THE COURSE OF HUMAN EVENTS
Intercollegiate athletics emphasizes the importance of maintaining a distinction between student-athletes and professional sports, as highlighted in Article 2.9 This article underscores amateurism as a fundamental principle, asserting that student-athletes should be driven primarily by educational pursuits and the intrinsic benefits of participating in sports, rather than financial gain Additionally, Article 2 outlines fifteen other principles that further guide the conduct of intercollegiate athletics, reinforcing the commitment to uphold the integrity and educational focus of student-athletes.
9 NCAA Division I Manual, supra note 3, at 1
Student-athletes must remain amateurs in intercollegiate sports, with their involvement driven mainly by educational pursuits and the physical, mental, and social benefits gained Their participation is considered an avocation, and it is essential to safeguard student-athletes from exploitation by professional and commercial entities.
Well-Being,” which includes both physical and educational well-being 12 This principle reflects the original purpose of the NCAA, 13 which has long been abandoned.
UNDER BRITISH RULES
The NCAA was established in 1906 following a tragic year in college football that saw 18 deaths and over 100 injuries, aiming to create safer rules for intercollegiate sports However, during this time, there was also growing concern about the commercialization of college athletics, a topic that has troubled higher education officials since the 1840s The primary issue was not the morality of compensating athletes, which at the time was not excessive, but rather the fundamental question of whether athletes should receive any payment at all.
13 Rodney K Smith, A Brief History of the National Collegiate Athletic
Association’s Role in Regulating Intercollegiate Athletics, 11 MARQ.SPORTS L.REV 9, 12
14 The NCAA originally was called the Intercollegiate Athletic Association Id
The inaugural significant event featured a rowing regatta between Harvard and Yale, sponsored by a railroad company During this competition, Harvard strategically included a non-student in its crew team to secure a competitive edge.
19 See, e.g., Michael Haupert, MLB’s Annual Salary Leaders, 1874-2012, SABR.COM
(Fall 2012), http://sabr.org/research/mlbs-annual-salary-leaders-1874-2012 (comparing the highest paid baseball players from the nineteenth century through the present)
Colleges in the United States adopted the amateur model by emulating British traditions, rooted in the nineteenth-century British aristocracy's belief that engaging in activities purely for passion was superior to monetary compensation This notion allowed the upper class to participate in art, science, and sports without financial concerns, while simultaneously aiming to exclude the working classes, who could not afford such leisure pursuits, from competition.
Victorian England, much like higher education, was seen as an activity exclusively intended for the upper class 24 Despite the fact that the British concept was diametrically opposed to
American ideals of social mobility and liberty, American colleges and universities embraced their model 25
In the early twentieth century, the NCAA was established to address the challenges of enforcing amateurism and athlete safety in college sports However, its effectiveness was limited during its formative years due to a lack of real authority Member institutions were tasked with implementing measures to prevent violations, yet they frequently disregarded these rules.
20 ANDREW ZIMBALIST &ALLEN SACK,DRAKE GROUP R EPORT :T HOUGHTS ON
The report by The Drake Group examines the necessity of NCAA restrictions on athletes' participation in the lucrative market for their images, likenesses, and names It questions whether these limitations are essential to maintain the principles of amateurism and the sustainability of intercollegiate athletics The Drake Group, composed of faculty and experts with extensive experience in college sports, aims to advocate for positive legislative changes in this domain.
23 Harry R Lewis, Amateurism On and Off the Field, HARV.CRIMSON (April 21,
2006), http://www.thecrimson.com/article/2006/4/21/amateurism-on-and-off-the-field/
Ironically, ancient Greek athletes in fact did receive payment for participating in the ancient Olympic games Id
26 Zimbalist & Sack, supra note 20, at 3
After World War II, the NCAA grew increasingly concerned about regulating its member institutions due to the widespread access to higher education provided by the GI Bill and ongoing scandals.
INTOLERABLE ACTS
In 1948, the NCAA introduced the "Sanity Code," which permitted schools to provide scholarships to athletes, marking a significant shift in college sports These scholarships were based on financial need rather than athletic performance and were limited to covering tuition and related expenses Additionally, the "Sanity Code" established an enforcement mechanism that empowered the NCAA’s Compliance Committee to revoke an institution's membership if violations occurred.
In 1951, NCAA executive director Walter Byers capitalized on two significant scandals—the grade counterfeiting scheme at The College of William and Mary and the point shaving conspiracy involving the University of Kentucky basketball team—to assert control over intercollegiate sports Despite lacking formal authority to penalize member institutions, Byers successfully persuaded Kentucky to accept a one-year suspension, marking a pivotal moment in the NCAA's history of governance.
29 Rodney K Smith, The National Collegiate Athletic Association’s Death Penalty:
How Educators Punish Themselves and Others, 62 IND.L.J 985, 1059 (1987) The scandals included point shaving and game fixing incidents involving multiple schools Id at n.39
30 Zimbalist & Sack, supra note 20, at 3
33 Daniel E Lazaroff, The NCAA in Its Second Century: Defender of Amateurism or
35 Id; see generally Joan Gosnell, Kickoffs and Kickbacks: The 1951 Football
The April 1990 scandal involving the basketball team at William and Mary, detailed in an unpublished M.A thesis from The College of William and Mary, highlights the implications of Kentucky's compliance, which established a precedent that allowed the NCAA to assert its perceived authority over college athletics For further details, you can access the thesis at [this link](https://digitalarchive.wm.edu/handle/10288/2072).
The NCAA's increased focus on enforcing amateurism coincided with the significant rise in television revenue during the 1950s, marking the beginning of the television era Concerned that televised games could negatively impact ticket sales, the NCAA convention in 1951 overwhelmingly voted 161–7 to limit televised games to just a select few each week.
In 1951, the NCAA gained exclusive rights to negotiate television contracts, leading to unprecedented financial gains from televised college sports, particularly football, over the next thirty years This monopoly allowed the NCAA to enjoy increased revenues while retaining its tax-exempt status However, this dominance eventually sparked a significant challenge to the NCAA's authority.
NCAA v Board of Regents of University of Oklahoma was an antitrust suit brought by the
The University of Oklahoma and the University of Georgia, along with several other institutions where football gained immense popularity, recognized the advantage of negotiating television deals directly with networks This strategic move allowed them to maximize their profits without having to share the revenue with numerous NCAA member schools that did not participate in the same level of football competition.
41 NCAA v Bd of Regents of Univ Okla., 468 U.S 85, 88 (1984)
The United States Supreme Court ruled against the NCAA's plan, determining it unfairly restricted trade, which allowed universities to take control of their television contracts and retain the majority of the revenue While the decision significantly impacted football revenue, the NCAA maintained valuable rights, particularly for the "March Madness" basketball tournament.
The NCAA has effectively leveraged the popularity of college basketball and licensing rights to significantly boost its revenue over the years Since 2006, the organization's year-end net assets have approximately doubled, reaching $566 million in the fiscal year.
2012 48 The NCAA also had a $71 million surplus after spending $801 million of its $872
43 Id Although the Board of Regents decision was a loss for the NCAA, it also contained some noteworthy dicta in the final paragraph of the opinion The Supreme Court stated:
The NCAA aims to promote college football as a unique brand, distinguishing it from professional sports through its academic tradition This distinction enhances its popularity and appeal To maintain the integrity and quality of college football, the NCAA enforces regulations that prohibit athlete compensation and require attendance in classes By upholding these standards, the NCAA plays a crucial role in preserving the essence of college football, allowing this distinctive product to thrive in the sports market.
Bd of Regents, 468 U.S at 101-102 (emphasis added) The NCAA treats this language as law, against challenges to the legitimacy of its bar to player compensation Patrick Hruby, The
End of Amateurism?, SPORTSONEARTH.COM (July 2, 2013), http://www.sportsonearth.com/article/52416070/
In certain instances, athletic conferences enable groups of institutions to manage television contracts and revenue distribution, as exemplified by the BIG TEN NETWORK.
46 Branch, supra note 1 The men’s basketball tournament quickly made up for the lost football revenue Id
47 The men’s basketball tournament and the television rights accompanying it remain “overwhelmingly the NCAA’s greatest revenue source.” Steve Berkowitz, NCAA Had
Record $71 Million Surplus in Fiscal 2012, USATODAY, May 2, 2013, http://www.usatoday.com/story/sports/college/2013/05/02/ncaa-financial-statement- surplus/2128431/
In 2012, the NCAA reported revenues of $48 million, with management and general expenses rising to $38.3 million, a 7.3% increase from $35.7 million in 2011 This increase in spending outpaced the 5% rise in distributions to Division I institutions, indicating that the NCAA retained a larger share of its revenues within the organization.
College sports have long had a commercial aspect, which intensified with the rise of television and mass media, leading to significant revenue for the NCAA As the NCAA evolved into a major entertainment entity, it strayed from its original mission of upholding amateurism by permitting athletic scholarships In response to accusations of exploiting student-athletes, the NCAA maintains that these scholarships provide adequate compensation, yet such financial incentives contradict the true essence of amateurism By altering player compensation rules and implementing complex regulations, the NCAA has redefined amateurism to suit its interests, transforming it from a principled ideal into a mere facade that obscures its underlying greed and corruption.
52 Zimbalist & Sack, supra note 20, at 6-7
SEEDS OF REBELLION
For decades, the NCAA has faced various challenges, with a significant legal confrontation occurring in 1988 During this year, Jerry Tarkanian, the basketball coach at the University of Nevada at Las Vegas (UNLV), brought a due process challenge against the NCAA before the Supreme Court.
In the case involving Tarkanian, he claimed that the NCAA acted as a state actor, infringing on his due process rights by compelling a state university to suspend him However, the Supreme Court ruled that the NCAA was not operating under state law, but rather enforcing its own rules, which the University of Nevada, Las Vegas (UNLV) had voluntarily agreed to follow The Court noted that UNLV's ability to withdraw from the NCAA demonstrated that these regulations did not equate to state law Consequently, Tarkanian's assertion that the NCAA's influence rendered withdrawal impossible was dismissed This ruling reinforced the NCAA's power to discipline member institutions, yet it did little to mitigate ongoing scandals within college athletics.
Player compensation and academic scandals continue to occur, 61 and the NCAA’s responses of stripping wins, banning bowl participation, imposing sanctions and suspensions
56 Nat’l Collegiate Athletic Ass’n v Tarkanian, 488 U.S 179 (1988) [hereinafter Tarkanian]
Recent scandals at the University of Alabama and Oklahoma State University have sparked significant discussions regarding the NCAA's amateurism rules These controversies raise critical questions about the integrity of college athletics and the challenges the NCAA faces in enforcing its regulations As highlighted by Jon Solomon and D.J Fluker, the implications of these scandals extend beyond individual institutions, impacting the broader landscape of college sports.
The NCAA's failure to deter illicit activities surrounding college athletics has inadvertently fostered a black market for funneling money to players through underground networks involving boosters and agents This environment not only perpetuates scandals but also results in a significant number of athletes being ill-prepared for academic challenges Ironically, the NCAA sometimes punishes coaches who strive to support athletes in achieving their educational goals Ultimately, the root of these issues lies in the NCAA's refusal to compensate players, which drives these clandestine operations further underground.
In 2013, a notable scandal emerged involving NCAA and Texas A&M quarterback Johnny Manziel, who was accused of receiving payment for autograph signings Despite an inconclusive NCAA investigation, Manziel faced a suspension for the first half of his team's opening game He responded dramatically by throwing three touchdown passes in the second half and playfully mocking the NCAA during his celebrations, defying expectations of media and fan backlash for his perceived arrogance.
62 Dan Wetzel, Latest College Scandals Again Reveal Folly of NCAA Rules, YAHOO
SPORTS (Sept 11, 2013), http://sports.yahoo.com/news/ncaaf latest-college-scandals-again- reveal-folly-of-ncaa-rules-210822795.html
64 Sara Ganim, CNN Analysis: Some College Athletes Play Like Adults, Read Like
I don't know!
65 Jonathan Mahler, The NCAA Is Even More Evil Than You Think,
BLOOMBERG.COM (Dec 19, 2013 5:27 PM), http://www.bloomberg.com/news/2013-12-19/the- ncaa-is-even-more-evil-than-you-think.html
66 Wetzel, supra note 62; see also Branch, supra note 1
67 Sean Gregory, A Cut for College Athletes, TIME, Sept 16, 2013, at 38
The increasing support for Johnny Manziel from both the media and the public highlights a significant shift in societal attitudes towards the NCAA This trend reflects a growing discontent with the organization's authority and its defense of amateurism, as more individuals recognize the flaws within the NCAA's framework and are unwilling to overlook them any longer.
THE CASE HEARD ‘ROUND THE SPORTS WORLD
THE MORE PERFECT UNION
Recent discussions on reform proposals have primarily centered around integrating a player compensation mechanism into the existing NCAA framework Additionally, some proposals advocate for structural or regulatory changes within the NCAA to enhance its overall effectiveness.
81 Many believe both sides are willing to take the case as far as possible See, e.g., Nicole Auerbach & Steve Berkowitz, Big Ten’s Delany Sees No Settlement in O’Bannon Case, USATODAY (Oct 31, 2013), http://www.usatoday.com/story/sports/ncaab/bigten/2013/10/31/jim-delany-big-ten-ed-obannon- lawsuit-no-settlement/3329665/ (stating commissioner of the Big Ten does not believe there will be a compromise)
83 See Julia Brighton, The NCAA and the Right of Publicity: How the
O’Bannon/Keller Case May Finally Level the Playing Field, 33 HASTINGS COMM.&ENT L.J
275 (2011) (proposing a trust system that will allow players to be compensated for the use of their likenesses after they graduate); Stephen F Ross, Radical Reform of Intercollegiate
The article discusses the implications of antitrust laws and public policy on athletics, specifically advocating for institutions to stop subsidizing non-economically viable sports using revenue from successful programs It suggests that universities should provide additional financial support to athletes beyond their scholarships Additionally, it addresses the concept of athlete employment within the NCAA framework.
The article "Restrictions Violate Antitrust Law" argues for the elimination of NCAA limitations on athletes' employment and their ability to profit from their likenesses It posits that the NCAA is irreparably flawed, overly self-interested, and resistant to meaningful reform, thus envisioning a future without its influence While the proposed alternatives do not encompass all current issues or potential challenges, they serve as a crucial foundation for an essential dialogue prompted by the O’Bannon decision.
SELF-DETERMINATION
Decentralizing decision-making in athletics is crucial for addressing the shortcomings of the NCAA, which applies uniform standards across diverse institutions and sports With 85 institutions differing in size and purpose, a one-size-fits-all approach is ineffective Each college and university has unique norms and expectations, necessitating tailored governance for their athletic programs Instead of a centralized organization, I propose establishing smaller, focused bodies formed by institutions with similar goals and values, allowing for a more relevant and effective oversight of intercollegiate athletics.
In their 2010 article, Matthew J Mitten and colleagues advocate for Congress to grant the NCAA immunity from antitrust liability, contingent upon the NCAA implementing reforms aimed at enhancing higher education goals and increasing benefits for student-athletes.
85 See Rachel Bachman, Criticism of the NCAA Grows, THE WALL ST.J (July 22,
2013), http://online.wsj.com/article/SB10001424127887324783204578622072850811066.html; Brad Wolverton, Faculty Leaders Endorse New Division for Richest NCAA Programs, CHRON.
The proposed system aims to recognize and promote the diversity among NCAA programs, particularly focusing on the wealthiest institutions This initiative seeks to embrace these differences rather than overlook them, fostering a more inclusive and supportive environment in higher education sports.
Many universities prioritize big-time athletics and embrace the associated commercialism The existing system is equally commercialized as one that permits player compensation; the primary difference lies in the distribution of funds Following the O’Bannon decision, a portion of the revenue should rightfully go to the players whose likenesses and performances generate the demand for college sports.
Certain institutions would be particularly interested in pursuing commercialized sports 89
Colleges and universities view sports as significant revenue sources and marketing strategies to attract potential students Despite the possibility of athletes receiving compensation beyond scholarships, these institutions are unlikely to reduce their investment in large football or basketball programs The primary shift will involve the governance of competition rules and athlete eligibility.
86 See Bachman, supra note 85;Wolverton, supra note 85
87 See Wolverton, supra note 85 (lending support to creation of new division of bigger schools within NCAA)
88 See Waldron, supra note 8 (explaining the commercial nature of Division I athletics)
89 See id More accurately: institutions that wish to continue embracing commercialized sports
90 See Gregory, supra note 67 (discussing the enormous revenues generated by college sports and stating that college presidents are “fond of calling sports the ‘front porch’ of their campuses ”)
91 See Wolverton, supra note 85; Patrick Hruby, Court of Illusion,
SPORTSONEARTH.COM (Oct 10, 2013), http://www.sportsonearth.com/article/62747894/
92 See Wolverton, supra note 85; Hruby, supra note 91
The O’Bannon decision has the potential to dismantle the myth of amateurism, allowing college athletes to benefit financially from their talents However, there remains a necessity for a governing body to establish uniform regulations and manage competitions among educational institutions Major athletic conferences could serve as an effective alternative to the NCAA in overseeing college sports, especially as they have gained prominence and begun to challenge the NCAA's authority While they often align with the NCAA in maintaining the existing system, the need to adapt to the new landscape created by the O’Bannon ruling will push them to evolve With fewer institutions under their purview, these conferences are better positioned to meet the diverse needs of both schools and athletes.
Conferences can establish regulations for their member institutions; however, they lack the authority to oversee inter-conference competitions, which play a significant role in college football and basketball, particularly during the postseason To address this issue, I suggest the formation of a governing body.
93 See Christopher M Parent, Forward Progress? An Analysis of Whether Student- Athletes Should Be Paid, (2004) (proposing some possible ways to compensate players); see also Gregory, supra note 67, at 41-42
94 These would likely include: the Big Ten, Pac 12, Big 12, SEC and ACC, with the possible addition of some others
95 There is already movement by these conferences to gain more autonomy from the NCAA Brad Wolverton, NCAA Plan Would Give New Powers to Biggest Conferences, CHRON.
96 See Andy Staples, Forget Expansion – It’s time for Full-Blown Conference
In a discussion on conference realignment, a proposal suggests that the most powerful football schools should consider withdrawing from the NCAA to establish their own system, highlighting the growing divide in college athletics This sentiment is echoed by Division 1 faculty leaders who have also proposed leaving the NCAA for a more independent structure.
The proposal aims to keep financial resources closer to athletes by establishing confederations of major conferences, which would distribute revenues more equitably than the NCAA These confederations would govern individual sports, create uniform rules, develop schedules, and set academic eligibility standards, while also investigating cheating allegations to maintain competitive balance Importantly, the confederations would not possess independent broadcast or licensing rights, and eligibility would not hinge on amateurism Oversight would ensure fair compensation and protection for players, striving to prevent the centralized power and arbitrary regulations associated with the NCAA while fostering national intercollegiate competition.
The NCAA oversees a variety of colleges and universities, including Ivy League schools and smaller liberal arts institutions that prioritize academic excellence over athletics This focus on academics is a deliberate choice and is not related to the concept of amateurism Even if players in major conferences begin to earn money beyond their scholarships, these institutions are likely to maintain their emphasis on education Additionally, they have the option to form agreements with other schools that share similar priorities.
99 Allen Sack, Should College Athletes be Paid?, CHRISTIAN SCIENCE MONITOR
(Mar 7, 2008), http://www.csmonitor.com/2008/0307/p09s01-coop.html similarly situated colleges and universities to maintain similar standards to what they have now 100
Some colleges may opt to eliminate certain athletic programs or transition them into club sports, while others might implement stricter regulations on practice hours and scholarship availability compared to major conferences, yet still engage in significant intercollegiate competition It is crucial to allow colleges and universities the autonomy to make these decisions, as blanket NCAA regulations often lack relevance for every institution and can be enforced inconsistently, negatively impacting athletes By fostering a system that grants more freedom, individual institutions will be better equipped to address the challenges faced by their athletic programs.
NO EXPLOITATION WITHOUT REPRESENTATION
Empowering institutions with greater control over athletics can prevent the NCAA from becoming authoritarian; however, this shift may result in conferences or individual colleges exploiting athletes To counterbalance this potential power imbalance, athletes should establish a union to ensure their rights and interests are protected.
This proposition is not necessarily novel 102 In fact, attempts at organizing college athletes are ongoing and are gaining momentum as the O’Bannon case moves forward 103 The
100 For instance, the NCAA’s amateurism model generally works better at the
Club sports refer to self-funded, student-run teams that operate independently from the institution's athletic department These teams differ significantly from Division I athletic programs and Division III programs, as highlighted in Ross's discussion on the distinctions between these levels of competition.
Student athletes should have the right to unionize, as this could be an effective way to reform college athletics This perspective is supported by Fram & Frampton, who argue that granting unionization rights to student athletes is essential for their empowerment and betterment of the collegiate sports landscape.
DUKE L.J 727 (2007); J Trevor Johnston, Show Them the Money: The Threat of NCAA Athlete
The National Collegiate Players Association (NCPA) is positioned as the primary candidate to advocate for college athletes' rights Initially formed as an advocacy group rather than a formal union, the NCPA is actively pursuing initiatives that empower athletes, including the ability to seek employment outside of sports and profit from their likeness Additionally, the organization prioritizes the health and safety of athletes while promoting their educational aspirations In January 2014, the NCPA garnered support from the United, further strengthening its mission.
Steelworkers, took the first steps toward organizing an actual players’ union by filing a petition with the National Labor Relations Board on behalf of the football players at Northwestern
University 108 If formalized, the union, which will be called the College Athletes Players
Unionization in Response to the Commercialization of College Sports, 13 SETON HALL J.SPORT
103 Scott Soshnick, NFL Free-Agent Lawyer to Unlock $16 Billion in NCAA Athletes,
Lawyers from prominent law firms, known for their role in unionizing professional sports, are increasingly focused on advocating for college athletes This shift highlights a growing recognition of the financial and legal rights of NCAA athletes, potentially unlocking significant earnings for them.
The National College Players Association (NCPA) is a 501(c)(3) nonprofit advocacy organization founded by UCLA football players, representing the sole independent voice for college athletes nationwide Since its inception, marked by a press conference on January 18, the NCPA has been dedicated to addressing the needs and rights of student-athletes across the country.
2001, the NCPA has been featured in countless media outlets including CBS 60 Minutes,
ESPN, CNN, ABC News, Sports Illustrated, Yahoo Sports, USA Today, and the Wall
Street Journal Today, the NCPA has over 17,000 members from over 150 Division I campuses nationwide.”
The NATIONAL COLLEGIATE PLAYERS ASSOCIATION, http://www.ncpanow.org/about/ (last visited Nov 23, 2013)
The NCPA has launched an initiative named "All Players United," where current athletes showcase the letters "APU" during competitions This initiative is complemented by a social media campaign aimed at raising awareness about the cause.
106 See The NATIONAL COLLEGIATE PLAYERS ASSOCIATION, Mission & Goals, http://www.ncpanow.org/more?id04 (last visited Nov 23, 2013)
108 Tom Farrey, Kain Colter Starts Union Movement, ESPN.COM (Jan 28, 2014), http://espn.go.com/espn/otl/story/_/id/10363430/outside-lines-northwestern-wildcats-football- players-trying-join-labor-union
Association, will give college athletes a real chance to influence policy and no longer be at the mercy of NCAA officials 109
Empowering athletes with a genuine voice is crucial for the effectiveness of a union While the NCAA permits Student Athlete Advisory Committees to represent athletes, these groups lack voting power in NCAA legislation, resulting in athletes' needs being overlooked Establishing a true union would enable players to leverage their collective strength to influence policies that affect them Unionization may not necessarily result in player salaries; athletes might advocate for a balanced approach to amateurism, ensuring their educational needs are met They may also seek scholarships that fully cover their college expenses or guaranteed health coverage for injuries The key is that athletes should be the ones making these decisions, rather than the NCAA.
A FREE EXERCISE OF THEIR INDUSTRY
CONCLUSION
The O’Bannon decision has highlighted the flawed concept of amateurism as defined by the NCAA, revealing it as a misguided ideal both theoretically and practically Rather than safeguarding college athletes from commercialism, the NCAA restricts these athletes from profiting in a highly commercialized environment The organization's primary focus appears to be self-preservation, as evidenced by the O’Bannon case and other significant movements like conference realignment and player unionization, which pose a threat to the NCAA's very existence amidst increasing criticism.
Europe, SlamOnline.com (Aug 31, 2009, 5:17 PM), http://www.slamonline.com/online/nba/2009/08/the-nba-vs-europe/; Adriano Valente, Average
CFL Player Makes Only $80,000 Per Year, THERICHEST.COM (Nov 25, 2013), http://www.therichest.com/sports/football-sports/average-cfl-player-makes-only-80000-per- year/
125 Under the current NCAA rules, athletes that do not play beyond college effectively will never profit from their talents because they are forced to compete as amateurs.