President-Elect Obama has made plain his support for a college football playoff system. Advocates of our current system have expressed their dissent. They prefer determining which two teams compete for the national championship through an intricate maze of polling and ratings. Of course, all other NCAA championship finalists in all other sports are determined by playoffs, but the defenders of the status quo fear the loss of collegiate glory for the many teams that can play in the "Corporate-Sponsored Bowl." Those lesser bowls actually cost colleges money after they cover expenses, money that is in short supply these days. I will leave the merits of the two conflicting approaches for a later discussion. But the Obama comment raises a more fundamental question: what might the President-Elect do to make sure someone in the federal government is responsible for national policy on, and coordination of, athletics and sports?
I propose we create a Department of Sport. Admittedly, this is not a unique idea. Most countries have a Ministry of Sports with responsibility for fostering physical education, developing amateur athletics and monitoring the businesses of professional sports. Canada, for example, has a bureau of sport that is part of its Department of Canadian Heritage. France has a Ministry of Health, Youth and Sport. By comparison, the United States has the non-governmental NCAA, the USOC, the NFL, MLB, NBA, NHL, etc., all private organizations with their own agendas.
It is not as if the federal government has abstained from the regulation of amateur athletics and professional sports. The Amateur Sports Act of 1978 established the United States Olympic Committee and the national governing bodies for each Olympic sport. Title IX of the Education Amendments of 1972 caused a revolution in girls' and women's sports aided by the gender-equity regulations drafted by the then Department of Health, Education and Welfare. There is no bureau of the federal government, however, that coordinates with the NCAA or with the professional sports leagues. Obviously, placing the portfolio for athletics and professional sports in a single governmental entity would allow for some rational oversight.
Under the current system of non-oversight, athletics have been driven purely by the profit motive. For over fifty years, the NCAA has operated as a business cartel of colleges and universities. On occasion, federal courts, applying the antitrust laws, have censured blatant efforts by the NCAA to restrict economic competition among college sports programs, but, for the most part, the NCAA gets its way. The USOC, in turn, only seems to follow the lead of the International Olympic Committee. The big four professional team sports - baseball, basketball, football and hockey - are motivated by marketplace concerns and checked only by the countervailing power of the unions that represent their players. We know that the National Football League has informed the NFL Players Association that it will opt out of the current collective bargaining agreement, setting up a possible work stoppage in 2011. There will be no one at or near the football bargaining table who will represents the interests of the football fan.
There have been times in the recent past when a Department of Sport would have proven quite useful. During the 1994-95 baseball strike, my colleague Harvard Law Professor Paul Weiler and I quietly tried to convince the Clinton Administration that it would be useful to establish a commission that would work to end the work stoppage that was about to kill the National Game. The White House opted instead for the appointment of a prominent mediator to assist the parties, an approach that proved woefully ineffective. Then the President invited the warring parties to the White House where Vice President Gore tried valiantly to breach the bargaining gap. It was left to good fortune that the Chairman of the National Labor Relations Board at that moment was Bill Gould, one of the nation's leading authorities on both Labor Law and Sports Law. He put in motion the action that eventually led to the end of the strike. Next time the fans may not be as fortunate. A Department of Sport, on the other hand, would have been ready and able to assist the parties in reaching an accommodation of their conflicting interests that, in turn, would have also served the public's interest.
What else could a Department of Sport accomplish? It could coordinate governmental efforts to foster athletic opportunities for youngsters as part of a nationwide effort to combat obesity in children, a health condition that will impose enormous costs on this generation in the years to come. The media seems to have calmed down on its frenzied reporting about steroids in baseball, but there are genuine concerns about the impact of performance-enhancing drugs on the integrity of athletic competition. When George Mitchell investigated the issue for the Commissioner of Baseball and issued his report a year ago, he never answered the central question whether the home run surplus of recent years was chemically induced. Congress held particularly uninformed hearings. The Department of Sport could investigate the issue. Wouldn't it be useful if someone other than baseball's hand-picked chair and local sports reporters reviewed the evidence?
I must admit a personal interest in this new Department of Sport since I would be more than willing to serve as its first Secretary. But even if our new President were to select someone else to lead DOS, it would be a worthy effort to provide a federal presence on these matters that affect so much of our lives.