Cognizant of its precarious financial base, the NCAA has in recent years begun to pursue new sources of revenue. Video-game technology also allows nostalgic fans to relive and even participate in classic moments of NCAA Basketball. All of this money ultimately derives from the college athletes whose likenesses are shown in the films or video games. But none of the profits go to them.
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Some athletes have gone beyond talk. A series of lawsuits quietly making their way through the courts cast a harsh light on the absurdity of the system—and threaten to dislodge the foundations on which the NCAA rests. District Court in San Francisco. His suit quickly gathered co-plaintiffs from basketball and football, ex-players featured in NCAA videos and other products. Likewise, to claim the NCAA profits off student-athlete likenesses is also pure fiction. If so, does it actually undermine the NCAA by implicitly recognizing that athletes have a property right in their own performance?
The NCAA rarely tangles with such people, who are apt to fight back and win. The late Myles Brand, who led the NCAA from to , defended the economics of college sports by claiming that they were simply the result of a smoothly functioning free market. He and his colleagues deflected criticism about the money saturating big-time college sports by focusing attention on scapegoats; in , outrage targeted sports agents. I have no respect for people who do that to young people. NCAA officials have tried to assert their dominion—and distract attention from the larger issues—by chasing frantically after petty violations.
At the start of the football season, A. The NCAA sentenced Green to a four-game suspension for violating his amateur status with the illicit profit generated by selling the shirt off his own back. This summer, in an attempt to satisfy NCAA investigators, Ohio State voluntarily vacated its football wins from last season, as well as its Sugar Bowl victory. The moral logic is hard to fathom: the NCAA bans personal messages on the bodies of the players, and penalizes players for trading their celebrity status for discounted tattoos—but it codifies precisely how and where commercial insignia from multinational corporations can be displayed on college players, for the financial benefit of the colleges.
In , Andrew Oliver, a sophomore pitcher for the Oklahoma State Cowboys, had been listed as the 12th-best professional prospect among sophomore players nationally. He decided to dismiss the two attorneys who had represented him out of high school, Robert and Tim Baratta, and retain Boras instead.
The investigator also questioned his father, Dave, a truck driver. A yes would mean trouble. The questioning lasted past midnight. Just hours before the game was to start the next day, Oklahoma State officials summoned Oliver to tell him he would not be pitching. The baseball coach did not even let his ace tell his teammates the sad news in person.
The Olivers went home to Ohio to find a lawyer. Rick Johnson, a solo practitioner specializing in legal ethics, was aghast that the Baratta brothers had turned in their own client to the NCAA, divulging attorney-client details likely to invite wrath upon Oliver.
Judge Tygh M. Tone, of Erie County, came to share his outrage. Yet the victory was only temporary. Wounded, the NCAA fought back with a vengeance. When Oliver and Johnson accepted, to extricate themselves ahead of burgeoning legal costs, Judge Tone was compelled to vacate his orders as part of the final settlement. This freed NCAA officials to reassert the two bylaws that Judge Tone had so forcefully overturned, and they moved swiftly to ramp up rather than curtail enforcement.
The survey asked whether an agent had conducted negotiations. It also requested a signed release waiving privacy rights and authorizing professional teams to disclose details of any interaction to the NCAA Eligibility Center. But then he ran into the new NCAA survey. Had Boras negotiated with the Blue Jays? Boras has denied that he did, but it would have made sense that he had—that was his job, to test the market for his client. Since Paxton was planning to go back to school and not accept their draft offer, the Blue Jays no longer had any incentive to protect him—indeed, they had every incentive to turn him in.
Kentucky courts deferred to the university, however, and Paxton was suspended from the team.
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Paxton was stranded. Not only could he not play for Kentucky, but his draft rights with the Blue Jays had lapsed for the year, meaning he could not play for any minor-league affiliate of Major League Baseball. Once projected to be a first-round draft pick, Paxton saw his stock plummet into the fourth round. He remained unsigned until late in spring training, when he signed with the Seattle Mariners and reported to their minor-league camp in Peoria, Arizona.
Bereft of his scholarship, he was flailing about for help when he discovered the National College Players Association, which claims 7, active members and seeks modest reforms such as safety guidelines and better death benefits for college athletes. Agnew was struck by the NCPA scholarship data on players from top Division I basketball teams, which showed that 22 percent were not renewed from to —the same fate he had suffered. In October , Agnew filed a class-action antitrust suit over the cancellation of his scholarship and to remove the cap on the total number of scholarships that can be awarded by NCAA schools.
In his suit, Agnew did not claim the right to free tuition. He merely asked the federal court to strike down an NCAA rule, dating to , that prohibited colleges and universities from offering any athletic scholarship longer than a one-year commitment, to be renewed or not, unilaterally, by the school—which in practice means that coaches get to decide each year whose scholarships to renew or cancel. Agnew argued that without the one-year rule, he would have been free to bargain with all eight colleges that had recruited him, and each college could have decided how long to guarantee his scholarship.
Tidbits leaked into the press. You might as well shoot them in the head. Academic performance has always been difficult for the NCAA to address. Any detailed regulation would intrude upon the free choice of widely varying schools, and any academic standard broad enough to fit both MIT and Ole Miss would have little force. From time to time, a scandal will expose extreme lapses. Senate Subcommittee on Education, Arts, and Humanities, when admitting that he had been functionally illiterate in college. Within big-time college athletic departments, the financial pressure to disregard obvious academic shortcomings and shortcuts is just too strong.
In the s, Jan Kemp, an English instructor at the University of Georgia, publicly alleged that university officials had demoted and then fired her because she refused to inflate grades in her remedial English courses. When Kemp filed a lawsuit against the university, she was publicly vilified as a troublemaker, but she persisted bravely in her testimony. Traumatized, Kemp twice attempted suicide.
In trying to defend themselves, Georgia officials portrayed Kemp as naive about sports. The committee consisted of an elite coterie of judges, athletic directors, and authors of legal treatises. In , a series of unlikely circumstances peeled back the veil of secrecy to reveal NCAA procedures so contorted that even victims marveled at their comical wonder.
The saga began in March of , shortly after the Florida State Seminoles basketball team was knocked out of the NIT basketball tournament, which each spring invites the best teams not selected for the March Madness tournament. At an athletic-department study hall, Al Thornton, a star forward for the team, completed a sports-psychology quiz but then abandoned it without posting his written answers electronically by computer. The teammate complied, steaming silently, and then complained at the athletic office about getting stuck with clean-up chores for the superstar Thornton who was soon to be selected by the Los Angeles Clippers in the first round of the NBA draft.
Second, because this would be its seventh major infraction case since , FSU mounted a vigorous self-investigation to demonstrate compliance with NCAA academic rules. Third, interviews with Seminoles athletes unleashed a nightmare of matter-of-fact replies about absentee professors who allowed group consultations and unlimited retakes of open-computer assignments and tests.
Fourth, FSU suspended 61 of its athletes in 10 sports. Sixth, one of the penalties announced in March of caused a howl of protest across the sports universe. Twenty-seven news organizations filed a lawsuit in hopes of finding out how and why the NCAA proposed to invalidate 14 prior victories in FSU football. This was sacrosanct territory. Sports reporters followed the litigation for six months, reporting that 25 of the 61 suspended FSU athletes were football players, some of whom were ruled ineligible retroactively from the time they had heard or yelled out answers to online test questions in, of all things, a music-appreciation course.
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Tarkanian , which exempted the organization from any due-process obligations because it was not a government organization. News interest quickly evaporated when the sports media found nothing in the record about Coach Bowden or the canceled football victories. But the transcript revealed plenty about the NCAA. On page 37, T.
Wetherell, the bewildered Florida State president, lamented that his university had hurt itself by cooperating with the investigation. The music-appreciation professor was apparently never questioned.
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Brenda Monk, the only instructor who consistently cooperated with the investigation, appeared voluntarily to explain her work with learning-disabled athletes, only to be grilled about her credentials by Potuto in a pettifogging inquisition of remarkable stamina. This carried stinging symbolism for fans, without bringing down on the NCAA the harsh repercussions it would have risked if it had issued a television ban or substantial fine. Cruelly, but typically, the NCAA concentrated public censure on powerless scapegoats. Johnson says the NCAA has never admitted to having wrongly suspended an athlete.
Even after its plump cut for its own overhead, the NCAA dispersed huge sums to its 1, member schools, in the manner of a professional sports league. These annual payments are universal—every college gets something—but widely uneven. They keep the disparate shareholders barely united and speaking for all of college sports. The payments coerce unity within the structure of a private association that is unincorporated and unregulated, exercising amorphous powers not delegated by any government. Searching through the archives, Johnson came across a memo from the NCAA general counsel recommending the adoption of a due-process procedure for athletes in disciplinary cases.
His proposal went nowhere. Instead, apparently to limit costs to the universities, Walter Byers had implemented the year-by-year scholarship rule that Joseph Agnew would challenge in court 37 years later.
The members voted to create Bylaw Johnson recognized this provision all too well, having won the temporary court judgment that the rule was illegal if not downright despotic. It made him nearly apoplectic to learn that the NCAA had deliberately drawn up the restitution rule as an obstacle to due process, contrary to the recommendation of its own lawyer.
The NCAA, of course, has never expressed such a desire, and its public comments on due process tend to be anodyne. Yet when pressed, Potuto declared that athletes would have no standing for due process even if the Supreme Court had not exempted the NCAA in the Tarkanian decision. To translate this from the legal jargon, Potuto used a circular argument to confine college athletes beneath any right to freedom or property in their own athletic effort. They have no stake to seek their rights, she claimed, because they have no rights at stake.