The NCAA: A High House of Hypocrisy

REVIEW

The Shame of College Sports

by Taylor Branch

The Atlantic, October 2011

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Can college sports be saved from itself?

The Oregon Ducks are the kings of college football merchandising.

A university such as the University of Tennessee in one sense is nothing more than an advertising medium for the athletic supply and clothing industry, because the university will not turn down the money offered by the likes of Adidas (UT’s current provider) and Nike. In 2010, the Southeastern Conference became the first to crack the billion-dollar barrier in athletic receipts: ticket sales, concession sales, and yes, merchandise and licensing fees.

It is the commercialism of college sports that most of its fans complain about when it comes to the issue of how college sports has ‘sold out’. And if the fuel for this are the likes of Nike and Adidas, then the engine is television.

The majority of that billion dollars comes from television contracts.

“We do every little thing for (the networks). We furnish the theater, the actors, the lights, the music, and the audience for a drama measured neatly in time slots. They bring the camera and turn it on… If television wants to broadcast football from here on a Thursday night, we shut down the university at 3 o’clock to accommodate the crowds.” – William Friday, former president of North Carolina’s university system.

Behind all the bling of TV and branding, lurking in the underbelly of the governing body of the college game, the National Collegiate Athletic Association, is something that is much more dangerous to the college game as we know it.

Taylor Branch's article in The Atlantic exposes the legal fragility of the NCAA's moral ground.

Taylor Branch has written an article, published in the current issue of The Atlantic, that is a must read for any serious fan of college football, or any other college sport. Mr. Branch is a Pulitzer Prize author, native of Atlanta, and graduate of the University of North Carolina at Chapel Hill and Princeton University.

His target is the idyllic concept of “amateurism” and how the cartel of the NCAA and its member schools propagate this myth for the sake of self-preservation.

Mr. Branch argues that the real tragedy in today’s college sports is not the scandal after scandal that makes the headlines, but rather that “amateurism” and the “student-athlete”, the two ‘noble principles’ with which the NCAA justifies its existence, are nothing more than “cynical hoaxes, legalistic confections propagated by the universities so that they can exploit the skills and fame of young athletes.”

The exploitation part of this is not shocking. The true shock that Mr. Branch brings forth is something rooted in history and the law. The origins of the “student-athlete” are not the idyllic musings of a pure mind, but rather as a formulation to support the NCAA in its fight against workmen’s compensation insurance claims for injured football players.

There is the hypocrisy laid out for all to see.

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Mr. Branch tells us that the term “student-athlete” was born in the 1950s when the widow of a football player for the Fort Lewis A&M Aggies – her husband was killed from a head injury sustained during a game – filed for workmen’s-compensation death benefits. The Colorado Supreme Court sided with the school – the deceased football player, killed on the field of combat, was not eligible for benefits because the college was “not in the football business.”

The “student-athlete” defense has been used numerous times since to win liability cases.

Mr. Branch details how the NCAA vigorously defends the “student-athlete” idyll by ruthlessly stripping the amateur status from athletes for the slightest of actions. For example, college baseball players will try to assess whether it will be in their best interest to be drafted by a major league baseball club. But, if the NCAA finds out that a player has ‘negotiated with a MLB club with the aid of an adviser’, regardless of whether the athlete accepts any deal, the NCAA invokes NCAA Bylaw 12.3.2.1 to disqualify the athlete from college athletics.

This is how paranoid people, institutions, and cartels behave.

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Enter Walter Byers, a young college dropout hired by the NCAA in 1951 to gain control of intercollegiate sports at a time when scandals were infecting college football and basketball.

Walter Byers, shown here in 1973, was the NCAA's first executive director and served for 37 years. AP Photo/Charles Gorry.

Mr. Branch goes to great detail to show us how Byers literally created power out of nothing, almost overnight. Among other actions, he began by creating a small infractions board to set penalties without waiting for the full convention of the NCAA schools.

But more importantly, Mr. Byers’ lasting legacy was his negotiated television contracts to fund an NCAA infrastructure and turn it into a billion-dollar business.

The NCAA grew in size and power under Mr. Byers stewardship. But, eventually the member institutions rebelled, leading to a U.S. Supreme Court ruling in 1984 that struck down the NCAA’s latest football contracts with television, and any future ones. That freed football schools to market their own wares to television.

The only thing that financially saved the NCAA was its contract with television networks for the basketball tournament. Broadcast revenues to the NCAA rose 50-fold in less than 30 years. And, it is what virtually keeps the NCAA afloat today.

Last year, CBS Sports and TBS paid $771 million to the NCAA for the rights to televise the 2011 men’s basketball tournament. Three-quarters of a billion dollars paid from the networks to the governing body of college sports.

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The actors in this drama called March Madness are the unpaid athletes.

To get even more money for its coffers, the NCAA’s current strategy is to exploit its vault of college sports on film. Real footage of past glory is for sale, as well as video-game technology that allows the fan to relive and ‘participate’ in classic moments of college basketball.

None of the profits go to the athletes who are shown in action on film or whose likenesses are part of the video games.

“(You) see everybody getting richer and richer… And you walk around and you can’t put gas in your car? You can’t even fly home to see your parents?” – Desmond Howard, 1991 Heisman Trophy winner

Lawsuits are the next logical extension of this drama.

There are lawsuits that may bring down the NCAA.

Ed O'Bannon's lawsuit could fundamentally change college athletics forever. Photo courtesy of the Sports Law Blog.

The most watched of the current litigations filed against the NCAA is one involving a former UCLA basketball player and national champion. Ed O’Bannon says that once you leave school, you still cannot share in the profit that the NCAA makes off of your own image and likeness. He and many co-plaintiffs have filed a class-action antitrust suit against the NCAA at the U.S. District Court in San Francisco. This case could radically change college sports, argues Mr. Branch.

The founder of all this madness, Walter Byers, the NCAA’s own architect, wrote a memoir. An attorney active in the litigations against the NCAA showed Mr. Branch a quote from Byers’ book.

“The college player cannot sell his own feet (the coach does that) nor can he sell his own name (the college will do that). This is the plantation mentality resurrected and blessed by today’s campus executives… Prosecutors and the courts, with the support of the public, should use antitrust laws to break up the collegiate cartel – not just in athletics but possibly in other aspects of collegiate life as well.” – Walter Byers, the first executive director of the NCAA (1951-1988)

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So, what is the answer? Should college athletes be paid?

“The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.” – Taylor Branch

The National Cartel of Amateur Athletics?

A couple of questions immediately come to mind: How much should we pay them and how should those payments be distributed and managed. Equal distribution across the board? Different from sport to sport? Different from school to school, conference to conference?

The courts may settle these questions that are uncomfortable for many. The courts may also bring an end to the NCAA, or at least the NCAA as we know it today. Incremental change may not be sufficient. Today’s NCAA president, Mark Emmert, said that “a few tweaks of the rules won’t get the job done.”

Or, perhaps the member universities will simply break away.

“If a significant band of football schools were to demonstrate that they could orchestrate a true national playoff, without the NCAA’s assistance, the NCAA would be terrified – and with good reason. Because if the big sports colleges don’t need the NCAA to administer a national playoff in football, then they don’t need it to do so in basketball, in which case, they could cut out the middleman in March madness and run the tournament themselves. (This) would deprive the NCAA of close to $1 billion a year, more than 95 percent of its revenue. The organization would be reduced to a rule book without money – an organization aspiring to enforce its rules but without the financial authority to enforce anything.” – Taylor Branch

Mr. Branch essentially says that the NCAA knows it is on thin ice, which is why it steps rather lightly when contemplating enforcement against powerful universities. The NCAA also knows that it has no recourse to any law or any other principle that can justify amateurism.

With all this doom and gloom on the doorstep for all that hold such ideals sacred, Mr. Branch holds out a branch of optimism – the model of the Olympics. He reminds us that amateurism in the Olympics eventually dissolved, and the world didn’t end. Athletes eventually were allowed to accept prize money and be able to retain their eligibility for the Olympic games. Also, some athletes became rich from sponsorships and endorsements. Finally, in 1986, the Olympic Committee erased the word ‘amateur’ from their charter.

Is this a threat to many of the facets of college football and other collegiate sports that makes them so special to us and millions of other fans?

Indeed it is. Something fundamental is bound to change, and there will be no turning back.

The devil will be in the details.

And like sausage, we might rather not know.

All the current talk about conference realignment may soon seem insignificant compared with the altering of the structure of collegiate sports that is bound to come, either crafted by the NCAA and its member institutions themselves, or the legal system’s forced rehabilitation of the college sports cartel.