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.
“You Might As Well Shoot Them in the Head”

“When you dream about playing in college,” Joseph Agnew told me not long ago, “you don’t ever think about being in a lawsuit.” Agnew, a student at Rice University in Houston, had been cut from the football team and had his scholarship revoked by Rice before his senior year, meaning that he faced at least $35,000 in tuition and other bills if he wanted to complete his degree in sociology. Bereft of his scholarship, he was flailing about for help when he discovered the National College Players Association, which claims 7,000 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 2008 to 2009—the same fate he had suffered.

In October 2010, 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 1973, 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. (After the coach who had recruited Agnew had moved on to Tulsa, the new Rice coach switched Agnew’s scholarship to a recruit of his own.) 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.

Agnew’s suit rested on a claim of an NCAA antitrust violation combined with a laudable academic goal—making it possible for students to finish their educations. Around the same time, lawyers from President Obama’s Justice Department initiated a series of meetings with NCAA officials and universities in which they asked what possible educational rationale there was for allowing the NCAA—an organization that did not itself pay for scholarships—to impose a blanket restriction on the length of scholarships offered by colleges. Tidbits leaked into the press. In response, the NCAA contended that an athletic scholarship was a “merit award” that should be reviewed annually, presumably because the degree of “merit” could change. Justice Department lawyers reportedly suggested that a free market in scholarships would expand learning opportunities in accord with the stated rationale for the NCAA’s tax-exempt status—that it promotes education through athletics. The one-year rule effectively allows colleges to cut underperforming “student-athletes,” just as pro sports teams cut their players. “Plenty of them don’t stay in school,” said one of Agnew’s lawyers, Stuart Paynter. “They’re just gone. You might as well shoot them in the head.”

Agnew’s lawsuit has made him a pariah to former friends in the athletic department at Rice, where everyone identified so thoroughly with the NCAA that they seemed to feel he was attacking them personally. But if the premise of Agnew’s case is upheld by the courts, it will make a sham of the NCAA’s claim that its highest priority is protecting education.

“They Want to Crush These Kids”

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. In 1989, Dexter Manley, by then the famous “Secretary of Defense” for the NFL’s Washington Redskins, teared up before the U.S. 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 1980s, 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. Documents showed that administrators replaced the grades she’d given athletes with higher ones, providing fake passing grades on one notable occasion to nine Bulldog football players who otherwise would have been ineligible to compete in the 1982 Sugar Bowl. (Georgia lost anyway, 24–20, to a University of Pittsburgh team led by the future Hall of Fame quarterback Dan Marino.) When Kemp filed a lawsuit against the university, she was publicly vilified as a troublemaker, but she persisted bravely in her testimony. Once, Kemp said, a supervisor demanding that she fix a grade had bellowed, “Who do you think is more important to this university, you or Dominique Wilkins?” (Wilkins was a star on the basketball team.) Traumatized, Kemp twice attempted suicide.

In trying to defend themselves, Georgia officials portrayed Kemp as naive about sports. “We have to compete on a level playing field,” said Fred Davison, the university president. During the Kemp civil trial, in 1986, Hale Almand, Georgia’s defense lawyer, explained the university’s patronizing aspirations for its typical less-than-scholarly athlete. “We may not make a university student out of him,” Almand told the court, “but if we can teach him to read and write, maybe he can work at the post office rather than as a garbage man when he gets through with his athletic career.” This argument backfired with the jurors: finding in favor of Kemp, they rejected her polite request for $100,000, and awarded her $2.6 million in damages instead. (This was later reduced to $1.08 million.) Jan Kemp embodied what is ostensibly the NCAA’s reason for being—to enforce standards fairly and put studies above sports—but no one from the organization ever spoke up on her behalf.

The NCAA body charged with identifying violations of any of the Division I league rules, the Committee on Infractions, operates in the shadows. Josephine Potuto, a professor of law at the University of Nebraska and a longtime committee member who was then serving as its vice chair, told Congress in 2004 that one reason her group worked in secret was that it hoped to avoid a “media circus.” The committee preferred to deliberate in private, she said, guiding member schools to punish themselves. “The enforcement process is cooperative, not adversarial,” Potuto testified. The committee consisted of an elite coterie of judges, athletic directors, and authors of legal treatises. “The committee also is savvy about intercollegiate athletics,” she added. “They cannot be conned.”

In 2009, 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 2007, 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. Brenda Monk, an academic tutor for the Seminoles, says she noticed the error and asked a teammate to finish entering Thornton’s answers onscreen and hit “submit,” as required for credit. 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). Monk promptly resigned when questioned by FSU officials, saying her fatigue at the time could not excuse her asking the teammate to submit the answers to another student’s completed test.

Monk’s act of guileless responsibility set off a chain reaction. First, FSU had to give the NCAA preliminary notice of a confessed academic fraud. Second, because this would be its seventh major infraction case since 1968, FSU mounted a vigorous self-investigation to demonstrate compliance with NCAA academic rules. Third, interviews with 129 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. Fifth, the infractions committee applied the byzantine NCAA bylaws to FSU’s violations. Sixth, one of the penalties announced in March of 2009 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. Such a penalty, if upheld, would doom coach Bobby Bowden’s chance of overtaking Joe Paterno of Penn State for the most football wins in Division I history. 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.

When reporters sought access to the transcript of the infractions committee’s hearing in Indianapolis, NCAA lawyers said the 695-page document was private. (The NCAA claimed it was entitled to keep all such records secret because of a landmark Supreme Court ruling that it had won in 1988, in NCAA v. Tarkanian, which exempted the organization from any due-process obligations because it was not a government organization.) Media outlets pressed the judge to let Florida State share its own copy of the hearing transcript, whereupon NCAA lawyers objected that the school had never actually “possessed” the document; it had only seen the transcript via a defendant’s guest access to the carefully restricted NCAA Web site. This claim, in turn, prompted intercession on the side of the media by Florida’s attorney general, arguing that letting the NCAA use a technical loophole like this would undermine the state’s sunshine law mandating open public records. After tumultuous appeals, the Florida courts agreed and ordered the NCAA transcript released in October of 2009.

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. K. Wetherell, the bewildered Florida State president, lamented that his university had hurt itself by cooperating with the investigation. “We self-reported this case,” he said during the hearing, and he later complained that the most ingenuous athletes—those who asked “What’s the big deal, this happens all the time?”—received the harshest suspensions, while those who clammed up on the advice of lawyers went free. The music-appreciation professor was apparently never questioned. 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.

In January of last year, the NCAA’s Infractions Appeals Committee sustained all the sanctions imposed on FSU except the number of vacated football victories, which it dropped, ex cathedra, from 14 to 12. The final penalty locked Bobby Bowden’s official win total on retirement at 377 instead of 389, behind Joe Paterno’s 401 (and counting). 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. A dreaded “show cause” order rendered Brenda Monk, the tutor, effectively unhirable at any college in the United States. Cloaking an old-fashioned blackball in the stately language of law, the order gave notice that any school hiring Monk before a specified date in 2013 “shall, pursuant to the provisions of Bylaw, show cause why it should not be penalized if it does not restrict the former learning specialist [Monk] from having any contact with student-athletes.” Today she works as an education supervisor at a prison in Florida.

The Florida State verdict hardly surprised Rick Johnson, the lawyer who had represented the college pitchers Andrew Oliver and James Paxton. “All the NCAA’s enforcements are random and selective,” he told me, calling the organization’s appeals process a travesty. (Johnson says the NCAA has never admitted to having wrongly suspended an athlete.) Johnson’s scalding experience prompted him to undertake a law-review article on the subject, which in turn sent him trawling through NCAA archives. From the summary tax forms required of nonprofits, he found out that the NCAA had spent nearly $1 million chartering private jets in 2006. “What kind of nonprofit organization leases private jets?,” Johnson asks. It’s hard to determine from tax returns what money goes where, but it looks as if the NCAA spent less than 1 percent of its budget on enforcement that year. Even after its plump cut for its own overhead, the NCAA dispersed huge sums to its 1,200 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 1973 memo from the NCAA general counsel recommending the adoption of a due-process procedure for athletes in disciplinary cases. Without it, warned the organization’s lawyer, the association risked big liability claims for deprivation of rights. 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. Moreover, the NCAA’s 1975 convention adopted a second recommendation “to discourage legal actions against the NCAA,” according to the minutes. The members voted to create Bylaw 19.7, Restitution, to intimidate college athletes in disputes with the NCAA. 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. “They want to crush these kids,” he says.

The NCAA, of course, has never expressed such a desire, and its public comments on due process tend to be anodyne. At a congressional hearing in 2004, the infractions-committee vice chair, Josephine Potuto, repeatedly argued that although the NCAA is “not bound by any judicial due process standards,” its enforcement, infractions, and hearing procedures meet and “very likely exceed” those of other public institutions. 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 1988 Tarkanian decision. “In order to reach due-process issues as a legal Constitutional principle, the individual challenging has to have a substantive property or liberty interest,” she testified. “The opportunity to play intercollegiate athletics does not rise to that level.”

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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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