By Philip D. Bartz and Nicholas S. Sloey [1]
College football has been riddled over the past year with scandals, rule violations, and the movement of teams from one conference to another. Media coverage has been quite negative, and the National Collegiate Athletic Association (“NCAA”) often is cast as the villain. Well-regarded economist, Andy Schwarz, has attacked the NCAA’s amateurism model. [2] Taylor Branch, a Pulitzer Prize winning author, in a rigorous critique of the NCAA writes that while college athletes “are not slaves,” in taking a close look at college athletics one would “catch an unmistakable whiff of the plantation.” [3] Strong stuff, indeed.
In legal terms, critics such as Branch and Schwarz claim that the NCAA is an illegal cartel that artificially depresses the compensation that college athletes may receive from universities. [4] In other words, they contend that the problems we see in college football are in large measure the result of NCAA antitrust violations that have resulted in college athletes not being paid. While a headline-grabbing position, as a legal matter the critics are simply wrong. The NCAA model is completely lawful under the antitrust laws. Indeed, as we explain below, the current problems in college football are primarily the result of the Supreme Court’s incorrect application of the antitrust laws to college football, which has unduly restricted the NCAA’s regulatory authority since 1984.
Once the legal issue is properly understood, critics are left with general policy arguments that college athletes should be paid, and that somehow it would cure the problems in college football and improve college athletics. These arguments are also off the mark. Rather than improving the situation, making the changes these critics urge would have effects that would severely harm student-athletes and college athletics.
Turning college sports into a pure business – as the critics effectively urge – will not fix the problems we observe with football. To the contrary, economic analysis of “pay-to-play” suggests at least two significant adverse effects on colleges and intercollegiate sports. First, many colleges likely will stop offering college football and basketball altogether, and the overall opportunities for athletes in these sports will be reduced. Second, “pay-to-play” will have a serious adverse effect on non-revenue college sports, particularly women’s sports.
In short, while it might be a well-intentioned idea to pay college football and basketball players – especially those from economically disadvantaged backgrounds – it would transform intercollegiate sports, and not for the better. A look at the evolution of college football since the landmark Supreme Court decision in NCAA v. Board of Regents of the University of Oklahoma is a good place to begin to understand why this is so. [5]
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1. Mr. Bartz is a partner, and Mr. Sloey an associate, in the Washington office of Bryan Cave LLP, and represent the NCAA. The views expressed in this article are solely those of the authors and not those of Bryan Cave LLP or its clients. The authors would like to thank Rebecca Nelson and Arindam Kar for their contributions to this article.
2. Andy Schwarz, Excuses, Not Reasons: 13 Myths about (Not) Paying College Athletes, Selected Proceedings of the Santa Clara Sports Law Symposium, Sept. 8, 2011, 46, 67.
3. Taylor Branch, The Shame of College Sports, The Atlantic, October 2011, available at http://www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-sports/8643.
4. See, e.g., Matt Norlander, Podcast: The Shame of College Sports (Interview of Taylor Branch), CBSSports.com, Sept. 16, 2011 available at http://www.cbssports.com/mcc/blogs/entry/26283066/32016194.
5. 468 U.S. 85 (1984).
