In an amicus brief filed late yesterday, eight states, including Georgia, Alabama, Arkansas and Mississippi, asked the U.S. Supreme Court to uphold the NCAA’s restraints of trade that prevent college athletes from earning compensation, arguing that the current system of college sports will “prepare student-athletes for success in all areas of life.” The U.S. Supreme Court now has the opportunity to read this brief. But it should take these states’ arguments with a heavy grain of salt.
While these eight states argue that college sports should be left to reform itself, the NCAA system, in earnest, is not about to reform without court intervention. Indeed, the NCAA and its college sports system represent the very antithesis of the reform-minded values that otherwise underlie higher education.
Here are ten examples of just how the college sports system, operating under the auspices of the NCAA, conflicts with the longstanding, progressive values that are preached throughout most other aspects of the higher education industry.
1. Collusive Restraints: While the traditional, progressive values of higher education frown on anti-competitive trade practices, the NCAA member schools currently join together to limit the financial benefits any school can offer to its athletes, all under the guise of promoting competitive balance. In reality, these collusive restraints are reasonably seen as violations of antitrust law, which have led to windfall revenues that are funneled directly to high-salaried administrators, athletic directors and Division I football coaches in the form of above-market salaries.
2. Union Busting: Another traditional progressive value is the support of unions and labor rights. However, when the Northwestern University
3. Lord-Servant Mentality: In recent years, neo-liberal colleges have implemented a wide range of student affairs programs and bottom-up feedback systems to try to stop professors from exercising an inappropriate power dynamic over students. But in the world of college sports, the lord-servant mentality is not only permitted but encouraged. At some schools, college athletes are not allowed to choose what car to buy or whether to post a message on social media without their college coach’s approval. Some coaches even require their athletes to accept them as Facebook friends so they can monitor all of their activities.
4. Racial Inequality: On the surface, colleges are seen as leaders in affirmative action when it comes to enhancing the diversity of student and faculty populations. However, when digging deeper, many of these same colleges prevent their revenue-generating athletes, who are disproportionately African-American, from sharing in the fruits of their labor. Meanwhile, they use some of the funds derived from the labor of largely low-income African-American athletes to fund scholarships for largely white and wealthy students in boarding-school sports such as fencing, golf, squash and equestrian. This is appropriately referred to as the Reverse Robin Hood Effect.
5. Gender Inequity: While the NCAA often makes the dubious claim that its opposition to allowing athlete pay is about protecting female athletes, in reality the NCAA’s financial rules harm the interests of male and female athletes alike. Meanwhile, in terms of college coaching opportunities, the gender pay gap within NCAA sports is among the worst in society. And whereas most U.S. professional sports leagues have finally broken the gender barrier in terms of executive positions and coaching opportunities, one would be hard pressed to find even a single female coach working at an NCAA Division I football or men’s basketball program.
6. Silencing of Abuse: Abuse comes in all shapes and forms. But big-time college sports programs have been notoriously bad at maintaining whistleblower protection systems to detect systematic abuse of athletes and at taking proactive approaches toward restorative justice once such abuse is uncovered. While there are too many examples of school-tolerated abuse of athletes to mention here, two of the most egregious examples include Michigan State University’s failure to accept full responsibility for Larry Nassar’s systematic and ongoing sexual abuse of college athletes on their sports teams, and the University of Maryland’s attempt to return D.J. Durkin to the field as its head football coach, just weeks after Durkin’s culture of mental and physical abuse led to a football player’s death from heatstroke suffered during practice. Astoundingly, the University of Mississippi, which is one of the public colleges in a state that wrote the recent amicus brief purporting benign values associated with college sports, has since hired Durkin to coach their “student-athletes.”
7. Gaslighting and Lobbying: All businesses, by their nature, are going to advocate for their own interests. But the NCAA’s efforts to persuade Congress and state legislators to deny college athletes of their financial rights has been especially troublesome based on its use of pandering through the hiring of high-priced lobbyists, hired former politicians and famous current and former coaches.
8. Risky Covid Behaviors: Colleges overall have taken a very conservative approach to the Covid-19 pandemic by shifting many classes to online, canceling spring break, and sometimes even requiring students to stay out of dormitories or places of social gathering. But there have been two notable exceptions to colleges’ general Covid-19 guidelines: football and men’s basketball. Indeed, the very safety precautions that many colleges claim are necessary to protect their student bodies overall simply cease to exist when the students are athletes who generate substantial revenues for the colleges.
9. Contracts of Adhesion: General principles of fairness disallow for the requirement that individuals with less bargaining power to sign away important rights without the opportunity to bargain over terms or consult with an attorney. But just about everything in the area of college sports, from requiring athletes to sign away their publicity rights to many schools requiring their signing away of the right to sue if they contract Covid as a result of their school’s negligence, arguably fall within the narrow range of agreements that some courts might deem to be adhesive.
10. Devaluing the Pursuit of Education: If the above nine examples do not already make clear the limitless bounds of the higher-education industry’s hypocrisy when it comes to college sports, perhaps the treatment of the educational pursuits of revenue-generating college athletes finally makes the point hit home. Whether it be pulling “student-athletes” out of class for up to a quarter of the days during an academic semester, encouraging certain elite athletes to avoid difficult coursework or even creating fake classes to keep “student-athletes” eligible, there is no shortage of example of how many elite college athletes aren’t even getting a traditional student education despite all this mess.
Marc Edelman ([email protected]) is a Professor of Law at Baruch College’s Zicklin School of Business and the founder of Edelman Law. He is the author of “A Short Treatise on Amateurism and Antitrust Law” and “The Future of College Athlete Players Unions.”