By Kyle Sandulescu – Thompson Rivers University JD Student
When the NCAA was established in 1906, it was designed to entrench the principal of “a sound mind in a sound body” at institutions of higher learning in America. The bargain was that NCAA agreed to protect the health and well-being of its student-athletes, on the agreement that the student-athletes withdraw their right to profit from their athletic endeavours in any way. In short, the NCAA was established under the belief that men and women could enrich their lives through the amateur student-athlete experience.
Over 100 years later, the NCAA has become an oft-criticized figure of manipulation and a far-cry from an ambassador of amateurism in sport. The NCAA is an apparent hoax; a regulatory body designed to protect student-athletes while dealing at arm’s length with commercial enterprises who profit from their marketability.
The late Myles Brand, director of the NCAA from 2002-2009, defended the economics of college sports by claiming that they were simply the result of a smoothly functioning free market. However, the market is not free because there is unequal bargaining power between the NCAA and the athletes who provide the NCAA with its product.
The argument to be made is that the NCAA has clearly been overcome by the commercial forces that surround college sports to the detriment of the student-athlete. Lawsuits have exploited the NCAA’s unwillingness to protect student-athletes who suffer from long term injury, while the NCAA throws its rulebook at its athletes for even the most minor infractions resulting in a “profit” from their college athletic careers. Evidently, the NCAA has balked on protecting athletes from commercial exploitation because they are afraid to bite the hand that is their sole source of authority – the member institutions.
Section 2.9 of the Division I Manual of the NCAA states the principle of amateurism rather amiably: “student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.” However, it is hard to understand the rationale for the principal of amateurism when the NCAA signs mega-broadcasting deals worth over half a billion dollars for NCAA football and basketball while major sponsors hammer on the doors of member institutions to ensure that the top programs and players are hyping their brand.
The outspoken Taylor Branch once said in his now infamous article, The Shame of College Sports: “The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.”
Adopting Branch’s position, it is hard to make a straight-faced argument that the principal of amateurism is being abused to serve a commercial purpose. In recent memory the courts have been more willing to confront this issue head on. The US Court of Appeals for the Ninth Circuit in O’Bannon v NCAA upheld a district court’s decision that NCAA amateurism rules violate antitrust laws saying that “the NCAA’s rules had significant anti-competitive effects within the college education market.”
O’Bannon makes it clear that the NCAA’s principle of amateurism is being used to regulate a commercial activity, while the NCAA has continued to rely on the decision in NCAA v Board of Regents of the University of Oklahoma, which stated that “to preserve the character and quality of the product, athletes must not be paid.”
Criticizing the NCAA’s principal of amateurism should make us uneasy because it largely epitomizes a departure from the ideal that the outcome of the sport was determined by the skill of players and not the cheque books of their institutions. Given the evolution of college sports into the mega-industry it is today, the NCAA would be wise to take advantage of the opportunity to legitimize the concept of amateurism in the wake of commercial realities.
At stake for the NCAA are billions of dollars in revenues and licensing fees if the NCAA cannot demonstrate that it is capable and willing to protect the health and well-being of student athletes. The principal of amateurism can therefore be re-tooled to reflect the need to protect athlete’s from injury, perhaps deflecting the accusations that the NCAA has essentially sold out the health of their athletes for the commercial interests of member institutions.