The Shame of College Sports

A litany of scandals in recent years have made the corruption of college sports constant front-page news. We profess outrage each time we learn that yet another student-athlete has been taking money under the table. But the real scandal is the very structure of college sports, wherein student-athletes generate billions of dollars for universities and private companies while earning nothing for themselves. Here, a leading civil-rights historian makes the case for paying college athletes—and reveals how a spate of lawsuits working their way through the courts could destroy the NCAA.
The Myth of the “Student-Athlete”

Today, much of the NCAA’s moral authority—indeed much of the justification for its existence—is vested in its claim to protect what it calls the “student-athlete.” The term is meant to conjure the nobility of amateurism, and the precedence of scholarship over athletic endeavor. But the origins of the “student-athlete” lie not in a disinterested ideal but in a sophistic formulation designed, as the sports economist Andrew Zimbalist has written, to help the NCAA in its “fight against workmen’s compensation insurance claims for injured football players.”

“We crafted the term student-athlete,” Walter Byers himself wrote, “and soon it was embedded in all NCAA rules and interpretations.” The term came into play in the 1950s, when the widow of Ray Dennison, who had died from a head injury received while playing football in Colorado for the Fort Lewis A&M Aggies, filed for workmen’s-compensation death benefits. Did his football scholarship make the fatal collision a “work-related” accident? Was he a school employee, like his peers who worked part-time as teaching assistants and bookstore cashiers? Or was he a fluke victim of extracurricular pursuits? Given the hundreds of incapacitating injuries to college athletes each year, the answers to these questions had enormous consequences. The Colorado Supreme Court ultimately agreed with the school’s contention that he was not eligible for benefits, since the college was “not in the football business.”

The term student-athlete was deliberately ambiguous. 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. Student-athlete became the NCAA’s signature term, repeated constantly in and out of courtrooms.

Using the “student-athlete” defense, colleges have compiled a string of victories in liability cases. On the afternoon of October 26, 1974, the Texas Christian University Horned Frogs were playing the Alabama Crimson Tide in Birmingham, Alabama. Kent Waldrep, a TCU running back, carried the ball on a “Red Right 28” sweep toward the Crimson Tide’s sideline, where he was met by a swarm of tacklers. When Waldrep regained consciousness, Bear Bryant, the storied Crimson Tide coach, was standing over his hospital bed. “It was like talking to God, if you’re a young football player,” Waldrep recalled.

Waldrep was paralyzed: he had lost all movement and feeling below his neck. After nine months of paying his medical bills, Texas Christian refused to pay any more, so the Waldrep family coped for years on dwindling charity.

Through the 1990s, from his wheelchair, Waldrep pressed a lawsuit for workers’ compensation. (He also, through heroic rehabilitation efforts, recovered feeling in his arms, and eventually learned to drive a specially rigged van. “I can brush my teeth,” he told me last year, “but I still need help to bathe and dress.”) His attorneys haggled with TCU and the state worker-compensation fund over what constituted employment. Clearly, TCU had provided football players with equipment for the job, as a typical employer would—but did the university pay wages, withhold income taxes on his financial aid, or control work conditions and performance? The appeals court finally rejected Waldrep’s claim in June of 2000, ruling that he was not an employee because he had not paid taxes on financial aid that he could have kept even if he quit football. (Waldrep told me school officials “said they recruited me as a student, not an athlete,” which he says was absurd.)

The long saga vindicated the power of the NCAA’s “student-athlete” formulation as a shield, and the organization continues to invoke it as both a legalistic defense and a noble ideal. Indeed, such is the term’s rhetorical power that it is increasingly used as a sort of reflexive mantra against charges of rabid hypocrisy.

Last Thanksgiving weekend, with both the FBI and the NCAA investigating whether Cam Newton had been lured onto his team with illegal payments, Newton’s Auburn Tigers and the Alabama Crimson Tide came together for their annual game, known as the Iron Bowl, before 101,821 fans at Bryant-Denny Stadium. This game is always a highlight of the football season because of the historic rivalry between the two schools, and the 2010 edition had enormous significance, pitting the defending national champion Crimson Tide against the undefeated Tigers, who were aiming for their first championship since 1957. I expected excited fans; what I encountered was the throbbing heart of college sports. As I drove before daybreak toward the stadium, a sleepless caller babbled over WJOX, the local fan radio station, that he “couldn’t stop thinking about the coin toss.” In the parking lot, ticketless fans were puzzled that anyone need ask why they had tailgated for days just to watch their satellite-fed flat screens within earshot of the roar. All that morning, pilgrims packed the Bear Bryant museum, where displays elaborated the misery of Alabama’s 4–24 run before the glorious Bryant era dawned in 1958.

Finally, as Auburn took the field for warm-ups, one of Alabama’s public-address-system operators played “Take the Money and Run” (an act for which he would be fired). A sea of signs reading $CAM taunted Newton. The game, perhaps the most exciting of the season, was unbearably tense, with Auburn coming from way behind to win 28–27, all but assuring that it would go on to play for the national championship. Days later, Auburn suspended Newton after the NCAA found that a rules violation had occurred: his father was alleged to have marketed his son in a pay-for-play scheme; a day after that, the NCAA reinstated Newton’s eligibility because investigators had not found evidence that Newton or Auburn officials had known of his father’s actions. This left Newton conveniently eligible for the Southeastern Conference championship game and for the postseason BCS championship bowl. For the NCAA, prudence meant honoring public demand.

“Our championships,” NCAA President Mark Emmert has declared, “are one of the primary tools we have to enhance the student-athlete experience.”

“Whoremasters”

NCAA v. Regents left the NCAA devoid of television football revenue and almost wholly dependent on March Madness basketball. It is rich but insecure. Last year, CBS Sports and Turner Broadcasting paid $771 million to the NCAA for television rights to the 2011 men’s basketball tournament alone. That’s three-quarters of a billion dollars built on the backs of amateurs—on unpaid labor. The whole edifice depends on the players’ willingness to perform what is effectively volunteer work. The athletes, and the league officials, are acutely aware of this extraordinary arrangement. William Friday, the former North Carolina president, recalls being yanked from one Knight Commission meeting and sworn to secrecy about what might happen if a certain team made the NCAA championship basketball game. “They were going to dress and go out on the floor,” Friday told me, “but refuse to play,” in a wildcat student strike. Skeptics doubted such a diabolical plot. These were college kids—unlikely to second-guess their coaches, let alone forfeit the dream of a championship. Still, it was unnerving to contemplate what hung on the consent of a few young volunteers: several hundred million dollars in television revenue, countless livelihoods, the NCAA budget, and subsidies for sports at more than 1,000 schools. Friday’s informants exhaled when the suspect team lost before the finals.

Cognizant of its precarious financial base, the NCAA has in recent years begun to pursue new sources of revenue. Taking its cue from member schools such as Ohio State (which in 2009 bundled all its promotional rights—souvenirs, stadium ads, shoe deals—and outsourced them to the international sports marketer IMG College for a guaranteed $11 million a year), the NCAA began to exploit its vault of college sports on film. For $29.99 apiece, NCAA On Demand offers DVDs of more than 200 memorable contests in men’s ice hockey alone. Video-game technology also allows nostalgic fans to relive and even participate in classic moments of NCAA Basketball. NCAA Football, licensed by the NCAA through IMG College to Electronic Arts, one of the world’s largest video-game manufacturers, reportedly sold 2.5 million copies in 2008. Brit Kirwan, the chancellor of the Maryland university system and a former president at Ohio State, says there were “terrible fights” between the third Knight Commission and the NCAA over the ethics of generating this revenue.

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. Last year, Electronic Arts paid more than $35 million in royalties to the NFL players union for the underlying value of names and images in its pro football series—but neither the NCAA nor its affiliated companies paid former college players a nickel. Naturally, as they have become more of a profit center for the NCAA, some of the vaunted “student-athletes” have begun to clamor that they deserve a share of those profits. You “see everybody getting richer and richer,” Desmond Howard, who won the 1991 Heisman Trophy while playing for the Michigan Wolverines, told USA Today recently. “And you walk around and you can’t put gas in your car? You can’t even fly home to see your parents?”

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. On July 21, 2009, lawyers for Ed O’Bannon filed a class-action antitrust suit against the NCAA at the U.S. District Court in San Francisco. “Once you leave your university,” says O’Bannon, who won the John Wooden Award for player of the year in 1995 on UCLA’s national-championship basketball team, “one would think your likeness belongs to you.” The NCAA and UCLA continue to collect money from the sales of videos of him playing. But by NCAA rules, O’Bannon, who today works at a Toyota dealership near Las Vegas, alleges he is still not allowed to share the revenue the NCAA generates from his own image as a college athlete. His suit quickly gathered co-plaintiffs from basketball and football, ex-players featured in NCAA videos and other products. “The NCAA does not license student-athlete likenesses,” NCAA spokesperson Erik Christianson told The New York Times in response to the suit, “or prevent former student-athletes from attempting to do so. Likewise, to claim the NCAA profits off student-athlete likenesses is also pure fiction.”

The legal contention centers on Part IV of the NCAA’s “Student-Athlete Statement” for Division I, which requires every athlete to authorize use of “your name or picture … to promote NCAA championships or other NCAA events, activities or programs.” Does this clause mean that athletes clearly renounce personal interest forever? If so, does it actually undermine the NCAA by implicitly recognizing that athletes have a property right in their own performance? Jon King, a lawyer for the plaintiffs, expects the NCAA’s core mission of amateurism to be its “last defense standing.”

In theory, the NCAA’s passion to protect the noble amateurism of college athletes should prompt it to focus on head coaches in the high-revenue sports—basketball and football—since holding the top official accountable should most efficiently discourage corruption. The problem is that the coaches’ growing power has rendered them, unlike their players, ever more immune to oversight. According to research by Charles Clotfelter, an economist at Duke, the average compensation for head football coaches at public universities, now more than $2 million, has grown 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 now exceed $4 million, augmented by assorted bonuses, endorsements, country-club memberships, the occasional private plane, and in some cases a negotiated percentage of ticket receipts. (Oregon’s ticket concessions netted former football coach Mike Bellotti an additional $631,000 in 2005.)

The NCAA rarely tangles with such people, who are apt to fight back and win. When Rick Neuheisel, the head football coach of the Washington Huskies, was punished for petty gambling (in a March Madness pool, as it happened), he sued the NCAA and the university for wrongful termination, collected $4.5 million, and later moved on to UCLA. When the NCAA tried to cap assistant coaches’ entering salary at a mere $16,000, nearly 2,000 of them brought an antitrust suit, Law v. NCAA, and in 1999 settled for $54.5 million. Since then, salaries for assistant coaches have commonly exceeded $200,000, with the top assistants in the SEC averaging $700,000. In 2009, Monte Kiffin, then at the University of Tennessee, became the first assistant coach to reach $1 million, plus benefits.

The late Myles Brand, who led the NCAA from 2003 to 2009, 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 2010, outrage targeted sports agents. Last year Sports Illustrated published “Confessions of an Agent,” a firsthand account of dealing with high-strung future pros whom the agent and his peers courted with flattery, cash, and tawdry favors. Nick Saban, Alabama’s head football coach, mobilized his peers to denounce agents as a public scourge. “I hate to say this,” he said, “but how are they any better than a pimp? I have no respect for people who do that to young people. None.”

Saban’s raw condescension contrasts sharply with the lonely penitence from Dale Brown, the retired longtime basketball coach at LSU. “Look at the money we make off predominantly poor black kids,” Brown once reflected. “We’re the whoremasters.”

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Taylor Branch is the author of, among other works, America in the King Years, a three-volume history of the civil-rights movement, for which he won the Pulitzer Prize and the National Book Critics Circle Award.

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