An old legal adage goes like this: When you don't have the law on your side, pound the facts. When you don't have the facts on your side, pound the law. And when you don't have either?
Pound the table.
Consider the ongoing defense of college sports amateurism. Two weeks ago, both the Collegiate Licensing Company and video game maker Electronic Arts agreed to settle claims in a federal antitrust lawsuit brought by former UCLA basketball player Ed O'Bannon regarding the uncompensated use of current and former athletes' images and likenesses. Meanwhile, the NCAA retained additional lawyers. As the lone remaining defendant in a landmark case that threatens to upend the feudal economic model of campus sports, the NCAA vowed to fight on.
In seeming solidarity, Division I athletic directors released a defiant mass statement declaring that "pay-for-play has no part in the amateur setting." (Conveniently ignoring, of course, that college sports already has pay-for-play in the form of price-fixed athletic scholarships.) Big Ten commissioner Jim Delany effectively told athletes unhappy with the current system to get bent. Iowa State athletic director Jamie Pollard hopped on Twitter and proclaimed that opponents of the status quo don't value education -- FYI: Pollard cleared a reported $900,000 this year, working for a school; draw your own conclusions -- before attempting to drive a rhetorical wedge between college athletes and non-athletes, which is only the divide-and-conquer social strategy favored by moneyed elites since the dawn of time. Yours truly participated in a Texas Tribune debate that saw former Texas women's basketball coach Jody Conradt argue that amateurism is necessary because unpaid players are easier to motivate -- my rebuttal? Coach harder -- and current Texas Tech chancellor Kent Hance insist that paying athletes was unwise because as a father, he just didn't like the idea of college students having too much money in their pockets.
Why is the NCAA doubling down in court? Why is Pollard throwing letters against a screen and hoping something sticks? Why is Hance offering a Grumpy Dad's Misgivings About Excess Allowance as a legitimate rationale for denying an entire class of citizens basic economic rights? Because college sports amateurism is a sham. Morally, for sure. But also legally. From an antitrust perspective, it exists as an Oz-like illusion, accepted as great and powerful on face value. And the O'Bannon case threatens to pull back the curtain.
Let me explain. Start with a quick thought exercise:
1. Imagine your favorite college team. The players. The coaches. The uniforms. The logo. The colors. The mascot. The student band. Imagine the campus, the stadium, the tailgating, the cheerleaders, the coeds, the frat bros, the alumni, the nearby bars, the pregame cookouts, the postgame parties, the smell of leaves and the fading fall sunshine, the feeling of being united and excited and young.
2. Next, imagine your favorite college team's most-hated rival, and how much just wearing that school's colors -- even inadvertently -- can feel icky.
3. Now imagine your favorite school announcing that it will allow athletes to be paid whatever the market for their talents will bear -- effective immediately -- while at the same time, your favorite team's rival school sticks with the current NCAA compensation cap of tuition, room and board.
You have a choice. College sports with amateurism. College sports without. No more one-size-fits-all collusion. In this hypothetical new world order, do you lose interest in your favorite school? Do you switch your rooting allegiance to its rival? Do you do those things because athletes not being paid is essential to the college sports product you enjoy consuming?
Believe it or not, these questions are at the heart of the O'Bannon case -- and at the heart of the NCAA's previous defenses against antitrust lawsuits.
Ask an economist: By any reasonable analysis, the NCAA's member schools operate as a cartel, conspiring to limit compensation for college athlete labor. Offer or accept anything beyond a scholarship? Cash, flights, tattoos, the wrong snacks? You will be punished via group boycott. Just like the SMU football program of the 1980s. Or Texas A&M quarterback Johnny Manziel, who earlier this season was suspended for half a game for allegedly selling his autograph.
Typically, this arrangement would be illegal under the Sherman Act, a federal law that protects marketplace competition. Amateurism is naked price-fixing and restraint of trade. It limits athletes' freedom to negotiate and enter into contracts both with schools and other interested parties. However, antitrust law allows for "procompetitive" agreements between marketplace rivals -- that is, cooperation deemed necessary for a product to exist in the first place. For example: Flash drive manufacturers agree to a USB standard, but compete on the basis of memory size and price. The courts approve. Why? Without a collective standard, the overall market for computer memory peripherals would be harmed.
"We have a standard problem in economics that sometimes competition is not a good idea," says Ernie Nadel, a California-based economist who has worked on antitrust cases involving the NCAA. "Because the market becomes so small, the product would not exist. Even Adam Smith talks about this."
Enter the NCAA. Over and over, in case after case, its lawyers have asserted that amateurism is procompetitive. Akin to the USB standard. Or rules that college athletes have to attend college. Those same lawyers maintain that agreement between schools to restrict athlete compensation is not only what makes college sports distinct, but also what makes them popular -- in other words, fans want college athletes not to be paid, and if that ever changes, demand for the product will plummet, harming the college sports market as a whole.
Given that the NCAA has beaten back a series of antitrust challenges over the last two decades -- amateurism has not yet been ruled illegal -- you might assume that this position is supported by ample testimony. A score of case studies. Thorough economic analysis. A parade of expert witnesses. A veritable Everest of relevant data, something that O'Bannon's legal team will struggle to scale. In fact, you might assume that at some point in time, in at least one previous case, at least one federal judge followed standard practice regarding procompetitive claims and required the NCAA to substantiate its argument with, you know, actual evidence -- to essentially demonstrate that at the end of the aforementioned thought exercise, losing amateurism would make a diehard Alabama fan switch allegiances to Auburn, or maybe just turn off the television altogether, because if college athletes are allowed to be paid market rates to play campus sports, who on Earth wants to watch?
Just as amateurism itself is philosophical cotton candy -- a concept its supposed ancient Greek Olympic originators would have laughed at; a concept the NCAA continually redefines in arbitrary and self-serving fashion; a concept inherited from Victorian Era English snobs who didn't want to row crew against unwashed factory workers, and didn't we fight a Revolutionary War to distance ourselves from that sort of thinking? -- amateurism's status as procompetitive is puffed-up nonsense. Dig into legal history, and there's no there there. Just a flimsy series of tautological assurances and sentimental musings from federal judges who really ought to know better.
Most of the blame belongs with the Supreme Court.
In the mid-1980s, the University of Oklahoma and the University of Georgia brought an antitrust suit against the NCAA over the its iron-fisted control of televised college football rights. NCAA lawyers claimed the restrictions were procompetitive and necessary for the survival of the sport because they encouraged both in-stadium game attendance and competitive balance. Oklahoma and Georgia argued that the same restrictions were anticompetitive because they fixed the price of game broadcasts and placed an artificial cap on the total number of televised games -- two things that were hurting college football. Federal courts ruled against the NCAA. The Supreme Court agreed. Subsequent history -- you're familiar with ESPN, ESPNU, the Big Ten Network and the Longhorn Network, right? -- has proven them correct.
In the Court's majority opinion, however, Justice John Paul Stevens also wrote the following:
… the NCAA seeks to market a particular brand of football -- college football. The identification of this "product" with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of the "product," athletes must not be paid (bold added), must be required to attend class and the like. And the integrity of the "product" cannot be guaranteed except by mutual agreement; if an institution adopted such restrictions unilaterally, its effectiveness as a competitor on the playing field might soon be destroyed.
Thus, the NCAA plays a vital role in enabling college football to preserve its character, and as a result enables a product to be marketed which might otherwise be unavailable. In performing this role, its actions widen consumer choice - not only the choices available to sports fans but also available to athletes - and hence can be viewed as procompetitive …
Athletes must not be paid. Five words buried within a 19,000-word brief, unrelated to the broadcast contracts question at hand. Stevens is noting -- rightly so -- that some NCAA rules that appear to violate antitrust laws may actually be procompetitive if they enable college football to exist as a desirable product in the first place. He mentions class attendance as an example. Amateurism, too. He does not subject the latter to any sort of scrutiny. No testimony. No evidence. No arguments for and against. As ESPN.com's Tom Farrey has noted, "the lack of rigorous thought is reflected in Stevens' casual, almost off-hand language. What is the exact definition of "paid," given that checks are being written as part of scholarship contracts that can be worth hundreds of thousands of dollars? Does the ban on pay include endorsements from outside entities?"
Stevens doesn't say. He doesn't say because the case, NCAA v. Board of Regents of the University of Oklahoma, wasn't about athlete compensation. Stevens was making a general, tangential point about procompetitiveness, not granting the NCAA a blanket federal antitrust exemption. In legal parlance, his comments are known as dicta -- court statements that are considered authoritative, but not binding. No matter. In a twist that's both deeply ironic and deeply indicative of the inverse relationship between billable hours and basic human sincerity, NCAA lawyers have seized on Stevens' nothingburger, continually claiming that restricting athlete pay is necessary for the survival of college sports because the Supreme Court said so. No additional proof needed. Amazingly enough, federal courts have agreed. In a half-dozen antitrust cases brought against the NCAA over the last 25 years, judges have ruled in favor of the association -- continually citing Board of Regents; blathering about "the revered tradition of amateurism in college sports"; offering airy platitudes like "even in the increasingly commercial modern world, this Court believes there is still validity to the Athenian concept of a complete education derived from fostering full growth of both mind and body."
Ahem. The Greek athletes of classical antiquity were showered with pay-for-play goodies. Lavish banquets. Generous pensions. According to historian Tony Perrottet, one Olympic victor was rewarded with an Athenian senatorial seat. But never mind all that. The real problem here is that the federal judiciary has substituted empty sentiment and circular logic -- college sports are amateur because otherwise they wouldn't be college sports, which are amateur -- for actual evidence, never even asking the NCAA to support its position.
In this regard, the NCAA has been very, very lucky.
In the spring 2000 issue of the journal Antitrust, two Michigan-based lawyers who represent the NCAA in antitrust litigation -- Robert Wierenga and Gregory Curtner, both O'Bannon case lawyers -- wrote that amateurism is procompetitive because "a successful attack on the amateurism tradition would leave us with what? Withholding taxes from scholarships? Unions of college players? Strikes? Armies of agents? It would almost certainty lead to less consumer choice and fewer opportunities for student athletes to purse the idea of mens sana in corpore sano." Right. Uh-huh. Setting aside Latin word farts from a pair of lawyers who are certainly not working for the NCAA pro bono -- see what I did there? -- Curtner and Wierenga's hypothetical campus apocalypse of taxes, agents, unions and labor disputes describes the everyday realities of the NFL, the NBA the NHL and Major League Baseball, all of which have grown over the last 13 years, providing more consumer choice and roster opportunities for capable athletes. (Also: College coaches pay taxes, employ agents and have quasi-unions; in an astonishing rupture of the space-time amateurism continuum, the coaching market has never been larger or more lucrative.)
Likewise, Washington, D.C.-based NCAA lawyers Philip Bartz and Nicholas Sloey also seem to believe that the takeaway lesson of Board of Regents is that when it comes to amateurism, just saying something makes it true. Antitrust law as summoning Candyman. In an article titled "The Joy of College Sports: Why the NCAA's Efforts to Preserve Amateurism Are Both Lawful and in the Best Interest of College Athletics," they state that "requiring amateurism is no different in purpose and effect than the bylaws on academic standards." Why? Bartz and Sloey don't say. Oh, sure: Academic standards have to do with being a student, and amateurism has to do with college sports revenue going to desk jockeys such as Iowa State's Pollard instead of the athletes people pay to see. (Reality check: If amateurism truly had an academic purpose and effect, all students would be forbidden to make money while in college, and campus work-study jobs would be verboten.) Still, whatever. Why bother to spend 30 seconds thinking when you can accept Bartz and Sloey's painstakingly crafted argument of just because?
In their defense, the duo does offer an actual data point supporting amateurism's assumed procompetitiveness: the Miracle on Ice. "Look to the 1980 U.S. Olympic hockey team to see the incredible popularity of the unique blend of the student and amateur athlete," they write. "The current Olympics, with professional hockey and basketball players, have none of the cache of that 1980 team." Well. It's certainly possible that the staff of a Miami hospital reportedly rolled a TV set into the surgical intensive care unit to cheer on Team USA between treating gunshot wounds and reading X-rays because they were enraptured with the notion of college students not being paid a market rate for their athletic labor. It's also possible that the 1980 Olympic hockey team was -- and remains -- incredibly popular because they beat the Soviet hockey juggernaut at the height of the Cold War in one of the most improbable upsets in sports history. As for the current Olympics lacking "cachet" (alert: mushy, unquantifiable weasel word) due to the inclusion of professional athletes? The professionalized Olympics are bigger, better and richer than ever. The 1992 Dream Team helped make basketball one of the world's best-loved sports. Athletic consumers have more choice, not less. Oh, and the 2010 gold medal Olympic hockey game between the United States and Canada was only the most-watched hockey game since the United States-Finland gold medal game in 1980.
Indeed, there's simply no evidence indicating that amateurism is what makes college sports popular, and plenty of evidence suggesting otherwise. Like the Olympics, both tennis and golf once clung to amateurism for a supposed fear of losing viewers. Today, the tennis Grand Slams pay out millions in prize money. The PGA Tour publishes a player-ranking list based on cold, hard cash. Both sports are healthy, providing more playing and watching opportunities for athletes and viewers alike. By contrast, no struggling sports league in the history of the universe has ever switched from paying athletes to amateurism in an effort to generate excitement and increase market share. Not even the short-lived XFL, which tried just about every available gimmick save a randomly exploding football.
In their article, Bartz and Sloey argue that the failure of minor football leagues like the All-American Football League and the United Football League prove that "conclusion that the NCAA's two core requirements -- academics and amateurism -- are integral to the creation of a successful college sports product." Even coming from a pair of lawyers, this is sneaky, dubious conflation of the highest order. Again: It's possible that the two leagues flopped because they did not restrict player compensation to room, board and credit hours at the nearest college. It's far more likely that the leagues failed because they lacked the campus affiliation that makes college sports, well, college sports. After all, Bartz and Sloey are right about one thing: By linking sports and school, the NCAA's academic eligibility requirements are highly procompetitive. Fans identify with their alma maters and with regional universities. Sometimes, fans develop rooting interests in college teams simply because said squads are on television a lot. CoughDukeNotreDamecough. The NCAA argues that it sells amateurism, but what it actually peddles is high-quality sports played by college students. Remember Stevens' dicta?
… the NCAA seeks to market a particular brand of football -- college football. The identification of this 'product' with an academic tradition differentiates college football (bold added) from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball …
Fans root for Harvard football because they like Harvard football, and because they like particular athletes associated with Harvard football. They don't root for Harvard football because the school offers less financial compensation for playing sports than a scholarship school like Ohio State. Speaking of the latter: Three years ago, a group of Ohio State football players was suspended for amateurism violations that included selling memorabilia for cash. The players were allowed to compete in the 2011 Sugar Bowl. Ratings for that game were up 25 percent from the previous year -- while ratings for the four other BCS bowls were down? Did fans stop watching and enjoying former Auburn quarterback Cam Newton for alleged amateurism violations? Have fans stopped watching and enjoying Manziel for the same?
To put things another way: If amateurism is so procompetitive, why are non-scholarship Division III stadiums so small?
Two decades ago, the NCAA adopted a rule limiting salaries for certain entry-level basketball coaches to $16,000. The stated purpose of the rule was to reduce overall costs. The coaches sued. A federal court found in their favor. After all, restraining coach compensation has nothing to do with the viability or popularity of college sports. Amateurism is no different. Only don't take my word for it. Ask Frank Easterbrook. An active federal judge, Easterbrook represented the NCAA in --you guessed it -- 1984's Board of Regents. In oral arguments before the Supreme Court, he asserted that paying athletes likely would increase demand for college football. "When the NCAA says, we are running programs of amateur football, it is probably reducing its net profits," he said. "It might be able to get more viewers and so on if it had semi-professional clubs rather than amateur clubs."
Easterbrook was correct. Since Board of Regents deregulated college football broadcasts, the sport has become increasingly commercial. And increasingly popular. With good reason. Alabama fans want Alabama wins. Not an association-imposed Alabama player salary cap. Nevertheless, NCAA lawyers last month filed a motion in the O'Bannon case proclaiming amateurism to be procompetitive. As always, they offered scant supporting evidence. How could they? Another old adage holds that every great cause begins as a movement, becomes a business and eventually degenerates into a racket. Amateurism skipped the first two steps. Its defenders aren't protecting college sports. They're simply protecting a particular type of college sports economy -- one in which University of Connecticut coaches and administrators received gold-and-diamond rings commemorating the school's 1999 men's basketball championship worth $500 apiece, while players received gold-tone models worth $199. Forget law. Forget facts. For that kind of racket, you'd pound the table, too.