Tuesday, April 15, 2014

Will student athletes take down the mighty NCAA? Real and imagined threats to the multibillion dollar cartel, by Saul Shapiro, April 15, 2014

Will student athletes take down the mighty NCAA?
Real and imagined threats to the multibillion dollar cartel

In the Elaine May comedy, “A New Leaf,” Henry Graham, played by Walter Matthau, has exhausted his inheritance and is admonished by his valet, “You have managed, in your own lifetime, Mr. Graham, to keep alive traditions that were dead before you were born.”

The role of Henry Graham in this talk will be played by the National Collegiate Athletic Association, which seeks to uphold the façade of amateur athletics that even the modern Olympics abandoned. The ancient Greeks, by the way, paid their athletes.

Consider the NCAA position on amateurism as gleaned from this conversation between Michael Rosenberg of Sports Illustrated and Myles Brand, the former University of Indiana president who headed the NCAA from 2002-09.

Rosenberg: Why (can’t student athletes be paid)?
Brand: Because they’re amateurs
Rosenberg: What makes them amateurs?
Brand: Well, they can’t be paid.
Rosenberg: Why not?
Brand: Because they’re amateurs.
Rosenberg: Who decided they are amateurs?
Brand: We did.
Rosenberg: Why?
Brand: Because we don’t pay them.

Big-time college athletics are embedded in our culture, romanticizing the classical ideal of Mens sana in corpore sano—a sound mind in a sound body. Except this system falls far short of any ideal. The NCAA boasts annual revenues of $12 billion, while providing athletes (labor) with $2.7 billion in scholarships — an enormous disconnect.

Pulitzer Prize-winning author Taylor Branch in The Cartel: Inside the Rise and the Imminent Falls of the NCAA, recounts a 2001 secret hearing of the Knight Commission on Intercollegiate Athletics with its would-be reformers — the NCAA president, two former heads of the U.S. Olympic Committee, and several university presidents and chancellors.
The nonprofit Knight Foundation wanted to save college sports from runaway commercialism as embodied by the likes of Sonny Vaccaro, the so-called “sneaker pimp,” who signed the pioneering shoe contract with Michael Jordan in 1984. He then built sponsorship empires successively at Nike, Adidas, and Reebok, writing five- and six-figure checks first to coaches and then seven- and eight-figure checks to major colleges to wear their apparel. He also steered players at his shoe-sponsored high school summer basketball camps to schools with his shoe contracts.
Vaccaro unabashedly told the Knight Commission, “We want to put our materials on the bodies of your athletes, and the best way to do that is buy your school. Or buy your coach.”
“Why,” asked Bryce Jordan, Penn State president emeritus, “should a university be an advertising medium for your industry?”
“They shouldn’t, sir,” Vaccaro replied. “You sold your souls, and you’re going to continue selling them. You can be very moral and righteous in asking me that question, sir, but there’s not one of you in this room that’s going to turn down any of our money. You’re going to take it. I can only offer it.”

Modern-day amateur athletics, as Brian Phillips recounts on ESPN.com’s Grantland site, owe their existence to class distinctions on the soccer fields of England in the 1880s.

“Wealthy London gentlemen who had learned the game in upper-class boarding schools were not all that stoked, it turns out, when their teams started losing to working-class players from the industrial north. The gentlemen put their heads together and reasoned that if poor, talented athletes could make a living playing sports, then the proles could train full-time and become even more of a threat. But if the workers were forced to play for free, they’d have to squeeze practice in around 80-hour workweeks in the factories.”
“Amateurism has never been about an ideal,” Phillips concluded, “it has always been about control.”

In the late 1800s the intercontinental railroads had opened up the “frontier,” and American leaders, Branch wrote, were concerned the country was getting too soft. Students, though, embraced a violent variation of the English sport of rugby. Football pitted 15 players on each side, moving the ball forward until a tackled player was forced to yell “down.” Yale graduate Walter Camp re-invented the game, limiting sides to 11, drawing lines on the field, restarting plays at a line of scrimmage, allowing four “downs” to make 10 yards to retain possession and creating the names for positions.

Violence, though, was paramount. One newspaper cited 25 deaths in a year and bare-knuckled heavyweight champion John L. Sullivan said he preferred the ring to football, because “there’s murder in that game.”

When the Harvard faculty sought to abolish football in 1895, Chief Justice Oliver Wendell Holmes, an alumnus, responded that the casualties were “not as a waste, but as a price well paid for the breeding of a race fit for leadership and command.” Ten years later Harvard alumni, sick of losing to Yale, built a football stadium and hired the first paid coach, Bill Reid, at twice the pay of full-time professors. Meanwhile, Camp, according to McClure’s magazine at that time, had a $100,000 slush fund in play at Yale.

President Theodore Roosevelt summoned college leaders to the White House to get their acts together, and thus was born the National Collegiate Athletic Association with 68 member colleges paying $25 in annual fees (for the next 40 years). Bill Reid was named head the organization, and he quickly changed football rules to favor Harvard, Roosevelt’s alma mater. However, an attempt to introduce the forward pass — to advance by air rather than ground — was decried as “cowardly and soft.”

For nearly 50 years, the NCAA had no real authority and no staff to speak of, ostensibly committed to amateur ideals it couldn’t enforce. It couldn’t even mandate helmets until 1939. The Carnegie Foundation in 1929 issued a report on “American College Athletics,” concluding that the scramble for players had “reached the proportions of nationwide commerce.” Of 112 schools surveyed, 81 flouted NCAA recommendations with inducements ranging from open payrolls and disguised booster funds to no-show jobs. Yet two-thirds of those colleges told The New York Times that they wouldn’t change. In 1939, freshmen football players at the University of Pittsburgh went on strike because the upperclass players were paid more.
Robert Maynard Hutchins, president of the University of Chicago, finally had enough, eliminating the school’s powerhouse football program in 1939. Chicago Tribune sports editor Arch Ward compared that to communism. Purdue University President Edward C. Elliott told the Tribune, “There have been times when I wished that we might have colleges and universities without football. This is perhaps a bit Utopian. Perhaps Chicago will prove that Utopia is possible. But Purdue is not Utopian and intends to continue to play football — and, we hope, good football.”
After the end of World War II, the competition for athletes returning to school on the GI Bill so embarrassed the NCAA that in 1948 it enacted a “Sanity Code” to prohibit all concealed and indirect benefits for athletes. Any money was limited to transparent scholarships awarded solely for financial need. Schools that violated the code would be expelled from NCAA membership and competitive sports. It didn’t last long.
But the NCAA had a new leader, Walter Byers, intent on reform. A college dropout, the 30-year-old former journalist exerted newfound clout when the Kentucky basketball team coached by Adolph Rupp, winners of three of the last four national championships, was found shaving points for gamblers. Byers suspended Kentucky for the 1952-53 season.

With televised sports on the horizon in 1951, Byers convinced the schools that broadcasting football games was a threat to attendance. The NCAA, he claimed, should control the rights and limit coverage. When Notre Dame and Penn tried to do their own deals, he threatened them with the same fate as Kentucky. Byers then negotiated a single Game of the Week contract with NBC for $1.4 million and successfully lobbied Congress to ban professional football from being played on Saturday as competition to the colleges.

The TV football contract was the NCAA’s main source of revenue, but it also became a sticking point among universities increasingly eager to gain more exposure and revenue. In 1981, a consortium of 61 major football schools threatened to sign an independent contract with NBC for $180 million over four years. The NCAA tried to block the contract, but in 1984 the U.S. Supreme Court ruled in NCAA vs. the University of Oklahoma Board of Regents that the NCAA's restrictions violated federal antitrust laws.
The television landscape was changing dramatically. The Entertainment and Sports Programming Network began in 1989 in Bristol, Conn. While broadcast networks made their money from advertising, ESPN and other cable networks had two revenue streams: subscriber fees and advertising. ESPN would soon strike the mother lode of subscriber fees, building a devout audience with its early-round NCAA basketball tournament telecasts. CBS, which had only broadcast the Final Four, took notice in 1991 and outbid ESPN with a $28 million annual contract. That grew in 1999 to 11 years and $6 billion or $545 million per year and in 2010 to 14 years and $10.8 billion or $771 million annually.
ESPN —the only 24/7 sports network —still became the dominant source for major college football and basketball games, a mecca for hard-core fans. That gave it the leverage to demand and get what is now $5.60 per month in subscriber fees —five times as much as the next cable channel. That’s $500 million per month or $6 billion per year, plus $3.5 billion from advertising and $900 million from its magazine. Overall annual revenues exceed $10 billion. Forbes calls ESPN — Disney/ABC has had an 80 percent ownership stake since 1989 — the world’s most valuable media property.
The NCAA has agreements with ESPN for the women's basketball tournament, College World Series and 20 other NCAA championships worth $55 million over the next three years. Negotiations are underway for the rights to 60-plus other NCAA championships. The tournaments represent 95 percent of NCAA revenues. According to USA Today, the NCAA ended 2013 with net assets of more than $627 million.
Other networks were green with envy. Fox rechristened its Speed Channel as Fox Sports 1 and expanded its regional sports networks. NBC was purchased by Comcast, which had regional sports networks, and converted its Versus Channel to NBC Sports. CBS, which is owned by Viacom, has a CBS Sports cable channel and partners with the Turner Network on other broadcasts.

The sports portion of your cable bill is now up to $10 per month, even if you aren’t watching any sports. The competition between the networks continues to inflate TV rights for sports on every level.
Back in 2004, though, ESPN made the mistake of lowballing the Big Ten, angering commissioner Jim Delany who partnered with Fox to create the Big Ten Network. Cable companies weren’t thrilled about paying $1 more per subscriber. However that changed with the first Big Ten Network game on Sept. 1, 2007, when upstart Appalachian State upset mighty Michigan in Ann Arbor. Sports fanatics — a relatively small but very vocal audience — demanded access. By 2009, the Big Ten Network had generated an additional $7 million per school per year. Last year, the Big Ten’s overall TV payout from primary games on ESPN and secondary games on its network amounted to $25.7 million per-school. That had enticed Nebraska to bolt the Big 12. Rutgers and Maryland will join the Big Ten (14) next year, giving it entrée to the New York and Baltimore-Washington TV markets. The per-school payout could soar to $40-60 million by 2016.

The Pac-10 followed suit with its own network and added Colorado and Utah. The Big 12 (only 10 without Nebraska and Colorado) was about to break up over a deal between  ESPN and the University of Texas to create a statewide Longhorn Network without sharing revenues. Texas A&M and Missouri bolted to the more lucrative Southeast Conference, but the Big 12 added Texas Christian and West Virginia to become 10 again as the conferences did their own version of New Math.

TV revenues for major conference schools range from $17 million (Atlantic Coast Conference) to nearly $26 million (Big Ten), not counting the new Bowl Championship Series bonanza — ESPN will broadcast the new BCS semifinal and championship games the next 12 years for $5.6 billion — and payouts from NCAA tournament games.

Remember Sonny Vaccaro and the “sell-your-soul sneaker” deals? Well, Notre Dame last month signed a $90 million, 10-year equipment and cash deal with Under Armour, topping the $82 million record of Michigan and Adidas. Other major colleges are not far behind. And then there’s the other multi-million-dollar corporate sponsorships, ticket sales, radio rights, souvenirs, school subsidies and student fees. $12 billion. Ca-ching.

So where does the money go?


According to Duke economist Charles Clotfelter, the average compensation for head football coaches at public universities, was more than $2 million, up 750 percent (adjusted for inflation) since the Regents decision in 1984; that’s more than 20 times the cumulative 32 percent raise for college professors. For top basketball coaches, annual contracts exceed $4 million, augmented by bonuses, endorsements, camps, and, in some cases a negotiated percentage of ticket receipts. Duke’s Mike Mike Krzyzewski had overall compensation of $9.7 million in 2010-11, according to USA Today. Phil Jackson of the NBA’s Lo Angeles Laker set the record of $11 million, which is now in jeopardy.

As for bonuses, University of Louisville coach Rick Pitino made $425,000 extra last year — on top of a $5.7 million base pay package — for winning the men's national basketball championship. When Kentucky’s Aaron Harrison made a three-pointer to beat Michigan in the NCAA Elite Eight this year, Coach John Calipari and his assistants shared bonuses of about $664,000 for making the Final Four. Calipari alone got $350,000.

Then there’s the pay for athletic directors. According to USA Today in 2013, they made an average of $515,000 annually, an increase of more than 14 percent since 2011. Louisville's Tom Jurich made $1.4 million — among nine athletic directors paid $1 million or more. Kansas State’s John Currie gets 75 percent of any bonus a coach earns. Ohio State’s Gene Smith makes a $940,484 base, but got a recent bonus of $18,447.94 when wrestler Logan Steiber won an NCAA title in March. Steiber only got a trophy.

In 2009-2010, Texas athletic department spent $25.1 million on administrative and support staff. According to ESPN.com’s Gregg Easterbrook, Ohio State's athletic department had 458 employees in 2012 — 10 less than the White House.

Then there’s the facilities arms race. University of Alabama just completed a $9 million, 37,000-square foot athlete weight room. Kentucky built a $7 million basketball dormitory with a private chef for the players, all 15 of them.


Rather than lauding those with a sound mind in a sound body, “student-athlete” was designed as a legal term protecting the NCAA when those bodies become damaged.

In University of Denver v. Nemeth in 1953, the Colorado Supreme Court upheld a state Industrial Commission ruling that Ernest Nemeth, a University of Denver football player was an employee and the university was obligated to provide workers compensation for his football injuries.

Two years later, the widow of Fort Lewis A&M player Ray Dennison, who died of a head injury playing football, filed and won a workman’s compensation claim. Unlike today's players, whose tuition, room and board are covered, Dennison was given a job to cover his room and board. The state Supreme Court reversed the decision, agreeing that the college received no benefit from Dennison's activities as a “student-athlete” because it was not in the football business, which was deemed purely recreation.

“We crafted the term ‘student-athlete,’” Walter Byers wrote in his autobiography, “and soon it was embedded in all NCAA rules and interpretations.”

The term student-athlete was deliberately ambiguous, Branch wrote. College players were not students at play (which might understate their athletic obligations), nor were they just athletes in college (which might imply they were professionals). That they were high-performance athletes meant they could be forgiven for not meeting the academic standards of their peers; that they were students meant they did not have to be compensated, ever, for anything more than the cost of their studies.

According to a report by the National Center for Catastrophic Sports Injuries, here’s a snapshot of the toll taken on football players:
1977-2004: 31 college football players received cervical injuries
1984-2004: 10 received cerebral injuries from which they never recovered
1931-2004 86 died from direct injuries playing college football and another 102 from indirect injuries
In 1956, the same year as the Dennison decision, the universities formally sanctioned full athletic grants-in-aid to recruit the best athletes — one year, renewable at the coach’s option, although the most gifted athletes received four years that couldn’t be revoked. In 1973, that changed. Athletic grants-in-aid had to be one year, just like scholarships for nonathletes. Coaches could refuse to renew them for any reason, including injury.
In 1999, economist Andrew Zimbalist wrote in Unpaid professionals: Commercialism and conflict in Big-Time College Sports that “Big-time intercollegiate athletics is a unique industry. No other industry in the United States manages not to pay its principals a wage or salary.”
So what is the free-market value of a major college athlete?

Two years ago, Drexel University sports management professor Ellen Staurowsky in a collaborative study, The Price of Poverty in Big-Time College Sports — written with Ramogi Huma, president of the National College Players Association — estimated that if athletic departments shared their revenues — as do teams in the National Basketball Association and the National Football League — the fair market value of the average major college football and basketball player was $121,048 and $265,027, respectively. Duke's basketball players were each worth $1 million; Texas’ football players, $513,000.

Instead, it found a shortfall for those athletes — who receive no money for out-of-pocket expenses and can’t work — of $3,222. And many basketball and football players are from inner cities with few, if any, family resources.

Not only don’t the players get bonuses for winning titles, they must sign Form 08-3a, granting the NCAA permission to use their images, likenesses and names as a condition of participating in college sports.

Johnny Manziel, the 2013 Heisman Trophy-winning quarterback, was suspended for part of a game in 2014 for allegedly receiving payment for signing autographs. ESPN college basketball analyst Jay Bilas, a former Duke basketball star and an attorney, called a foul on the NCAA for blatant hypocrisy, visiting ShopNCAASports.com to demonstrate how the NCAA benefits from the sales of uniforms with Manziel’s name— or any other athlete’s — name on it. “That’s an absurd system,” Bilas said. “Clearly this is a multimillion-dollar business. It operates as such in every fashion except the athletes aren’t getting a cut.”

Then there’s Joel Bauman, a University of Minnesota wrestler and musician who gave up his athletic scholarship after recording a song and putting it on iTunes. NCAA rules prohibit athletes from using their name or image for commercial purposes, even though he made no money.

So how does being a student-athlete compare to being a non-athlete?
Brian Phillips on Grantland wrote, “Let’s say, as a hypothetical, that you have a cousin/daughter/friend/niece named Julie. Bright kid. Fiddling around in her dorm room junior year, she invents a new kind of combustion engine that makes cars 50 times more fuel-efficient. It’s worth a billion dollars. Julie wants to sell it to GM, but — whoops — it turns out the university owns it and she gets nothing, because she’s on an engineering scholarship. Tough break, but Julie can’t really complain, right? Because at least she got the college experience.
Or Max writes a novel sophomore year that’s the biggest thing since Harry Potter —months on the best-seller list, major movie deal, the works. Only Max not only can’t see a penny from his work — that all goes to the school; thanks, English scholarship! — he also makes the mistake of selling an autographed copy at a book fair. Boom, Max is banned from writing for a year.
So what about the “student” part of “student-athlete.” CNN’s Sara Ganim, the former Harrisburg Patriot-News reporter who broke the Jerry Sandusky scandal, found many athletes in basketball and football programs read only up to an eighth-grade level.
Based on ACT and SAT data, the CNN investigation revealed that among 31 schools that opened their records, between 7% and 18% of revenue sport athletes were reading at an elementary school level. Some had even higher percentages of below-threshold athletes.

Of 183 athletes who played football or basketball from 2004 to 2012 at the University of North Carolina in Chapel Hill, 60% read between fourth- and eighth-grade levels. Between 8% and 10% read below a third-grade level. A scandal two years ago found that many athletes were given grades for classes they didn't attend, only doing a single paper, a practice that went on for decades. The NCAA investigated and found no rules violations. A UNC probe found administrators had no culpability, blaming an African-American Studies professor who now faces fraud charges.
University of Oklahoma professor Gerald Gurney found that about 10% of revenue-sport athletes there were reading below a fourth-grade level. He told CNN, “College presidents have put in jeopardy the academic credibility of their universities just so we can have this entertainment industry. ... The NCAA continually wants to ignore this fact, but they are admitting students who cannot read.”

Among those who do get diplomas, Billy Hawkins, an associate professor and athlete mentor at Georgia, said, “They're pushing them through. They're graduating them. UGA is graduating No. 2 in the SEC, so they're able to graduate athletes, but have they learned anything? Are they productive citizens now? That's a thing I worry about. To get a degree is one thing, to be functional with that degree is totally different.”


Ed O’Bannon, the college player of the year on UCLA’s 1995 national championship team, was playing an Electronic Arts video game when he noticed his image in the game. “Once you leave your university,” O’Bannon said, “one would think your likeness belongs to you.” The NCAA and UCLA made money on the games; O’Bannon couldn’t.
O'Bannon v. NCAA was filed in 2009 in the U.S. District Court for the Northern District of California and has been joined by a similar suit brought by former Nebraska quarterback Sam Keller.
O'Bannon contends the NCAA, its member schools and its conferences have joined hands with Collegiate Licensing Co. and Electronic Arts to prevent student-athletes from getting paid. O'Bannon argues that this alleged conspiracy violates antitrust laws because the marketplace would be more competitive if student-athletes could enter into license agreements. Second, O'Bannon contends injury to the right of publicity, which is a property interest in one's image, voice and other unique characteristics.
The NCAA claims student-athletes have no property rights in their own athletic accomplishments because they waived their rights.
Michael Hausfeld, an attorney representing O’Bannon, asked, “What right is it that they’re waiving? You can’t waive something you don’t have. So they had a right that they gave up in consideration to the principle of amateurism, if there be such.”
In attempting to dismiss the case, NCAA attorney Gregory Curtner told U.S. District Judge Claudia Wilken, “There is no document, there is no substance, that the NCAA ever takes from the student-athletes their rights of publicity or their rights of likeness. They are at all times owned by the student-athlete.”
O’Bannon’s other attorney, Jon King, responded, “This is “like telling someone they have the winning lottery ticket, but by the way, it can only be cashed in on Mars.”
As it happened one document revealed EA asked the NCAA in 2007 to allow for the use of player names and faces in video games “just as they are shown on TV broadcasts. This means putting student-athlete names on rosters and on jerseys in the game, and secondarily using facial likenesses (this could be done in stages).”

Last fall, EA and Collegiate Licensing entered into a settlement with the O’Bannon group for $40 million and dropped the images of college athletes from new games. The NCAA is now suing them for entering into the agreement without its knowledge or participation.
The O’Bannon case will go to trial in June. Wilken has ruled that the athletes could sue as a group for the right to negotiate licensing deals, but barred them from banding together to seek revenue from broadcasts they appear in, since potential damages would vary according to how often they appeared in game footage.
Interestingly, Daniel Rubinfeld, a professor of law and economics emeritus at Cal-Berkeley, has been an expert witness for the NCAA in the O'Bannon case, according to Patrick Hruby of SportsOnEarth.com. Whether he is helpful is debatable. While Rubinfield claims the association is actually a “joint venture that achieves procompetitive benefits,” not a cartel, he also co-authored a microeconomics textbook in which he cites two organizations as “textbook examples” of cartels — OPEC and the NCAA.

Former West Virginia running back Shawne Alston is suing the NCAA and the major conferences in the same U.S. District Court hearing the O'Bannon case. Alston maintains the NCAA and conferences have conspired to save money at the expense of Division I football players in the form of athletic scholarships (grants-in-aid) capped to include the cost of tuition, room and board, books and fee. Alston charges that these limitations make athletic scholarships several thousand dollars lower in value than the actual cost of attending college and are substantially less valuable than if there were a free market.
The NCAA has successfully argued in the past that players could not establish that the harm of losing an athletic scholarship falls within a market protected by antitrust law; that grants-in-aid promotes, rather than harming, competition. Limits on the value of athletic scholarships ensure that universities with large budgets do not “buy” all of the best football talent. Without these limits, it contends, some Division I football programs may collapse, harming the overall market for college sports.
The NCAA, though, did settle a federal antitrust suit in 2006, agreeing to make available $10 million in supplemental money above the standard athletic grant-in-aid to athletes who played Division I-A football and in 16 Division I men’s basketball conferences between 2002 and 2006. The agreement was in response to a class-action suit filed by former football and basketball players. It presaged things to come.

Later this month, the Northwestern University football team will vote whether to form a union after Peter Sung Ohr, regional director of the Chicago district of the National Labor Relations Board, ruled in late March that they qualify as employees of the university.

“Instead of the mythical amateur athlete playing for the love and glory of the game,” legal analyst Lester Munson of ESPN wrote, “Ohr saw workers in a huge commercial enterprise who were already being paid for their service in the form of scholarship, workers who were dependent on their employer (the university) and were, therefore, entitled to form a union. For those in authority in college athletics who feel that players should simply be grateful for the opportunity to play, the ruling is a shocking and revolting development. But it may be a look at the future of college sports.”
Ohr cited Northwestern’s football revenue of $235 million between 2003 and 2012 and the hour-by-hour, day-by-day control that the coaching staff has over players, including 50 to 60 hours per week to football-related work during the preseason and up 40 to 50 hours per week in season. In addition, he cited coaches’ approval of living arrangements, registration of automobiles, control over social media, dress codes, restrictions on off-campus travel and jobs, and study schedules. It was the kind of control, Ohr concluded, that an employer has over an employee, not the control a school has over a student.
Munson added, “Although it will be reviewed and appealed, it is a historic first step in a process that, together with litigation against the NCAA and legislation in Congress, could change the face of college sports. If the decision is upheld, it will give players at private universities a voice in the management of their lives as athletes and students. It will qualify players for workers' compensation benefits for injuries that occur during their playing careers, benefits that will cover them well into their futures. Instead of coaches issuing schedules and setting rules for their private lives, the players and their union will bargain for their working conditions in the same way NFL and MLB players bargain for benefits. And, although the Northwestern players say they are not interested in payments for their efforts, the formation of a players' union will open the way to salaries for athletes in football and men's basketball.”
Ohr’s ruling echoes a 2006 study, “The Myth of the Student-Athlete: The College Athlete As Employee,” by Michigan State University law professors Robert A. McCormick and Amy Christian McCormack in the Washington Law Review. They determined that student-athletes at NCAA Division I schools in revenue-generating sports “are not amateurs.” Ironically, they also wrote, “The ability of the employee athletes to form a union may well provide a perfect opportunity for the NCAA, its member schools and the union representing the employee athletes to regulate the wages, hours and other terms and conditions of the employment of the student athlete in a collective bargaining agree. By so doing, the NCAA and an athlete union could shelter otherwise anticompetitive practices through the nonstatutory labor exemption to the antitrust laws as all the major professional sports leagues do.”

The NCAA is being sued in cases related to the health and well-being of “student athletes.” Adrian Arrington, an Eastern Illinois University defensive back and captain in 2009 who suffers from memory loss, depression and near-daily migraines as a result of injuries, filed a class-action lawsuit in 2011 that sought to cover student-athletes who have suffered head injuries because of the NCAA’s negligence.
The suit, which now includes other football, hockey and soccer players, claims the NCAA "has failed its student-athletes — choosing instead to sacrifice them on an altar of money and profits" by neglecting to adopt stricter standards for the kinds of play and tackling most likely to cause head injuries. Arrington claims that the message to players was to "play hard and play fast" even after getting hurt or risk getting cut from the team.
The case is now in mediation, possibly because the NCAA defense was undermined by a 2010 email from its government relations officer to its top health and safety official asking if concussion recommendations in youth sports exceeded those in college? The health officer replied, “Well since we don't currently require anything, all steps are higher than ours.” The NCAA now requires schools to have a plan, but doesn’t review them.
In 1991, the first Knight Commission report, Keeping Faith With the Student Athlete, included the “bedrock conviction” that university presidents must seize control of the NCAA from athletic directors to restore the preeminence of academic values over athletic or commercial ones. College presidents did take over the NCAA’s governance. But in 2001, a second Knight Commission report, A Call to Action: Reconnecting College Sports and Higher Education, concluded problems of corruption and commercialism had “grown rather than diminished.”
In his new book, Players First: Coaching From the Inside Out, Kentucky basketball coach John Calipari writes, “The (NCAA) situation reminds me a little of the Soviet Union in its last years. It was still powerful. It could still hurt you. But you could see it crumbling, and it was just a matter of time before it either changed or ceased to exist.”
I’m not a big Calipari fan, but he seems to be stating the obvious.
Meanwhile  the defenders of the status quo are crying wolf. Jim Delany, commissioner of the Big Ten, stated in a filing in the O’Bannon case that if revenues are shared with athletes, the catastrophic may happen: Division I programs will be reduced to a Division III status, a harrowing situation where colleges — like Wartburg — only give scholarships based on academic merit and financial need, not athletic prowess. That also the case with Ivy League schools. Despite Delany’s vision of the apocalypse, Big Ten administrators distanced themselves with his remarks, according to the Chicago Tribune.

The 65 major colleges are trying to maintain control of their destiny with piecemeal reforms. At the most recent NCAA convention in December, they sought approval for an annual $2,000 “cost-of-attendance” stipend — remember the Drexel study that found the difference between the athletic scholarship and the cost of attending college was $3,222. But smaller Division I schools blocked it because of the impact on their already heavily subsidized programs (see UNI). A Tennessee Tech professor stated, “It seems most dubious to give some student athletes what amounts to ‘tattoo money,’” a referring to the Ohio State scandal in which nine players received free tattoos and extra benefits totaling $2,400 from a booster.
 Sports Business Journal has proposed reasonable solutions for the major colleges:
• Schools are allowed to provide tuition, room and board up to the cost-of-attendance figure that they report to the U.S. Department of Education.
• Schools may provide lifetime disability coverage for athletes injured while playing for the school.
• Schools must continue paying the tuition, room and board of an athlete who suffers a career-ending injury until that athlete's eligibility expires.
• Schools may provide up to $17,500 a year per head-count scholarship to be placed in trust and collected upon the athlete's graduation. This must apply to all scholarship athletes, because violating Title IX would put a school's federal funding in jeopardy.
• Allow players to profit from their likeness, either from direct payments or payments placed in trust.

In fact, the NCAA’s unwavering attempt to keep alive traditions that were dead long ago brings to mind these observations from its former president Walter Byers in his 1995 autobiography,  “Unsportsmanlike Conduct: Exploiting College Athletes”
“Today the NCAA Presidents Commission is preoccupied with tightening a few loose bolts in a worn machine, firmly committed to the neo-plantation belief that the enormous proceeds from college games belong to the overseers (administrators) and supervisors (coaches). The plantation workers performing in the arena may only receive those benefits authorized by the overseers.”