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Volume 22 No. 19
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It was inevitable that NCAA athletes would demand bigger share

When the NCAA had its first business meeting in 1906, its position on amateurism was unequivocal. Article VI of the bylaws banned the offering of financial inducements to players to enter universities and colleges because of their athletic skills. Need-based aid unrelated to sports was consistent with amateurism. Athletic scholarships, however, were a form of pay.

During the early 20th century, Americans enthusiastically embraced college sports as a form of mass commercial entertainment. As rivalries became more intense, so too did the temptation for alumni and others to funnel under-the-table payments to potential recruits. In an effort to reduce the influence of these outside donors, the NCAA decided in 1957 to openly pay athletes’ room, board, tuition and fees in return for their athletic participation.

Regardless of whether these “scholarships” stemmed the flow of under-the-table payments from fans and alumni, it is beyond dispute that such payments were blatant violations of amateurism. Walter Byers, the NCAA director at the time, later characterized these scholarships as “a nationwide money-laundering scheme” that allowed payments to athletes through the school’s financial aid office.

One can reasonably argue that paying the room, board, tuition, and other fees of big-time college athletes in return for participation in an extracurricular activity is a pretty good deal. Many students must rely on loans, part-time jobs and payments by parents, and find themselves in considerable debt after graduation. I felt privileged to have received a full athletic scholarship to play football at Notre Dame in the 1960s.

Several decades later, however, a major antitrust case, often referred to as the Regents case, transformed big-time college athletes into highly exploited wage laborers. In that case, which was settled in 1984, the University of Georgia and the University of Oklahoma argued in the U.S. Supreme Court that the NCAA had violated the Sherman Antitrust Act by not allowing its members to sell their television rights to the highest bidder. The court sided with the plaintiffs, arguing that big-time college sports are businesses just like any other.

Between 1984 and the present, the major football and basketball powers have made millions of dollars by adopting the best business plan imaginable — one that combines socialism for the players with free enterprise for everyone else. Universities now sell their broadcast rights to the highest bidder while athletes continue to be paid scholarships whose value has increased very little since 1957.

The increased competition for television money forced coaches to put greater pressure on their players. Schools now schedule televised football games on evenings during the week, and athletes’ academic schedules and choice of academic major often give priority to sports over getting the best education possible. Coaches’ salaries have rocketed into the multimillion-dollar range.

About 30 years after the Regents case, a former UCLA basketball star, Ed O’Bannon, filed an antitrust lawsuit against the NCAA claiming that players were entitled to a share of the millions of dollars the NCAA earns from video games and other products that use their names, images and likenesses. In 2014, a U.S. district judge in California ruled in favor of O’Bannon and awarded the players scholarships that paid the full cost of attending college and a $5,000 stipend for every year of competition completed.

Unfortunately, the 9th U.S. Circuit Court of Appeals did not support the district court’s proposal for $5,000 yearly stipends, arguing that cash payments not “tethered” to education violate amateurism. Although the court ruled against awarding athletes the stipends, the idea of tethering such stipends to education suggests a unique way to increase player compensation without having to address the amateurism issue.   

For instance, athletes could use yearly $5,000 stipends to pay for graduate school, law school or to complete a bachelor’s degree after eligibility expires. The stipend could also pay for vocational training and cash compensation to pay for study abroad. There are other ideas that the NCAA could adopt immediately to give athletes a pay raise. Some of these stipends could easily exceed $5,000 a year.

This idea has already been raised by attorney Jeffrey Kessler in Jenkins v. NCAA. In this class-action case, which is being tried this month in U.S. District Court Judge Claudia Wilken’s Oakland courtroom, the plaintiffs are suing the NCAA over its capping of athletic scholarships. When the U.S. Supreme Court ruled in 1984 that college sport was just another business, it was inevitable that athletes would someday demand a bigger share of the profits.

 

Allen Sack, professor emeritus at the University of New Haven, played on Notre Dame’s 1966 national championship football team and is a co-founder of the Drake Group.