March 20, 2014

Separating the Myth from Reality of Big-Time College Sports

college campusBy Gordon Schnell

It has been the subject of heated debate for years.  The student-athletes in big-time college sports — FBS football and men’s Division I basketball — bring in billions of dollars a year for their universities and the NCAA but are entitled to nothing in return other than a scholarship that most agree does not even cover the full cost of attending school.  Up until now, it has been largely a philosophical discussion among academics and sports enthusiasts wrestling with the notions of amateurism, exploitation and the purity of college sports.  But thanks to a class action lawsuit filed this week by high-profile antitrust sports attorney Jeffery Kessler, the question has moved out of the theoretical and into the courtroom.

Kessler and the band of college football and basketball players he represents claim the NCAA rules against player compensation violate the antitrust laws as an agreement among universities to fix the prices paid to college athletes.  Their goal is not to secure a multi-billion dollar payout from the NCAA.  They are not even seeking damages for the class.  They simply want to change the system so that big-time college athletes are free to secure the best possible terms of their college enrollment.  Afterall, college sports these days is big business and why shouldn’t the kids who make it all happen, often sacrificing their bodies (and education) in the process, have the ability to share in the proceeds.

Defenders of the current system, argue the ban is necessary to preserve the amateur nature of college sports and preserve the overriding educational mission of the NCAA and its member universities.  Once that system is broken, they claim, college sports will never be the same.  Nor will the governing ideal that these players are students first and athletes second.

Let us be real here.  The time has come to separate myth from reality on what major college football and basketball is all about.  It is not about serving the so-called “student-athletes.”  It is not about fostering their educational pursuits or providing them with opportunities they otherwise would not have.  It is not about protecting them from commercial exploitation or safeguarding the purported innocence of this hallowed athletic tradition.  And it certainly has nothing to do with the much ballyhooed notion of amateurism.  Instead, as even Walter Byers, the former and first Executive Director of the NCAA himself has come to recognize, major college football and basketball is all about the money.

And the money is substantial.  The NCAA and its members take in billions of dollars a year from their football and basketball television and marketing deals.  Head coaches are paid in the millions, in some cases out earning their NFL and NBA counterparts.  Even the university athletic directors, conference commissioners, bowl organizers and NCAA executives get to share in the booty with their six and seven figure salaries.  Major college football and basketball is an industry where everyone profits — everyone, except the athletes.  That is because of the NCAA’s rules — implemented, agreed to and enforced by all NCAA members — that restrict player compensation and benefits.

Under these rules, NCAA schools are barred from providing their players with any compensation or benefits beyond an athletic scholarship which itself is limited (as agreed to by the NCAA and its members) in what it covers and how long it lasts.  Schools may not compete for players by offering them any additional compensation or benefits.  And players are not permitted to freely negotiate with schools for any of this additional dispensation.  Players are not even permitted to access the free market and negotiate their own promotional and marketing deals.  To the NCAA and its members go all the spoils, while the players toil away, sacrificing their education and physical well being, to fuel this multi-billion dollar corporate enterprise.

In any other industry, this system would have been condemned long ago as a per se illegal price fixing conspiracy (not to mention a blatant violation of the most basic labor laws).  The NCAA and its members, however, have for years successfully hid behind the Orwellian concept of “amateurism” as a legal and economic justification for this scheme.  They have argued that these rules are necessary to protect the integrity of the sports; to uphold the educational mission of the NCAA; and perhaps most disingenuously of all, to protect the players from commercial exploitation.  To the extent that major college football and basketball were ever truly “amateur” sports, that time has long since passed.  What remains is wide-ranging conspiracy to maintain, solidify and exacerbate the very exploitation the NCAA and its members profess they are guarding against.

The NCAA’s hypocrisy, along with the artifice that surrounds the false notions of “amateurism” and the “student-athlete,” are now widely recognized and denounced by industry insiders and academics alike — the coaches, the teachers, the journalists, and of course, the players themselves.  Even the individual who set the whole system up — the NCAA’s Walter Byers — now recognizes the inequity and illegality of these restrictive rules.  In his own words, they are “biased against human nature and simple fairness,” and based on a principle of amateurism which “is not a moral issue [but] an economic camouflage for monopoly practice.”

To be sure, Mr. Kessler and his legal team have a major uphill battle before them.  There have been numerous legal challenges to the NCAA’s iron-clad ban on player compensation.  Virtually all of them have failed.  The courts just don’t seem willing to upset the age-old model of amateur college sports, an ideal even the Supreme Court has recognized is worthy of protection.  But Mr. Kessler’s case is unique in its “full-monty” attack on the system and the undeniable fact that whatever big-time college sports once was, it can no longer be described honestly as any kind of amateur pursuit.  Whatever happens on this new legal front, perhaps this latest challenge to the mighty NCAA will serve as a much needed wakeup call.  That one way or another, this supposed guardian of the student-athlete needs to do a much better job of serving and protecting those within its ultimate charge.

Please click here to share your views on whether the NCAA should drop its ban on player compensation.

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If you would like more information or would like to speak to a member of Constantine Cannon’s whistleblower lawyer team, please click here.

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