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Chapter 4

Amateurs: Who Is Being Cheated?

“Right now the NCAA is like a dictatorship. No one represents us in negotiations. The only way things are going to change is if players have a union.”¹ With these words in early 2014, Northwestern University’s Cain Kolter, the starting quarterback on its football team, announced that he was leading an effort to unionize the school’s football players. Football players at Northwestern, and indeed college athletes generally, don’t have the right to unionize because under US law they are not considered employees. Instead, they are considered students who pursue athletics as an extracurricular activity. In recent years, the notion of the college athlete participating in sports as a side activity to university education has come under intense pressure.

Big-time college sports in the United States are dependent on amateurism as the basis for a vast suite of rules and regulations. “Big-time” typically refers to men’s football and basketball programs—multibillion-dollar enterprises with far more in common with professional leagues than with other intercollegiate sports.

I argue in this chapter that big-time college sports are unsustainable in their current form and that changes in how college sports are run are inevitable. What those changes might be and how they might affect universities and sports is highly uncertain, but I do have some ideas about how college athletics might adapt to the realities of the twenty-first century while preserving much of what makes college athletics so beloved. It is possible to replace an outdated reliance on a romantic myth of amateurism with a pragmatic approach to professionalism that preserves the essence of college sports. But first, before looking forward, let’s take a look back at how college sport found itself at the current fork in the road.

When Cain Kolter and his fellow teammates sought to unionize, the NCAA responded with strong opposition: “This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary.”² The idea of college athletes as employees would undercut the entire premise of the NCAA, which is based on the notion that “student-athletes” are students first, athletes second.

Kolter and his fellow players took their request to unionize to the National Labor Relations Board (NLRB), the governmental body responsible for protecting the rights of labor. In a move that surprised many, the regional arm of the NLRB ruled in favor of the athletes, concluding, “that players receiving scholarships from [Northwestern University] are ‘employees.’”³ The decision marked a watershed moment in the evolution of college sports. For the first time, some college athletes were judged under US law to be employees of the university that granted them scholarships and other benefits in exchange for participation in their sports.

The NLRB decision attracted attention at the highest levels of American politics. The US House of Representatives Committee on Education and the Workforce held a hearing on unionization, in which opinions sorted on predictable political lines. Representative John Kline, a Minnesota Republican, invoked President Franklin Roosevelt in expressing his opposition to the NLRB decision: “It’s hard to imagine President Roosevelt thought the [National Labor Relations Act] would one day apply to the relationship between student athletes and academic institutions, yet that is precisely where we are.”⁴ On the other side of the aisle, Representative George Miller, a union-friendly Democrat from California, applauded the verdict: “In the end, this is a classic labor dispute. The NCAA empire is holding all the cards, making all the rules, and capturing all the profits.”⁵

The NLRB decision was not the only blow to the NCAA in 2014. Later that year, a US district court ruled that the NCAA could not prohibit men’s football and basketball players from being compensated for the commercial use of their names, images, or likenesses.⁶ Former UCLA star basketball player Ed O’Bannon spearheaded the lawsuit. O’Bannon was motivated originally by the use of virtual representations of former college athletes—specifically himself—in the very popular and highly successful video games produced by EA Sports.⁷ O’Bannon saw himself in the video game and realized that he wasn’t being compensated in any way and decided to do something.

The O’Bannon ruling did not allow college athletes to receive payments as individuals, such as those associated with the sale of a jersey with specific names on the back. The ruling did allow colleges to create a trust for each athlete, with royalty payments made to athletes after their college eligibility is used up.

The two decisions suggested that a dam had apparently been broken. But in the increasingly litigious world of college sports, the breach did not last long. The NLRB decision was overturned at the national level in August 2015.⁸ The NLRB did not actually weigh in on the question of whether or not the Northwestern players were employees. Instead, the NLRB declined to assert jurisdiction over the issue, noting an “absence of explicit congressional direction.”⁹ In the language of college sports, the NLRB decided to “punt.” Even so, the NLRB said that its decision “does not preclude a reconsideration of this issue in the future.” The Northwestern athletes had lost this battle, but the war was far from over.

In September 2015, a US appeals court ruled that paying students a name, image, or likeness would turn college athletics into professional leagues with “minor league status.”¹⁰ The court explained: “The difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor; it is a quantum leap.”¹¹ Rather, the court ruled that colleges could offer students the full cost of attendance, which it defined as an education-related expense. The NCAA quickly adopted “cost of attendance” payments which led to college athletes receiving more than $160 million in additional benefits, according to an analysis by USA Today, as universities added this new benefit to their scholarship packages.¹² Of course, regulating the “cost of attendance” necessitated more layers of rules and enforcement by the NCAA.¹³

I’m sure that we have not heard the last of the O’Bannon case. And it is far from the only lawsuit that the NCAA is facing on issues related to compensation of athletes. The NCAA has, like the little boy in the Dutch story, plugged the holes in the dike, keeping back the flood waters of change. But despite the momentary respite for the NCAA, what should be clear from the Northwestern and O’Bannon judgments is that the model of college sports that has existed for more than a century that holds that college athletes are amateurs is changing. Whether the NCAA admits it or not, what is happening is a labor negotiation, with the athletes holding considerable untapped power. To understand the nature of that change, and where things might be headed, requires a journey back in time.

The Origins of the NCAA

Children like to play games and they like to compete against each other. This goes especially for college kids—young adults—and this seems to have been the case almost as far back as American universities have existed.

If a date can be put on the start of modern American collegiate sports, that would be August 3, 1852.¹⁴ That summer day saw the first intercollegiate sporting event: a crew race between Harvard and Yale sponsored by a railroad company.¹⁵ Foreshadowing the next 150 years of college sports, in pursuit of an advantage over their rivals, Harvard (allegedly) recruited a local coxswain to lead their boat who was not a student, but who could row like a beast.¹⁶

Organized games between schools followed in a variety of sports. The first intercollegiate baseball game was Amherst versus Williams in 1859; the first intercollegiate football game was Rutgers versus Princeton in 1869.¹⁷ Sports grew rapidly on and between campuses. In the 1890s, the president of MIT worried that if sports continued to attract interest in universities, “it will soon be fairly a question whether the letters B.A. stand more for Bachelor of Arts or Bachelor of Athletics.”¹⁸

The growth of college sports created the demand for an organization to oversee the competitions in a manner more formalized than students could provide. One key challenge was to standardize the rules of the games and their application. Interscholastic competition would not get very far if teams played baseball or football by different rules. So in 1895, seven university presidents from Midwest schools met in Chicago “to adopt rules and regulations for student participation in intercollegiate sports.”¹⁹ That coalition would later become the Big Ten Conference.

The early years of college sports were not all fun and games. Far from it. In 1905, 19 football players were killed in intercollegiate games and 137 more were seriously injured. Over the previous five years, 26 players had died as a result of playing football.²⁰ There were calls to ban the sport as too dangerous, too brutal. Columbia University outlawed football, and Harvard considered a ban.²¹ Even as sport grew in popularity, the fate of sport hung in the balance.

Enter President Theodore Roosevelt.

In 1876, Roosevelt was a small, asthmatic freshman at Harvard. He attended the second football game ever player between Harvard and Yale and immediately became a fan of the game and of sport more generally.²² In a speech made in 1900, one year before becoming US president, Roosevelt expressed his views on the importance of sport:

The great growth in the love of athletic sports, for instance, while fraught with danger if it becomes one-sided and unhealthy, has beyond all question had an excellent effect in increased manliness. . . . In short, in life, as in a football game, the principle to follow is: Hit the line hard; don’t foul and don’t shirk, but hit the line hard!²³

In 1905, as the casualty toll mounted on football fields, Roosevelt used his “bully pulpit” to bring together representatives of Harvard, Yale, and Princeton to fix football. The universities agreed to take steps to reduce the brutality of the game. One historian called this resulting agreement “probably the most important event in the history of intercollegiate sport.”²⁴

Yet, the agreement did not eliminate the brutality of the game. Ronald Smith, a professor at Penn State, recounts one particularly nasty episode in 1905 involving Penn against Harvard, one of the schools that had agreed a few months previously to help clean up the game: “During the game the Harvard center was kicked in the groin several times by a Penn player. After having complained to the umpire with no satisfaction, the Harvard man belted the Penn player in the face and was banished from the game.”²⁵