‘For all the outrage, the real scandal is . . . two of the noble principles on which the NCAA justifies its existence—“amateurism” and the “student-athlete”—are cynical hoaxes, legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes. The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.’
First off, go read the article. Please. It’s a really good article and it covers not just what’s happening today but the history of how it got that way.
However, both for my own reference in case the link ever goes dead and for anyone who just wants to read a quick overview instead of seven pages, here are some highlights & excerpts.
The NCAA (National Collegiate Athletics Association) was not always the colossus who could break individual players or entire teams that it has become. Due to some very shrewd positioning and arm-twisting by the newly hired executive director Walter Byers, the NCAA — which had no actual legal authority over college teams — in 1951-1954 a few schools accepted judgments by an infractions board over grade-boosting for athletes at the College of William and Mary and a points-shaving-in-return-for-pay-from-gamblers scandal at five New York colleges and University of Kentucky. At the same time, televised college sports was considered a threat to ticket sales so when Byers said no college sports could be televised except for a few licensed by the NCAA, and the University of Pennsylvania and Notre Dame wanted to make their own decisions, Byers told all the other schools to refuse to play with University of Pennsylvania and Notre Dame and for various reasons the other schools went along and University of Pennsylvania and Notre Dame gave up the fight. (The article doesn’t say how long they held out, so I don’t know if they folded immediately or after a long grudge match.)
That’s it. That why the NCAA has so much power now. They claimed they had a ton of authority, got other organizations to act like they had a ton of authority, and sixty years later people still act like they have a ton of authority. But the NCAA was never designated by government as the overseeing body, they really have no legal standing just by their existence.
But the NCAA is very good at writing contracts that make sure they have a lot of authority over the other people and entities that sign those contracts.
‘But after an inquiry that took me into locker rooms and ivory towers across the country, I have come to believe that sentiment blinds us to what’s before our eyes. Big-time college sports are fully commercialized. Billions of dollars flow through them each year. The NCAA makes money, and enables universities and corporations to make money, from the unpaid labor of young athletes.
Slavery analogies should be used carefully. College athletes are not slaves. Yet to survey the scene—corporations and universities enriching themselves on the backs of uncompensated young men, whose status as “student-athletes” deprives them of the right to due process guaranteed by the Constitution—is to catch an unmistakable whiff of the plantation. Perhaps a more apt metaphor is colonialism: college sports, as overseen by the NCAA, is a system imposed by well-meaning paternalists and rationalized with hoary sentiments about caring for the well-being of the colonized.’
In the early 1980s, a number of college football programs finally filed an anti-trust suit against the NCAA and won the right to negotiate their own broadcasting contracts. But the NCAA still has the rights to the March Madness Final Four basketball tournament — the rights to which last year went for $771 million.
And then there’s rights. The NCAA has written their contracts so they retain rights to any sports games that fall under their authority (which I would again like to point out is something they only have because of contracts signed with them, not because they enjoy any inherent special privilege — they’re a private company, not a government or government-appointed entity). You want to see some old games? Buy the DVDs. You want to create a video game with likenesses or names of actual past college players in it? Talk to the NCAA.
Don’t talk to the players, they actually give up all rights to their own likenesses for the duration they play when they sign a contract with the NCAA. (Although according to the article, there’s now a class-action antitrust lawsuit against the NCAA regarding them retaining control of players’ likenesses for perpetuity. Personally I hope the plaintiffs win.)
All those licensing fees are a lot of money. And when there’s that much money at stake, people can convince themselves of a lot of things. Or they can come up with a lot of nice rationalizations to hide behind, depending on how you look at it and how low your opinion is of the people being discussed.
And if I’m starting to sound thoroughly cynical, this article will leave you feeling that way.
‘Today, much of the NCAA’s moral authority—indeed much of the justification for its existence—is vested in its claim to protect what it calls the “student-athlete.” The term is meant to conjure the nobility of amateurism, and the precedence of scholarship over athletic endeavor. But the origins of the “student-athlete” lie not in a disinterested ideal but in a sophistic formulation designed, as the sports economist Andrew Zimbalist has written, to help the NCAA in its “fight against workmen’s compensation insurance claims for injured football players.”
. . .
The term student-athlete was deliberately ambiguous. College players were not students at play (which might understate their athletic obligations), nor were they just athletes in college (which might imply they were professionals). That they were high-performance athletes meant they could be forgiven for not meeting the academic standards of their peers; that they were students meant they did not have to be compensated, ever, for anything more than the cost of their studies. Student-athlete became the NCAA’s signature term, repeated constantly in and out of courtrooms.
Using the “student-athlete” defense, colleges have compiled a string of victories in liability cases.’
Go back and read that again if you missed it the first time: the whole point of the term “student-athlete” is so the NCAA and colleges can have it both ways. If the people playing on college teams were purely athletes, then they’d get wages and workmen’s compensation coverage. So they’re not just athletes, they’re student-athletes. But wait a minute, if they’re students shouldn’t they be held to the same standards as other students, get bad grades if they can’t do the material, etc? Shouldn’t their classes and education take precedence over how well the team is doing? Oh no, they’re not just students, they’re student-athletes.
In all honesty, I must admit I came to this article with an already jaded view of college sports. My younger sister is very tall & did well in basketball in high school. She was heavily recruited by various colleges. Wanting an actual education, with an actual degree at the end of it, she was very open with recruiters and coaches about wanting to go to a school that offered an engineering program (she eventually got a degree in mechanical engineering) and that she would be taking a regular load of classes and wanted assurances that she would have enough time to do all the schoolwork those classes required.
The coaches were not as supportive of this attitude as one might have expected from people who were employed at a college or university — institutions which theoretically are supposed to place some priority on education. My sister even had one coach finally come out and say “I’m very worried, I’m starting to get the impression you’ll put academics ahead of sports”.
Years ago, discussing with a co-worker my sister’s experiences with college sports, my co-worker (a man named Greg) took me aside and explained to me very seriously that college coaches might act like they’re the players’ friends but appearances could be deceiving. He had to come to this conclusion after playing on the college basketball team at a community college in Portland. At the time, a number of his teammates were all skipping classes and homework because each was convinced that he would be drafted into the NBA. Greg said he finally pointed out to some of his friends on the team that only the top one or two players on the team had even the slimmest of chances of being drafted, and seeing as how none of them were one of those top two perhaps they all should start hitting the books a bit more.
My co-worker Greg said that at this point, his coach (who had overheard his comments) called him into the office and chewed him out about his negative attitude.
But as cynical as I already was about college sports, I didn’t realize until I read the article I linked above that among all the other things college athletes — excuse me, student-athletes — sign away when they sign with the NCAA, they sign away their due-process rights. Client-attorney privacy, access to an attorney, that gets signed away. Or the athlete doesn’t get to play.
‘Rick Johnson, a solo practitioner specializing in legal ethics . . . directed his litigation against the two NCAA bylaws at issue. Judge Tygh M. Tone, of Erie County, came to share his outrage. On February 12, 2009, Tone struck down the ban on lawyers negotiating for student-athletes as a capricious, exploitative attempt by a private association to “dictate to an attorney where, what, how, or when he should represent his client,” violating accepted legal practice in every state. He also struck down the NCAA’s restitution rule as an intimidation that attempted to supersede the judicial system.
. . .
[After Johnson’s client finally elected to settled the case against the NCAA out of court due to the NCAA pressing the lawsuit past the point where the plaintiff could afford litigation — and the out-of-court settlement resulting in Judge Tone having to vacate his judgments against the two bylaws in question] the NCAA’s Eligibility Center devised a survey for every drafted undergraduate athlete who sought to stay in college another year. The survey asked whether an agent had conducted negotiations. It also requested a signed release waiving privacy rights and authorizing professional teams to disclose details of any interaction to the NCAA Eligibility Center.
. . .
Johnson came across a 1973 memo from the NCAA general counsel recommending the adoption of a due-process procedure for athletes in disciplinary cases. Without it, warned the organization’s lawyer, the association risked big liability claims for deprivation of rights. His proposal went nowhere. Instead, apparently to limit costs to the universities, Walter Byers had implemented the year-by-year scholarship rule that Joseph Agnew would challenge in court 37 years later. Moreover, the NCAA’s 1975 convention adopted a second recommendation “to discourage legal actions against the NCAA,” according to the minutes. The members voted to create Bylaw 19.7, Restitution, to intimidate college athletes in disputes with the NCAA. Johnson recognized this provision all too well, having won the temporary court judgment that the rule was illegal if not downright despotic. It made him nearly apoplectic to learn that the NCAA had deliberately drawn up the restitution rule as an obstacle to due process, contrary to the recommendation of its own lawyer. ‘
As pointed out in the article, when the NCAA does decide to make an example out of someone, they never seem to pick a well-heeled coach or tenured professor who might know enough about the system and have enough financial resources to fight back and win. They instead make examples out of college students and tutors who can’t afford long legal fights. And in the course of those legal fights that occur when someone does try to fight back, the students — sorry, my mistake, student-atheletes — are labeled as troublemakers and shunned by teammates, coaches and friends in the athletic departments and see that whatever degree they were working on will likely never be completed now without their athletic scholarship, while tutors are also labeled as troublemakers who shouldn’t be hired by any other university in the NCAA system lest they again display a tendency to actually think academics is at least as important as sports.
And just in case any student-athletes still find some backbone & will to fight in the midst of all that, the NCAA will start making threatening noises about maybe needing to look into compliance of an entire team or athletic department. So even if the players who are fighting the NCAA are in the right, their coach and uniersity will still sell them out rather than face an arcane and convoluted NCAA review process where the entire team might be banned from playing for a year.
It should also be mentioned that it’s not just the NCAA who is selling out student-athletes for their own interests here. The colleges & universities themselves also make a ton of money off of officially-licensed memorabilia relating to their teams or well-known players on their teams. They make a ton of money from the licensing and from donations from boosters — and then pay a ton of money in equipment, buildings, stadiums, and staffing. Personally I’m not completely convinced that in the end the ton of money they make off their sports teams outweighs the ton of money they spend exclusively on their sports teams. But then again, I’m from a family where academics is considered superior to sports, so that obviously disqualifies me from having a worthwhile opinion on the subject.
On a side-note, woe unto any player who sells memorabilia that is not officially licensed.
‘At the start of the 2010 football season, A. J. Green, a wide receiver at Georgia, confessed that he’d sold his own jersey from the Independence Bowl the year before, to raise cash for a spring-break vacation. The NCAA sentenced Green to a four-game suspension for violating his amateur status with the illicit profit generated by selling the shirt off his own back. While he served the suspension, the Georgia Bulldogs store continued legally selling replicas of Green’s No. 8 jersey for $39.95 and up.’
And I do wish Branch had gone farther into some of the problems in college sports that originate with the colleges and universities themselves. Like imposing fees on all students to help pay for sports programs, or allowing coaches to set such grueling workout hours that student-athletes may not have time for regular college classes. Or recruiting students based primarily on athletic ability, so if the student is academically unsuited for that college, they get shuffled off into remedial classes where their grades are fudged so they can stay eligible for the sports program and at the end of four years (or less) it’s doubtful they ever had a chance to get an education at all (and don’t ask about a degree).
That’s another wonderful thing about sports scholarships, there’s an NCAA rule dating to 1973 that says colleges and universities can’t give out athletic scholarships with a commitment period longer than a year. So each year, if the student-athlete has somehow displeased their coach, or if the coach decides there’s a better candidate, or if the student-athlete got injured and can no longer play (keeping in mind that the term student-athlete has been used by colleges as a way to avoid providing any workmen’s compensation programs for student-atheltes who are injured while playing for their college team) their scholarship is revoked.
On a slightly more optimistic note, there are a number of lawsuits currently against the NCAA which have a chance to go somewhere. There’s a lot more attention to college sports (and the problems therein) in general, both NCAA-related problems and problems caused by coaches & administrators, including congressional inquiries into the lack of due process in NCAA disciplinary hearings. Sonny Vacarro, who at one time excelled on getting sports equipment manufacturers’ logos onto college players, has had a change of heart, resigned from his jobs in the sporting goods industry, and is talking to anyone and everyone who will listen about the need to reform college sports. And crucially, Vacarro know where the money comes from and where it goes and what documents to ask for in discovery to show just how much money there really is in college sports and how much the rules are used as extortion — follow the arcane rules, sell out your players and friends, or no money for you!
I wish them the best of luck.
As a last item of interest, attorney Rick Johnson wrote a law-review article about some of the things he found while digging into the NCAA procedures and files, it’s titled “Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts . . . Until Oliver v. NCAA“ by Richard G. Johson.