Here is what Branch believes is wrong with the present system.
For all the outrage, the real scandal is not that students are getting illegally paid or recruited, it’s that two of the noble principles on which the NCAA justifies its existence—“amateurism” and the “student-athlete”—are cynical hoaxes, legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes. The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.
Here is why it won’t last.
A deeper reason explains why, in its predicament, the NCAA has no recourse to any principle or law that can justify amateurism. There is no such thing. Scholars and sportswriters yearn for grand juries to ferret out every forbidden bauble that reaches a college athlete, but the NCAA’s ersatz courts can only masquerade as public authority. How could any statute impose amateur status on college athletes, or on anyone else? No legal definition of amateur exists, and any attempt to create one in enforceable law would expose its repulsive and unconstitutional nature—a bill of attainder, stripping from college athletes the rights of American citizenship.
A few insights I found interesting…
Pure amateurism never existed in college sports. Walter Camp, the “father of American football” was found to have a $100,000 slush fund at Yale. In a 1929 report, eighty-one of 112 schools surveyed admitted supplying players with some form of back channel inducements for playing. A “Sanity Code” enacted by the NCAA in 1948, calling for expulsion for schools caught paying players, was shortly retired.
The NCAA has no basis for its authority. It exists with the consent of the governed. It has no threat of violence to enforce consent. The organization had to lobby Kentucky to accept a one-year suspension of its basketball program during the 1952-53 season.
The NCAA, whose nonprofit purpose is to enforce, spends less than one percent of its annual budget on enforcement. (What? You expect them to fly commercial?)
A few of my own thoughts…
High-level college football and basketball generate billions in revenue. They are de facto professional sports in every facet of their operation, except for a facade of amateurism allowing schools to pay neither labor costs nor taxes. Players wishing to pursue a career in either sport are forced into a system of indentured servitude (one year for basketball, three years for football). They are “paid” through a university scholarship entitling them, for one year, to free education. For many of the sport’s top-level participants, it is a currency they are ill equipped to make use of, a fact abundantly obvious to the participating universities.
“Paying the players” is a reductive phrase, encompassing what is really a number of issues. Should athletic scholarships cover the full cost of attendance? Is it legal or appropriate for players to sign away the rights to their likeness in perpetuity? And, yes, should players, essentially working a full-time job, receive tangible benefits for their efforts, including direct payment and disability benefits. Why are agents so anathema for college sports? Schools don’t want kids conscious of their legal rights and having the means to challenge for them.
Reforms will be instituted. Universities with the means will include cost of attendance subsidies for all athletes according to Title IX. There will be some form of compromise, perhaps to avoid a massive indemnity in the O’Bannon case. That eventual compromise will be based on the Olympic model. Schools will not have to pay players, avoiding a large expenditure, threats to their tax exempt status and problems under Title IX. Participants in all sports will be permitted outside endorsements as the market dictates and limited control of their likeness rights for the duration of their scholarship. The IRS can monitor illicit income.
Freed from maintaining shamateur status, the NCAA (or whatever organ is in place) can devote resources toward protecting kids, rather than ensuring their bagel spreads were not too decadent. When Adidas wants to sell thousands of Michigan No. 16 jerseys #underthelights, Denard Robinson will get a fair cut of it. Earth will remain on its axis.
[Photo via Getty]