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Pay to Play?

A Look into the Potential Exploitation of College Athletes and Whether They Should Be Paid

Geoffrey Mak November 2010 MJ021: Intro to Law Prof. Tom Wesner

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Introduction This paper will delve into the topic of the potential exploitation of college athletes by their universities as well as the National Collegiate Athletic Association (NCAA). I will analyze instances of the NCAA treating student athletes very harshly for receiving benefits and things of that nature. Is this approach really warranted, if the schools and the NCAA in general are making so much money off the athletes in terms of ticket sales, television deals, jersey sales, video games, etc.? The skills and efforts of these young adults are basically being used, and the worst part is that a majority of them are poor and not good enough to turn professional. The paper will also look into statistical data including how much a scholarship can save a student athlete in money, graduation rates, and rates of turning professional. Both sides of the issue of whether athletes are being exploited and whether they deserve to be paid (or paid more, depending on how one looks at it) will be objectively examined. Some believe that the scholarships that students are awarded (which include tuition, books, meals, housing, etc.) are more than enough compensation, not even taking into account the special privileges such as excused absences and tutors. Another issue is that if they receive monetary benefits, they would no longer be considered amateurs; they would then technically be a professional. Proponents of paying the athletes would look to the fact that with classes, practice, and training, they simply dont have time to work for money for educational, dining, and entertainment expenses (because most of the time scholarships arent actually full rides). Paying student athletes would also encourage them to stay and school and complete their degree instead of leaving early to turn pro. Other issues will be examined and analyzed, such as possible antitrust and monopoly conduct, endorsements, and what kind of role the professional leagues should take in working with colleges. The paper will conclude with a potential solution that takes into account both the rights of these college athletes as well as the concerns of the institutions that they belong to. History Recruitment of college athletes is something that has spanned as far back as we can remember. Back in the late 19th century, when college football was starting to become more mainstream, coaches started to lure top athletes to their schools with promises of compensation. This compensation would usually come in the form of free lodging, meals, gifts, and things of that nature. As the popularity of college athletics (specifically football) grew, a new industry blossomed with it. New stadiums were being built, and crowds of fans provided significant revenue for colleges. For example, by the late 1880s, the tr aditional

Mak 3 rivalry between Princeton and Yale was attracting 40,000 spectators and generating in excess of $25,000 in tickets sales (almost $600,000 in 2009 dollars).1 Around this same time, Yale also created a $100,000 slush fund to aid their football program, teams were using graduate students and ringers, and football coaches salaries began to earn more than the highest paid professors.2 To ensure the continuation of profit, schools had to make sure that they kept winning, and to keep winning, top notch talent had to be attracted. Incentives for student-athletes (even financial compensation) continued to increase; this essentially marked the beginning of modern student recruiting. Other problems were brewing as well: college administrators were becoming consumed with winning in athletics instead of focusing on education, betting was prevalent, and violence and brutality were clearly being manifest on the playing field (evidenced by 330 college football fatalities from 1890-1905).3 All of this led to the President at the time, Teddy Roosevelt, summoning presidents of various universities to the White House to discuss these issues and issuing an ultimatum of reform to them, threatening to forbid collegiate football. As a result, the National Collegiate Athletic Association (NCAA) was formed in 1905 in an attempt to govern competition in a fair, safe, equitable and sportsmanlike manner, and to integrate intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount4, and bring order to world of college sports.5 Even with the attempt at reform, meaningful change came very slowly, because schools simply did not take the rule changes seriously. In fact, three-quarters of the 112 colleges studied by the Carnegie Commission were found to be in violation of NCAA codes and the principles of amateurism.6 Similarly, a follow-up survey conducted by the New York Times in 1931 found that not a single college had changed its practices to adhere to the NCAA codes.7 An important thing to note is that at this point, there were no standards had been set in terms of eligibility and scholarships, so the line that defined amateur contests between students remained blurred. In 1948, the NCAA adopted a Sanity Code (which threatened to expel violators from the NCAA) that prevented players from receiving aid in forms other than tuition and incidental fees, and this is where players started to take exception. In the Kentucky point fixing case which happened soon (1951) after the Sanity Code was passed, five U of Kentucky basketball players tried to circumvent the NCAA depriving
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Zimbalist, Andrew. Unpaid Professionals: Commercialism and Conflict in Big-Time College Sports. Princeton, NJ: Princeton University Press, 1999. 2 Ibid. 3 Ibid. 4 "Our Mission." NCAA. N.p., n.d. Web. Accessed 15 Nov 2010. <http://www.ncaa.org/wps/portal/ncaahome?WCM_GLOBAL_CONTEXT=/ncaa/NCAA/About+The+NCAA/Overview/mission.h tml>. 5 Zimbalist 6 Ibid. 7 Ibid.

Mak 4 them of their compensation by participating in point shaving; ten others received illegal outside aid, and coach Adolph Rupp was accused for consorting with a bookmaker.8 New York Judge Saul Streits judicial opinion in this case was groundbreaking because it was basically the first time that someone had outlined the offenses of schools against athletes. These charges included: covert subsidization of players ruthless exploitation of athletes a reckless disregard for the players' physical welfare matriculation of unqualified students demoralization [corruption] of the athletes by the coaches, the alumni, and the townspeople 9

Little did he know that more than half a century later, a few of these characteristics would still pose great challenges for student athletes at institutions around the country. Analysis Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental, and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes shall be protected from exploitation by professional and commercial interests.10 The NCAA claims that they protect the amateur spirit in college sports, but a closer analysis tells one that this is not necessarily true. In fact, there seems to be an underlying hypocrisy in the assertion that they aim to protect athletes from exploitation by professional interests. For example, the end of the season basketball tournament, also known as March Madness, generates a $6 billion multiyear TV contract from CBS11, and definitely has a professional feel to it. The same could be said for bowl games such as the Rose Bowl, Tostitos Bowl, Discover Orange Bowl, Allstate Sugar Bowl, Capital One Bowl, Chick-Fil-A Bowl, and many others that use corporate sponsors in their names. But not only do these events have professional feels to them, they also contain elements that are inherently professional, such as sales of licensed merchandise, luxury seating, and of course, television contracts. Another thing that points to professionalism is certain NCAA legislation that gives coaches control over athletes comparable to the control an employer would have over his/her employees. One instance of this is the one year renewable

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Quirk, Charles E. Sports and the law: major legal cases. New York: Garland Pub., 1996. Zimbalist 10 The National Collegiate Athletic Association. 1998-99 NCAA Division I Manual 1, ( 2.9 of the NCAA Constitution). 1998. 11 Sack, Allen L. Counterfeit amateurs: an athlete's journey through the sixties to the age of academic capitalism . University Park, Pa.: Pennsylvania State University Press, 2008.

Mak 5 grants that can replace four-year scholarships12 and allow coaches to essentially fire athletes who are injured or underperform. A relevant and valid question would be why do the NCAA and colleges strive and insist on keeping their programs and the big-time athletes amateur? Those on the side of the studentathletes, which include many economists that have thoroughly studied this topic, would say that the NCAA and schools can make millions while capping player compensation at room, board, tuition, and fees. They also dont have to pay income taxes and are defended from athletes filing compensation claims. Put into simpler terms, the institutions are all about making profit while minimizing costs; doesnt this once again sound like the mindset of a business or corporation? Under common law, an employee is a person who performs services for another under a contract for hire, subject to the others control, in return for payment.13 The main issue then, is whether the NCAA and colleges/universities are exploiting athletes without providing rights and protections. It is also important to examine the issue from the other sides point of view; in this case, that would be the schools and the NCAA. One of the most prominent arguments from their side is that athletes are already paid quite well by the subsidized education (scholarships) that they receive. John Thompson, a former Georgetown basketball coach, makes a good point when he says that Education has value. The athletes are already being paid. If you get a scholarship, it is extremely important that you understand that it has a money value to it.14 The average value of an education ranges from about $12,000 at a public school to $30,000 at a private school15, and admittedly, that is a sizable amount of money. But as substantial as these numbers seem, they must be put into perspective: many, many athletes come into college with close to nothing, both in education and monetary terms (and some have even have to walk on). The sad truth is that they will also leave with nothing: only 54 percent of Division IA football and 41 percent of men's basketball players receive college degrees; among black athletes these proportions fall to 44 percent and 35 percent, respectively.16 Although many teenagers coming out of high school, junior college, and college believe they will make it big (turn professional), this is simply unrealistic. According to a 1990 survey, 43 percent of black high school athletes (and 16 percent of whites) and 44 percent of black college athletes believe that they will one day become professionals17; in reality, only one out of every several thousand actually make it to that level. Another issue raised by former athletes is how they are expected to carry a full class load while still devoting 20 hours a week to their sport, which leaves them no time to work for basic expenses. An example of a player who fell victim to this is Ramogi Huma, a UCLA linebacker in the
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Ibid.

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McCormick, Robert and Amy Christian. The Myth of the Student Athlete: The College Athlete as Employee. Michigan State University College of Law: Legal Studies Research Paper Series, 2006.
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Sack Ibid. 16 Zimbalist 17 Ibid.

Mak 6 late 1990s who came from a low income family and left college with $6,000 in credit card debt.18 As he put it, Student-athletes are grateful for where they're at, but given that football and basketball players are generating billions of dollars, they should be able to afford basics like toilet paper, soap and deodorant. Most of these athletes are from low-income backgrounds, and it's a constant struggle.19 Ethics One of the ethical issues at the forefront of this topic is how schools attempt to deceive potential student-athletes in the recruiting process. There are obviously those who have little or no choice but to follow the path of college athletics, but there are plenty more young men who have been lied to or had information withheld from them by colleges. When Congress introduced the Right to Know Act in 1990, which (among other things) would require universities to publicly disclose graduation rates of studentathletes, the NCAA forcefully lobbied against it 20, which was a blatant attempt to withhold relevant information. Another disturbing report revealed that Clemson University, a prominent ACC school, paid blacks from Columbia, South Carolina, to come to campus on weekends when black recruits were visiting and pretend that they belonged to a fictitious black fraternity.21 The reasoning was probably that it would help attract black athletes to a predominantly white campus, but no matter how you look at it, the institution definitely crosses an ethical line. Remember that these are the same institutions that claim to protect student-athletes from exploitation. The other major ethical (and legal) issue that comes up is in the area of antitrust and monopoly. Robert J. Barro, one of the most prominent economists in the world, once wrote in the Wall Street Journal that the NCAA should get an award for being the best monopoly in the country.22 They (the NCAA) basically have complete and utter power over their marketplace, meaning that any athlete who wants play college (or professional) sports has no choice but to deal with them. In addition, they do all the enforcing and sanctioning for rules violations, and can limit the salary and number of athletes that any one member (university) can employ.23 Because the NCAA is comparable to a monopoly and holds all the power, they essentially do whatever they please, which includes violating the fundamental principle of capitalism. In this example, antitrust laws have also failed the student athletes, because schools are clearly conspiring together to prevent the athlete from receiving rightful compensation for valuable services provided (this being the violation of capitalism).
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Farrey, Tom. "NCAA might face damages in hundreds of millions." ESPN: The Worldwide Leader in Sports. N.p., n.d. Web. Accessed 15 Nov 2010. <http://sports.espn.go.com/ncaa/news/story?id=2337810>. 19 Ibid. 20 Zimbalist 21 Ibid. 22 Barro, Robert J. Let's Play Monopoly. Wall Street Journal. Aug. 27, 1991. 23 Roberts, Sean Alan. College Athletes, Universities, and Workers Compensation , 37 S. TEX. L. REV. 1315, 1341-42 (1996)

Mak 7 Conclusion Former USC Trojans Reggie Bush and OJ Mayo. Oklahoma St. WR Dez Bryant and UNC defensive tackle Marvin Austin. This seasons Heisman Trophy contender, Auburn QB Cam Newton. The list goes on and on. As Chad Pekron puts it in his Hamline Law Review article on the professional student-athlete: the NCAA, like the NBA, is a two billion dollar pie. However, there is no question over the division of that pie. Colleges and universities take almost all of the pie, and give the players as little as they see fit. If a player attempts to increase his own share of the pie, by taking money from a booster, for example, his entire share of the pie will be taken away (his eligibility will be rescinded), and he will be labeled a cheater.24 Is it really right or fair that these college athletes, who are generating considerably more value (solely in monetary terms) for their colleges than they are receiving, are labeled as cheaters when they try to provide for themselves and their families (when the NCAA and colleges clearly will not)? The opposition would no doubt cite scholarships, special housing and tutors, maybe even free clothing, but the bottom line is that none of us really know how it would feel to be exploited in this manner and not be able to do anything about it. Imagine for a second that you are the student-athlete, that its your time and sweat being put into winning games, filling tens of thousands of stands, and providing recognition for your school, yet you cannot get a single penny of the revenues from jersey sales, ticket sales, etc. without being severely punished. The main argument from the NCAA and universities is that if a student-athlete receives monetary benefits, then they would technically be a professional. The way I see it, college athletes are already getting paid, just in non-cash forms, such as free tuition, free books, free room and board, and things of that nature. This in itself makes them employees, and technically professionals as well. Taking this into account, I would suggest as a potential solution that student-athletes be allowed to accept endorsements, be paid fair and objective stipends proportional to the amount of profit they generate their schools, and also that professional leagues work with colleges to offer student-athletes incentives to graduate, so that they are prepared for life in case they dont turn professional. This seems like a fair compromise that would greatly benefit student-athletes, as well as show that the NCAA and universities are not exploiting these young people.

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Pekron, Chad W. The Professional Student-Athlete: Undermining Amateurism as an Antitrust Defense in NCAA Compensation Challenges, 24 Hamline L. Rev. 24 (2000)