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.
Potuto’s assertion might be judged preposterous, an heir of the Dred Scott dictum that slaves possessed no rights a white person was bound to respect. But she was merely being honest, articulating assumptions almost everyone shares without question. Whether motivated by hostility for students (as critics like Johnson allege), or by noble and paternalistic tough love (as the NCAA professes), the denial of fundamental due process for college athletes has stood unchallenged in public discourse. Like other NCAA rules, it emanates naturally from the premise that college athletes own no interest in sports beyond exercise, character-building, and good fun. Who represents these young men and women? No one asks.
Video: Taylor Branch explains the circular logic that keeps college athletes from getting a slice of the enormous industry that surrounds them (part 3 of 3)
The debates and commissions about reforming college sports nibble around the edges—trying to reduce corruption, to prevent the “contamination” of athletes by lucre, and to maintain at least a pretense of concern for academic integrity. Everything stands on the implicit presumption that preserving amateurism is necessary for the well-being of college athletes. But while amateurism—and the free labor it provides—may be necessary to the preservation of the NCAA, and perhaps to the profit margins of various interested corporations and educational institutions, what if it doesn’t benefit the athletes? What if it hurts them?
“Ninety percent of the NCAA revenue is produced by 1 percent of the athletes,” Sonny Vaccaro says. “Go to the skill positions”—the stars. “Ninety percent African Americans.” The NCAA made its money off those kids, and so did he. They were not all bad people, the NCAA officials, but they were blind, Vaccaro believes. “Their organization is a fraud.”
Vaccaro retired from Reebok in 2007 to make a clean break for a crusade. “The kids and their parents gave me a good life,” he says in his peppery staccato. “I want to give something back.” Call it redemption, he told me. Call it education or a good cause. “Here’s what I preach,” said Vaccaro. “This goes beyond race, to human rights. The least educated are the most exploited. I’m probably closer to the kids than anyone else, and I’m 71 years old.”
Vaccaro is officially an unpaid consultant to the plaintiffs in O’Bannon v. NCAA. He connected Ed O’Bannon with the attorneys who now represent him, and he talked to some of the additional co-plaintiffs who have joined the suit, among them Oscar Robertson, a basketball Hall of Famer who was incensed that the NCAA was still selling his image on playing cards 50 years after he left the University of Cincinnati.
Jon King, an antitrust lawyer at Hausfeld LLP in San Francisco, told me that Vaccaro “opened our eyes to massive revenue streams hidden in college sports.” King and his colleagues have drawn on Vaccaro’s vast knowledge of athletic-department finances, which include off-budget accounts for shoe contracts. Sonny Vaccaro and his wife, Pam, “had a mountain of documents,” he said. The outcome of the 1984 Regents decision validated an antitrust approach for O’Bannon, King argues, as well as for Joseph Agnew in his continuing case against the one-year scholarship rule. Lawyers for Sam Keller—a former quarterback for the University of Nebraska who is featured in video games—are pursuing a parallel “right of publicity” track based on the First Amendment. Still other lawyers could revive Rick Johnson’s case against NCAA bylaws on a larger scale, and King thinks claims for the rights of college players may be viable also under laws pertaining to contracts, employment, and civil rights.
Vaccaro had sought a law firm for O’Bannon with pockets deep enough to withstand an expensive war of attrition, fearing that NCAA officials would fight discovery to the end. So far, though, they have been forthcoming. “The numbers are off the wall,” Vaccaro says. “The public will see for the first time how all the money is distributed.”
Vaccaro has been traveling the after-dinner circuit, proselytizing against what he sees as the NCAA’s exploitation of young athletes. Late in 2008, someone who heard his stump speech at Howard University mentioned it to Michael Hausfeld, a prominent antitrust and human-rights lawyer, whose firm had won suits against Exxon for Native Alaskans and against Union Bank of Switzerland for Holocaust victims’ families. Someone tracked down Vaccaro on vacation in Athens, Greece, and he flew back directly to meet Hausfeld. The shoe salesman and the white-shoe lawyer made common cause.
Hausfeld LLP has offices in San Francisco, Philadelphia, and London. Its headquarters are on K Street in Washington, D.C., about three blocks from the White House. When I talked with Hausfeld there not long ago, he sat in a cavernous conference room, tidy in pinstripes, hands folded on a spotless table that reflected the skyline. He spoke softly, without pause, condensing the complex fugue of antitrust litigation into simple sentences. “Let’s start with the basic question,” he said, noting that the NCAA claims that student-athletes have no property rights in their own athletic accomplishments. Yet, in order to be eligible to play, college athletes have to waive their rights to proceeds from any sales based on their athletic performance.
“What right is it that they’re waiving?,” Hausfeld asked. “You can’t waive something you don’t have. So they had a right that they gave up in consideration to the principle of amateurism, if there be such.” (At an April hearing in a U.S. District Court in California, Gregory Curtner, a representative for the NCAA, stunned O’Bannon’s lawyers by saying: “There is no document, there is no substance, that the NCAA ever takes from the student-athletes their rights of publicity or their rights of likeness. They are at all times owned by the student-athlete.” Jon King says this is “like telling someone they have the winning lottery ticket, but by the way, it can only be cashed in on Mars.” The court denied for a second time an NCAA motion to dismiss the O’Bannon complaint.)
The waiver clause is nestled among the paragraphs of the “Student-Athlete Statement” that NCAA rules require be collected yearly from every college athlete. In signing the statement, the athletes attest that they have amateur status, that their stated SAT scores are valid, that they are willing to disclose any educational documents requested, and so forth. Already, Hausfeld said, the defendants in the Ed O’Bannon case have said in court filings that college athletes thereby transferred their promotional rights forever. He paused. “That’s ludicrous,” he said. “Nobody assigns rights like that. Nobody can assert rights like that.” He said the pattern demonstrated clear abuse by the collective power of the schools and all their conferences under the NCAA umbrella—“a most effective cartel.”
The faux ideal of amateurism is “the elephant in the room,” Hausfeld said, sending for a book. “You can’t get to the bottom of our case without exposing the hypocrisy of amateurism, and Walter Byers says it eloquently.” An assistant brought in Byers’s memoir. It looked garish on the shiny table because dozens of pink Post-its protruded from the text. Hausfeld read to me from page 390:
The college player cannot sell his own feet (the coach does that) nor can he sell his own name (the college will do that). This is the plantation mentality resurrected and blessed by today’s campus executives.
He looked up. “That wasn’t me,” he said. “That was the NCAA’s architect.” He found a key recommendation on page 388:
Prosecutors and the courts, with the support of the public, should use antitrust laws to break up the collegiate cartel—not just in athletics but possibly in other aspects of collegiate life as well.
Could the book become evidence? Might the aged Byers testify? (He is now 89.) Was that part of the plaintiffs’ strategy for the O’Bannon trial? Hausfeld smiled faintly. “I’d rather the NCAA lawyers not fully understand the strategy,” he said.
He put the spiny book away and previewed what lies ahead. The court soon would qualify his clients as a class. Then the Sherman Antitrust Act would provide for thorough discovery to break down exactly what the NCAA receives on everything from video clips to jerseys, contract by contract. “And we want to know what they’re carrying on their books as the value of their archival footage,” he concluded. “They say it’s a lot of money. We agree. How much?”
The work will be hard, but Hausfeld said he will win in the courts, unless the NCAA folds first. “Why?” Hausfeld asked rhetorically. “We know our clients are foreclosed: neither the NCAA nor its members will permit them to participate in any of that licensing revenue. Under the law, it’s up to them [the defendants] to give a pro-competitive justification. They can’t. End of story.”
In 2010 the third Knight Commission, complementing a previous commission’s recommendation for published reports on academic progress, called for the finances of college sports to be made transparent and public—television contracts, conference budgets, shoe deals, coaches’ salaries, stadium bonds, everything. The recommendation was based on the worthy truism that sunlight is a proven disinfectant. But in practice, it has not been applied at all. Conferences, coaches, and other stakeholders resisted disclosure; college players still have no way of determining their value to the university.
“Money surrounds college sports,” says Domonique Foxworth, who is a cornerback for the NFL’s Baltimore Ravens and an executive-committee member for the NFL Players Association, and played for the University of Maryland. “And every player knows those millions are floating around only because of the 18-to-22-year-olds.” Yes, he told me, even the second-string punter believes a miracle might lift him into the NFL, and why not? In all the many pages of the three voluminous Knight Commission reports, there is but one paragraph that addresses the real-life choices for college athletes. “Approximately 1 percent of NCAA men’s basketball players and 2 percent of NCAA football players are drafted by NBA or NFL teams,” stated the 2001 report, basing its figures on a review of the previous 10 years, “and just being drafted is no assurance of a successful professional career.” Warning that the odds against professional athletic success are “astronomically high,” the Knight Commission counsels college athletes to avoid a “rude surprise” and to stick to regular studies. This is sound advice as far as it goes, but it’s a bromide that pinches off discussion. Nothing in the typical college curriculum teaches a sweat-stained guard at Clemson or Purdue what his monetary value to the university is. Nothing prods students to think independently about amateurism—because the universities themselves have too much invested in its preservation. Stifling thought, the universities, in league with the NCAA, have failed their own primary mission by providing an empty, cynical education on college sports.
The most basic reform would treat the students as what they are—adults, with rights and reason of their own—and grant them a meaningful voice in NCAA deliberations. A restoration of full citizenship to “student-athletes” would facilitate open governance, making it possible to enforce pledges of transparency in both academic standards and athletic finances. Without that, the NCAA has no effective checks and balances, no way for the students to provide informed consent regarding the way they are governed. A thousand questions lie willfully silenced because the NCAA is naturally afraid of giving “student-athletes” a true voice. Would college players be content with the augmented scholarship or allowance now requested by the National College Players Association? If a player’s worth to the university is greater than the value of his scholarship (as it clearly is in some cases), should he be paid a salary? If so, would teammates in revenue sports want to be paid equally, or in salaries stratified according to talent or value on the field? What would the athletes want in Division III, where athletic budgets keep rising without scholarships or substantial sports revenue? Would athletes seek more or less variance in admissions standards? Should non-athletes also have a voice, especially where involuntary student fees support more and more of college sports? Might some schools choose to specialize, paying players only in elite leagues for football, or lacrosse? In athletic councils, how much would high-revenue athletes value a simple thank you from the tennis or field-hockey players for the newly specified subsidies to their facilities?
University administrators, already besieged from all sides, do not want to even think about such questions. Most cringe at the thought of bargaining with athletes as a general manager does in professional sports, with untold effects on the budgets for coaches and every other sports item. “I would not want to be part of it,” North Carolina Athletic Director Dick Baddour told me flatly. After 44 years at UNC, he could scarcely contemplate a world without amateur rules. “We would have to think long and hard,” Baddour added gravely, “about whether this university would continue those sports at all.”
I, too, once reflexively recoiled at the idea of paying college athletes and treating them like employees or professionals. It feels abhorrent—but for reasons having to do more with sentiment than with practicality or law. Not just fans and university presidents but judges have often found cursory, non-statutory excuses to leave amateur traditions intact. “Even in the increasingly commercial modern world,” said a federal-court judge in Gaines v. NCAA in 1990, “this Court believes there is still validity to the Athenian concept of a complete education derived from fostering the full growth of both mind and body.” The fact that “the NCAA has not distilled amateurism to its purest form,” said the Fifth Circuit Court of Appeals in 1988, “does not mean its attempts to maintain a mixture containing some amateur elements are unreasonable.”
But one way or another, the smokescreen of amateurism may soon be swept away. For one thing, a victory by the plaintiffs in O’Bannon’s case would radically transform college sports. Colleges would likely have to either stop profiting from students or start paying them. The NCAA could also be forced to pay tens, if not hundreds, of millions of dollars in damages. If O’Bannon and Vaccaro and company win, “it will turn college sports on its ear,” said Richard Lapchick, the president of the National Consortium for Academics and Sports, in a recent interview with The New York Times.
Though the O’Bannon case may take several years yet to reach resolution, developments on other fronts are chipping away at amateurism, and at the NCAA. This past summer, Sports Illustrated editorialized in favor of allowing college athletes to be paid by non-university sources without jeopardizing their eligibility. At a press conference last June, Steve Spurrier, the coach of the South Carolina Gamecocks football team (and the winner of the 1966 Heisman Trophy as a Florida Gator), proposed that coaches start paying players $300 a game out of their own pockets. The coaches at six other SEC schools (Alabama, Florida, Ole Miss, Mississippi State, LSU, and Tennessee) all endorsed Spurrier’s proposal. And Mark Emmert, the NCAA president, recently conceded that big changes must come. “The integrity of collegiate athletics is seriously challenged today by rapidly growing pressures coming from many directions,” Emmert said in July. “We have reached a point where incremental change is not sufficient to meet these challenges. I want us to act more aggressively and in a more comprehensive way than we have in the past. A few new tweaks of the rules won’t get the job done.”
Threats to NCAA dominion also percolate in Congress. Aggrieved legislators have sponsored numerous bills. Senator Orrin Hatch, citing mistreatment of his Utah Utes, has called witnesses to discuss possible antitrust remedies for the Bowl Championship Series. Congressional committees have already held hearings critical of the NCAA’s refusal to follow due process in disciplinary matters; other committees have explored a rise in football concussions. Last January, calls went up to investigate “informal” football workouts at the University of Iowa just after the season-ending bowl games—workouts so grueling that 41 of the 56 amateur student-athletes collapsed, and 13 were hospitalized with rhabdomyolysis, a life-threatening kidney condition often caused by excessive exercise.
The greatest threat to the viability of the NCAA may come from its member universities. Many experts believe that the churning instability within college football will drive the next major change. President Obama himself has endorsed the drumbeat cry for a national playoff in college football. This past spring, the Justice Department questioned the BCS about its adherence to antitrust standards. Jim Delany, the commissioner of the Big Ten, has estimated that a national playoff system could produce three or four times as much money as the existing bowl system does. If a significant band of football schools were to demonstrate that they could orchestrate a true national playoff, without the NCAA’s assistance, the association would be terrified—and with good reason. Because if the big sports colleges don’t need the NCAA to administer a national playoff in football, then they don’t need it to do so in basketball. In which case, they could cut out the middleman in March Madness and run the tournament themselves. Which would deprive the NCAA of close to $1 billion a year, more than 95 percent of its revenue. The organization would be reduced to a rule book without money—an organization aspiring to enforce its rules but without the financial authority to enforce anything.
Thus the playoff dreamed of and hankered for by millions of football fans haunts the NCAA. “There will be some kind of playoff in college football, and it will not be run by the NCAA,” says Todd Turner, a former athletic director in four conferences (Big East, ACC, SEC, and Pac-10). “If I’m at the NCAA, I have to worry that the playoff group can get basketball to break away, too.”
This danger helps explain why the NCAA steps gingerly in enforcements against powerful colleges. To alienate member colleges would be to jeopardize its own existence. Long gone are television bans and the “death penalty” sentences (commanding season-long shutdowns of offending teams) once meted out to Kentucky (1952), Southwestern Louisiana (1973), and Southern Methodist University (1987). Institutions receive mostly symbolic slaps nowadays. Real punishments fall heavily on players and on scapegoats like literacy tutors.
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.
For all our queasiness about what would happen if some athletes were to get paid, there is a successful precedent for the professionalization of an amateur sports system: the Olympics. For years, Walter Byers waged war with the NCAA’s older and more powerful nemesis, the Amateur Athletic Union, which since 1894 had overseen U.S. Olympic athletes. Run in high-handed fashion, the AAU had infamously banned Jesse Owens for life in 1936—weeks after his four heroic gold medals punctured the Nazi claim of Aryan supremacy—because instead of using his sudden fame to tour and make money for the AAU at track meets across Europe, he came home early. In the early 1960s, the fights between the NCAA and the AAU over who should manage Olympic athletes become so bitter that President Kennedy called in General Douglas MacArthur to try to mediate a truce before the Tokyo Olympic Games.
Ultimately, Byers prevailed and effectively neutered the AAU. In November 1978, President Jimmy Carter signed the bipartisan Amateur Sports Act. Amateurism in the Olympics soon dissolved—and the world did not end. Athletes, granted a 20 percent voting stake on every Olympic sport’s governing body, tipped balances in the United States and then inexorably around the world. First in marathon races, then in tennis tournaments, players soon were allowed to accept prize money and keep their Olympic eligibility. Athletes profited from sponsorships and endorsements. The International Olympic Committee expunged the word amateur from its charter in 1986. Olympic officials, who had once disdained the NCAA for offering scholarships in exchange for athletic performance, came to welcome millionaire athletes from every quarter, while the NCAA still refused to let the pro Olympian Michael Phelps swim for his college team at Michigan.
This sweeping shift left the Olympic reputation intact, and perhaps improved. Only hardened romantics mourned the amateur code. “Hey, come on,” said Anne Audain, a track-and-field star who once held the world record for the 5,000 meters. “It’s like losing your virginity. You’re a little misty for awhile, but then you realize, Wow, there’s a whole new world out there!”
Without logic or practicality or fairness to support amateurism, the NCAA’s final retreat is to sentiment. The Knight Commission endorsed its heartfelt cry that to pay college athletes would be “an unacceptable surrender to despair.” Many of the people I spoke with while reporting this article felt the same way. “I don’t want to pay college players,” said Wade Smith, a tough criminal lawyer and former star running back at North Carolina. “I just don’t want to do it. We’d lose something precious.”
“Scholarship athletes are already paid,” declared the Knight Commission members, “in the most meaningful way poss-ible: with a free education.” This evasion by prominent educators severed my last reluctant, emotional tie with imposed amateurism. I found it worse than self-serving. It echoes masters who once claimed that heavenly salvation would outweigh earthly injustice to slaves. In the era when our college sports first arose, colonial powers were turning the whole world upside down to define their own interests as all-inclusive and benevolent. Just so, the NCAA calls it heinous exploitation to pay college athletes a fair portion of what they earn.