Reforming the NCAA
posted by Gerard Magliocca
The NCAA’s national headquarters is across the street from my office, and some lawyers at the NCAA teach as adjunct professors at my school. Notwithstanding that relationship, I think that the organization desperately needs reform. Taylor Branch wrote a piece in the Atlantic not that long ago attacking the NCAA as corrupt and calling for the payment of student athletes (at least in revenue-generating sports like football and men’s basketball), and I generally agree with his reasoning.
Non-profit monopolies or credential associations pose a tough regulatory problem. The International Olympic Committee, FIFA, the NCAA, and (it must be said) the ABA all tend to be unresponsive or worse. Of course, this is because they have no competitors and face no significant government oversight. So what should be done? Get Congress involved? Unlikely to happen. Pursue litigation? It’s been tried before and hasn’t worked. There is a case pending on the NCAA’s use of the publicity rights of former players (the O’Bannon litigation), but I’m not sure that will be successful.
Professional sports provide an answer–unions. That solution can be messy sometimes (the NBA lockout, for example), but it does lead to a more equitable sharing of revenue. Forming a union of college athletes, though, faces all sorts of hurdles. Is there a shortcut?
Sure there is. Suppose that on the eve of the BCS Championship Game, one of the teams announces that they won’t play unless they get a fair share of the TV money. The NCAA and the relevant TV network might just declare a forfeit, but would they really want to give up millions of dollars? I think that they might well cave and establish a precedent that the athletes deserve some of the money.
Now this kind of strike would not be easy. Most of a team would have to agree and risk expulsion from school and the loss of a once-in-a-lifetime chance to play for the national championship. They would be called all sorts of nasty names by fans and alumni. On the other hand, Curt Flood went through something like that to create free agency for professional athletes. Who will be the Curt Flood of college sports?
October 25, 2011 at 8:53 am
Posted in: Employment Law
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Responses (11)
Shag from Brookline - October 25, 2011 at 9:29 am
Gerard’s strike proposal:
“Now this kind of strike would not be easy. Most of a team would have to agree and risk expulsion from school and the loss of a once-in-a-lifetime chance to play for the national championship. They would be called all sorts of nasty names by fans and alumni. On the other hand, Curt Flood went through something like that to create free agency for professional athletes. Who will be the Curt Flood of college sports?”
mixes apples and oranges. College players ostensibly are there primarily for an education, with the side benefit of engaging in school sports (leading to a possible future career in professional sports), whereas Curt Flood was making a challenge to protect his right to enhance his employment opportunities. Unfortunately, Curt Flood made the challenge on his own.
In my view, the colleges and universities have to address the impact of high priced college sports on education: how does this help students with their educations? Maybe the student-sports player should receive compensation for bringing funds into his school’s coffers. But there is a reality test that the schools are reluctant to address. Perhaps college sports is a distraction from educating our kids to make our economy hum in the future in recovering from the Bush/Cheney Great Recession of 2008.
kormal - October 25, 2011 at 10:13 am
Taylor Branch wrote a piece in the Atlantic not that long ago attacking the NCAA as corrupt and calling for the payment of student athletes (at least in revenue-generating sports like football and men’s basketball), and I generally agree with his reasoning.
This is an interesting statement, and I’d like to hear more about your views.
1. Do you support exempting the revenue-generating sports (men’s football and basketball) from Title IX?
2. Is it your position that, but for the NCAA as it is currently structured, major colleges and universities would be willing to pay their players at a market rate?
3. Should student athletes be required to attend (and pass) classes in order to participate in athletics?
4. What is your sense of the general faculty’s view at the University of Indiana of the prospect of paying players? Is your sense that the faculty would be comfortable with, for example, offering a $500,000 ‘scholarship’ to a top-ranked high school recruit? Would they be comfortable if this individual was not required to attend classes?
I ask these questions because I think Branch’s article sounded nice at first blush, but is really unworkable. There are only about 25-30 college athletic departments that turn a profit last time I checked. Exempt the sports from Title IX and you can maybe double that number. I also don’t think that the NCAA is the problem here, to the extent there is a problem. The schools themselves like the system as it is, for a lot legitimate and illegitimate reasons.
Allow players to be paid for their work (at negotiable, market rates, of course) and you’ll create a clear stratification between a few dozen schools and all the rest. You’ll shrink the pool of competitive schools quite a bit. I think a lot of schools would rather shut down the programs rather than become a proto-professional franchise. I think a lot of faculty would find that working for such an institution would be disquieting.
In any event, this is a world where there are fewer college athletes, smaller college athletic departments, and fewer students. I don’t think that’s a good thing solely for the sake of 50 or so elite athletes being able to market their skills before they turn 21.
Gerard Magliocca - October 25, 2011 at 10:29 am
I agree that the schools are part of the problem, but I don’t agree with the rest of what you’re saying here. Lots of faculty work at schools where the football or basketball coach is the highest paid employee. They don’t seem bothered by that. Why is paying an athlete different?
kormal - October 25, 2011 at 10:41 am
Why is paying an athlete different?
Because they’re students. I’m also curious as to your position on Title IX. Obviously you’re not obligated to respond, but I’m not sure how the Branch solution is workable without addressing it.
kormal - October 25, 2011 at 10:43 am
But hey, you’re a member of a major university faculty, so I’ll take your representation that faculties would not be bothered by working for professional sports franchises. I don’t want that to distract from the other issues raised by paying student athletes at market rate.
Gerard Magliocca - October 25, 2011 at 10:52 am
But why shouldn’t students that generate lots of revenue get paid? They are different from the rest of the student body. It’s like what people used to say about Olympic athletes (“They’re amateurs. You can’t pay them.”), but now lots of them are paid and most people are fine with that.
To be honest, I’m not sure what my position on Title IX would be if some kind of comprehensive reform was on the table.
Gerard Magliocca - October 25, 2011 at 10:58 am
One other thought before I go and teach. No matter what you or I might think about paying student athletes, suppose that the folks with leverage as stated in the post demand to be paid? My view is that the relevant parties should just engage in some hard-nosed bargaining and come to an agreement. Are you saying that should be prohibited because one party includes students?
kormal - October 25, 2011 at 11:26 am
But why shouldn’t students that generate lots of revenue get paid?
Because it will reduce the number of schools able to field competitive teams in the revenue-generating sports. The result will be further stratification in already-stratified sports. (Basketball will be effected more severely on this one than football, to be sure.)
It will reduce the number of schools able (or willing) to offer athletic programs in non-revenue-generating sports.
It will reduce the number of student athletes, and, thus, the number of students able to go to college (or certain colleges) on scholarship.
It will reduce the number of student athletes in the revenue-generating sports graduating college (which is already at distressingly low numbers).
I’m not saying students shouldn’t attempt to bargain, if they can. I don’t think it’s a practical avenue for change, for many reasons, mostly because most of the students (outside of the NFL-bound superstars) have little, if any, actual leverage, and their interests don’t align. I don’t think the interests of a second-string lineman is the same as a given year’s Heisman trophy candidate. In fact, I would argue that the midlevel lineman would be harmed by a market-based compensation system at the expense of lining the pockets of his more talented peer. Unlike the pros, where all players are better off with collective bargaining, I don’t think the same can be said given the sometimes extreme talent disparities even within a single team.
If you’re asking whether I think that the strike scenario would be effective (if they players did manage to act collectively), I don’t know; it would certainly draw attention to the cause. I’m not against it in principle.
I, too, have to go off and write a brief just now, but would love to continue this discussion.
Howard Wasserman - October 25, 2011 at 2:09 pm
FWIW, there is some historical precedent for this approach. The NBA players’ first major collective victory (I think on the issue of pensions) came when they threatened to boycott the 1964 All-Star Game, with ABC ready to broadcast it.
Ani - October 25, 2011 at 7:14 pm
There’s a substantial difference b/w a threatened strike/boycott by professional athletes and one by college athletes. The best college athletes anticipate — to an absurd degree — making their money by demonstrating their talents in college, and cashing in once drafted. Getting them to throw their lot in with those whose interests are more short-term, and getting all to realistically evaluate which stack they belong to, will be very difficult.
bet365 - December 5, 2011 at 5:56 am
Of course, any change to the status quo could disrupt the NFL — which wouldn’t be a bad thing. The NCAA’s “all-or-nothing” approach enables the NFL to spend little time and energy on player development. NFL rules ban a player from entering the Draft, and thus gaining eligibility to play in the league, until he’s been out of high school for three years.
If the NCAA decided to stop locking the proverbial barn door, it might spark the NFL into adopting a more expansive player development program — such as the Spring League that I suggested in my earlier article.
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