How could Mark Emmert, president of the NCAA, be so careless as to say he finds “shocking” the recent report of failings of the academic program for student athletes at the University of North Carolina at Chapel Hill? Didn’t he realize that anyone hearing his words might recall the scene from Casablanca in which the local policeman, Captain Renault, claims to be “shocked, shocked!” to find gambling going on in Rick’s café – just before the croupier hands the captain his “winnings”? As a representative of colleges and universities raking in revenue from college sports, Emmert stands in shoes not unlike those of the famously shocked policeman.
The UNC case is just one of many embarrassments suffered recently by the NCAA, whose purported mission is to sanitize college athletics. Numerous instances and cover-ups of coaches’ and athletes’ apparent misbehavior have also damaged the NCAA’s image as a committed, effective defender of educational and other values in college sports. Although the public mostly still looks to the NCAA to make college athletics respectable, skepticism about the integrity of the system over which it presides is greater than ever. It may be time to reduce the NCAA’s role in regulating critical aspects of that system.
The easiest way to reform the regime currently governing college sports would be for the courts finally to treat certain functions of the NCAA as antitrust violations. Although the Supreme Court has never ruled on the NCAA’s legality as a combination of competing colleges and universities that collectively set the terms on which they procure athletes’ services, it could do so in an appropriate case.
In a 1984 opinion finding that the NCAA was restraining trade in marketing TV rights to football games, the Supreme Court included some praise for the NCAA’s efforts in promoting “amateurism” and the distinctiveness of college football. Those nice words were probably meant, however, only to prevent someone from inferring the justices’ view on the legality of the colleges’ agreement not to pay athletes for their services, which was not an issue in the case. Nevertheless, with that language before them, a number of lower courts have since been persuaded by the NCAA that its rules restricting athletes’ compensation have a so-called “procompetitive” effect in making college athletics a unique and popular “product,” differentiated from professional sports.
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The Supreme Court, however, has never allowed a desirable procompetitive effect in one market (such as the market for entertainment) to justify a restraint of trade having “anticompetitive” effects in a different market (such as the market for athletes’ services). Indeed, in a 1963 merger case, the court expressly rejected just that notion. This would seem to be a crucial point in deciding the legality of the NCAA’s rules making amateurism compulsory in college sports.
Although the NCAA’s rules certainly do help to maintain the difference between college and professional sports, a universal rule suppressing all economic competition by colleges for the services of aspiring athletes is both too restrictive and probably not necessary to keep consumers interested in college games. Indeed, there would be no antitrust problem at all if the terms on which athletes could be employed and educated were agreed to, not at the national level, but by subsets of the competing schools organized in competing leagues.
Quite good and popular athletic competitions could be produced, it would seem, if the ACC, the Ivy League, the Big Ten and so forth set their own rules for compensating (or not compensating) athletes and for ensuring the quality of their educational experience. Interleague play would surely continue, and post-season tournaments and bowl games should be no less exciting than they are under the current regime.
Replacing the NCAA with a system of competing leagues should not be unduly disruptive. To be sure, there would be some realignment of leagues, because different groups of schools would naturally strike different balances in reconciling their academic ideals and ethical principles with the need to generate income and satisfy their fans. The key point, however, is that aspiring student athletes would have much wider and more appropriate economic and educational opportunities than they do now. Reducing the level of hypocrisy in higher education would be an added benefit.
Emmert’s professed shock over the UNC scandal suggests the possibility that the NCAA will be tempted to display its virtue by imposing especially harsh penalties. Such scapegoating, after all, would be a good way for the NCAA both to demonstrate its “shock” and to make it seem that the UNC situation is more unusual than it may be in fact, under the NCAA regime.
UNC’s lawyers may find that the university’s best defense against new sanctions would be itself to challenge the NCAA on antitrust grounds, arguing that it, and other schools as well, would be better able to live up to their ideals in a league of like-minded institutions.
Clark Havighurst is William Neal Reynolds Professor Emeritus of Law at Duke University.