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Gabriel A. Feldman

Gabriel A. Feldman

Posted: April 4, 2010 08:33 PM

As we endure the last of the Butler-as-Hoosiers and Duke-as-the-devil stories, the focus has shifted a bit to the possible expansion of the NCAA tournament from 64 teams to 96 teams. Late last week, the NCAA held a press conference to discuss some of the details of the proposed expansion, and the reaction from the media has been swift and brutal. The most common complaints are that the extra 32 teams will devalue the regular season and the conference tournaments, eliminate the excitement of the bubble, water down the tournament, drain some of the excitement from the opening rounds, and destroy the office pool as we know it. And, of course, critics point out that the NCAA is considering the change for one reason and one reason only -- to make more money.

Other than the folks at the NCAA, coaches are only people who seem think that expansion is a good idea. That's not a huge surprise: 32 more spots means 32 more coaches who can claim they had a successful season by making it to the (Really) Big Dance. It reminds me a little of the days when I was a kid in summer camp and everyone got a trophy just for playing. It seemed like a good idea at the time and I'm sure it kept me from crying, but it became pretty clear that a trophy wasn't a real sign of success. Granted, the NCAA isn't handing out tournament spots to all teams, but expanding to 94 will change the measure of success and failure. For most teams, just making the Big Dance is a real accomplishment. With the expansion, making the Really Big Dance will be expected for most big-time programs, and missing the tournament will be seen as an inexcusable failure. Yes, the odds of "success" will be higher, but the weight of failure will be that much greater.

But, I'm not here to debate the merits of the possible move to 96. I have my doubts about the "more of a good thing is better" logic behind the move (1 CTU mole on 24 is a good plot twist; 2 CTU moles means they need a new HR person), but I'm also not convinced that 64 is a magic number. Yes, we all love the tournament with its 64 teams and don't see a need to change it, but we all (ok, maybe not all) loved Major League Baseball with two divisions in each league and no wildcard, and MLB's playoff expansion hasn't turned out so badly.

There is, however, a more subtle implication of a larger field that may have a much larger long-term impact down the road than the (potentially) temporary backlash from fans and pundits. As John Feinstein hammered across during the press conference, a 96-team tournament means more games, which means more missed classes for the players. Under the NCAA's expansion proposal, 32 teams (the top 8 seeds from each region) will get a bye. The other 64 teams (the 9-24 seeds in each region) will play first round games on the first Thursday or Friday of the tournament. The remaining 64 teams (the 32 teams with the bye and the 32 survivors from the first round) will then play on Saturday or Sunday. The winners of those games will then play on the following Tuesday and Wednesday, followed by the Sweet 16 on Thursday and Friday, the elite eight on Saturday and Sunday, and then the final four the following week.

So, let's assume that Northwestern finally makes the tournament as a 21 seed (success for Northwestern!). If they make a magical run to the Sweet Sixteen, they will miss almost a week and a half of classes traveling for the games. When Feinstein raised this issue at the press conference, Greg Shaheen, a Senior VP for the NCAA, seemed unprepared (or unwilling) to respond to the basic point. Commentators have jumped all over this as a sign of the NCAA's hypocrisy, and Shaheen's "response" may have hurt the NCAA's public relations efforts (though it actually seems to have distracted people from the substance of the debate), but there is a much bigger issue at stake here.

Like the NFL, the NCAA has been the target of a number of antitrust lawsuits over the last few decades. And, like the NFL, the NCAA has spent a considerable amount of time and money arguing that they should be exempt from antitrust law (Once upon a time, the NCAA argued--unsuccessfully -- that they should be considered a single entity and immune from antitrust law. We'll see what the Supreme Court says about that argument for the NFL later this year). Although courts haven't given the NCAA complete antitrust immunity, they do recognize that NCAA rules governing college athletes should be given more deference than NFL or NBA rules governing professional athletes. The deference afforded the NCAA stems from two factors: college athletes are amateurs, and they are students. So, the NCAA has been protected from antitrust attack when they create rules that promote amateurism (i.e, restrictions on athlete compensation) and academics (i.e., eligibility requirements).

The special treatment starts from the top. Here's what the U.S. Supreme Court said in the landmark Board of Regents case in 1984:

The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of the [antitrust laws].
The Court added that "It is reasonable to assume that most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and therefore procompetitive because they enhance public interest in intercollegiate athletics."


But, the NCAA needs to tread lightly. Judicial deference to the NCAA is not unconditional. While some commentators have been screaming for years that the NCAA cares about money, not amateurism, courts have continued to defer to the NCAA in antitrust cases when the NCAA makes rules governing student-athletes that are arguably related to maintaining amateurism and furthering academic ideals. That deference could fade if the NCAA makes decisions -- like expanding the tournament -- that seem to put the "athlete" ahead of the "student" in student-athlete. At a minimum, it will give ammunition for plaintiffs to use in antitrust cases -- and their quest to obtain treble damages -- and give judges and juries a reason to more strictly scrutinize NCAA rules.

This is not a hypothetical risk. The NCAA is currently facing a class action antitrust lawsuit brought by Ed O'Bannon (and will surely face more antitrust suits down the road) that claims that the NCAA's use of former college athletes in video games, commercials, and other commercial enterprises violates the antitrust laws. The NCAA's amateurism/academics argument is already weakened in that case because the plaintiffs are former -- not current -- student-athletes, but expanding the tournament at the expense of academics will make it even more difficult for a judge or jury to give any deference to the NCAA.

There is no question that the NCAA and its member schools do a lot of important things with the money they earn from college basketball and football, but the NCAA has to be able to explain how an additional 32 teams in the already successful and lucrative tournament is worth an additional week (or more) of missed classes. Gary Shaheen had no answer at the press conference, and the stakes will be a lot higher in the courtroom.

 

Follow Gabriel A. Feldman on Twitter: www.twitter.com/SportsLawGuy