The NCAA's unfair play

By Mary Grace Miller

The NCAA is finally facing legal and media pushback for its absolute, and potentially illegal, control over "student-athletes."

The National Collegiate Athletic Association was established in 1906 on the principle that student-athletes should be protected. But today, the nonprofit, tax-exempt organization does a better job exploiting these student-athletes than protecting them.

Over the last 100-plus years, it has become clear that the NCAA views these “student-athletes” as, in fact, just athletes. Scandal after scandal has hit the newspapers: athletes accepting tattoos or selling their jerseys in exchange for cash -- and even a coach looking the other way. These acts are clearly wrong under the current regulations. But once you get a true understanding of how the NCAA operates, it’s hard not to want to tell every star player to go sell his jersey.

In the past few months, the image of the NCAA as an immoral and, likely unlawful, bully has begun to emerge. New York Times columnist Joe Nocera has played a central role by calling for players to be compensated, comparing the NCAA to a cartel, and even calling out Harvard as a “scaredy cat” for failing to stand up to the NCAA’s “pettiness.”  

Nocera is not the only one to comment. Taylor Branch, a prominent civil rights writer and Pulitzer Prize-winning author, wrote a moving piece in The Atlantic titled “The Shame of College Sports". Branch notes that college players get nothing and have few, if any, rights as NCAA athletes. Even with a full tuition scholarship, they are not compensated anywhere close to the equivalent of the millions of dollars that everyone else makes thanks off of their immense talent. Not even men's basketball and football players have the right to profit, even though that tiny percentage of the total college athlete population brings in a whopping 90% of the NCAA's annual revenue.

That disparity exists because of the regulations students must agree to before stepping foot on any NCAA-sanction court or field, regulations that have created a nonsensical system where student-athletes -- the very people the NCAA was created to protect -- sign away rights that the NCAA argues they never had to begin with.

Why won't the NCAA at least let the kids who make millions of dollars each year for corporate execs and television networks live above the poverty line?

It's hard to wrestle with the idea that college students would truly be paid for their athletic prowess, but a number of proposals have been made in an effort to find a fair balance. If the NCAA is truly an organization charged with protecting student-athletes, shouldn’t it be leading the way? Shouldn’t it be finding a way to provide adequate living allowances rather than requiring kids to sign away their rights to their images and likeness, among other things?

Instead, the NCAA has swung to the other end of the spectrum. It intentionally coined the term “student-athlete” in an effort to eliminate the possibility that a student may try to claim workers' compensation. Under the NCAA’s definition, the student is not a worker, even if every bit of common sense points to big-time football and basketball players being at least part-time employees.

It's also robbed students of the opportunity to ever benefit from their college athletic success. NCAA bylaws require student-athletes to relinquish “all rights in perpetuity to the commercial use of their images, including after they graduate and are no longer subject to NCAA regulations.” That means a college athlete, at no time while in school or after, has the right to profit off of his or her image as a college player.

Student-athletes are finally fighting back against the NCAA's absolute power by taking their grievances to the courts. In In Re Likeness & Licensing Litigation, Ed O’Bannon, a former UCLA basketball star, and other former NCAA star athletes have filed suit against the NCAA and video-game maker EA Sports in an antitrust action. The main claim in the case is that “the NCAA has violated federal antitrust law by unlawfully foreclosing former Division I men’s basketball and football players from receiving any compensation relating to the commercial use of their images and likenesses.”


The court has allowed the claims to proceed despite the NCAA’s motions to dismiss, and will hear the case in May 2013.

Several similar cases against the NCAA have been merged into one, so an action by another player regarding EA Sports has joined the lawsuit. The issue here is the relationship between the NCAA and EA Sports and allegations that that EA Sports agreed “not to offer payment to athletes once they left their college sports careers, in addition to NCAA’s rule prohibiting compensation of current student athletes.” Under antitrust laws, a court may find that to be illegal.

This case is especially important because if the athletes win, it would mean that students, as student-athletes and later as adults, could receive proceeds from their college images. It could also create a bit of a mess for the NCAA. Although this case won’t be heard for a year or so, it seems that the NCAA should be preemptively doing as much for these kids as they can. If they don’t, legislation or a court order may soon require it. 

Something has got to give. The NCAA must start taking steps towards truly protecting the students, or the schools must put pressure on the NCAA to do something. There are a number of possibilities as to how a new, fair and just system would work. Though the concept of paying student-athletes might seem shocking initially, when viewed in a larger context, it becomes the only appropriate step. It's simply compensating human beings for the work they do and the profit they create for so many others. Failing to do so would not only go against the NCAA's so-called principles, but the standards we apply to our society as a whole.

 Mary Grace Miller is a law student and Began in '96 contributor.