Ten years ago, officials from the Big 8 and Southwest Athletic Conferences became painfully aware that their conferences did not have the size of appeal for television revenues to compete optimally on a national basis.
They were simply too small, so they began discussions to combine their conferences to retain the headline universities, shed marginal competitors and negotiate TV contracts with a mega-base of appeal.
It worked. In the year after its formation, the new conference concluded negotiations that produced the largest TV revenues in collegiate athletic history. This move highlighted a fact that we have known for some time: College athletics is an enormous economic industry.
Last week, the U.S. Supreme Court ruled that the National Collegiate Athletic Association could not bar relatively modest payments to student-athletes, a decision that is perhaps a forerunner to future challenges to a college sports system that generates huge sums for schools but provides little or no compensation to the student players.
The decision concerned only payments and other benefits related to education. But its logic suggested that the court may be open to a head-on challenge to the ban by the NCAA regarding paying athletes for their participation in sports that bring billions of dollars in revenue to American universities.
Throughout its history, the NCAA has defended the principle that students should play sports as amateurs and are limited to receiving no more than scholarships, books, room and board and other living expenses. The organization sets the rules for roughly half a million college athletes.
But as television deals have swelled across the decades, sending billions of dollars into the association and its member conferences — fueling arms races for top-notch facilities and big-name coaches — the model has come under increasing legal and political scrutiny.
In an opinion that was not part of the majority, but a concurring opinion, Justice Brett Kavanaugh seemed to invite such a challenge to the historical basis of collegiate amateur athletics. He wrote:
“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying a fair market rate, and under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”
In a statement, the NCAA said the ruling “reaffirms its authority to adopt reasonable rules and repeatedly notes that it remains free to articulate what are and are not truly educational benefits.” However, the lingering concern is that it could only be a matter of time before all of the NCAA’s restrictions on compensation are struck down as antitrust violations. Under those circumstances, colleges would be cast in the stark role not of educational institutions but rather cogs within an enormous industry, with compensation directed by market supply and demand.
In the actual majority opinion, Justice John Paul Stevens wrote, “The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports.” He further wrote for the majority: “There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of” the antitrust laws.
When I was a sophomore undergraduate, I had a university-appointed job of cleaning, on my knees, the cork floors of the electron microscope lab for $6 per hour. That was my economic contribution, dictated by the market. Should not a Heisman Trophy quarterback be paid $250,000 per year for his true and stellar contribution to the university that results from tens of thousands of seats filled in the football stadium?
The decision of the court last week signaled a new focus on the casting of collegiate athletics as a business. However, voices have arisen that contradict the basic veracity of this facile and incorrect assessment of why we have those colleges and universities. We have them for one overpowering reason: to produce educated citizens for the betterment of our society; to give us teachers; to enroll doctors, lawyers, nurses, accountants and other professionals for service to our people; and to be citadels of intellectual learning.
Simply stated, our universities are not — and should not — be “minor leagues” for professional sports entirely devoid of primary educational purpose. When we elevate physical prowess above intellectual development, we cheapen the very heart of a university’s purpose. We foster the temporal enjoyment of entertainment over education, and in the long run, we do a disheartening injury to our future.
The University of Chicago is one of the most renowned universities in the world but, even though it produced the first Heisman Trophy winner, it separated itself from economic sports competition — and it thrives. The Ivy League has no athletic scholarships, and still it is our most revered of our schools. Doesn’t that tell us something?
Don Tortorice is a former attorney and professor at the Law School of the College of William and Mary.