most positive development since the Penn State revelations has been a rash of spontaneous seminars to examine the insulated world of college sports. How could athletic officials conceal abuses so long at such human cost? What reconciles the diverse roles of student and citizen, player and worker, teacher and fan? Can big-revenue sports be compatible with quality education? Who decides?
There is a healthy new cry for accountability. Some professors argue that faculties must no longer abdicate their share of responsibility for the university as a whole. Some students realize that NCAA rules exclude them all from membership, denying players the basic rights of representation, due process, opportunity, property, and freedom, among others.
Inevitably, reform would grant NCAA players, like Olympians, a stake in sports governance. Newly established checks and balances could curb the corruptions of concentrated power, but change will not come easy. The NCAA system is deeply entrenched at more than a hundred schools where big-money sports are glorified. It promotes greed, punishes the weak, rewards the exploiters, and fleeces the players, all while claiming to police itself. An overhaul, while sadly too late for the Penn State victims, is long overdue.
Seth Davis has attacked me again in a CBS Sports Network commentary on November 7. Here’s a YouTube link, with apologies for the introductory commercial.
I’ve transcribed Davis’s remarks. They are printed below so that readers can compare our views in one spot.
First, some housekeeping. Davis says in this broadcast that my original magazine article appeared in the September issue of The Atlantic entitled “The Shame of the NCAA.” It was the October issue, in fact, and the title was “The Shame of College Sports.” These errors, while minor, took some willful neglect because the broadcast projected an image of the actual Atlantic cover on the screen next to Davis. (The article has now been expanded into a $3.99 Byliner.com ebook, “The Cartel,” available at http://bit.ly/o76GQN.)
His substitution of “NCAA” for “College Sports” could have been Freudian. Davis does seem to identify with the NCAA, and champion its cause, but it may be purely coincidental that his parent CBS network pays the NCAA $770+ million each year just for broadcast rights to the March Madness college basketball tournament.
Davis indicts me for failing to cheer an NCAA reform handed down in the past few stormy weeks, which allows the major sports conferences to pay college players up to $2,000 more per year. He says I’m not cheering because my real goal is to destroy college sports. That’s not true. I’m a UNC alum who loves Carolina basketball among many college sports. My inquiry led me to question and finally reject only the NCAA’s right to impose amateur rules on college players without their consent.
In numerous interviews lately, I’ve welcomed the announced bonus for players while pointing out that the NCAA tortures ordinary language to insist that the $2,000 cash is not “pay.” The NCAA wants credit for generosity without any breech of amateur pretense. If the slightest compensation for athletic performance were acknowledged as such, players inevitably would gain standing to bargain. Instead, the NCAA tenaciously asserts a unilateral right to bestow benefits or not at its discretion, like tips to a bellman or waiter.
The tip system has become harder to defend in lavishly commercialized college sports. By excluding players from basic rights, the NCAA concentrates power unchecked in college athletic departments, where coaches have the gall to say they must keep the money for the players’ own good, to protect the amateur purity of youth.
Seth Davis distorts my portrayal of NCAA history, but it is far more important that he has ducked every challenge to justify the amateur rules imposed uniquely on college athletes. Here as usual he resorts to bluster for lack of grounds in law or principle. “Whether you like it or not,” Davis declared on the air, “college athletes are in fact amateurs.” This dismissive stance faithfully echoes the NCAA.
Contrived monopoly is a formula for exploitation, economic and otherwise, as sadly evident in the unfolding criminal scandal at Penn State. The best news from there so far is that classes across the Penn State campus are beginning ad hoc discussions on the structure and governance of college sports.
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CBS Sports Network Commentary
Broadcast November 7, 2011
SETH DAVIS: The NCAA’s Division I Board of Directors recently approved legislation that will allow conferences to give athletes an additional two thousand dollars to meet the costs of attending school. Since so many critics have been calling for just that kind of change, you might have expected the change to be greeted by roars of approval. Instead, it’s been met with deafening silence. That’s because many of the people who have demanded more money for students are actually demanding the end of college sports as we know it.
That is the explicitly expressed hope of renowned civil rights historian Taylor Branch, whose story headlined “The Shame of the NCAA†caused massive ripples when it was published in the September issue of The Atlantic. In the countless interviews Branch has given since then, he has repeated his prediction—his wish—that the NCAA will someday soon go away. He has pointed out that the United States is the only country where major college sports takes place, as if that’s a bad thing. And he has repeated his ludicrous analogy comparing college athletes on scholarships to slaves on a plantation.
There’s a great disconnect between the dialogue initiated by Branch’s article and the one that produced the reforms the NCAA just passed. I think that’s a good thing, because whether you like it or not, college athletes are in fact amateurs. They’ll never be compensated like professionals, but I’m glad the NCAA has found a way to get them a little bit more money to go with the priceless opportunity they’ve already been given to receive a free education.
Sports Illustrated columnist Seth Davis has posted a blog on SI.com tagged “Rebutting Taylor Branch.†Let me respond briefly. First, here are links to the full text on both sides: my article last week in The Atlantic, “The Shame of College Sports,†and his criticism of it on Wednesday. Interested readers can compare them fully for context.
I wish Davis’s blog had offered a space as commonly allotted for direct comment, and I offer him a reciprocal opportunity on my site to clarify and narrow our disagreements. Transparent dialogue can reduce the waste of straw arguments and mischaracterization.
We agree on one stark reality well stated by him: “There is no movement—none—within the actual governing structure of the NCAA to professionalize college athletes.†We also agree that sports departments lose money now at nearly every college, and that relatively few could afford to pay any athletes if allowed to do so.
The nub of our dispute is over the general terms of service for college athletes. Davis says I overlook the fact that athletes are paid already with scholarship packages, while I say these in-kind benefits beg the fundamental question of whether the colleges and the athletes should be free to bargain for more or less.
To insist that athletic scholarships settle the compensation issue is like saying that any worker who gets medical coverage doesn’t need or deserve a salary. Worse, the NCAA demands adherence to this absurd standard by forbidding both sides to negotiate changes. Non-playing adults thus reserve to themselves all the wealth generated by college sports, whereas the NCAA punishes highly-valued athletes (famously the Georgia Bulldogs receiver A. J. Green last year) even for selling an old jersey.
Davis argues that scholarships are more than enough. (“If anything,†he writes, “most of these guys are overpaid.â€) This is a convenient perspective for those who enjoy or benefit from the current structure, but that doesn’t make it fair. The NCAA’s unique amateur rules are imposed by private collusion of the colleges without sanction in law. College players, unlike Olympic athletes, are excluded from NCAA membership and from all rights of due process by the consortium that tries to govern them.
To me, the basics of genuine reform are simple. No college should be required to pay or not to pay students who play for them in any sport. Athletes should have the rights other citizens take for granted, and should be represented in every organization that depends upon their skill and devotion. We are the only country in the world that hosts professionalized sports at institutions of higher learning. There are profound questions about whether these two missions can or should coexist, but genuine education will not begin until we stop pretending that compensation itself makes college athletes “dirty.â€
I invite Seth Davis to meet me in any verbal forum that can substitute for mid-court or the fifty-yard line. There we can trade questions and answers openly. He can cross-examine me on any argument or fact in my survey of college sports from the Civil War to Cam Newton. We may have fun, because the arena is inherently colorful and wondrous, but I will challenge him to declare his basic premise. Exactly how does he justify fastening amateurism on somebody else, and on college athletes alone? By what presumption must we all be satisfied that they are not earning too much? Here’s hoping that Davis and I can push forward in constructive debate.
