Reevaluating Amateurism Standards in College Athletics

The issue of paying college athletes has recently garnered mainstream media
attention, culminating in the class-action lawsuit involving former UCLA men’s
basketball star and NCAA champion, Larry O’Bannon. The suit, years in the making,
had been projected by many to be watershed case in NCAA history. While the decision
rendered by United States District Court Judge Claudia Wilken was not quite as
monumental as initially predicted, there is plenty of forceful language in the 99 page
opinion calling into serious question on many of the NCAA’s oft-relied upon defenses.
Chief among these are the claims that the current system in place is necessary to promote
competitive balance in college sports and to preserve the amateur tradition in college
athletics. Independent, empirical evidence produced in this paper will show that the
current system in place does little, if anything to promote competitive balance in college
athletics. In addition to addressing the arguments offered by the NCAA and their
supporters for maintaining the status quo, this paper will offer a solution that would allow
for college-athletes to capitalize on their marketability while in college without imposing
a large cost on NCAA member institutions.
Part I of this paper includes an overview of the NCAA core principle of
amateurism and will explore the history of how the NCAA coined term ‘student-athlete’
to serve their interests. As a corollary to the discussion of these key NCAA principles,
Part I will also examine NCAA enforcement actions against high profile athletes
including world-class skier/University of Colorado football player Jeremy Bloom, and
Johnny Manziel of Texas A & M football. These two cases, and countless others could

1

have been avoided altogether by implementing a system that is less restrictive on a
student-athletes rights while in college.
Part II will analyze the language rendered in the O’Bannon case, and what it
means for college athletics going forward. It will also address the arguments relied upon
by the NCAA in support of its current system and will counter those arguments with
independent, empirical evidence to suggest that the current system does little, if anything
to promote competitive balance in college athletics. Historically, large schools with
substantial athletic budgets dominate college athletics, and the restrictions in place have
done little to promote parity.
Furthermore, the research in this paper will show that schools that dedicate the
most money to athletics consistently attract the top recruits in the country, thus actually
widening the competitive gap and leaving the lesser-funded schools with little
opportunity or incentive to devote resources to attracting top talent. A corollary to the
competitive balance defense is that parity supposedly promoted by this system leads to
higher attendance at games, and a system that would allow member institutions to
compensate college athletes beyond the value of a scholarship would widen the
competitive gap and lead to diminished attendance revenues. The independent, empirical
research presented in this paper will show that this concern is not based in fact.
Finally, Part III will offer a viable alternative to the current NCAA system: the
Olympic Model of Amateurism. The NCAA’s current system is overly restrictive on a
college athlete’s right to market themselves while on an athletic scholarship. Under the
Olympic Model, athletes would be allowed to take control of their own marketing rights
including the power to hire agents, sign endorsement deals and engage in other

2

entrepreneurial activities. Furthermore, this system can alleviate concerns about NCAA
member institutions not having enough funding to compensate college athletes because
the financial onus would fall upon the business enterprise who want to engage athletes to
market their products.
Division I college athletics is a multi-billion dollar business. According to USA
Today, in 2006 42 college football coaches made at least $1 million annually. 1 As of
2012, the average annual salary for head coaches at major colleges was $1.64 million, up
nearly 12% from 2011—and more than 70% since 2006, when USA TODAY Sports
began tracking coaches’ compensation. 2 Interestingly enough, major college coaches’
pay has even outpaced the pay of corporate executives, who have come under fire
because of their exorbitant compensation packages.3 Between 2007 and 2011, CEO pay
—including salary, stock, options, bonuses and other pay—rose 23%, according to
Equilar, an executive compensation data firm. 4 In that same four-year period, football
coaches’ pay increased 44%.5
The other main revenue generating sport at the center of this controversy is
Division 1 Men’s Basketball. Recently, the NCAA announced that it had reached a 14year, nearly $11 billion agreement with CBS and Turner Sports for the TV rights to the
68-team tournament.6 In 2013, according to USA TODAY, the average pay for coaches in
1

Erik Brady, Steve Berkowitz, Jodi Upton. College Football Coaches
Continue to See Salary Explosion, USA TODAY Sports (Oct. 28, 2014).
2
Id.
3
Erik Brady, Steve Berkowitz, Jodi Upton. College Football Coaches
Continue to See Salary Explosion, USA TODAY Sports (Oct. 28, 2014).
4
Id.
5
Id.
6
Thomas O’Toole, NCAA reaches 14-year deal with CBS/Turner for
men’s basketball tournament, which expands to 68 teams for now,
USA TODAY Sports (Oct. 15, 2014.)

3

the NCAA Tournament field was $1.47 million, up from an average of $1.4 million the
previous season.7 For example, Louisville head basketball coach, Rick Pitino, signed a
10-year contract through 2022 which will pay him roughly $42 million if he completes it,
plus potential bonuses worth millions.8 More jarring still is that Louisville’s athletics
director Tom Jurich stated, “I would look at him and say he is underpaid.”9 If Rick
Pitino’s ten-year contract worth roughly $42 million is a bargain, these universities are
getting a sizable discount on the top-tier athletes who actually play the sports. In a multibillion dollar business where everyone gets their fair market value and can bargain for it,
what reasonable argument does the NCAA have for others being excluded from this
model?
The reality is that college athletics is a gargantuan business with no sign of
downsizing in sight. The current mode short-changes athletes and lacks a sound policy
justification. This paper will demonstrate the fundamental unfairness in the current
system and illustrate the lack of reasonable justifications for imposing these restrictions. .
The NCAA is the last major athletic organization to attempt to keep its adult athletes from
being paid or profiting off their own accomplishment, and that needs to change.

7

Erik Brady, Steve Berkowitz and Jodi Upton, Pitino, Calipari among
highest-paid college basketball coaches, USA TODAY Sports (Oct. 10,
2014).
8
Id.
9
Id.
4

Part I: Amateurism and Student-Athletes
A. The Malleability NCAA Amateurism
The NCAA has described amateur competition as a “bedrock principle” of college
athletics.10 Currently the NCAA defines amateurism in both normative and positive
terms: “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 should be protected from exploitation by professional and
commercial enterprises.”11 The NCAA definition of amateurism is far more idyllic than it
is in place with reality.
The O’Bannon v. NCAA case, although limited in scope, was a major step in
recognizing the contradictory nature of the NCAA’s “bedrock principle.” The NCAA
asserts “its challenged rules promote consumer demand for its product by preserving its
tradition of amateurism in college sports.”12 Despite this emphatic assertion, the evidence
presented at trial demonstrated that the NCAA’s policies have been inconsistent.13 To the
contrary, the rules regarding amateurism has changed numerous since the NCAA—then
known as the Intercollegiate Athletic Association (IAA)—enacted its first bylaws
regarding amateurism in 1906. It provided that:
No student shall represent a college or university in an intercollegiate game or
contest who is paid or receives, directly or indirectly, any money or financial
concession or emolument as past or present compensation for, or as prior
consideration or inducement to play in, or enter any athletic contest, whether the
10

NCAA, Amateurism, http://www.ncaa.org/amateurism (accessed Oct.
28, 2014).
11
See NCAA Division I Manual, §2.9 The Principle of Amateurism at 4.
12
See Findings of Fact and Conclusions of Law, O’Bannon v. NCAA, 7 F.
Supp 3d, at 999 (N.D. Cal. 2014).
13
Id. at 973-78.
5

said remuneration received from, or paid by, or at the instance of any organization
or faculty of such college or university, or any individual whatever.14
In 1916 the association, now known as the NCAA pivoted again, adopting a new
rule defining an amateur as “one who participates in competitive physical sports only for
pleasure, and the physical, mental, moral, and social benefits directly derived
therefrom.”15 The NCAA altered that definition again in 1922 describing an amateur as
“one who engages in sport solely for the physical, mental or social benefits he derives
therefrom, and to whom the sport is nothing more than an avocation.”16
In 1956, the NCAA began permitting schools to award athletic scholarships to
student athletes.17 This new set of rules provided a national standard governing athleticsbased financial aid and imposed a limit on the size of athletic scholarships that schools
were permitted to offer.18 That limit--now known as a full “grant-in-aid”—precluded
student-athletes from receiving any financial aid beyond that needed for “commonly
accepted educational expenses,” including tuition, room and board, books, and cash for
incidental living expenses.19 The NCAA further revised its definition, and in 1975 the
association removed the cash for incidental expenses from the full grant-in-aid.20
The rules were amended again in 2013 to allow different levels of compensation
for recruits in different sports. Permitting Division I tennis recruits to earn up to ten
$10,000 per year in prize money from athletic events before they enroll in college. Other

14

See O’Bannon, supra note 14, at 973-74.
Id. at 974.
16
Id.
17
Id.
18
Id.
19
See O’Bannon, supra note 14, at 974.
20
Id.
15

6

Division I recruits21, in contrast, remain barred from receiving any prize money in excess
of their actual and necessary costs of competing in an event.22
The range in definitions of the NCAA’s self-described “bedrock principle” of
amateurism clearly demonstrates contradictions. The current concept of amateurism
stands in stark contrast to the definitions set forth in the NCAA’s early bylaws.
Interestingly enough, education—which the NCAA now considers the primary
motivation for participating in intercollegiate athletics—was not even a recognized
motivation for amateur athletes during the years when the NCAA prohibited athletic
scholarships. Despite being a bedrock principle, the concept of amateurism seems to be
quite malleable when examining the evolution of NCAA policies.
B. The NCAA Student-Athlete
One of the first stated purposes in the NCAA Division I Manual is “to initiate …
and improve intercollegiate athletics programs for student-athletes and to promote …
athletics participation as a recreational pursuit.”23 With the amount of money involved in
college athletics, it bears asking the question: are men’s Division I football and basketball
players, truly “student-athletes”? The history of the term, as used by the NCAA, is of
particular interest.
In 1953, in University of Denver v. Nemeth24, the Colorado Supreme Court upheld
a determination by the state Industrial Commission that Ernest Nemeth, a football player
at the University of Denver, was an “employee” within the meaning of the Colorado
Workers’ Compensation statute.25 As a result, the University of Denver was required to
21
22
23
24
25

Id. at 975.
Division I Manual, art. 1.2(a).
University of Denver v. Nemeth, 257 P.2d 423 (Colo. 1953).
Id. at 429-30.
7

provide workers’ compensation for Nemeth’s football related injuries.26 The NCAA,
expressing opposition to the Nemeth decision, responded by coining the term “studentathlete” and requiring its exclusive use thereafter.27 By emphasizing the athletes as
“students” the NCAA sought to diminish any notion that these individuals were
employees.28 The NCAA Executive Director of the time, Walter Byers wrote:
[The] threat was the dreaded notion that NCAA athletes could be identified as
employees by state industrial commissions and the courts.
[T]o address that threat, we crafted the term student-athlete, and soon it was
embedded in all NCAA rules and interpretations as a mandated substitute for such
words as players and athletes. We told college publicists to speak of “college
teams,” not football or basketball “clubs,” a word common to the pros.29

At the time Byers made this statement, universities were committing more and
more resources to recruit top-talented athletes, and full athletic grants-in-aid were
formally sanctioned in 1956.30
In 1963, a California workers’ compensation case once again solicited NCAA
concerns that courts might view athletes as employees, rather than student-athletes.31 In
1960 Edward Gary Van Horn, a scholarship football player at California State
Polytechnic College, died in a plane crash while returning home with his team from a
26

Id.
Walter Byers with Charles Hammer, Unsportsmanlike Conduct:
Exploiting College Athletes, at 69-76 (1995).
28
Id. at 72.
29
Id. at 10, 72.
30
See Byers, supra note 28, at 10, 72.
31
See Van Horn v. Indus. Accident Comm’n, 33 Cal. Rptr. 169, 127-73
(Cal. Ct. App. 1963) (finding contract of employment between a
football player and a state college).
27

8

game.32 The California Industrial Accident Commission subsequently held that Van Horn
had not been an employee of the college; therefore his widow and minor dependent
children were ineligible for death benefits under the state’s workers’ compensation law.33
In Van Horn v. Industrial Accident Commission, 34 the California Court of Appeals
reversed, stating, that “the only inference to be drawn from the evidence is that decedent
received the scholarship because of his athletic prowess and participation. The form of
remuneration is immaterial.”35 Essentially, this case stood for the proposition that a
college football player could have an employment contract with a university whereby the
scholarship served as compensation for athletic services.36
In light of the Van Horn case, the NCAA responded by encouraging member
institutions to use the following language in their athletic grant-in-aid forms:
“This award is made in accordance with the provisions of the Constitution of the
[NCAA] pertaining to the principles of amateurism, sound academic standards,
and financial aid to student athletes… . Your acceptance of the award means that
you agree with these principles and are bound by them.”37
The history and development of the NCAA’s use of the term “student-athlete,”
illustrates how these individuals have been exploited. Today, that exploitation is
magnified given the enormous revenues generated by Division I athletics. Athletes
remain the sole population barred from bargaining for their full market value.
C. Jeremy Bloom: A Case Study in Unreasonable NCAA Restrictions
32

See Van Horn
Id. at 172.
34
33 Cal. Rptr. 169 (Cal. Ct. App. 1963).
35
Id. at 174.
36
Id. at 172-74.
37
See Byers, supra note 28, at 75 (quoting Memorandum from Robert
L. Ray, NCAA President, and Everett D. Barnes, NCAA SecretaryTreasurer, to NCAA membership (Dec. 21, 1964)).
33

9

Jeremy Bloom was quite an elite athlete. He was a member of his state
championship high school football team, a track star, and a skiing star. Additionally, he
excelled in the classroom. His football ability led to a scholarship offer from the
University of Colorado and his skiing skill allowed him to compete for the United States
Olympic Team in the 2002 Olympic Winter Games.38 On top of his athletic success,
Bloom was able to parlay his exposure into a modeling contract with Tommy Hilfiger.39
Unfortunately for Mr. Bloom, the NCAA determined that in order for him to compete as a
collegiate athlete, he must forfeit his modeling and entertainment opportunities.40
Article 12 of the NCAA’s Division I Bylaws governs student-athlete eligibility
and defines amateurism.41 Article 12 states: “Only an amateur student-athlete is eligible
for intercollegiate athletics participation in a particular sport.”42 Jeremy Bloom’s case
offers a prime example of the conflict between the NCAA’s Amateurism Bylaws, and the
NCAA’s stated purpose: betterment of its student athletes. Furthermore, the Bloom case
demonstrates that NCAA Amateurism Bylaws may, actually act to the detriment of a
student athlete.
One of the primary impacts of the Article 12 Bylaws concerning amateurism is
the restriction it places on student-athletes from being paid to promote commercial

38

See Verified Complaint for Declaratory and Injunctive Relief P 11,
Bloom v. Nat’l Collegiate Athletic Ass’n (20th Dist. Ct. Colo. Aug. 15,
2002) (No. 02-CV-1249) [hereinafter Bloom’s Complaint].
39
Bloom’s complaint at 15
40
See Bloom’s Complaint, supra note 39 at 52.
41
See, e.g., NCAA, NCAA Division I Manual art. 12, at 57-73 (2013-14)
(setting forth the bylaws concerning amateurism for Division I, which is
the same for Divisions II, & III).
42
Elibiligty for Intercollegiate Athletics. Only an amateur studentathlete is eligible for intercollegiate athletics participation in a
particular sport. See NCAA Bylaws §12.01.1.
10

products or services.43 Certain athletes have been allowed to preserve their status as an
amateur in one sport while competing as a professional in another, but they are still
bound to abide by the prohibition on sponsorship, posing an issue for athletes whose
secondary sport is not a traditional professional sport.44 The NCAA ruled in Bloom’s
case that since he did not receive a salary, his endorsement deals and prize money
violated the provision prohibiting a student-athlete to make money based on their athletic
ability.45 Bloom, whose success on the slopes earned him endorsements from Oakley,
Under Armour and Dynastar skis, reflected on the limitations placed on him by the
NCAA’s Amateur Bylaws: “The bottom line is I just want to ski and have a shot at Italy
in 2006 and play football. This is about me being able to pay for my [ski] season and I
can’t do that without my endorsements.”46
Bloom majored in communications while attending the University of Colorado.
Stephen B. Jones, Assistant Dean of the School of Journalism and Mass
Communications, stated hat the school “encourages all” of its students “to gain

43

Nonpermissible. Advertisements and Promotions After
Becoming a Student Athlete. After becoming a student-athlete, an
individual shall not be eligible for participation in intercollegiate
athletics if the individual: (a) Accepts remuneration for or permits the
use of his or her name or picture to advertise, recommend or promote
directly the sale or use of a commercial product or service of any kind;
or (b) Receives remuneration for endorsing a commercial product or
service through the individual’s use of such product or service. See
e.g., NCAA Bylaws §12.5.2.1(a)(b).
44
See Adam Thompson, Bloom Sues NCAA; Skier Wants to Play for
Buffs, Denver Post, July 26 2002, at D-02.
45
Shane McCammon, The Straight Line: Trouble with NCAA Unfairly
Continues to Bloom, Media News, at
http://www.jeremybloom.com/ncaa.htm (Oct. 28, 2014).
46
Bruce Feldman, Bloom: I Feel Like I’m Fighting for My Freedom,
ESPN: The Magazine, Aug. 1, 2002,
http://espn.go.com/ncf/news/2002/0801/1412907.html.
11

professional broadcast experience.”47 Due to Bloom’s success in skiing, he made
television appearances, and was offered a contract to host a show on Nickelodeon.48
These types of opportunities were precisely what the school encouraged students to
pursue, but due to NCAA Bylaws, Bloom was forced to make a difficult choice between
these career-defining opportunities or to continue playing college football. Judge Hale,
the presiding Boulder County District Court judge, recognized the NCAA’s authority
regarding Bloom’s situation, but also expressed his view that the result was unreasonable:
Here the NCAA had an opportunity to recognize and support a World Cup
champion and an Olympic competitor by supporting his future success—by
leaving doors open rather than closing them… . Mr. Bloom is truly an amateur
athlete in football with only dreams of even receiving playing time… . The
NCAA is missing an opportunity to promote amateurism on the one hand, and the
opportunity to support the personal and football [and] non-athletic growth of a
student athlete on the other. Mr. Bloom is the epitome of an amateur who wishes
to live out his dream of playing college football without abandoning the once-ina-lifetime future opportunities he has. I would like to [see him] live out those
dreams. I would like to be able to find a legal basis for me to be able to enjoin the
NCAA. However, I cannot find a sound legal basis that would allow me to [do
so].49
College athletics is a commercialized industry, one in which everybody, except
the student-athlete is able to cash in on their fair market value. Jeremy Bloom was a
world-class skier, who happened to be a college football player as well. Unfortunately
this young man was forced to choose between college athletics, which the NCAA
describes as “an integral part of the educational program and the athlete is an integral part
of the student body…”50 and commercial opportunities. There was no equitable
47

See Bloom’s Complaint, supra note 39 at 41.
Id.
49
See Bloom v. Nat’l Collegiate Athletic Ass’n, No. 02-CV-1249, slip op.
at 7 (20th Dist. Ct. Colo. Aug. 15, 2002).
50
Basic Purpose. The competitive athletics programs of member
institutions are designed to be a vital part of the educational system.
A basic purpose of this Association is to maintain intercollegiate
48

12

justification to force Bloom to make this choice, but the NCAA prevailed once again on
the old maxim, a rule is a rule and it must be followed, even if that rule is fundamentally
unfair.
D. Johnny Manziel NCAA Investigation
College athletics is a stage that allows these amateur athletes to gain broad
exposure and subsequently build their brand. College athletes can find themselves
gaining celebrity status. While it is true that the NCAA provides these student athletes
with a platform to showcase their skills, the players’ brand does not have very much
value, unless that player performs at a very high level. A recent example of a college
athlete earning pseudo-celebrity status is former Texas A&M, Quarterback, Johnny
“Football” Manziel. He enjoyed a historic freshman season, becoming the first freshman
player to win the Heisman Trophy.51 Manziel became a highly recognizable figure. One
might say that Manziel had built quite a brand for himself. Unfortunately due to NCAA
restrictions, Manziel was prohibited from profiting off of his own brand and fame.
In August of 2013, shortly before the start of Manziel’s sophomore season, the
NCAA began investigating allegations levied against Manziel.52 Three sources stated
Manziel signed photographs, footballs, helmets and other items at the request of an
autograph broker.53 Unfortunately for Manziel, some of the items which bore his
athletics as an integral part of the educational program and the athlete
as an integral part of the student body and, by so doing, retain a clear
line of demarcation between intercollegiate athletics and professional
sports. See e.g., NCAA Bylaws, Article 1, §1.3.1.
51
Associated Press, Johnny Manziel wins Heisman, ESPN College
Football, http://espn.go.com/college-football/story/_/id/8727326/johnnymanziel-texas-aggies-wins-2012-heisman-trophy (accessed Oct. 15,
2014).
52
Darren Rovell and Justine Gubar, Sources: NCAA Investigating
Manziel, ESPN Outside the Lines, (accessed Oct. 15, 2014).
53
Id.
13

signature ended up on eBay.54 Manziel’s athletic eligibility was in serious jeopardy. The
NCAA suspended Manziel for one half of one game55, because the conduct at issue
violated NCAA bylaw §12.5.2.2 which states:
If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts,
sweatshirts, serving trays, playing cards, posters) or is used to promote a
commercial product sold by an individual or agency without the student-athlete’s
knowledge or permission, the student-athlete (or the institution acting on behalf of
the student-athlete) is required to take steps to stop such an activity in order to
retain his or her eligibility for intercollegiate athletics.56
The NCAA could not find explicit proof that Manziel was paid by memorabilia
dealers to sign his name on pictures of himself. Rather the NCAA relied on this
provision because it was obvious that the thousands of items he autographed were going
to be sold. The message from the NCAA was clear. While a student athlete cannot profit
off his or her own image and likeness, there is no similar restriction on the university
from doing so.
Jay Bilas, a former basketball player at Duke University, Duke Law graduate and
ESPN College Basketball analyst, saw this situation as a prime opportunity to expose the
contradictory nature of the NCAA with regard to profiting off of a student athletes image
or likeness. Bilas has become the preeminent critic of the NCAA, and uses his social
media platforms to criticize the NCAA. Bilas sharply criticized the NCAA for selling the
jerseys of popular college basketball and football players on its ShopNCAAsports.com

54

Id.
ESPN.com news services, Half-game penalty for Johnny Manziel,
http://espn.go.com/college-football/story/_/id/9609389/johnny-manzieltexas-aggies-suspended-1st-half-season-opener-rice-owls (accessed
Oct. 12, 2014).
56
See NCAA Division I Manual, Use of a Student-Athlete’s Name or
Picture Without Knowledge or Permission, 12.5.2.2 at 71.
55

14

website.57 Bilas began searching the NCAA Shop website for specific player names,
starting with aforementioned Texas A&M quarterback Johnny Manziel and experimented
with other notable players, including USC wide receiver Marqise Lee, Louisville
quarterback Teddy Bridgewater and Kentucky basketball player Nerlens Noel.58
Those search results should have yielded nothing, as NCAA rules prohibit adding
names to jerseys or selling merchandise based around an individual player 59 (The NCAA
has for years argued that it’s a mere coincidence that all jerseys correspond with notable
players’ numbers). Bilas’ search for specific players took him straight to the pages where
the players’ jerseys—or, in NCAA parlance, the jerseys that just happen to be from their
team and feature their numbers—were for sale.60 Bilas promptly posted the results to his
Twitter account and received an almost immediate response from the NCAA itself.
Tellingly, after Bilas posted his results on Twitter, the NCAA removed the search function
from its website.61 Even further, NCAA president Mark Emmert announced that the
NCAA would stop selling “individual jerseys and other team-related memorabilia on its
website, calling the practice a ‘mistake’ and admitting others might view it as
hypocritical.”62
The Johnny Manziel autograph scandal, and the Jay Bilas jersey search incident,
has illuminated the contradictory nature of the NCAA policies. The NCAA seeks to
maximize revenues generated in college sports while at the same time preventing student57

Mark Schlabach, NCAA Puts End to Jersey Sales, ESPN College Sports,
(Aug. 9, 2013).
58
Id.
59
See NCAA Division I Manual, Improper Use of Student-Athlete’s
Name or Picture, supra note 59, at 71.
60
See Schlabach, supra note 60.
61
62

Id.
Id.
15

athletes from participating in commercial ventures. Since 2006, the NCAA’s aggregate
revenues have continued to rise and today, the total value of the college sports enterprise
is estimated to be worth more than $11 billion.63

Part II
A. O’Bannon v. NCAA
The rising levels of revenue and the lack of a convincing justification to prevent
the student-athletes from sharing in this increase in revenue has led to high profile
litigation in recent years. Most recently the class action suit, involving former NCAA
Champion and UCLA basketball star, Larry O’Bannon has garnered significant media
attention. While the decision may not have had the game-changing impact many had
anticipated, the opinion called into serious question the NCAA’s oft relied upon
amateurism defense, and other arguments in support of the current model.
63

Marc Edelman, The Future of Amateurism After Antitrust Scrutiny:
Why a Win for the Plaintiffs in the NCAA Student-Athlete Name &
Likeness Licensing Litigation Will Not Lead to the Demise of College
Sports, 92 Or. L. Rev. 1019 at 1031 (2014).
16

The class action suit focused on certain NCAA rules that prohibit current student
athletes from receiving compensation from their schools or outside sources for the use of
their names, images, and likenesses in live game telecasts, videogames, game rebroadcasts, advertisements and other footage.64 The plaintiff’s also challenged NCAA
rules that prohibit any student-athlete from receiving “financial aid based on athletics
ability”65 that exceeds the value of a full grant-in-aid. The NCAA also prohibits any
student athlete from receiving compensation from outside sources based on his athletic
skills or ability and are similarly barred from endorsing any commercial product or
service while they are in school, regardless of whether or not they receive any
compensation to do so.66
The decision rejected the NCAA’s theories about the connection between
amateurism, and name and likeness rights. Judge Wilken was not persuaded by the
NCAA’s educational and policy arguments about denying student-athletes all
compensation for name and likeness rights.67 She also rejected NCAA claims that college
basketball and football players could seek alternate career paths through the Arena
Football League and the NBA Developmental League. As a result of this ruling, football
and men’s basketball players will soon obtain a new type of compensation, and in that
regard, the outcome is certainly desirable for college athletes, but in my opinion, is not
enough. Wilken’s decision would allow schools to place at least $5,000 per year per
athlete in trust, which would then be paid to the athlete after he or she is finished their
college career.68 While the ruling doesn’t require schools to pay its athletes, it means the
64
65
66
67
68

See, O’Bannon, supra note 14 at 955.
Id.
See NCAA Division I Manual, article 12 at 58-73.
See O’Bannon, supra note 14 at 974-84.
See O’Bannon, supra note 14 7 at 1008.
17

NCAA cannot prevent its members from doing so. This solution offered by Judge Wilken
is a far cry from a free-market system where athletes can cash in on their marketability.
But despite that limitation, Judge Wilken, in her 99-page opinion, ruled that
compensating college athletes would not lead to a “doomsday scenario.”
The injunction issued by Wilken has two components69 A) the NCAA cannot cap
the amount of a scholarship below the actual cost of attendance; and B) the NCAA cannot
ban schools from creating a trust fund to pay players equal shares for use of their name
and likenesses. With regard to the trust fund, the NCAA and schools are allowed to cap
the amount, but that amount cannot be lower than $5,000 for every year an athlete
remains academically eligible. Furthermore, the schools are not permitted to conspire to
fix these amounts at a set price, thus creating competition. To use a sports analogy, the
injunction issued by Wilken was more of a body blow than a knockout punch as the
$5,000 number certainly could have been higher. Additionally, the injunction does not
allow the athletes to receive money for endorsements and it does not prevent the NCAA
from creating rules that prohibit athletes from selling their name and likeness rights
individually.
Legally, the schools are not required to provide this new form of compensation.
Wilken indicated in her opinion that she does not believe that any school’s athletic
program would be “driven to financial ruin or would leave Division I” if other schools
paid their players. Judge Wilken continued, “[t]he high coaches’ salaries and rapidly
increasing spending on training facilities at many schools suggest that these schools
would, in fact, be able to afford to offer their student-athletes a limited share of the

69

Id. at 1008-09.
18

licensing revenue generated from their use of the student-athletes’ own names, images,
and likenesses.”70
Addressing the Arguments
1. NCAA’s Argument that Revenue Sharing Would Destroy Competitive Balance
The NCAA has long relied upon their principle of amateurism to defend their
current model, and has consistently been successful in asserting amateurism as a defense
to claims against it. The argument is that amateurism is necessary to preserve the
integrity of college athletics and the rules that prohibit its member institutions from
sharing revenues with student athletes are both precompetitive and necessary for the
maintenance of college athletics because they preserve amateurism and thereby maintain
competitive balance. The supposed logic is that if colleges could pay players, only the
richest schools could afford the top talent and competitive balance in college athletics
would be destroyed.
The NCAA’s competitive balance argument is unpersuasive for four different
reasons: (a) the college sports industry already lacks year-to-year competitive balance; (b)
lack of competitive balance does not translate into diminished attendance; (c) college
sports fans do not truly care if the athletes are unpaid and (d) there are much less
restrictive ways to maintain competitive balance. Let us consider each of these
arguments.
A. College Sports Already Lacks Year-to-Year Competitive Balance
Promoting competitive balance is a major concern of the NCAA. In the NCAA
Division I Bylaws, three specific provisions highlight this concern:

70

See O’Bannon, supra note 14 at 1004.
19

• 2.10 The Principle of Competitive Equity: The structure and programs of the
Association and the activities of its members shall promote opportunity for equity
in competition to assure that individual student-athletes and institutions will not
be prevented unfairly from achieving the benefits inherent in participation in
intercollegiate athletics.
• 2.11 The Principle Governing Recruiting. The recruiting process involves a
balancing of the interests of prospective student-athletes, their educational
institutions and the Association’s member institutions. Recruiting regulations
shall be designed to promote equity among member institutions in their recruiting
of prospective student-athletes and to shield them from undue pressures that may
interfere with the scholastic or athletics interests of the prospective studentathletes or their educational institutions.
• 2.12 The Principle Governing Eligibility. Eligibility requirements shall be
designed to assure proper emphasis on educational objectives, to promote
competitive equity among institutions and to prevent exploitation of studentathletes.
In 2006, New Mexico State professor of economics, Jim Peach conducted an
analysis as to how successful the NCAA has been in promoting competitive balance.71
The findings produced by the report were telling. Peach’s analysis used the 1950 season
as a starting point, because it was during this time that the NCAA made its first serious
attempts to impose academic standards and enforced eligibility requirements and
financial aid limitations.72 Peach did not limit his study to men’s basketball and football.
He examined the competitive balance in women’s basketball, men’s and women’s
volleyball, baseball, and softball.73
According to Peach’s study, the historic distribution of the top eight rankings74
among Division I college football teams reveals a high concentration among winners in
71

Jim Peach, College Athletics, Universities, and the NCAA, 44. Soc. Sci.
J. 11, 13 (2007).
72
Id.
73
Id.
74
“The top eight is used here because it is currently the top eight
teams that are selected to participate in Bowl Championship Series
games.”
20

Division I Sports contests.75 The study showed that between 1950 and 2005, just five
college football teams have accounted for a quarter of all top eight finishers, and just
twenty-two teams have accounted for three-quarters of all top eight finishers.76 The
University of Oklahoma, a perennial college football powerhouse, has finished in the top
eight on twenty-nine separate occasions from 1950 to 2005.77 Meanwhile, numerous
Division I college football teams have not once finished in the top eight over the fiftyfive year period.78
The same general conclusions regarding lack of competitive balance also apply to
men’s college basketball. Between 1950 and 2005, four men’s Division I college
basketball teams represented nearly a quarter of all Final Four appearances, and thirteen
colleges represented half of all appearances.79 Two traditional men’s college basketball
powers, the University of North Carolina (UNC) and the University of California-Los
Angeles (UCLA) have made the Final Four on fifteen occasions.80 While these two
schools have enjoyed tremendous success, the overwhelming majority of the three
hundred and fifty one schools that comprise Division I basketball, have never made a
Final Four appearance.
I decided to build upon Professor Peach’s analysis by looking at Final Four teams
from 1979 to 2014. Across these thirty-six seasons, forty-seven different schools made
an appearance in the Final Four. Put another way, out of the three hundred and fifty-one
schools that comprise Division I men’s basketball, only about 7.5% of those schools have
75
76
77
78
79
80

See Peach, supra note 97 at 13.
Id.
Id.
See Peach, supra note 97 at 13.
Id.
Id.
21

advanced all the way to the Final Four. Four teams reach the Final Four each season, and
over thirty-six seasons that amounts to a total of one hundred and forty-four available
slots. Of those one hundred and forty-four slots, seven different schools have accounted
for fifty-seven of them. These schools are the University of North Carolina with eleven
appearances, Duke University also with eleven, the University of Kansas with eight, the
University of Kentucky with eight, Michigan State University with seven, the University
of Louisville with seven, and UCLA with five appearances.
Put another way, these seven member institutions, which comprise approximately
two percent of all Division I men’s basketball programs, have accounted for nearly forty
percent of the one-hundred and forty-four Final Four slots. The one common
denominator of all of these schools is that each is in the top twenty in terms of men’s
basketball related expenses.81 It should come as no surprise that the institutions that
devote the most resources to college basketball see the most success, and the lack of
competitive balance is aptly demonstrated by these statistics. For these reasons, any
argument that a change in the current NCAA amateur model would have anti-competitive
effects is moot because the numbers show that division I basketball has historically been,
and will continue to be dominated by those schools with the most resources.
For all the buzz surrounding “Cinderella stories” in the annual March Madness
tournament, the reality is, these “Cinderella” schools are almost always vanquished by
the Goliaths of Division I college basketball, and the current model of amateurism has
done little to change that. The findings concerning the results in the March Madness
tournament are particularly surprising for a few reasons. As a single elimination contest,
81

Basketball State, Division I Teams By Men’s Basketball Expenses
(2013), http://www.bbstate.com/info/teams-hoopsbudget (accessed
Oct. 15, 2014).
22

one would anticipate a great deal of variance with respect to outcomes. Despite that, the
top schools are consistently able to reach the elusive Final Four. The imposition of
NCAA rules and restrictions regarding eligibility, financial aid and amateurism appear to
have made a negligible impact on the playing field. Professor Peach’s empirical analysis
shows that there is no demonstrable improvement in competitive balance in major college
athletics over the last half-century.82

Rottenberg: The Baseball Players’ Labor Market
The 1956 publication of Simon Rottenberg’s The Baseball Players’ Labor
Market83 began the serious academic study of sport. Rottenberg’s thesis provides a
striking parallel to the current issues surrounding the NCAA. Rottenberg discusses a
form of the invariance principle, which postulates that the specific rule of law will not
affect the actual behavior of the people subject to that rule of law.84 Rottenberg
hypothesized, with regard to the market for professional baseball players, that the players
would come to play on the teams that valued their abilities the most,85 regardless of team
revenues86 and regardless of the rules of the labor market.87 Rottenberg’s work is
especially relevant to the arguments posited by this paper, because like the historic labor
market he analyzes, the contemporary market for labor in college athletics is similarly
82

See generally, Peach, supra note 97.
Simon Rottenberg, The Baseball Players’ Labor Market, 64 J. Pol.
Econ. 242 (1956), available at
http://www.vanderbilt.edu/econ/faculty/Vrooman/rottenberg.pdf
83

84
85
86
87

Id.
Id. at 256.
Id. at 254.
Id. at 258.
23

regulated by restrictions on compensation and movement. Despite being published over
half a century ago, Rottenberg’s analysis provides valuable insight into the question of
whether compensating student-athletes beyond the value of a scholarship will result in a
noticeable change in the composition of teams.
The issue of competitive balance, sometimes referred to as parity, has been an oft
relied upon defense for the NCAA. Every professional sports league seeks to promote
competitive balance, and there are various ways to do so. Some commonly employed

24

methods to ensure competitive balance include revenue sharing,88 luxury taxes,89
imbalanced schedules,90 drafting newcomers in reverse order of finish,91 and salary caps.92
Many of the above-mentioned methods were not in existence at the time of
Rottenberg’s writing, so he turned his attention to baseball’s now infamous reserve
system. The reserve system was an attempt by major league baseball to maintain
88

See Justin R. Hunt, To Share or Not to Share: Revenue Sharing
Structures in Professional Sports, 13. Tex. Rev. Ent. & Sports L. 139,
139 (2012) (“Every league [NFL, MLB, NBA, and NHL] acknowledges
that the purpose of a revenue sharing agreement is to allow a closer
range of payroll spending that might otherwise not be accomplished,
preventing large market teams from controlling the allocation of high
priced free agents.”).
89
E.g., Eric Princus, Lakers Limited by Luxury Taxes, L.A. Times (Aug. 8,
2013), http://articles.latimes.com/2013/aug/08/sports/la-sp-lakersfinances-20130809 (“Each year the NBA sets a spending limit that
triggers the luxury tax. In eight of the last ten seasons, the Lakers
have willingly crossed that line. The penalty has been a dollar-fordollar tax, costing the Lakers a cumulative $113.7 million since the
2002-03 season.”
90
See, e.g., Peter Schmuck, Baseball’s Unbalanced Schedules Don’t
Lead to Fair Play, Baltimore Sun (Mar. 7, 2010),
http://articles.baltimoresun.com/2010-03-07/sports/balsp.schmuck07mar07_1_major-league-baseball-schedule-andy-macphail
(arguing against unbalanced schedules, where the Baltimore Orioles,
for example, have to play the New York Yankees and Boston Red Sox a
disproportionate amount of games per year.).
91

See Aaron Gordon, The Myth of Competitive Balance, Sports on Earth
(Aug. 8, 2013), http://www.sportsonearth.com/article/56193798/
(“Similarly, reverse-order drafts are often—but not unanimously—
believed to increase competitive balance, although to what degree is
often contested. This is because—unlike revenue sharing which simply
shuffles money around—drafts reallocate talent.”).
92
See, e.g., 2013 NFL Salary Cap Increases to $ 123 Million, USA Today
(Feb. 28, 2013),
http://www.usatoday.com/story/sports/nfl/2013/02/28/2013-nfl-salarycap-increases-to-123-million/1955515/ (detailing changes to the NFL
collective bargaining agreement, where the main labor dispute was
“how to divide the more than $ 9 billion in annual league revenues, a
figure that will keep rising, particularly once the NFL’s new television
contracts kick in for the 2014 season.”).
25

competitive balance by making its player contracts automatically renewable at the
discretion of the team.93 The system also prevented players who played to the completion
of their un-renewed contract from playing with other teams, and the league disqualified
any team that signed such a player from participation in the league.94 The system
effectively gave major league baseball a monopoly on the players’ services and on each
team’s schedule, as the league had the power to preclude players or teams from
competing in extra-league contests.95
While the reserve system clearly restricted the freedom of labor, it was ardently
defended as:
“…necessary to ensure an equal distribution of playing talent among opposing
teams; that more or less equal distribution of talent is necessary if there is to be
uncertainty of outcome; and that uncertainty of outcome is necessary if the
consumer is to be willing to pay admission to the game.”96
Without this reserve clause, or another mechanism to ensure fair distribution of
talent among the teams, “the rich clubs would outbid the poor for talent, taking all the
competent players for themselves and leaving only the incompetent for the other
teams.”97 This argument often recited by supporters of the NCAA. Yet, Rottenberg had
his doubts, and postulated that despite the limitations provided for by the reserve clause,
the richer teams still prevailed in attracting the more talented players.98 The wealthier
93

See generally Ed Edmonds, Arthur Soden’s Legacy. The Origins and
Early History of Baseball’s Reserve System, 5 Alb. Gov’t L. Rev. 38
(2012) (detailing the long history of baseball’s reserve system).
94
See Rottenberg, supra note 75 at 245-46.
95
Id.
96
Id. at 246.
97
Id.
98
Id. at 247 (pointing to the New York Yankees “fortune” and
overwhelming success when compared to other teams. For example,
“in the period 1920-51 the New York Yankees led the American League
in eighteen years, and the Chicago White Sox in none.”).
26

teams, such as the New York Yankees, were able to invest heavily in developing young
talented replacements in their minor league systems, and could also offer coaches and
players higher salaries than other teams; all of this gave the teams with more resources a
significant competitive edge.99 Simply put, “the teams that were prepared to outbid
others for players [had] not been frustrated by the [reserve] rule.”100
It was Rottenberg’s next comment that was truly prescient: “It will also be shown
that a market in which freedom is limited by the reserve rule cannot be expected to
equalize the distribution of players among teams more than a market in which there is
perfect freedom.”101 Rottenberg’s opinion was based in economic reality, specifically the
law of diminishing returns102 and diseconomies of scale.103 The reasoning is that at some
point, it is possible for a team to actually have too many talented players, and necessarily,
some high-quality players will be thrust into inferior roles as bench players or even minor
leaguers. These high caliber players relegated to inferior roles will desire to move to
teams where their abilities can be maximized and thus they can be more valuable. With
regard to the law of diminishing returns, employing highly paid players in inferior roles,
will reduce team revenues because each win will cost more, and thus the return on
investment for each player is diminished.104
99

See Rottenberg, supra note 75 at 243.
Id. at 247.
101
Id. at 247-48.
102
Id. at 254.
103
Id.
104
See, e.g., MLB Cost Per Win (By Season): 2013 MLB Season,
Sporting Charts, http://www.sportingcharts.com/mlb/stats/mlb-cost-perwin-by-season/2013 (last visited Oct. 28, 2014) (comparing the New
York Yankees payroll, which cost $2,92,182 per win, yet the team
missed the playoffs; and the Houston Astros payroll, which cost only
$432,600 per win for the league’s worst record. The World Series
Champion Boston Red Sox, spent considerably less at $1,553,149 per
win; while the Oakland Athletics managed to win 96 games at a cost of
100

27

Rottenberg’s study provides valuable insight as to what effect a quasi-free market
system would have on the NCAA. As Rottenberg alluded to, the richer teams will always
be willing to outbid the teams with less wealth. Baseball attempted to ensure a level
playing field with the reserve system, but as Rottenberg proved, that system did little to
promote competitive equity. The same can be concluded about the restrictions on
compensating student-athletes beyond the value of a scholarship. Concerns that a change
in the system will only lead to a wider competitive gap are misplaced, because currently
the wealthiest schools dominate the less wealthy schools in terms of attracting top-talent
and winning championships. It is tenuous at best, to argue that reforming the system
would produce significant anti-competitive effects, as the current system already leads to
a lack of competitive equality.
B. Lack of Competitive Balance Does not Lead to Poor Attendance
Supporters of the current NCAA model often argue that if schools were able to
compensate student athletes beyond the value of a scholarship, it would lead to less parity
in college sports, and as a result fewer people would attend the games because one team
would be at such a competitive disadvantage. This argument is not reflected by current
statistics on game attendance. To the contrary, some of the most highly attended college
football games during the 2013 season were games in which attendees should have
reasonably expected one team to defeat the other by a massive margin.105 For example,
103,556 fans were in attendance at Ohio Stadium on September 21, 2013, when Ohio
State University bested Florida A&M with a score of76-0.106 Similarly, 101,821 fans
$631,922 per win.).
105
See NCAA College Football Scoreboard, ESPN.com,
http://espn.com/college-football/scoreboard (last visited Oct. 31, 2014).
106
See Box Score: Florida A&M vs. Ohio State, ESPN.com (Sept. 21,
2013, 12:00 PM), http://espn.com/ncf/boxscore?gameId=332640194.
28

packed Bryant-Denny Stadium in Tuscaloosa, Alabama to witness a 59-0 final score in
which the home team, Alabama, beat Texas A & M.107
On the other side of the coin, a few of the highest ranked college football teams
actually had better home attendance for wins against unranked opponents than those for
close wins against highly-ranked, seemingly competitive opponents in the 2013 season.
For example, the University of Oklahoma football team had 84,776 fans in attendance for
a 38-30 victory over conference rival Iowa State.108 Similarly, the UCLA football team
had higher home attendance for its 37-10 home victory against the unranked University
of California-Berkeley than for its 38-33 loss to a higher ranked opponent, Arizona State
University.109 There are plenty of other examples to refute the claim by the NCAA that
their current system leads to more competitive games and thus higher attendance.
There are a few problems with this competitive balance argument oft relied upon
by NCAA supporters. The argument essentially posits that if the current NCAA system is
changed where schools are permitted to offer potential student-athletes compensation
beyond that of a scholarship, there will be no competitive balance. One issue with this
argument is that there is very little, if any factual evidence to support it. The current
reality is that the big schools already attract the top talent, and the smaller schools are left
to find those overlooked, “diamonds in the rough,” so to speak. There is no evidence to
107

See Box Score: Texas A&M vs. Alabama, ESPN.com (Oct. 18, 2014,
3:30 PM), http://scores.espn.go.com/ncf/boxscore?
gameid=400548364 .
108
See Box Score: Iowa State vs. Oklahoma, ESPN.com (Nov. 16, 2013
12:00 PM), http://espn.go.com/ncf/boxscore?gameId=333200201
(listing spectator attendance at 84,272).
109

See Box Score: Arizona State vs. UCLA, ESPN.com (Nov. 23, 2013,
7:00 PM), http://espn.go.com/ncf/boxscore?gameId=333270026 (listing
spectator attendance at 70,131).
29

suggest that providing compensation beyond the value of a scholarship would
dramatically alter what is already happening.
Not all Division I programs are created equal. They are sorted into different
conferences across the nation. There are the so-called “Power Five” conferences, which
include the Atlantic Coast Conference (ACC), the Big Ten, the Big 12, the Pacific-12,
and the Southeastern Conference (SEC).110 These five conferences consist of a total of
sixty-four schools out of a total of three hundred and fifty-one Division I institutions.111 In
other words these schools compose approximately 18% of the Division I schools. The
schools in the Power Five conferences consistently attract the most coveted recruits,
leaving the other two hundred and eighty-seven schools with far fewer players to choose
from.
To illustrate the lack of competitive balance promoted by the current system, and
how it would not be seriously impacted by allowing schools to provide compensation
beyond the value of a scholarship, I have tracked where the top football and basketball
recruits have chosen to go to school, per ESPN.com’s recruiting database. The results
support my argument that there is already a serious lack of competitive balance with the
current system in place, and that modifying it to impose less restrictions on studentathletes would not have significant anti-competitive effects.
For the high school class of 2014 I examined the top 300 rated recruits per
ESPN.com’s recruiting database.112 Of these three hundred soon to be college freshmen,
110

Jon Solomon, NCAA adopts new Division I model giving Power 5
autonomy, http://www.cbssports.com/collegefootball/writer/jonsolomon/24651709/ncaa-adopts-new-division-i-model-giving-power-5autonomy (accessed Oct. 20, 2014).
111
Id.
112
2014 ESPN 300, Recruiting Database,
http://www.espn.go.com/college30

a grand total of nine chose to accept a scholarship from a non-power five school.113 The
number is somewhat skewed, because four of these three hundred recruits accepted
scholarship offers from the private catholic college, the University of Notre Dame, a
noted athletics powerhouse.114 The 2013 numbers were equally unbalanced, with the vast
majority of the top three hundred recruits flocking to the schools in the power-five
conferences. Finally, of the three hundred recruits in the class of 2013, a grand total of
seven signed with schools outside of the power-five conferences. 115 In total, of the top
six hundred football recruits from the classes of 2014/2013, a grand total of 14
(approximately 5%) chose to accept scholarships from non power-five conference
schools.
The numbers in Division I basketball are slightly less skewed, but still show
overwhelmingly that the highest rated recruits consistently flock to the bigger, wealthier
schools from the power-five conferences. A college basketball roster is roughly one-fifth
the size of a college football roster, so for that purpose I have limited my examination to
the top fifty college basketball recruits per ESPN.com’s recruiting database. For the class
of 2014, only six of the top fifty recruits chose to accept a scholarship offer from a nonpower five school.116 Two recruits elected to attend Seton Hall, a program that has the
sports/football/recruiting/playerrankings/_/class/2014/order/true
(accessed Oct. 28, 2014).
113
Id.
114
Notre Dame is technically not a member of the power five
conferences, as it is classified as an independent for football. Despite
that, Notre Dame has one of the larger athletic budgets right on par
and ahead of many of the power-five schools.
115
2013 ESPN 300, Recruiting Database, http://espn.go.com/collegesports/football/recruiting/playerrankings/_/class/2013/order/true
(accessed Oct. 28, 2014).
116
2014 ESPN 100, Recruiting Database, http://espn.go.com/collegesports/basketball/recruiting/playerrankings/_/class/2014/order/true
(accessed Oct. 28, 2014).
31

thirtieth highest basketball budget in Division I men’s basketball117. Three more recruits
chose to attend the University of Nevada at Las Vegas, a program that is number seventythree in terms of basketball related expenses118 and one accepted an offer from Virginia
Commonwealth University, which ranks at number seventy119 in Division I men’s
basketball expenses.
The top fifty recruits for the class of 2013 actually showed more balance, in terms
of players accepting scholarships from non power-five schools.120 In total, ten of the top
fifty recruits signed with a non-power five school.121 However, the numbers reinforce my
previous contention that the top players flock to the wealthier schools that can provide a
more attractive compensation package in terms of facilities, coaching, etc. When taking a
closer look at where these athletes signed, it becomes clear that the wealthier schools
dominate in terms of attracting talent. Marquette University has the sixth highest
budget122 in Division I men’s basketball and they signed two top fifty recruits from the
class of 2013. The University of Memphis, which has the eleventh highest budget123
secured three of the top fifty recruits. Southern Methodist University signed one top fifty
player and is thirty-first in basketball related expenses.124 The University of Cincinnati

117

Basketball State, Division I Teams By Men’s Basketball Expenses
(2013), http://www.bbstate.com/info/teams-hoopsbudget (accessed
Oct. 15, 2014).
118
Id.
119
See Division I Teams By Men’s Basketball Expenses 2013, supra
note 107.
120
2013 ESPN 100, Recruiting Database, http://espn.go.com/collegesports/basketball/recruiting/playerrankings/_/class/2013/order/true
(accessed Oct. 28, 2014).
121
Id.
122
See Division I Teams By Men’s Basketball Expenses, supra note 107.
123
Id.
124
Id.
32

signed one top fifty player and has a top fifty basketball budget.125 Finally, Brigham
Young University, with its sixty-third ranked budget126 signed two top fifty recruits. In
terms of power-five versus non power-five conferences, Division I men’s basketball
appears more balanced than Division I football. However, the one common thread
between both sports is that the highest rated recruits overwhelmingly choose large
schools, with significant athletic budgets.
An examination of any more classes is tedious, as the results overwhelmingly
show that the top-level recruits sign with schools from the power-five conferences,
leaving the smaller, less endowed schools to compete for the rest. It is difficult to
conclude thusly that allowing schools to provide compensation to student athletes beyond
the value of a scholarship would have significant anti-competitive effects and widen the
gap between the power-five schools and the non power-five. That is concrete, statistical
evidence that the current model does little, if anything to promote competitive balance
with regard to Division I football.
C. Would less people actually watch if college athletes were able to receive
compensation beyond the value of a scholarship?
This assertion has been a go-to argument for NCAA supporters for years. During
the O’Bannon trial, the NCAA sought to establish the important purposes served by their
restrictions by arguing that they increase consumer interest in division I football and
basketball.127 In an attempt to provide support for this assertion, the NCAA presented
testimony from Dr. J. Michael Dennis, who conducted a survey of consumer attitudes

125
126
127

Id.
Id.
See O’Bannon, supra note 14.
33

concerning college sports in 2013.128 According to the court, the most relevant questions
in the survey asked participators “whether they would be more or less likely to watch,
listen to, or attend college football and basketball games if student athletes were paid.”129
The answers to these surveys were not persuasive in the view of the court, as the court
stated that the surveys “still do not credibly establish that the specific rules challenged
here contribute to consumer demand.”130

III. Potential Solution
The NCAA Should Embrace the Olympic Model of Amateurism

128
129
130

Id.
Id.
See O’Bannon, supra note 14.
34

A viable solution for the NCAA is to move toward the Olympic model of
Amateurism. The most practical solution to the pay-for-play issue is to continue to
prohibit student-athlete pay but to re-examine and expand the terms surrounding
“amateurism” and to allow student-athletes to profit off their image and likeness. Under
the Olympic model, athletes would be allowed to take control of their own marketing
rights: to hire agents, sign endorsement deals and engage in other “entrepreneurial”
activities.131 Embracing the Olympic Model is a solution that makes sense for all sides
because student-athletes with earning power would be able to cash in while the NCAA
would be able to keep its broadcasting and licensing money without worrying about how
to split up stipends to an athletic department full of athletes.
This system can alleviate concerns about these schools not having enough money
to compensate their athletes because the cost would not fall on the NCAA or any of its
member institutions. The financial onus would fall upon the corporations, local car
dealerships, and shoe companies who want to engage the athletes to help market their
products. This model has garnered significant support, including that of Drexel sportsmanagement professor Ellen Staurowsky, who posited that the Olympic model might help
insulate schools from the “underground economy” or “black market” that gives star
athletes benefits under the table.132
Historically, the one firm rule that always governed the Olympic Games was that
amateur athletes were permitted to compete, and professional athletes were not. This
clear demarcation between amateur and professional athletics was what made the
Olympics the Olympics, and any change in that system it is argued would have extremely
131

Ben Cohen, The Case for Paying College Athletes, Wall Street Journal
(Nov. 1, 2014).
132
Id.
35

negative effects. That fear was far from reality, as the Olympics remain as popular as
ever. Embracing the Olympic Model of amateurism would lift restrictions on all college
athletes’ commercial opportunities. The Olympics’ international definition of amateurism
permits amateur athletes access to the commercial free market. The NCAA’s attempt to
eliminate the commercial free market for the athletes, and nobody else, creates a black
market in which universities, coaches, agents, financial advisors, and according to this
argument players will continuously violate the rules. Alternatively, if the Olympic model
is embraced, the aforementioned Johnny Manziel and Jeremy Bloom cases would not
have amounted to violations.
The opponents of implementing the Olympic model rest their claim on the notion
that the current system promotes competitive equity. Mike Silve, the current
commissioner of the Southeastern Conference offered his opinion on the subject:
It’s time to push the rest button on the regulatory rules on recruiting in order to
move away from the idea that recruiting rules are designed to create a level
playing field. There are significant differences between institutions in resources,
climate, tradition, history, stadiums and fan interest and many other things that
make the idea of a level playing field an illusion.133
Another prominent figure in college sports, Walter Byers, the first executive
director of the NCAA, echoed Silve’s sentiments:
“Despite its reliance on the competitive-equity defense when it comes to
controlling players, the NCAA does not prohibit the colleges’ open bidding for
winning coaches… The NCAA level-playing field rules do not apply here… All
of this is legal under NCAA rules, although it tilts the playing field and gives the
rich and consistent college winner a continuing advantage. When there is the
possibility that the money will go to the student-athlete, however, the NCAA
becomes adamant: There shall be uniform compensation for the players in the
form of one-year contracts. No outside money!” 134
133

Kevin McGuire, SEC Media Days Notebook: Day 1,
http://bleacherreport.com/articles/774216-sec-media-days-notebookday-one# (accessed Oct. 30, 2014).
134
See Byers, supra note 28, at
36

Andy Schwarz, an economist and frequent contributor to ESPN, builds upon Silve and
Byers and provides factual support to show that the competitive equity does not exist
under the current rules:
“Today there are haves and have-nots. Haves recruit great players and
consistently win. Have-nots get the leftovers and occasionally luck into hidden
gems who gel as seniors and win. Over the last ten years, more than 99 percent of
the top 100 high school prospects chose BCS AQs [automatic qualifiers]… The
results on the field and court reflect this disparity in recruiting. Since 1985, 91
percent of all top 25 football teams and 92 percent of all Final Four basketball
teams have come from the six “have” conferences.”135
The current restrictions imposed by the NCAA on its student athletes have created
a system that is fundamentally unfair. The Olympic model is a practical, ethical model
that will not significantly alter current levels of competitive balance or the lack thereof
currently present in college sports. The Olympic model would relax the overly stringent
and outdated notion of amateurism and would allow student-athletes to profit off of their
image and likeness, like everybody else on a college campus, and like any other adult in
America.
The Olympic Model makes sense for all sides because student-athletes with
earning power would be able to cash in while the NCAA would be able to keep its
broadcasting and licensing money without worrying about how to split up stipends to an
athletic department full of athletes. Ben Cohen, of the Wall Street Journal is also a
proponent of implementing the Olympic model, he wrote:
“Unlike a system that offers stipends or pays athletes directly, this wouldn’t cost
the NCAA or any of its member institutions a nickel. The financial burden would
land with the shoe companies, multinational corporations and local car
135

Andy Schwarz, Pay-for-Play—the truth behind the myths,
http://sports.espn.go.com/ncaa/news/story?id=6735469 (accessed Oct.
15, 2014).
37

dealerships who want to enlist athletes to help them push products. Drexel sportsmanagement professor Ellen Staurowsky said this sort of arrangement might help
protect schools from the ‘underground economy’ that gives star athletes benefits
under the table.”136
Another benefit of the Olympic model is that enforcement costs would
necessarily decrease because the NCAA would not need to investigate every minor
violation (think Manziel autograph ‘scandal’), and could devote more effort to
investigating truly serious college sports violations. As college sports have boomed, it
has become clear that the NCAA is about the money, and there is nothing fundamentally
wrong with that, as that is one of the chief goals of any business. The NCAA focuses so
much attention on violations that seem insignificant in the grand scheme of the college
sports enterprise. The NCAA could greatly restore their reputation if players were
permitted to use their likeness to make money while in college, and the NCAA would not
need to fundamentally change its business model.
Admittedly, the Olympic Model is not a perfect solution, but it is the most
practical. Opponents of the Olympic Model raise concerns about how these players will
be paid. Will every athlete be paid the same? What about female athletes, and those who
play in lower-profile sports that do not generate substantial revenue? These concerns are
misunderstood, because the Olympic Model does not require players to paid a salary like
a typical employee, it simply allows them to get paid.
136

Ben Cohen, The Case for Paying College Athletes; The Issue is
Gaining Momentum, But Nobody Knows how to Do it; the ‘Trust Fund’
Model, The Wall Street Journal
http://online.wsj.com/news/articles/SB10001424053111904060604576
572752351110850?mg=reno64wsj&url=http%3A%2F
%2Fonline.wsj.com%2Farticle
%2FSB10001424053111904060604576572752351110850.html,
(accessed Oct. 22, 2014).

38

Opponents of compensating college athletes beyond the value of a scholarship
often argue that college athletes are already being paid with an athletic scholarship that is
worth between $20-$50,000 per year. There is certainly tremendous value in leaving
college debt-free, and a college degree indisputably increases anybody’s earning
potential. Many opponents of paying college athletes worry that the interjection of
money in “amateur athletics” will corrupt a sport that is seen as pure. The lack of
compensation for the players is what separates college athletics from professional sports.
Allen Sack, a professor of sports management at the University of New Haven has
written extensively on college sports ethics and economics, and he is of the opinion that
“…[t]here is absolutely nothing wrong, unethical, or immoral about people making a
living playing sports.”137 Sack continued, “[t]he Olympics realized that. Even the NCAA
realizes that. I interviewed [former NCAA president] Myles Brand for a book, and he
said that the notion of amateurism has outlived its usefulness. It didn’t even fit in the
20th century.”138
According to Andy Schwarz, an antitrust economist and contributor to ESPN:
“The biggest lesson of the Olympics is that you shouldn’t listen when somebody
says we wouldn’t compensate the talent. People’s love of competition trumps
anybody’s love of athlete poverty. There’s clearly something about athletes
playing for their countries and the gathering of nations that has huge appeal. But
it was romantic—and irrational—to think that the market demand for that had
anything to do with what athletes earn before or during the Olympics.”139

137

Patrick Hruby, The Olympics Show Why College Sports Should Give
Up on Amateurism, The Atlantic
http://www.theatlantic.com/entertainment/archive/2012/07/theolympics-show-why-college-sports-should-give-up-onamateurism/260275/ (accessed Dec. 10, 2014).
138
Id.
139
See Hruby, supra note 139.
39

It is noteworthy that the NCAA continues to hold onto this antiquated concept of
amateurism, despite the fact that the Olympics abandoned it years ago. It is time for the
NCAA to do the same.

Conclusion
This paper has examined the justifications relied upon by the NCAA in defense of
its current system, which restricts student-athletes from benefiting beyond the value of a
scholarship. Arguments that the current system promotes competitive balance are
unpersuasive with little grounding in fact as has been demonstrated by independent,

40

empirical research. The current system has done little, if anything to promote competitive
equity as illustrated by Rottenberg and Peach’s economically grounded analysis. The
lack of parity in Division I football and basketball is illustrated by the stranglehold these
large institutions continue maintain on acquiring the most talented high school players.
Equally unconvincing is the notion that reforming the current system would result in a
“doomsday scenario,” leaving many athletic departments unable to finance their
programs. There has been little, if any evidence to support these fears. Instead of
asserting a valid policy basis, grounded in facts and logic, the NCAA has instead chosen
to rely on excuses and their self-serving definition of the amateur student-athlete who
competes in athletics strictly as an avocation.
The attention garnered by the O’Bannon trial was critical in exposing the public
to the fundamental unfairness of the current NCAA system. Revenues are in the billions,
and college athletics are as popular as ever. Everybody in the university community is
able to realize their full market value, except the student athlete. While the O’Bannon
holding was limited in its impact, the hope is that the sweeping rhetoric offered by Judge
Wilken will serve as a catalyst for greater change. The system is long due for an overhaul
given the increasing commercialization of college athletics.
Given the ruling in the O’Bannon decision, university established trust funds
seem to be the most likely, and least controversial solution. However, serious
consideration should be given to adopting the Olympic Model of Amateurism, as it is a
practical, and cost-effective solution that would allow student-athletes to cash in on their
visibility and marketability while playing college athletics. The arguments in support of
prohibiting student-athletes from marketing themselves are more idyllic than realistic.

41

However, the O’Bannon case did make one thing clear, change is coming to the NCAA,
whether they like it or not.

42