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Dreams Unfulfilled, Graduate Unskilled -- NCAA Athletics and Exploitation

Taylor Branch’s article in this month's Atlantic Monthly (it's more than Andrew Sullivan now!) about how the myths of amateurism and student-athletes allow the NCAA and its constituent schools to rake it in from the efforts and injuries of young revenue sport athletes is a must read if you love college football or basketball.

It is long, frequently polemic (the slavery rhetoric and “whoremonger” claims are a bit much), and one-sided, but it poses a number of interesting questions that served to further convince me that the NCAA, as it currently exists, is unjust and should be abolished.

I strongly urge you to go read it, even though it is behind a pay wall (it is free). There are a number of worthy issues that it brings up that I think deserve a little additional exposition, which I will now do polemically and at great length.

There are two primary revenue drivers for the NCAA and its constituent schools (for sports): (1) TV deals and (2) sponsorships and merchandising. Both of those revenue streams depend, in large part, on the control of the image rights of college players. The schools and the NCAA make money off of the identities and actions of college players, which can only happen if those images can be monetized, which inevitably requires some kind of control (you cannot sell what you do not own or control – which is why I cannot sell your Slipknot records and Tap Out shirts to Scipio, despite his desire to have as much UFC gear as possible).

So inherent in the scheme is an acknowledgement that something saleable exists and that it may be sold by either the NCAA or the University, depending on the sport and event. The player, whose image is the one being controlled and sold, has no say in the sale, no right to any of the proceeds, and, currently, no right to any revenue in the future from additional sales of his image (for instance, the Tim Tebow DVDs that mouth-breathing, jort-wearing Gator fans still buy from the schools do not help Tebow put Crocs on his own feet or Amy Grant tracks on the iPod that his Mom operates for him – that money still goes to the school, even though Tebow is now a professional).

Curtis Flood
Curtis Flood is Proud

Former UCLA basketball player Ed O’Bannon’s lawsuit seeks to change this. O’Bannon, who now sells cars in Las Vegas, seeks to recover some of the money that the NCAA made off of his image after he left college. In response, the NCAA asserts that O'Bannon and all other student-athletes either: (a) have no property rights in their own “amateur” images while magically attaining such rights upon graduation (admittedly not so far-fetched in modern academia, where Universities frequently attempt to assert control over patents and technologies developed by their students); or (b) effectively waived all property rights in their amateur images, which are sometimes worth millions of dollars, by signing the annual player forms that the NCAA requires the players to sign before they are permitted to participate in an NCAA sport.

Autographs for tattoos is a problem?

The NCAA’s argument makes no sense. There can be no real waiver because there is no freedom of contract; the players cannot escape the NCAA “waiver” at one college by pursuing another collegiate athletic opportunity at another. If someone wants to play football professionally then he must play somewhere in college, and to play somewhere in college he must first disclaim all rights to his own image. That is a contract of adhesion with an unconscionable result; anywhere but Texas, in a suit brought by anyone but Perry Homes, the waiver would be thrown out because of the discrepancy of bargaining power and the inequitable result. Hilariously, you cannot ever waive something that does not in fact exist, and the existence of the waiver language in the contract logically prevents the NCAA from making the “there is no property right here at all” argument. As is discussed above, though, that argument is as illusory as any rationale for living in Norman, Oklahoma (went to a wedding there this weekend – hands down the worst place I have ever visited in America).

By right – and law – this should be a clear violation of the Sherman Anti-Trust Act, as there is no pro-competitive reason for athletes to be required to give up all rights to their own images, and it is not possible that the current NCAA waiver structure could survive even the currently lax “rule of reason” analysis of anti-competitive allegations (the rule of reason is a mind-numbing test manipulated into every area of anti-trust law by the deft sleights of hand of the brilliantly diabolical Richard Posner and his fellow University of Chicago School of Economics influenced jurists, which says, in essence, that every single factor of a market, including competition in a market, alternate opportunities that provide access to a similar enough market to allow for a green apples to red apples comparison standard, and whether the monopoly itself is actually harmful to the consumers or purchasers in the market, must be examined in detail to determine whether there is any reasonable explanation for the monopolistic behavior before a court can say that a prohibited monopoly or improper anti-competitive behavior exists – this runs contrary to the historic idea that the law should be predictable and provide a reasonable standard by which an actor might judge his actions, although in practice it has served to completely shield companies from Sherman Act liability – as well as the treble damage penalty that comes with it – in all but situations where it can be proved that literal collusion on price occurred).

Teddy did not intend for the Sherman Anti-Trust Act to be a pansy

If O’Bannon’s lawsuit succeeds -- and facially the NCAA’s rights to continue profiting from Ed O’Bannon’s collegiate image 15 years after his college career when dude is stuck selling Toyotas in Las Vegas seems outrageous – then the NCAA should lose the ability to trade in athletes’ images without compensating the athletes. As I understand it, that will lead to one of three possible results: (1) the NCAA’s TV deals will fall apart, as they are nothing more than televised profiting off of athlete’s images without paying the athlete; (2) the NCAA will be forced to negotiate some sort of arrangement with players, likely through the agency of the player’s college; or (3) the NCAA will try to pass off some new, more limited, waiver tied to broadcast rights rather than the general right to play, an attempt that would not likely succeed. The point is, if the O’Bannon case succeeds – and it appears to have a good chance to do so – then the NCAA as we know it will dramatically change. While the lawsuit does not directly take on the universities, it does through their membership in the NCAA, promise to cause massive change. If you break or bankrupt the NCAA, and a win for O’Bannon and his people would likely do both, then it is just a matter of time before the universities either race to the bottom by paying players (Looking at you Oregon and SEC) or lose similar lawsuits on the same principle.

This would be a fascinating ending to a bizarre agency.

The second issue in the piece that fascinated me was the history of the term “student-athlete.” This is the most egregious and blatant of the many advantages taken of young athletes that the NCAA sanctions; the use of the fictive term “student-athletes” to circuit around worker’s compensation laws and escape liability for the medical care and disability care of athletes who are injured while participating in college sports, including massive revenue sports like college football.

Consider a college football player in the new world: let’s say this player is the next Vince Young at Texas, tremendously popular, leading the school to massively profitable bowl games (by the way – would there be a $300 Million Longhorn Network is there had not been a Vince Young? I’d posit that he contributed a lot to the total number by having existed and won a national championship), having his name and number affixed to hundreds of thousands of jerseys each of which sells for $50, contributing to TV ratings that permit the TV networks to charge more for advertising and pass more along to the University’s athletic department, helping to sell out the stadium weekend after weekend, and providing a figurehead for the program which raises its prominence, thereby permitting, or greatly contributing to, the recruitment of the next next Vince Young.

Now let’s say that during this young man’s senior year, mid-season, he suffers a crushing, devastating injury – let’s assume he becomes a permanent quadriplegic. As the result, he is unable to complete his academic career and he has no professional football prospects. He requires care for the rest of his life and has minimal earning potential. He has exhausted his scholarship years. Even in this circumstance, where the benefit that accrued to the University is likely even more than the benefit that accrues to an NFL franchise from having a Pro Bowl quarterback who makes $15 Million a year and has the right to freely market his image, the University and the NCAA have no obligation to provide for the young man’s permanent medical care. Despite having literally made millions off of him, the University need not provide him with any stream of income for the duration of his impairment. In fact, it does not even have to help him finish his education. Its obligation to the young man – who has received ABSOLUTELY NO MONEY at this point – is completely extinguished. This happens only because of that mythical phrase “student-athlete.”

Reggie Bush
Reggie Bush -- Freedom Fighter?

Sorry for another legal side note, but a quick discussion of worker’s compensation law is necessary to show what a travesty the current situation is. Worker’s Compensation law developed, initially, as a way to incentivize employers against thrusting employees into manifestly harmful situations, an incentive particularly necessary in the wake of the smoke-belching, electricity-driven, man-mangling monstrosities of Industrial Age industries. The way it worked is this: the employer had to provide a Worker’s Compensation insurance policy that provided no-fault insurance coverage for any employee injured in the course of employment or the employer was stripped of all common law defenses to personal injury lawsuits brought against it by the injured employee. In return, the employee who worked for an employer who had a Worker’s Compensation policy had to make a choice between either: (1) surrendering the right to sue his employer in exchange for the right to the insurance; or (2) retaining his right to sue the employer, with the knowledge that the employer would retain all of his common law defenses and the employee would likely have to bring suit to recover money, creating a sure-fire time lag between injury and compensation, if ever compensation was received at all.

Over time, Worker’s Compensation Law became a tool of the entrenched interests, as is often the case with regimes originally endowed with power to protect the powerless, providing a means by which employers can avoid massive liability for injuries sustained by their employees by subscribing to an insurance scheme which promises to provide the workers with mere subsistence payments in the event the worker sustains a workplace injury. Worker’s Compensation liability shields in Texas have expanded dramatically, applying to the workers of all contractors on certain commercial job sites and to temporary workers hired by contract to provide labor.
She Never Got There, She Never Got There

None of this important for here except this – independent contractors, who purportedly have the right to control the details, methods, and manner of the work that they do, are not covered by Worker’s Compensation insurance and do not, except in circumstances that do not apply here, surrender the right to bring lawsuits for workplace injuries against the parties’ employing or paying them. Under traditional legal tests, if an employer provides the tools of trade (pads and a field, say), directs the manner of the work (like a coach or something), tells you where and when you have to do the work (maybe like a TV-driven schedule), and has the right to hire or fire you based on all of these things (like one-year revocable athletic scholarships maybe) then you are an employee and, in the absence of your employer having Worker’s Compensation insurance, you can sue the hell out the employer if you suffer a workplace injury.

So why is the next Vince Young not a University employee? He receives a college scholarship and room and board in exchange for performing a specific job. He is directed in where and how to do that job. He is provided with the tools of his trade by the University. It does not make sense.

This is where the NCAA pulled a great trick. The ambiguousness of the term allows the argument that the “student-athlete” is not an employee (or contractor) because the “student-athlete” does not pay taxes on the benefits he receives, but he is still more than a mere student, allowing for his scholarship, his only compensation, to be tied directly to his continuing to perform athletically. That is getting it coming and going. To the NCAA then, a “student-athlete” is a new breed of quasi-employee, one who receives a benefit which is not taxed (hurting the government and other tax payers, presumably) and who therefore has no right to receive recompense for injury suffered while playing collegiate athletics from the party compensating him for putting himself into the position to be injured (again, hurting the government and tax payers who have to step in and provide the medical care needed).

There was no legal justification for the creation of this category, except for some native sympathy for the idea of “amateur” athletics, an idea that seems as quaint as a horse-drawn buggy at Talledega in a world of one university $300 Million TV deals. But it worked – now “student-athletes” risk permanent maiming with no right to recovery or medical care when they are in fact maimed, and the schools trumpet a buzzword that makes them sound like humanitarians.

Does this man need a scholarship?

The third issue I found myself reflecting on at the end of the piece is the effect on other sports that paying the players in revenue sports would have. Not all college sports make money. You constantly hear about all of the millions of collegiate athletes who play water polo and badminton, or gymnastics and diving, or whatever, whose sports actively lose money. The response to any talk about paying collegiate football players inevitably turns to these sports, as examples of sports that would disappear either through losing the funding needed to pay the players in other sports or through the increased Title IX funding obligations for women’s sports if football and basketball players were to be paid. Branch glosses these issues, but they are worth considering.

As I understand Title IX, the funds spent on male and female sports must be within a certain, narrow percentage of one another (this is a gross over-simplification, I know, but it's a broad summary that gets the gist).  Paying football and basketball players who generate revenue would likely result in more women’s sports and paid women’s sports, plus the elimination of almost all other collegiate men’s sports. I have no real answer to that, except to say that I’d rather leave the wisdom of what to cut and where to an actual market of sorts – maybe SMU sucks out loud at football but figures out that it can make money off of men’s soccer if it is the only program around that pays men’s soccer players, or maybe A&M realizes that its women’s equestrian team is such a dominant force, both in the bedroom with flex-TEs and at whatever sort of competitions that kind of thing involves, that those girls need to be getting fat stacks.

I don’t know, but the elimination of college sponsored niche sports does not trouble me much. Presumably, the kids playing the sports are doing so because they love it. I know that some of them probably need the scholarships, but many, many people need scholarships. The insanity of skyrocketing tuitions at American universities and the effect that it has on regular folks is a worthy topic, but not necessarily one that needs discussion here. Who says that lacrosse and golf players deserve scholarships any more than a kid who works 20 hours a week at the Stop and Go while maintaining a 3.4 GPA? Not me.

They deserve scholarships too

My final takeaway from all of this was that the current system takes ridiculous advantage of athletes and must be torn apart. It is tough to conceive of what should take its place. I am in favor of paying the players in revenue sports for their efforts. I am not, however, in favor of free agency in college sports, nor am I in favor of uncapped compensation.

I think the best middle ground, at least for now, is a combination of some kind of per-player compensation cap that could be split between players at the University’s discretion – paying Vince Young 20 times more than Marty Cherry seems fair to me – while retaining athletic scholarships for all. I do think that the financial packages offered to the players would become a large part of the recruiting process, but I do not think it would ever be the only one. This plan would require some kind of policing from a central agency, which I think should exist, although it cannot be the NCAA because it cannot be a captive agency. Then the schools can decide for themselves how to handle non-revenue sports and Title IX obligations.
Paul Westerberg didn't play for free.

Letting things go on as they do now makes no sense to me. Football programs that make $100 Million a year by risking injury to players who do not even have a guarantee of medical care, much less the ability to buy a bus ticket home over the holidays, do not deserve to be left untouched. They do not need protection, at law or otherwise. The kids who do not have a voice do. Anyway, read the article. Let me know what you think.