GUEST POST WRITTEN BY Ronald S. Katz
Lawyer with Manatt, Phelps & Phillips, LLP and the Chair Emeritus of Santa Clara University’s Institute of Sports Law and Ethics.


The fact that the courts are, in effect, shaping NCAA policy these days is a strong sign that the NCAA should take a more proactive role in reconsidering amateurism. Two recent decisions—one denying the right of student-athletes to unionize and one affirming that the NCAA has violated the antitrust laws by agreeing not to award athletic scholarships for the full cost of college attendance—have shifted such decisions from a multitude of university and NCAA administrators experienced with college sports to a handful of judges and government officials whose job descriptions require no knowledge of college sports. Any organization would have difficulty coping with such a policy making “process.”

The appellate court that rendered the antitrust decision, O’Bannon v. NCAA, is now considering whether to re-hear that case. This pause in the action provides the NCAA with an ideal opportunity to re-define its core concept—amateurism—in a way that both complies with the law and supports the educational mission of the vast majority of institutions of higher education that compose the NCAA’s membership.

Such a re-definition would be completely consistent with changes in the amateurism concept over time. For example, before the mid-twentieth century, NCAA institutions were not permitted to grant athletic scholarships. Since that time, scholarships have melded into the concept of amateurism in a way that has, until the late twentieth century, supplemented the academic mission of NCAA members.

Since the late twentieth century, however, so much money has poured into college football and men’s basketball that amateurism has become an illusion for the major colleges that engage in those sports. Because those 65 major sports colleges from the so-called Power Five conferences (ACC, Big 12, Big Ten, Pac-12 and SEC) are quite different from the remaining more than 1100 institutions that compose the NCAA, it makes sense to separate the two kinds of schools, recognize the obvious professionalism of the football and men’s basketball programs at the Power Five schools, and make rules for the others that accord sport its proper role in support of the academic mission.

Call the Power Five What They Are: Professionals

Nothing the Power Five can say or do will credibly convince anyone that the multi-billion dollar enterprise of football and men’s basketball is amateurism rather than professional sport entertainment. The claim that not paying the players makes it amateurism rings particularly false: Paying players far below the minimum wage is exploitation, not amateurism.

To a certain extent, the NCAA recognized this fact in 2014, when the Power Five conferences were given rule-making power independent of the process for the other more than 1100 NCAA members. Now the NCAA should just part ways with the Power Five, at least in football and men’s basketball, because the NCAA still has the potential to implement a reasonable definition of amateurism for the vast majority of its member schools. Amateurism is simply no longer possible for the Power Five in football and men’s basketball because of their addiction to the billions of dollars per year generated by those programs. The fact that the Power Five are still nominally members of the NCAA in those sports is merely a fig-leaf, and an ill-fitting one at that.

The other 1100-plus NCAA institutions, however, make little or no money – most often lose money – from their athletic programs. Now that the Power Five have been permitted by the NCAA to make their own rules regardless of those other members, the Power Five are, in effect, in a different NCAA Division, one which does not, for example, share with other NCAA members the massive revenues from the newly-established football playoffs.

What late Supreme Court Justice (and former All-American football player) Byron White predicted in a 1984 dissenting opinion has now come to pass for the Power Five, i.e., that the very existence of amateur college athletics is “threatened by unbridled competition in the economic sphere.” That is why there are such things as Thursday night college football games, which are conformed to television, not academic, schedules. Similarly, professional-style football playoffs extend the college season in such a way that increases the participants’ chances of injury and decreases their chances of academic success.

Make Credible Rules for the Remaining More Than 1100 NCAA Members

Re-Thinking the 391-page NCAA rulebook would drastically simplify it, because the amended rules should simply go back to basics:

1) Change the Designation “Student-Athlete” to “Student”

This simple but dramatic change would clarify and emphasize that institutions of higher education have as their core mission the provision of education rather than athletics or entertainment. No college sports regulatory scheme will work unless this focus is correct.

So-called “student-athletes” are the only hyphenated designation in the student body. Members of the student band, for example, are not called student-musicians and chemistry majors are not called student-chemists. Therefore, in and of itself, the hyphenation implies that student-athletes will be treated differently. This different treatment is precisely the problem that needs to be addressed.

2) Do Not Make Any Special Academic Rules for Athletes

The NCAA has many academic rules that apply to “student-athletes,” ranging from admission policies to progress toward graduation. But these policies are unnecessary, because the educational institutions themselves, which are the experts in this area, already have policies in all of the same areas.

There is absolutely no reason why an educational, institution’s policies should not apply equally to all students. For example, every institution has rules regarding progress toward graduation, and athletes should have to comply with those rules in order to be eligible to play sports. Again, the unequal treatment among students in the same student bodies caused by the NCAA rules is the problem, not the solution. Getting rid of NCAA academic rules would also substantially shorten and simplify the NCAA rules book

Some will argue that eliminating the NCAA academic rules will disadvantage youth from underprivileged backgrounds, for whom athletic talent is sometimes the only way to gain entry to college. This is not necessarily the case, because educational institutions can still accept these applicants, as many already do, and provide adequate tutoring and other remedial programs for them.

Some will also argue that eliminating NCAA academic rules will lead to a lack of academic uniformity among NCAA schools. Such a lack of uniformity already exists, however, and is inevitable given the number and varying quality of NCAA schools.

3) Infractions of NCAA Rules Should be Assigned to Retired Judges for Decision

Under the current NCAA disciplinary system, the NCAA is, unworkably, the prosecutor, judge, jury and appellate court. Furthermore, discipline is often handled by personnel from NCAA members, who are judging other competitor members and therefore have a conflict of interest. The result is that many disciplinary actions in recent years have been questionable at best.

The solution to this problem was actually suggested by a distinguished committee appointed by the NCAA in 1991. That committee, which included a former Chief Justice of the United States Supreme Court and a former Solicitor General of the United States, recommended that former judges or other eminent legal authorities be the hearing officers for major violations. To date, this recommendation has foolishly been ignored by the NCAA.

Adoption of the Above Proposals Will Lessen the NCAA’s Antitrust Woes

The U.S. Supreme Court has described the NCAA as a cartel, and other courts–most recently in the O’Bannon case—have labeled the NCAA an antitrust violator. This woeful record in court results directly from the justifications that the NCAA uses for its actions—primarily the maintenance of competitive balance. That justification, however, has nothing to do with supporting and supplementing educational mission, which is a justification that would be much more persuasive to the courts. If the NCAA banned Thursday night football games, for example, which would obviously inhibit economic as well as athletic competition on that night, that ban could be justified because such week-night games undermine the educational mission.

The Power Five are no longer likely to enact such a ban, because their lucrative television contracts prevent that. The remaining 1100-plus NCAA schools, however, could and should easily do that and other similar acts that will restore the precedence of education over athletics at their institutions. Only then will the courts stop making NCAA policy.