The Professional Amateur: Challenging the NCAA’s Amateurism Rules

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By George Pappas, Staff Writer

The craze of March Madness has come to an end. Brackets have been busted. (Mine included; thanks, Duke.) There have been excitement galore. From one of the biggest upsets in the history of women’s sports, Mississippi State ended UConn’s 111-game win streak, and North Carolina clinched its sixth national championship. Heart-racing, non-stop, in-your-face action for a month of basketball insanity — all brought to the masses by 18- to 22-year-old college students.

And it is not just basketball. Who could forget the thrilling football national championship just a few short months ago, with mighty Alabama getting toppled by underdog Clemson with a thrilling game-winning touchdown in the final seconds? These moments and many like them are thanks to the growth of college athletics across the country.

In the past 30 years, major collegiate sports have grown into a multi-billion dollar industry comprised of over 1,000 colleges and run by the National Collegiate Athletic Association (NCAA).[1] On the NCAA’s website, you can find a heartwarming slogan, “Prioritizing academics, well-being and fairness so college athletes can succeed on the field, in the classroom and for life,” but is this really what the NCAA is all about?[2]

In 2013, CBS entered into a contract with the NCAA to air the “March Madness” tournament for $800 million per year.[3] Over the past three years, the top conference in college basketball — the Atlantic Coast Conference (ACC) — will have yielded more than $100 million in television revenue from the NCAA Tournament alone solely for the performance of their member teams.[4] Like most conferences, the ACC splits revenue equally; meaning, the 15 member schools will each receive $6.8 million for their teams.[5]

The numbers get even more staggering when looking at a championship football program. Florida State generated $43 million in revenue in 2014 before it won the national championship; that number jumped to $70 million the next season.[6] That is $113 million for one program over a two-year period. The players on those teams, however — the ones whose blood, sweat, and tears go into making these programs great — will not see a dime of that money.

The NCAA has strict compensation rules when it comes to student-athletes. Mainly, they cannot share in the profits made by their schools, and they cannot be paid for the use of their names, images, and likenesses (NILs).[7] With the amount of generated money only rising, a number of people have stepped up to challenge why the athletes — who bring in the profits and whose notoriety bring revenue to their schools — cannot receive a piece of the proverbial pie.

Now-famous cases such as O’Bannon v. NCAA, Jenkins v. NCAA, and, most recently, Northwestern football’s union proposal to the National Labor Relations Board (NLRB) have challenged the true intent of the NCAA’s amateurism rules. When signing with a program, players are forced to enter into legal agreements allowing the university and conference they play for to utilize the players’ NILs for whatever purposes they see fit.[8] For years, schools profited from the popularity of their players in various ways, from the merchandising of star players’ jerseys to licensing out their NILs in video games.

The decision by the O’Bannon court, however, gave some power back to the players. The court ruled that it is a violation of the Sherman Act for schools and the NCAA to license out players’ NILs without compensating them for it.[9] The court recognized that the NCAA, through its amateurism rules, created an anti-competitive conspiracy that foreclosed the market on the players’ NILs and denied them compensation.[10] If not for this system, the video game companies would have negotiated with and paid student-athletes to use their NILs.[11]

In February, the NLRB issued an official opinion that athletes at 17 private colleges within the Football Bowl Subdivision (FBS) are employees of their schools and, as such, are entitled to all rights and leverage under the National Labor Relations Act.[12] Though this decision only affects a small number of schools, it could have a ripple effect throughout the collegiate landscape. The freedoms of association, self-organization, and designated representation protected by the NLRB open the door for collective bargaining on behalf of the players.[13] This also leaves open the possibility of the creation of a players union, something that was once inconceivable to those involved in college athletics.[14]

These cases are the result of college athletes’ increased knowledge about the business of college sports and their statuses as students: Though they receive “free” educations through scholarships, they are unable to take full advantage of the educational aspect of being student-athletes. A typical day for a Division I football player consists of morning workouts that begin at 6 a.m.; a walk-through (no pads) practice at 11 a.m.; an hour lunch; mandatory team and position meetings from 1-4 p.m.; full-pad practice from 4-6:30 p.m.; and a team dinner from 6:30-8 p.m. Players are then expected to be in bed by 10:30 p.m. to wake up the next day and do it all over again.[15]

This is not just during the season, either. Players have winter workouts, spring practices, then a short time off before coming back to campus for summer workouts.[16] Many players probably spend more time with athletic training than most people do at their jobs.

One might ask, “When do these guys go to class or do homework? They are supposed to be students, right?” The only time in there for class is between their morning workouts and 11 a.m. practices — and some study time nestled in at the end of the night. These grueling schedules make is nearly impossible for athletes to participate in much of what the schools offer academically. This realization that student-athletes do not truly have the opportunity to be students led to the NLRB’s decision and continued discussions as to whether these players deserve compensation for their athletic efforts.[17]

The NCAA’s amateurism rules have been challenged and is an issue that will not easily be resolved. But as these student-athletes become more informed about the business of college sports, the fight will rage on.

 

Sources


[1] Fair or Foul? Unpaid student athletes are at the heart of a multi-billion-dollar industry, Economist.com (April 27, 2013), http://www.economist.com/news/united-states/21576688-unpaid-student-athletes-are-heart-multi-billion-dollar-industry-fair-or-foul.

[2] http://www.ncaa.org/about/resources/media-center/ncaa-101/what-ncaa

[3] Fair or Foul?, supra.

[4] Darren Rovell, ACC will make more than $100 million off schools’ NCAA tourney runs over past 3 years, espn.com (March 31, 2017), http://www.espn.com/espn/print?id=19045201#.

[5] Id.

[6] Chris Smith, The Money On The Line In The College Football National Championship Game, forbes.com (January 9, 2017), https://www.forbes.com/sites/chrissmith/2017/01/09/the-money-on-the-line-in-the-college-football-national-championship-game/#5a2e25752777.

[7] O’Bannon v. National Collegiate Athletic Association, 802 F.3d 1049 (US Crt. App. 9th Cir. 2015).

[8] Richard J. Hunter, Jr. and John H. Shannon, IS THE NORTHWESTERN CASE A REAL “GAME CHANGER” FOR INTERCOLLEGIATE ATHLETICS?: A NON-DECISION DECISION, 43 W. St. L. Rev. 155 (2016).

[9] O’Bannon v. NCAA, supra.

[10] Id.

[11] Id.

[12] Lester Munson, NLRB rules football players at private FBS schools are employees, espn.com (February 3, 2017), http://www.espn.com/espn/print?id=18612851&type=Story&imagesPrint=off.

[13] Id.

[14] Id.

[15] IS THE NOTHWESTERN CASE, supra.

[16] Id.

[17] Id.

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