"The greatest trick the Devil ever pulled was convincing the world he didn't exist." -- Verbal Kint/Kaiser Soze, The Usual Suspects
It is time to wake up. For decades the NCAA has created the illusion that their sole purpose was to defend the concept of amateurism within higher education. This trick has been sanctioned by none other than the Supreme Court when, in 1984, they recognized the NCAA as "the guardian of an important American tradition... amateurism in intercollegiate athletics." [NCAA v. Board of Regents of the University of Oklahoma] And, for far too long, the American public has accepted this deception; that those competing in college sports should remain amateurs, as defined by the NCAA, so as to delineate them from paid professional athletes.
The argument is stale, the facts don't support reality, and the public is recognizing the absurdity of the NCAA's position: they insatiably embrace commercialism in all facets of intercollegiate athletics except on a single issue -- athlete compensation. College athletics has evolved into an industry generating billions of dollars a year without paying the labor that produces the demand for this product. Perhaps one of the reasons public outcry has been muted is that the students engaged in these sports are, predominantly, minorities whose access to college the public often labels "an opportunity." The popular argument, that scholarships offer free education to many athletes, is rebuffed by the systemic failure of schools and the NCAA to ensure that students competing in football and basketball graduate with their college degrees or even a valuable education.
"Reality is merely an illusion, albeit a very persistent one." -- Albert Einstein
The development of commercialism within college athletics benefited from the convergence of two events in the 1980s: 1) the NCAA's restrictions on television appearances being struck down by the Supreme Court in 1984 in the NCAA v. Board of Regents case; and 2) the growing cable television revolution as a result of government deregulation. Thus, televised college football games promptly hit the free market at just about the same time that cable television was exploding in popularity and newly created "all-sports" networks clambered for content to fill their airwaves. The symbiotic relationship between television and football blossomed, driving ratings, advertising revenue, and broadcast rights soaring.
Having lost the ability to mitigate the impact that television rights fees would have on football, the NCAA flexed their muscles in order to advance their version of a level playing field within college sports. A growing investigative and enforcement staff began policing and imposing new levels of bureaucracy on intercollegiate athletics, ostensibly under the rubric of protecting amateurism. Not surprisingly, the unchecked authority of the NCAA, as manifest in its lack of procedural restraint, was challenged four years later in 1988 in the high profile case NCAA v. Tarkanian.
Former UNLV men's basketball coach Jerry Tarkanian claimed that the NCAA provided an inadequate level of procedural protection when they charged him with rules violations, especially when taken in context with the growing financial stakes in college athletics. Regardless of the alleged rules violations, Tarkanian asserted his basic Constitutional rights were not met by the NCAA during his prosecution. Ultimately, the Supreme Court found against Tarkanian, determining that the NCAA was a private association rather than a "state actor" and, accordingly, not obligated to provide "due process" to those it investigated. The result of this decision was that the NCAA empire was established and those it governed provided with little ability to challenge their judgment.
As pointed out by Brian Porto in his superb book The Supreme Court and the NCAA: The Case for Less Commercialism and More Due Process in College Sports, the combination of decisions in Board of Regents and Tarkanian left a college athletic environment that now embraced commercialism while giving carte blanche to the NCAA to implement and enact their will. As accurately predicted by Justice Byron White after the Supreme Court decided the Board of Regents and Tarkanian cases, the college athletics landscape evolved into an untenable dichotomy as the endless and unfettered chase for revenue by many athletic departments ensured a growing departure from an institution's primary mission -- to develop and educate its students.
"If we choose, we can live in a world of comforting illusion." -- Noam Chomsky
Student-athletes in men's basketball and football do receive compensation in the form of tuition, but that compensation is artificially limited compared to their free market value unlike any other economic actor engaged in college athletics -- from coaches to schools to conferences to the NCAA itself. This business model has been sacrosanct for the past 30 years and now, finally, the critics are crying foul.
A flurry of condemnation has come from the mainstream media as many decry the NCAA and its utter loss of perspective in implementing rules, policies and enforcement. Even the NCAA's President, Mark Emmert, has admitted that it is time for meaningful reform within the organization; unfortunately, change is slow and power is rarely ceded without a struggle. In sum, the NCAA's response to commercialization and its effect on players in the revenue producing sports has been a definition of amateurism that is absent any intellectual or normative grounding.
Tired of waiting for NCAA reform, two recent initiatives have raised the public's consciousness to the cause of student-athletes -- Ed O'Bannon's litigation against the NCAA and Taylor Branch's brilliant article entitled "The Shame of College Sports" in The Atlantic. O'Bannon, with the guidance of sports marketing maverick Sonny Vaccaro, has challenged the NCAA's ability to profit from former athletes who are no longer participating in college athletics. Branch pronounces the NCAA's assertion that college athletics, at least in the sports of basketball and football, should be considered amateurism an outright sham, and payment to the participants a moral and legal obligation.
In 2009, former UCLA basketball star Ed O'Bannon sued the NCAA, challenging their right to profit, in perpetuity, from names, images, and likeness of people without ever compensating them. O'Bannon v. NCAA has grown in profile over the past several years, in part due to the relentless efforts of Vaccaro to bring attention to this cause, and additional high profile plaintiffs, including Bill Russell and Oscar Robertson, have joined this class action lawsuit. The NCAA's response, other than delay tactics, has been to argue that these athletes signed away those rights, forever, when they agreed to play for their college teams as teenagers.
Despite an active and creative defense strategy employed by the NCAA and a multitude of procedural challenges to dismiss, the case forges ahead. And as the case progresses through the legal system it gains strength, momentum and support. This issue has finally captured the attention of the media as the argument that the NCAA is free to profit off its players forever, without compensating the players, becomes virtually impossible to defend -- legally or morally. Hanging over the head of the NCAA is the possibility that, should this case reach a decision on the merits in favor of the plaintiffs, damages may surpass a billion dollars.
And as if this legal challenge to the college sports world wasn't enough, Taylor Branch dropped a bomb on the NCAA when he convincingly declared it is time to pay student-athletes. A Pulitzer Prize winning historian, Branch's argument couldn't be swept under the rug as the rantings of the lunatic fringe. In eloquent and persuasive prose, Branch logically laid out a cogent argument declaring the NCAA's system of amateurism a product of a bygone era and the result akin to indentured servitude. Commercialism has overtaken intercollegiate athletics and it is time the revenue is shared with those that produce it.
Branch's article generated such national attention that the concept of paying student-athletes is no longer unfathomable. Critics from the New York Times, the Wall Street Journal, and the Chronicle of Higher Education, have all joined in to debate the merits of compensating student athletes for the revenue they generate for their schools. While a free labor market bidding on the services of high school students may be a sound economic argument, others are willing to consider less contentious options.
Rather than developing a compensation system for college athletes competing in basketball and football, with salaries provided during their time on campus, some are advocating that a "Student-Athlete Trust Fund" be developed. Money would be set aside from revenue generated by television and licensing contracts and placed into a trust for student-athletes to access once their collegiate careers have concluded. It is rumored that Kenneth Feinberg, Special Master who administered the September 11th Victim Compensation Fund and BP Deepwater Horizon Disaster Victim Compensation Fund, would manage this non-profit along with a yet-to-be-determined board of directors.
"One day everything will be well, that is our hope. Everything's fine today, that is our illusion." -- Voltaire
Change is inevitable and intercollegiate athletics' current position of trying to balance between commercialism and education is untenable -- greed has won. The NCAA clings to its antiquated concept of amateurism while reality reflects a vastly different story. Whether the legal system or outspoken critics sway public opinion to destroy the current model has yet to be determined, but make no mistake, the current definition of amateurism within college athletics has been shattered. The claim by the NCAA that they are protecting amateurism is but an illusion. It is time to wake up.
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