I came across this interesting and well-researched piece about the NCAA’s definition of amateurism (click through to download the PDF). This note from the Duke Law Review makes a case for a “new amateurism” that breaks down some of the more arcane and ridiculous requirements currently required to retain amateur status, while keeping a clear line of demarcation between “amateur” and “professional.” Framed around the recent court case of baseball prospect Andrew Oliver, the Note is structured as a modern reconceptualization of amateurism in recognition of the modern college sports industry, as well as federal labor and tax law. It is well worth the read for those interested in the future of college sports, as well as those who have ever questioned how the NCAA has been able to operate as it has, with little interference from government.
My quibbles are not with the main research, which is first rate, and pieces together an intersting history of the definition of amateurism and government involved in American college sports. Rather, I have issues with the Fitt’s understanding of the realities of big-time college sports, in the context of how she projects her “new amateurism” to work.
To use a sports analogy, Fitt advocates for a “bend-but-don’t-break approach” to the NCAA, whereby the NCAA relaxes “a regime . . . of anti-competitive limitations on college athletics” by allowing college athletes to make some money plying their athletic trade in the offseason, and receive appropriate advice on their careers from agents and lawyers, among other highly reasonable suggestions.
This is in sharp contrast to the NCAA’s current “blitz” mentality of prosecuting even minor instances in which an athlete seeks to acquire present or future consideration for the sports services he renders for a college team. While Fitt argues that loosening the definition is in the NCAA’s long-term interest by bolstering its argument “that it imposes only reasonable restraints on trade and that some restraints are absolutely necessary to protect amateurism in intercollegiate athletics”(586), there is reason to be skeptical that the NCAA would value a move to rational ground. The NCAA has been given carte blanche by the courts during challenges to its favorable tax status as a 501(c)(3) charitable organization. Why would the NCAA jeopardize this arrangement by ceding ground via slippery-slope arguement to the athletes, agents and critics who think college athletes should get a fair cut of gate receipts? Any action allowing college athletes to make money directly off of any sports runs the risk of being interpreted by some court as acknowledging what most people know is true: college sports is money-making entertainment first, and . . . money-making entertainment second, third and fourth, too. Money-making entertainment rarely receives favorable tax treatment from the federal government.
I also feel that Fitt fails to acknowledge the pervasiveness of the culture of control present in most college and university sports programs, which is approved by the NCAA under buzzwords like civility and responsibility. In writing that the change to
permitting athletes to work in largely unrestricted employment, play on other teams during the summer for pay, and openly pursue future employment with professional sports, the NCAA would reduce its control of the working lives of its student-athletes and also reduce the athletes’ financial dependence upon the NCAA and its member institutions (590)
Fitt seems to believe the NCAA will relax its controls on student athletes in exchange for a more reasonable and logical position on “amateurism.” However, control in college sports is not a top-down phenomenon in reality, but rather a bottom-up one. The lived experience of college athletes is full of graduate assistants distributing weekly schedules, assistant coaches demanding extra time in the film and weight rooms, tutor staffs running study sessions and giving recommendations for future courses, and compliance officers shadowing extracurricular activities. Each athletic department is like a modern fiefdom, with the aforementioned sentries reporting to coaches and athletic directors who wield surprisingly autonomous and absolute power within each academic kingdom. Insofar as Fitt recognizes that “many NCAA rules are worked around or widely flouted”(568), she should also see that NCAA members would kindly place new rules that restrict control of college athletes in the circular file.
I had a similar reaction to Fitt’s comment that “because the NCAA relies on its members for enforcement of its amateurism standards, the NCAA should reexamine its rules and limit them to those truly necessary to protect amateurism”(590). Again, she gives the NCAA too much credit, by tacitly assuming the NCAA has other tasks to accomplish besides promoting a quixotic notion of “amateurism.” It honestly doesn’t, in the great tradition of late-Communism’s “bureaucracy for bureaucracy’s sake.”
One of the most interesting developments in college sports recently has been the rise of large conferences. Lost in the babble over a college football haves and have-nots, bowls and playoffs lies the fact that groups of schools now own television networks, generate oodles of advertising revenue, provide separate discipline and punishment of misbehaving athletes and coaches, and run sophisticated game-day operations. There may soon come a day when larger conferences decide that Indianapolis takes too large a cut of its hard-earned money, and simply contract with each other for the same college sports opportunities under a different name. Thus, the NCAA has a strong motive to continue to produce labyrinthine rules and employ devious enforcement mechanisms: its very survival depends upon it.
I greatly enjoyed Fitt’s Note, and hope that my criticism in no way diminishes the yeoman’s work she put into it. Rather, I hope this review drives home the larger point that the NCAA is largely detached from the realm of rational and responsible governance. In fact, it is nearly its antithesis: a punchless organization that can only go after its weakest members (athletes), which operates like a parasite upon economically productive entities. Such a sentiment is likely too biased for respectable academic journals, but its truth grows stronger every day.