Antitrust Matters Episode 6: The NCAA
Antitrust Matters provides engaging and timely conversations about competition policy in the digital age. Antitrust has always mattered to consumers and businesses, and to antitrust lawyers and economists, but today it also is in the political and public discourse more than ever. From the prices we pay for food, travel, financial services, payments to the way we interact daily using digital apps and platforms, antitrust touches each and every one of us in ways we may not even realize. Antitrust Matters brings you you perspectives of experts and visionaries in the field who discuss where antitrust law has been, where it is going and why it is so important to our current political discourse.
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Episode Transcript and Show Notes:
Jeff Shinder:
Welcome to Antitrust Matters, a Constantine Cannon podcast, where we have engaging and timely conversations about competition policy in the digital age. My name is Jeff Shinder, and I’ll be your host. Antitrust is always mattered to consumers and businesses, but today it is also in the public discourse more than ever. From how we get our food on our plates, to how we travel, to the way we interact daily, using digital apps and platforms, antitrust touches each and every one of us in ways we may not even realize. In Antitrust Matters, we bring you perspectives of experts and visionaries in the field who discuss where antitrust law has been, where it is going, and why it matters today more ever before.
Good morning, everyone. We are today going to discuss an industry that has seen a lot of antitrust attention over the years. And that’s the NCAA and college athletics. This is a topic that has engendered a lot of discussion and commentary going back decades. The Supreme Court weighed in the 1980s, establishing general pro-competitive justification for the NCAA’s conducts under the guise of the student athlete and amateurism and cases over the last 30 to 40 years have relentlessly, and to some degree chipped away at that the veneer, exposing a competitive problem, a social problem, and the exploitation of college athletes and all of the issues and ill associated with the NCAA’s practices. So we’re here to discuss those issues today, I’m joined by my partner, David Scupp, David welcome. And our guest today is Professor Ellen Staurowsky. Ellen is a professor in sports media, in the Roy H. Park School of Communications at Ithaca College.
She is internationally recognized as an expert on social justice issues and sport, which include gender equity and Title IX pay equity, and equal employment opportunity, college athletes rights, and the exploitation of college athletes. The faculty role in reforming college sport, representation of women in sport, media and the misappropriation of American Indian imagery in sport. She is co-author of the book, College Athletes for Hire: The Evolution and Legacy of the NCAA’s Amateur Myth and editor and author of Women and Sport: A Continuing Journey from Liberation to Celebration. Ellen, welcome to Antitrust Matters. It’s a pleasure to have you on the pod.
Ellen Staurowsky:
It’s a pleasure to be here. Thank you so much for the invitation.
Jeff Shinder:
And David, the floor is yours to open the discussion.
David Scupp:
Ellen, it would be great if you could tell the listeners a little bit more about your background, including your background in college athletics and what your work in academics is focused on.
Ellen Staurowsky:
I’m happy to do that. I started out my career as a college coach, I moved on to become a director of athletics. And then I was fortunate enough with an inquiring mind and got on the cusp of an EdD, to get recruited to Ithaca, actually to work on the academic side where I coordinated their sports music program for about 20 years. And in the course of that work, I was able to take a lot of the lessons that I had learned, and a lot of the things that were of interest to me in terms of college sport. And I was able to put that into my classroom teaching and into my research. And one of the things, especially for the book College Athletes for Hire: The Evolution and Legacy of the NCAA’s Amateur Myth, I worked with Allen Sack who had played formally at the University of Notre Dame and also was on the academic side of things. And we visited the NCAA archives and did a lot of our research around NCAA practices there. And that really laid the foundation for the work that’s continued now over the past three decades.
Jeff Shinder:
Thanks Ellen. So let’s open the discussion by setting the table for the listeners to understand some of the NCAA restrictions starting with what you would characterize historically is the most pernicious and problematic restrictions, what they are, how they work, their impact, and then we’ll go from there.
Ellen Staurowsky:
To start with, we’ve got the compensation issues, which have been the subject of a number of antitrust lawsuits going from O’Bannon to Alston onto House. So those really stem from the 1950s forward with the creation of the athletic scholarship and the codification of that by the NCAA and the intentionality of what they were trying to do there and how that became a regulatory mechanism in terms of athlete behavior by the 1970s, for example, the athletic scholarship, the regulations were such that coaches could award them on a year to year basis. So that became a tool of control in terms of your personnel, either you could push somebody out of the program or you could demote them, or you could threaten them if they were not in line. And there were other kinds of rules that also actually still on the books in terms of misconduct, and what’s called fraudulent misrepresentation and fraudulent misrepresentation effectively.
It explains a lot about why in the 1960s, when college athletes on campuses across the country were protesting, why all of that protest got shut down because fraudulent misrepresentation effectively says, “If you don’t come to practice, then you’re going to lose your scholarship because you fraudulently misrepresented yourself in terms of agreeing to play here.” And so for many, many years, for decades, athletes remain incredibly quiet and I’m not really sure in the age of social media that most athletes are aware of the fact that rule is still on the books today.
So we have that set of rules that really has had a profound effect on athletes. And then along with that, and of course, some of these things are changing over time, but we’ve also had the transfer rules, which really have been a mechanism for controlling the flow of personnel across schools, under what conditions under what circumstances. So those two things in tandem really tell us that this is an industry that’s incredibly invested in controlling a labor force, describing the terms and conditions under which they work and what kind of access they have to opportunity. So I’ll leave it there. And there are other ones as well, but I think for our purposes, those two are probably the most important.
David Scupp:
And one thing that I’m very much interested in hearing you explain Ellen is, I know a lot of your work is focused on Title IX and gender equity issues in college athletics. And can you explain how historically the rules that you just discussed relating to athletic compensation to athletes, the transfer rules, that whole package that you just laid out for us, in what way does that impact gender equity issues in college sports?
Ellen Staurowsky:
I have to say that we’re having this conversation and in 2022, it’s the 50th anniversary of Title IX, coming up in June. And one of the things that I’ve found profoundly disturbing about these conversations around how to make the industry more responsive and more supportive of athletes is that Title IX is oftentimes used as a tool to deflect attention from what the real issues are. This is a system that both exploits men and women athletes, and it also has had license to violate Title IX on a regular basis. But also to throw up a kind of a distraction sometimes when athlete compensation comes up by saying that women are going to be hurt by this. And there’s just no truth to that. And in point of fact, when we look at what’s actually going on, women have everything to gain by unlocking this set of regulations that has suppressed player value.
Last year when we had the NCAA Tournament in San Antonio for the women, there were dramatic gender inequities that were revealed in the premier women’s basketball tournament in the world. Gender inequities along the lines of just basic food, access to training equipment, different kinds of COVID testing, health and safety issues, just an array of issues like that. And so that really says it all in terms of the system’s commitment to abiding by the requirements of Title IX. And we can get into the nuances of whether or not the NCAA is actually obligated under Title IX or not. And that’ll be a whole other show. But the bottom line is that when we’re talking about compensation, women have certainly been treated as second class citizens. And so they have everything to gain by unlocking this system that has suppressed all athletes and effectively in terms of equal opportunity has treated them all badly.
David Scupp:
And what’s the logic, what’s the NCAA’s logic when they say that unlocking the system, doing away with these restraints are going to hurt women.
Ellen Staurowsky:
Well, difficult for me to really know, because all you don’t need to look under the hood very closely to look at the numbers and to see, I’ve got a report coming out with the Women’s Sports Foundation in a couple of days, and there’s just massive inequities that are going on, documentable. But as a headline, what it does is it’s an effective tool to say, since there’s been a sensibility that women haven’t been treated very well when we’re talking about compensation for athletes, primarily football and men’s basketball, which has been the primary focus, it becomes an effective tool to just shut down these conversations and to scare the heck out of people who care about it. And I think it also targets people in Congress as well, who want to land on the right side of a discussion about treating women fairly. And so it just creates a whole lot of chaos in a conversation where the bottom line is that all athletes in the system are not being treated fairly, they’re not being protected and that this discussion has very high stakes for all of them.
Jeff Shinder:
Ellen, you have effectively invited yourself back to the pod to come back and discuss Title IX and the NCAA. And so congratulations.
Ellen Staurowsky:
Thank you.
Jeff Shinder:
So shifting gears, a touch to the history of antitrust and with respect to these issues. So there have been a series of recent cases that have chipped away at the NCAA restraints. You’re not a lawyer not asking you for legal opinions, but are close to these issues. So I’d like you to comment as someone who’s lived, breathed this stuff, your views on those cases and their impacts on these issues, have they been positive or not? Have they gone far enough or not? And what else needs to happen in your view, if anything? So those are big topics and we’ll open them up and we’ll see where we go.
Ellen Staurowsky:
Thank you for that. I’ll start with the first piece. And then we’ll proceed. I do really appreciate the box set of cases that we have in terms of O’Bannon, Alston and House. Because we’ve got those three cases that demonstrate that many of the NCAA’s claims around: Number one, the reason for why they had these regulations in place, that they were trying to protect athletes from exploitation. And in the course of those explanations, they reveal over and over and over again, that what they’re really doing, and this is embedded in their definition of what pay is within their manual, within the definition of what pay is.
It clearly says that, and I’m paraphrasing here that, The NCAA is not opposed to pay, it is opposed to pay that they don’t want to give. So it certainly, but surely these cases have really revealed that reality and that they know that paying athletes, that their justification somehow, that this is going to damage their industry or that athletes are somehow going to be harmed because of having the opportunity to have their value realized. Those assertions are just falling by the wayside because there’s nothing to them.
I think that the three cases are really helpful from that perspective and slowly, but surely we’re seeing some gains. We’re seeing the stipend that resulted out of O’Bannon, which closes the cost of attendance gap. We see the unlocking of educational expenses coming out of Alston. And now with House, the limits that have been put on athlete endorsements since June of 2021. Those are being challenged in House. So we’re seeing movement there. What I would argue is that these cases are incredibly important, and I think we need to keep going in that direction, but none of these things are really addressing what the central issue is.
And the central issue is that what we’re really talking about here is a labor force that has been trapped in regulatory system that has been unilaterally imposed in the absence of a players’ association that would represent the interest of the athletes. There’s no counterbalance to the decisions that are made within the NCAA and within the conferences. So I’ll leave it there to start with hope that I explained that well enough, and then maybe we can explore some other threats to this.
David Scupp:
Ellen, you mentioned limits on endorsements. I guess I was under the understanding that athletes could just go out now and get endorsements. I wasn’t aware that there were still limits rules and restrictions.
Ellen Staurowsky:
I’m really glad you’re talking about this. And it’s really interesting from a media frightening perspective because the atmosphere right now is being referred to as the Wild West, laying the ground for athletes without the full support of what they need, I think that’s how they experience it, but this is hardly the Wild West in terms of a multi-billion dollar sport entertainment industry. What the NCAA has done with their interim policy is they’ve said athletes who have formally been denied the opportunity for endorsements, they now have the opportunity for endorsements. However, the schools that they attend may not compensate them, may not endorse them. So that’s one thing. And then the other key piece of it is that they’re very specific about the fact that athletes may not receive compensation specifically for their athletic performance. And so the House v NCAA lawsuit is challenging those restrictions as well.
Jeff Shinder:
Ellen, just to follow up on that with those continuing restrictions, is it the case that we still see very little and perhaps no significant athletic endorsements flowing to NCAA student athletes? Is that correct? Is that the current state of play?
Ellen Staurowsky:
There’s a wide spectrum. One of the stories that has been reported fairly recently is that there is an athlete that has received an $8 million deal. And there are other multimillion dollar deals that are occurring for both male and female athletes at this point. However, within the grand scheme of all of the thousands and thousands of endorsements that we’ve heard about on average, the average Division I athletes endorsement has been estimated to be about $500 for a Division III athletes. It’s on average, anywhere between 35 to $50. And that could also include just the sheer amount of merchandise that an athlete may receive, because there have been some companies that have been asking athletes to do something on social media, but they’ll give them some kind of a hat, t-shirt and other kinds of apparel. So it’s easy to get to that $50 mark with that kind of stuff.
So in the grand scheme of things, corporations have actually not gone after athletes to the degree that we might have expected largely because A: it’s difficult to get to athletes. If an institution is prevented from facilitating deals for athletes and the athlete doesn’t have a player’s association, they may be able to get an agent, but that mechanism for a corporation to reach out to an athlete is fairly impaired at this point in time. And then because of all of these uncertainties, for example, one of the discussions that has been going on is when, and if the NCAA may investigate schools, if they are not abiding by this interim policy. And so corporations are faced with this question of, “Well, do I really want to be endorsing an athlete if I come to find out later on that maybe the rules weren’t quite as clear as they should have been, and I’ve endorsed an athlete that some school got sanctioned for.” So there’s a lot of the uncertainty in this space right now, more so than what people fully understand I think.
David Scupp:
It sounds to me that net of some of these antitrust lawsuits, things are heading in the right direction. Whether or not where we need them to be yet. Is that a fair characterization?
Ellen Staurowsky:
I think that’s a very fair characterization.
David Scupp:
And do you think taking this example of athletes getting endorsements. Do you think the issues that you just identified are a result of just the fact that we’re still in the early days of this line of business and everyone’s still trying to find their way, or do you think that there still are these systematic restraints that are in place that still are in need of reform? Or is it some combination of both?
Ellen Staurowsky:
I think it’s some combination of both. I think we’re definitely growing into a market where the market’s trying to get its bearings and trying to figure out how to navigate this new space and what the opportunities are. And so you’ve got a lot of companies that have grown up to advise athletic departments about these things, which is also very interesting to me that this is an industry that refuses to give athletes a paycheck, but they’re now funding yet another whole industry that is profiting off of athletes again. So we are growing into this new sector, but at the same time to me, we still have not gotten to the core of the issue because just the idea of athletes having the opportunity to do endorsements, by itself should really be breathtaking. Because in my view, this is not about fundamental change or fundamental reform.
This is really about the restoration of rights that were denied to athletes over nearly 100 year period of time by an association that unilaterally imposed these rules on these athletes. And so to me, what the central issue is that we’re really talking about a labor force that has been denied recognition and has been denied the benefits of what flows from that recognition as an employee. And we’re seeing, coming out of the National Labor Relations Board, there was a memo last September or October from Jennifer Abruzzo, that was calling out schools before using the term student athlete, understanding that was an invention on the part of the NCAA to deflect attention away from the fact that they had created an employee relationship by compensating athletes with an athletic scholarship, and that schools were using it at their peril and in an inappropriate way.
And of course in the Northwestern case, Northwestern football case, which is not any antitrust case, but a case where football players moved to create their own union in effect, they were actually successful in doing that. The NLRB never said that athletes in Northwestern were not employees. They simply sidestep the issue by saying it would be too disruptive to the industry, but they never said that they were not athletic employees. So I think the central issue is one that has to be dealt with in order for real meaningful change to occur.
Jeff Shinder:
I want to get to the core of the issue, but before we do that, and perhaps it’ll set up the core of the issue, you said something that is really interesting that I want you to dive deeper into, which is that we’re not talking about reform, but we’re talking about the restoration of rights that were taken from this labor force 100 years ago. So can you explain to the audience, what rights specifically are you talking about when you say rights were taken away 100 years ago.
Ellen Staurowsky:
The NCAA created a rule that barred athletes from having the opportunity that any other citizen in the United States has to be able to make money off of their name, image, and likeness. That they could endorse products, or they might be compensated for going to an event that they could sign autographs, that there might be personalized merchandise that they could sell, and they would gain the benefit from that. And the NCAA’s rules were such that they stripped athletes of that very fundamental right. So what’s being restored here in terms of this, the NCAA’s interim policy on names, images, and likenesses, it’s restoring the opportunity for athletes to benefit from that. Hopefully I’ve explained that well enough.
Jeff Shinder:
So let’s go to the core of the issue now. And I think you alluded to this earlier, but I’d like to really flush out what that would look like. I think you’ve made illusions to, there needs to be some kind of collective bargaining unit to protect the so-called student athlete. If it were up to you, how would that function, what athletes would be protected, would there be a multiplicity of unions protecting different athletes, you see differentiation, for example, from the college football and basketball versus the other college sports and how this would work. I know I’m throwing a range of questions, but let’s get to the crux, the core of the issue.
Ellen Staurowsky:
I’ll give you a partial answer to this because it is complicated, but I’ll start off with kind of a general thought about this. I do think that just as a matter of markets, FBS football is a different market from Division III Cross Country. There are just different kinds of issues associated with it at every single level. And one of the things that the NCAA has effectively done over the years even in terms of its relationship between Division I, II and III, is it’s tried to make the argument that all athletes are the same, and this is simply not true. It’s simply not true that Division I is the same as Division III. That division II is the same as the other two, there different issues. And the reason why I think that’s really important is I think that there are issues that need to be addressed across the landscape for all college athletes.
But I don’t think it’s productive to think about a player’s association that would represent all of them at once, because I think there are such dramatic differences across different sports for different kinds of reasons. And especially in this particular moment where we also have gambling interests, which are becoming increasingly integrated into all of our various forms of sports. And just within the past two days, there’s also been a shift with the NCAA opening the door more for that to happen at the college level. Then I think that what has historically been referred to as the revenue producers, I think they are in a different position. And so I think having players associations for football, for men’s and women’s basketball, I think that would be a starting point. I also want to connect this a bit to what’s happening internationally in terms of elite level athletes, in what we oftentimes think of as Olympic level sport, because at the Olympic level worldwide, there has been quite a movement in terms of trying to represent their interests better.
And that is echoing within all of the different governance structures that we have in terms of Olympic level sports. So what we may be looking at here is we may be looking at a player’s association for college football. We may be looking at a player’s association for men’s and women’s basketball. Maybe it’s combined, maybe not. And then maybe a player’s association for Olympic sports as well. And there might be arguments to even parse those out further. Is so in my mind, that’s how I see those players associations working, but what’s also happening within the industry. And just within the past day or two, the announcement was made that Mark Emmert, the president of the NCAA is stepping down. There has been a push for the Power Five to either create what I would call a college pro league to just take the Power Five conferences and just have football just as a separate entity completely separated away from the NCAA.
And there is already that in terms of how the money flows anyway, but there would be a greater distinction there and any kind of regulation between the NCAA and what this new college pro league might be, I think would be severed. That also factors into my thinking that if you’re going to have Power Five football league, that it makes sense at this point that you also have a player’s association alongside of it. And to come back to the gambling interest just for a minute, if we tear a page from labor and what happened in the NFL, what happened in Major League Baseball, all of the signs would suggest that the more of gambling interest there is in a sport, the more vulnerable the labor force is the more the industry itself is vulnerable because when players don’t have the value that they need, it creates more of an opportunity for gambling interest to affect the integrity of the game. So if there was a moment when this should be getting thought of in a more specific way now would be the time.
David Scupp:
I agree with everything you’ve said with players association. So how do we get there? Do you think that the landscape as it currently sits, could allow for players associations to emerge, or do you think there need to be some additional changes that are made?
Ellen Staurowsky:
I think there’s a lot of changes that need to be made primarily in terms of just will, just flat out will. But there has been some support for this in Congress, Senator Christopher Murphy proposed the CARO Act, which was a college athlete’s right to organize act and included in that act was an item that said that the NCAA would pay a certain percentage to create a player’s association. And that’s one of the pieces that’s missing right now is that how do we create the financial base for an organization like that to exist and have we create the infrastructure for it? So I think those are things that we need to be thinking through and working through in order to make that happen.
Jeff Shinder:
So if I may make a comment and then follow with a question and correct me if I’m wrong, but the gambling interest point you make is really interesting. And I would assume the vulnerability of a labor force in a sports context to gambling interests, undermining the integrity of the product would be dramatically heightened when that labor force is not compensated. And so I would imagine while that gambling interest swirl around all the professional sports, the college athletics would be rife for this. So that sets up some questions, is there any evidence that’s actually played out? And I asked the question with the appreciation and maybe happening without point shaving is not easy to catch. Is there any evidence of it happening? And to what extent has that argument that’s been made I guess so far in effectively to convince the NCAA to cooperate with reform?
Ellen Staurowsky:
Throughout the college sport history, there have been gambling scandals, whether it’s was at Boston College or a set of basketball schools back in the 1950s. This issue has periodically surfaced over time. To be honest about it. I don’t know how internally, how much this has been discussed within the hallways of power with the NCAA. I’m not sure about that. But the other piece of this, that I’ve actually just been looking at recently with a colleague and we’re just beginning to look at this and ask questions about it is that incredibly high profile sports of college football, men’s basketball and women’s basketball, there does not seem to be kind of like an industry wide standard in terms of security, security for the athletes. And when you watch games, you’ll see that there are law enforcement people that surround a coach, but you don’t really see that kind of security effort in terms of athletes themselves.
And we’ve started to ask questions about that because in my mind, that’s very much also connected to these other industry issues to the gambling issue, to just what happens when you put athletes out in front of hundreds of thousands of fans and of millions who are following on television. But now along with that, the gambling interest, along with that the infrastructure just does not seem to be there for the magnitude of the industry. So to me, just reading the tea leaves, it seems like those would be points of vulnerability that especially if you have a labor force which is undervalued, that it increases the likelihood of something to happen, but that’s as far as I’ve gotten in the analysis, I can’t put any numbers behind it per se.
David Scupp:
Going back to the now permissive rules on endorsements, at least to some extent, and we talked about an $8 million deal or a $50 deal. But I don’t want to say 10 years ago, five years ago, even a $50 deal could have landed an athlete in some serious hot water, right? I mean, I’ve heard stories about some pretty extreme measures that have been taken against athletes for letting someone buy a bag of groceries or along those lines. Forget about $8 million deals, even a $50 deal, but we’re starting to see these deals, which the NCAA prohibited under this justification of amateurism for the better part of the century. Are we seeing any negative effects in college sports of these deals in your opinion or have these deals just revealed the NCAA’s justifications is completely protectual, what are your thoughts on that?
Ellen Staurowsky:
I think the one point that is being put to rest just by living through these changes is that the additional compensation that the NCAA was saying would undermine the charm of the industry. That simply is just not true, that if an athlete receives any kind of compensation, whether it’s cost of attendance stipend, whether it’s an endorsement. People are still coming to the stadium, they’re still watching on television. There’s still an incentive to watch young people compete at a high level. That storyline doesn’t go away just because an athlete realizes their value. And there’ve been some recent studies that have also shown that public opinion is very much behind athletes receiving compensation, whether it’s college students themselves, or whether it’s the general population. So from that front, I think the NCAA is having a very difficult time out running the logic that they set in motion that they can’t really defend. On the other hand, in terms of some things that are things to think about and to be aware of, I’m teaching this course right now called personal branding for college athletes.
And we had the wonderful fortune of having a variety of people who are working in this space on the ground, come in and talk to us. And we had a compliance officer from SEC school who visited with us in one of our classes, and my students had this question. And so did I about kind of what’s the dynamic in the locker room. If we’ve got a couple of athletes who are getting endorsement deals, are they feeling pressure or does that create more pressure among other athletes on the team? And there was a recognition that there is a locker room dynamic that has to be managed, but the way in which it was represented to us was it’s no different than a professional locker room that anytime, or frankly, any of us who are working in any setting, there are some people in any workplace who are getting more money than others.
So being able to manage that conversation is something that has to happen. But to me, that’s just a healthy sign that the marketplace is working and that compensation scale was always there anyway. There are athletes who get full scholarships. There are athletes that get partial scholarships. There are athletes that get no scholarships. There’s always been a differential anyway. And we’ve resolved those issues. The other thing, which frankly, I honestly, I really struggle with this one because I don’t know if it’s true or whether it’s made up. And that is that some athletes are experiencing pressure in a way that’s affecting their mental health, either that managing the amount of demands on their lives, that this additional issue is something which is already adding to quite a bit of pressure to begin with. Or if athletes are not getting endorsements, then are they questioning their value, are they wondering if they’re doing something wrong?
They don’t know how to go about it because this infrastructure isn’t there, they don’t need the education to do it right. So I’ve heard that on a couple of occasions. And I vacillate because I’ve not really heard it directly from any athlete, I’ve not heard it from any specific athlete. And sometimes I think that it’s just being used to shut down the conversation. And at other times, to benefit other financial entities, for example, there was an article written by an individual who had created app to shut down social media and align that with college athlete endorsements. And I was kind of like, “Well, I understand that, but you’re not bringing any data to bear to show that there is actually a negative effect. You’re bringing no information to bear on that.” So I don’t quite know what to make of that, but it is on my radar screen as something to be thinking about.
Jeff Shinder:
That’s fascinating. And I’d follow up with you on the mental health issue, but the interest of time might want to close with a different topic and get your views on the following: just to express my own personal opinion, I’ve always been troubled by the association of such an exploitative system with higher education. We send our children to college, so intrinsic to their formative experience and the people they become and not just their economic potential, which it obviously influences, but who they are, our identities are formed by the college experience. And the rah, rah around college sports just has its positives perhaps. I say that as a sports fan. But what are your views on the impact of this system, it’s coexistence with higher education and how schools have been profiting from such an exploitative system, has it affected for lack of a better framing, the integrity of our schools? Thoughts on that question?
Ellen Staurowsky:
I really appreciate the question because people ask me why I’ve looked at these issues for as long as I have and spent so much time looking at them and investing so much time. And it really, it is that juxtaposition between an association that is made up of 1,200 colleges and universities around the country. This juxtaposition between what the role of a college and university is supposed to be within a democratic society, which is supposed to be one that elevates the society overall and protects the interest of the most vulnerable. That’s in theory what colleges and universities are supposed to be about. And here we have this entity that has been exploiting athletes for over 100 years. Even in terms of its defense, the pillar of its defense in every courtroom in America, when the NCAA has been sued, has been this principle of amateurism.
And to me, it is just shocking to me in the 21st century that any college administrator with any conscience would support a concept like that. Amateurism was designed specifically to control the flow of individuals who came into the sports system. It was designed to create a barrier in terms of the lower classes and the elites. So the very notion in the 21st century, the colleges and universities would aggressively go into court and use a concept like that over and over and over again is really profoundly disturbing to me. And I think if we’re really talking about reform and change, this is the heart of where the change has to come from. I think there’s got to be a real accounting for what has been done and compellingly, you were talking about who it’s being done to. These are young people who have optimism and trust, and there’s just too much evidence to show that this system has not served them well.
And anything that we may be talking about in terms of compensation, that’s connected to a whole set of issues, health and safety issues. Why is it that our all Americans are suffering so profoundly for mental health issues and being abused by their coaches? This is a system that’s been unregulated, it hasn’t been checked, and it hasn’t been held to account and it’s done in under the pretense of some happy narrative that it was all out of benevolence. And this system really needs to fess up to what they’ve been doing in terms of profiting off of the labor of athletes. So that’s what I think of that.
Jeff Shinder:
This has been a fascinating discussion that we can continue. So you’ve already invited yourself back to the pod. We have some Title IX discussion to continue, and this is an emerging, evolving issue. So we’ll be following it closely and we would love to have you back. Thank you for your time. This has been terrific. And I think, and I applaud the work that you’ve been doing. Keep on, keeping on, is necessary and good luck. Good luck with it.
Ellen Staurowsky:
Thank you so much. And it humbles me to hear you say that because I’ve been so aware of the work that Constantine Cannon has been doing with whistleblowers for example, such tremendous work, and I’ve followed that avidly over the years. So it’s been deeply humbling to have been invited today. So thank you very much. And I look forward for further conversations.
Jeff Shinder:
As do we! On that note, we can conclude. Thanks again. That’s all for our show today. If you like the podcast, make sure to subscribe to Antitrust Matters, and leave us comments on how we were doing or on the topics you would like us to cover going forward. You can also follow us on Twitter, or follow the Constantine Cannon antitrust team on LinkedIn. Until next time, be well, and remember antitrust matters.