United States: NCAA at 100 Years: Perspectives on its Past, Present, and Future

On October 15, 2010, Ropes & Gray joined with Boston College Law Review to host a symposium in honor of the 100-year anniversary of the National Collegiate Athletic Association (NCAA). During that time period, the NCAA has fostered tremendous growth in college sports, making it difficult to imagine the landscape of college athletics without its predominant governing body. With over 400,000 student-athletes in twenty-three sports nation wide, the NCAA is as well-known – and perhaps controversial – as many of the sports under its governance.

As college sports have grown in both scope and popularity, so too have they become, in many cases, increasingly lucrative. One of the consequences of this growth, however, is the emergence of a conflict that pits certain core values such as amateurism, academic standards and equal access against practical realities like television contracts, merchandising rights and competitive pressures. Athletes, schools and the NCAA have frequently looked to the legal system to resolve various conflicts. The symposium sought to examine several of the most relevant legal issues raised by the NCAA's growth.

The NCAA and Gender. Professor Nancy Hogshead-Makar of Florida Coastal School of Law kicked off the symposium by offering a primer on Title IX and its modern day implications in college sports. Title IX is a federal law designed to eliminate discrimination from participation in educational programs based on sex. Although Title IX makes no mention of sports specifically, Professor Hogshead-Makar pointed out that collegiate sports most directly and frequently implicate Title IX because sports are one of the few remaining educational programs that actively allow sex segregation.

Using Professor Hogshead-Makar's examination of Title IX as a foundation, Professor Erin Buzuvis of Western New England College School of Law discussed a recent case, Biediger v. Quinnipiac University, in which competitive cheer, a new sport at Quinnipiac University, was ruled outside the scope of "sport" relative to Title IX. Professor Buzuvis explained that with few exceptions Title IX required that an academic institution needed to offer roughly the same percentage of athletic opportunities as compared to the respective gender percentage in the school. In Biediger, the court ruled that under Title IX, competitive cheer was too underdeveloped as a sport to offset male sports at Quinnipiac University, citing among other reasons, its lack of a varsity level competition, the lack of a chief governing organization and the lack of standardization within the sport. Professor Buzuvis opined that rather than hurt the sport of competitive cheer, the ruling helped define "sport" within the structure of Title IX and also provided certain guidelines for schools in the future.

The NCAA and Students. Often, college sports extend far beyond the playing field. Establishing a tradition of excellence in sports can lead to an increase in enrollment, monetary incentives and national recognition, but it can also place enormous pressures on student-athletes and coaches to perform at the highest levels. Professor Maureen Weston of Pepperdine University School of Law offered her thoughts on the long history of NCAA rules violations resulting from such pressures and how the punishment often does not address the actual wrong-doers, nor does it deter those individuals from committing similar offenses in the future. As Professor Weston demonstrated, often the coach or player that has committed a gross violation of NCAA regulations is no longer with the school to receive the punishment, which can range from reducing scholarships to vacating victories to a ban on post-season play. Professor Weston proposed that a new regime should be put in place to allow for the imposition of financial penalties on those who actually commit the infractions, and that requires disgorgement of winnings and bonus or claw-back provisions in coaches' contracts.

One of the most heavily regulated areas in college sports is the recruitment process of young student-athletes, which the NCAA monitors very closely. Professor Alfred Yen of Boston College Law School focused his discussion on the practice of universities offering athletic scholarships to progressively younger student athletes. At present, the NCAA does not allow formal commitments until a recruit's senior year, but as a result, coaches seek out verbal non-binding commitments from the athletes. Professor Yen argued that this practice places an undue pressure on recruits to commit early. As an alternative, Professor Yen proposed a system of early commitments that would be binding on the schools, creating more accountability and forcing schools to only make offers they intend to keep.

Postseason College Football, the Bowl Championship Series, and the National Championship. For some, the phrase "college football is religion" does not come close to capturing the passion and fanfare the sport garners. Indeed, from South Bend to Tuscaloosa to the blue turf in Boise, college football transcends passion for the game; it goes beyond the realm of normalcy and it consumes fans with an indescribable fury. Capturing this sentiment, ESPN's Jeremy Schapp moderated a spirited conversation between Roy Kramer, former Commissioner of the South Eastern Conference and founder of the Bowl Championship Series (BCS) and Matthew Sanderson, Executive Director of the Playoff PAC, one of the foremost opposition groups to the BCS.

Mr. Kramer began the conversation with a riveting monologue on the history of the bowl system, He explained that prior to the BCS, there was an absolute monopoly in the bowls, with conference affiliations to certain bowls and the same major conference teams continuously receiving invites to the most famed bowls. His vision, and the purpose behind the BCS, was to enhance interest in college football, especially beyond the major college football markets, to protect the regular season and to protect the bowl structure while allowing more teams to participate against one another, to include allowing the two highest ranked teams in the country to play each other.

In response, Mr. Sanderson explained that the Playoff PAC exists as an opposition group to the BCS, seeking to expose its purported shortcomings and ultimately replace it with a playoff system. Mr. Sanderson offered that the BCS, by not providing a playoff, takes away merit-based competition and replaces it with a championship decided by pundits, not athletes. He also acknowledged the monetary disparity among schools under the BCS system, pointing out that under the BCS, the revenue distribution heavily favors the automatic qualifying schools even though non-automatic qualifying schools often have similar or greater success in both game attendance and television ratings. In short, Mr. Sanderson argued college football needs to continue to evolve, allowing teams of less tradition a chance at greatness.

The NCAA as a Commercial Enterprise. College sports – mainly college football and men's college basketball – have become increasingly lucrative, with television and merchandising contracts creating revenue streams for certain schools and conferences in the tens of millions of dollars. In fact, Professor Michael McCann of Vermont Law School noted that the BCS alone generated over $143 million in 2010, eighty-one percent of which went to the automatic qualifying schools. Critics of the BCS, however, argue that its structure and internal makeup violate antitrust laws, specifically sections 1 and 2 of the Sherman Act. In essence, the charge is that the BCS acts as a cartel to prevent others from competing through acts of collusion and monopolistic behavior. Professor McCann explained both sections of the Sherman Act in great detail, and ultimately came to the conclusion that although not conclusive, the BCS probably does not violate any antitrust laws.

Almost as lucrative as the BCS, and just as controversial, the exploitation of the intellectual property rights of student-athletes by the NCAA has moved to the forefront of the college athletics legal landscape. Through the merchandising and licensing of everything from video games and fantasy sports leagues to advertising and sponsorship, the value of a college athlete's likeness has skyrocketed. Professor Joseph Liu of Boston College Law School tackled this hot-button issue in discussing a student-athlete's right of publicity. Specifically, Professor Liu discussed the implications of a current case, O'Bannon v. NCAA, in which Ed O'Bannon, a former player, is suing the NCAA for improperly misappropriating his purported right to profit from his own likeness. Rather than attack the issue of whether the players validly assign their intellectual property rights to the NCAA, Professor Liu took the novel approach of contemplating whether these athletes should have such rights at all. Ultimately, Professor Liu argued that fans, the consumers in this regard, would be better off if the athletes did not have these rights of publicity as it would allow for a wider range of products for consumers.

The NCAA and Constitutional Law. At first blush, the constitutional implications for the NCAA may seem minimal, or at least secondary, but Professor Vikram Amar of UC Davis School of Law made the case that with its continued growth and expansion, the NCAA may be pushing our legal system to reevaluate whether it has become a state actor. The Fourteenth Amendment limits State actors, but a private actor can still be implicated as a state actor if it is providing a state function. Of course, Professor Amar correctly points out that in 1988, the Supreme Court decided in Tarkanian v. NCAA that the NCAA was not a state actor. Professor Amar debated the logic of that ruling and discussed how that logic might apply today. Ultimately, Professor Amar opined that to truly determine whether a private entity was a state actor, the Supreme Court should develop a more predictable and functional approach that would capture the reasons for importing constitutional norms on state actors in the first instance, incorporating federalism, separation of powers and autonomy.

As the finale to an academic endeavor into the NCAA and college athletics, Professor Richard Albert of Boston College Law School spoke about the role the constitution plays in a sports organization. Professor Albert began with an exercise of breaking down any constitution, whether the Constitution of the United States or the constitution of the NCAA, noting conventional distinctions between private and public constitutions as well as international, national and local constitutions. From this exercise, Professor Albert was able to develop a theory that every constitution is or should be composed of certain constitutional basics and constitutional virtues. Using his theory as a foundation, Professor Albert compared the United States Constitution and the NCAA constitution to determine which was more "constitution-like." Applying the basics and virtues discussed, Professor Albert demonstrated a surprising result: the NCAA constitution proved to be more constitution-like than our own national Constitution.

To view the symposium in its entirety, click here. The Kramer/Sanderson discussion is the first video that is posted.

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