Rights and Well-Being

COLLEGE ATHLETES’ Rights and Well-Being

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COLLEGE ATHLETES’

Rights and Well-Being

Critical Perspectives on Policy and Practice

Edited by EDDIE COMEAUX

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© 2017 Johns Hopkins University Press All rights reserved. Published 2017 Printed in the United States of America on acid-free paper 9 8 7 6 5 4 3 2 1

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Names: Comeaux, Eddie, 1973– editor. Title: College Athletes’ Rights and Well-Being : Critical Perspectives on

Policy and Practice / Edited by Eddie Comeaux. Description: Baltimore : Johns Hopkins University Press, 2017. | Includes

bibliographical references and index. Identifiers: LCCN 2017008836| ISBN 9781421423852 (pbk. : alk. paper) |

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Subjects: LCSH: College athletes—United States. | College athletes— Education—United States. | College sports—Social aspects—United States. | College sports—Moral and ethical aspects—United States. | National Collegiate Athletic Association—Rules and practice. | Well- being—United States.

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Contents

Preface

Acknowledgments

INTRODUCTION. A Whole New Ball Game for College Athletes? John R. Thelin

1 Part One. Historical Perspective

CHAPTER 1. The Muzzle and the Megaphone: Enlisting the College Athlete Voice for Meaningful Reform Valyncia C. Raphael and J. P. Abercrumbie

2 Part Two. Formal NCAA and Member Institution Policies and Principles

CHAPTER 2. The National Letter of Intent: A Symbol of the Need for an Independent College Athlete Players Association Ellen J. Staurowsky

CHAPTER 3. Amateurism and the NCAA Cartel Robert Scott Lemons

CHAPTER 4. Title IX’s Gender-Separate Allowance in the Context of College Athlete Rights and Intercollegiate Athletics Reform Jennifer Lee Hoffman

CHAPTER 5. The State of Concussion Protocols: Paperwork or Policies?

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Whitney Griffin

CHAPTER 6. 4–4 Transfer Restrictions on College Football and Athlete Freedom Gerald Gurney

CHAPTER 7. Due Process in College Sports Steven J. Silver

CHAPTER 8. College Athletes and Collective Bargaining Laws Neal H. Hutchens and Kaitlin A. Quigley

3 Part Three. The Commercial Enterprise of College Sports

CHAPTER 9. Commercialism in College Sports Undermines Athletes’ Educational Opportunities and Rights Angela Lumpkin

CHAPTER 10. Conference Realignment and the Evolution of New Organizational Forms Earl Smith and Angela J. Hattery

CHAPTER 11. Competitive Equity: Can There Be Balance between Athletes’ Rights and a Level Playing Field? Andy Schwarz and Daniel A. Rascher

4 Part Four. Personal and Educational Well-Being of Athletes

CHAPTER 12. Looking underneath the Helmet: Learning How African American Football College Athletes Navigate Sports, Education, and Expectations Jamel K. Donnor

CHAPTER 13. Athletic Scholarship Arrangement: Maximizing Educational

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Opportunities for Pacific Islanders in College Football Keali‘i Troy Kukahiko and Mitchell J. Chang

CHAPTER 14. Intervention Strategies for Improving College Athletes’ Academic and Personal Development Outcomes at Historically Black Colleges and Universities Joseph N. Cooper and Eddie Comeaux

CHAPTER 15. Revisiting African American Males and Highlighting Pacific Islander / Polynesian Male Experiences C. Keith Harrison, Leticia Oseguera, Jean Boyd, and Monica Morita

CHAPTER 16. Activism in College Athletics: A Case Study of the Student- Athletes Human Rights Project Emmett Gill, Jr.

AFTERWORD. Restoring Balance: Putting the “Student” and “Collegiate” Back in Intercollegiate Athletics Scott N. Brooks

Contributors

Index

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Preface

The Division I college athlete experience is extraordinarily complex and compelling and has generated myriad critical questions for educators and social scientists. At the core of these analyses are growing concerns about underlying issues of equity, fairness, and inclusion. For college athletes, these issues emerge as early as their binding agreement with a college or university—the National Letter of Intent (NLI).

In 2014–15, it was estimated that more than 24,000 Division I freshman athletes agreed to compete in intercollegiate athletics on behalf of colleges and universities in exchange for partial or full athletic scholarships. The contractual relationship between these athletes and their institutions principally comprises the NLI and a financial aid agreement (FAA). By signing the NLI, these athletes have agreed to attend their respective schools to pursue a program of study and participate in intercollegiate athletics. As well, an FAA formalizes their college or university’s commitment to providing athletic grants-in-aid in exchange for their commitment to playing college sports.

An athletic scholarship affords athletes an opportunity to pursue both their athletic and academic dreams. Nevertheless, the inherent value of a formal college education relative to the revenue generated by athletes in big-time collegiate sports and the ever-increasing salaries of head coaches has been highly debated. Many critics of college athletics, in fact, argue that the contractual relationship between athletes and their institutions is rarely a fair exchange. For instance, as commercial interests in college sports continue to grow, there are more extensive game schedules, more travel, and increased “special admit” athletes who do not meet the admission standards of their institutions. It is increasingly difficult to ignore the effects of these circumstances on the quality of educational experiences for college athletes.

Brown (2011) reported that athletes at Division I football subdivision schools spend 43.3 hours per week on sport-related activities, and men’s and women’s basketball players miss the most classes—2.4 and 2.5 per week, respectively. Missed classes are largely the result of coaches’ demands and television networks’ dictation of schedules and times for games. Moreover, some athletes are restricted to certain academic majors

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because of scheduling conflicts (Fountain & Finley, 2009). And studies have shown low graduation rates among Division I athletes in high-profile sports, particularly Black, male athletes (Harper, Williams, & Blackman, 2013). Unfortunately, economic and commercial interests create an organizational culture where academic goals and obligations, as well as the overall well-being of athletes, are less of a priority among coaches and other stakeholders of athletics.

Many critics of college athletics have also argued that this contractual relationship is disproportionately unfavorable to athletes because they are not receiving basic rights and protections, including (but not limited to) guaranteed multiyear athletic scholarships to help them complete their degrees, guaranteed medical benefits if they are injured during sport participation, health and safety rules to reduce the types of injuries that cause brain trauma, and, because of NCAA amateurism ideals, the ability to profit from their own names, images, and likenesses.

Meanwhile, power brokers who determine the rules of engagement for college athletics continue to benefit quite handsomely from the multibillion-dollar college sports enterprise. For the fiscal year ending in 2015, the revenue of the National Collegiate Athletic Association (NCAA) exceeded $1 billion. A significant portion of this revenue is the result of a 14-year, $10.8 billion agreement with CBS and Turner Sports for the television and marketing rights to the Division I men’s basketball tournament. Further, head coaching salaries in big-time football and men’s basketball are rapidly rising—on average, they now exceed $1 million— and salaries for athletic directors and NCAA conference commissioners are also steadily climbing.

Despite the argument that the current intercollegiate athletics enterprise is not a fair exchange for athletes, current athletes and their advocates have incredible power in their political and social voices. Rarely have these voices been exercised, however, because support systems and reasonable protections within athletic departments and their institutions are absent. As such, many athletes agree to contractual relationships and conform to current policies and practices of intercollegiate athletics rather than challenge them.

Nonetheless, a growing number of current and former college athletes across the country are finding their way and choosing their battles in the name of fairness, basic rights, and well-being. The Missouri players’ protest against racism, the Grambling State players’ boycott for better playing conditions, and the Northwestern University football players’ union bid are all examples of athletes’ activism and of their ability to

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participate in the transformation of the present intercollegiate athletics enterprise. These actions, coupled with several court rulings in recent years and a pending antitrust claim, do indeed demonstrate college athletes’ power and authority in effecting change. And, as Paulo Freire (2000) reminds us, actions can become “the practice of freedom” (p. 34).

Until now, there has been no supplemental text for the study of college athletes’ rights or their personal and academic well-being. These will be among the most critical issues facing athletics in higher education over the next decade. Both of these issues—the absence of a comprehensive teaching tool to consolidate baseline knowledge in this area and the heightened enthusiasm for the study of athletes’ rights and well-being— created the need for this important and timely anthology.

THIS IS A PRACTICAL TEXT, particularly suitable for those who seek to enhance their understanding of the intercollegiate athletics landscape. The textbook is primarily intended for upper-level undergraduate and graduate students, though scholars, teachers, practitioners, policy makers, athletic administrators, and advocates of college athletes will also find it essential. The book is arranged into 16 individual chapters that cover diverse topics on college athletes’ rights and well-being. It is not exhaustive, but the current concerns, challenges, and themes of relevance to the college athlete experience are well addressed.

The chapters are organized into four parts that describe in depth: (1) the historical foundations that have shaped student rights and well-being in intercollegiate athletics; (2) the formal policies and principles established by the NCAA and member institutions that influence how college athletes experience life on campus; (3) the highly commercialized business enterprise of college sports; and (4) the overarching structures and conditions that influence the quality of experiences and well-being of college athletes.

The 16 chapters provide distinctive expert voices from a range of fields. Each offers reasonable policy and practice recommendations that, when implemented, will ensure a more inclusive future for college athletes and protect their rights and improve their well-being. Each chapter also includes guided discussion questions that are ideal to spark further conversation in the classroom and beyond. In all, adopters of this text will find that this timely content sheds new insight and presents unique opportunities for the study and protection of college athletes’ rights and

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well-being in American higher education.

References

Brown, G. (2011). Second GOALS study emphasizes coach influence. Indianapolis, IN: NCAA. Retrieved from http://www.ncaa.org/wps/wcm/connect/public/NCAA/Resources/Latest+News/2011/January/Second+GOALS+study+emphasizes+coach+influence

Fountain, J., & Finley, P. (2009). Academic majors of upperclassmen football players in the Atlantic Coast Conference: An analysis of academic clustering comparing White and minority players. Journal of Issues in Intercollegiate Athletics, 2, 1–13.

Harper, S. R., Williams, C. D., Jr., & Blackman, H. W. (2013). Black male student-athletes and racial inequities in NCAA Division I college sports. Philadelphia, PA: University of Pennsylvania Center for the Study of Race and Equity in Education. Retrieved from https://www.gse.upenn.edu/equity/sites/gse.upenn.edu.equity/files/publications/Harper_Williams_and_Blackman_%282013%29.pdf

Freire, P. (2000). Pedagogy of the oppressed. New York: Bloomsbury Publishing.

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Acknowledgments

The development and advancement of my understanding of college athletes’ rights and well-being is a process in which many pioneering scholars and activists have played an important role and to whom I am incredibly indebted. In particular, I wish to thank sociologist and civic activist Dr. Harry Edwards for introducing me to this area of study as an undergraduate student and for his continued mentorship. I am also most grateful to all the contributors of this volume for providing attentive insights and fresh ideas, not least for meeting chapter submission deadlines, which has enabled me to deliver the manuscript in a timely manner. I have an awesome editorial team at Johns Hopkins University Press, and I thank them for their support and inspiration throughout the development and production of this text. Finally, I continue to learn and be energized my family, friends, students, and colleagues and thank them for helping to shape this volume.

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INTRODUCTION

A Whole New Ball Game for College Athletes? John R. Thelin

A glance at the calendar suggests that the college football season starts with games in late August then continues with the bowl games throughout December and finally ends in January. Well, perhaps so. But football quickly resumes. Or, put another way, for American colleges and universities the football season never really ends. Each year in mid- February local television station crews and newspaper reporters gather at high school gymnasia for a press conference hosted by the principal and head football coach, joined by parents and classmates. It’s National Signing Day. Stalwart young players who have finished their senior year of scholastic football are hosted and toasted as they announce their plans for going to college—and, most important, commitments for playing college football. It forms a seamless web, as four years later a handful of these same energetic, optimistic players will have completed their college varsity competition for the National Collegiate Athletic Association (NCAA) and then are ready to be applauded and introduced when they are drafted by professional teams in the National Football League (NFL).

But what happens between the end points of those happy media events marked by the NCAA and NFL Signing Day press conferences? This is a rich, complex American drama—perhaps at times an American tragedy (Branch, 2011). For starters, the pyramid of success in high-profile American sports, such as football and men’s basketball, is defined by a steep slope. It’s exhilarating for those who persist and prevail—but often a trail of tears down the mountain for those who fall short (Nocera & Strauss, 2016). The pressing current issues about college athletes and their rights and welfare have acquired a visibility and urgency that is undeniable. Equally striking is how the present and past are fused. The characters and issues have been intertwined for a long time. It’s a story that has been evolving for at least 150 years.

There’s a complication in this snapshot. First, although football and men’s basketball are dominant, we must keep in mind that some

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universities offer as many as 39 varsity sports. Second, does serious commitment to extending the rights and well-being of college athletes include NCAA Divisions II and III along with, for example, NCAA Division I? Furthermore, any analysis of college athletes should and must include women as well as men. It’s hard for a single picture to cover the panorama and make good generalizations about athletes across all college sports.

Although the college athlete has been a fixture in American higher education and in our literature and popular culture for more than a century, a focus on the rights and well-being of collegiate athletes is relatively new. This ignorance or neglect, however, is changing. The momentum shifts toward scrutiny and advocacy from a variety of places. This anthology is timely, because each chapter is written by an established researcher and influential leader representing a distinctive discipline. This collective effort results in a comprehensive assembly of participants-observers in the fledgling topic of college athlete rights that is not going to go away.

What fair and reasonable person could be opposed to providing and then protecting the rights and well-being of intercollegiate athletes? Who agrees on how to operationalize and define these rights and well-beings? The answer to both questions is “no one”—and that is a problem that a flourishing body of new research, policy proposals, campus incidents, and court cases is gradually and painfully trying to achieve. It is going to be slow and contentious, in some ways because of partisan and even selfish interests who may lose revenues and power if college athletes eventually were to achieve legitimate rights. But also, building a structure and culture of athlete rights will be tough sledding, in part, because the concepts and their fulfillment of a college student are fraught with contradictions.

To bring a measure of coherence to analyzing college athlete rights and well-being, there are some conspicuous themes and landmark episodes that have surfaced as part of the history of American colleges and universities since about 1850. Foremost is that of the college athlete as both a campus hero and as an icon in popular culture and national media. Sports pages, Hollywood movies, popular songs, sheet music, fashion advertisements, and college brochures have long heralded the champion athlete as an “All American.” Future presidents of the United States, including Dwight D. Eisenhower, Richard Nixon, Gerald Ford, and Ronald Reagan played college football and invoked its lessons of leadership, character building, and teamwork. President George H. W. Bush was the captain and first baseman for the Yale University baseball team, which played in the first College World Series in 1947. Ronald Reagan doubled the deal in the

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acting role that vaulted him to Hollywood stardom in the early 1940s as Notre Dame’s legendary halfback, George Gipp. His melodramatic hospital deathbed scene in which he implored his famous coach, Knute Rockne, to tell Notre Dame players to “Win one for the Gipper” endures as a staple of American lessons and lore. Politics and college sports remain closely joined, as each year the president of the United States invites the national championship college football squad for a reception and press conference salute at the White House.

The flip side of this adulation is the equally strong image over time of a college figure that is conspicuous as the butt of jokes or as an object of either shame or pity. This is, of course, the omnipresent “dumb jock.” Starting in the 1890s, the caricature draws from a succession of minority groups, many of whom were recent immigrants, whose talent on the athletic field was accompanied by problems in the classroom. James Thurber, one of the most successful and famous writers ever in American literature, wrote in his memoir about undergraduate days at Ohio State University in 1919 and included a profile of “Bolenciecwcz”—the star lineman on the football team who struggles through an introductory economics class as classmates and instructor keep rooting for him, giving him easier and easier questions to try to answer so that he can be academically eligible for the big game on Saturday (Thurber, 1933).

Closely related to the dumb jock figure is that of the college star athlete who receives perks and privileges. Hugh McIlhenny, an All American halfback at the University of Washington who went on to be an all-pro halfback for the San Francisco 49ers in the early 1950s, gained fame and infamy for his observation that he had to take a cut in pay when he left college football to play in the NFL (Thelin, 1994). The irony was that his quip was not a wisecrack. It was less a reference to his lavish living as a college athlete and more a puzzled surprise at how low the salaries were for professional athletes in the 1950s and 1960s.

Official concerns between 1900 and 1970 were less about student athlete rights than they were about student athletes doing things right. And usually this meant doing what they were told to do by coaches and athletics directors. This ranged from the young NCAA imposing sanctions on illegal, dangerous play on the field, which had resulted in a barrage of deaths and serious injuries; and in 1948 the NCAA’s passing the so-called Sanity Code attempted to mandate regulations and restrictions on compensation for athletes, ranging from summer jobs to the award of scholarship monies.

The common denominator in all these images and episodes, whether

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celebratory or critical, stemmed from the concept of the amateur athlete. Amateurism was at the heart of the ideal of the college athlete—and always with varying gaps between the ideal and reality. This schism was compounded by the fact that, although everyone invoked and ostensibly believed in amateurism as the defining code of college sports, the meaning of the term “amateur” varied from one governing body to another—and even within a college conference or the NCAA or the American Olympics Committee, the term had multiple and fluctuating meanings. At the very least, what constituted an “amateur” in one era could change formally and legally in another. It also varied from sport to sport. This was the harsh lesson learned by Jim Thorpe, considered the great American athlete of the first half of the twentieth century, who was an All American in football for the Carlisle School and a multiple gold medalist in track and field in the Olympics. All this was for naught, as he naïvely and honestly played summer league baseball and got subsistence pay, all using his own name. Meanwhile, numerous other college players also played summer ball for pay—but escaped scrutiny because they were sufficiently clever and devious to play under aliases.

Monitoring the academic good standing and the financial amateur status of college athletes became a regulatory battleground between colleges and conferences—and in the early 1950s pitted colleges against the US Congress (Thelin, 1994). The stalemate was that intercollegiate sports, by definition, cross campus boundaries—but many college presidents, board and athletic directors resented and resisted the right of some larger collective body setting standards that infringed on a university’s right of autonomy and self-determination. It was one thing to agree that every college football field would be standardized as a playing field 100 yards long appended by end zones. It was quite another for the NCAA to dictate and enforce how much a college could award to a student in the form of an athletic scholarship—or what grade point average allowed a student to be eligible to play in a varsity game.

This historical survey provides good, necessary background. But by now it should also lead readers to ask, “What is wrong with this picture?” The answer is that, although the college athlete is the center of attention, one searches in vain for any allowance for athletes to gain a voice or a seat at the table in shaping their own educational experience and professional futures. Although active on the field, for years they had been blocked out, essentially passive in policy and programs. An important sign of change started to surface in the late 1960s and continued in the 1970s with the initiative and publicity surrounding a group that had been used and often

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abused: namely, African American athletes. It came to be known as the Revolt of the Black Athletes (Edwards, 1969). In some ways, even though their message was strong, it was too little, too late. For example, Jesse Owens was long hailed as an American hero for his four gold medals in the Berlin Olympics—and as the nemesis of Adolf Hitler’s Aryan racial superiority claims. But look again—in those same years Jesse Owens as an undergraduate student and track star at Ohio State University was prohibited from eating in campus dining halls or living in campus dormitories.

If the revolt of the Black athletes represented heightened consciousness for some student athletes starting in the late 1960s, then the next landmark event was Title IX, the federal legislation passed in 1972. It brought rights and protections to women as students and as athletes. Slowly this led to inclusion in the NCAA and, sadly, triggered the demise of the long- established Association for Intercollegiate Athletics for Women. In this same era one finds athlete accounts of their campus experience as being treated by some legendary coaches as expendable “meat on the hoof” (Shaw, 1972). These accounts gradually opened the door to some reforms and demands for changes which now were undeniable and could not be revoked. The cumulative result of these reforms and research is that we inherit the question, in connecting the past and present, whether such bodies as the NCAA have gone from allegedly protecting to later exploiting college athletes (Leitch, 2016; Nocera & Strauss, 2016).

A recurrent, stock feature article in popular magazines and newspapers deals with the saga of the highly recruited high school athlete who is wooed by college coaches, boosters, donors, and alumni. Then, after signing with a particular college, the star athlete faces problems involving some combination of low grades, which threaten academic eligibility, allegations of criminal charges involving misconduct, and/or use of prohibited monies. Typically, the story has a bad and sad ending. Often the athlete is required to drop out of college without a degree and an uncertain professional future. Meanwhile, even when the college officials— including coaches, the athletic director, the president, and the board—may face some reprimand or self-imposed penalty, the university and its sports program come back to play another day (Michener, 1976).

A dilemma for an earnest reader is how to best make good sense out of this ritualized story of woe. At some point the succession of these stories over time lessens their dramatic impact, because they tend to saturate and then desensitize even an attentive, concerned audience. What is one to do? Who is to blame? What are the solutions? A complication is that, in one

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case covered prominently in 2016, an athlete recruited to play men’s basketball at Southern Methodist University was used and abused (Powell, 2016). But the detailed story left open the question: Does he bear any responsibility? Is he completely victimized? His mother cooperated and collaborated on deliberations for changing high schools and working with various youth league basketball representatives, as did his high school coach, his school principal, and a long roster of university officials. The university admissions committee gave him special consideration and decided to offer admission based on a “holistic” appraisal of his activities and record. So, sorting out heroes and villains and victims gets bogged down in nuances and complexities. What responsibility does the university president, for example, bear? Interesting to note is that in this case, the president was a longtime member of the Knight Commission on Intercollegiate Athletics.

A major source of tension, even among advocates for college athletes, will be the distinction between rights and well-being versus compensation. Providing support services for academics, health insurance, medical treatment, career planning, nutrition, time management, and other dimensions of a balanced life might be accomplished while still being silent on the matter of salary and compensation beyond the customary scholarships and grants-in-aid. A further complication is that some athletes and their representatives essentially want things “both ways”—to be treated as “normal students” but perhaps at the same time wanting special treatment and perks as valuable “athletes.” Such logical binds are going to usher in long discussions.

The answers and reforms will become less obvious when one incorporates the findings of such systematic studies as William G. Bowen’s co-authored books, The Game of Life: College Sports and Educational Values (Shulman & Bowen, 2001) and Reclaiming the Game: College Sports and Educational Values (Bowen & Levin, 2003). One provocative finding in these studies is that college athletes are not the only ones who devote a great deal of time to extracurricular activities. Editors of the campus newspaper and performing artists such as musicians, dancers, and actors also balance a demanding schedule of excellence in their activities as well as their studies—often with far less in terms of institutional support services and systems than do athletes. Furthermore, systematic studies of college students indicate widespread stress of having to work long hours at low-paying jobs while also going into deep debt with student loans in order to pay bills to stay enrolled. Is the plight of college athletes any more difficult than these? So, if the concern is with athletes as

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part of the category of rights as students, these larger spheres of campus life warrant consideration. Otherwise, the risk is a partial gain and a Pyrrhic victory for genuine reform of college life and activities.

In 1991 the Knight Foundation’s Commission on Intercollegiate Athletics released its report, Keeping Faith with the Student-Athletes, which set forth a new model for intercollegiate athletics. Ironically many of the excesses it criticized have become accepted practices. For example, even conferences and the NCAA note without outrage that typically a college athlete devotes about 40 hours per week to her or his varsity sport in some form or another. A critical response to these time demands is that college athletes now are mentioned in terms of such descriptors as “indentured” (Nocera & Strauss, 2016), “plantations” (Branch, 2011), “exploitation” (Leitch, 2016), and “unpaid professionals” (Zimbalist, 2001). Whether the promises and pledges of the Knight Commission’s 1991 “new model” will be fulfilled remain unclear in light of these more recent characterizations of a new generation of widespread practices, which are not in the best interests of college athletes. But it is at the very least a work in progress. Fortunately for the health and future of American higher education and its athletes, some good answers and explorations of these questions are forthcoming in this timely, provocative anthology.

References

Bowen, W. G., and Levin, S. A. (2003). Reclaiming the game: College sports and educational values. Princeton, NJ: Princeton University Press.

Branch, T. (2011, October). The shame of college sports. The Atlantic. Edwards, H. (1969). The revolt of the Black athlete. New York: Free Press. Leitch, W. (2016, February 23). March to madness: How the N.C.A.A. went

from protecting student-athletes to exploiting them. New York Times Book Review.

Michener, J. (1976). Sports in America. New York: Random House. Nocera, J., & Strauss, B. (2016). Indentured: The inside story of the rebellion

against the NCAA. New York: Portfolio/Penguin. Powell, M. (2016, March 6). The tragedy of a hall of fame coach and his star

recruit. New York Times. Shaw, G. (1972). Meat on the hoof. New York: St. Martin’s Press. Shulman, J. L., & Bowen, W. G. (2001). The game of life: College sports and

educational values. Princeton, NJ: Princeton University Press. Thelin, J. R. (1994). Games colleges play: Scandal and reform in

intercollegiate athletics. Baltimore, MD: Johns Hopkins University Press.

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Thurber, J. (1933). My life and hard times. New York: Harper and Brothers. Zimbalist, A. (2001). Unpaid professionals: Commercialism and conflict in

big-time college sports. Princeton, NJ: Princeton University Press.

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1 PART ONE

Historical Perspective

There is a long history of athlete protests on college campuses and attempts to establish player advocacy groups in order to challenge existing athletics structures and practices that too often do not favor college athletes. In chapter 1, Valyncia Raphael and J. P. Abercrumbie offer an historical account of the college athlete voice, as well as describe past and present student-led movements and advocacy groups. As such, part one sets the stage for a broader understanding of college athletes’ rights and well-being, providing an important context for the sections that follow.

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CHAPTER

1 The Muzzle and the Megaphone Enlisting the College Athlete Voice for Meaningful Reform

Valyncia C. Raphael and J. P. Abercrumbie

March 2014 saw Peter Sung Ohr, regional director of the National Labor Relations Board (NLRB) (Region 13), deem a class of Northwestern football players eligible to unionize. Ohr reasoned that college players were sufficiently compensated and controlled by their schools to enjoy the same statutory labor law protections afforded to employees. Distinguishing college athletes from graduate students, Ohr opined that Northwestern athletes have a primarily economic relationship with their institutions, while graduate students enjoy a primarily academic relationship, based on the time athletes spend in their athletic pursuits relative to their studies (NLRB, 2014).

KEY TERMS

College sports reform

College athlete voice

Athlete advocacy

Social movements

Radical flank effects

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Following Ohr’s 2014 decision, Northwestern football scholarship athletes were allowed to vote on whether to unionize (Strauss, 2014). The results from the vote, however, were sealed and impounded, pending the outcome of Northwestern’s appeal of Ohr’s decision to the NLRB (Strauss, 2014). In August 2015, the NLRB reviewed Northwestern’s appeal and explicitly declined to answer whether the Northwestern football players who received scholarships were employees (NLRB, 2015). Instead, the board declined to exercise its jurisdiction, halting the Northwestern players,’ and in effect other college athletes,’ ability to form a union—at least for the time being (NLRB, 2015).

Although the ability of college players to form a union is on hold for now, this case highlights the fact that issues concerning college athletes, such as athletic time commitment and health and safety concerns—for example, concussions and long-term care for lingering injuries—can no longer be dismissed as rare or isolated incidents (USHCEW, 2014a). Accordingly, the decision acknowledges a need for a mechanism for college athlete self-advocacy.

Some avenues for this advocacy already exist, both internal and external to the National Collegiate Athletic Association (NCAA). The National College Players Association (NCPA), the College Athletes Players Association (CAPA), and the Student-Athlete Human Rights Project (SAHRP) all exist externally to advocate for college athletes’ rights and protection against abuse and economic exploitation. Within the NCAA, the Student-Athlete Advisory Committee (SAAC) has become an advocacy staple at the national, conference, and campus levels. This chapter discusses the means athletes have used to organize reform in collegiate athletics. Using radical flank effect analysis, we surmise that through coordination, internal and external college athlete advocacy organizations can create positive radical flank effects that may yield meaningful reform in intercollegiate athletics. At the close of this chapter, recommendations best suited to incite and implement such reform are provided.

COLLEGE ATHLETE SELF-ADVOCACY

Before the NCPA, CAPA, the SAHRP, and the SAAC worked to protect athletes from physical, mental, emotional, and economic harm, college athletes organized themselves to protest mistreatment. During the Civil Rights era, Black students across the country revolted against egregious

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racism and residual second-class treatment of the school’s Black community (Edwards, 1969). Recent waves of state budget cuts have inspired athletes to speak out as well. Here, two revolts are highlighted.

During the late 1960s at San José State University (SJS), current and former college athletes organized the United Black Students for Action (UBSA) alongside their non-athlete peers to secure racial equality on campus. The organization demanded equal access to campus housing and student organizations as well as fair treatment for prospective and current athletes from the athletics department. Initiating the revolt, UBSA approached the campus administration; failing to spark change internally, they made a public appeal, holding an equality rally.

After the rally, UBSA recognized the power of athletics and threatened to prevent SJS’s opening football game against the University of Texas, El Paso, if the administration refused to meet demands. True to their word, the football game did not occur, costing the university community $100,000 (Edwards, 1969). Accounting for inflation, the costs would be equivalent to over $670,000 today, about three times the amount an average Pac-12 school spent on each scholarship football player in 2013 (Knight Commission, 2015; US Department of Labor, 2015). With time and persistence, many of the Black college athletes’ demands were met, and the revolt was a success. Similar revolts occurred at 37 major college campuses during the 1967–68 school year (Edwards, 1969).

More recently, athletes motivated by safety and well-being concerns have resurrected the activist spirit of the 1960s. In October 2013, football college athletes at Grambling State University boycotted practice and a game to expose unanswered complaints about their unsafe practice facilities, unreasonable travel and summer camp accommodations, and their coach’s suspect use of alumni funds (Zirin, 2013a). The team’s refusal to play against Jackson State University (JSU) cost Grambling as much as $300,000 (Brandt, 2013; Demby, 2013; Dumlao, 2014; Ware, 2013; Zirin, 2013a). This figure includes neither the damages JSU sought nor conference fines, a sum valued at over $600,000 (Watkins, 2014). The final settlement resulted in an undisclosed amount to be paid over three years (Associated Press, 2014).

Another recent example of this occurred in November 2015 at the University of Missouri (Mizzou). When 30 Black football athletes refused to play until the university president and the chancellor resigned (Tracy & Southall, 2015). This revolt was in solidarity with a Mizzou graduate student’s hunger strike and other student protests of the university president’s and the chancellor’s neglect of the campus’s increasingly

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hostile racial climate (Tracy & Southall, 2015). Via several social media posts, the athletes’ stance was expressly supported by their white teammates and head coach Gary Pinkel (Fernandez, 2015; Tracy & Southall, 2015). With national media attention on the protests and estimated financial losses of over $1 million for an unplayed game, both the president and the chancellor resigned within a week of the threatened strike (ESPN.com News Services, 2015; Tracy & Southall, 2015). Moreover, in December 2015, the Missouri State Legislature proposed a bill that would allow a state school to revoke a college scholarship should an athlete protest (ESPN.com News Services, 2015; Visser, 2015). The resignations and the proposed legislation illustrate the profound impact college athletes can have when they successfully leverage their social and political capital through activism.

Beyond San José State, Grambling State University, and Mizzou, other protests against mistreatment have been executed at institutions like the University of Washington, Howard University, and the University of Notre Dame (Zirin, 2013b).While such protests have not been widely publicized by mass media, they provide examples of successful efforts of athletes’ voices sparking reform. Moreover, these revolts were successful because athletes and students worked together to push for reform, seeking to alter the status quo. The next section uses social movement theoretical concepts to discuss current organizational reform efforts with an emphasis on the locus and influence of their voices.

RADICAL FLANK EFFECTS AND THE COLLEGE ATHLETE’S VOICE

History shows campus-level revolts are often successful, but widespread reform and culture change within the NCAA will require a marked social movement. Social movements occur when conscious groups make “socially shared demands for change” (Oberschall, 1973, p. 15) and often occur through radical flank effects. Radical flank effects are interactive processes involving groups (radical factions) that offer an understanding of the problem they seek to solve, often with drastic change as a solution (Den Hond & De Bakker, 2007; Haines, 1984; Snow, Della Porta, Klandermans, & McAdam, 2013).

With such diverse perspectives, different groups may form, with actions and agendas altering the success of one another. These results can be referred to as positive or negative flank effects. A positive flank effect

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occurs when the presence of one group bolsters the leveraging capacity of another; alternatively, negative flank effects result when one group undermines the position, goals, activities, or legitimacy of another (Haines, 1984). Radical flank effects provide an understanding of how the college athlete voice may challenge the status quo within and external to the NCAA. The following sections refer to the external voices as megaphones, a symbol of more radical voices amplifying the grievances of vulnerable or exploited parties; in contrast, the muzzle represents the internal college athlete voice: the Student-Athlete Advisory Committee.

THE MEGAPHONES

The National College Player Association Recent congressional stances criticize athletes’ self-advocacy outside of the NCAA, stating it “will do more harm than good” but challenges “all institutions to step up and . . . help ensure the real challenges [college athletes] face are resolved” (USHCEW, 2014b, para. 2). Formed by former University of California, Los Angeles (UCLA) football player Ramogi Huma, the NCPA evolved from the College Athlete Coalition (CAC)—a UCLA student group independent from athletic administration that allowed college athletes to voice their opinions, address their concerns, and influence NCAA rules and regulations (Aguirre, 2004). Since 2001 the NCPA, a California-based advocacy organization, has worked to be an extra voice for athletes.

Through state and federal lobbying, among other advocacy campaigning, the NCPA has worked to resolve issues faced by college athletes, particularly those competing in revenue-generating programs. These issues include: lifting athlete transfer and employment restrictions, protecting athlete eligibility interests, and raising scholarship award amounts (NCPA, 2015). Over the years, the NCPA has been pivotal in bringing forth such reforms as: securing a $10 million fund to assist former athletes to either complete their undergraduate degree or attend a graduate or professional program; sponsoring the Student-Athlete Bill of Rights in California;1 and increasing amounts athletes can receive in scholarship awards, part-time jobs, and other health and safety protections (NCPA, 2015).

With a successful track record of advocacy, the NCPA may provide a radical flank mechanism to spark widespread reform. While it remains to

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be seen whether college athletes can be defined as employees under the National Labor Relations Act (NLRA), the NCPA could set a revolution- focused strategic plan and communicate the plan’s objectives with other college athlete advocacy groups (positive flank effects). Where revolutionary action reaches an impasse from outside the NCAA, conferences, and member institutions, other groups, such as the SAAC or SAHRP could work in tandem to influence reform. With this shared or coordinated agenda, the groups could work together to move NCAA, conference, and institutional-level policy forward with respect to matters related to college athlete well-being. In this way, the NCPA may be able to supplement advocacy efforts and influence the NCAA and its membership to reform the college athlete experience in conjunction with other advocacy groups.

College Athletes Players Association CAPA, a labor organization co-founded in January 2014 by former college football athletes Ramogi Huma and Kain Colter, and former college and professional basketball player Luke Bonner (CAPA, 2015a), exists to protect the various interests of college players. Aiming to allow players to collectively bargain for rights, CAPA filed the Northwestern petition2 with the NLRB and is supported by the United Steelworkers Union. Together, the partnership advocates for sports-related medical expenses for current and former players, concussion reform in game play and practice, academic and time-to-degree reforms, increased athletic scholarships, ability for college player endorsement deals, and an increase in due process rights for athletes facing NCAA infractions charges.

Similar to the NCPA, CAPA has the potential to be another catalyst for college sports reform. As it stands, “CAPA intends to represent FBS football players and Division I men’s basketball players” (CAPA, 2015b, para. 16), but the variety in state labor laws across the country may be an obstacle. This legal diversity may prevent CAPA from uniformly representing athletes across the country, as other national unions would. Additionally, without a partnership, the work of CAPA and the NCPA might produce negative flank effects, especially for revenue-sport college athletes and their interests, because of the overlapping leadership. While CAPA may be instrumental in reform, the organization’s future is uncertain, since the question remains as to whether college football scholarship athletes are employees under the NLRA.

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College Athlete Human Rights Project The College Athlete Human Rights Project (the Project) is a 501 (c)(4) organization formed to “end the exploitation of college athletes while promoting their development and overall well-being” (SAHRP, 2015, para. 1). The Project, partnering with philanthropists, activists, and social justice champions, “provides real time advocacy and activism for college athletes in cases where they are treated unjustly” (SAHRP, 2015, para. 2). To execute their advocacy when injustice is reported, volunteer members discuss the issues and decide whether to contact the institution at which the incident occurred. If the institution is contacted, the Project either meets with administrators or discusses the situation with administration as an athlete advocate.

Using this strategy, the Project has been helpful for current athletes and their parents seeking assistance when they feel as though they have nowhere else to turn. The Project is composed of an array of academics with desires to protect the interests of college athletes. The service is free to the affected athletes, but the Project accepts donations from those interested in college athlete advocacy. This advocacy ranges from drafting letters to athletic departments, communicating with the NCAA leadership, filing Office for Civil Rights complaints, and providing resources to college athletes and their parents when incidents of mistreatment arise. Considering incidents of alleged college athlete abuse, such as what occurred at Rutgers3 and Illinois,4 where public exposure led to improved college treatment, the Project aims to intervene, expose, and ameliorate injustices on college athletes’ behalf. In this way, the Project seeks to be an ombudsman for college athletes to neutralize the ability of athletic departments to exploit their athletes’ vulnerability, especially when their eligibility is at stake and/or when there are accusations of abuse.

Although the Project is not an organization led by college athletes, its purpose is to advocate for and intervene on behalf of college athletes. As an unofficial ombudsman, it has been included in this discussion, since it provides an important service that CAPA and the NCPA do not. In this position, the SAHRP is poised to be a radical faction, able to intervene on behalf of college athletes when individual institutions cannot be trusted to address student-athlete concerns. This intervention can undermine an institution’s ability to protect athletes, placing pressure on conferences or the NCAA to address concerns of college athlete welfare.

The NCPA, CAPA, and the SAHRP each provide examples of organizations external to the NCAA that provide large-scale advocacy for

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college athletes’ well-being. Although they are external to the NCAA, their membership may include current students bound by NCAA rules. These external organizations provide distance from the NCAA’s grasp but offer attenuated help, as most current athletes are insulated from getting assistance from less egregious mistreatment while they compete. To address more benign or rule-related reform, internal advocacy is better suited. To understand internal advocacy, we turn to the sole form of sanctioned college athlete voice, the Student-Athlete Advisory Committee.

THE MUZZLE

Student-Athlete Advisory Committee Proposal 77 of the 1989 NCAA convention created the SAAC as a student governance body to allow a college athlete voice within the NCAA. The SAAC was tasked with addressing the educational, athletic, and other needs of all college athletes across all divisions. Many describe the SAAC’s evolution as increasingly effective, becoming a body to work beyond airing grievances but offering athlete advocacy (NCAA, 2014). Today, separate forums exist for each of the three divisions, composed of both male and female representatives from the sports sponsored by that division, who provide insight on matters concerning proposed and existing NCAA legislation, governance structure, programs, activities, and other subjects of interest to college athletes (NCAA, 2004).5

In 1995, member institutions adopted legislation mandating a SAAC at each institution. Although it was an NCAA mandate, bylaws do not specify whether the organization should function as a recognized student organization—with access to greater campus resources, provisions, and peer-group recognition—or if it should exist informally—solely under athletic administration. There are no suggested guidelines for how members are selected, but it is noted that the composition and overall function warrant special attention.6 The campus committee should serve as a voice among college athletes, coaches, and administrators addressing issues of college athlete welfare. Through campus SAACs, college athletes have the opportunity to improve the college athlete experience and promote educational growth through sports participation (NCAA, 2004).

As Van Rheenen and colleagues note (2011), college athletes are already lacking secure and protective mechanisms in this world of intercollegiate athletics, because it is built on a profit-based market. By

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giving the college athletes a “voice,” the NCAA claims to give some power and authority back to the college athletes whose lives are being affected by the decisions of NCAA officers. However, lack of specificity in the rules that govern SAACs alludes to the depth of concern for student voice. When altering the only (sanctioned) way college athletes voice their concerns, “these key stakeholders are seldom invited to offer their critical perspectives about . . . important decisions” that affect the student-athlete experience (Van Rheenen, et al., 2011, p. 162).

At the 2014 NCAA convention, Melissa Minton, a then Division I SAAC member, shared her sentiments on the association’s policies muzzling college athlete voice on important issues. Citing the NCAA’s necessary approval for any “position of advocacy” SAAC representatives may take, Minton’s points are hard to ignore. She states, “They want to filter any and everything we say/do . . . They want us to have a voice, but they put a muzzle on us” (Wolverton, 2014, para. 5). Despite the constraints placed upon the college athlete leaders who represent the hundreds of thousands competing nationwide, Minton remains hopeful that change will come for the future, noting, “We [college athletes] have the potential to impact things a lot . . . [and] we want our voice to be heard” (Wolverton, 2014, para. 13).

RECOMMENDATIONS

For athletes seeking self-advocacy and reform, we advance the following recommendations. First, whether from an internal or external organization, members need to communicate, enabling the formation of a broader, more cohesive plan of action. Similarly, students wishing to incite reform must establish an agenda so that there are clear objectives and timelines. The agenda will help each organization understand the issues, perspective, and progresses of the other(s). This communication and policy setting can take place at an annual meeting conference, via newsletter, or even through social media platforms.

In addition to communication, the external and internal organizations should collaborate to advance their strategies. Because some external groups have overlapping leadership and goals, joining forces will help concentrate efforts to further their cause. Additionally, when current and former athletes band together, presenting multiple perspectives on the issues, cross-collaboration enables members to access additional resources and knowledge and create positive radical flank effects. Without

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communication and collaboration, the reform movements will be perceived as adversarial (negative flank effects) rather than complementary and may cancel each other out; for meaningful intercollegiate athletics reform there is greater strength in numbers and coordination.

We also note that protecting college athlete well-being requires more campus administrators to view college athletes beyond objects in a corporate enterprise. We recommend that athletics administrators employ principles of self-authorship and student development to ensure that college athlete voices and perspectives are heard and their developmental needs and welfare met. This strategy enables athletes to succeed during and beyond collegiate sport participation.

Finally, we also advocate for an examination of the legislation, implementation, and relevance of the bylaws mandating the organization and integration of college athlete voice in athletics administration. Administrators and students alike should critically understand the state of NCAA legislation and how it impacts athletes, including more of the student voice in decisions that affect their collegiate experience. Seeing college athletes as consultants in their experience could yield unprecedented success (Cook-Sather, 2011) on and off the field, and such support and understanding ensures that college athlete welfare is safeguarded—the NCAA mission.

CONCLUSION

College athlete–led reform is possible from efforts external to or within the NCAA structure. After considering the attributes of each, however, we ponder which is best suited for athletes. While the question seems binary, the answer is complicated, warranting a more complex response. For this we propose that both the external and sanctioned voices are necessary to advance college athlete–led reform.

The SAAC, the NCAA-sanctioned voice, is better suited if it works in tandem with the external voice. The SAAC can offer NCAA leadership a chance to work collaboratively with students, which may yield seemingly less radical reform than revolutionary demands pushed by external radical factions. If coordinated with the external faction groups, the SAAC can offer a moderate approach while the megaphones amplify the grievances of vulnerable or exploited parties if the internal efforts are not legitimately met with concern. Standing united on similar issues, while approaching

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them from all sides, could make reforms more likely to be adopted by the NCAA.

Increasingly, college athletes have accessible platforms to organize and confront exploitation and mistreatment experienced during their NCAA sport participation. As Michael Aguirre (2004) notes, “[College athletes] can no longer afford to be manipulated, ignored or discounted” (p. 1469). Self-advocacy in social movements has proven to be worthwhile, especially when employing strategies geared toward successful organization and execution of change like those discussed in this chapter. Moving forward, college athletes should leverage the positive flank effects of both internal and external organizations that champion their story and voice. If the internal and external institutions communicate and collaborate for their interest where they align, former, current, and prospective college athletes, and their advocates, can influence revolutionary change in how the NCAA engages with and treats college athletes.

QUESTIONS FOR DISCUSSION

1. What are some potential negative flank effects of collaboration and communication between internal and external reform organizations?

2. How do these reform efforts conflict with the position of promise and opportunity, or the myth of meritocracy, afforded by collegiate sports participation?

3. What other strategies or tactics could be effective in promoting college sports reform across all NCAA-sponsored sports, regardless of profit potential? How would you go about implementing them?

Notes

1. A mandate that athletic programs provide scholarships for permanently injured athletes, sports-related medical coverage, scholarships for degree completion, and similar protections.

2. If unsealing the Northwestern votes reveals a vote in favor of unionization, then CAPA will become the organization that represents the athletes.

3. In 2013, men’s basketball coach Mike Rice was exposed in a video physically and verbally abusing his players.

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4. In 2015, current and former women’s basketball players and former football players alleged abuse and mistreatment against their coaches at Illinois, citing verbal and emotional abuse, racist remarks, ignoring injuries, and threats to revoke scholarships.

5. This includes the college athlete’s experience, well-being, and image. 6. National representatives are chosen from a pool of conference nominees

favored if their sport/race/gender is underrepresented within the current committee. Student body size, access to media markets and public scrutiny, and financial equity concerns make the sociocultural factors a bigger concern for Division I than the other Divisions (Branch, 2011; Byers & Hammer, 1995; Smith, 2011).

References

Aguirre, M. (2004). From locker rooms to legislatures: College athletes turn outside the game to improve the score. Arizona State Law Journal, 36(4), 1141–1470.

Associated Press. (2014, March 23). JSU seeks legal action against Grambling, SWAC. Washington Times. Retrieved from http://www.washingtontimes.com

Branch, T. (2011). The cartel: Inside the rise and imminent fall of the NCAA. San Francisco, CA: Byliner.

Brandt, D. (2013, October 21). Grambling players end boycott, have no regrets. Armstrong Mywire. Retrieved from http://www.armstrongmywire.com/

Byers, W., & Hammer, C. (1995). Unsportsmanlike conduct: Exploiting college athletes. Ann Arbor: University of Michigan Press.

CAPA. (2015a). More information. Retrieved from http://www.collegeathletespa.org

CAPA. (2015b). Frequently asked questions. Retrieved from http://www.collegeathletespa.org

Cook-Sather, A. (2011). Teaching and learning together: College faculty and undergraduates co-create a professional development model. To Improve the Academy, 29, 219–232.

Demby, G. (2013, October 24). Football player boycott at Grambling highlights budget woes. NPR. Retrieved from http://www.npr.org

Den Hond, F., & De Bakker, F. G. (2007). Ideologically motivated activism: How activist groups influence corporate social change activities. Academy of Management Review, 32, 901–924.

Dumlao, R. (2014, November 14). SWAC tells Grambling State it’s time to pay Jackson State. USA Today. Retrieved from http://www.usatoday.com

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Edwards, H. (1969). The revolt of the Black athlete. New York: Free Press. ESPN.com News Services. (2015, December15). Missouri bill would revoke

scholarships if student-athletes strike. Entertainment and Sports Programing Network (ESPN).

Retrieved from http://espn.go.com/college- football/story/_/id/14369127/missouri-legislator-proposes-bill-revoke- student-athlete-scholarships-strike

Fernandez, E. (2015, November 8). Missouri football players won’t play until university president resigns. Huffington Post. Retrieved from http://www.huffingtonpost.com/entry/missouri-football-players-strike- calling-for-university-presidents-resignation_563f4630e4b0411d30715897

Haines, H. H. (1984). Black radicalization and the funding of civil rights: 1957–1970. Social Problems, 32, 31–43.

Knight Commission on Intercollegiate Athletics. (2015). Football bowl subdivision spending. Retrieved from http://spendingdatabase.knightcommission.org/fbs

NCAA. (2004). College athlete advisory committee: Forming one on your campus. Retrieved from http://www.clariongoldeneagles.com/documents/2012/9/12/SAAC02__2_.pdf

NCAA. (2013). 2013–2014 Division I Manual. Indianapolis, IN: NCAA. NCAA. (2014, February 4). Finding their voice: Athletes are effective

advocates, but success took time. Retrieved from www.NCAA.org NCPA. (2015). NCPA Victories. Retrieved from

http://www.ncpanow.org/about/ncpa-wins-victories-for-college-athletes NLRB. (2014, March 26). Northwestern University, 2014 NLRB LEXIS 221,

198 L.R.R.M. 1837, 2014–15 NLRB Dec. (CCH) P15, 781, 2014 WL 1246914.

NLRB. (2015, August 17). Northwestern University, 2015 NLRB LEXIS 613; 204 L.R.R.M. 1001; 2014–15 NLRB Dec. (CCH) P15, 999; 362 NLRB No. 167. LexisNexis Academic. Web.

Oberschall, A. (1973). Social conflict and social movements. Englewood Cliffs, NJ: Prentice-Hall.

SAHRP. (2015). About. Retrieved from http://studentathleteshumanrights.com/about-us/

Smith, R. A. (2011). Pay for play: A history of big-time college athletic reform. Urbana: University of Illinois Press.

Snow, D. A., Della Porta, D., Klandermans, B., & McAdam, D. (2013). The Wiley-Blackwell encyclopedia of social and political movements. Malden, MA: Wiley-Blackwell.

Strauss, B. (2014, April 25). Waiting game follows union vote by

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Northwestern players. New York Times. Retrieved from http://www.nytimes.com/2014/04/26/sports/northwestern-football-players- cast-votes-on-union.html?_r=0

Tracy, M., & Southall, A. (2015, November 8). Black football players lend heft to protests at Missouri. New York Times. Retrieved from http://www.nytimes.com/2015/11/09/us/missouri-football-players-boycott- in-protest-of-university-president.html?_r=0

US Department of Labor. (2015, June 14). Consumer Price Index Inflation Calculator. Bureau of Labor Statistics. Retrieved from http://www.bls.gov/cpi/cpifact8.htm

USHCEW. (2014a). Big labor on college campuses: Examining the consequences of unionizing college athletes. Hearing (May 8, 2014). Video available at https://www.youtube.com/watch?v=3AbSGheR7Qc

USHCEW. (2014b). Committee examines troubling consequences of unionizing student athletes. Press Release. Retrieved from http://edworkforce.house.gov/news/documentsingle.aspx? DocumentID=379328

Van Rheenen, D., Minjares, V., McNeil, N., & Atwood, J. R. (2011). The elimination of varsity sports at a Division I institution: A college athlete perspective. Journal for the Study of Sports and Athletes in Education, 5(3), 161–180.

Visser, N. (2015, December 15). Missouri lawmaker wants to revoke scholarships if athletes protest. Huffington Post. Retrieved from http://www.huffingtonpost.com/entry/missouri-scholarships-athletes- protest_566f6c0ee4b0fccee16fa1a3

Ware, D. (2013, October 20). Grambling football: The aftermath: Players’ boycott teaches a valuable Lesson. JET. Retrieved from http://www.jetmag.com/news/hbcu-game-time/grambling-football- aftermath/

Wolverton, B. (2014, January 16). They want us to have a voice, but they put a muzzle on us. Chronicle of Higher Education. Retrieved from http://chronicle.com

Zirin, D. (2013a, October 20). Why they refused to play: Read the grievance letter of the Grambling State Tigers football team. The Nation. Retrieved from http://www.thenation.com

Zirin, D. (2013b, October 21). ESPN is wrong: Grambling State isn’t the first college team to fight back. The Nation. Retrieved from http://www.thenation.com

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2 PART TWO

Formal NCAA and Member Institution Policies and Principles

The established policies and principles of the NCAA and its member institutions remain at the heart of ardent debates about athletes’ rights and well-being, and this is the focus of part two. First, in chapter 2, Ellen J. Staurowsky examines the history of the National Letter of Intent and argues it is symbolic of the need for a college athlete players association. In chapter 3, Robert Scott Lemons addresses the NCAA amateur rule, arguing that the NCAA functions as the head of a cartel of colleges engaged in a sports- entertainment business and that amateurism rules protect the integrity of this cartel. Next, in chapter 4, Jennifer Lee Hoffman examines Title IX’s gender-separate allowance, with special attention to underlying gendered and racialized discourses in the educational and commercial interests of college athletics reforms. In chapter 5, Whitney Griffin examines the evidence related to concussion definitions, assessment, management, and return to physical and cognitive activity. Chapter 6, by Gerald Gurney, provides a foundation for understanding the NCAA transfer rules, particularly for college athletes who have attended one four-year institution and wish to transfer to another. Chapter 7, by Steven J. Silver, covers due process in intercollegiate athletics. And in chapter 8, the final chapter in part two, Neal H. Hutchens and Kaitlin A. Quigley examine recent court rulings and the broader legal framework that governs collective bargaining at both public and private institutions.

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CHAPTER

2 The National Letter of Intent A Symbol of the Need for an Independent College Athlete Players Association

Ellen J. Staurowsky

Kafkaesque: having a nightmarishly complex, bizarre, or illogical quality (Merriam-Webster.com)

The first Wednesday in February marks a milestone in the recruitment of top high school football prospects. Known as National Signing Day (NSD), the widely covered event represents the opening of a window of time when a high school athlete can sign a binding agreement—a National Letter of Intent (NLI)—with a college or university that commits the athlete to that institution for at least one year and ensures a full athletic scholarship offer. While an athlete may take up to seven days to sign the NLI once issued, should an athlete delay beyond that seven-day period, he or she risks losing scholarship opportunities altogether as coaches move on to fill their classes and take athletes who are willing to sign. Thus, NSD usually follows a certain kind of script. Televised press conferences or signing shows feature athletes revealing news of their decisions, formalized with the signing of the NLI (Northeast Ohio Media Group, 2015).

KEY TERMS

National letter of intent

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National Signing Day

Commit

Contract of adhesion

Kafkaesque

In February of 2015, four-star high school football recruit Roquan Smith interrupted that usual script when he verbally announced that he was going to the University of California, Los Angeles (UCLA) to play but declined to sign the NLI on Signing Day. While other athletes were signing with UCLA, Smith waited as word circulated that the coach responsible for sparking his interest, defensive coordinator Jeff Ulbrich, was contemplating a career move to the National Football League. Four days after Signing Day, Ulbrich’s acceptance of a job offer from the Atlanta Falcons was confirmed. With Ulbrich’s departure, Smith reopened his recruitment. Had Smith signed the NLI on Signing Day, he would have been bound by the provisions in the letter, which expressly state that the agreement “remains binding if the coach who recruited you leaves the institution with which you signed” (National Letter of Intent, 2015). His future would have been jeopardized, because he had no way of controlling who the new coach might be, what kind of defensive schemes that coach might run, and whether Smith would be seen as playing a key role under a new coach. And at a fundamental level, Smith’s actions also point to the uncertain understandings recruits have about the agreements they are signing. Even with the letter’s specified emphasis on the agreement being between the institution and the player, the relationship the player had was not with the institution but with the coach who had been tasked with getting the athlete to sign on the dotted line.

While Smith’s refusal to sign the NLI, given what he was learning about the situation at UCLA, was novel, he was not alone. Detroit running back Mike Weber learned the day after he signed the NLI that the coach who recruited him to go to Ohio State University announced his departure for the professional ranks. Weber tweeted: “I’m hurt . . . I ain’t gonna lie” (Helfand, 2015, para. 11). Du’Vonta Lumpkin, a player who had reached an agreement with the University of Texas, found out two days after signing that the position coach who had recruited him to become a

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Longhorn left for a job in Florida. Lumpkin observed, “Guess I’ve been lied to in my face” (Helfand, 2015, para. 12).

These cases illustrate the conundrum that big-time college athletes confront about their futures. On the surface, the NLI is presented as a document that neatly establishes a quid pro quo between an athlete and institution. As explained on the NLI website, when an athlete signs the NLI, the athlete agrees to attend the college or university he or she signs with for one academic year. In return, the athlete receives one year of athletics financial aid. A violation of the agreement on the part of the athlete results in the loss of one season of competition. The athlete must serve a one-year residency at another institution before being permitted to compete again (“What is the National Letter of Intent?,” 2015).

The NLI does much more than simply codify that arrangement. In the vast majority of cases, it further binds athletes to National Collegiate Athletic Association (NCAA) rules at a time when they have had little to no training in what the rules mean and how the rules structure works. The absence of an independent players association or representational body that negotiates the terms and conditions under which they practice and work results in a situation where the interests of others—the NCAA, conference, institution, program, coaches—are protected while players’ interests may be undermined, overlooked, manipulated, or ignored entirely.

In the aftermath of Roquan Smith’s refusal to sign, writer Zach Helfand raised the question of whether the NLI was the worst contract in American sports. While that is a question worth contemplating, a more central question might be what or who do the athletes enter into an agreement with when they sign the NLI. This chapter examines the history of the National Letter of Intent, who or what is behind the NLI, perspectives on fairness of the NLI contract, and the implications of the NLI for rights of college athletes.

HISTORY OF THE NATIONAL LETTER OF INTENT

College recruits have been described as the lifeblood of college and university teams. From the mid-1850s to the present, competition for their talent has been keen (Stancil, 2014). Persuading a sought-after prospect to sign with one school over another has inspired generations of coaches to

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press the limits of the rules governing when the recruitment process commences and ends, how and when contact with recruits occurs, and what incentives a recruit is offered to play at a particular school. The pursuit of competitive advantage and pressures to win fuel creative strategies that exploit loopholes and unclear areas of the rules and provide fertile ground for suspicions regarding whether coaches or interested parties, such as boosters, are cheating, gaming the system, or just outhustling or outfoxing opponents (Staples, 2008).

In modern-day parlance, the tenuous nature of agreements struck between recruits, coaches, and programs is found in the language of the “commit” and “decommit.” A recruit who has signed with a particular program becomes known as a commit, meaning that the recruit has signaled that the recruiting process is over and has made a commitment. A change of heart or attitude, a genuine misunderstanding, or personal circumstance may cause a recruit to decommit, to reverse course or back out of the deal in the hope of committing elsewhere. While current rules make such a reversal possible but difficult, it is the volatility within the player market that led to the creation of a document players sign called the National Letter of Intent.

The concept of the letter of intent emerged after World War II as the effects of the dawning television age, improvements in transportation systems, and means of communication influenced the scale and scope of college sport. Once reliant on players who could be found within the confines of a regional sweep of prospects, the expanse of territory coaches were willing to traverse in search of athletic talent expanded until it assumed national and international dimensions.

As that expansion occurred, some in the college sports community believed that programs and coaches should negotiate understandings among themselves so as to limit the amount of money schools were spending on recruiting and to establish times when recruiting would end. As a result, some conferences adopted an interconference letter of intent while others did not (Cozzillio, 1989). The oversight of those letters was based within individual conference offices.

By 1962, college football was in the midst of another evolution, one in which coaches were increasingly taking to the highways and byways of America in automobiles and by plane to find and court the best football talent the nation had to offer. J. William Davis, a faculty member at Texas Tech University, a member of the Southwest Conference, a conference that abided by a letter of intent, was on a mission to reign in the bidding wars that coaches engaged in that led to players switching schools after their

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initial commitments. University of Oklahoma head football coach, Barry Switzer (not bound by an NLI program), was a favorite target for frustration because of his penchant for getting athletes to sign with Oklahoma after signing with other schools (Sherrington, 2015).

After failed attempts to get support within the NCAA, Davis was successful in moving the Collegiate Commissioners Association (CCA) to create the voluntary National Letter of Intent Program (NLIP) (Sherrington, 2015). At the time the NLIP started in 1964, seven conferences and eight independent institutions agreed to participate (“Seven plus eight,” 1964). By 2015, the program included 650 Division I and II participating institutions (“About the National Letter of Intent,” 2015). Essentially, nearly all NCAA Division I and II institutions that award athletically related financial aid participate in the program. Responsibility for its administration eventually shifted out of individual conferences to the Southeastern Conference, where the NLIP was housed between 1995 through 2006 (Heitner, 2009).

WHO REALLY RUNS THE NLIP AND WHO ARE THE PARTIES TO THE LETTER OF INTENT?

For a recruit or average citizen, trying to determine who or what is behind the NLI is confusing to figure out. While the NCAA handles the daily operations of the NLIP, a role it assumed in 2007, when the association moved its headquarters from Overland Park, Kansas, to Indianapolis, it is the CCA that provides oversight for the program and is described as “the originating entity” (“A-Sun’s Gumbart . . . ,” 2015). In the 2014–15 NLI, the only mention of the role these entities play and the relationship between the two is found in the statement “Administered by the NCAA on behalf of the Collegiate Commissioners Association (CCA)” (letter on file with author).

Although the NLIP resides within the NCAA Eligibility Center and is administered as an office under that unit, something that is not explained on the NLI website,1 the program itself is governed by the 34-member CCA through a group of four, five-member committees (the NLI Policy and Review Committee, DI Appeals Committee, DII Review Committee, and DII Appeals Committee) (Hosick, 2011; CCA, 2013). When the NCAA took over the operation of the program in 2007, then president of the NCAA, Dr. Myles Brand, was reported to have said, “We’re just there to reconcile the books. We send out the letters, we collect the information

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and we turn it over to the schools. So we’re doing the paperwork, we’re not running it” (Davis, 2007). One might construe this to mean that the NCAA is running it . . . without running it.

There are scant traces of either the NCAA or the CCA on the National Letter of Intent website, a curious thing from the standpoint that typically the NCAA visibly brands everything it is associated with, including its subsidiaries. As a case in point, the Eligibility Center is clearly and obviously branded with the NCAA’s recognizable blue disk and bears the NCAA’s imprimatur in public representations, as in the “NCAA Eligibility Center.”2 No such references are made to the NLIP. There are even fewer traces of the CCA to be found on the website or in the public domain.

All of this apparatus is brought to bear in executing a voluntary agreement that is supposed to be between the athlete and the institution, with the consequence that the athlete, upon signing, is bound to the institution. But is the agreement really between the athlete and the institution? The agreement itself is branded with the logo of the National Letter of Intent, not of the institution. And it is invalid if the athlete does not have an NCAA ID issued from the NCAA Eligibility Center.

For an athlete who wishes to be released from the agreement, the request must be submitted through the NLIP website, although the institution makes the determination if a release will be granted and under what terms. In a video tutorial that appears under the question “Can I Be Released From My NLI?” (2015) on the NLI website, athletes are informed that institutions have “complete discretion” in granting releases and are advised that athletes may appeal release decisions if not granted by demonstrating “extenuating circumstances.” The video advises that coaching changes are not extenuating circumstances.

An athlete is subject to one of three outcomes when seeking a release from the NLI agreement. He or she may be granted a complete release, which means that no penalty is assessed and the athlete is free to reopen the recruitment process. A no release means that the penalty for violating the agreement remains in effect and that athlete must serve a year in residence and lose a year of eligibility, barred from competing in any sport for a year, and unable to speak with coaches from other programs. A third alternative is that the recruiting ban is lifted, however, the athlete is not granted a release from the agreement. In this third scenario, the athlete pays the penalty but is given the opportunity to speak with coaches from other schools. Note, however, the institution’s decision is subject to appeal to the NLI.

In the Administrative Guidelines and Interpretations (2015–16) for the

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NLI, institutions are reminded that by virtue of their membership in the program, they relinquish their right to legally challenge the NLIP and the CCA. Since they relinquish their autonomy as institutions in the cause of membership, what does this do to the foundational relationship between athlete and institution, the purported basis for the agreement to begin with? As a matter of due process, if the agreement was truly between the athlete and the institution, as the athlete is told to believe, one might think that the channel for due process would first go up through the institution itself rather than forwarded to the “originating entity.” And if, in fact, the CCA is the originating entity with authority to overrule the institution, might the agreement then be with the CCA and not the institution? Further, if it is not clear who the parties are who are contracting with an athlete, can the contract be valid?

THE CONTRACTUAL NATURE OF THE NATIONAL LETTER OF INTENT

In Sports Law: Governance and Regulation (Mitten, Davis, Shropshire, Osborne, & Smith, 2013) the NLI is described as one of several documents that define the contours of a contractual relationship that exists between college athletes who receive athletic scholarships and their institutions. There is a requirement that the NLI be accompanied with an offer of athletically related financial assistance that outlines the terms, conditions, and amount of the award (National Letter of Intent, 2015). The NLI is not valid unless both the letter itself as well as the financial offer are signed and returned to the institution within seven days after the letter is issued. An athlete could still attend an institution that offered admission and an athletic aid award without signing the National Letter of Intent.

According to the “Quick Reference Guide to the NLI” (2015), 43,000 athletes (Division I and II) signed an NLI in 2014–15. Each year, approximately 2 percent of athletes who sign NLIs request releases. For the 2013–14 recruiting cycle, 1,056 athletes requested releases; 94 percent of those seeking releases were granted complete releases; and 70 percent of releases sought were filed by Division I athletes. The highest number of requests for release came from football and baseball players as well as women’s basketball and soccer players. Of the 20 appeals filed by athletes contesting an institution’s no release decision, three were eventually granted complete releases (“Status Report . . . ,” 2015).

While the form itself includes a statement that the athlete understands

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that the agreement is with the institution and not a particular sport or coach and that the athlete is asked to acknowledge that he or she understands that it is not uncommon that coaches leave, a coaching change was listed as the top reason in 2014 for athletes being granted releases. There was a significant drop in the number of times that reason was invoked, however, between 2013 and 2014. In 2013, 154 athletes were granted releases because of coaching changes, compared to 110 athletes the following year. This may be due to efforts on the NLI website and in the NLI video that specifically note that coaching changes are not considered extenuating circumstances. Signees were also successful in obtaining releases citing these reasons: personal issues, financial hardship, desire to attend a different institution, and academic reasons.

The 2 percent who contested the agreement may not be reflective of the actual number who wished to pursue alternatives but were discouraged either by the process or concern about negative consequences if they sought a release and were unsuccessful. Such a scenario would have placed them at odds with a coaching staff and program that they would have to live with after disclosing this dissatisfaction.

The high participation rates in the NLIP should also not be construed to represent the preferences of athletes. The “benefit” of the program is said to be the cessation of recruiting and relief from the pressures of being sought after by coaches. As Tom Yeager, the commissioner of the Colonial Athletic Association opined, “Recruiting is a pressure-packed thing, and the NLI is a ceasefire on recruiting” (Schwarb, 2014). That said, being bound to terms and conditions of a contract when the athlete is not in a position to bargain seems to be a fairly high price to pay just to get coaches to stop calling and contacting them.

The letter itself is also suggestive that the document is weighted to the benefit of the athletic establishment, not the athlete. Once athletes receive the NLI, they confront two options—accepting the terms as they are and signing, or not signing. There is no opportunity for negotiation. As such, the NLI fits the definition of a contract of adhesion, a form of agreement drafted by one party to which another party is afforded no other alternatives apart from rejection or acceptance. As Doyle (2015) wrote, “The NLI’s boilerplate language harms student-athletes due to the unequal bargaining power between the parties.” Peter Rush, an attorney who represented former University of Colorado and world-class moguls skier Jeremy Bloom in a lawsuit against the NCAA, has argued that the NLI is not enforceable and could be challenged on the grounds of unconscionability (Davis, 2007). Citing a legal definition, Davis noted that

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“a contract is ‘unconscionable’ if it did not result from real bargaining between parties who had freedom of choice and understanding and ability to negotiate in a meaningful fashion” (para. 11).

CONCLUSION

The atmosphere of Signing Day contrasts sharply with the stark reality embodied in the National Letter of Intent. Michael Lee, a Michigan labor lawyer, observed, “Signing day is portrayed as Christmas morning, everyone opening their presents, everyone counting up what they brought in and then people ranking who had what. When in effect, many young people have just signed away their legal, if not constitutional rights” (Wetzel, 2001, para. 6).

The fact that the NCAA, the CCA, and the schools that are members of the NLIP are so willing to present a carefully constructed united front in their dealings with college athletes, offering them no opportunity to negotiate, is a lesson to consider when contemplating the rights of college athletes. The obvious exploitation of the power imbalance evident in the interlocking relationships that exist among the college sport entities (NCAA, CCA, schools, coaches) speaks to the value placed on college athletes and their humanity. The business practices employed are designed to control and bargain for college athletes as commodities who have no rights.

Roquan Smith’s refusal to sign the NLI when he was being misled by the coaching staff at UCLA was a form of resistance, an assertion of personal agency, a push back against a system that would have comfortably moved on, trading in deception merely as a matter of business. Neither Smith nor Mike Weber nor Du’Vonta Lumpkin should have to fend for himself in trying to navigate this Kafkaesque bureaucracy, which is “nightmarishly complex, bizarre, and illogical.” Their treatment, which mirrors that of many college athletes, calls for representation, a players association independent of the college sport entities who have constructed the maze that college athletes attempt to survive. A players association external to the system would create a counterweight, offering the possibility for greater balance, greater leverage to effect change, and a source of advocacy to help athletes understand the forces that they are up against in accessing their rights.

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QUESTIONS FOR DISCUSSION

1. If the NLI were truly voluntary, as NCAA and CCA officials assert, and if that was fully understood by athletes and their parents, why do the number of signees go up every year?

2. According to the NCAA’s principle of amateurism, athlete participation is a matter of “avocation,” meaning that it is done voluntarily and for fun. How does the encouragement to sign a letter of commitment that ultimately binds athletes to a set of rules that they did not negotiate and that they may feel they have no alternative but to sign (despite proclamations to the contrary) reconcile with that?

3. In your view, is the NLI the worst contract in American sports?

Notes

1. On the homepage of the National Letter of Intent website, there are links to the NCAA and to the NCAA Eligibility Center that appear discreetly at the bottom of a column on the right hand side of the page. There is no attempt, however, to explain that the NLI is an office under the Eligibility Center. A small, nondescript CCA logo appears on the homepage at the bottom of the lefthand column. See http://www.nationalletter.org/. Unless visitors go to the “About the National Letter of Intent” page, they would not be able to determine the connections between the NLIP, the CCA, and the NCAA.

2. The NCAA Eligibility Center can be accessed at http://www.ncaa.org/student-athletes/future/eligibility-center. The National Letter of Intent site can be accessed at http://www.nationalletter.org/

References

“About the National Letter of Intent.” (2015). NCAA. Retrieved from http://www.nationalletter.org/aboutTheNli/index.html

Administrative guidelines and interpretations. (2015–16). NCAA. Retrieved from http://www.nationalletter.org/documentLibrary/administrativeGuidelines.pdf

“A-Sun’s Gumbart new president of Collegiate Commissioners Association.” (2015, June 29). Press release. Atlantic Sun.org. Retrieved from http://atlanticsun.org/sports/bsb/2014-15/releases/20150629vowjzo

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“Can I be released from my NLI?” (2015). NCAA. Retrieved from http://www.nationalletter.org/

CCA. (2013). Federal tax form 990-EZ. Guidestar.org. Retrieved from http://www.guidestar.org/FinDocuments/2014/300/189/2014-300189456- 0b0f9f13-Z.pdf

Cozzillio, M. (1989, Summer). The athletic scholarship and the college national letter of intent: A contract by any other name? Wayne Law Review, 35(4), 1277–1380.

Davis, S. (2007, November 13). National Letter of Intent. Sports Illustrated. Retrieved from http://www.muscoop.com/index.php?topic=4512.0

Doyle, S. (2015, April 21). Revising the National Letter of Intent. University of Cincinnati Law Review. Retrieved from http://uclawreview.org/2015/04/21/revising-the-national-letter-of-intent/

Heitner, D. (2009). To sign or not to sign, that is the question. Sport Agent Blog. Retrieved from http://sportsagentblog.com/2009/02/03/to-sign-or-not- to-sign-that-is-the-question/

Helfand, Z. (2015, February 14). Is the college letter of intent “the worst contract in sports”? Los Angeles Times. Retrieved from http://www.latimes.com/sports/la-sp-0214-football-recruiting-lies- 20150214-story.html

Hosick, M. B. (2011, February 2). History of the National Letter of Intent. NCAA News. Retrieved from http://www.ncaa.com/news/ncaa/2011-02- 02/history-national-letter-intent

Mitten, M., Davis, T., Shropshire, K., Osborne, B., & Smith, R. (2013). Sports law: Governance and regulation. Frederick, MD: Walters Kluwer.

National Letter of Intent. (2015). Binding agreement: FAQs. NCAA. Retrieved from http://www.nationalletter.org/frequentlyAskedQuestions/bindingAgreement.html

Northeast Ohio Media Group. (2015, February 4). Watch live 9 a.m. video of Nordonia football players signing, faxing Letters of Intent on National Signing Day 2015. Cleveland.com. Retrieved from http://highschoolsports.cleveland.com/news/article/-7330232118846288082/watch- live-9-am-video-of-nordonia-football-players-signing-faxing-letters-of- intent-on-national-signing-day-2015/

“Quick reference guide to the NLI.” (2015). Indianapolis, IN: NCAA. Schwarb, A. W. (2014, November 19). Signing of the times. NCAA News.

Retrieved from http://www.ncaa.org/champion/signing-times “Seven plus eight.” (1964, May). NCAA News, 1(2), 3. Retrieved from

http://fs.ncaa.org/Docs/NCAANewsArchive/1964/19640501.pdf Sherrington, K. (2015, February 7). Texas Tech official helped create National

Letter of Intent, ending raids. Dallas Morning News. Retrieved from

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http://www.dallasnews.com/sports/columnists/kevin-sherrington/20150207- sherrington-texas-tech-official-helped-create-national-letter-of-intent- ending-raids.ece

Stancil, B. (2014, February 6). Ninety years of college football recruiting, in one map. Mode Analytics. Retrieved from http://blog.modeanalytics.com/niney-years-of-college-football-recruiting/

Staples, A. (2008, June 23). A history of recruiting; how coaches have stayed one step ahead. Sports Illustrated. Retrieved from http://www.si.com/more- sports/2008/06/23/recruiting-main

“Status report: 2013–2014 signing year (2014–2015 enrollees).” (2015). Indianapolis, IN: NCAA (document on file with author).

Wetzel, D. (2001). Letter of intent benefits schools, not student-athletes. SportsLine. Retrieved from http://www.hsbaseballweb.com/letter_of_intent.htm

“What is the National Letter of Intent?” (2015). NCAA. Retrieved from http://www.nationalletter.org/

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CHAPTER

3 Amateurism and the NCAA Cartel Robert Scott Lemons

ECONOMICS OF THE CARTEL

The National Collegiate Athletic Association (NCAA) is the organizing body of a cartel comprising over 1,100 colleges and universities (NCAA, 2014a). Over the past 25 years, university presidents have largely taken over the administration of the NCAA (Igel & Boland, 2011).

KEY TERMS

Amateur student athlete

Collegiate athletics

Cartel economics

Monopsony/Monopoly

Athletic scholarship

To understand the economics of college sports requires an analysis of the market power of the NCAA and its member schools. In essence, market power is the capacity to increase the market price over the marginal costs. In other words, firms with significant market power become “price makers,” because they set the price. In contrast, firms in a competitive

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market act as “price takers,” because they must take the price arrived at by the competitive market. In general, market power leads to socially undesirable results as price increases and quantity decreases. In economic terms, this would be called inefficiency or deadweight loss, resultant from excessive market power.

The NCAA member schools enjoy market power by controlling a large portion of the market. College sports, excluding junior colleges, are controlled by three distinct organizations: (1) the NCAA, (2) the National Association of Intercollegiate Athletics (NAIA), and (3) the United States Collegiate Athletic Association (USCAA). The NCAA claims 460,000 college athletes (NCAA, 2014a). The NAIA has 65,000 collegiate athletes (“About the NAIA,” 2016). The USCAA probably has around 14,000 athletes. Thus, the NCAA controls 85 percent of the shares, with the NAIA and the USCAA controlling 12 percent and 3 percent, respectively. Because the NCAA doesn’t control the entire market, it cannot be described as a monopoly, but since they control 85 percent of the market, the NCAA schools can be described as having monopoly power. As the NCAA sells the product of college sports entertainment to various buyers, especially television networks, it acts as a monopolist, from the Greek “single seller.” In his memoir entitled Unsportsmanlike Conduct, Walter Byers, the famed, first, full-time executive director of the NCAA, proclaimed, “Amateurism is not a moral issue; it is an economic camouflage for monopoly practice” (Huma & Staurowsky, 2012, p. 8).

The NCAA also behaves as a monopsonist (Greek for “one” and “purchasing food”). In contrast to a monopoly, where there is only one seller, monopsony describes a situation where there is a single buyer of a particular good or service in a given market. As the NCAA member schools acquire college athletes through the recruitment and scholarship process, they are effectively a single buyer of athletes. Any attempt to monopolize or monopsonize is illegal in the United States, according to section 2 of the Sherman Antitrust Act of 1890.

How do the NCAA member schools gain monopoly and monopsony power? The NCAA serves as a catalyst to foster collusion. Put another way, the NCAA operates as a collusive monopsony when “purchasing” athletes and a collusive monopoly when selling college sports. From an economic perspective, the NCAA promotes explicit collusion, because its members openly cooperate to make mutually beneficial pricing and production decisions. In many ways, the NCAA functions like OPEC (Organization of Petroleum Exporting Countries), as both collude, price- fix, and manipulate production (Nocera, 2011).

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Judge Richard A. Posner, of the US Court of Appeals for the Seventh Circuit in Chicago and a leading antitrust scholar, agrees that the NCAA behaves monopsonistically. He says, “Although cartels, including monopsonistic ones, are generally deemed to be illegal per se under American antitrust law, the NCAA’s monopsonistic behavior has thus far not been successfully challenged” (Posner, 2011, p. 1). Posner posits that colleges and the NCAA have avoided legal sanctions for their monopsonistic behavior for two reasons: 1) collegiate athletes are students, and their educational mission would be corrupted by compensation; 2) colleges and the NCAA are nonprofit institutions. Ironically, if colleges paid athletes, the schools would be engaged in a business unrelated to their academic mission and no longer immune from taxation.

Typically, cartels make agreements concerning prices, outputs, market areas, the use/construction of productive capacity, and advertising expenditures (Koch, 1973). The enterprise of college sports differs significantly from other cartel-driven industries; therefore, the cartel of NCAA member colleges functions differently from typical cartels. The NCAA functions as the head of a cartel in the following ways: (1) it fixes the compensation of college athletes; (2) it controls the supply of athletes; (3) it distributes profits in a fashion that satisfies its members; (4) it protects cartel rents; and (5) it enforces rules on athletes and member colleges (Miller, 2013).

THE NCAA FIXES THE COMPENSATION OF COLLEGE ATHLETES

The NCAA requires that collegiate athletes must compete without salary to maintain their amateur status. Any compromise to this amateur status disqualifies the athlete from all future collegiate competition. According to the NCAA, “No student shall represent a college or university in any intercollegiate game or contest . . . who has at any time received, either directly or indirectly, money, or any other consideration” (NCAA, 2013a, p. 1).

Amateurism mandates that athletic scholarships represent the sole remuneration to college athletes (Zola, 2013). Colleges cannot award to a college athlete financial aid that exceeds the “cost of attendance” (the amount calculated by a campus financial aid office, using federal regulations that include transportation and other expenses in addition to tuition and fees, room and board, and books) or the full “grant-in-aid” limit

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(defined by the NCAA as tuition and fees, room and board, and required textbooks), whichever is lower (Murray & Burton, 2003). These athletes are strictly prohibited from receiving compensation for non-athletic services that might be understood to reflect on their athletic ability. In essence, this represents a twofold restriction on player remuneration: (1) it caps the total amount of compensation; and (2) it restricts the form of remuneration, because scholarships can only purchase academic units.

College athletes differ from other scholarship students, who can use their talents to earn extra money while in school. For example, music students can play concerts and get paid, and science students can work in laboratories for a salary (Wharton, 2013). No similar options are made available to college athletes.

The NCAA effectively creates a price ceiling (compensation ceiling) for student-athletes by the limitations of their scholarships and by limitations on other compensation that student- athletes could receive. Price ceilings typically result in economic inefficiency, including deadweight loss. In figure 3.1, notice the disparity between the college (consumer) surplus and college athlete (producer) surplus, suggesting a significant advantage for the colleges from the price ceiling.

Beyond setting a price ceiling on scholarship compensation, the NCAA further fixes the compensation of college athletes by fixing their commercial rights at zero (O’Bannon, 2009). The NCAA accomplishes this by completely controlling the exposure of athletes in perpetuity. In essence, the NCAA controls if and when these college athletes will be exposed and retains all profits related to this exposure.

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Figure 3.1. Comparison of College (Consumer) Surplus and College Athlete (Producer) Surplus

THE NCAA CONTROLS THE SUPPLY OF COLLEGE ATHLETES

Figure 3.1 also demonstrates that a price ceiling lowers the quantity of inputs, meaning fewer college students have the opportunity to participate in college sports. Thus, the price ceiling limits opportunities for potential college athletes, with too many talented/qualified athletes chasing too few athletic scholarships. If the NCAA allowed a progressively larger supply

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of athletes and events, the price of the events would decline. Therefore, the NCAA must control the quantity of athletes and competitions.

The NCAA limits the number of college athletes by limiting the number of scholarships per sport per college. In Division I basketball, each school is allowed just 13 scholarships. Football Bowl Subdivision (FBS) schools can award 85 football players with athletic scholarships.

The supply of college athletes is also controlled by the five-year eligibility rule, NCAA Bylaw 14.2.1 (NCAA, 2014b, p. 3). This rule mandates that college athletes only have five years of athletic eligibility to complete their four-year college athletic career. Simply put, they have just five years to play four seasons.

THE NCAA DISTRIBUTES PROFITS IN A FASHION THAT SATISFIES ITS MEMBERS

As with any cartel, the NCAA members expect that the NCAA revenue will be distributed to the membership, with the most successful members receiving the most revenue. In the 2012–13 school year, the NCAA revenue totaled $484,046,000 (NCAA, 2013c). In reality, the bulk of this revenue comes from the men’s basketball tournament. March Madness captures almost 140 million viewers, and, according to NCAA president Mark Emmert, “Ninety percent of the revenue that flows into the NCAA comes from the media rights and ticket sales for the NCAA men’s basketball tournament” (Bergman, 2011, p. 1). After the NCAA covers its overhead, all the remaining revenue is distributed to the member schools. The NCAA claims that 96 percent of all revenue collected returns to member colleges. As figure 3.2 demonstrates, the NCAA’s largest distribution (39 percent of total revenue distributed) goes into the “basketball fund” (NCAA, 2014a). This fund “provides moneys to be distributed to Division I Men’s Basketball Championships over a six-year rolling period. Independent institutions receive a full unit share based on their tournament participation over the same rolling six-year period . . . In 2012–2013, each basketball unit will be approximately $245,500” (NCAA, 2014a, p. 1). What does that mean? As an example, consider the tournament revenue generated by the University of Connecticut Huskies, who played in five tournament games in 2011 and seven tournament games over the previous five years. This gave Connecticut 12 “game units.” In 2011, each game unit was worth $239,664 (Smith, 2012). Therefore, from 2006 to 2011, the university generated $2,875,968

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($239,664 × 12) for its Big East Conference (Smith, 2012).

Figure 3.2. NCAA Revenue Distribution, 2012–13. Source: NCAA, 2013b

From the above, a couple of points become clear. First, it pays to be successful in college basketball, especially if the team qualifies for the NCAA tournament. Second, the revenue-distribution process seems complicated. Third, the member schools must be satisfied with the terms of the distribution process, as no schools have threatened to leave the NCAA cartel and no universities have filed public grievances against the NCAA’s distribution process.

THE NCAA PROTECTS CARTEL RENTS

The actions taken by the NCAA to protect cartel rents represent another indicator that it functions as the head of a cartel. The NCAA has swallowed up any potential rivals. Consider how Walter Byers exploited the National Invitational Tournament (NIT) cheating scandal of 1951, elevating the NCAA basketball tournament into its premier position (Barra, 2012). Further consider how the NCAA eliminated the Association

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of Intercollegiate Athletics for Women (AIAW) in 1982 (Kahn, 2006). The NAIA may be the NCAA’s next victim. Ever since the NCAA formed Division II and Division III levels of play in the mid-1970s, the NAIA’s membership has steadily declined, with exiting members joining the NCAA (“The NAIA to NCAA,” 2013, p. 2).

THE NCAA ENFORCES RULES ON ATHLETES AND MEMBER COLLEGES

Nobel laureate George Stigler described two challenges that successful cartels must overcome: (1) the cartel must be able to reach a consensus on its terms, and (2) the cartel must be able to police its collusive agents and punish those who have strayed from the agreed terms (Stigler, 1964). In the above section, the point was made that the NCAA member schools seem to have reached a consensus on arguably their most contentious term —revenue distribution.

Thus, the NCAA cartel seems to have overcome the first of Stigler’s challenges.

Stigler claims that cheating represents the major threat to cartel stability. To understand how the NCAA overcomes Stigler’s second challenge, it is important to understand how NCAA schools may stray from the cartel’s rules. In a typical cartel, a firm may try to cheat the cartel by lowering the price to improve sales or lowering quality to decrease production costs. The NCAA members typically try to cheat the cartel in a different fashion: universities cheat to win football or men’s basketball games. Winning conference titles, being invited to football bowl games, succeeding in March Madness, and being crowned national champion brings tremendous revenue, prestige, and media exposure. Therefore, the NCAA must police its collusive agents for trying to gain an unfair advantage over other cartel members.

Cartel behavior remains economically attractive as long as the expected cost of violating the agreement (rules violations) remains greater than the expected benefits from remaining in the cartel (additional revenue) (DeSchriver & Stotlar, 1996). With the establishment of the Committee on Infractions in 1951, the NCAA had a means of policing and punishing noncompliant members. Understand that this committee has no legal authority to either police or punish any university, yet the NCAA member schools voluntarily abide by NCAA rules, even when the punishment

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