Two Supreme Court decisions, NCAA v. Board of Regents (1984) and NCAA v. Tarkanian (1988), have shaped college sports by permitting the emergence of a supercharged commercial enterprise with high financial stakes for institutions and individuals, while failing to guarantee adequate procedural protections for persons charged with wrongdoing within that enterprise. Brian L. Porto examines the conditions that led to the cases, the reasoning behind the justices' rulings, and the consequences of those rulings.
Arguing that commercialized college sports should be compatible with the goals of higher education and fair to all participants, Porto suggests that the remedy is a federal statute. His proposed College Sports Legal Reform Act would grant the NCAA a limited "educational exemption" from the antitrust laws, enabling it to enhance academic opportunities for athletes. The Act would also afford greater procedural protections to accused parties in NCAA disciplinary proceedings. Porto's prescription for reform in college sports makes a significant contribution to the debate about how best to address perennial problems in college sports such as cost containment, access to a meaningful education for athletes, and fairness in rule enforcement.
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About the Author
Brian L. Porto, a former college athlete, is a lawyer in private practice and Associate Professor at Vermont Law School.
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THE SUPREME COURT AND THE NCAAThe Case for Less Commercialism and More Due Process in College Sports
By Brian L. Porto
THE UNIVERSITY OF MICHIGAN PRESSCopyright © 2012 University of Michigan
All right reserved.
Chapter OneANTITRUST AND DISTRUST OF THE NCAA
The Current Legal Structure in College Sports
The commercial boom that has occurred in college sports during the past generation is no secret, even to the casual fan. A vivid illustration of this phenomenon is the increase in the number of college football games available to television viewers on autumn Saturdays. For example, during the 1970s and the early 1980s, the maximum number of games televised in the Minneapolis–St. Paul metropolitan area was two, one on ABC and one on CBS. In 1983 that number rose to three, as cable station WTBS (now TBS) signed a contract with the NCAA to broadcast college games on Saturday evenings. By 2004 viewers in the Twin Cities area could watch up to 13 college football games on one "Saturation Saturday" if they wished. The offerings included up to four Big 10 games on ABC or ESPN, a game featuring the University of Notre Dame on NBC, perhaps a Southeastern Conference (SEC) game on CBS and a Big 12 game on Fox Sports Net, a game from the Mountain West Conference on ESPN 2, and even an Ivy League game on the CSTV (College Sports Television) channel or a game between two historically black colleges on Black Entertainment Television (BET).
Not only rabid college football fans have gorged themselves on this sumptuous smorgasbord of televised games. Coaches have feasted on it, too, but for them, unlike for the fans, the feast has been primarily financial. In 2003 college football coaches in Division I-A, which includes the NCAA's most athletically prestigious colleges, earned an average annual base salary of more than $388,000, an increase of more than 80 percent in real terms over the 1998 average. The most successful coaches enjoy compensation packages that include not only a princely base salary but also fees for television and radio shows and for personal appearances, raising their value to several million dollars. For example, after Nick Saban led Louisiana State University to the national championship in 2003, he signed a contract for 2004 worth at least $2.3 million. By 2009, at least 25 college head football coaches earned $2 million or more annually, more than double the number who had earned that much in 2007. The average salary for a head football coach in the NCAA's 120-member Football Bowl Subdivision (FBS, formerly Division I-A) in 2009 was $1.36 million, a 46 percent increase since 2006.
If these developments are no surprise, their origins are nonetheless likely to surprise most Americans, even those who follow college sports closely. The prime mover behind college football's commercial growth during the past two decades has been the United States Supreme Court's decision in NCAA v. Board of Regents of the University of Oklahoma in 1984. In that case the Court invalidated the NCAA's long-standing Football Television Plan, concluding that it violated the Sherman Antitrust Act. The Court's ruling came just as cable television was experiencing explosive growth in the United States. Together, the two events unleashed an "arms race" among colleges in athletic recruiting, facilities construction, coaches' compensation, and conference realignments aimed at increased television exposure for members' football teams. Sports economist Andrew Zimbalist has observed that NCAA v. Regents "opened the floodgates of commercialism [in college sports] much wider than before."
At issue in the case was whether the NCAA's Football Television Plan violated the Sherman Act by restraining economic competition among colleges that sponsored big-time football teams. The plan limited the total number of televised college football games and the number of times per season that any particular team could play on television. It also prohibited Association members from selling the rights to televise their games independently of the NCAA. The stated aims of the plan were to (1) reduce the adverse effects of televised college football on live attendance at games not televised, (2) give as many NCAA members as possible a chance to play on television, and (3) provide televised college football to the public in a way that was compatible with the other two aims.
Justice John Paul Stevens, writing for the majority, observed that Congress had intended the Sherman Act to be a device for protecting consumer welfare. Therefore, he reasoned that any restraint on economic competition "that has the effect of reducing the importance of consumer preference in setting price and output is not consistent with this fundamental goal of antitrust law." The NCAA Football Television Plan had precisely that effect, according to Justice Stevens and the Court's majority, because it restricted the number of televised games that fans could enjoy and prevented colleges whose football teams were popular with the fans from responding to public demand for more televised games. Thus, the Court invalidated the NCAA Football Television Plan.
Justice Byron White dissented from the majority's conclusion. He would have upheld the NCAA plan because it prevented the professionalization of college sports, which would allow profits to drive win-at-any-cost practices. White wrote, "The Court errs in treating intercollegiate athletics under the NCAA's control as a purely commercial venture in which colleges and universities participate solely, or even primarily, in the pursuit of profits." In his view, the plan's price and output restrictions were acceptable restraints on competition because they served "the NCAA's fundamental policy of preserving amateurism and integrating athletics and education." Thus, according to Justice White, ending the plan and thereby allowing a few colleges to enjoy unlimited television appearances "would inevitably give them an insuperable advantage over all others and in the end defeat any efforts to maintain a system of athletic competition among amateurs who measure up to college scholastic requirements."
Byron White spoke with authority about professionalism in college sports, because he had been both a college athlete and a professional athlete. In January 1961, shortly after President John F. Kennedy was inaugurated, Deputy Attorney General White went to lunch at a restaurant located near his office at the Department of Justice. A waitress looked carefully at him and asked, "Say, aren't you Whizzer White?" White, who disliked his unshakeable nickname, replied softly, "I was." A consensus all-American as a senior at the University of Colorado, "Whizzer" White was the most publicized football player in the United States in 1937–38. Newsreels then played the role that television plays now, and in White's senior year at Colorado, three newsreel companies provided motion-picture coverage of one of his football games, and Life magazine sent a team of photographers to capture his daily routine in pictures. The attention was understandable, because White finished the 1937 season as the leading scorer in the nation, set a record for all-purpose yards per game that would stand for 51 years, and finished second in the balloting for the Heisman Trophy.
White's senior year also presented him with a delicious but difficult choice that few persons will ever have to make. Throughout the spring and summer of 1938, the media and the American public waited anxiously for him to decide whether he would accept a Rhodes Scholarship to study at Oxford University or a lucrative offer to play professional football for the Pittsburgh franchise in the National Football League (NFL). The then Pittsburgh Pirates, who later became the Steelers, had made White their first draft choice in December 1937 and had offered him a salary of $15,000 plus an $800 bonus to play in exhibition games. That figure was twice the amount earned by any other player in the NFL at that time.
Byron White's football prowess made his academic success much more interesting to the media than it would otherwise have been. He was the first American Rhodes scholar whose selection was published in newspapers from coast to coast, including the New York Times, the Washington Post, the San Francisco Chronicle, and the Los Angeles Times. When he chose the Rhodes Scholarship, both Denver newspapers devoted front-page headlines to his announcement, which he made at a news conference. Later, the Rhodes trustees granted White's request to enroll at Oxford in January 1939, which enabled him to play for Pittsburgh during the 1938 season, earning Rookie of the Year honors along with his handsome salary.
England's entry into World War II in 1939 forced Byron White to leave Oxford prematurely, along with many other Americans. He enrolled at Yale Law School in the fall of 1939 but did not graduate until 1946, after taking the fall semesters of 1940 and 1941 off to play pro football and serving in the United States Navy for several years during World War II. His football career ended with his induction into the navy. By then, White had played three seasons of pro football. His most memorable play of those three seasons occurred during the final game of his career, in November 1941. Playing for the Detroit Lions, to whom Pittsburgh had sold his contract in 1938, White intercepted a pass in the first quarter, seemingly swiping it right out of the opposing receiver's hands, and ran 81 yards for a touchdown. The New York Times reported that he broke free from the last defender "with a mighty twist" when it appeared that he was about to be tackled.
White's biographer, Dennis Hutchinson, has noted that this play cemented White's celebrity in the minds of members of his generation. Hutchinson has written, "Captured on newsreels, the play would stay with White for years and provide a vivid image to sailors who met him in the South Pacific, to law students when he returned to Yale after the war, and to law clerks at the Supreme Court when he began his first professional job." Francis Allen, who, like White, was a law clerk to chief justice Fred Vinson at the Supreme Court in 1946–47, recalled White's celebrity among his fellow clerks. He said, "Everyone had heard of Whizzer White. The newsreels and the headlines about his last game, especially the long touchdown run with the intercepted pass, made him a permanent celebrity at the time with his contemporaries."
White's experiences as an athlete may have been a source of enjoyment for his friends, but they left him distrustful of the press, averse to publicity, unsentimental about his athletic past, and convinced that college sports should be distinct from professional sports in aim and emphasis. His statements and behavior in the years following his athletic career reflect these views. In an interview with an Associated Press reporter during his navy service, he said, "Football was just a means to an end—education—so far as I was concerned. I went from college to pro football to make money to pay for schooling." In 1947, when he returned to Colorado to practice law after completing his clerkship at the Supreme Court, White told a college friend that his goals were "to establish my practice, contribute to the community, and keep my name out of the goddamn newspapers." For the next 14 years, he succeeded so well at the first two aims that President Kennedy tapped him to be deputy attorney general in 1961 and appointed him to the Supreme Court in 1962.
Years later, White's daughter, Nancy, a member of the 1980 U.S. Olympic Field Hockey Team, which was sidelined by an American boycott of the Moscow games, spoke about her father. "I don't think he ever put a whole lot of emphasis on athletics [with his children]," she remarked. "His main concern was developing strength in whatever I did. The first thing he always asks about is school." This view is consistent with the sentiments about sports that Justice White expressed in an interview with a reporter for Sports Illustrated soon after he joined the Supreme Court. After discussing the benefits of playing sports, Justice White observed,
But there are many ways to get the same kind of [confidence-building] experience. Dramatics, for instance, or music; or working on the school paper, which is certainly competitive and has that aspect of performing before the public.
Byron White's athletic experiences not only made him dubious about celebrity and partial toward amateurism; they also made him a good prognosticator regarding the likely consequences that the Supreme Court's decision in NCAA v. Regents would have on college sports. His first prediction—namely, that allowing a few college football teams to appear on television an unlimited number of times would give them an enormous advantage over their peers—has surely come true. Six so-called equity conferences (Atlantic Coast, Southeastern, Big East, Big 10, Big 12, and Pacific-10), which dominate regular-season telecasts and the postseason bowl games, include by far the wealthiest and most visible teams. Beginning in the summer of 1990, conference memberships changed dramatically and often, as institutions plotted and schemed with and against each other to leave conferences that had limited television exposure in favor of conferences promising greater television exposure.
The competition for teams reached its peak in the summer and fall of 2003, when the Atlantic Coast Conference (ACC) lured the University of Miami in Florida, Virginia Tech, and Boston College away from the Big East Conference. Adding three new members gave the ACC a total of 12, which allowed it to create two divisions and to hold a lucrative playoff game between the divisional champions for the first time in 2005. It also enabled the league to sign a seven-year contract with ESPN and ABC, doubling the number of ACC football games that ESPN telecasts each season. The contract figure, $258 million, is almost twice the amount that the ACC earned under its previous television contract. But the ACC was not alone among conferences in altering its membership roster. In the fall of 2005, 18 of the 119 members (15 percent) of what was then Division I-A (now the FBS) belonged to a different conference than they had belonged to a year earlier. Unlike the ACC, though, some of those conferences, notably the Big East, became weaker as a result of the membership changes. The conferences that benefited from the shifts are likely to command a larger share of the profits from bowl games and to attract a higher percentage of the best players, while the remaining FBS conferences weaken and lose money. With these aims in mind, several FBS member institutions participated in a second round of conference "musical chairs" in the spring and fall of 2010. The University of Colorado joined the PAC-10, the University of Nebraska joined the Big 10, Boise State University became the tenth member of the Mountain West Conference, and Texas Christian University (TCU) accepted an invitation to join the Big East Conference.
The equity conferences plus the University of Notre Dame comprise the Bowl Championship Series (BCS), a creation not of the NCAA but of television and the marketplace, which is designed to produce a credible "national champion" each year without resorting to a playoff system that would replace the long-standing bowl games, thereby destroying their economic viability. The BCS guarantees the equity conferences that their top teams will appear in the most prestigious and financially rewarding bowl games, sometimes even in favor of a more powerful team that does not belong to one of the equity conferences. The BCS also guarantees the equity conferences that their teams will appear in more bowl games than will teams belonging to the other FBS conferences (Mountain West, Western Athletic, Big West, Sun Belt, Mid-American, and Conference USA).
The Supreme Court's bow to the marketplace in NCAA v. Regents caused institutions to increase their spending on sports, especially football, to pay their coaches exorbitant salaries, and to assume large amounts of capital debt in order to remain athletically competitive with their peers. College athletic expenses rose approximately 8 percent per year between 2002–3 and 2004–5, according to an analysis by USA Today of reports that colleges filed with the federal Department of Education in October 2005. According to the NCAA, expenses rose by a similar percentage between 2000–2001 and 2002–3. The annual rate of increase in athletic spending is twice the annual rate of increase in overall spending by colleges, which, according to the NCAA, was between 3 percent and 4 percent from 2000–2001 through 2004–5.
Excerpted from THE SUPREME COURT AND THE NCAA by Brian L. Porto Copyright © 2012 by University of Michigan . Excerpted by permission of THE UNIVERSITY OF MICHIGAN PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Chapter 1 Antitrust and Distrust of the NCAA: The Current Legal Structure in College Sports 1
Chapter 2 A Revolt of the "Haves": The Road to NCAA v. Board of Regents 25
Chapter 3 Free-Market Football: The Supreme Court Decides NCAA v. Board of Regents 49
Chapter 4 Thursday Night Games and Millionaire Coaches: The Implications of NCAA v. Board of Regents 73
Chapter 5 Hunting the Shark: The Road to NCAA v. Tarkanian 100
Chapter 6 Taming the Shark: The Supreme Court Decides NCAA v. Tarkanian 127
Chapter 7 What Process Is Due? The Implications of NCAA v. Tarkanian 151
Chapter 8 Trust Replaces Antitrust: A New Legal Structure for College Sports 178